CHAPTER 5: LEGAL CONSTRAINTS
Article 8 (like Article 10) is a qualified right: interferences that “engage” Article 8 may
be permitted, but only if they are in accordance with the law, pursue a legitimate aim
and are necessary in a democratic society: what the ISC dubbed a “triple test”.20
5.17.
The ECtHR has traditionally been readier than the English courts to find that Article 8
is engaged, or engaged in more than a minor respect.21 In the context of investigatory
powers, it is engaged not only when material is read, analysed and later shared with
other authorities,22 but also when it is collected, stored and filtered, even without
human intervention.23
5.18.
Any interference must satisfy, by Article 8(2), what has been interpreted as a “triple
test”:24 it must be in accordance with the law, necessary in pursuit of a legitimate
aim, and proportionate. The legal boundary between necessity and proportionality
is not so clear as that summary suggests: both might be said to be embraced in the
single phrase “necessary in a democratic society”.25 However, so long as all three
elements are satisfied, the precise way in which they are distinguished is of secondary
importance. The distinction between “necessity” and “proportionality”, in the sense
summarised above, is firmly embedded not only in RIPA (see, e.g. section 5(2)) but
in the practices and training materials of all public authorities who apply it, and
although it might be questioned as a matter of legal theory, I do not seek to disturb it
in this Report.
5.19.
The first element of that test is that the interference must be “in accordance with the
law”. In other words:
5.20.
20
21
22
23
24
25
26
27
(a)
the interference must have some basis in domestic law;26
(b)
the law must be sufficiently accessible: the rules must be reasonably easy to
obtain and understand;27 and
(c)
the manner in which the law will operate or be applied must be sufficiently
foreseeable.
These requirements have not always proved easy to reconcile with the secret nature
of electronic surveillance. A balance must be found between retaining the secrecy of
operational tools and methods on the one hand, and, on the other, having a law that
is “sufficiently clear in its terms to give citizens an adequate indication as to the
ISC Privacy and Security Report, para 23.
As Lord Sumption recently noted in the Supreme Court: Catt v Association of Chief Police Officers of
England Wales and Northern Ireland and others, [2015] UKSC 9, para 26.
Weber and Saravia v Germany, (Application no. 54930/00, judgment of 26 June 2006), para 79.
The Supreme Court recently described it as clear that “the state’s systematic collection and storage in
retrievable form even of public information about an individual is an interference with private life”: Catt
v MPC, per Lord Sumption, para 6.
ISC Privacy and Security Report, paras 23-27.
See, e.g., Leander v Sweden (Application no. 9248/81, judgment of 26 March 1987) at para 58: “the
notion of necessity implies that the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued.”
Silver and others v United Kingdom (Application no. 5947/72, judgment of 25 March 1983), para 86.
Sunday Times v United Kingdom (Application no. 6538/74, judgment of 26 April 1979), para 49; Silver
v United Kingdom, para 87.
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