Overlooked - Liberty

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