5Oversight
565.The approach to oversight in any investigatory powers regime is crucial to the compliance of that regime with the protection of individual rights under the European Convention on Human Rights and European Union law. As noted above at paragraphs 17–24, the law in this area remains under development and there is no legal checklist that can be applied to the proposed regime to ensure it remains compliant with the Government’s obligations to protect individual rights. Martin Chamberlain QC told us:
“The question whether existing oversight mechanisms satisfy Article 8 standards is itself currently before the European Court of Human Rights. The outcome of that litigation may not be known before this Bill is enacted. It is likely to be highly material to the question whether the safeguards in the Bill are compliant with Article 8.”478
566.Under the present state of the law legally compliant oversight requires a role for a body that is not only independent of the executive in reality but is seen to be independent of the state.479 Public perception of the relationship between the executive and the oversight body is also relevant. Martin Chamberlain QC told us that “Parliament’s aim at this stage should be to make the statutory safeguards as robust as possible so as to give the Bill the best chance of being held compatible with Article 8.”480
Current oversight regime
567.Three Commissioners, appointed under RIPA, have general scrutiny functions. Each of the Commissioners is a retired High Court or Court of Appeal judge. Each is appointed by the Prime Minister and reports to him. Oversight of the intelligence agencies, save for their interception practices, is carried out by the Intelligence Services Commissioner, currently Sir Mark Waller. The Interception of Communications Commissioner, currently Sir Stanley Burnton, oversees the interception of communications by the intelligence and law enforcement agencies which are permitted by Chapters 1 (interception) and 2 (acquisition and disclosure of communications data) of Part 1 of RIPA. The Chief Surveillance Commissioner, currently Lord Judge, oversees public authorities’ use of their RIPA powers for covert surveillance in public and private places, the use of covert human intelligence sources and property interference.
568.David Anderson QC reported that the system of Commissioners “came in for considerable criticism from civil society” including that the range of Commissioners and division between their responsibilities created confusion and meant that no one Commissioner was sufficiently well-placed to assess the proportionality of measures taken; that they were insufficiently public facing; that they were insufficiently independent of Government; that as judges they were ill-suited to inquisitorial work; and that their work was insufficiently probing.481 There were also concerns over the adequacy of the resources available to support the Commissioners in their work. RUSI agreed that the commissioners were part of an oversight regime which was overly complex and poorly understood and that “Reorganisation and better resourcing of the existing setup could create a more streamlined, robust and systematic oversight regime that would be genuinely visible to the public and have a positive effect on the police and SIAs.”482 The ISC recommended “an increased role for the Commissioners” and for their non-statutory functions to be given a statutory footing. ISC also suggested that there could be a case for pooling resources between the three Commissioners.483
569.The Anderson report recommended that the three current Commissioners should be replaced by an Independent Surveillance and Intelligence Commission (ISIC). ISIC would fulfil the intelligence oversight function currently carried out by the Intelligence Services Commissioner, together with the auditing functions of the three. It would retain the Chief Surveillance Commissioner’s role in relation to approvals and issuing guidance. In addition ISIC would also have oversight of the acquisition and use of communications data, the use of open-source intelligence and the sharing and transfer of intercepted material and data. As discussed above, ISIC would take over the judicial authorisation of all interception warrants and some categories of requests for communications data.484
Commissioners or a Commission?
