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Overlooked: Surveillance and personal privacy in modern Britain 125 cosmetic in that it is unlikely that there would be any parliamentary vote. However it would be an important step. It would ensure that parliamentarians had the opportunity for proper debate over the use of powers and would symbolise a shift of accountability away from the Executive. Accountability to Parliament could be coupled with more rigorous reporting by the various commissioners. The chapter on intrusive surveillance raised concerns over the lack of detail in the current reporting process. For example, the operational use of potentially extremely intrusive mass certified warranting permitted under Section 8 (4) RIPA allowing mass interception of communications, has never been mentioned in the annual reports of the Interception of Communications Commissioner. Parliament may well be more rigorous in its examination of intrusive surveillance practices than the Executive. Although not a recommendation specifically related to the improvement of privacy protection, it is also worth noting that the oversight structure could be simplified. The basis for having three separate Commissioners seems to be a result of amalgamation of previous oversight regimes to fit in with the structure of RIPA. It is excessively complex and we doubt there are many people, not directly involved with RIPA, who are aware of the structure. We cannot see any reason why separate Commissioners are needed to provide oversight of intercepted communications and targeted communications or why separate Commissioners are needed to oversee directed surveillance from different agencies. A simplified regime would be far preferable. The use of privacy impact assessments was referred to earlier. They are also worth mentioning in relation to the work of Parliament. At present there are certain impacts of public policy, such as race impact and regulatory impact, which are considered important enough to warrant assessments accompanying Bills when published. The Information Commissioner’s assessment of their importance strengthens the case for privacy impact assessments also being made available to parliamentarians and the public. Recommendation: Judicial Oversight of Interception of Communications The section on the operation of RIPA demonstrated a lack of independence in the authorisation process. There is no judicial oversight at all in RIPA. It would be impractical to suggest that there should be independent authorisation when applying for lower level communications data warrants. The hundreds of thousands applied for each year makes this unfeasible. However, high level RIPA powers which rely on Executive authorisation are a cause for concern. In particular it is unclear the extent to which mass certification allowing interception of communications might be operating in respect of internal communications within the UK. These concerns are now being expressed in Parliament by the Joint Committee on Human Rights which has recommended judicial authorisation of intercept warrants. RIPA requires that the relevant Minister give proper consideration of the need for and the proportionality of each request for an interception warrant. There is no reason to suggest, that any Minister sets out to act in an inappropriate manner. However, the responsibilities of the Executive are diverse and potentially conflicting. There is a wider obligation to the public’s safety, to detect and prevent crime and to ensure that state enforcement agencies are able to operate effectively. This range of obligation does not necessarily lend itself to objectivity when determining whether interception is warranted in an individual case.
126 Overlooked: Surveillance and personal privacy in modern Britain Even if a Home Secretary were to act in a manner of absolute propriety on every occasion he or she were asked to authorise a warrant, Executive authorisation can lead to allegations of ‘rubberstamping’. Without some arm’s length independence from the authorising body, there will always be suspicions that proper protocol and safeguards are not being observed. It would be in the interests of both the Executive and the agencies seeking authorisation if an independent judge were needed. It might not always be practical for national security determinations to be transparent. It is, however, possible for them to be seen as more accountable. While not as desirable as independent judicial authorisation of communication interception, there is a possible halfway house. The Office of Surveillance Commissioners must provide authorisation of any non-urgent use of targeted, directed or human covert surveillance coming within the office’s remit. We do not see why a similar need for authorisation should not be applied to intercept warrants requiring non-urgent authorisation by the Interception of Communications Commissioner. Similarly, the Intelligence Services Commissioner could be required to provide authorisation of non-urgent targeted, directed or human covert surveillance in his jurisdiction. The fact that there are a number of Surveillance Commissioners within the Office might provide a logistical, but not a principled, reason why there is currently no authorisation. The appointment of judges in the Offices of the other two Commissioners with authorisation powers would create a similar structure. If the simplification of Commissioner structure suggested above were adopted, a standardised authorisation process could be put in place. Any authorisation by a Commissioner would still not be ‘independent’ in the full judicial sense. However, it would still be preferable to the current system. Recommendation: Extend the role of the Investigatory Powers Tribunal Prior to Chief Superintendent Ali Dizaei establishing that his phone had been unlawfully tapped, the Investigatory Powers Tribunal had never upheld a complaint. It is difficult to see how any Tribunal where applicants have enjoyed a success rate hovering just above zero can inspire confidence. It is perhaps tempting to explain away this statistic by suggesting that many of those applying suffer from imaginary surveillance by the security services. Certainly the Tribunal is likely to experience a higher number of unfounded applications than most. However, this should not deflect from the fact that large numbers of authorisations of interception take place every year. The Tribunal is hampered by its inability to investigate unauthorised interceptions. It is impossible to say whether these take place or how many there might be. Unauthorised interception is a criminal offence and therefore considered a matter for the police. If a duty were placed upon the Tribunal to refer any suspicion of unauthorised interception to the police, it would provide a mechanism for appropriate investigation. A Tribunal concerned with surveillance can never operate as openly as other courts. However there are also concerns over the closed nature of the procedure. There is no oral hearing, only limited disclosure of evidence to the applicant and no reasoned decision. The Act specifically excludes access to the High Court to test the legality of decisions. These factors, together with the record of only having upheld one complaint, give rise to a question whether the present system can provide an effective remedy. Recommendation: Removal of the Bar on Intercept Removing the bar on intercepted material in criminal trials is a progressive step that Liberty has been recommending for several years. However, this has usually been in the context of anti-terrorism
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Overlooked - Liberty

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