itself” and convince an independent person of the need for a
particular measure. It subordinates security concerns to the law, and
as such it serves to institutionalize respect for the law. If it works
properly, judicial authorisation will have a preventive effect,
deterring unmeritorious applications and/or cutting down the
duration of a special investigative measure.”117
193.
The Applicants submit that the absence of any requirement for prior
judicial authorisation means the s8(4) Regime is not in accordance with
the law. It is notable that under the Investigatory Powers Bill currently
before Parliament, some form of prior judicial review of warrants issued
by a Government minister will be introduced for all interception
warrants.118
3.
No requirement for subsequent notification of interception
measures
194.
In Szabó the Court observed that:
[T]he Court has held that the question of subsequent notification of
surveillance measures is inextricably linked to the effectiveness of
remedies and hence to the existence of effective safeguards against
the abuse of monitoring powers, since there is in principle little
scope for any recourse by the individual concerned unless the latter
is advised of the measures taken without his or her knowledge and
thus able to challenge their justification retrospectively. (§86).
195.
The Advocate General in Watson & Others explained why recourse is near
impossible without notification:
[F]rom a practical point of view, none of the three parties concerned
by a request for access is in a position to carry out an effective
review in connection with access to the retained data. Competent
law enforcement authorities have every interest in requesting the
broadest possible access. Service providers, who will be ignorant of
the content of any investigation file, are incapable of checking that
117Memorandum
on Surveillance, para 28 (referring to the Venice Commission’s Report on
Democratic Oversight (2007))
118 Investigatory Powers Bill, HL Bill 62, clauses 23, 132.
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