The draft Investigatory Powers Bill 2015: the “double lock” and the “principles of judicial review”
In this post Professor Christopher Forsyth (University of Cambridge) comments on the “double lock” proposals set out in the draft Investigatory Powers Bill, which would require Judicial Commissioners (High Court judges) to approve decisions of the Home Secretary to issue interception warrants.
Forsyth considers that if the judiciary is involved in important questions about national security, judges will be drawn further into the political realm.
Forsyth discusses the way judicial review might be applied in this context. He considers that judges would be likely to show deference to the Home Secretary’s authorisation of warrants in the fields of national security and “safeguarding the economic well-being of the UK”, but calls for greater clarity in the drafting of the Bill to ensure that such decisions remain rightly entrusted to the Executive, which would allow for matters of high policy and national security to continue to be taken into account.
1. This post contains my edited and corrected evidence given to the Joint Committee on the Draft Investigatory Powers Bill on Monday 21 December 2015 on the “double lock” and the “principles of judicial review”. The “double lock” refers to the provision in clause 14 of the Draft Investigatory Powers Bill requiring that before the Home Secretary can issue a “targeted interception warrant” (authorising the interception of the contents of a communication) the decision to issue the warrant must, save in urgent cases, have been approved by a Judicial Commissioner (a High Court Judge). Clause 19 provides that in approving the decision to issue the warrant the Judicial Commissioner “must apply the same principles as would be applied by a court on an application for judicial review”.
2. My first comment on the “double-lock” is to sound a note of caution at the involvement of Judicial Commissioners in the process. That judges are independent and impartial and have an enviable reputation for probity is not in doubt. They are widely trusted by the public. On the other hand, conventional wisdom at least holds that the other two branches of government are not similarly trusted. The “double-lock” might thus be seen as an attempt to exploit the reputation of the judiciary so as to cast the mantle of their trustworthiness over the procedure of interception.
3. My concern is that this may harm the reputation of the judiciary. It is not impossible under this proposed framework to imagine circumstances where after some outrage and the death of innocents a Home Secretary, facing an angry House of Commons, might explain that he or she wanted to put the wrongdoers under surveillance in order to find out what they were up to but was prevented from doing so by the Judicial Commissioner. This would cast the judiciary into the centre of a political maelstrom with obviously deleterious consequences. Put less starkly, if the judiciary is involved in these important decisions about national security, it may not be able to avoid appropriate accountability when things go wrong.
4. I would like to make a further comment on the case made (by David Anderson QC in his Report) in favour of a ‘Judicial Commissioner only’ procedure (i.e. no involvement of the executive at all). This is largely made on the basis that the number of warrants that have to be approved is too large (approximately 2,500 per annum, or about 7 per day) for the Secretary of State to deal with by herself. Given the range of other responsibilities of the Secretary of State this is a cogent case for widening the number of persons authorised to approve warrants (e.g. by delegation within the Department or through the authorisation of Ministers of State to approve warrants) (cf clause 22 still requiring the decision to be taken by the Secretary of State personally save in urgent cases).
5. But this is not a good case for shifting the decision-making power from the executive to the judiciary. Judicial resources are also under pressure. Thus the case for the “double lock” rests not on principle but on pragmatic grounds, primarily, the lack of trust reposed by the public in the executive and legislative branches of government.
6. An important point that I would make is that a distinction should be maintained between the role of the Secretary of State in authorising warrants and the role of the Judicial Commissioner in approving the same. The Secretary of State will properly take into account matters of high policy and national security which it will be inappropriate for a Judicial Commissioner to take into account; e.g. when deciding whether to intercept the communications of a foreign diplomat, the Home Secretary might have to weigh the potential disruption of relations with another state against the usefulness of the information that may be obtained.
7. This is recognised in the Bill by the requirement that in approving warrants the Judicial Commissioner “must apply the same principles as would be applied by a court on an application for judicial review” (clause 19). So I turn to consider what principles comprise “judicial review principles”. This ought to be clearer than it is.
8. In the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service  UKHL 9) Lord Diplock in canonical words said this: ‘Judicial review has I think developed to a stage today …. [that] one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” ’
9. Much learning attends each of these grounds but this need not currently concern us. The crucial point is that, unless the judicial review claimant showed “illegality,” or “irrationality” or “procedural impropriety”, the decision would not be able to be challenged by way of judicial review. There was in other words an area in which the administrative decision-maker was autonomous: there would typically be a range of possible outcomes to the decision-making process and he or she was free to choose the one that he or she judged best. That decision-maker (in our context, the Home Secretary) would be accountable to Parliament for the exercise of that choice but would not be accountable to the law for that exercise (unless one of the “grounds” were shown).
10. Put in other words, judicial review was about the way in which a decision was made not about the merits of that decision. The judge (on judicial review) has the final say if one of the grounds is shown; if one of the grounds is not shown the Secretary of State has the final say.
