Thematic warrants: 'Destroying democracy under the cloak of defending it'

Thematic warrants, a troubling aspect of the draft Investigatory Powers Bill (IP Bill), grant the government the power to conduct surveillance of a group or category of people without requiring each target of the surveillance to be identified in the warrant.

These broad new powers, authorising the interception of communications and equipment interference (i.e. hacking) of people who reside in the UK, are buried in the so-called 'targeted' surveillance provisions. They upend a long tradition in the UK of prohibiting 'general warrants' and directly conflict with two recent cases decided by the European Court of Human Rights (ECHR) - Zakharov v Russia (Application No 47143/06) and Szabo and Vissy v Hungary (Application No 37138/14).

Thematic warrants in the IP Bill

The term 'thematic warrant' was first used in 2015 when the home secretary admitted that the intelligence agencies had adopted a fairly loose interpretation of 'one person' and 'single set of premises' under section 8(1)(a) of the Regulation of Investigatory Powers Act 2000 (RIPA) and were obtaining warrants not for 'one person', but 'any organisation or association or combination of persons'. Warrants obtained under this surprising and broad definition were termed thematic warrants.

As David Davis MP stated in an oral submission to the IP Bill Joint Committee, 'Although they were not formally approved by parliament, somehow they were invented out of RIPA.'

In name thematic warrants are only mentioned at paragraph 212 of the explanatory notes to the draft IP Bill, where the home secretary admits that certain 'targeted' warrants 'have sometimes been described as thematic'.

In the draft Bill itself they appear twice, at clause 13(2), which describes the permissible subject matter for interception warrants, and clause 83, which describes the subject matter of equipment interference warrants.

These clauses permit warrants in respect of people or equipment 'who share a common purpose or who carry on, or may carry on, a particular activity' (clause 13(2)(a) and 83(b)); 'more than one person or organisation, or more than one set of premises, where the conduct authorised or required by the warrant is for the purposes of the same investigation or operation' (clauses 13(2)(b) and 83(c) and (e)); or 'equipment that is being, or may be used, for the purposes of a particular activity or activities of a particular description' (clause 83(f)).

Once warrants are granted for ill-defined categories or groups of people (or equipment) - for example, 'all mobile phones in Birmingham' (clause 83(e)) or 'anyone suspected of having travelled to Turkey' (clause 13(2)(a)) - choice as to whose privacy will be interfered with is delegated to the police or intelligence agencies, increasing the risk of arbitrary action and undermining the implementation of effective oversight, including judicial authorisation.