Should judges rather than ministers sign interception warrants?
David Anderson’s review of investigatory powers legislation is a weighty and impressive piece of work.
The QC’s 373-page report, published last Thursday, covers the activities of 600 public bodies that have powers to obtain information under 65 different statutory mechanisms. And he provides some telling insights into the work of the security and intelligence agencies. ‘They attempt to overcome encryption and its impact on traditional methods of interception by attacking it with powerful computers, by hacking individuals’ electronic devices, by modifying software and by guile, innovation and creativity,’
Anderson tells us. MI5, MI6 and GCHQ ‘seek to influence their targets’ behaviour by making themselves seem omnipotent or – at other times – weak’.
For lawyers, though, two issues stand out. First, is it possible to compress these 65 statutory powers into a single act of parliament that is both comprehensive and comprehensible? It is easy enough to draft legislation as obscure as section 94 of the Telecommunications Act 1984, which allows the secretary of state to give a communications company ‘such directions… as appear… necessary in the interests of national security’. It is much harder to specify what sort of interception is to be allowed without tipping off a potential target.
Second, who should sign the warrants that authorise the interception of communications? Should it continue to be a politician? Or should it be a judge?
Although a warrant is needed before the police or agencies can read the contents of a message, lower levels of authorisation are sufficient for access to what’s called communications data — information relating to a message. That made more sense when the contents of a letter were more revealing than anything on the envelope. But, as Anderson confirms, what the Americans call metadata can prove hugely valuable – and he is right to say that higher levels of authorisation should be required for novel or contentious requests and those involving journalists or lawyers.
Warrants are currently signed personally by a secretary of state – usually, the home secretary – under section 5 of the Regulation of Investigatory Powers Act 2000 or section 49 of the Wireless Telegraphy Act 2006. They may be targeted at a person or premises. They may also be thematic – because ‘person’ includes ‘organisation’. And they may gather large amounts of information entering or leaving Britain in bulk – because ‘external’ communications can be intercepted without the need to specify individual targets.
Last year, Theresa May personally authorised 2,345 interception and property warrants, sometimes in the middle of the night. Anderson doubts whether this is the best use of her time, which is a polite way of questioning whether she relies too heavily on the advice of officials.
But that is not the main reason Anderson thinks we should overhaul a system that dates back to the 17th century, if not earlier. He believes that a comprehensive system of judicial authorisation and oversight would improve public confidence.
‘Neither the British public nor the global public can be counted on to take the probity of the secretary of state on trust,’ says Anderson, citing the views not only of privacy campaigners but also of ‘a very senior police officer’, who feared ‘any future suggestion that a warrant might have been issued for political reasons’. Another reason for reform is that US service providers are more likely to respect a warrant issued by a judicial authority than one signed by a minister.
The unified structure Anderson recommends is based on the arrangements for scrutinising intrusive surveillance, which covers bugging people’s homes and cars. A team of surveillance commissioners – mostly former judges – work alongside a team of inspectors, drawn mainly from the police. All are answerable to a chief commissioner, currently Sir Christopher Rose.
Lord Judge, the former lord chief justice, succeeds Rose next month and would be the obvious person to head Anderson’s proposed surveillance and intelligence commission if his recommendations find their way into the government’s forthcoming Investigatory Powers Bill. It is not quite judicial oversight because the judges who would run it are likely to have retired. But their personal authority remains undiminished.
The security services, while aware that there is no going back two years to the days before some of their capabilities were revealed by the US National Security Agency contractor Edward Snowden, are still wary about the new world of oversight and transparency that Anderson is calling for. They value the close relationship with ministers that results from the current warrant system.
And they are concerned that bringing authorisation and inspection into a single body will allow the new commission to ‘mark its own homework’, a charge that Anderson says is simply not borne out by experience of how the surveillance commissioners operate.
But it is a model that the agencies can live with. If replacing ministers with judges will restore public confidence in their work, it is a price that is well worth paying.