Thursday, May 16, 2019

UK spies are not above the law

In a major decision, the UK Supreme Court has ruled that that country's spies are not above the law:

Government security decisions will in future be open to challenge in the courts after judges ruled that a secretive intelligence tribunal could not be exempt from legal action.

By a 4-3 majority, supreme court justices declared that the extent of GCHQ’s powers to hack into internet services should be subject to judicial review.

The judgment, in effect integrating the investigatory powers tribunal (IPT) into the existing hierarchy of court appeals, was welcomed by human rights groups as a victory for the rule of law.

The UK parliament had put a purported ouster clause in the law forbidding judicial review, but the court found that “[i]t is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.” Given the powers in question and the implications for human rights, they read down the purported ouster clause and effectively voided it.

Of course, that still leaves the main problem that in order to review a decision, you need to know about it in the first place. Which highlights the importance of leaks in ensuring intelligence agencies behave lawfully. But now at least the decisions of the IPT will not be final, preventing it from colluding with or being captured by the spy agencies it is supposed to oversee.

(Meanwhile, in New Zealand, decisions by the Inspector-General of Intelligence and security cannot be challenged in court. But its is effectively a parallel jurisdiction, with a clause stating explicitly that IGIS looking at a case does not affect the jurisdiction of the courts or the police. Meaning that if you don't get justice from IGIS, you can always seek judicial review of a spy agency's decision directly).