This was my written submission to the Joint Committee on the Draft Investigatory Powers Bill. The committee was established in November 2015 to consider the draft Bill. The committee received a total of 148 written submissions and took oral evidence from 59 individuals. It published its report in February 2016.
The committee’s report referred to this evidence in relation to the operation of judicial commissioners (p.109) and particularly in relation to protections for the communications of Members of Parliament, the so-called ‘Wilson doctrine’, (pp.135-6).
Submission from Dr Andrew Defty, Reader in Politics,
School of Social and Political Sciences, University of Lincoln
- This submission deals primarily with the question of whether the powers set out in the draft bill are sufficiently supervised, and focuses in particular on interception by the intelligence and security agencies. It also offers some comments on the issue of protections for MPs’ communications and the status of the so-called ‘Wilson Doctrine’.
- The submission draws upon the findings of a major research project on parliamentary scrutiny of the intelligence and security agencies carried out by a team of researchers at the University of Lincoln, which has been published in a number of journal articles and a book.[1] This submission also reflects comments made in a submission to the Investigatory Powers Review conducted by David Anderson, QC. The research on which the submission it based was funded in part by the Leverhulme Trust and examined the various mechanisms by which parliament and parliamentarians seek to scrutinise the intelligence and security agencies, including through legislation, debates, the work of the Intelligence and Security Committee and other parliamentary committees and the tabling of questions and motions. In addition to a detailed examination of parliamentary business (reports, debates, EDMs and questions), the research drew on interviews with more than 100 MPs and Peers, including four former Home Secretaries, six former Foreign Secretaries, current and former members of the Intelligence and Security Committee, and with senior officials in the Foreign Office and the Cabinet Office. This submission also draws upon some follow-up research on the impact of recent reforms on the operation of the parliamentary Intelligence and Security Committee.
Nature of the oversight framework
- Intelligence oversight is generally defined as a process of supervision designed to ensure that intelligence agencies do not break the law or abuse the rights of individuals at home or abroad. It also ensures that agencies are managed efficiently, and that money is spent properly and wisely. There is, however, no one model of oversight. It does, of necessity, vary from country to country, and may be affected and defined by a state’s history, constitutional and legal systems, and political culture. Nevertheless, it is possible to identify a range of institutions and actors that may be involved in the oversight of intelligence and security agencies. Oversight is typically seen as taking place at several different levels: internal oversight at the level of the agency; executive oversight by the government; legislative oversight by democratically elected politicians, usually through specialist legislative oversight committees; external oversight by independent bodies such as the judiciary; and oversight by civil society through actors such as pressure groups and the media.
- Britain has a patchwork of oversight arrangements involving different actors with different roles. This multi-faceted approach has a number of advantages. A combination of organisational and functional oversight serves to overcome the potential accountability gaps when oversight arrangements are tied to specific agencies. A combination of Executive and legislative scrutiny is an important check on legislative power, and the use of external review processes involving judges, not only helps to ensure that covert activities are carried out within the law, but may also serve to lift oversight above political partisanship. However, there are also a number of potential problems with what may be seen as a patchwork approach. It is important to ensure that as changes take place, both organisationally and functionally, that oversight mechanisms are adapted to keep pace with change and gaps do not emerge. It is also important to remember that each level of oversight has a distinct and important role in terms of providing effective and credible oversight and that changes in the role and powers at one level do not compensate for deficiencies at another level. For example, in the context of the draft Bill changes to the authorisation process do not obviate the need for strong post hoc review. In considering reform of any aspect of the regulatory framework consideration should be given to the framework as a whole to ensure that accountability gaps do not emerge.
The authorisation process for the issue warrants
- The draft Bill restates the principle that warrants for interception by the intelligence and security agencies are issued by a Secretary of State. The involvement of Ministers at this point is important in terms of maintaining democratic accountability and legitimacy. In our research we interviewed a number of those with direct experience of the warranting procedure, including former Home and Foreign Secretaries. These individuals testified as to the robustness of the warranting process, the seriousness with which they approached the task and the amount of time they devoted to reviewing every warrant. However, the existing warranting process does raise a number of concerns. It is anomalous that warrants for the interception of communications and covert intrusion, actions which involve the state in the most serious intrusion of individual liberties, are signed by a Government Minister and not a judge. Moreover, given the large number of warrants signed each year there are also obvious concerns about the amount of time available to a busy Secretary of State to scrutinise each warrant in detail. In our submission to David Anderson’s review we recommended that an additional layer of independent judicial scrutiny at the point at which warrants are signed may help to relieve the burden on hard-pressed Ministers and also provide more effective scrutiny of the process. The draft bill’s inclusion of a ‘double-lock’ procedure whereby warrants issued by a Secretary of State would require approval by a Judicial Commissioner before coming into force is a significant improvement on the current arrangements.
