The Home Office has defended the process by which warrants for surveillance and data interception are issued. In a written submission to the House of Lords’ Draft Investigatory Powers Bill Committee, attributed to John Hayes MP, Minister of State for Security under Home Secretary Theresa May, it claimed that the “double lock” process introduced in the Bill for the authorisation of warrants represents a “significant strengthening” of current safeguards.
It added that it will also provide greater democratic accountability, “acknowledging the expertise of the executive in considering national security matters, and independent judicial scrutiny”.
The process by which surveillance warrants would be issued under the proposed law has been widely criticised, especially for failing to provide both democratic accountability, as well as proper checks on requests that the wide variety of government agencies will be able to make.
However, these have been brushed aside by the Home Office in its written submission – despite its explicit admission that it would essentially be for the Secretary of State to authorise, or otherwise, the warrants, not the courts.
“Before a warrant application reaches a Secretary of State it would have to go through multiple layers of scrutiny both within the warrant requesting agency and the Department of State to ensure that it was lawful, necessary and proportionate.
“Once officials in both the warrant requesting agency and the warrant granting department are content, the application would be passed to the Secretary of State to consider. The Secretary of State would then decide whether to issue the warrant (and in doing so may seek clarification or additional information). His or her decision must include consideration of whether the warrant was necessary and proportionate,” claims the Home Office.
It continues: “Once the Secretary of State (or Scottish Minister) has decided to issue a warrant, they cannot do so until it has been approved by a Judicial Commissioner. In reviewing the Secretary of State’s decision, the Commissioner would have to apply the same principles as would be applied by a court on an application for judicial review.
“The Judicial Commissioner would have access to all of the information that has been shown to the Secretary of State and would be able to seek any clarification that he or she needed in order to reach an informed decision. If the Judicial Commissioner does not approve the Secretary of State’s decision the warrant cannot be issued.”
If the Judicial Commissioner rejects the application, the Secretary of State will also be able to appeal the decision, it adds.