David Anderson Q.C. is the UK’s Independent Reviewer of Terrorism Legislation, who has been tasked with reviewing the operation of the United Kingdom’s anti-terrorism laws. In June 2015 he published a report titled ‘A Question of Trust’ [1] with the stated aim to (a) “inform the public and political debate” about authorities that intercept communications, and collect information about communications, and (b) to set out his own proposals for reform. Anderson recommends a ‘clean-slate’ approach whereby future legislation regarding surveillance is drafted from scratch, because he views the current legislative framework as tangled and complex.
The report contains 124 specific recommendations, which Anderson bases on 5 key principles which aim to build trust. His identified principles are as follows:
- Minimise no-go areas;
- Limited powers;
- Rights compliance;
- Clarity;
- Unified approach.
Anderson proposes to draft a new law to bring clarity to the current confusing state of affairs. This gives legislators the chance to review definitions, such as ‘content’ and ‘communications data’. The report suggests that current powers to collect and analyse data of communications in bulk should be retained, but made subject to strict additional safeguards. He suggest a new “bulk communications data warrant,” as a proportionate option in certain cases.
A Judicial Commissioner at a newly (proposed) Independent Surveillance and Intelligence Commission (ISIC) should be mandated to authorise warrants. The ISIC would replace the offices of the three current Commissioners and the Commissioner should be a serving or retired judge. The Secretary of State would certify warrants that are in the interest of national security, but the Judicial Commissioner “should have the power to depart from that certificate only on the basis of the principles applicable in judicial review.”
Further tasks mandated to the new ISIC would be:
- To take over the intelligence oversight functions of the current Intelligence Services Commissioner,
- The existing auditing functions of its predecessor Commissioners,
- Additional functions relating in particular to:
- the acquisition and use of communications data,
- the use of open-source intelligence,
- the sharing and transfer of intercepted material and data,
- take over the judicial authorisation of all warrants and of certain categories of requests for communications data, in addition to the approval functions currently exercised by the current Office of Surveillance Commissioners in relation to other forms of surveillance and the ability to issue guidance.
Further, the existing Investigatory Powers Tribunal (IPT) would receive an “expanded jurisdiction and the capacity to make declarations of incompatibility”. Importantly, its rulings should be subject to appeal on points of law. Finally, both the new ISIC and the IPT should carry the banner for transparency and inform society about why they need certain powers, as well as how they are interpreted used.
[1] David Anderson Q.C., ‘A question of trust’, Report of the Investigatory Powers Review, July 2015. Available at: https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2015/06/IPR-Report-Print-Version.pdf