This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.
In my earlier post on the UK Draft Investigatory Powers Bill, I highlighted three particularly controversial aspects of the bill and considered the domain retention requirement. In this post, I look at the role, and extent, of judicial oversight provided by the bill. That role has been considered by the Joint Committee — appointed to review and report on the bill — in the oral evidence sessions it has been conducting since November 30.
The guide to the bill claims that it will “radically overhaul” the way in which investigatory powers are authorized and overseen. There are two innovations. First, a new Investigatory Powers Commissioner (IPC) will oversee the use of the powers. Secondly, there will be a “double lock” for certain warrants: after the warrant has been authorized by the Secretary of State, it must be approved by a judge. I consider these in more detail below.
Oversight of investigatory powers is presently provided by a number of different bodies. Parliamentary oversight is provided by the cross-party Intelligence and Security Committee. Independent, non-Parliamentary, oversight is provided by three separate Commissioners: the Interception of Communications Commissioner, the Chief Surveillance Commissioner, and the Intelligence Services Commissioner. The Investigatory Powers Tribunal (IPT) adjudicates claims regarding investigatory powers and alleged unlawfulness.
The bill purports to strengthen this oversight regime primarily by replacing the three extant commissioners with the IPC. A domestic right of appeal from the IPT has also been created. The bill envisages that the IPC will be a senior judge. His supporting staff will include Judicial Commissioners (serving/former High Court judges), a team of expert inspectors, and dedicated legal, technical, and communications support.
The IPC and his support staff will have three roles. First, an authorization role: authorizing and approving the use of investigatory powers. Secondly, an inspection role: auditing compliance and carrying out investigations. And thirdly, a reporting role: making recommendations, publishing guidance, and reporting to Parliament and the public on the need for and use of investigatory powers.
It is the IPC’s authorization role that has the potential to be the most effective and far-reaching check, in individual cases, on the use of investigatory powers. That authorization is the second “lock” in the so-called “double lock.” The bill gives the IPC/his Judicial Commissioners an authorization role primarily in relation to interception warrants, equipment interference, bulk warrants, and bulk personal dataset warrants. Where these kinds of warrants are sought, the bill requires, first, that the Secretary of State must be satisfied that the warrant is necessary and proportionate and, secondly, the warrant must be authorized/approved by a Judicial Commissioner.
This authorization role will operate within the following three parameters. First, the Judicial Commissioner may only review the Secretary of State’s conclusions as to (a) whether the warrant is necessary on relevant grounds, and (b) whether the conduct that would be authorized by the warrant is proportionate to what is sought to be achieved by that conduct. Secondly, the Judicial Commissioner must apply the same principles as would be applied by a court on an application for judicial review. Thirdly, if a Judicial Commissioner refuses to approve a decision to issue a warrant, then the IPC may be asked to review that decision (see, e.g., sections 19, 90, 109, 123, 138, and 155 of the bill).
Is This an Adequate Safeguard?
So, is this second, judicial, “lock” in the “double lock” an adequate safeguard on the use of investigatory powers? The answer is a qualified yes: for the reasons set out below, the IPC’s authorization role has the potential to be an adequate safeguard, but there is still room for improvement.
The authorization role means that proposed executive conduct will be objectively assessed for lawfulness with reference to the principles of judicial review. These principles are adequate, notwithstanding the criticism of, for example, the Shadow Home Secretary (who has interpreted the role as being a review of “process” only) and the NGO Liberty and its Director (which has said that the bill fails to “contain powers for substantive judicial approval of surveillance warrants” and that “[j]udicial review does not help at all in this context.”).
Two concerns underlie such criticism: first, that judicial review is limited to assessing the process by which a decision is taken rather than the merits of the decision and/or, secondly, insofar as judicial review enables a merit-review that review does not go far enough.
The first concern — that judicial review relates only to process — is unjustified, for the reasons given by Lord Pannick QC in his article in The Times. In the article, he explains that judicial review is a flexible, context-sensitive concept. He refers to deprivation of liberty cases in which judges have applied judicial review by considering the merits of the measure (including whether it was necessary and proportionate) and concludes that “a very similar approach” is likely to be applied in relation to investigatory powers/privacy. Lord Pannick’s article was endorsed by the Independent Reviewer of Terrorism, David Anderson QC, in his evidence to the Joint Committee.
The second concern — that the merits-review involved in judicial review does not go far enough — is based on the premise that judges have the experience and expertise required to make (amongst others) national security-related decisions and they should exercise that experience and expertise. But this is a controversial premise and it is not accepted by judges themselves. As Lord Pannick has explained:
However, in a national security context, the judiciary adopts a self-denying ordinance, applying the principle stated by Lord Neuberger (president of the Supreme Court) and Lord Dyson (master of the rolls) in a Supreme Court judgment in July in the Beghal case. In a terrorism context, judges have a function that involves a “tension” between “vigilance” to ensure that the powers are exercised only where necessary and proportionate, and “circumspection”, because of the superior knowledge and experience of the executive in assessing risks to national security. Judges also recognise the institutional responsibility of the home secretary who is answerable to parliament. Judges therefore accord the executive a margin of discretion.
That tension, and margin of discretion, is inherent in judicial control of the exercise of powers relating to national security. It would apply even if the legislation were to adopt criteria other than those adopted on a judicial review application. The margin of discretion does not alter the power and duty of judges to scrutinise decisions intensely and to impose restraints where appropriate, depending, of course, on the circumstances of the individual case.
Thus, despite the criticism of the authorization role, it has the potential — based as it is on the principles of judicial review — to involve substantive and meaningful review regarding the use of investigatory powers. However, the oversight is not perfect.
Room for Improvement
One improvement would be for the bill to make clear that, in undertaking the authorization role, the Judicial Commissioner would have access to all of the same information that was before the Secretary of State when she made her decision to issue the warrant. It is difficult to see how the Judicial Commissioner could undertake his authorization role in the absence of such information and so such access appears to be implicit in the bill. However, in order to avoid confusion (which certainly exists: see the exchange between Suella Fernandez and Shami Chakrabarti during the Joint Committee’s December 9 oral evidence session) the bill should clarify this point.
A second improvement would be to eliminate the possibility that “urgent” warrants could be issued without judicial approval. At present, the bill provides that the “double lock” may be displaced where the Secretary of State considers that “there is an urgent need to issue the warrant” (see, e.g., sections 14 and 84 of the bill). There is no definition of “urgent” — as noted by the Joint Committee in its first oral evidence session on November 30. Although the bill provides for the Judicial Commissioner to check the warrant within five working days after it has been issued, an adverse decision by him will only invalidate the future operation of the warrant (see, e.g., sections 21, 91, and 156 of the bill). This lack of timely judicial authorization in “urgent” cases could surely be ameliorated. For example, one or more Judicial Commissioners could to be on stand-by to deal rapidly with such “urgent” cases.
Other improvements would be — as Lord Pannick QC has pointed out — to provide for special advocates so that the IPC or Judicial Commissioner is aware of all relevant points (since there is no involvement of the person who will be subject to the investigatory powers/his lawyers) and to enable the IPC and Judicial Commissioners to give anonymised judgments on issues of principle.