The Police Bill is currently before Parliament. Part III proposes to empower chief officers of police and customs to authorise entry to or interfere with property or wireless telegraphy for the purpose of preventing or detecting “serious crime”.
We were asked by civil liberties watchdog Liberty to advise it on the legal and constitutional implications of the proposals in the Bill, and in particular whether they are compatible with the European Convention on Human Rights, assuming the proposals will be enacted without amendment.
The proposed measures should be of particular concern to lawyers since, in a letter from Baroness Blatch, the Government spokesperson in the House of Lords, to Lord Browne-Wilkinson, the Government has acknowledged that the powers of intrusive surveillance conferred by the Bill extend to lawyers' premises.
The Government has refused to amend the Bill by introducing a statutory exception for lawyers' offices because, in Baroness Blatch's words, “this would create loopholes which criminals would be sure to exploit by setting up their own front companies”.
She adds: “There may be occasions when a corrupt lawyer is involved in money laundering and the police might wish to carry out surveillance on his office premises”.
Before this Bill, no structured legal framework existed governing the exercise of powers of intrusive surveillance by the police and other agencies. A statutory framework governing such powers – which are plainly needed and justified in combating serious crime – is certainly welcome.
But the Bill derogates from established common law constitutional traditions and is likely to give rise to infringements of the Convention on Human Rights in a number of ways.
By giving the investigating authorities themselves direct power to order measures which infringe privacy and property, instead of subjecting the exercise of these intrusive powers to prior judicial authorisation, the Bill effectively reverses many centuries of common law custom on the respective roles of the judiciary and the executive regarding authorisation of intrusion into property and privacy.
Since the great constitutional case of Entick v Carrington in 1765, it has been a feature of the unwritten British constitution that the executive has no power to authorise entry to or interference with private property. Removing this function from judges seriously undermines this country's constitutional tradition.
It is also likely to involve a breach of the UK's international obligations under the Convention. Intrusion into property and/or bugging involves interference with Article 8(1) of the Convention, which requires respect for private and family life, the home and correspondence. One or more of these rights will be interfered with by the proposed self-authorisations, which will violate the Convention unless justified under Article 8(2).
Preventing and detecting crime is an important public interest and provides a legitimate reason for interferences with privacy under Article 8(2). That provision, however, additionally requires that interferences must be sufficiently defined in domestic law and that they must be necessary in a democratic society.
The exercise of the proposed powers in the Bill appears not to observe these requirements. The European Court of Human Rights has repeatedly warned against the executive having too wide discretionary powers to interfere with privacy.
In the context of measures against terrorism and serious crime, the Court of Human Rights has stressed the need for adequate and effective safeguards against abuse and has maintained that these safeguards should normally be judicial in character.
Concern about lack of prior judicial authorisation is increased by the very wide definition of “serious crime” in the Bill and by the lack of constraint on the action which may be specified against property or wireless telegraphy.
In the parliamentary debates, Lord Browne-Wilkinson expressed concern that the powers conferred by the Bill go much wider than necessary to meet the legislative objective. The absence of judicial control over the system of authorisation, and the inadequacy of the statutory Commissioner procedure provided in its place, also raise serious concerns under Article 13 of the Convention which guarantees an effective remedy before a national authority.
The Bill, if enacted without substantial modifications, therefore looks certain to face challenge under the Convention and risks eventual condemnation by the European Court of Human Rights.