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A Democratic Licence to Operate
it is a complex framework that does not necessarily serve the public well as it is not
always clear to individuals who they should raise their concerns with’.28
4.43
In a similar fashion to the legislative framework, the oversight framework has developed
in a largely ad hoc manner. There must be clarity of oversight to secure and maintain
enduring public confidence in the security, intelligence and law-enforcement agencies
alike. In addition to the number and effectiveness of oversight mechanisms in place, any
debate on the matter should therefore focus on the extent to which they are visible and
credible in the eyes of the public.
Legal Oversight
4.44
Whereas in the past there was just one lawyer shared between the intelligence agencies,
today there are substantial legal departments within each agency and employees can
easily seek legal advice or clarification when required. Legal advice is available at every
stage of the warrant and authorisation process for all public bodies authorised to conduct
intrusive activity under RIPA.
4.45
Unlike much of the intelligence gained by the SIAs under Part I of RIPA 2000, evidence
secured by law-enforcement agencies other than by interception is admissible in court.
This subjects the intelligence to due legal process as admissible evidence and therefore
the law-enforcement agency must ensure the evidence has been accessed lawfully –
and meets the conditions of necessity and proportionality – for the Crown Prosecution
Service to be able to bring a case and, subsequently, secure a conviction. If the evidence
does not hold up to scrutiny there is a risk of the case collapsing or not making it to
trial in the first place. The law of evidence – the procedures that govern proof of fact in
legal proceedings – can act as a powerful constraint on law-enforcement agency actions,
thereby acting as a check on law-enforcement surveillance.
4.46
Some civil-liberties groups have suggested that the current UK system of oversight has
no judicial input.29 However, there are a number of legal oversight mechanisms currently
in place. As noted above, evidence in criminal cases must be admissible in court where
it will have to have been first examined by the Crown Prosecution Service before a case
is raised. More generally and as discussed below, a number of senior judges hold and
have held positions as commissioners, who form a key role in legal oversight.30 There
is also a dedicated tribunal – the IPT – which investigates and determines complaints
of unlawful use of covert techniques by public authorities and claims of intelligence or
28. Ibid.
29. Big Brother Watch submission to the ISR; ‘Apart from the authorisation of RIPA warrants at
a local government level, there is no input from judges’, p. 9.
30. In this regard, it is worth emphasising that the Rt Honourable Igor Judge was appointed as
Chief Surveillance Commissioner from July 2015. Lord Judge is a former Lord Chief Justice
for England and Wales, a ‘critical constitutional role’ as head of the judiciary. See Prime
Minister’s Office, ‘Chief Surveillance Commissioner Appointment’, press release, 20 March
2015.