18 June 2015
A Question of Trust
by John Watson
It is certainly appropriate that the report by David Anderson QC, the Independent Reviewer of Terrorism Legislation, on how surveillance powers should be reformed should be entitled “A Question of Trust” – because trust is the key political issue when powers are to be given to the police and intelligence services. Although the identification of the powers which the state needs to protect the citizen (and Mr Anderson identifies powers to ensure the data is retained, powers to practice bulk collection of intercepted data and powers to actually read the messages comprised in the data collected) is clearly at the heart of the debate, the decisions on which powers are necessary are essentially technical. You may disagree about whether records of internet use are necessary to meet a particular threat, but that is a question of identifying exposures and working out how a particular risk can be covered off. It is when you get to the question of who should safeguard the public from the abuse of the powers that you move to a more political judgement. Who can be trusted?
One of the most contentious suggestions in the report is that the authorisation of warrants, whether for bulk collection of data or for interception of messages, should be moved from the Home Office to a Judicial Commissioner, probably a senior judge, with the proviso that in matters of national security a Home Office certificate should only be challengeable if unreasonable. It will be interesting to see whether this provision is included or not when the government produces its Bill, but there has certainly been academic comment that decisions of this sort should be with the elected government rather than unelected judges.
So who do we trust? Politicians or judges? Logically, in a democracy it should be the former but the reputation of the judiciary is far higher than that of MPs and that is something of which politicians are clearly aware. Look at the Conservative promise to lock in by legislation their election pledge to hold the rates of various taxes. Why did they think that was necessary? It can only have been because they were worried that the electorate would not believe them if they simply stated that they had no intention of raising those taxes over the five-year parliamentary term.
Now it may be that the worry was justified. Possibly, on the other hand, it was merely neurosis. Either way, politicians who do not believe that the public trusts their word have no business arguing that they should be entrusted with the safeguards necessary to prevent the UK becoming a police state.
Judicial oversight is a principle which the government should concede early in the debate because if they do so it will make it easier to sell to the public the powers which the security services actually need, and there it would be sensible to be on the generous side. After all, we are often told that it is impossible to prevent all terrorist outrages and anyone with a feel for statistics will see why that is so. That means that in the end the security services will get the powers which they believe they need. The only question is whether they will get them over the next year as a result of rational debate and with proper controls or whether they will be given them in a panic at some later date when controls are the last thing on the public’s mind.
Mr Anderson’s approach of wide powers and robust independent controls seems to be right.