11. Subject to one qualification this classic approach to judicial review would fit in quite well with “the double lock” (as described above): the Secretary of State would determine whether the interception proposed was justified taking into account national security, etc and the Judicial Commissioner would then determine whether the proposed interception was lawful (i.e. that none of the grounds of judicial review were present). That qualification is “procedural fairness”: from the nature of things the subject of the interception cannot be given a hearing before the interception takes place. So this is one principle of judicial review that will have to be disregarded. The consequence of this is that the judges might be inclined to review more intensively on the other grounds to make up for the deficiency in procedural justice.
12. A further difficulty is that in the years since the GCHQ case the law of judicial review has changed. Most prominently judicial review has changed with the rise of the concept of proportionality fuelled by the Human Rights Act 1998.
13. While the principle of proportionality is easy to state – and difficult to disagree with at the abstract level (an administrative measure must not be more drastic than necessary) or to sum up in a phrase (not taking a sledgehammer to crack a nut), applying the principle in concrete situations is less straightforward. Views can and do differ on the size and importance of the nut and the appropriateness of the hammer chosen. I simply make three points:
- First, the outcome of the test of proportionality is often very uncertain; reasonable people (whether judges or ministers) may make different judgments on whether certain inchoate evidence that X might be planning an outrage justifies the interception of X’s telephone calls.
- Second, proportionality necessarily implies a narrowing of the area of the decision-maker’s autonomy; there is a greater (but indistinct) area in which the judge rather than the Secretary of State has the final say.
- Third, under the “double lock” there will be two hurdles to be overcome before an interception. The Secretary of State needs to be satisfied that the warrant is necessary and proportionate; and then the Judicial Commissioner needs to be satisfied that the warrant is necessary and proportionate. Although one supposes the Secretary of State and the Judicial Commissioner would very often reach the same conclusion, as a matter of logic the two hurdles must mean that there would be some cases in which if it had been up to the Secretary of State alone a warrant would have been authorised.
14. There is a further complexity: the doctrine of “deference”. This is the idea that the Judicial Commissioner may defer to the judgment of the Secretary of State and so uphold the Secretary of State’s authorisation of a warrant in circumstances in which this might not otherwise be the case. “Deference” is based on the judicial appreciation of the Secretary of State’s greater institutional competence (in the form of the collective knowledge and skill of the department and the intelligence agencies) and the fact of the Secretary of State’s accountability to Parliament. It carries no connotation of judicial servility to the executive.
15. Now, on the one hand, it may be suggested that because in interception cases article 8 (right to privacy) will always be engaged this would justify intense judicial review with little scope for deference given judicial solicitude for the protection of human rights. On the other hand, in the past once a Secretary of State showed that he or she acted for reasons of national security the courts have generally shown a considerable degree of deference. See, for instance, On balance, it seems to me that there is likely to be considerable deference shown to the Home Secretary’s judgment in the fields of national security and “safeguarding the economic well-being of the UK”. This means the Secretary of State would retain significant autonomy in authorising warrants under the Bill. But the boundaries of the area in which the Secretary of State would have the final say remains ill defined. Greater clarity in the drafting of the Bill would require more than the current reference to the principles of judicial review.
16. Some, I believe, are in favour of excising the reference to the principles of judicial review. This is likely to mean that there is no distinction between the role of the Secretary of State and the Judicial Commissioner. In which case why are both needed? I must be clear and state that in considering interception on the grounds of national security I accept the classic case that this is not a judicial task but is rightly entrusted to the executive accountable to the representatives of the people. It may be that thought should be given to improving that accountability.
17. Finally, I draw attention to clauses 169(5) and (6) of the draft Bill. Clause 169(5) provides that “In exercising functions under this Act, a Judicial Commissioner must not act in a way which is contrary to the public interest or prejudicial to— (a) national security, (b) the prevention or detection of serious crime, or (c) the economic well-being of the United Kingdom.” And clause 169(6) is framed in these terms: “A Judicial Commissioner must, in particular, ensure that the Commissioner does not— (a) jeopardise the success of an intelligence or security operation or a law enforcement operation, (b) compromise the safety or security of those involved, or (c) unduly impede the operational effectiveness of an intelligence service, a police force, a government department or Her Majesty’s forces.”
18. These provisions look like a statutory spelling out of the correct attitude of the Judicial Commissioner to the matters (such as “national security”) properly for primary decision by the Home Secretary. But unfortunately clause 169(7) provides “Subsections (5) and (6) do not apply in relation to the functions of a Judicial Commissioner of— (a) deciding whether to approve the issue, modification or renewal of a warrant or authorisation….”. So there is no provision, as the Bill currently, stands for statutory confirmation that the Judicial Commissioners should defer to the judgment of the Secretary of State on questions of national security.
Christopher Forsyth is Professor of Public Law and Private International Law at the University of Cambridge