In Western democratic states governed by the rule of law, protection of individual rights is of fundamental importance. Law determines the legal status of individuals and creates a framework for the exercise of their rights. In a state governed by the rule of law, authorities must act within the limits of their defined tasks and respective powers. Concurrently, authorities should have sufficient powers at their disposal so that they can safeguard the fundamental security interests of society. The tension between the protection of individual rights and the sufficient powers of the authorities is crucial to legal resilience.
The tension between the protection of individual rights and the sufficient powers of the authorities is also reflected in intelligence legislation. Several relevant examples can be mentioned. The legal conditions for the use of information obtained through intelligence methods in criminal investigations has recently been raised in Finland. The assessment is related, on the one hand, to the protection of confidential communications guaranteed by Article 8 of the European Convention on Human Rights and, on the other hand, to the possibilities of the authorities to investigate and solve serious crimes. Another example is the targeting of intelligence methods to premises used for permanent residence and falling within the scope of domestic privacy. A third example concerns the legal conditions on the basis of which intelligence collection methods may be used without the knowledge of their targets.
The legal regulation of intelligence requires a continuous reconciliation of the legal status of individuals and the fundamental security interests of society. The consideration is holistic in nature. Changes in the security threats to society lead to consideration of the possibilities of maintaining a balance between the rights of individuals and the security interests of society. The review can be carried out on at least three parallel levels with mutual interfaces.
In a state governed by the rule of law, it is essential that the use of powers related to intelligence is legally and politically controlled. This requirement also applies to the development of the conditions for the use of powers. In states governed by the rule of law, the legal conditions for intelligence are typically discussed in connection with the preparation of legislation. It is obvious that national legislative solutions may differ from each other. An example of a very thorough process is the drafting of legislation on civil and military intelligence in Finland. The Finnish Parliament and its committees played a central role when the detailed content of the legislation was decided in 2019. The parliamentary review focused in many respects on the relationship between the rights of individuals and the relevant determination of the powers of the authorities. The legal assessment was based in many respects on the provisions of the European Convention on Human Rights and the case law of the European Court of Human Rights.
The application practices of intelligence legislation are also central to the balance between the protection of individual rights and the fundamental security interests of society. The framework for evaluation is legal. The application of the provisions typically requires discretion, in which case the decision-making practices have their own significance. The principle of conformity with the law in public governance requires that the legality of the public authorities’ activities be overseen. This assessment may be based on the authorities’ internal oversights of legality. Control may also be exercised by independent institutions, such as the intelligence ombudsman. Courts play a central role when granting an authorisation for intelligence collection methods. It is essential that courts have sufficient expertise in intelligence activities in addition to knowledge of the legislation.
It is justified to discuss questions related to intelligence in academic research. The balance between individual rights and society’s security interests is a relevant topic of legal research. Legal research can support the interpretation and application of individual provisions. In addition, legal research can systematise the relationships between different parts of the legal regulation of intelligence and maintain the coherence of law. However, questions related to intelligence can be elaborated in various research contexts. It is highly valuable that these questions have been discussed in different scientific disciplines (for example, social science and military sciences). Interdisciplinary projects have high potential in intelligence research, because parallel perspectives can help to create the conditions for structuring social phenomena and their regulatory possibilities.
The balance between individual rights and adequate powers of authorities is central to Western democratic states governed by the rule of law. This balance must be continuously maintained as society and its security threats change. This requires well-functioning intelligence legislation, effective application practices and dynamic intelligence research.
Antti Aine
Professor
University of Turku, Faculty of Law
University of Helsinki, Faculty of Law
Finland