- The main potential point of contention would appear to be the stipulation, at section 19 (2), that in approving a warrant, Judicial Commissioners must apply the same principles as would be applied in cases of judicial review. This reflects the recommendations of the RUSI report but not those of the Anderson review. I am not convinced that this represents a significant limitation on the powers of the Judicial Commissioner, particularly when considered alongside section 19 (1). Moreover, judges have consistently shown themselves prepared to exercise considerable rigour and independence in the application of judicial review in other, related, areas such as control orders. Lord Pannick’s recent article in The Times was particularly convincing in this respect.[2] However, the advantages are of this limitation on the role of Judicial Commissioners are not clear. If a Secretary of State is convinced of the case for interception, as they always claims to be, and particularly when a process exists to challenge the decision of a Judicial Commissioner, then allowing Judicial Commissioners to review the application on the same terms as Ministers would seem to provide a more robust system and one which is less open to criticism.
- In my view a more significant flaw in the proposed authorisation procedure is the mechanism whereby Ministers might appeal against the decision of a Judicial Commissioner. Section 19 (5) states that where a Judicial Commissioner refuses to approve a decision to issue a warrant, the decision may be referred to the Investigatory Powers Commissioner. The authority of the Investigatory Powers Commissioner to approve warrants is set out in section 167 (6), which states that the Investigatory Powers Commissioner will be a Judicial Commissioner. Allowing the Investigatory Powers Commissioner to act as final approval in the issue of warrants represents an undesirable blurring of the roles of authorisation and oversight. It is the role of a Judicial Commissioner to approve the issue of warrants, while the role of the Investigatory Powers Commissioner is to provide post hoc review of this process. The draft Bill makes the Investigatory Powers Commissioner the ultimate authority in decisions about the issue of warrants, whilst also being responsible for reviewing such decisions. It should go without saying that it is not a good idea for those responsible for making decisions, to also be responsible for reviewing their own decisions. While it might be beneficial for the post of Investigatory Powers Commissioner to be held by an individual who has previously served as a Judicial Commissioner, the two roles should not be combined. If a process for challenging the decision of a Judicial Commissioner is to be included in the Bill then the model set out in the Anderson report whereby one of the Judicial Commissioners would be designated as the Chief Judicial Commissioner would be preferable to involving the Investigatory Powers Commissioner in the authorisation process.
- One long-standing area of ambiguity which is not clarified in the draft Bill relates to which Secretary of State is responsible for signing interception warrants. The field of intelligence is one in which few parliamentarians, or indeed government Ministers, have any experience and the application of investigatory powers as set out in the Bill is complex. It is standard practice that Home Office warrants are signed by the Home Secretary while warrants for covert activities abroad are signed by the Foreign Secretary, while those relating to defence intelligence may be signed by the Secretary of State for Defence. However, neither in previous legislation or the draft Bill is it specified which Secretary of State should sign warrants, or who should sign in the absence of the relevant Secretary of State. While it is clear that in most cases warrants will be issued by a Secretary of State with the appropriate knowledge and understanding of the process, this may not always be the case. As part of our research we interviewed a former Secretary of State from a different department entirely, with no experience in this area who claimed to have routinely signed Home Office warrants when the Home Secretary was unavailable. In order to ensure that the arrangements for issuing warrants is robust it would be helpful if the Bill specified in more detail which Secretary of State should issue warrants and what the process should be in the absence of the designated Secretary of State. It would be preferable if, in the absence of the designated individual, a clear chain of responsibility was established which involved passing warrants to another designated Secretary of State or upwards to the Prime Minister, rather than to a Secretary of State from any other department.
