The Investigatory Powers Commissioner’s Office (IPCO) has taken a further step in building confidence as the independent oversight body for surveillance activities by publishing its first Advisory Notice (AN) No. 1/2018 on “Approval of Warrants, Authorisations and Notices by Judicial Commissioners”.
Two things immediately set the AN apart from the work of at least one of IPCO’s predecessors, the Office of the Surveillance Commissioner (OSC): (i) the provision of advice (the OSC was very clear its role was not advisory); and (ii) the publication of the AN to provide “information…to the general public as to the general approach that Judicial Commissioners will adopt under the [Investigatory Powers Act 2016]. Such guidance as was published by the OSC was originally intended for public authorities.
What the AN lacks in quantity (it is a refreshingly eight pages long) it makes up for in quality. It covers the range of investigatory resources where a warrant, authorisation or notice requires judicial approval (or modification or review of an existing warrant) so, targeted and bulk interception and equipment interference warrants, targeted examination and mutual assistance warrants, retention of communications data and bulk acquisition warrants and bulk personal dataset warrants. It also covers Technical Capability Notices and the new (and likely to be) controversial National Security Notices.
The AN sets out the provisions governing judicial approval in targeted interception warrant cases (identical provisions are repeated throughout the 2016 Act in respect of the use of each surveillance resource where judicial approval is required). The function of the judicial commissioners is to review and, if appropriate, approve the decision to issue the warrant. It is the second half of what is known as the double-lock, a term conceived by the 2016 Act’s principal architect David Anderson QC in his seminal report, A Question of Trust. In doing so the judicial commissioner must consider the decision-maker’s conclusions on necessity having regard to the grounds upon which the warrant was issued and proportionality (whether the conduct authorised is proportionate to the operational objective to which it relates).
In considering this test, the judicial commissioner must “apply the same principles as would be applied by a court on an application for judicial review” and when looking at the decision-maker’s conclusions on necessity and proportionality consider those matters “with a sufficient degree of care” as to ensure compliance with the over-arching privacy protections set out in s 2 of the 2016 Act. This is where the AN comes into its own.
First, the AN states unequivocally that the test to be applied is not Wednesbury reasonableness as this “would not provide the requisite independent safeguard”. Instead it will apply the enhanced public law standard where there is an interference with fundamental rights and the Human Rights Act 1998 and/or EU law is engaged.
Second, possibly for the first time, the AN sets out in more detail than has previously been included in guidance from any of the oversight bodies (or Codes of Practice for that matter) what proportionality means at a practical level. In Covert Policing Law & Practice, the importance of this is underscored, “[decision-makers] will be required increasingly to provide meaningful answers to questions …as to what they understood proportionality to mean and to demonstrate an assiduous adherence to the practical steps involved in its proper application”. The AN now directs decision-makers to key principles distilled from European and domestic jurisprudence on proportionality. However, it fails, at least expressly, to emphasise the importance of a current and relevant intelligence case justifying the decision to issue warrants. This is all the more important in national security cases, where, as the AN recognises, a “wider margin of judgment will be afforded to the primary decision-maker”. Wider margin of judgment does not of course mean arbitrary or judgment exercised in the absence of any intelligence supporting an application.
Thirdly, there is a clear statement that the judicial commissioners will consider the United Kingdom’s international obligations in appropriate cases. This is indicative that the “degree of care” with which applications for approval will be considered is at the forefront of IPCO’s approach to its work.
Finally, the AN, emphasises the duty of candour on those making applications. Failures to discharge this onerous duty have led to adverse findings against public authorities before the Investigatory Powers Tribunal. There is a reference to the duty to disclose “credible evidence” that might call into question the propriety of undertaking surveillance in whatever form against the target of the warrant, authorisation or notice. This is a formulation that could give rise to confusion particularly with law enforcement agencies and other investigative bodies whose pre-occupation with the distinction between evidence and intelligence at times is well known. A better formulation might have been “credible information (evidence, intelligence or other data)”.
This is an innovative and constructive contribution that helps navigate those reading it through the complex provisions of the 2016 Act relating to judicial approval. It is reassuring at a number of levels: the early grasp by IPCO of complex procedural issues; setting them out in a way that de-mystifies the process; and providing visibility to the public. Trust, the underlying principle of Anderson’s legislative concept, is enhanced by effective security but also compliance. Confidence will also be derived from the appointment of a legal adviser to the IPCO staff and standing counsel (the pre-eminent Tom Hickman). Obviously the AN is obligatory reading; applications which have not adhered to the clear advice provided in it, will, it is anticipated, be dealt with robustly.
Dates for the Investigatory Powers Act 2016 Training Days have been released: 15 May (London) and 17 May (Leeds). Details of the programme can be found here. Places are strictly limited and bookings have already been received from Merseyside and Northamptonshire Police, Kent County Council and others. Use the contact page on this site to reserve your place.
© Simon McKay (2018). As a general rule, I have no problem with third parties using my material but please ask for my permission before using or copying the material contained in this blog. If you do use it, attribute it to me with a link to the original content where possible. This is opinion, not legal advice.