UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Nicholas Clapham: The Authorisation of Surveillance: A Separation of Power?

Editors’ note: The UK Parliament will debate reports into investigatory powers in its session today, 25 June 2015.

Nicholas ClaphamOn 11 June the Prime Minister released the review of investigatory powers conducted by the Independent Reviewer of Terrorist Legislation, David Anderson QC. Entitled ‘A Question of Trust’, the initial media highlight was undoubtedly the recommendation that intelligence agencies should continue with bulk data collection. Of greater constitutional interest perhaps, was the recommendation that the legal authorisation for surveillance activity be passed from the executive to the judicial branch. While common in other jurisdictions, including the United States, this recommendation suggests a radical change in the constitutional practice of the UK. Sensing government resistance, the media has identified this as a potential battle ground for the draft surveillance bill to be published in the autumn.

The Traditional Approach

In 1957 a committee of Privy Councillors (‘The Birkett Committee’) was appointed to inquire into the legal basis for the interception of communications. Although it found the origin of authority to intercept obscure, the Committee identified a Proclamation of May 25th, 1663, as the first public reference to executive warrant. This forbade the opening of any letters or packets by anybody, except by the immediate warrant of the Principal Secretary of State. This reflects the modern position whereby MI5 warrants are generally signed by the Home Secretary and MI6 and GCHQ warrants by the Foreign Secretary. Specifically the Birkett Committee rejected any need for judicial involvement in the issuing of warrants.

The Anderson Report is the second of three reports commissioned in the wake of the Edward Snowden revelations. A report by the Royal United Services Institute remains outstanding but the first to be published was by the statutory oversight body: the Intelligence and Security Committee of Parliament (ISC). In its report, ‘Privacy and Security: A modern and transparent legal framework’, the ISC rejected submissions for judicial authorisation. Noting that ministers receive internal legal advice upon applications, it found compelling the suggestion that:

“Ministers are able to take into account the wider context of the warrant application and the risk involved, whereas judges can only decide whether a warrant application is legally compliant.”

This conclusion was reinforced by the round the clock availability and democratic accountability of Ministers.

The Anderson Proposals

Judicial authorisation was the most common suggestion made to Anderson during the course of his inquiry. Accordingly, although his proposals would entail the replacement of a practice of several centuries standing, he found his view on the creation of Judicial Commissioners, ‘one of the easiest to arrive at’. In doing so he specifically rejected the ISC position.

In support of his proposals, Anderson started not with law but with practicality. Having received evidence that the Home Secretary spends more time on warrants than anything else, he questioned whether this function is the best use of her time. A further practical consideration arose from the ‘single most important challenge that the Agencies face’, that of obtaining assistance from service providers based in the US. Anderson felt that these providers would be more inclined to assist when faced with a judicial warrant akin to that under their own system.

Anderson dismissed the argument for democratic accountability on the basis that, in practice, the Secretary of State is rarely held politically accountable for the issue of warrants. However, he did recognise the importance of political input to cases involving defence or foreign policy in which an understanding of the wider context is crucial. In order to reconcile this special expertise of the Secretary of State with judicial authorisation, Anderson proposes a dual track system in which the Secretary of State would have the power to certify that a warrant is required but only in those cases where the defence of the UK or its foreign policy are concerned; the Judicial Commissioner should then only depart from that certificate on the basis of the principles applicable in judicial review. In this last respect Anderson relies upon the parallels for reviewing the Secretary of State’s assessment of the need to impose measures under the Terrorism Prevention and Investigation Measures Act 2011. In all other cases, including terrorism, independent judicial authorisation is all that would be required.

Analysis

The UK has long used judicial authorisation as a basis for law enforcement, for example, to authorise search of premises. More recently this has been extended to cover surveillance activity such as that undertaken by local authorities (where Justice of the Peace authorisation is required) and intrusive surveillance by law enforcement bodies (where approval by a Surveillance Commissioner is required). The Anderson proposals attempt to extend the remit of these types of judicial scheme to the activities of the intelligence agencies. To do so entails a reduction in the ambit of political control by removing it altogether in ‘simple’ terrorist cases and suggesting it be shared in cases involving UK defence and foreign policy. Anderson’s use of terminology could render legally otiose the commonplace although legally undefined term of national security.

