Former reviewer of terrorism legislation says it would be glib to require judicial oversight of applications by security services to intercept communications

It would be glib for the government to require judges to approve warrants to intercept communications, the former independent reviewer of terrorism legislation has said, as he called for an end to the “demonisation” of the security services.

Alex Carlile QC, a Liberal Democrat peer and former MP, was speaking ahead of the publication of a draft of the investigatory powers bill, due on Wednesday, amid a political debate about whether politicians should be stripped of the power to sign off intercept warrants.

“I think it is a rather glib comment to say ‘get the judges to authenticate everything’,” Lord Carlile told BBC Radio 4’s Today programme. “Judges are, of course, very good quality men and women, [but] if judges are going to authenticate these issues, they have to learn about national security ... At the moment, there is a handful of judges who have real understanding of national security.”



The Home Office has so far refused to confirm whether or not the proposed legislation will include judicial approval of applications made by the security services to intercept communications. Ministers currently approve the 2,700 warrants a year to tap into the contents of messages.

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Carlile, who served as the independent reviewer of terrorism legislation between 2001 and 2011, said he could not remember seeing a politician “make a decision which was against the interests of the privacy of the public”.



“One should be very careful of simply saying ‘politicians are malignant therefore we must protect the public against any possible future malignancy of an individual politician’,” he said.

“By and large, politicians do actually try to get things right, and they really do have an interest in the balance between the safety of the public and the privacy of the individual. That’s what they agonise over.”



Carlile said he was concerned that the police and security service had been demonised when they were actually “the unsung heroes” who kept Britain safe: “I think it’s absurd to suggest that the police and the security services have a kind of casual desire to intrude on the privacy of the innocent.”

Speaking on ITV’s This Morning on Monday, David Cameron said we should not give terrorists, criminals and child abductors “safe spaces” to communicate. “It’s not a safe space for them to communicate on a fixed-line telephone or a mobile phone; we shouldn’t allow the internet to be a safe space for them to communicate and do bad things,” he said.

Asked about the issue of judicial oversight, Cameron said: “We’ll set out our plans on Wednesday, but politicians have a role – not least to get this area of law right.”

The Times reports (paywall) that the investigatory powers bill could outline a two-stage approvals process in which the home secretary, Theresa May, would give the initial authorisation to intercept warrants, followed by confirmation of that decision from a senior judge with security clearance.

Labour, the Lib Dems and some backbench Conservatives have already expressed reservations about the existing system of ministerial approval.

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Speaking on BBC1’s Sunday Politics show, the former Conservative shadow home secretary David Davis said plans to grant police and intelligence officers new powers to monitor suspects online would not get through parliament without a requirement for judges to sign off on spying warrants.

“Actually I don’t think this bill will get through either [the] Commons or Lords without judicial authorisation … There’s a new consensus on this right across the board – across the experts, across the spooks, across the parties, across both houses of parliament,” he said.

The Home Office said it had dropped several contentious proposals from the bill, including plans to give the police and security services full access to everyone’s internet browsing history. The climbdown was prompted by concerns that the government would be unable to get the legislation through parliament because of unease of its implications for civil liberties.

A report published in June by David Anderson QC recommended that judicial rather than ministerial authorisation of individual, targeted intercept warrants should be required. His position runs counter to the intelligence and security committee, which said in March that responsibility should remain with ministers. The Royal United Services Institute (pdf) favours an approach under which the government authorises some warrants and others are left to judges.

Labour’s shadow cabinet has agreed that the party will not support the investigatory powers bill unless it includes judicial oversight of national security warrants. Speaking on the Murnaghan programme on Sky News on Sunday, the former Liberal Democrat leader Paddy Ashdown said the upper house would ensure that judicial oversight of warrants was added to the bill if it were not included in the draft.

“This is precisely constitutionally the kind of bill within which we should be intervening if indeed the legislation is deficient,” he said.