REGULATION OF INVESTIGATORY POWERS BILL

HUMAN RIGHTS COMPLIANCE

PART IV: SCRUTINY OF INVESTIGATORY POWERS

Commissioners

1.1 The independent scrutiny of surveillance operations is an essential requirement of Art.8 ECHR. It is the means for ensuring that individuals are protected by the statutory requirements. It is also an important element for overall accountability.

1.2 JUSTICE believes that there should be a statutory obligation to provide the Commissioners with sufficient resources to undertake comprehensive monitoring and investigations. In this context, the Home Secretary should be asked for an indication of the expected workload of say, the Covert Investigations Commissioner, who is to be responsible for keeping under review all those surveillance operations which fall within ‘directed surveillance’ and the use of covert human intelligence resources in Part II.

1.3 However, it is important also to clarify how the Commissioner is to monitor certain surveillance activities in the absence of any requirement on the person authorising the activity to inform the Commissioner. This is the position in relation to:

· ‘direct surveillance’ under Part II

· the use and conduct of covert human intelligence sources under Part II

· the acquisition and disclosure of communications data under PartI.

1.4 We also believe that the process of monitoring surveillance operations should be as full and transparent as possible. This means that the annual reports of the Commissioners should be more comprehensive than they are at present. In countries such as Australia, New Zealand and the United States, the law requires publication of information on such matters as the number of applications refused, the average duration of warrants and their extension, the categories of serious crime involved. They also include statistics on the effectiveness of the operations in terms of arrests, prosecutions and convictions and the cost of the operations. This is seen as a necessary and important form of accountability. We would specifically refer to the United States annual ‘Wiretap Report’ which contains information on all these issues, together with an Annex containing a breakdown of each warrant. It is available at: http://www.uscourts.gov/wiretap98/contents.html.

1.5 As we acknowledge in our Second Reading Briefing (para. 4.4), the issue of post-notification to those who have been the subject of surveillance is a difficult one. However a number of countries have dealt with this problem by adopting some form of notification, as we detail below. In the context of the role of a scrutiny Commissioner, JUSTICE would specifically refer to the proposal put forward by the Hong Kong Law Commission. It recommended that the Commissioner should be obliged to notify those persons where the warrant or other authorisation has been quashed on grounds of breach of statutory requirements. This is subject to the usual exception that such notification is not to be given if it would prejudice police operations. JUSTICE believes therefore that, at the very least, the various Commissioners should be under a similar obligation to notify individuals in such circumstances.

The Tribunal

1.6 We welcome the rationalisation of the surveillance complaint system into one Tribunal. However, we remain concerned that the Tribunal is not just a piece of human rights ‘window dressing’ which in practice does not provide an effective remedy for individuals. The failure of the existing surveillance tribunals ever to uphold a complaint demonstrates that this is a serious and legitimate concern.

1.7 JUSTICE has criticised the existing surveillance tribunals for the following:[1]

· they have no jurisdiction over a surveillance operation that is not authorised (i.e. by a warrant or Commissioner)

· they may only apply judicial review principles

· applicants have no right to an oral hearing

· there is only very limited disclosure of evidence

· there is no reasoned decision

· the decision can neither be appealed nor judicially reviewed in the courts

1.8 Apart from extending the remit of the Tribunal to unauthorised conduct under cl.56(7), the other shortcomings mentioned above either remain the same or are subject to delegated legislation and therefore difficult to assess. We look at each separately.

Limited to judicial review principles

1.9 Under cl.58(2) and (3) the Tribunal has to apply the principles of judicial review when hearing proceedings under the Human Rights Act ( cl.56(2(a)) and when considering a surveillance complaint (cl.56(2)(b)). In effect it means that the Tribunal may only decide whether the authorisation for the conduct was manifestly unreasonable in the circumstances or was based on procedural irregularity. The Tribunal cannot consider, for example, either the accuracy or the merits of the evidence put forward in support of a warrant or other form of authorisation.

