Report of the Independent Surveillance Review
91
and none of them had previously raised questions over the legality of legislation or the
suitability of existing safeguards.
4.81
The Home Affairs Committee has encouraged the commissioners to actively consider
issues of privacy, and has recommended more regular post-legislative scrutiny. Although
the commissioners are of unquestionable ability and integrity, they are judges, not
investigators. They are used to weighing up two sides of an argument and providing
a ruling, but are generally less experienced in identifying problems of process or the
application of new technology.
4.82
Evidence to the ISR Panel suggested that the commissioners need to be ‘inquisitive
troublemakers’, with a level of investigatory expertise that is prized by the agencies
themselves. There is a need for individuals with good analytical skills who can pick holes
and identify weaknesses, as well as question and challenge people and practices within
the relevant organisations. Given the depth of investigations, a common observation
made to the ISR Panel was that the commissioners require greater assistance from teams
of people with appropriate skills and expertise, perhaps in the form of legal and technical
‘juniors’. (The same could be said of the IPT, which does not have permanent resources
on technical matterson which it can draw.)
4.83
A final criticism highlighted to the ISR Panel relates to sanctions. Some of the
commissioners have powers to impose civil monetary penalties (including the ICO and
IOCCO). On the whole, however, the commissioners have relatively limited powers of
sanction other than public opprobrium through their annual reports. However, in his 2015
report, IOCCO noted that ‘there is always going to be certain information that I cannot
reveal publicly’ as his office is ‘constrained by the statutory provisions in section 19 of
RIPA 2000 forbidding disclosure, as are the interception agencies and Communication
Service Providers’.52
The Investigatory Powers Tribunal
4.84
A Tribunal ‘for the purposes of investigating complains about the [Security] Service’
was originally legislated for under the SSA 1989. However, until RIPA 2000 was created
eleven years later, the three original Tribunals (Interception of Communications, Security
Service and Intelligence Services) had a very low profile and limited abilities. RIPA 2000
replaced the three Tribunals and the complaints provision of the Police Act 1997, Part III
with the new IPT.53
52. May, Report of the Interception of Communications Commissioner: March 2015, p. 1.
53. Investigatory Powers Tribunal, ‘Investigatory Powers Tribunal Report 2010’, 2010.