CHAPTER 14: EXPLANATIONS
was retained (10.44 above). There was some resistance on the part of intercepting
authorities to the idea of double authorisation, which was perceived as unnecessarily
time-consuming.
14.55. The arguments classically advanced in favour of authorisation by Secretary of State
are that the Secretary of State has democratic accountability, that she is
immediately available,55 that the business of warrantry keeps the Secretary of State
well informed as to the threat, and (as the ISC argued at para 202 of its Privacy and
Security Report) that the Secretary of State has the ability to take into account the
wider context of the warrant application.
14.56. On those points:
(a)
The Secretary State is in practice rarely if ever held politically accountable for
the issue of warrants: contributing factors are RIPA s19, NCND and the fact
that intercepted material is not admissible in court. The accountability that
matters is in the IPT, and is the same regardless of who issued the warrant.
(b)
There is no reason why a rota of Judicial Commissioners should not be as
available – indeed more so – than a Secretary of State.56
(c)
Civil servants are able to brief Ministers on the threat by means other than
asking them to sign warrants.
(d)
There are certainly cases, largely involving defence or foreign policy, in which
the wider political context is crucial and the perspective of the Secretary of State
a necessary one. That point is addressed in Recommendations 30 and 46,
addressed at 14.64-14.65 below.
14.57. The ISC suggested that judges might approve more warrant applications than
Ministers (Privacy and Security Report, para 203); but the Foreign Office made to me
the opposite point: that judicial authorisation might “disadvantage the UK” because
judges would be liable to refuse applications that Ministers accept. Were it the case
that Ministers might be tempted to issue warrants in circumstances where it is illegal
to do so, that would seem to me a strong argument in favour of judicial authorisation
rather than against it.
Extraterritorial effect
14.58. The difficulties in securing cooperation from service providers overseas, particularly
in the US, are described at 11.15-11.28 above and, in more detail, in the ISC’s Rigby
Report at paras 415-460. Recommendation 24 summarises my impressions of how
a longer-term solution might look, after speaking to US service providers and to the
US Government in December, but the decisive voice here will be that of Sir Nigel
Sheinwald, the former British Ambassador to both the EU and the US, who was
55
56
As the Home Secretary said to the ISC: Privacy and Security Report, para 201.
The NCA complained of some difficulties in obtaining dates for signings by the Home Secretary:
9.91(b) above.
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