Cian C. Murphy & Natasha Simonsen
The Government has published a draft Bill on Investigatory Powers that it hopes to see through Parliament within a year. If it becomes law, the Investigatory Powers Bill will replace much, but not all, of the Regulation of Investigatory Powers Act 2000, as well as the Data Retention and Investigatory Powers Act 2014.
It is the Government’s response to the Edward Snowden revelations, and to three different reports that made almost 200 reform recommendations between them.There will be much debate about the powers set out in the draft Bill. It proposes to give certain powers of the intelligence and security services a (new) legal basis in statute and will consolidate much of the law in this field. While the nature and extent of these powers is open to disputation, if there are to be such powers, it is surely better that there is avowal and regulation, rather than secrecy and denial.
That the Bill does not consolidate, or replace, all of the law on all investigatory powers is perhaps regrettable (see Freedom from Suspicion by JUSTICE). In particular, much of the rather torturous Regulation of Investigatory Powers Act 2000 remains. However, in today’s new technological landscape, a degree of complexity in the legal framework was inevitable. In any event, an attempt to recast the entire field of law in a single Bill might have led to death by a thousand amendments.
The draft Bill is an intricate construction of legal prose that will reshape Britain’s investigatory powers in ways both simple and profound. We can guess at its likely impacts, postulate as to its strengths and weaknesses, but a snap judgment would be inappropriate. The draft Bill’s apparent strengths are in relation to surveillance oversight, authorisation, and redress procedures. But the draft Bill also has its flaws. These include the introduction of quasi-judicial but not judicial authorisation of warrants, and the omission of so many sensible potential reforms to the Investigatory Powers Tribunal.
There is much too much in the draft Bill to cover in its entirety here. We focus on three key aspects in this first brief response. These are: first the creation of a new oversight body; second, the authorisation regime for interception of communications; and third, the too-modest reforms of the Investigatory Powers Tribunal. We will save other significant aspects of the Bill, and in particular the controversial question of the retention of telecommunications data, for another day.
An Investigatory Powers Commissioner
Perhaps the most visible change, or at least the most public one, is the abolition of the Interception of Communications Commissioner, the Chief Surveillance Commissioner, and the Intelligence Services Commissioner. In their place will be a new office: an Investigatory Powers Commissioner, a “powerful, outward-facing super-regulator”, in the words of the Independent Reviewer of Terrorism Legislation.
We do not think it hyperbole to suggest that the satisfactory operation of the Commissioner’s office may be the single most significant factor in the success of the new arrangements. The draft Bill document explains the office’s role as follows:
“The IPC will be a senior judge and with his supporting staff will have three key roles. First, to authorise and approve the use of investigatory powers. Judicial Commissioners, who will be serving or former High Court judges, will undertake this role. Secondly, there will be an inspection role. The IPC will audit compliance and undertake investigations. Judicial Commissioners will undertake this role and will be supported by a team of expert inspectors. Thirdly, the new Commissioner will have a clear mandate to inform Parliament and the public about the need for and use of investigatory powers.”
This is a significant burden to place upon one office. To perform all three functions, the office will need strong legal powers, adequate financial and other resources, and a working culture that ensures that its authorisation function does not undermine its audit, investigation, and public information functions. A division of labour within the Commissioner’s office may make this triple role possible, but the proposal expects the IPC as a whole to be a self-critical, reflexive, institution in a field where such a culture has proven difficult to create and sustain.
There is some reason to be optimistic – or at least to prevent an early frost from nipping optimism in the bud. The Interception of Communications Commissioner’s Office (IOCCO), likely to be reborn as part of the IPC, has taken significant steps in recent years to improve transparency and increase public awareness about its functions. As its Head, Joanna Cavan, said to JUSTICE & King’s College London on Monday, “we need to continue to challenge and push the boundaries to achieve more openness and transparency.”
