affiliated to the International Association of Constitutional Law
When the Home Secretary commended the Draft Investigatory Powers Bill for pre-legislative scrutiny in November 2015, she lauded the oversight mechanisms in the Bill as ‘world-leading.’ A seminal feature of this new regime is the creation of a single Investigatory Powers Commissioner (IPCr) who is aided by a set of Judicial Commissioners (JCs) in exercising both ex ante and ex post facto oversight over the use of a range of surveillance measures. The IPCr will replace the existing fragmented (RIPA Part VI) framework of the Intelligence Services Commissioner, the Office of Surveillance Commissioner and the Interception of Communications Commissioner whom hitherto have (largely) conducted ex post facto oversight functions.
Thus the creation of the IPCr is supposed to mark the introduction of judicial authorisation (or for sceptics judicial review) of warrants permitting the most intrusive surveillance measures. This will be part of the much advertised ‘double-lock’ mechanism which features an element of both ministerial and judicial involvement in the authorisation of targeted interception, targeted equipment interference and all ‘bulk’ surveillance measures. An excellent overview of the provisions in the original Draft Bill has already been provided by Tom Hickman on this blog. On the particular issue of judicial authorisation, Hickman concluded that while the Bill’s reference to judicial review was ‘unfortunate in terms of clarity, upon analysis [this] should not be of significance in substance.’
However, evidence gathered by the Joint Committee (“the Committee”) tasked with scrutinising the draft legislation highlights that this particular aspect of the Bill has not proved as uncontroversial as Hickman may have suggested in his earlier post. In fact, a number of witnesses before the Committee suggested removing the reference to judicial review from all the authorisation clauses in the Bill. For example, the Bingham Centre for the Rule of Law, among others, submitted that the reference to judicial review had the effect of reducing the scope for the JCs to reach an alternative decision to that of the Secretary of State. According to the Centre’s submission, this made it likely that ‘the system of authorisation in the Bill would result in infringements of [human] rights.’
Given that the Committee has now reported, and if recent press reports are to be believed, the Home Secretary looks set to precipitously shepherd the Bill through Parliament. This blog is one of three posts which analyse the major points of contention on the functions and status of the IPCr as highlighted in written and oral evidence to the Committee. In this entry, I analyse the divergence in opinion on whether (in substance) the Bill introduces a robust system of judicial authorisation as promised by the Home Secretary. In a second post, I will consider concerns in regards to the IPCr itself, in particular, whether the clauses in the Bill ensure that the new office is sufficiently independent from the executive. That blog will also include an analysis of the procedural limitations to the process of judicial decision-making in the Bill, specifically, the lack of provision for an adversarial process.
A third post will examine the constitutional propriety of judicial involvement in the authorisation of warrants. This broader question has informed the design of the provisions in the Bill. The aim here is to demonstrate that the introduction of a judicial element to the authorisation of surveillance warrants is not isolated from the ‘judcialisation’ of the UK Constitution which has been transpiring over the course of the last two decades.
Is it Judicial Authorisation or Judicial Review?
The clauses which provide for judicial scrutiny of warrants in the Investigatory Powers Bill follow a pattern. In the first instance, they provide that a JC must review:
Whether the warrant is necessary on relevant grounds, and whether the conduct that would be authorised by the warrant is proportionate to what is sought to be achieved by that conduct. (Clauses 21(1), 97(1), 123(1), 139(1), 157(1), 179(1))
In this regard, the Bill delivers on the recommendations of both the Anderson review and the review by the Royal United Services Union (RUSI). However, controversy arises from the attachment of second paragraphs to each of the clauses above. All clauses listed above are currently qualified by a subsection which stipulates that:
The Judicial Commissioners must apply the same principles as would be applied by a court on an application for judicial review. (Clauses 21(2), 97(2), 123(2), 139(2), 157(2), 179(2))
This qualification meant that the Committee was, in the words of Matt Warman MP, ‘blessed with lots of different interpretations of what judicial review will mean in the context of this Bill.’ Hickman asserted that by requiring the JCs to apply the principles of judicial review ‘does not mean they will apply a Wednesbury [standard of] review.’ A standard of substantive review which Rylatt and Tomlinson recognised (on this blog) as being part of the ‘modern classification of the grounds for judicial review’ as outlined by Lord Diplock in the GCHQ case.
Citing the House of Lords’ opinion in Miss Behavin, Hickman suggested here, and to the Committee that ‘it is trite law in human rights cases [that] courts will decide for themselves whether a measure is necessary and proportionate.’ The gist of the argument is that where fundamental rights are at stake (the right to privacy in this context), the references to judicial review will not bar the JCs from making a more exacting analysis of the necessity and proportionality of the right-infringing surveillance measure. Therefore, for Hickman and others, the reference to judicial review principles does not lower the intensity which the JCs will adopt in applying the related but conceptually distinct tests of necessity and proportionality.
However, evidence to the Joint Committee appears to challenge the triteness of this position. The discourse before the Joint Committee revealed multiple understandings of what effect the reference to “judicial review principles” will have on the ex ante function of the JCs.