1.10 It is not clear why the Tribunal should be limited in this way. In the recent cases of Chahal v UK and Tinnelly v UK, the ECtHR has made it clear that applying judicial review principles is an inadequate remedy insofar as it denies a Tribunal the ability to assess the factual basis of a decision. It is also questionable whether these principles are compatible with the Human Rights Act proceedings, particularly as Art 8 ECHR requires a test of proportionality now presently found in the judicial review principles.

Oral hearing and disclosure

1.11 The Bill does not give an applicant an automatic right to an oral hearing. This will depend on the rules to be made under cl.60(4). It is also unclear to what extent the delegated legislation will include procedures for appointing a special advocate (as applies in the Special Immigration Appeals Tribunal) when material cannot be disclosed to the applicant on national security or other sensitive grounds.[2] As these are important matters for ensuring that applicants are accorded procedural justice in accordance with Art 6 ECHR, the Home Secretary should be asked to detail his intentions for the content of such rules.

Reasoned decision

1.12 At present, cl.59(4) prohibits the Tribunal from giving reasons for its decision, although the Secretary of State may make rules permitting it to give fuller information (cl.60(2)(i). It is strongly arguable that a blanket prohibition against ever giving reasons is disproportionate and incompatible with the Human Rights Act. Since the Tribunal is to rule on potential infringements of privacy under Art 8 (and probably determine civil rights for the purpose of Art 6) the Human Rights Act may well require that reasons are only withheld when there is a sufficient and proportionate reason for doing so. JUSTICE believes that this should be recognised on the face of the Bill or, at the very least, in the delegated rules.

Appeals

1.13 There is no appeal from a Tribunal decision, other than in circumstances as to be ordered by the Secretary of State (Cl.58(7)). No indication is given either in the Bill or in the Explanatory Memorandum as to the circumstances when appeal may be permitted. It is questionable whether the prohibition is compatible with the Human Rights Act in so far as it excludes an appeal in proceedings taken under cl.56(2)(a) for conduct alleged to be incompatible with ECHR rights.

Notification

2.1 Any complaints procedure will inevitably offer only limited possibilities of an effective remedy (as required by Art.8 ECHR) since, by definition, in most cases people are unaware that they have been the subject of an interception or other form of surveillance.

2.2 As mentioned above, a number of countries have dealt with this problem by adopting some form of notification. For example, in the United States and Canada, the judge granting the warrant has the discretion to notify the named individuals within 90 days of its expiry so long as the police investigations will not be prejudiced. This may be delayed where it is established that such notice would be contrary to the interests of justice. The Solicitor General’s annual report on the use of electronic surveillance in Canada shows that 515 people were notified during the period of 1997- 98. Many European countries including Denmark, Germany and the Netherlands have some form of notification. It is also a requirement of the Council of Europe’s Recommendation on the use of data in the police sector.

2.3 The ECtHR looked at the issue of notification in the leading surveillance case of Klass v Germany, where the applicants alleged that German law did not give them an effective remedy for unlawful telecommunications interceptions. While it did not find a violation on the facts, the Court placed considerable emphasis on the fact that Germany law required notification of the individuals as soon as this was possible without prejudicing police activities.

2.4 We fully acknowledge that this is a difficult issue but it is important that it is tackled. As mentioned above, JUSTICE believes that, as a minimum, notification is required where there has been a breach of the statutory requirements covering surveillance operations, subject to an exception on grounds of prejudicing police operations. This means that there should be a duty on the authorising official (i.e. Secretary of State, Commissioner or designated person) to notify an individual where, for example, a warrant or other form of authorisation has been improperly or erroneously issued or complied with.

April 2000

[1] See pages 24 –27 of the report, Under Surveillance.

[2] This was introduced following the ECtHR decision in Chahal v Uk when the Court made it clear that it should be possible to employ procedures which both accommodate legitimate security concerns and which also accord individuals a substantial measure of procedural justice.