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Following on from the first post focusing on the double-lock in the Investigatory Powers Bill (“the Bill”). This second entry looks at the “institutional and procedural” issues around the introduction of judicial scrutiny of surveillance warrants in the UK. Therefore, attention is on the office of the Investigatory Powers Commissioner (IPCr) itself. I will assess the degree to which the IPCr is independent from the executive. Thereafter, consideration is given to the procedure by which the Judicial Commissioners (JCs) will conduct their ex ante oversight function. Concerns in both these areas were raised when a Draft version of the Bill was before a Joint Committee of Parliament (“the Committee”). After nearly four months of gathering both written and oral evidence, the Committee reported in February and the Bill got its second reading on March 15th this year.
The Independence of the Investigatory Powers Commissioner
Part 8 of the Bill will provide the statutory footing for the IPCr. Clauses 194-206 outline the IPCr’s functions, and also make provision for miscellaneous elements such as appointments and funding arrangements. When the current Commissioners (Sir Mark Waller, Lord Judge and Sir Stanley Burnton) gave evidence to the Committee, they were highly critical of the provisions setting up the IPCr in the original Draft Bill (clauses 167-173). Their protestations clustered around the degree to which the IPCr is going to be independent from the executive. They invoked the ‘established and fundamental’ principle of judicial independence to express their dissatisfaction with the Bill in this regard.
When thinking about judicial independence, a standard and convenient distinction tends to be drawn between institutional and operational (or individual) independence. The former refers to ‘issues that go to the judiciary as an institution’ while the latter is concerned with ‘the decision-making of the individual judge’ in his adjudicative capacity (see pp. 9-15 in Gee et al, The Politics of Judicial Independence in the UK’s Changing Constitution (CUP 2015). The analysis which follows (unreflectively) adopts this orthodox conceptualisation of judicial independence to highlight the deficiencies of the oversight authority currently proposed in the Bill.
A major factor likely to detract from the operational independence of the IPCr is the broad power bestowed on the Secretary of State ‘to modify the functions’ of the JCs by way of secondary legislation (Draft Bill clause 177). After warnings that this power ‘could theoretically be used to alter the test that a JC has to apply when considering or reviewing the issue of a warrant’ (Report: Q 195). The Committee was advised that this delegated authority should be limited ‘to those roles that are not central to the authorisation or renewal of warrants.’ Thus, despite the Committee’s own naïve conclusion that, ‘such power would be exercised reasonably by the Secretary of State’ (Report: para 608), the Government acceded to the warnings above. The Bill presented to Parliament now reads that (clause 205):
(1) The Secretary of State may by regulations modify the functions of the Investigatory Powers Commissioner or any other Judicial Commissioner.
(2) But such regulations may not modify any function conferred by virtue of this Act on a Judicial Commissioner to approve, quash or cancel—
(a) an authorisation or warrant, or
(b) the variation or renewal of an authorisation or warrant.
Putting aside the constitutional implications of ‘empowering’ the executive to modify primary legislation through delegated legislation (discussed here in a different context) by Adam Tucker, clause 205 still leaves enormous scope for the Home Secretary to interfere in the operations of the IPCr. For instance, the Secretary of State can, to a great extent, modify the equally important ex post facto oversight functions of the IPCr. Therefore, the assessment made by The Law Society of Scotland still stands: the clause confers powers which ‘are exceptionally wide and draconian, effectively amounting to Henry VIII powers.’ There is still not an easily ascertainable scope within which the powers will be exercised. Furthermore, given that the IPCr’s main raison d’être will be to oversee the Home Office and its corresponding warrant-seeking agencies, it seems anathema to the idea of operational independence to ordain ill-defined power on the object of scrutiny to alter the functions of the scrutiniser.
In terms of institutional independence, a defect of the Bill is the executive’s instrumental role in the scheme for appointments to the IPCr. The Draft Bill initially provided that:
The Prime Minister must appoint the Investigatory Powers Commissioner and such number of other Judicial Commissioners as the Prime Minister considers necessary for the carrying out of the functions of the Judicial Commissioners. (Clause 167)
Therein lies a problem. In their submission to the Committee, the Interception of Communications Commissioner’s Office (IOCCO) argued that:
It is inappropriate for the JCs to be appointed by the Prime Minister as this dilutes public confidence and independence. The more modern arrangement and increasing standard internationally is for judicial appointments to be made by an independent body rather than the executive. (para 8)
Given that the JCs are to be appointed from a pool of individuals ‘who hold or have held high judicial office’ (Clause 194(2)), the current Chief Surveillance Officer, Lord Judge, argued that the demands on the senior courts need to be taken into account when appointments to the IPCr are made. Therefore, Lord Judge conceives the JCs as acting in a judicial, rather than executive capacity. In supplementary evidence to the Committee, he put forward that:
As a matter of principle judicial deployment is acknowledged to be a crucial responsibility of the Lord Chief [Justice], who not only has the clearest understanding of the experience and skills of all the judges, but who also knows those judges who will be serious candidates for the Court of Appeal where new experiences as commissioners would be valuable. No less important, he will have to address the consequences of the drain on judicial resources in the High Court and Court of Appeal of seconding senior judges to the [IPCr].
IOCCO’s own proposal was that ‘it would be more appropriate for the Judicial Commissioners to be appointed by JAC in consultation with the Lord Chief Justice.’ Thus suggesting something akin to the ‘hybrid’ appointment scheme for senior judicial offices under Part IV of the CRA.
