A Change of Historical Proportion
On 11 February 1573, the Principal Secretary of State to Queen Elizabeth I, Sir Francis Walsingham entered into his journal: “I receyved certain lettres intercepted by the Maior of Dover, which I retorned agayne.” Almost a year later, on 17 January 1574, Walsingham would note again: “I pursued certain lettres intercepted sent unto me by the Lord Tresorer.” These entries from the ‘Journal of Sir Francis Walsingham from December 1570 to April 1583’ are two examples of many references to surveillance activities which appear to have Elizabeth I’s one time Secretary of State at their core. Walsingham’s subjective account supports the thesis that, at least as far back as the late Tudor period, the control (and perhaps even the authorisation) of the surveillance of communications has historically been associated with the office of Secretary of State.
The first public reference to the Secretary of State authorising the opening of letters is in the Proclamation of May 25th, 1663, which forbade the opening of any letters or packets by anybody, except by the immediate warrant of the Principle Secretary of State (para 9).
The Committee’s Report was inconclusive as to whether this practice had its foundation in either statute, recognition through the common law, or the Prerogative. However, the Committee did come close to endorsing the latter source. It speculated that:
[T]he power exercised [by the Secretary of State] from the very earliest times is a prerogative power to intercept, examine, and disclose for certain purposes connected with the safety of the state or the preservation of public order, any message carried by the Crown: and this prerogative attached to the new methods of carrying messages that were undertaken by the Crown in the nineteenth century by means of the telegraph and the telephone (para 21).
Notwithstanding the lack certainty over the exact origins of the Secretary of State’s power to authorise surveillance warrants in the communications context, this authority became entrenched through its ‘recognition’ in successive statutory provisions regulating postal, and later telecommunications services. An early example was section 40 of the 1710 ‘Act for Establishing a General Post-Office for all Her Majesties Dominions’ which provided that:
No persons shall presume wittingly, willingly, or knowingly, to open detain, or delay, or cause, procure, permit or suffer to be opened, detained or delayed, any letter or letters delivered into the General or other post office except by an express warrant in writing under the hand of one of the Principal Secretaries of State for every such opening detaining or delaying.
As contemporary provisions would demonstrate, the authorisation of this type of surveillance became a task exclusive to the office of Secretary of State, in particular, the Secretary of State for the Home Department. In her 2014 ‘Defence and Security’ Lecture at Mansion House, then Home Secretary Theresa May acknowledged that, the authorisation of warrants ‘occupies more of my time as Home Secretary than anything else.’ Section 5 of RIPA which currently makes provision for the authorisation of “targeted interception” warrants provides an archetypical example of what has hitherto been the unilateral role of the Secretary of State in this regard. Given this account, why then are we on the verge of significant change to this historically entrenched position?
Explaining and Justifying the Change
The Investigatory Powers Bill (“the Bill”) currently at the “Report Stage” in the House of Lords is set to alter the history narrated above. As noted in a previous post on this blog, the Bill will create an Investigatory Powers Commissioner, tasked among other things, with the ex ante scrutiny of warrants permitting the surveillance of communications. As the ‘double-lock’ label suggests, the Bill will introduce a form of judicial scrutiny for warrants authorising the most intrusive surveillance techniques including (“bulk” and targeted) interception. Thus providing an additional layer of oversight to that provided by the Secretary of State in the current arrangements.
At the Report Stage in the Commons, the then Minister of State for Security, John Hayes, attempted to capture the momentousness of this change in constitutional terms. He cast the reform as ‘ground-breaking in terms of the balance struck between the role of the executive and the role of the judiciary.’ This post attempts to place this change into an alternative narrative of constitutional change. I argue that the introduction of a judicial element to the authorisation process of these warrants evinces a brand of constitutionalism which puts a premium on “institutional capacity” considerations.
An attempt to explain this reform through constitutional theory has already been made on this blog by Nicholas Clapham. Writing before the publication of the Draft version of the Bill, Clapham examined the introduction of judicial scrutiny of the relevant warrants through the prism of the doctrine of the separation of powers. In what appears to be an application of the pure conception of the doctrine, Clapham concluded that, ‘the proposals [to introduce judicial scrutiny of interception warrants] represent a bold challenge to the orthodox position.’ The implied argument being that this was a transfer an executive function to the judiciary.
