CHAPTER 12: CIVIL SOCIETY
(c)
It places a heavy burden on a small number of politicians. Of particular concern
is the time and level of scrutiny that can be granted to each warrant in those
circumstances.
(d)
There is limited explicit provision for when the relevant Secretary of State is
unavailable.
(e)
In relation to the argument that the Secretary of State brings democratic
legitimacy to the process, it is contended that democratic legitimacy is limited,
both in practice and in principle: there are limits to the efficacy of democratic
accountability in any event, and certainly in an area in which public mood can
be greatly swayed by particular incidents and in which minorities may be likely
to be targeted.
12.48. Related issues arise as far as communications data is concerned, and in particular
those raised as points a) and b) above. The lack of institutional independence is clear:
for the acquisition of such data, pursuant to RIPA s22,56 each body able to request
such data has a DP who can request service providers to provide it. There is judicial
approval only of authorisations granted or notices issued by local authorities (s23A).
In these circumstances, while the Codes of Practice set out the responsibilities of
those involved, without external input there is a concern that the robustness of the
mechanisms is dependent at least in part on the personalities or corporate culture of
those involved. Moreover, within certain public authorities trust may have been
eroded by their use of powers without safeguards (such as alleged police use of RIPA
Part I Chapter 2 to determine journalistic sources).
12.49. In light of the above, some have advocated for a centralised expert decision-making
body responsible for the authorisation of surveillance. This could, it is suggested,
entail different levels of decision-maker so that individual decisions regarding lowlevel intrusion could be dealt with separately to broader and more intrusive powers.
12.50. However, by far the most common suggestion emphasised in this regard was the
increased use of judicial authorisation for authorising surveillance (both before
interception and prior to obtaining or disclosing communications data).57 Submissions
highlighted that this has been an approach preferred by a number of oversight bodies,
including the House of Lord Constitution Committee,58 and the Joint Committee on
Human Rights.59 It was said to be preferable for a number of reasons:
(a)
56
57
58
59
It would be more likely to satisfy the standards of human rights law set out in
particular in Digital Rights Ireland (of prior review by a court, at para 62) and
also the judgments of the ECHR, detailed in Chapter 5.
And often other regimes, set out in Chapter 6.
Such submissions were received, for example, from Big Brother Watch, Professor Peter Sommer, Open
Rights Group, the Equality and Human Rights Commission, Liberty and the Bingham Centre for the Rule
of Law. An unusual example of a submission where this was not advocated is the thoughtful submission
I received from students at UCL.
Surveillance: Citizens and the State, (2009), HL Paper 18-1, para 163.
Counter-Terrorism and Human Rights: 28 Days, Intercept and post Charge Questioning, HL 157/HC
394 (July 2007), para 161.
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