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A Democratic Licence to Operate
would facilitate obtaining assistance from service providers in the US, who stated that
they were more accustomed to the procedures of the Foreign Intelligence Surveillance
Court and disliked the notion of authorisation by the secretary of state.13
5.15
In cases where the warrant is required in the interests of the defence and/or foreign
policy of the UK, Anderson suggests the warrant would be sent first to the secretary of
state, who would certify that this was the case. The judicial commissioner would only
be able to depart from that certification on the basis of judicial review. The advantage
of this dual system, Anderson believes, is that ‘it would preserve the proper role of
the Secretary of State in relation to the assessment of the defence and foreign policy
priorities of the country’, while the judicial commissioner would still ‘retain the ability to
scrutinise such warrants for compliance’.14
5.16
In order to increase confidence in the oversight regime, Anderson recommends
that the judicial commissioners be housed in a new Independent Surveillance and
Intelligence Commission. The Commission would also bring together, merge and add to
a number of the oversight responsibilities held by the Interception of Communications
Commissioner’s Office, the Office of Surveillance Commissioners and the Intelligence
Services Commissioner.15 The Commission would be public-facing and draw on expertise
from a range of sectors, including intelligence, computer science, technology, academia,
law and the NGO sector.
A Democratic Licence to Operate
5.17
The ISR Panel have considered in detail each of these reports, and their significant
number of recommendations in particular. Some, but not all, of their findings and
recommendations reflect the Panel’s own investigation. This investigation involved a
thorough review of existing literature, seventeen evidence sessions, as well as meetings
with, and visits to, thirty-eight organisations and individuals. These visits included
government departments and agencies such as the FCO, the three British security and
intelligence agencies (GCHQ, MI5 and SIS), the NCA and the Metropolitan Police.
5.18
Like the ISC and the IPR investigations, the Panel were impressed by the dedication and
professionalism of the police and the intelligence services in the way they have approached
the problems of intercepting communications and their use of data in the digital society.
There is evidence of high levels of expertise among the individuals responsible for
implementing the interception and use of data for security and policing purposes.
5.19
Welcome as such dedication is, the key questions lie much deeper. Open societies have
to protect themselves, but the parts of the state entrusted with significant powers
must be carefully regulated and held to a high level of accountability. If the first duty of
13. Ibid., p. 207.
14. Ibid., p. 274.
15. Ibid., p. 299.