570.Clause 167(6) of the draft Bill provides that the “Investigatory Powers Commissioner and the other Judicial Commissioners are to be known, collectively, as the Judicial Commissioners.” The Interception of Communications Commissioner’s Office (IOCCO) raised concerns with us that this approach failed to acknowledge “the reality” that the Judicial Commissioners themselves would “only be performing a very narrow part of the oversight—the prior authorisation of some of the more intrusive investigatory powers. The bulk of the oversight will actually be carried out by inspectors and staff within the Commission.”485 To ensure “effective” oversight the IOCCO said the inspectors need a “clear legal mandate to require information from public authorities, to launch and undertake audits, inspections, inquiries, investigations and react in real time when non-compliance or contraventions of the legislation are discovered during an inspection.”486
571.The duty imposed on the Investigatory Powers Commissioner in Clause 169(1) to “keep under review (including by way of audit, inspection and investigation) the exercise by public authorities of” the relevant powers. IOCCO said that this position did not “compare favourably with the clear powers and legal mandate in place for some of our international counterparts.”487 JUSTICE agreed that the draft Bill failed to make it clear that the Investigatory Powers Commissioner had the power to conduct inquiries “on its own initiative about the operation of the legal framework within its sphere of responsibility.”488 The IOCCO concluded that a Commission created as a body corporate with statutory powers vested in both the institution and the Judicial Commissioners would meet its concerns. The IOCCO told us that a precedent for this model of oversight could be found in the Independent Police Complaints Commission.489
572. The Anderson report recommended the creation of a single oversight body for all surveillance powers, an “Independent Surveillance and Intelligence Commission (ISIC).”490 In his written evidence to us, Mr Anderson said the creation of a Commission was necessary if the oversight body established by the draft Bill was to “fulfil its potential as a well-informed, independent and authoritative guarantee that some extraordinarily extensive powers are not misused.”491
573.The Home Office did not comment specifically on why it had chosen the Judicial Commissioners model rather than creating a Commission. In written evidence it referred to the benefit of having one senior independent judicial figure in the Investigatory Powers Commissioner who, by having ultimate responsibility, “will help ensure consistent standards between the users of investigatory powers and allow best practise to be shared.”492
574.It is unclear to us why the Home Office chose to create a group of Judicial Commissioners rather than creating an Independent Intelligence and Surveillance Commission as recommended by David Anderson QC, a recommendation endorsed by the knowledgeable and experienced Interception of Communications Commissioner’s Office. The benefits of having a senior independent judicial figure in the Investigatory Powers Commissioner would not be lost by putting the IPC at the head of a Commission. The evidence we have heard is that the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate. We recommend that such a Commission should become the oversight body in the Bill. (Recommendation 51)
575.The Judicial Commissioners or Commission should have the power to instigate investigations on their or its own initiative. This is vital in order to ensure effective and independent oversight. The current provisions in the draft Bill on the powers of the Judicial Commissioners do not make it clear that they have this power. We recommend that a power to initiate investigations should appear on the face of the Bill. (Recommendation 52)
Judicial Commissioners
576.The draft Bill provides for the appointment for an unspecified number of Judicial Commissioners under the authority of an Investigatory Powers Commissioner. The role of the Judicial Commissioner in authorising warrants has been referred to as introducing “judicial authorisation” into the regulation of investigatory powers. The proposed structure for appointing, re-appointing, dismissing and funding Judicial Commissioners differs in a number of respects from that of senior judges in the ordinary courts.
Creation of a single oversight body
577.Witnesses welcomed the creation of a single body to oversee the use of powers under the Bill. Lord Judge, the Chief Surveillance Commissioner, told us:
“I cannot think that anyone would have designed the present three-bodied system. It would never have happened; it should not have done. We work piecemeal on the legislation; we produce piecemeal results; and we have produced three bodies, all of which have responsibilities in the broad sense that we are talking about and all of which work in different ways.”493
578.McEvedys Solicitors agreed with Lord Judge that system of three commissioners “was confusing to the public, and created the potential for duplication. More importantly, it reduced transparency and undermined the ability of any of them to build public confidence in the investigatory powers.”494 The only concern we heard over the replacement of the three commissioners by one was from Sir Mark Waller who expressed concern that the resulting workload may be too much for one Commissioner.495 This concern should be addressed by the fact a number of Commissioners will be appointed and the Investigatory Powers Commissioner has an explicit power to delegate his functions when required (Clause 167(7)).
579.We welcome the creation of the Judicial Commissioners as a single oversight body which will improve transparency, public confidence and effective oversight of the use of the powers contained in the Bill.
