Martin Chamberlain QC says team of expert judges who are not ‘overawed’ by intelligence services would help safeguard against mass surveillance

A cadre of specialist judges who develop expertise assessing interception warrants and are not “overawed” by the intelligence services should be appointed to safeguard against mass surveillance, a leading lawyer has said.



Martin Chamberlain QC, one of the most experienced special advocates in terrorism and national security cases, proposed more robust measures for improved judicial scrutiny.



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The independent reviewer of terrorism legislation, David Anderson QC, has already recommended that the government’s investigatory powers bill – yet to be published – should require judges to approve interception warrants and certain communications data requests.



Chamberlain’s proposals go further. Those who are involved in national security matters, he told a meeting organised by the civil liberties organisation Justice, often tend to feel they are “rather special because they have been inducted into a trusted circle”.



He continued: “To guard against [that] psychological phenomenon you need to ensure that judicial scrutiny is done by a small group of lawyers who build up experience over time ... so that judges are not in a position of being rookie judges who are overawed.



“At the moment the investigatory powers tribunal [IPT, which deals with complaints about the intelligence services and surveillance] is staffed by judges who also sit in other cases and by lawyers who also practise at the bar. I think a model more like the special immigration appeals tribunal [SIAC] might be better in the long term, with judges permanently assigned.”



Chamberlain pointed out that in 2014, the home secretary, Theresa May, personally authorised 2,345 interception or property warrants and renewals. “The idea that the decision maker can apply her mind properly to every one of these is far-fetched,” he said.

“Quite apart from the need for a decision maker independent of government, the person or persons responsible for granting these warrants must have enough time to consider personally and properly every one of them.”



The person or persons responsible for granting these warrants must have enough time to consider every one of them Martin Chamberlain QC

Chamberlain also pleaded for greater transparency in the way the IPT operates. “Some of the scrutiny of intelligence work is always going to have to be done in closed [court],” he acknowledged, “but there should be an absolute rule that as much as possible should be done in the open.



“And it should be made clear that the tribunal, and not the agencies, have the last word on this. And the tribunal should be allowed to balance the needs of effective scrutiny against national security.”



In some cases, he added: “You can have a complete lack of transparency even when it’s coupled with an open hearing.



“Moving to a system in which the agencies have to assume that everything they say to a tribunal will be made public unless there is a good reason for it to be kept closed will require a real change in approach and mindset.”



Chamberlain accused the intelligence services of making a “fetish” of its reliance on the principle of “neither confirm nor deny” (NCND) – the frequently deployed statement that leaves claimants and the public none the wiser about whether interception has, or has not, occurred.



He also called for the establishment of a right of appeal following an IPT. At present, the only option for a defeated litigant is to go directly to the European court of human rights in Strasbourg.

At the same Justice event, the former director of the monitoring agency GCHQ, Sir David Omand, said: “We are completely dependent on the internet.”

The Regulation of Investigatory Powers Act (Ripa) needs to be replaced, he said: “I have changed my mind. It’s impossible to explain to the public how Ripa works. If you have an act that you can’t explain without going into technical detail ... I’m now a supporter of a new act.”



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The president of the supreme court, David Neuberger, has previously called for “uniformly enforced” international standards to govern the global reach of the internet. “The aim must be to identify a suite of regimes which is practical and as far as possible enables us to obtain all the benefits of the internet with minimum reduction in privacy, and which also has public confidence,” the most senior judge in the UK told a legal conference in Singapore last month.



“If people are to have confidence that personal data accessible by governments (whether for surveillance purposes or otherwise) or commercial entities will not be misused, there must be clear regulations, with clear standards, conditions and safeguards, and proper enforcement, supervision and liability regimes, governing the obtaining, using, storing, sharing, dissemination and destruction of such data.

“As usual, openness is vital,” Lord Neuberger added. “There has been something of a cult of secrecy as to what governments are doing to monitor people’s electronic communications – and their activities more widely by electronic means, and as to what data the private sector is collecting, retaining, collating, and sharing.”