Judicial Oversight of Interception of Communications in the United Kingdom: An Historical and Comparative Analysis
68 Pages Posted: 2 Feb 2017 Last revised: 17 Feb 2017
Date Written: December 1, 2016
In the United Kingdom, the Secretary of State for the Home Department ― an executive official ― is responsible for issuing warrants for interception of communications ― and in particular wiretapping of the content of telephone conversations ― both to the police in criminal investigations and to the Security Service (MI5) in intelligence-gathering operations. Ordinary courts play no role in either pre-approving or reviewing the validity of such surveillance. In the United States, and in many if not most other countries, judges are responsible for pre-approving interception warrants and, when a warrant is challenged, for reviewing its validity. In addition, the European Court of Human Rights has said that when legislation grants to executive branch officials the power to engage in covert surveillance, “it is in principle desirable to entrust supervisory control to a judge.” Thus, the United Kingdom is something of an outlier in terms of its arrangements for authorization and oversight of wiretapping. This article will examine the history and current status of those arrangements and will compare them to those in place in the United States and other national jurisdictions.
On November 16, 2016, after more than a year of debate, the U.K. Parliament passed the Investigatory Powers Act 2016. The law replaces the Regulation of Investigatory Powers Act, which had governed interception of communications since 2000. The new legislation preserves the power of the Secretary of State to issue interception warrants. However, it adds a layer of judicial oversight in the form of Judicial Commissioners, who must be persons who hold or have held “a high judicial office,” and who must “approve” the Secretary of State’s decision before it can go into effect. For additional brief discussion of the 2016 legislation, see, in the text of the article, notes 272 and 317-329 and accompanying text.
Keywords: Comparative Constitutional Law, Judicial Oversight, Interception of Communications, United Kingdom, United States
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