CHAPTER 14: EXPLANATIONS
INTERCEPTION AND ACQUISITION OF DATA (Recommendations 20-71)
14.46. Recommendation 20 sets out the types of warrant and authorisation that I have
recommended should exist. These include the specific interception warrant, which
would replace the current individual and thematic warrants, and the new bulk
communications data warrant, which would enable bulk collection of communications
data to take place without (as currently) needing to collect content at the same time.
Recommendation 21 proposes that a similar scheme should be extended to the new
powers referred to in Recommendation 6.
14.47. Recommendation 22 is to the effect that warrants should be judicially authorised.
Following the submission to the Review of the Bingham Centre for the Rule of Law
(12.23 and 12.52 above), I have suggested that the appropriate persons to perform
this function would be senior serving or retired judges in their capacity as Judicial
Commissioners.
14.48. The recommendation that Secretary of State authorisation be replaced by judicial
authorisation is one of the more radical recommendations in this Report, since if
adopted it would replace a practice of several centuries’ standing.46 But there is a
precedent for it:47 and notwithstanding the carefully reasoned contrary view of the ISC
Privacy and Security Report,48 I found it one of the easiest to arrive at.
14.49. My starting point was not any legal consideration, but rather the remarkable fact (at
least to an outsider) that the Home Secretary routinely signs thousands of
warrants per year, most of them concerned with serious and organised crime and
the remainder with national security (principally terrorism). The Home Secretary leads
a huge department of state with responsibility for immigration and passports, drugs,
policing, crime policy and counter-terrorism. Yet she has herself described warrantry
as occupying more of her time than anything else (some of it on an urgent basis in the
middle of the night). In 2014, the Home Secretary personally authorised 2,345
interception and property warrants and renewals: 7.33 above. Warrantry is no doubt
approached by most Home Secretaries in a thoroughly conscientious manner,49 and
the Home Office WGD does an admirable job in supporting her. But it is open to
question whether this function is the best use of the Secretary of State’s valuable
time.50
14.50. The second reason for recommending change is to improve public confidence in
the system. I do not suggest that recent Secretaries of State have been complicit in
46
47
48
49
50
According to the report of the committee of Privy Councillors appointed to inquire into the interception
of communications (1957, Cmnd 283), para 9, a proclamation of 1663 forbade the opening of letters
save by warrant issued by the Secretary of State, but it appears to have formalised longstanding
practice. See 2.20(a) above for the position in 1643.
In the report of the Joint Committee on Human Rights referred to at 12.50 above.
ISC Privacy and Security Report, March 2015, paras 194-203; Recommendations FF and GG.
As observed in the IOCC Report, April 2014, 3.40. But some, inevitably, will be more conscientious
than others.
The Joint Committee on Human Rights made the same point in a report of 2007 (see 12.50 above),
stating that in a 15-month period in 2006-07 the then Home Secretary had issued 2,243 warrants and
modified 4,746 (though then as now, modifications were usually approved by a senior official within
the WGD.) The Joint Committee said, mildly, that “it must be difficult for the Home Secretary to give
much scrutiny to each request”, and recommended that “judicial authorisation replace ministerial
authorisation other than in cases of genuine urgency”: paras 161-162.
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