Oversight

The ISC Report of March 12, 2015 dismissed concerns about leaving the authorization of warrants to elected officials by claiming that ministers are likely to be sensitive to the “political or diplomatic risks involved” in intrusions. Para. 202. “Judges might therefore approve more warrant applications on the basis of pure legal compliance, whereas a Minister may refuse more applications based on these broader considerations.” Para. 203.

While 8(4) warrants authorize the interception of communications, accompanying certificates by the Secretary of State describe the intercepted material that may be examined, certifying that such examination is necessary for the purposes of national security, the detection or prevention of serious crime, or the economic well being of the UK. Through an examination, the ISC found that certificates described the material to be examined only “in very general terms. For example: ‘Material providing intelligence on terrorism (as defined by the Terrorism Act 2000 (as amended) including, but not limited to, terrorist organisations, terrorists, active sympathisers, attack planning, fund raising.’” Para. 101. Due to certificates’ generic specification of the material to be examined, “[i]n practice,” analysts’ “selection of the bearers, the application of simple selectors and initial search criteria, and then complex searches ….” determine which communications are examined. Para. 123.

The Committee recommended that analysts’ discretion be curbed by according “[t]he Interception of Communications Commissioner [the “Commissioner”] … statutory responsibility to review the various selection criteria used in bulk interception to ensure that these follow directly from the Certificate and valid national security requirements.” Concl. S. If, however, certificates only very broadly describe the material to be examined, it will be difficult, if not impossible, to distinguish between selection criterion that do and do not “follow directly from the Certificate”. The Commissioner might still distinguish between selection criteria that do and do not “follow directly … from … valid national security requirements.” Allocating this post hoc determination to the Commissioner fits ill, however, with the ex ante determination of national security requirements that 8(4) allocates to the Secretary of State.

Except for acknowledging the need for a domestic right of appeal, the ISC dismissed proffered criticisms of the IPT. Notably, the Committee responded to concerns about the IPT’s having ruled against the Government “only in a tiny minority of cases” by stating that, “[W]e note that as judges they will of course have reached an objective decision depending on the merits of the case before them and therefore we do not consider this a valid argument.” Para. 214.

The ISC rejected all proposals by contributors to the inquiry for reforming its composition and working arrangements on the ground that “Parliament considered the structure, procedures and powers of the ISC in July 2013 during the passage of the Justice and Security Act 2013.” Para. 219.

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