Similarly, in making a case against the change, the former Independent Reviewer of Terrorism Legislation, Lord Carlile, also invoked the separation of powers:
If judges are to be involved in warrantry, indubitably it will raise questions of the separation of powers being compromised – of the red line being crossed by judges making what constitutionally are executive decisions (para 6).
Therefore, before setting out the “institutional capacity” rationale, I will first explain why this change is not best understood through the prism of the separation of powers. This is principally because of the ‘circularity’ of the doctrine, and the fact that its application in this context eschews an analysis of which branch has the ‘capacity’ to undertake the particular function in question.
The Limits of a the Separation of Powers Analysis
An intuitive appeal to the separation of powers is understandable. This is a doctrine no longer on the margins of constitutional theory, but is increasingly gaining traction both in the academy and among jurists in explaining the “the contemporary [UK] Constitution.” This is evident in Lord Steyn’s extra-curial claim that, ‘subject to well-known anomalies, our constitution is squarely based on the doctrine of separation of powers.’ The doctrine is also increasingly invoked on the bench in justifying or explaining the allocation of functions between the branches of the state. The most recent, and vivid example of this is Lord Neuberger’s judgment in Evans. In that high profile case, without expressly saying so, Lord Neuberger relies on a particular understanding of the separation of powers as part of his ratio for quashing the A-G’s certificate issued under section 53 of FOIA. He emphasises that:
It is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone including (indeed it may fairly be said, least of all) the executive [para 52]
However, this assessment is compatible with the partial account of the doctrine which envisages a system of ‘checks and balances’ between the branches of the state. Adherence to the pure or strict description of the doctrine could arguably provide a rationale for not allowing judicial oversight over an executive act sanctioned by statute.
The same circularity afflicts a separation of powers analysis to the introduction of judicial scrutiny of surveillance warrants. It can be deployed to support arguments for, or against the reform, depending on the formulation of the doctrine relied upon. Just as Lord Carlile invoked the doctrine in framing his argument against change, in representations to the Anderson Review, proponents of judicial scrutiny of warrants also argued that:
It is difficult to reconcile [the status quo] with the doctrine of the separation of powers and renders that position as being constitutionally inappropriate as it grants the executive too much power (para 12.47).
Furthermore, the explanatory force of the separation of powers in this context is limited by the ‘rigid’ labelling of governmental functions as executive, judicial or legislative. This well-established critique is noted by Roger Masterman in his text on the subject:
Such a theory presupposes that all governmental functions can be neatly placed in either the legislative, executive or judicial category, and that each branch of government may not exercise power which falls outside those corresponding functions (p. 11)
As Masterman hints, the complexity of the functions exercised by agencies of the modern state means that, both the taxonomy and allocation of functions envisioned under the separation of powers is of little applicatory utility. At Second Reading in the Commons, the former cabinet minister Owen Paterson categorised the scrutiny of surveillance warrants was an executive function, relying in large measure on the separation of powers. He argued that:
According to the separation of powers, it is clear that [judges] should not make operational executive decisions that might require personal judgement. The Bill effectively brings judges into the executive, giving them the difficult role of being both scrutineers and executive decision-makers. These roles require very different skills, and according to the separation of powers, they should be kept separate for good reason.
Although it may have been the historical practice, there is nothing intrinsic to the authorisation of warrants which lends it to be exclusively classified as an executive function. The scrutiny of warrants permitting the surveillance of communications can equally be conceived as a judicial function, as has been the long-standing practice in comparable jurisdictions. This is a comparative element emphasised by Lord Paddick during ‘line-by-line’ scrutiny of the Bill in Committee in the upper chamber.
A (Better) Institutional Capacity Rationalisation
The notion of “institutional capacity” has been explored to varying degrees by Neil Komesar in the United States, and by Jeffrey Jowell and Jeff King in Britain. The latter two scholars have appealed to this idea as an alternative to the more established language of “deference” and “restraint” used in public law. In Imperfect Alternatives, Komesar develops the idea of institutional capacity as part of a broader theorem of “comparative institutional analysis” to understanding the allocation of functions between agencies of the state.
A pervasive feature of all three accounts is that they explain the allocation of functions between the branches based on their capacity (or ability) to execute those functions. As Komesar explains, ‘a comparative institutional analysis to constitutional theory involves a consideration of the relative strengths and weaknesses of [available] institutions to address the issue involved.’ Therefore, an institutional capacity approach avoids assessing the drawbacks of judicial involvement in the authorisation of warrants in isolation, but considers the strengths and weaknesses of judicial decision-making in this context against the alternative processes i.e. unilateral ministerial scrutiny.
