U.K. MPs Debate Judicial Authorization For Intercept Warrants

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The U.K. parliament is today debating issues around the forthcoming new Investigatory Powers Bill, ahead of a draft bill being introduced this autumn.

“We know that communications data is used in 95 per cent of serious and organized crime investigations handled by the Crown Prosecution Service. Similarly intercept has played a significant role in investigating crime and preventing terrorism. Last year, 2,795 interception warrants were issued. Of these the majority — 68 per cent — were issued for serious crime; 31 per cent for national security; and one per cent a combination of serious crime and national security,” Home Secretary Theresa May told Parliament in a speech opening the debate.

During the debate May was asked whether the government had made a decision on a key recommendation in the recent independent review of surveillance capabilities by QC David Anderson — namely that interception warrants should be signed off by judges, rather than by ministers, as is currently the case. The U.K. is alone among the so-called Five Eyes powers in not having a judicial process for signing off interception warrants.

Several MPs suggested that gaining co-operation from U.S. companies on data sharing for intelligence purposes might be bolstered if the U.K. had a judicial warrant sign off process, as is the case in the U.S. However May said the government has not yet made a decision on whether to accept that particular recommendation from the Anderson report, arguably stepping back from earlier remarks which had been interpreted as the government rejecting that recommendation out of hand.

“On these recommendations the government has not yet reached a decision,” said May. “But they are important matters, and we must look carefully at this — and today’s debate will inform our view.”

“The government has not yet taken firm decisions on particular recommendations in David Anderson’s report, or indeed on any of the other reports we will discuss today,” she added.

Labour’s Yvette Cooper argued there may be a case for “different kinds of warrants” in “different kinds of circumstances” — drawing distinctions between crime investigations and those involving national security or foreign affairs.

“When it comes to issues around foreign affairs, where there may be sensitive relationships between other governments at stake those obviously have an important role for the executive, rather than simply seeing those as judicial. However there are other kinds of warrants, for example intercept warrants which may be about under the purposes of serious and organized crime,” she said.

“It does raise significant questions as to why intercept in the interests of pursuing serious and organized crime should have no judicial authorization whereas knocking down somebody’s door should have judicial authorization. So that’s why I think there are therefore different kinds of warrants and there is a strong case for introducing judicial authorization in order to provide a clearer system of separation of executive and judiciary, a clearer system of checks and balances into the process.”

May was also asked by Cooper whether the government was intending to reinstate the so-called Snoopers’ Charter — aka the failed Communications Data Bill — in the forthcoming Investigatory Powers Bill. That proposed legislation had included provisions to require ISPs to capture weblog data (aka lists of websites people visit, and potentially many other digital interactions), as well as comms data from social media websites.

The government has said the new Investigatory Powers bill will aim to plug “capability gaps” for the intelligence agencies — suggesting an expansion of data capture and retention powers. Labour’s Cooper pressed May for a commitment that the government would be starting again “from scratch” with the new bill, rather than trying to resurrect the Snoopers’ Charter.

On this point the Home Secretary referred back to view of the parliamentary committee which scrutinized the Communications Data Bill last year and dubbed it “too wide-ranging”.

“We were very clear after the work of the joint committee that scrutinized that draft communications data bill that we would take on board the principle of the various recommendations that that body had brought forward,” said May.

She reiterated that the government will also be considering Anderson’s recommendations on this point. (The relevant section of that report reads: “There should be no question of progressing proposals for the compulsory retention of third party data before a compelling operational case for it has been made out (as it has not been to date) and the legal and technical issues have been fully bottomed out.”)

Also speaking during the debate, the SNP’s Joanne Cherry said she hoped the Anderson report had sounded the “final death knell for the Snooper’s Charter”.

“We will have to look at [the Anderson report] in the context of what we were proposing subsequently to the joint committee of parliament but we were very clear that we would accept… all of the principles that that committee set forward including that the original draft communications data bill, which had attempted to future proof this issue, was too wide-ranging,” May added.

Many MPs speaking during the debate called for “greater transparency and scrutiny” of the intelligence agencies in order to bolster public trust. Many also spoke up for the need to balance security demands with civil liberty rights. And there was clear consensus on the need for more clarity in surveillance oversight legislation, and the need to replace the existing Regulation of Investigatory Powers Act.

Conservative MP Dominic Grieve said RIPA “clearly needs replacing” — arguing certain aspects of the problematic law were made “deliberately opaque” when it was drafted. “We can hardly be surprised when 10 years down the track it appears even more incomprehensible than I suspect it was to those parliamentarians whose unhappy lot was to scrutinize it at the time it was first enacted,” he said.

“When you consider we regulate our TV channels in a more high profile and systematic way than our intelligence agencies it’s clear reform is needed,” added Labour’s Cooper.

“Whatever the legal and privacy framework we propose it will need to be agile and capable of responding to urgent cases, it will need to be clear and accountable, capable of commanding public confidence and ensure that sensitive powers are available in a way that will stand the test of time,” said the Home Secretary.

May added that the government is committed to a bill on investigatory powers “early next year” in order that it can receive Royal Assent before the sunset clause in the Data Retention and Investigatory Powers Act comes into effect at the end of 2016.

“In order to meet that timetable and allow thorough parliamentary scrutiny we intend to bring forward a draft bill for consideration in the autumn, which will be subject to pre-legislative scrutiny, including by a joint committee of both Houses,” she added.