The Investigatory Powers Commission
- The draft Bill includes significant proposals for reform of the current independent oversight regime, most notably with the establishment of a new and powerful Investigatory Powers Commission. The creation of a single Investigatory Powers Commission to replace the patchwork of existing commissioners is a welcome development.
- The new Investigatory Powers Commission is likely to be a powerful body but there is a need to ensure that it does not overlap with other oversight bodies. As noted in paragraph 7 above, it is important that the role of the Investigatory Powers Commission, which is one of audit, inspection and review, is kept separate from that of the Judicial Commissioners who are directly involved in authorisation. There is also potential for some overlap between the work of the Investigatory Powers Commission and the parliamentary Intelligence and Security Committee. In addition to overseeing the warranting process the draft Bill provides the Commission with a wide remit, which includes, at the Prime Minister’s request, keeping under review ‘any aspect of the functions’ of the intelligence services, the heads of the intelligence services and the any part of the armed forces engaged in intelligence activities. Not only does this expansive role place an extra burden on the resources of the Commission, it also appears to overlap considerably with the functions of the Intelligence and Security Committee. The lack of clarity about roles can, of course, lead to duplication but may also lead to accountability gaps if each body assumes that the other has primary responsibility in a particular area or case. There is also the possibility that governments can play scrutiny bodies off against each other, assigning tasks to the body which it assumes will offer the most agreeable response, or when duplication occurs being able to pick and choose which findings to accept. While ensuring close cooperation between the various oversight bodies, it would nevertheless be beneficial if a clear demarcation was maintained between their respective roles, and in particular if some clarity was provided in relation to the overlapping statutory roles of the Investigatory Powers Commission and the parliamentary Intelligence and Security Committee.
- The main challenge involved in establishing this new oversight body is to ensure that sufficient resources are made available. The Investigatory Powers Commission will be replacing at least six existing offices (section 178 (1)), while this will inevitably serve to prevent some duplication, it is important to ensure that the creation of the new body should not lead to any loss of function or capacity. There can be a tendency to view resources allocated to oversight as detracting from those which might be devoted to the important work of protecting national security. However, as noted in paragraph 3 above, oversight is not simply about ensuring that intelligence agencies do not exceed their powers, it is also an important means of maintaining and improving effectiveness. Efficacy and oversight are not mutually exclusive, and rigorous and effective oversight should be seen as a force multiplier when it comes to combating threats to national security. While it is difficult to legislate for sufficient resources, it is nevertheless, crucially important to ensure that the new Investigatory Powers Commission has sufficient resources in terms of staffing, budgets and expertise. In particular, it is vital that it has the necessary technical expertise in order to effectively exercise its functions.
Additional protection for Members of Parliament and other legislatures
- The draft Bill includes new protections for the communications of Members of Parliament and other legislative bodies (section 16). To date the interception of the communications of parliamentarians has been covered by the Wilson Doctrine, a convention established by the Prime Minister, Harold Wilson, in 1966. Successive Prime Ministers, including the current one, have expressed their continued commitment to the application of the Wilson Doctrine and the convention continues to have strong support amongst parliamentarians. However, there is also considerable confusion, in parliament and beyond, about the scope of the Wilson Doctrine[3] and it has come under pressure in recent years, notably from the Interception of Communications Commissioner who called for its repeal and from the Investigatory Powers Tribunal which concluded that it had no legal basis. The passage of legislation relating to the interception of communications since the 1980s means that the Wilson Doctrine is now out of step with the current statutory framework. If parliament believes that the communications of parliamentarians should be treated differently to those of other members of the public then the draft Bill provides a clear opportunity to place the Wilson Doctrine on a statutory footing.
- One notable anomaly of the Wilson Doctrine, which has become more obvious in recent years, is that it has only been applied to members of the House of Commons and the House of Lords. The draft Bill’s extension of additional protections to members of the devolved assemblies and UK members of the European Parliament, in addition to members of the Westminster Parliament, serves to resolve a notable inconsistency in the current operation of the Wilson Doctrine.