In A v Secretary of State for the Home Department Lord Nicolls highlighted that:

“All courts are very much aware of the heavy burden, resting on the elected government and not the judiciary, to protect the security of this country and all who live here. All courts are acutely conscious that the government alone is able to evaluate and decide what counter-terrorism steps are needed and what steps will suffice. Courts are not equipped to make such decisions, nor are they charged with that responsibility.

Notwithstanding that the House found against the Government in the case, the statement represents the traditional, separation of powers, deference shown by the judiciary to the executive in matters of national security. On one view, the Anderson proposals represent a bold challenge to this orthodox position. Alternatively, they might be seen as an attempt to redraw the line between the political and legal questions identified by Lord Bingham in the same case:

“I do not accept the full breadth of the Attorney General’s argument on what is generally called the deference owed by the courts to the political authorities. . . The more purely political . . . a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision . . . It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.”

This begs the question whether the legislature will have the appetite to redraw such boundaries. Whether they will or not may depend upon judicial decisions between now and the introduction of legislation. On the basis of Klass v Germany and Kennedy v UK, Anderson concluded that judicial authorisation was desirable rather than necessary, and the current system of ministerial authorisation did not render the process non-compliant with Article 8 ECHR. He reviewed the more recent CJEU case of Digital Rights Ireland Ltd v Minister for Communications and suggested that the precise boundaries of that decision would not be established for some time. In declaring the EU Data Retention Directive invalid in that case, the CJEU said:

“Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data.”

Although the statement does not require judicial authorisation, it requires that or an independent authorisation, which the Secretary of State is not.

Despite Klass and Kennedy being concerned with targeted surveillance and Digital Rights with the retention of bulk data, there are parallel issues between them. Anderson is correct that the full implications of the CJEU ruling remains to be seen but its domestic effect may be felt sooner than he anticipated. The UK’s Administrative Court has recently reserved judgment in the judicial review of the Data Retention and Investigatory Powers Act 2014 taken by MPs David Davis and Tom Watson. Broadly, the MPs challenge is made on the basis of Digital Rights and may provide an early opportunity for the judiciary to prompt a legislative curtailment of executive power and a concomitant reduction in the boundaries of judicial deference.

Nicholas Clapham is a retired Army Legal Services Officer, non-practising solicitor and PhD Candidate at the University of Surrey.

(Suggested citation: N. Clapham, ‘Surveillance: A Separation of Power?’ UK Const. L. Blog (25th Jun 2015) (available at: http://ukconstitutionallaw.org))

3 comments on “Nicholas Clapham: The Authorisation of Surveillance: A Separation of Power?

  1. Aleksandra
    June 25, 2015

    Very informative article. Is there also a recommendation to set up a special division in the High Court for these matters? While it is important to ensure legality and meet the ends of justice in individual cases, it is also equally important for the society as a whole to have matters that may impact its safety and security determined expeditiously.

  2. Nick Clapham
    June 27, 2015

    Thanks Aleksandra.
    I do not anticipate that government would set up anything as elaborate as a special division of the High Court. Anderson has proposed the creation of an Independent Surveillance and Intelligence Commission (ISIC). He provides models for the make up of the commission at Annexes 17 and 18 of his report. As far as the authorisation of warrants is concerned, ISIC would operate in a similar fashion to the existing surveillance commissioners referred to in my post. Details of their activities can be found on their website: https://osc.independent.gov.uk/.
    Whether to go down the judicial route will be hotly debated, as will the potential demarcation of roles/powers between judges and ministers. However, if the decision is made to go down the judicial route, in institutional terms, I think it highly likely government will create something very similar to the surveillance commissioners.

    • Aleksandra
      June 29, 2015

      Interesting. Thank you for the response.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: