Report of the Interception of Communications Commissioner - July 2016
number of the elements on our original “wish-list” are not explicitly provided for. This
is a missed opportunity to enhance safeguards and strengthen further the oversight
provisions. Our concerns are as follows:
5.13 We are disappointed that the Government has still not created or made
any reference to an oversight Commission in the IP Bill, despite repeatedly giving a
commitment to creating “world leading oversight”. The oversight provisions in the IP Bill
need to prescribe properly the legal mandate of the “Commission” in order to set the
standard for a modern, independent oversight body.
5.14 At present clause 203 of the IP Bill only creates a Chief Judicial Commissioner and
a small number of Judicial Commissioners. The commissioners will only be responsible for
approving approximately 2% of the applications falling within the remit of the oversight
body. The remaining 98% will only be subject to post-facto oversight. The post-facto
oversight will be carried out predominantly by specialist inspectors, investigators, analysts
and technical staff within the Commission and it is important for those individuals to have
a delegated power to require information or access to technical systems. The creation of
a Commission is crucial to achieve a modern, inquisitive oversight body that has the
expertise to carry out investigations and inquiries to the breadth and depth required and
the intellectual curiosity to probe and challenge the conduct of the public authorities.
Putting the oversight Commission on a statutory footing will be a huge step towards
guaranteeing independence, capability and diversity within the organisation which will
inspire public trust and confidence.
5.15 Creating an oversight Commission would also help make a distinction between
the approval and post-facto audit elements of the oversight body, addressing a concern
raised by a number of witnesses to the Joint Committee that the Judicial Commissioners
should not be perceived to be “marking their own homework”.
5.16 We urge the Government to implement this recommendation which was also
made by the RUSI Independent Surveillance Review, David Anderson QC and the IP Bill
Joint Committee.
5.17 The secretary of state remains responsible for providing the Commissioner
with the funding, staff and facilities that the secretary of state considers necessary for
the carrying out of the Commissioners’ functions (clause 213(2) of the IP Bill), despite
the Joint Committee suggesting rightly that it was inappropriate for the secretary of
state alone to determine the budget of the body which is responsible for reviewing the
secretary of state’s performance.
5.18 Clause 207 makes provision for the Investigatory Powers Commissioner to inform
individuals of any serious errors, but an error cannot be deemed to be serious unless
it has caused significant prejudice or harm to the person concerned. We still have a
number of concerns with this clause. First, the description of a “serious error” appears
to be dependent on the consequence of the conduct, rather than on an assessment of
the seriousness of the conduct itself. Later in this report we provide guidance in relation
to the types of errors we currently consider to be “serious” which is not purely based
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