Appointment
580.The draft Bill requires that the Prime Minister appoint an Investigatory Powers Commissioner and “such number of other Judicial Commissioners as the Prime Minister considers necessary for the carrying out of the functions of the Judicial Commissioners.”496 Judicial Commissioners must hold or have previously held office as a senior judge.497
581.Witnesses raised concerns over the impact of appointment by the Prime Minister on the perceived independence of Judicial Commissioners and the consequent impact on public confidence in the oversight regime. The Interception of Communications Commissioner’s Office (IOCCO) told us: “It is inappropriate for the Judicial Commissioners to be appointed by the Prime Minister as this dilutes public confidence and independence.”498 Sir Mark Waller, the Intelligence Service Commissioner, agreed that the “public perception” of the Judicial Commissioners’ independence could be affected by prime ministerial appointment.499 We heard from the United Nations Special Rapporteurs, that the Prime Ministerial power to appoint “compromises the independence and impartiality of the Judicial Commissioners”.500 Liberty said that the impact on public perception of appointment by the Prime meant the oversight structure proposed by the draft Bill could not amount to “world leading oversight”.501 Lord Carlile of Berriew CBE QC told us: “It is … of high importance that the Judicial Commission does not become politicised. This is a possibility if one body oversees all investigatory powers. Selection of the Judicial Commissioners should remain independent of Government, and placed in the hands of the Lord Chief Justice for the time being.”502 These views were expressed in similar terms by several other witnesses.503
582.Some support for appointment by the Prime Minister came from Professor Clarke, Retiring Director of the Royal United Services Institute, who told us that the Judicial Commissioners would have to “enjoy the confidence of the Prime Minister and the political establishment” as well as inspiring public confidence.504
583.Proposed alternatives to appointment by the Prime Minister focused on roles for the Judicial Appointments Commission and Lord Chief Justice or a hybrid of the two. Drs Cian Murphy and Natasha Simonsen, Law Lecturers at King’s College, London, recommended appointment by the Judicial Appointments Commission, on the grounds that:
“The draft Bill places upon the Judicial Commissioners an obligation to serve in what is, in effect, a quasi-judicial role. We recommend (below) that that role be made as close to a judicial role as possible—a key part of which is appointment through an appropriate process. We consider that appointment through the Judicial Appointments Commission will build public confidence, and is more likely to command the respect of overseas stakeholders, including foreign Governments and communications service providers.”505
584.Peter Carter QC agreed that the Judicial Appointments Commission should be responsible for appointments to avoid the public perception that they were “political appointment[s]” but suggested a consultative role for the Lord Chief Justice.506 Lord Judge, Chief Surveillance Commissioner, told us that for practical and constitutional reasons appointment should be by the Lord Chief Justice when serving judges were under consideration. He noted that deployment of judges currently in office was a “crucial responsibility” of the Lord Chief Justice “who not only has the clearest understanding of the experience and skills of all the judges, but who also knows those judges who will be serious candidates for the Court of Appeal where new experiences as commissioners would be valuable.”507 In addition the Lord Chief Justice “will have to address the consequences of the drain on judicial resources in the High Court and Court of Appeal of seconding senior judges to the Commission” a point echoed by JUSTICE which suggested that “any drain on the High Court when judges take up appointments as Judicial Commissioners should be offset by the Treasury.”508 Lord Judge concluded that “for judges currently in office the only viable system is for the Lord Chief Justice to assign them to work as Commissioners.”509 The Lord Chief Justice’s 2015 Annual Report noted that High Court Judges had recently experienced a significant increase in their workload.510
585.We also heard suggestions for adapting the proposed appointment process. David Anderson QC proposed a consultative role for the Lord Chief Justice, the involvement of the Judicial Appointments Commission and “possibly some sort of parliamentary hearing. For the purposes of public perception, that may be a good idea.”511 Lord Judge had concerns over the workload of the Judicial Appointments Commission and the length of time appointments could take. He suggested that the process undertaken for the last commissioner appointed to his team should be used: “a senior serving judge and a member of the Judicial Appointments Commission sat together, with my predecessor as an observer, and they chose whom it should be, and the appointment was then made.”512
586.We were interested to hear from the Home Secretary, Theresa May, that appointment of a sitting judge would “be a matter more for the Lord Chief Justice and for advice from the Lord Chief Justice. Indeed, the intention is that the Lord Chief Justice would be making nominations to the Prime Minister.”513 Mrs May rejected the suggestion that appointment by the Prime Minister would have any implications for the independence of Judicial Commissioners on the grounds that the current commissioners were prime ministerial appointees and “there is no suggestion that they have not been independent in the operation of the work that they have done.”514
587.We do not think that appointment by the Prime Minister would in reality have any impact on the independence of the Investigatory Powers Commissioner and Judicial Commissioners. In modern times, our senior judges have had an unimpeachable record of independence from the executive and we believe any senior judge appointed to these roles would make his or her decisions unaffected by the manner of appointment.
