Why we need real judicial sign-off in the Investigatory Powers Bill

Posted by Katie Bamber on 09 December 2015

The Draft Investigatory Powers Bill – the Government’s new surveillance law – is currently hurtling through pre-legislative scrutiny in Parliament.

This is a once-in-a-generation chance to shape our spying laws for the better. Unfortunately current proposals won’t just make us less free – they’ll make us less safe too. 

Liberty’s calling for the inclusion of strong safeguards in the final Bill. Our Eight-Point Plan lays out clear, practical ways we can make sure surveillance conducted in our name is done so in a necessary, proportionate and accountable way.

Here, we explain why MPs must take this chance to create a proper system of Judicial Sign-Off.

What are we calling for? 

All surveillance requests must be signed off by a judge before that surveillance takes place – including requests to intercept communications, send undercover operatives to spy on people, hack and access our data.

Currently interception warrants are signed off by a Secretary of State – usually the Home or Foreign Secretary. In 2014, Theresa May personally authorised more than 2,300 interception warrants. She’s called it “a responsibility that […] perhaps occupies more of my time as Home Secretary than anything else”. 

If a public body wants to access our communications data they only need to get permission from a senior member of staff from within that organisation. Over 500,000 requests are granted each year. 

We’ve been campaigning for change for years. Now there’s a growing consensus calling for judicial sign-off, including former spy chiefs, the Independent Reviewer of Terrorism Legislation and parliamentarians from across the political spectrum. 

Our failure to introduce prior judicial authorisation leaves us looking increasingly isolated and out-of-touch. A huge number of democratic countries make use of judges in signing off surveillance – the USA, Australia, Canada and New Zealand among them. 

What powers does the Draft Bill include?

To put it simply, what the Home Secretary has touted as “judicial authorisation” isn’t actually judicial authorisation at all.

The Bill creates a new approach involving a “Judicial Commissioner”. Ministers will continue to authorise warrants before passing them to a Commissioner – and all they’ll have the power to do is “review” the decision. Relegated to little more than glorified rubber-stampers, they’ll only be able to disagree with outrageously unreasonable requests.

If Commissioners feel a decision’s wrong, they can explain their reasons – but their word isn’t final. Ministers can ignore their response and approach a more senior Investigatory Powers Commissioner to look at the warrant again. 

As if their role weren’t toothless enough, the Bill allows modifications to be made to warrants with no judicial oversight at all. And if a request is “urgent”, Ministers can bypass judges altogether – despite the fact there’s a duty judge available through the Royal Courts of Justice 24-hours-a-day.

The Home Secretary has called this “one of the strongest authorisation regimes anywhere in the world”. 

Don’t believe the hype. This is not prior judicial authorisation. In practice, politicians will still hold all the cards.

Why should you care?

Without real prior judicial authorisation, how can we trust that safeguards in place are robust and independent, and that the warrant process is safe from abuse? The decision as to whether surveillance is necessary and proportionate is a legal, not political, decision. 

Surely the recent revelation that the Wilson Doctrine protecting MPs’ communications was secretly dumped makes it painfully clear ministers shouldn’t be signing off warrants? 

Our authorities do an unbelievably important job. But they’re not infallible. Abuses can happen. 

And they have happened. The Met police have accessed journalists’ phone records, spied on Baroness Doreen Lawrence and her family and infiltrated social and environmental justice groups to the extent that women were tricked into serious relationships – one even having a child with an undercover officer. 

GCHQ spied on a torture victim challenging MI6 complicity in his kidnap to Gaddafi’s Libya, and on his lawyers, and unlawfully intercepted communications of human rights organisations including Amnesty International.

What can we do? 

Prior judicial authorisation is common sense. It’s widely used in democratic countries worldwide. It’s recommended by experts, cross-party MPs and privacy campaigners. 

The British people deserve this most basic of safeguards.

The more voices we have behind our Eight-Point Plan, the harder we are to ignore. Please sign up today – and keep an eye on our campaign page to find out how we can keep the pressure on MPs as the Bill makes its way through Parliament.

 

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Katie Bamber

Katie Bamber

Liberty
Media Director