Montesquieu said that when, “the legislative, executive and
legal powers are united in the same person or body, there can be no liberty.”
This is the principle of separation of powers; that each branch of power is
separate so as not to interfere with the effectiveness of the other. Our democracy
doesn’t fully uphold this principle. The legislative branch and the executive
branch are very much confused. Walter Bagehot saw this as the, ‘efficient
secret of the English constitution.’ Even though our constitution runs somewhat
contrary to Montesquieu’s doctrine regarding the legislature and the executive
it maintains a clear separation between these two intertwined concentrations of
power and the courts, or does it?
Well, Anderson’s report into the Government’s future surveillance
wishlist, was rather scathing to say the least. The QC described existing law
as ‘undemocratic’ and suggested that going further in terms of the surveilling
powers offered to authorities than are already set out in RIPA (Regulation of
Investigatory Powers Act) was unnecessary. But most notably were his comments
regarding the way in which surveillance was currently authorised, and indeed
more intrusive surveillance would be authorised under any new ‘snoopers charter’
type legislation.
Currently under RIPA, depending on the intrusiveness of the surveillance
with so called intrusive surveillance techniques given the highest level of
warrant, authorisation is granted by the ‘authorising officer,’ designated as
such by the body issuing the warrant. So, if the Police Issue a warrant for,
what under RIPA would be categorised as ‘direct surveillance’ (any covert inspection
likely to obtain private information,) then in the majority of cases a
superintendent is given the prerogative power to authorise this ‘directed surveillance’
and in more time sensitive cases a mere ‘inspector’ is allowed this power.
These powers of authorisation flow from the office of the
Secretary of State and, well legally speaking, each authorisation is made with
her passed on approval. They are far overreaching perversions of her powers as
Secretary of State and Anderson thought so too. There were over half a million
requests made by public authorities in 2008 and we were reminded by Anderson
that only once in the last ten years has there been a victim of Islamist
terror, Lee Rigby.
It isn’t simply that the reach of Government extends far
enough but that the Secretary of State and her varying emanations are not separate
enough from the legislature of the executive, and that without judicial
oversight, there can be, as Montesquieu put it, no Liberty. This was the
premise we have been perversely fed in order that we allow the relinquishing of
our rights to privacy, in place of the protection of our freedom from an
abstract enemy.
Judicial oversight as Anderson made plain in his report is
the more constitutionally sound way to go, especially considering that there
have been problems surrounding the admissibility of evidence gathered by the
methods prescribed under RIPA. This is without accounting for any further
encroachments on personal liberties that may arise under the ‘Snoopers Charter.’
Fairly recently it was heard that a local council had subjected a family to ‘directed
surveillance’ techniques in order to identify whether they were living within a
school catchment area. Evidence gathered in a less than scrupulous way is
unlikely to be deemed admissible by a court. By RIPA in order to warrant ‘snooping,’
the proposed surveillance must be done at the very least, for the protection of
the UK’s economic wellbeing and any intrusion must be proportionate to the
threat. Otherwise a contravention of Article 6 of the European Convention of
Human Rights may be open to question.
Quite hilariously, Anderson’s report made it clear that the
Police and the Security Services were not interested in bringing gathered
intelligence into a legal setting. It was stated that, part of the reason
evidence was not often brought before a court, despite their being many issued
warrants in conjunction with investigations leading to trial, was that the
court required the disclosure of all evidence gathered on the defendant at trial.
‘The defence could legitimately request a transcript of the entire intercept
product with a view to searching it for exculpatory material.’ Exculpatory,
meaning the defendant may find material in the intercepts by which he could
build a defence. ‘Boo Hoo.’
Anderson noted that the police and security services showed,
‘markedly less enthusiasm for the recently introduced requirement of
authorisation by magistrate for communications data requests, and I am not
surprised. Given that far reaching illiberal powers can be used by any ‘authorised’
emanation of government, and those in positions to ‘authorise’ are fairly low
down the food chain in some cases, I can see why Government, the Police and the
Security Services would recoil at the idea of a stronger adherence to the
doctrine of Separation of Powers. As Montesquieu put it, ‘there would be an end
to everything if the same man or the same body exercised those powers.’ Maybe
not an end to everything, but at least our liberty.