588.We recommend that the Lord Chief Justice should have the power to appoint Judicial Commissioners following consultation with his judicial counterparts in Scotland and Northern Ireland and with the Prime Minister, Scottish Ministers, and the First Minister and deputy First Minister in Northern Ireland. This will ensure public confidence in the independence and impartiality of the Judicial Commissioners. It will also enhance political confidence in them. The Lord Chief Justice will also be able to assess the impact of appointments on the work of the High Court and the Court of Appeal, which must not be impaired by the creation of the Judicial Commissioners. The Judicial Appointments Commission must also be consulted to ensure that the appointments procedure is fair and transparent. (Recommendation 53)
Re-appointment and length of terms
589.The draft Bill states that appointments are for three years and are renewable.515 Some criticism of these provisions was focused on the interaction between this provision and the role of the Prime Minister in appointing Judicial Commissioners. The Center for Democracy and Technology told us that it was the combined effect of “the appointment process and potentially indefinite renewable terms” which would “prevent” the Judicial Commissioners from being “fully independent of the executive.”516 Privacy International was opposed to appointment by the Prime Minister but told us its concerns of the impact executive appointment would have on the independence of the Judicial Commissioners were “exacerbated” by the “brevity and renewable nature of these terms”.517
590.The Bingham Centre for the Rule of Law said that terms of appointment should not be renewable because “[i]t is important that there be absolutely no possibility of perception that a Commissioner’s decisions could be influenced by a desire to have a term renewed.”518 David Anderson QC, the Independent Reviewer of Terrorism Legislation, saw the “advantages of a single term” so that “there would be no question of people being careful around the renewal period.” He observed that he was appointed for a three-year renewable term: “Did that affect the timing of any fights I might have wanted to pick with the Home Secretary? I do not know; perhaps subconsciously it did.”519
591.There was no consensus on how long appointments should be. Professor Clarke was not opposed to the power to renew appointments but preferred longer terms of four or five years “so that somebody could build a greater profile in the work that they do, which the public would get used to.”520 The Bingham Centre for the Rule of Law suggested that Judicial Commissioners should be able to opt for a non-renewable term of three, four or five years if the Prime Minister continued to have the power of appointment.521 David Anderson QC thought that serving judges may be reluctant to become Judicial Commissioners if required to do it for much longer than three years as it could pose difficulties for their return to “regular judging”.522 Peter Carter QC agreed and observed that the potentially “onerous” nature of the role could mean that three years “would probably be sufficient” for retired judges to “feel that they have done their job and would quite like to go and do something else.”523 Matthew Ryder QC suggested that the Judicial Appointments Commission be consulted on the appropriate tenure for the role as it has “done some significant thinking on how long tenures should be for judges, to ensure that judges do not feel vulnerable when they next come up for review.”524 The longest tenure suggested was a non-renewable term of seven years which is the approach taken in the United States for judges appointed to the Foreign Intelligence Surveillance Court.525
592.We accept concerns that having renewable terms of appointment could have negative implications for public confidence in the independence of Judicial Commissioners. We conclude that these concerns strengthen the argument for the power of appointment being held by the Lord Chief Justice, rather than the Prime Minister.
