Surveillance by intelligence services – Volume II: field perspectives and legal update
to the review of a signed warrant before it is put into
effect. Ex ante authorisation or approval by independent
overseers is not yet common in EU Member States, but
can be seen as a promising practice both to ensure that
surveillance operations are fully justified as necessary
and not ordered arbitrarily, and to enable meaningful
ex post review of the warranted operations. Ex ante
oversight may either take the form of the independent
body actually authorising the warrant or of conducting
an approval process involving independent review of
a signed warrant before it enters into force.
“The ideal situation would be to never have to say ‘no’. This
is what I would like to aim for in the future; an understanding
of the intrinsic and legal limits [by the services].” (Judiciary)
Supervision by the judiciary or experts
“[T]he value of judicial control depends upon the expertise the judges in question have in assessing risks to
national security and in balancing these risks against infringements in human rights.”
Council of Europe, European Commission for Democracy through Law
(Venice Commission) (2007), Report on the democratic oversight of security
services, para. 206
In Belgium, the State Security, before using exceptional
methods of surveillance, must submit a duly motivated,
written request to the Administrative Commission.367
The Administrative Commission gives its opinion on such
requests within four days. If the decision is negative, the
proposed measures may not be implemented.368 In case
of a positive decision, the Administrative Commission
notifies the Standing Committee I, which can overrule
the commission’s decision.369
In the United Kingdom, the double-lock system was
introduced in 2016. It will require, once in force, that
warrants or notices for both targeted surveillance
and using bulk powers be authorised by the Secretary
of State370 and subsequently approved by the Judicial
Commissioner.371 The Judicial Commissioner is required
367 Belgium, Organic Law of 30 November 1998 on intelligence
and security services (Loi organique du 30 Novembre 1998
des services de renseignement et de sécurité),
30 November 1998, as amended, Art. 18 (10).
368 Ibid. Art. 18 (10)(3).
369 Ibid. Art. 18 (10)(7).
370 United Kingdom, Investigatory Powers Act, s. 19 for
interception and examination, s. 87 for retention of
communications data, s. 102 for equipment interference.
S. 19 and 102 were not into force at the time of writing
and will be brought into force in due course by means of
regulations made by the Secretary of State (See United
Kingdom, Investigatory Powers Act 2016, Explanatory Note).
371 Ibid. s. 23 for interception and examination; and s. 87 (1) (b)
for retention notices, s. 102 (1) (d). ss. 23 and 102 were not
into force at the time of writing and will be brought into
force in due course by means of regulations made by the
Secretary of State (See United Kingdom, Investigatory
Powers Act 2016, Explanatory Note).
94
to review whether the warrant or notice is necessary
on relevant grounds and whether the measures applied
for are proportionate to their aim. The warrant or notice
can take effect only after the Judicial Commissioner has
approved it.372 Warrants are valid for six months,373 and
retention notices can require the retention of data for
12 months.374 In the case of bulk interception warrants,
for example, the requested measure should relate to
the interception of overseas-related communication
(either content or metadata). This means that for the
communication to be intercepted, it must be sent or
received by someone outside British territory.375 In
authorising the measures, the Secretary of State must
ascertain that they are necessary to prevent serious
crime, and/or ensure the economic well-being or national
security of the state.376 The Judicial Commissioner then
reviews whether the measures are necessary and
proportionate and can quash a warrant if not satisfied.377
However, with regards to the effectiveness of ex
ante reviews of bulk measures, it is noteworthy that
the core requirement in the UK system regarding the
contents of the warrant is that it must specify the
operational purpose(s) of the requested measures
“in a greater level of detail” than described above.378
Thus, in turn, the actual strength of the ex ante review
relating to the necessity and proportionality of the
requested measures will, to a great extent, depend
on the level of detail regarding the purposes. This is
relatively straightforward for simple targeted warrants
where the specified individuals or premises are known
and can be specified. For warrants for surveillance
involving bulk measures not only must the objective
relate to a sufficiently high intelligence priority but the
review will have to take into account what has been
372 Ibid. s. 23 (1) for interception and examination, s. 89 (1) for
retention, s. 108 (1) for equipment interference. Ss. 23, 89
and 108 were not into force at the time of writing and will
be brought into force in due course by means of regulations
made by the Secretary of State (See United Kingdom,
Investigatory Powers Act 2016, Explanatory Note).
373 Ibid. s. 32 (2) (b) for interception and examination,
s. 116 (2) (b) for equipment interference. Ss. 32 and 116 were
not into force at the time of writing and will be brought
into force in due course by means of regulations made by
the Secretary of State (See United Kingdom, Investigatory
Powers Act 2016, Explanatory Note).
374 Ibid. s. 87 (3).
375 Ibid. s. 136 (2)-(3). Not yet into force and will be brought
into force in due course by means of regulations made by
the Secretary of State (See United Kingdom, Investigatory
Powers Act 2016, Explanatory Note).
376 Ibid. s. 138 (2). Not yet into force and will be brought into
force in due course by means of regulations made by the
Secretary of State (See United Kingdom, Investigatory
Powers Act 2016, Explanatory Note).
377 Ibid. s. 140. Not yet into force and will be brought into
force in due course by means of regulations made by the
Secretary of State (See United Kingdom, Investigatory
Powers Act 2016, Explanatory Note).
378 Ibid. s. 142. Not yet into force and will be brought into
force in due course by means of regulations made by the
Secretary of State (See United Kingdom, Investigatory
Powers Act 2016, Explanatory Note).