CHAPTER 14: EXPLANATIONS
14.99. ISIC should be willing and able to draw on specialist legal counsel, including in
relation to specific applications for warrants (Recommendation 110). and on
expertise from the worlds of intelligence, computer science, technology, academia,
law and the NGO sector (Recommendation 111). An international perspective is
important. Though I did not in the end pursue the idea of an ISIC Ethics Committee
to advise Judicial Commissioners on hard warrantry decisions,71 still less the “citizens’
jury” imaginatively proposed by Demos, it is vital that ISIC (including its Judicial
Commissioners) should be exposed to a variety of informed opinion, including from
intelligence professionals, technical experts, privacy advocates and the generation
which has grown up online.
14.100. The ideal Chief Commissioner would be a former judge of the highest distinction
who is willing to work the hours necessary to run a substantial organisation and open
to public and media engagement, including (if e.g. an alleged scandal is brought to
light) at short notice.72 An illustrative model for how ISIC could thus be organised is
at Annex 17 to this Report. Because the pool is small and there might be occasions
on which no such candidate could be found, I have provided for the possibility of
appointing as Chief Commissioner someone who is not a judge (Recommendation
104). In that event, a senior judge would act on a part-time basis as Chief Judicial
Commissioner, not of course in a subordinate role in the ISIC hierarchy but leading
the Judicial Commissioners on a self-standing basis as depicted in Annex 18 to this
Report, whilst retaining the closest possible links with the Commission itself.
Investigatory Powers Tribunal
14.101. A brief history of the IPT is at 6.105-6.111 above, and some criticisms of it are
summarised at 12.88-12.89.
14.102. As the IPT operates increasingly in the open (at least where legal issues are
concerned) and produces more open judgments, it is likely increasingly to be
perceived as a valuable and effective check on the exercise of intrusive powers.73 Its
merits include:
71
72
73
(a)
the ability to hear cases without complainants needing to present even an
arguable case that they are the subject of interference;
(b)
the ability (not given to the Commissioners or ISC) to hear forceful adversarial
argument and thus to clarify the issues;
(c)
the ability to hold a public hearing on the assumption that facts asserted by the
complainant are correct (thus circumventing at least some of the difficulties
caused by NCND); and
(d)
the RIPA s68(6) duty on public authorities to disclose information to IPT.
Though I am grateful for the useful research into Ethics Committees conducted for me by Grant Castle
and Covington & Burling.
He or she could also be a serving judge, on the analogy of the chairmanship of the Law Commission,
though there would be advantages in a Chair who was prepared to stay for longer than three years.
There has been an equivalent improvement in the public image of the US FISA Court, following the
publication (if only in redacted form) of some of its Opinions.
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