CHAPTER 14: EXPLANATIONS
(d)
the ability to issue guidance as referred to in 14.86 above, and to participate in
the preparation of Codes of Practice (Recommendation 84(f)).
14.96. A more general supervisory power over the activities of the security and intelligence
agencies (Recommendation 97), and an enhanced reporting function
(Recommendation 102) could also be considered for ISIC. Whether and when to do
this would depend on the precise relationship between ISIC and the ISC, which is for
others to decide (Recommendation 120) but which should in any event not involve an
overlap of functions (Recommendations 97, 119).
14.97. ISIC would build on the considerable strengths of its predecessor Commissioners,
which are founded on their strong judicial ethos, the trust that public authorities have
in them and (in the case of IOCCO and the OSC) their professional and technically
proficient inspectorates.68 But its greater size and unified nature would give it a
number of advantages over its predecessor Commissioners, notably:
(a)
the ability to compare practice across the whole range of different public
authorities;69
(b)
the ability to inspect the whole range of surveillance techniques, thus aiding
an appreciation of whether it was necessary and proportionate to use one
technique rather than another;
(c)
the gravitational force to attract excellent specialists (including technical
specialists) whose opportunities are more limited in a smaller organisation; and
(d)
the name recognition and public profile which has largely eluded its
predecessor Commissioners, with the result that their work (and indeed their
existence) have not been as widely known as they could have been (and should
have been, granted the interest in surveillance matters following the publication
of the Snowden Documents).
14.98. I have considered whether it would be difficult to combine the judicial authorisation
function and the inspectorate in a single organisation, and concluded that it would not.
A precedent already exists, in the form of the OSC whose six judicial Commissioners,
three Assistant Commissioners and eight Inspectors all report, along with the
secretariat, to the Chief Surveillance Commissioner (who from 1 July 2015 will be the
former Lord Chief Justice, Lord Judge).70 Whilst the judicial function is obviously a
distinct one, there is considerable benefit in dialogue: the Judicial Commissioners
could advise the inspectorate on matters to look out for on their inspections, and the
inspectors could in turn suggest that a warrant be referred back to the Judicial
Commissioners if they formed the impression that it was not being implemented as it
should be, and that the Judicial Commissioners might wish to consider modifying or
cancelling it.
68
69
70
The ISCommr has no inspectorate, and indeed had until recently the assistance of only one other
person.
IOCCO already has that within its field of operation: the functions of the IntellSC and OSC are however
divided between the intelligence agencies and the rest.
Figures taken from the organigram in the OSC Annual Report for 2013-14, September 2014, p 32.
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