CHAPTER 14: EXPLANATIONS
the abuse of the warrantry system, so as to target people for political or otherwise
improper reasons.51 The professionalism of the WGD would make this difficult, at
least in a blatant fashion. But neither the British public nor the global public can be
counted on to take the probity of the Secretary of State on trust, a point pressed on
me not only in the many civil society submissions on this point (12.50-12.53 above)
but by a very senior police officer (9.91(a) above).
14.51. The third reason for recommending change relates to what the ISC has described as
“the single most important challenge that the Agencies face”, which is no less a
challenge for law enforcement: the difficulties in obtaining assistance from service
providers based in the US.52 US companies which are used to a domestic system
of judicial authorisation and not instinctively inclined to obey a UK warrant can find it
difficult to understand why they should honour a warrant signed by the Secretary of
State, as was impressed upon me in Silicon Valley (11.19 above) and as others have
also observed.
14.52. The fourth reason for recommending change is that there is an established and wellfunctioning system for judicial approval by Commissioners of comparably intrusive
measures, when applied for by the police: property interference, intrusive surveillance
and long-term undercover police operations (which are adjudicated upon by the
Commissioners even when they are sought on national security grounds).53 I have
spoken to four Surveillance Commissioners and been introduced to the tasks that they
have to perform. Their experience (from a lifetime’s court work) of police attitudes
and methods renders them well qualified to judge whether an application is truly
necessary and – if not – to send it back for reconsideration. The police also have the
highest professional respect for the Commissioners, which is reinforced when the
Commissioners go to speak to them about what they expect. Even if they had the
necessary time to consider the detail, few Home Secretaries would have the same
experience or expertise.
14.53. As to the legal position, the ECHR considers that “it is in principle desirable to entrust
supervisory control to a judge” but does not require judicial authorisation, at least
where individual warrants are concerned.54 It is possible however that a more
independent authorisation mechanism may be required in the future, whether in
relation to bulk warrants (where the need for robust safeguards is at its highest), or as
a consequence of the CJEU’s apparent insistence, in Digital Rights Ireland, on “prior
review carried out by a court or by an independent administrative authority” even in
respect of (less intrusive) access to retained communications data (5.68(f) and 5.79
above). Recommendation 22 would provide that independence.
14.54. Most intercepting authorities did not mind whether their warrants were issued by the
Secretary of State or by a judge, so long as a quick turnaround could be achieved and
urgency procedures were in place. The FCO was however insistent on ensuring that
the proper function of the executive in relation to foreign affairs and national security
51
52
53
54
It was abuse of interception and other powers by the FBI and CIA in the US, and by the RCMP in
Canada, which prompted the introduction of judicial authorisation in those jurisdictions after the reports
of the Church Committee and McDonald Commission in the 1970s and early 1980s.
ISC Rigby Report, November 2014, para 460.
8.12, 8.15 and 8.19(c) above.
5.40-5.43 above; Liberty IPT Case, judgment of 5 December 2014, para 116(vi).
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