SurveillanceU.K. surveillance bill debate: Judicial warrants vs. ministerial authorization for intercepts

Published 2 November 2015

Former Conservative shadow home secretary David Davis has said that the plans to grant police and intelligence agencies new powers to monitor suspects online will not get through parliament without a requirement for judges to sign off on spying warrants. A legal report written at the request of Home Secretary Theresa May recommended that judicial warrant rather than a ministerial authorization be required for intercepting individuals’ communications. Parliament’s Intelligence and Security Committee, however, recommended in March that ministerial authorization would be preferable. A draft of a new investigatory powers bill will be published Wednesday, and May said she would “be explaining the government’s position to parliament this week.”

Former Conservative shadow home secretary David Davis has said that the plans to grant police and intelligence agencies new powers to monitor suspects online will not get through parliament without a requirement for judges to sign off on spying warrants.

Davis was speaking before the Wednesday publication of a draft of a new investigatory powers bill. Home Secretary has so far refused to say whether the proposed bill will require the security services to apply for a judicial approval if they want to intercept communications.

The BBC reports that Davis, speaking on BBC1’s Sunday Politics, said: “Actually I don’t think this bill will get through either Commons or Lords without judicial authorization … There’s a new consensus on this right across the board – across the experts, across the spooks, across the parties, across both houses of parliament.”

Davis rejected the argument that a system requiring judicial approval would be less accountable. “Every time I’ve asked a question of any minister on a security matter … they say ‘we don’t comment on security matters.’ There is no accountability.”

May said that the Home Office has already decided not to include in the bill several proposals which aroused particularly vociferous opposition, like allowing security services access to every citizen’s Internet browsing history.

The Guardian reports that in June, David Anderson QC published a report recommending that judicial warrant rather than a ministerial authorization be required for intercepting individuals’ communications. Parliament’s Intelligence and Security Committee, however, recommended in March that ministerial authorization would be preferable.

Home Secretary May, speaking on BBC1’s Andrew Marr Show, said she sets aside some time every day to consider security services’ applications for interception authorization, adding that she would “be explaining the government’s position to parliament this week.”

Davis said: “At the moment, the home secretary does about ten of these warrants in a working day. It’s impossible for any one person to do this. It’s bad practice, it’s bad managerially, it’s bad legally and it’s bad in terms of counter-terrorism.”

Former Liberal Democrat leader Lord Ashdown, speaking to on the Murnaghan program on Sky News, said the upper house would ensure that judicial oversight of warrants was added to the bill if it was not included in the draft. “This is precisely constitutionally the kind of bill within which we should be intervening if indeed the legislation is deficient,” he said.

The Sun reported last week that the attorney general, Jeremy Wright, had advised May against giving judges oversight. The paper’s source said that “The attorney general’s advice was very clear. It would be totally irresponsible of government to allow the legal system to dictate to us on matters as important as terrorism. Not only would they tie things in knots very quickly, but they are not elected and answerable to nobody.”