An alternative account put forward to the Committee postulated a more elastic understanding of judicial review principles. Martin Chamberlain QC insisted that even within the fundamental rights context, ‘there is a spectrum in terms of intensity of review, with very light‑touch review at one end and high‑intensity review at the other.’ (Report: Q 187) Chamberlain’s contention was that it is not guaranteed that the JCs would operate at the high intensity end of the spectrum.
Furthermore, as discussed by Lord Sumption in an extra-judicial speech, such intensive scrutiny has reliably been adopted in cases involving the deprivation of liberty (citing A v Secretary of State for the Home Department). This is a view affirmed by the Court of Appeal in the context of the TPIMS/control orders regime in Secretary of State for the Home Department v MB where it was stated that:
When reviewing a decision by the Secretary of State to make a control order, the court must make up its own mind as to whether there are reasonable grounds for the necessary suspicion. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism-related activity (paras 58-60)
As several witnesses before the Committee protested, it is not certain that a similar rationale will be extended to the application of necessity (and proportionality) in the context of surveillance warrants. This is because, inter alia, the area of deprivation of liberty is sui generis. And under the ECHR framework, the qualitative difference between the Article 5(1) limited right to liberty and the Article 8(1) qualified right to privacy means the dicta in MB cannot be relied on to shed light on what the “principles of judicial review” means in the context of this Bill. When it comes to substantive review, the right or interest at stake matters (and should matter.) As Mark Elliott has argued on this blog, to suggest otherwise would represent a ‘failure to grapple with the underlying need for a normative ordering of the values that warrant judicial protection.’
Furthermore, the context-specific nature of applying “the principles of judicial review” was noted by Matthew Ryder QC who advised the Committee that:
In a judicial review situation, the judge is essentially bound by decisions and assessments of facts that have been made by the Secretary of State and is applying judicial review principles to that assessment that has already been made of the facts.
The Home Secretary herself (unhelpfully) explained to the Committee that the purpose of the judicial review clauses is to give ‘a degree of flexibility [to the JCs] as to how they approach particular cases depending on the impact on the individual of what it is they are looking at.’ She then went on to say, the JCs are ‘not retaking the decision. They are looking to see whether the original decision was flawed.’ (Report: Q 273) This explanation casts doubt on the degree to which the JCs’ assessments can be considered autonomous to that of the preceding Minister in the authorisation sequence currently enshrined in the Bill. This suspicion was confirmed in an instructive tripartite exchange between Lord Butler, Lord Strasburger and Christopher Forsyth (Report: Q 217):
Lord Butler: Would the Bill be better without the clauses about applying “the same principles as would be applied by a court on an application for judicial review?”
Professor Christopher Forsyth: That depends on what you want to achieve by the Bill.
Lord Butler: Would it give more effective judicial control if that clause was removed?
Professor Christopher Forsyth: I suspect that if one was to strike out that clause you would end up with more effective judicial control. In fact, there would be a real danger of judicial duplication of what the Secretary of State decides.
Lord Strasburger: Would you call that a double lock?
Professor Christopher Forsyth: One might very well call it a double lock.
Cynically approached, the incorporation of judicial review in this Bill could be seen as an attempt to “shackle” the JCs in their ex ante oversight functions. Given the multifarious meanings which can be attached to the phrase “principles of judicial review” it begs the question: why is it there? Thus, rather than embracing the Home Secretary’s language of a ‘double-lock,’ critics (including HM’s Opposition) argue the obligation to adhere to judicial review principles effectively removes parity between the relevant Minister and the JCs. Hence they have adopted the alternative vocabulary of an ‘equal-lock.’ Notwithstanding the lack consensus on whether judicial review principles can be easily determined in this context, the Joint Committee itself concluded that ‘it was satisfied with the wording of the Bill.’ Therefore, it did not recommend any changes, in large measure, relying on the Home Secretary’s assurances. (Report: Conclusions 76 & 77)
The real danger is that the system of authorisation currently in the Bill has the potential to morph into a ‘rubber stamping’ exercise whereby the JCs easily acquiesce to the assessment made by the Minister. This development may detract from the “public confidence” which the JCs are supposed to be bringing to the process. The preferable solution would be to delete all the clauses making reference to judicial review principles in the Bill. This would remove any doubt that the Bill makes provision for an abstract merit-based judicial assessment of the necessity and proportionality of each warrant sought. If such amendments cannot succeed in either House, then a Parliamentary statement by the Home Secretary, making it clear for Pepper v Hart purposes, that the proper construction of the judicial review clauses is one that permits an autonomous assessment by the JCs is an alternative compromise.
Byron Karemba (@byronkaremba) is a 110th Anniversary Doctoral Student at the University of Leeds School of Law looking at the constitutional role of the Supreme Court of the United Kingdom.
(Suggested citation: B. Karemba, ‘The Investigatory Powers Bill: Introducing Judicial Authorisation of Surveillance Warrants in the United Kingdom – Putting the ‘Double-Lock’ in Focus (Part I)’, U.K. Const. L. Blog (22nd Mar 2016) (available at https://ukconstitutionallaw.org/))