On the model that the Home Secretary proposes, the IPC will have to do that and much more besides. The appointment of Sir Stanley Burton as the Interception of Communications Commissioner on the same day as the draft Bill was published was a savvy move – in particular given his experience with information technology and the law. And yet his office’s days are numbered. Parliament’s scrutiny of the draft Bill must not just focus on the headline items of powers, authorisation, and redress – it must also consider how to establish an effective oversight body in a field where there are plenty of international comparisons but there is no ideal model.
The Authorisation of Interception Warrants
A key concern with existing law is the mechanism for the authorisation of warrants to intercept communications. Interception is, the draft Bill document tells us, “the making available of the content of a communication – such as a telephone call, email or social media message – in the course of its transmission or while stored on a telecommunications system”. This is, perhaps alongside equipment interference, the most acute power in the draft Bill – it is the sharp end of surveillance.
The draft Bill provides that there may be interception on various grounds: because of national security interests, to prevent or detect serious crime, in the interests of Britain’s economic well-being (so far as such interests are relevant to national security), or in furtherance of an international mutual assistance agreement. Interception may be done by police services, and by the intelligence and security agencies. The key question is – on whose say-so?
Section 14 of the draft Bill sets out the Secretary of State’s power to issue interception warrants. She may do so where she considers that it is necessary and proportionate to do so, where general safeguards exist, and where – except in an emergency – there has been approval by a ‘Judicial Commissioner’. This final condition is the Bill’s innovation and may be seen as inspired by both the Anderson Report and the RUSI Report (although it does not give direct effect to either). It is, the Home Secretary claims, a “double-lock”.
The requirement that the Secretary of State’s approval must be accompanied by the approval of a Judicial Commissioner introduces a quasi-judicial element to the authorisation of such warrants. We say quasi-judicial because, although the Judicial Commissioner will hold, or have held, judicial office, the process is one of ex-parte review. The Commissioner must consider the warrant’s necessity, and its proportionality, and “must apply the same principles as… on an application for judicial review”. Refusal by a Commissioner to approve a warrant requires the Commissioner to give “written reasons”. There is an appeal of sorts from a decision to refuse to issue a warrant to the Investigatory Powers Commissioner.
The interaction between the two parts of the “double-lock” merits consideration. First, although a Judicial Commissioner is involved, their role is to review a decision already taken and not to take the decision in the first place. This twist – to review rather than to decide – could be crucial. A Judicial Commissioner may be reluctant to overturn a decision already taken even if they would come to a different conclusion if they were the initial decision-maker. This raises questions as to which principles of judicial review would apply – and how? Should the Judicial Commissioners be deferential, owing to the national security context, or should they rather apply ‘anxious scrutiny’ because of the degree of interference with rights?
Second, given the likely high volume of warrants (reportedly 2,500 were issued last year), will the requirement to give reasons for refusals (although not for approval) affect the decision-making process? We think it appropriate that a refusal could be issued with reasons to follow later. But where time is of the essence, and the Secretary of State wishes to appeal the decision of the Judicial Commissioner to the Investigatory Powers Commissioner, then the reasons for refusal would be salient to those deliberations. The effective institutional pressure to approve a warrant might well increase under such circumstances. Even if it did not, the reasons given may not be as compelling if written by midnight oil as they would be if done in the clear light of day.
Warrants for “Urgent Cases”
A further provision, for warrants for “urgent cases”, may be a cause for even greater concern. A warrant, in an “urgent case”, may be given without approval of a Judicial Commissioner. This may be done if the Secretary of State considers that “there was an urgent need to issue it”. In such an instance a Judicial Commissioner must be “informed” and, within five days, consider whether to approve the issuance. If the Judicial Commissioner refuses to approve the warrant then it ceases to have effect. The Judicial Commissioner must then determine what is to be done with the materials collected under the warrant – they may be destroyed or their retention or use may be subject to restrictions.
To what extent might “urgent cases” become the norm? It is reasonable for authorities to be able to quickly obtain authorisation in certain circumstances. However, the fact that the Secretary of State may certify cases as “urgent”, and allow an operation to commence without judicial approval, could significantly impair scrutiny by Judicial Commissioners. The risk of too much deference is likely greater if an operation has begun: there is a subtle but significant difference between the creation of an interference with privacy and the continuation of one.
