CHAPTER 13: PRINCIPLES
Third principle: rights compliance
13.25. My third principle is that the state must respect internationally guaranteed rights and
freedoms.
13.26. The UK’s Parliament is sovereign. Almost uniquely in the world, it is untrammelled by
the constraints of a written constitution; and even HRA 1998 places no constraints on
its power to legislate as it pleases.18 But the unbridled exercise of that sovereign
power is liable to place the UK in breach of international legal obligations that it has
freely chosen to observe. This means, in particular, that:
(a)
Powers that intrude into the privacy of communications must be expressly
provided for by accessible and foreseeable laws.
(b)
Such powers may only be exercised when it is strictly necessary for the body
in question to fulfil its legally prescribed mandate.
(c)
Measures taken must be proportionate to the objective, meaning that the
measure must be selected that least restricts human rights and that special
care is taken to minimise the adverse impact of any measures on the rights of
individuals, including in particular persons who are not suspected of any
wrongdoing.
(d)
There must be a clear and comprehensive system for the authorisation,
monitoring and oversight of the use of any measure that restricts human
rights.
(e)
Individuals whose rights may have been infringed must be able to address
complaints to an independent institution and seek an effective remedy.19
Also in play are the UK’s obligations to protect the freedom of expression (including
by protecting journalistic sources), the freedom of assembly and the fair trial
principle (including by respecting lawyer-client privilege). Even those rights are not
absolute: under the ECHR, they may yield to sufficiently pressing considerations of
national security and crime prevention.20
13.27. Whether described as human rights, civil liberties or fundamental freedoms, these
rights assume their most prominent and enforceable form in the ECHR and the EU
Charter. But the placing of privacy-related limits on legislative and executive power
is more than a European phenomenon: it is a feature of all major international human
rights instruments,21 and of most constitutions. Indeed I was struck on my visits to the
US and Canada by how often it was explained to me by Government or law
18
19
20
21
See 5.2 above.
Cf. M. Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, Compilation of good practices on legal and institutional
frameworks and measures that ensure respect for human rights by intelligence agencies while
countering terrorism, including on their oversight: UN General Assembly Human Rights Council, 17
May 2010, para 26.
See 5.21-5.22 above.
See, in particular, the ICCPR, drawn from the Universal Declaration of Human Rights (1948) and
ratified by 167 states worldwide.
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