Komesar argues that ‘constitutional scholars ignore the issue of who decides or at least treat it with superficial maxims’ – perhaps like the separation of powers? This is because such doctrines do not satisfactorily account for the nexus between a function and the corresponding institution which exercises it. According to Komesar:
Embedded in every law and public policy analysis that ostensibly depends solely on goal choice is the judgment, often unarticulated, that the goal in question is best carried out by a particular institution. (p.6)
One of the stated “goals” which led to the introduction of judicial scrutiny of warrants was the desire to have a surveillance regime consistent with the right to privacy. This has been made clear by the success of an amendment to include the so-called “over-arching privacy provision (cl. 2(1)-(5))” in the version of the Bill sent to the Lords. The Judicial Commissioners will now have to ‘consider with a sufficient degree of care as to ensure [they] comply with the general duties in relation to privacy imposed by clause 2’ (cl. 23). Therefore, the “institutional choice” made in the Investigatory Powers Bill is that, the “goal” of improved privacy protection is best met by a combination of judicial and ministerial scrutiny of warrants – the double-lock.
Subject to the condition that they must apply “judicial review principles”, the Judicial Commissioners are required to apply the twin test of necessity and proportionality, the identical test applied by the preceding Secretary of State. It is also the routine judicial application of this two-pronged test which gives judicial decision-making relative strengths when juxtaposed against alternative processes e.g. scrutiny by the Secretary of State on her own. This institutional consideration is not a fact lost on the Bill’s sponsors. The Government Minister responsible for shepherding the legislation through the Lords, the Earl Howe, acknowledged that:
The Judicial Commissioners will oversee the use of these powers and will ensure that they are used only when it is necessary and proportionate to do so. The Commissioners are the ultimate check against abuse.
As Mark Elliott observed on this blog, ‘proportionality [which includes an element of assessing necessity] is now relatively well-established in domestic law’ as part of human rights adjudication under the ECHR/HRA scheme. Therefore, the ‘balancing’ of competing interests which is central to the function of scrutinising the relevant warrants is an exercise senior judicial official already have the capacity to undertake.
This is not to assert that other decision-making processes other than the adjudicative process do not have the capacity to undertake the same function. As King explains, an “institutional capacity approach” is not absolutist in its allocation of functions to agencies of the state. It tolerates a degree of institutional ‘comity’ or co-sharing of functions between the available agencies. However, this division of labour has to be informed by a comparative analysis of the merits and demerits of each potential institutions in relation to the relevant function. Therefore, an institutional capacity explanation/justification of the reform in the IPBill does not exclude the potential capacity of a Minister to exercise the same function, it merely appreciates that an alternative institutional process also has particular strengths in relation to the same function.
Of course a brand of constitutionalism steeped in the idea of institutional capacity challenges what have hitherto been the dominant paradigms in domestic constitutional thought. These paradigms envisage either a ‘zero-sum’ allocation of functions (i.e. a unipolar sovereignty theory) or an a priori allocation of functions to particular institutions of the state (as captured by the idea of the separation of powers.)
Another late-Tudor/early-Stuart figure currently being invoked for rhetorical measure in contemporary debates with greater frequency is Sir Francis Bacon. In his essay Of Judicature, Bacon gives an account of the 16th century judicial role relative to that of the executive (as constituted at that time), and comes to the much-cited conclusion that, ‘let them [judges] be lions, but lions under the throne.’ Yet in the same piece, Bacon also observed that:
Therefore, it is a happy thing in a state when kings and states do often consult with judges; and again, when judges do often consult with the king and state: the one, when there is matter of law intervenient in business of state, the other, when there is some consideration of state intervenient in matter of law.
This indicates perhaps that the ideas of institutional capacity and comity are not novel descriptors of what really goes on in our Constitution. And it is through the prism of those ideas that, the impending introduction of ex ante judicial scrutiny of these warrants can be best understood.
@byronkaremba is a PhD Student at the University of Leeds School of Law. He would like to thank members of the G+T Centre for Public Law at UNSW for feedback which informed elements of this post. All errors and assertions are his own.
(Suggested citation: B. Karemba, ‘The Investigatory Powers Bill: Introducing Judicial Scrutiny of Surveillance Warrants and the Broader Constitutional Context (Part III)’, U.K. Const. L. Blog (30th Sept 2016) (available at https://ukconstitutionallaw.org/))