CHAPTER 14: EXPLANATIONS
GENERAL (Recommendations 1-12)
14.3.
Recommendations 1-9 give effect to my fourth principle (clarity and transparency)
and my fifth principle (unified approach),1 as well as to the legal requirement
(illustrated by the judgment of 6 February in the Liberty IPT case) that powers will be
lawful only if provided for in an accessible and foreseeable law.
14.4.
Most of these recommendations have their origins in repeated submissions to the
Review from civil society:2 but they were willingly and ungrudgingly endorsed by
almost everyone to whom I spoke, including within Government and the security and
intelligence agencies.
14.5.
Recommendation 4 encourages a radical departure from the convoluted structures
and language of RIPA, and challenges the Office of Parliamentary Counsel to produce
a clear, effective and readable text in accordance with their own aspirations and
best practice. I explain at 1.9 above the special importance of ensuring that the new
law can be understood by all those who debate it, apply it or are liable to be affected
by it, in the UK or abroad.
14.6.
Recommendations 6 and 7 seek to make the new law, so far as possible, both
comprehensive and a one-stop shop for investigatory powers.3
14.7.
Recommendation 9 deals with the avowal of intrusive capabilities, and underlines the
ECHR Article 8 requirement that intrusive powers should be used only if provided for
in a sufficiently accessible and foreseeable law. I emphasise that I am not aware of
any sensitive capabilities which have not been avowed to the Secretary of State.
Indeed I have been assured there are none.
14.8.
Recommendation 10 (restrictions on disclosure) makes the point that if the use of
controversial capabilities is to be properly debated and defended, including before the
courts, the law must not place obstacles in the way of doing so other than those which
are strictly required by the constraints of national security. It also picks up the need
for clear rules on when intelligence can be shared, a point highlighted by the Police
Ombudsman for Northern Ireland in a recent report.4 There will be an additional
reason for reviewing RIPA s19 if my Recommendation 99 is followed: see 14.103(b)
below.
14.9.
As to Recommendation 11 (criminal offences), there may be an argument for
specific new criminal offences to be created (or higher penalties made available for
existing offences), as suggested in the JCDCDB Report (paras 227 and 229), the ISC
Privacy and Security Report (Recommendation T) and in the submission of Richard
Greenhill to the Review. But it would be contrary to principle to render any breach of
the Codes of Practice a criminal offence: this would enable the Secretary of State to
create new criminal offences without proper parliamentary scrutiny, and would risk
1
2
3
4
13.31-13.44 above.
Chapter 12 above.
The non-RIPA powers referred to in these recommendations are introduced at 6.9-6.33 and 7.62-7.65
above.
In this respect I make no comment on the interpretation of RIPA or its predecessor statute IOCA 1985,
but note that the Police Ombudsman referred to conflicting advice on the interpretation of IOCA and
endorse his call for clarity.
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