So who do we trust most, politicians or lawyers? For those are the groups from whom the judges and ministers are selected and who are likely to have oversight in any new surveillance bill. I suspect if you asked the man on the Clapham Omnibus he would probably say he’d trusted neither. As I have worked alongside both in my career I have a more optimistic take on this.
Lawyers are trained to review and sift evidence, to challenge assumptions, to consider legislation and measure an individual circumstance against it. Most are highly intelligent and attempt to achieve the best outcome for their clients. When they come to sit as judges they employ those same skills to achieve a balanced and just outcome. There will be those that believe even as judges their client would, in effect, be the state and that they would be too easily swayed by the vague notion of National Security. On the other hand some in the Secret Services believe that judges would be too cautious about such nebulous concepts and more likely than a Minister to reject the more nuanced cases, leaving our security at risk.
So what of politicians as the alternative? Journalists who work closely with politicians for any length of time tend to fall into two camps. Those that believe that all politicians are duplicitous, self-serving and power-hungry and portray them as such, or those that believe them to be a reasonable cross-section of the public themselves (albeit at the egotistical end of that cross-section), who are at least primarily motivated by a desire to help society and who could have a better, less scrutinised and more lucrative life elsewhere. The reality probably sits between the two, but for the record I sit in the second group. So what would the politicians bring to this role? One clear thing is responsibility, particularly on the terrorist/national security front. They are also more likely to have a more nuanced opinion about what the public are going to find an acceptable balance between intrusion and public safety, for I would contend that is more of a political and ethical balance than a legislative one. However these are genuinely busy people, so can they really apply the level of due diligence required on the volume of cases that are coming through from the police and security services? As the answer is clearly no, leaving things as they are would leave a significant credibility gap in any new system of increased scrutiny.
So which to choose? Initial stances have been outlined – David Anderson has suggested that he thinks a judge should take on this role; Theresa May has apparently suggested that she feels that Ministers should retain it. However the choice need not be binary. I think the idea raised on the Today programme by Sir David Omand, the former Head of GCHQ, needs further exploration. He seemed to suggest that in the majority of cases, those brought by the police, etc., a judge would be responsible, but that Ministers would retain the responsibility where the Secret Services need to exercise such powers. Immediately some will see a conspiracy, the spooks wanting to keep their work in darkened rooms where politicians can be more easily influenced. Indeed, if a terrorist outrage was committed in the UK and it turned out the Home Secretary had declined to sign a surveillance order their days in office would surely be numbered? However, such a hybrid system would allow stronger oversight than we presently have in the vast majority of cases, but keep the direct link to the minister responsible for our safety when that is needed. Is it enough or should judicial oversight be exclusive? We need more information about how both routes would be constructed and exactly how the oversight will be conducted.