The Authorisation Processes for Interception Activities

February 3, 2016

In this post Lord Carlile CBE QC, Liberal Democrat peer and former Independent Reviewer of Terrorism Legislation, expresses reservations about the role of judges in the ‘double lock’ authorisation process set out in the draft Investigatory Powers Bill. He argues that, to uphold the separation of powers, executive decisions (including issuing warrants) should be for politically accountable Ministers with full access to relevant national security information, rather than for unelected judges. While acknowledging that judicial involvement in issuing warrants may solve an otherwise intractable political problem, Lord Carlile calls for any judges involved in the double lock procedure to to be trained in national security practice and supports the application of judicial review principles set out in the draft Bill.

Are the proposed authorisation processes for such interception activities appropriate? Is the proposed process for authorising urgent warrants workable?

1. I have some concerns about the proposed authorisation processes. It is all too easy a refuge for Ministers to pass responsibility for what is clearly and in principle Ministerial action to the judiciary. Where possible, this should be resisted. There are good reasons for the separation of powers as operated in the United Kingdom. Judges are there to settle disputes independently on ethically based legal principles, not to decide on the merits how policy is to be implemented. An example of the way the separation is implemented is the refusal of the Supreme Court to read the Prince of Wales’s so-called ‘black spider letters’ when adjudicating of the lawfulness of the Attorney General’s decision to veto their disclosure under the Freedom of Information Act 2000.

2. Consistent with principle the issue of warrants should be for Ministers alone. They have the material information available at all times. They can be briefed fully by officials from all relevant parts of government, with impartial advice provided in their private offices. This may include extremely sensitive national security information. On potential Parliamentary issues, they can take the advice of their Parliamentary Private Secretaries if appropriate.

3. Ministers are subject to levels and layers of accountability more exposing, personal and potentially damaging than anything applicable to judges. Fundamentally, Ministers are accountable to Parliament. This includes accountability to Select Committees, to the relevant House, and ultimately to their electorate. Ministers seen to be inefficient or troublesome can be reshuffled at short or even no notice.

4. It is not the normal or even acceptable role of a judge to make executive decisions. They are not elected, and rarely removed. The accountability of judges through the appeals process is thorough, but not robust in the sense understood by Parliamentaraians.

5. The damage caused by the muddying of the separation of powers is illustrated starkly by ample evidence of judicial partiality in some of the States of the former Soviet Union, the Balkans and elsewhere. A topical example is the clear impossibility of bringing to justice those in Russia responsible for the death in London of Alexander Litvinenko.

6. 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. In reality, it will be crossed.

7. We have to be frank about this aspect of the proposals. Because there is a degree of mistrust (in my view misplaced) of the SIAs and (generically) Ministers, an additional layer of verification is seen as necessary.

8. As stated above, it is all too tempting to regard judges as a readymade solution to form that layer. In addition, there is the real danger of pragmatic incrementalism, by which judges are given increasing roles outside their proper range, and well outside their daily competencies.

9. Whilst reluctantly I am prepared to accept the involvement of judges as provided in the draft Bill, I hope that the Committee will recognise that the judicial responsibility should be only one they are fully qualified to undertake, in an area they understand. Therefore, it is important that judges are properly trained in national security practice, the nature and detection of terrorism and other issues relevant to warrantry applications.

10. Further, judicial activity should be confined to what are properly judicial roles. This is why the Government should be held to be correct in its view that judicial review principles should apply. The proper question is whether the Minister acted lawfully in issuing the warrant, not whether the judge agrees with the issue of the warrant: the latter question clearly would place the judge in the position of a Minister. Judicial Review principles are familiar to the judiciary, and are based on well understood principles founded on reasonableness and proportionality.

11. Within the considerable reservations expressed above, the proposed double-lock authorisation is acceptable only as a solution to an otherwise intractable political problem.

Lord Carlile CBE QC is a Liberal Democrat peer and between 2001-2011 served as the Independent Reviewer of Terrorism Legislation.

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