Overlooked - Liberty

24 Overlooked: Surveillance and personal privacy in modern Britain
it as “perplexing”, noting that “the trial judge and the Court of Appeal found it difficult to construe the
provisions of the Act with confidence, and the House has experienced the same difficulty” 42 . At the
same time, the then Home Secretary, David Blunkett, referred to “this horribly complicated legislation”
in a speech in 2004 when also emphasising the red tape that it has generated – which is not
surprising as it has given birth to an unprecedented number of statutory instruments (over 30),
ranging from the designation of public authorities for the purposes of intrusive surveillance, for
example, to the conditions for the lawful interception of persons outside the UK 43 .
In more specific terms, there is the possibility that two key principles of Article 8 will be overlooked
in individual operations. First, the necessity for each use of a RIPA surveillance power to be clearly
and unambiguously established and its scope strictly confined to the requirements of the
investigatory aim it pursues. Second, that the decision-making process contains adequate
safeguards to protect the citizen against excessive intrusion or other abuses of rights. These
concerns are exacerbated by the use of broad and vague notions such as “national security” and
“economic well-being” in order to justify the surveillance activities. This gives rise to a real risk that
disproportionate surveillance will be authorised to take place, going beyond what is necessary to
protect the public from harm, and that it will interfere unacceptably with political and other lawful
activity that ought to go unimpeded in a democratic society. It is of particular importance that the
investigatory system be seen to avoid any suspicion that intelligence operations are mounted
against organisations and associations on the ground that their political views differ from, or their
activities may embarrass, the government of the day.
Interception of Communications
It was not until 1985 that the government introduced legislation regulating the interception of
communications (The Interception of Communications Act 1985 or IOCA). This followed the
judgment of the European Court of Human Rights (ECtHR) in Malone v UK in 1984. Since then, there
have been huge changes in telecommunications technology and communications services, giving
rise to new human rights concerns. RIPA has now replaced all previous legislation as the primary
legislation regulating interceptions.
Part 1 of RIPA defines the offences of unlawful interception, sets out the circumstances under which
they are lawful, establishes a system of authorisation and issue of warrants, and imposes restrictions
on the use of intercepted materials. The law extends to public telecommunications systems and to
private ones such as mobiles, pagers and e-mail over the computer networks.
The right to apply for a warrant is limited to a number of high-level officials of the security services
and chief constables of police. It has to be shown that the warrant is necessary in that it is in the
interests of national security or for preventing or detecting serious crime, safeguarding the economic
well-being of the UK, or giving effect to the provisions of any international mutual-assistance
agreement. The conduct authorised must be proportionate to that which it seeks to achieve and the
information cannot reasonably be obtained by other means.
42
Attorney General’s Reference (No.5 of 2002) [2004] UKHL 40 para.9.
43
Speech at the Police Superintendents’ Association’s Annual Conference September 2004 as reported on
www.spy.org.uk. The Recommendations of the Bureaucracy Taskforce (PBISG), 10 November 2005
states: “RIPA Review completed and submitted to the Home Office. The review considered various aspects
of RIPA, including unnecessary bureaucracy arising from inappropriate application of the legislation.”