Recent judgments from the European Court of Human Rights strongly suggest that the United Kingdom’s draft Investigatory Powers Bill would – if adopted – violate the European Convention on Human Rights by providing insufficient oversight. Amending the draft Bill to require independent judicial authorization for surveillance warrants would strengthen oversight.
The Draft Investigatory Powers Bill
In November, the UK Home Secretary (who, as a Member of Parliament, has the power to propose legislation) circulated the Bill in draft form prior to introducing it formally. As CDT has previously noted, the draft Bill is deeply problematic from a human rights standpoint.
One of the draft legislation’s major defects is the omission of independent judicial authorization for surveillance. In a normal criminal investigation in the UK, a judge evaluates a constable’s application for a search warrant, which includes supporting evidence. A judge can issue a warrant if there are reasonable grounds for believing the search will yield relevant material of substantial value to the investigation.
While the draft Bill describes a scheme in which a Judicial Commissioner (a current or former judge appointed by the Prime Minister) would approve a warrant for surveillance, this authorization appears to be perfunctory. First, the Home Secretary (or, in some cases, another specified official) would examine an application for surveillance by intelligence or certain law enforcement authorities, and then issue a warrant. The Home Secretary would need to consider whether the warrant was necessary and proportionate – i.e., necessary for one or more specified goals (for example, “preventing or detecting serious crime”), and proportionate to that goal.
Next, a Judicial Commissioner would analyze the Secretary’s decision using the standards applied in judicial review. In the UK, judicial review is a proceeding in which a court determines whether a decision made by a government body is permissible. In this proceeding, a court will usually find a decision impermissible only if it is illegal, irrational, or a product of procedural impropriety. A court analyzes the decision-making process, rather than the decision itself.
Therefore, it appears that a Judicial Commissioner would be unable to evaluate whether there is a “sufficient factual basis” to justify “individual suspicion” regarding the person targeted for surveillance, the importance of which the European Court of Human Rights emphasized in last week’s Szabó and Vissy v. Hungary judgment, as well as December’s Zakharov v. Russia judgment. Also, the Commissioner would be unable to independently determine whether the warrant was necessary and proportionate (as the European Convention on Human Rights requires for surveillance activity). Under this judicial review standard, we can expect that all or almost all warrants would be approved.
During a parliamentary hearing last week, the Home Secretary argued that the judicial review standard is more flexible. She stated that Judicial Commissioners would have the option to question the merits of her decision to issue a surveillance warrant when they feel it is appropriate. At least some case law provides support for this opinion.
However, as civil society groups have pointed out (see 18:26:05), if the government truly intends for Judicial Commissioners to review evidence and assess the proportionality of surveillance, it can avoid this confusion by simply removing references to judicial review from the Bill. Their inclusion only gives the executive branch the ability to rescind any meaningful judicial protections at will.
Moreover, as CDT has pointed out in submissions to the parliamentary Joint Committee on Human Rights, there are a number of surveillance powers in the draft Bill that would not require even the limited warranting and review process described above, including the collection of communications metadata and the issuance of potentially sweeping “national security notices”.
European Court of Human Rights Case Law
Rather than being a minor detail, this issue concerns the fundamental right to privacy guaranteed by the European Convention on Human Rights. The European Court has affirmed that independent judicial review provides an important check on the executive branch’s use of surveillance powers.
In last week’s Szabó and Vissy v. Hungary judgment, the Court repeated a point made in past cases: “an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary,” which best provides “independence, impartiality and a proper procedure.” While in the past the Court deemed some non-judicial oversight bodies acceptable because they were sufficiently independent from the executive, it reiterated its preference for judicial oversight, stating that “control by an independent body, normally a judge with special expertise, should be the rule and substitute solutions the exception.”
Additionally, the Court objected to the fact that the body carrying out surveillance was not required by statute to demonstrate the necessity and proportionality of its activities to the authorizing judge. It criticized the Hungarian law for the fact that there was “no legal safeguard requiring [the body carrying out surveillance] to produce supporting materials or, in particular, a sufficient factual basis for the application of secret intelligence gathering measures which would enable the evaluation of necessity of the proposed measure.”
This echoes a point made more clearly in Zakharov, in which the Court stated that there must be “reasonable suspicion against the person concerned . . . [supported by] factual indications for suspecting that person of planning, committing or having committed criminal acts.”
Here, the draft Investigatory Powers Bill falls short. Although it would require the Home Secretary to consider necessity and proportionality, this protection would have little value without independent verification by a judge.
CDT urges the Home Secretary to amend the Bill before formally introducing it to ensure that this safeguard is protected. Before authorizing a warrant, a Judicial Commissioner (or, better yet, a judge fully outside of the executive branch) should examine the facts in each application and independently determine whether the request is reasonable.
As the European Court observed, governments’ ever-growing technical capabilities in the area of surveillance must be matched by strong, effective safeguards to prevent abuse; otherwise, we risk losing the fundamental rights that define the very democracies we seek to preserve.