CHAPTER 13: PRINCIPLES
enforcement officials that a particular interference with privacy or personal data would
be considered unconstitutional, or (in Canada) contrary to its ECHR-like Charter of
Rights and Freedoms.
13.28. Central to most of these rights are the concepts of necessity and proportionality. 22
Because those concepts as developed by the courts are adaptable, nuanced and
context-specific, they are well adapted to balancing the competing imperatives of
privacy and security. But for the same reasons, they can appear flexible, and capable
of subjective application. As a means of imposing strict limits on state power (my
second principle, above) they are less certain, and more contestable, than hard-edged
rules of a more absolute nature would be.
13.29. This highlights the vital importance of ensuring that where potentially intrusive powers
are concerned, the necessity and proportionality tests are applied according to a
thorough set of criteria, and in an independent spirit. However much credit one gives
the state for its probity, one can understand those who have wondered whether a
greater element of independence might occasionally have made a difference.23 The
paramount importance of independence is reflected in my recommendations
regarding not only oversight (where effective though improvable independent
mechanisms have already evolved in the UK) but authorisation.
13.30. To the principle that legally enforceable rights must be respected, I would add two
riders:
(a)
It is not always clear how far legal obligations extend. Court challenges
are currently pending or have very recently been resolved in relation to bulk
collection, intelligence sharing, data retention, CNE, the protection of
journalists’ sources and legal professional privilege. It is not always possible to
predict the ultimate outcome of such challenges, and nor is it the function of a
report such as this to do so.
(b)
Practices may be imperfect without being unlawful. I have felt free to
recommend change even when the law does not (or may not) require it. My
recommendations aim to produce a modern, fair and workable law, not just one
that may hope to survive future court scrutiny.
Fourth principle: clarity and transparency
13.31. The desire for legislative clarity is more than just tidy-mindedness. Obscure laws –
and there are few more impenetrable than RIPA and its satellites – corrode democracy
itself, because neither the public to whom they apply, nor even the legislators who
debate and amend them, fully understand what they mean.24 Thus:
(a)
22
23
24
The scope of the RIPA Part I powers, and the precise nature of their interaction
with other powers such as WTA 2006, is not apparent from their wording. Other
See 5.18-5.22 above.
See, e.g., Liberty’s criticism of the alleged Optic Nerve programme. See Annex 7 to this Report and
12.68 above.
See the criticisms summarised at 12.20-12.23 above.
252