In light of this evidence, the Committee’s own recommendation was that the initiative to appoint the JCs should be conferred on the LCJ who would exercise it in consultation with the PM; the heads of judiciary in Scotland and Northern Ireland; and the heads of the devolved administrations in Edinburgh and Stormont (Report: Recommendation 53). Despite the strength of feeling on this issue, the Bill before Parliament retains the PM’s primacy over appointments (clause 194(1)). This is with the slight modification that in doing so, the PM is mandated to consult the sitting Commissioner (clause 194(2)), the respective heads of judiciary in the three jurisdictions and the Ministers in Scotland and Northern Ireland (clause 194 (3)).
Given the existence of JAC, the employment of the Prime Minister in this regard appears to be retrogressive. As Jan van Zyl Smit highlighted on this blog, the trend here and in jurisdictions with a similar constitutional tradition has been to utilize independent commissions in appointing personnel to senior judicial posts. This trend has been fostered by the need to guarantee, among other things, the institutional independence of the judiciary. Therefore, the conferment of the initiative to appoint the JCs on the PM seems to be a throwback to what the former President of the UKSC, Lord Phillips, denounced as the ‘inappropriate process for judicial appointments in which a government minister had an [active] role in appointments.’
In the specific context of surveillance powers, the degree to which the oversight authority is independent from the executive is determinative in terms of compliance with human rights law. In order to satisfy the desiderata emerging from the jurisprudence of both courts in the European legal order, an oversight body not only needs to be actually independent, but appear to be so as well. (ECtHR: Zakharov para 257-260; CJEU: Digital Rights Ireland para 62). Given this emphasis on the robustness of safeguards, the initiative to appoint the JCs should be transferred from the PM to either the JAC or the LCJ in order not to fall foul of either human rights law framework.
A feature likely to compromise both the institutional and operational independence of the IPCr is the planned funding arrangement for the new office. Like the Draft Bill before it, the prospective legislation provides that:
The Secretary of State must [after consultation with the Investigatory Powers Commissioner] provide the Judicial Commissioners with such staff, and such accommodation, equipment and other facilities as the Secretary of State considers necessary for the carrying out Commissioners’ functions. (Clause 204(2))
The current IOCCO chief, Sir Stanley Burnton rightly complained that, ‘the appearance of independence is undermined if one has to go [for funding] through the Minister whose work one is supervising.’ In the same session, Lord Judge put it more trenchantly; ‘the idea that judges will be looking at the Home Secretary’s decisions, and then going cap in hand to the same Minister is not a sufficient separation.’ (Report: Q 56-57)
In order to improve the independence of the IPCr, the Bill should be amended to replicate the funding arrangements provided for the Supreme Court under sections 48-49 of the CRA as amended by section 29 of the Crime and Courts Act 2013. Under that scheme, ‘the UKSC is classed as a non-Ministerial department in its own right for Government accounting purposes.’ This gives the top Court a degree of independence from the MOJ. A similar arrangement would make the IPCr not too dependent on the goodwill of the Home Secretary, whose portfolio will largely constitute most of the office’s oversight workload.
The Bill does not make provision for an adversarial process to take place before the JCs make an assessment of the necessity and proportionality of each warrant as part of the “double-lock.” Writing in The Times, Lord Pannick noted that the JCs:
Will not hear representations by lawyers acting for the person who is to be the subject of the intrusive measure, and who will not know of the proposed surveillance.
To remedy this lacunae, Lord Pannick floated the idea of ‘counsel to the judiciary or special advocates to ensure a fair exploration’ of the case of each warrant sought. Furthermore, given the incorporation of “judicial review principles” discussed in the first post, the JCs are not going to hear contrasting submissions on what intensity of review applies in each context. As Martin Chamberlain explained to the Joint Committee, ‘in practically any judicial review case, a key point of contention between the parties is where on the spectrum that case lies.’
The possibility for alternative arguments to be put before an authorising entity is another safeguard stated as desirable in Zakharov. The Strasbourg Court noted that:
Since the individual will necessarily be prevented from seeking an effective remedy of his or her own accord or from taking a direct part in any [ex ante] review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his or her rights. (para 233)
Meeting this safeguard will not require a radical innovation. Similar advocates are already appointed to the Special Immigration Appeals Commission for immigration litigation involving “national security” concerns. The provision for a similar feature for judicial scrutiny of surveillance warrants would also be more compliant with the common law conception of adjudication. And above all, it would ensure that the JCs benefit from the ‘clarifying and collaborative value of adversarial argument’ as noted by David Anderson. (Anderson Review para 6.109)
This post has attempted to highlight some of the pressing “institutional and procedural” concerns in regards to the IPCr due to be set up by the Investigatory Powers Bill. Analysis has been limited to the independence of the IPCr, and the process by which the JCs will perform their ex ante oversight function. These are by no means the only institutional and procedural issues to be remedied before this Bill sees daylight. For instance, there is the unanswered question of why the Government is opting to create the office of a Commissioner instead of creating a Commission as proposed by both the Anderson and RUSI reviews. Furthermore, the placing of both ex ante and ex post facto scrutiny in the IPCr raises a potential conflict of interest which may compromise confidence in both oversight functions. As IOCCO advised the Joint Committee, the installation of ex ante and ex post facto scrutiny in one entity gives the appearance that the IPCr will be in essence “marking its own homework.” This perception risks damaging the credibility of the oversight authority in the long-run.
Given the ‘break-neck speed’ at which the Home Secretary is proceeding, and the sense of urgency induced by the terrorist attacks at Brussels Airport in late March, neither the Government nor Parliament is showing any strong inclination to comprehensively address these concerns. However, if the Bill is enacted in its present form, the fundamental nature of the issues analysed in this post indicate that the IPCr and the procedures by which it operates may have to be revisited again in the post-RIPA world.
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: Putting the Investigatory Powers Commissioner in Focus (Part II)’, U.K. Const. L. Blog (15th Apr 2016) (available at https://ukconstitutionallaw.org/))