It is therefore unsurprising that Sam Lincoln recently wrote in sceptical tones about the appropriateness of retrospective judicial authorisation and that Ben Emmerson QC, the UN Special Rapporteur in this field, has replied to the draft Bill with a brief but emphatic statement that retrospective authorisation “is better than no judicial review at all, but it falls short of the requirement to place the power to issue a warrant into the hands of an independent judge, which is where it belongs”. If “urgent cases” become too common, and if Judicial Commissioners become too deferential, then the “double-lock” may open with a single key.
The Investigatory Powers Tribunal
Perhaps nowhere in the draft Bill is there as much scope for useful common-sensical improvements as in relation to the Investigatory Powers Tribunal (IPT). The IPT is the only court or tribunal with jurisdiction over the intelligence agencies, and it is a deeply flawed institution. Established under the Regulation of Investigatory Powers Act 2000, the Tribunal has spent the past fifteen years outside the regular structures of British justice. Indeed, insofar as architecture and geography matter in justice (and they do), it is remarkable that until recently the Tribunal was located inside Whitehall. Until Liberty v GCHQ was handed down in February this year, the Tribunal had never once found against the government.
Section 180 of the draft Bill confers, for the first time, a right of appeal from the IPT to the Court of Appeal and ultimately to the Supreme Court. On the timing we cannot help but note the correlation between the recent series of adverse rulings against the Government and the newfound willingness to introduce a right of appeal. Yet it is a welcome reform regardless of the motivation. A right of appeal is an important step towards the normalisation of the IPT as part of the British justice system. The integration of the Tribunal into the hierarchy of courts may improve the Tribunal’s jurisprudence and may inculcate a stronger culture of legality in its operation.
Nevertheless, a right of appeal will not, of itself, solve other deficiencies. The Tribunal’s proceedings are often, although not always, closed to the public. It takes decisions in proceedings from which the claimants’ lawyers are excluded, its judgments are often closed, or partly closed, and it has no power to order the state to disclose any document.
The European Court of Human Rights undertook a too-cursory review of the Tribunal’s compliance with Article 6 ECHR in Kennedy. Despite its seeming approval of the Tribunal’s operation it remains unlikely that the Tribunal’s operation offers adequate protection of fair trial rights.
A challenge from the Tribunal’s decision in Liberty, pending before the European Court of Human Rights, will give the European judiciary the opportunity to consider the law once more, and could require Parliament to effect further changes.
But we can just as easily look to the recent case law of the Supreme Court for guidance on what is appropriate. The common law right to a fair hearing, as seen in Osborn and in A v BBC, amongst others, may demand greater fairness than the IPT provides. A right of appeal is certainly an improvement on the status quo but it will not remedy the violation of rights that these other due process deficiencies cause.
Additional shortcomings include the absence of an appropriate appointment process for IPT judges, and the prohibitive presumption against the Tribunal hearing complaints made more than a year after the alleged interference with privacy. The Investigatory Powers Bill could address the procedural shortcomings as well as these other failings and could do so before a judgment from the European Court makes it obligatory. It would thereby prevent a further headache for the Government in its troublesome relationship with “Europe” – yet another reason to act.
Britain’s Investigatory Powers Act will be the subject of study, and likely of emulation, in other states. It must be precise, intelligible, and fit for purpose – and there is much that can be done to improve this week’s draft Bill.
David Anderson QC welcomes the draft Bill for “putting Parliament back in charge” because it sets out, for the first time, “the totality of the powers used or aspired to by the police and intelligence agencies”.
We would go further. Parliament, its Intelligence and Security Committee, and its Joint Committee on Human Rights, have key roles to play. But it is the public at large that will – by act or acquiescence – shape the final law.
Cian C. Murphy and Natasha Simonson are faculty members at The Dickson Poon School of Law.
This post was amended on 20 November 2015 to include a reference to the European Court of Human Rights’ judgment in Kennedy.