CHAPTER 13: PRINCIPLES
powers (TA 1984 s94; ISA 1994 ss 5 and 7) are so baldly stated as to tell the
citizen little about how they are liable to be used.
(b)
Obscurity was perpetuated by the paucity of litigation on RIPA Part I (itself a
consequence of its covert operation) and by the Government’s failure to
indicate (at least until the Charles Farr Statement of 2014) how it interpreted
the law.
(c)
Recent amendments to DRIPA have been put through Parliament on either an
urgent (DRIPA 2014) or expedited (CTSA 2015) basis, with the result that few
parliamentarians were in a position to understand their full context and
implications.
13.32. Confusing legal structures governing investigatory powers are not unique to the UK,
as I discovered on my visit to the United States (where little-publicised executive
orders add further complication). But countries which routinely intercept the
communications and collect the data of persons outside their jurisdiction owe a special
duty to ensure that at least the basic thrust of their laws can be understood by
intelligent people across the world, without the aid of a highly specialised lawyer or a
wet towel.
13.33. The fact that the subject-matter is technical is no excuse for obscurity. It should be
possible to set out a series of limited powers, safeguards and review mechanisms
with a high degree of clarity and (as RIPA itself demonstrated) without technical
jargon: the place for the latter is in regularly updated Codes of Practice. The speed
and unpredictability of technical change means that any statute is likely to need
replacement (or at least significant updating) within 10 or 15 years. The use of
technical language would tend to accelerate this outcome rather than delay it.
13.34. RIPA Part I has been patched up and mended a number of times, and could no doubt
be kept on the road a little longer. It does not seem to me, however, that such a
process would be sufficient to provide the clear and principled structure anticipated
above. More is required if the law is to command public respect, at home and abroad.
Accordingly, my recommendations are for a law that (while it would adopt much that
is good in RIPA Parts I and IV) would replace them with a new statutory framework.
Fifth principle: a unified approach
13.35. The ISC Privacy and Security Report recommended that the Government should
introduce a new Intelligence Services Bill, consolidating “the intelligence and security
related provisions” of at least seven Acts of Parliament, including RIPA
(Recommendation XX).
13.36. The Report did not recommend “reforming RIPA”25 where other bodies were
concerned (although, consistently with the scope of its own responsibilities, the ISC
did not enquire into the use of RIPA by such bodies). The ISC envisaged that the
police and other public authorities would not be covered by the new legislation, on the
25
ISC Privacy and Security Report, p. 8 para xviii.
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