- However, while the protections set out in the draft Bill do represent a raising of the bar when it comes to the interception of communications of members of the relevant legislatures, in its current format the Bill does not represent a codification of the Wilson Doctrine. The Wilson Doctrine comprises two elements. The first is a general, although not absolute, prohibition on the interception of communications of Members of Parliament by the intelligence services. The second is that, if there is a change in that general policy the Prime Minister will inform Parliament, at a time commensurate with the interests of national security. The proposed protections in the draft Bill arguably enshrine the first element, but there is no provision for the second. If it was felt desirable to codify the Wilson Doctrine more fully, one possible solution could be a process whereby the Prime Minister will inform the parliamentary Intelligence and Security Committee, or possibly the committee’s Chair, if a warrant is issued for the interception of the communications of a member of a relevant legislature.
Conclusions and Recommendations
The authorisation process for the issue warrants
- The draft bill’s inclusion of a ‘double-lock’ procedure whereby warrants issued by a Secretary of State would require approval by a Judicial Commissioner before coming into force is a significant improvement on the current arrangements.
- If a Secretary of State is convinced of the case for interception, as they always claims to be, and particularly when a process exists to challenge the decision of a Judicial Commissioner, then allowing Judicial Commissioners to review the application on the same terms as Ministers would seem to provide a more robust system and one which is less open to criticism.
- Allowing the Investigatory Powers Commissioner to act as final approval in the issue of warrants represents an undesirable blurring of the roles of authorisation and oversight. If a process for challenging the decision of a Judicial Commissioner is to be included in the Bill then the model set out in the Anderson report whereby one of the Judicial Commissioners would be designated as the Chief Judicial Commissioner would be preferable to involving the Investigatory Powers Commissioner in the authorisation process.
- In order to ensure that the arrangements for issuing warrants is robust it would be helpful if the Bill specified in more detail which Secretary of State should issue warrants and what the process should be in the absence of the designated Secretary of State. It would be preferable if, in the absence of the designated individual, a clear chain of responsibility was established which involved passing warrants to another designated Secretary of State or upwards to the Prime Minister, rather than to a Secretary of State from any other department.
The Investigatory Powers Commission
- The creation of a single Investigatory Powers Commission to replace the patchwork of existing commissioners is a welcome development.
- It is important that the role of the Investigatory Powers Commission, which is one of audit, inspection and review, is kept separate from that of the Judicial Commissioners who are directly involved in authorisation.
- While ensuring close cooperation between the various oversight bodies, it would nevertheless be beneficial if a clear demarcation was maintained between their respective roles, and in particular if some clarity was provided in relation to the overlapping statutory roles of the Investigatory Powers Commission and the parliamentary Intelligence and Security Committee.
- It is crucially important to ensure that the new Investigatory Powers Commission has sufficient resources in terms of staffing, budgets and expertise. In particular, it is vital that it has the necessary technical expertise in order to effectively exercise its functions.
Additional protection for Members of Parliament and other legislatures
- The passage of legislation relating to the interception of communications since the 1980s means that the Wilson Doctrine is now out of step with the current statutory framework. If parliament believes that the communications of parliamentarians should be treated differently to those of other members of the public then the draft Bill provides a clear opportunity to place the Wilson Doctrine on a statutory footing.
- The draft Bill’s extension of additional protections to members of the devolved assemblies and UK members of the European Parliament, in addition to members of the Westminster Parliament, serves to resolve a notable inconsistency in the current operation of the Wilson Doctrine.
- While the protections set out in the draft Bill do represent a raising of the bar when it comes to the interception of communications of members of the relevant legislatures, in its current format the Bill does not represent a codification of the Wilson Doctrine
- If it was felt desirable to codify the Wilson Doctrine more fully, one possible solution could be a process whereby the Prime Minister will inform the parliamentary Intelligence and Security Committee, or possibly the committee’s Chair, if a warrant is issued for the interception of the communications of a member of a relevant legislature.
18 December 2015
[1] H. Bochel, A. Defty and J. Kirkpatrick, Watching the Watchers: Parliament and the Intelligence Services, London: Palgrave, 2014.
[2] D. Pannick, QC ‘Safeguards provide a fair balance on surveillance powers’, The Times, 12 November 2015.
[3] A. Defty, H. Bochel & J. Kirkpatrick, ‘Tapping the telephones of Members of Parliament: the Wilson Doctrine and Parliamentary Privilege’ Intelligence & National Security, vol.29, no.5 (2014), pp.675-697.