593.The Government should reconsider both the length of terms of appointment and whether they should be renewable. Terms need to be long enough for Judicial Commissioners to build expertise but should not be so long that they have a negative impact on a serving judge’s career. It may be that three-year terms with an option for renewal is the most workable solution but we recommend that there should be careful reconsideration of these provisions in consultation with the Lord Chief Justice, Judicial Appointments Commission, the current surveillance Commissioners and other interested parties to ensure the benefits and disadvantages of the different approaches have been thoroughly examined. (Recommendation 54)
Dismissal
594.Judicial Commissioners can be removed from office following a resolution in both Houses of Parliament.526 A Judicial Commissioner can be removed from office by the Prime Minister for being sentenced to imprisonment following conviction for a criminal offence,527 for bankruptcy,528 disqualification as a director of a company529 and for being the subject of specified orders under the Insolvency Act.530 The Investigatory Powers Commissioner, in consultation with the Prime Minister, can end a Judicial Commissioner’s term of appointment for “inability” or “misbehaviour”531 or for “a ground specified in the Judicial Commissioner’s terms and conditions of appointment.”532
595.The proposed powers to remove Judicial Commissioners from office differ markedly from those applicable to senior judges. The senior judiciary can be removed from office only by a resolution of both Houses of Parliament. Section 108 of the Constitutional Reform Act 2005 provides that the Lord Chief Justice can suspend a senior judge who is “subject” to criminal proceedings; is serving a sentence imposed in criminal proceedings; or who “has been convicted of an offence and is subject to prescribed procedures in relation to the conduct constituting the offence.” Senior judges may be suspended during proceedings for by Address in Parliament to remove them from office. The power to suspend a member of the senior judiciary can only be exercised by the Lord Chief Justice with the agreement of the Lord Chancellor.533
596.Concerns over the drafting of these clauses and their impact on the independence of the Judicial Commissioners were expressed by the Bingham Centre for the Rule of Law. The Centre noted that “inability” and “misbehaviour” were not defined in the draft Bill. The Centre also expressed concern that the provision to allow removal from office for breaching the terms and conditions of appointment was potentially disproportionate given “we doubt that all terms and conditions should carry equal weight in decisions about removal from office.”534 Specific criticism of the drafting aside, the Bingham Centre concluded that protecting the independence of the Judicial Commissioners required that “removal from office on the grounds of inability to carry out the functions of a Commissioner or misbehaviour requires a resolution of each House of Parliament, except under subsection (5).”535 A group of non-governmental organisations operating in the United States in the field of democracy and technology also expressed concern that dismissal of Judicial Commissioners was possible “on grounds not set out in the legislation.”536 The Interception of Communications Commissioner’s Office did not criticise the provisions themselves but recommended that the Lord Chief Justice be consulted before the power to dismiss was exercised.537
597.Maintaining public confidence in the Judicial Commissioners may occasionally require that a Commissioner is removed from the role because he or she has behaved in a manner incompatible with what is, in effect, high judicial office. Public confidence also requires that the power to remove from office does not damage the public perception of the Judicial Commissioners’ independence from the executive or the freedom of the Judicial Commissioners to make decisions that may be unpopular with the Government. We believe that the broad powers of dismissal contained in the draft Bill significantly impair the independence of the Judicial Commissioners. We therefore recommend that the Judicial Commissioners be subject to the same dismissal and suspension procedures as those applicable to serving senior judges: removal from office following a resolution of both Houses of Parliament and suspension and other disciplinary measures exercised by the Lord Chief Justice and Lord Chancellor. (Recommendation 55)
Funding
598.Clause 176(1) of the draft Bill provides that Judicial Commissioners will be paid “out of money provided by Parliament such remuneration and allowances as the Treasury may determine.” Funding other than the pay of the Judicial Commissioners themselves is a matter for the Home Secretary in consultation with the Investigatory Powers Commissioner and subject to the approval of the Treasury.538 The Explanatory Notes state that: “Should the Investigatory Powers Commissioner believe that the resources afforded to them are insufficient then they may publicly report the fact in their Annual Report.”539
599.We heard that adequate resources were vital in ensuring the Judicial Commissioners were able to carry out their oversight and authorisation duties. JUSTICE commented that “whether that body succeeds in becoming a robust, transparent and accountable public facing body, which increases public confidence, will depend very much on its structure, powers and resources.”540 Privacy International told us that: “ensuring an appropriate level of resourcing for the IP Commission will be crucial in enabling the public and Parliament to ensure surveillance powers are properly used.”541 Sir Mark Waller, the Intelligence Services Commissioner, told us he did not think it appropriate for the Home Secretary to make decisions about the resources available to the Judicial Commissioners. Sir Mark emphasised that although the Secretary of State’s control of the “purse strings” would not affect the decisions Judicial Commissioners made, inadequate resources would have a negative impact on their “ability to do the job.”542 Sir Stanley Burnton, Interception of Communications Commissioner, told us it was inappropriate for the “person who is being monitored in a sense to be the person who decides on the resourcing of the office.”543 Lord Judge, the Surveillance Commissioner, agreed saying “if we are going to supervise the Home Secretary we must not answerable to him or her for the money.”544
600.We heard from several witnesses that the new system was likely to be significantly more expensive than the current oversight structure due to the increase in functions the Judicial Commissioners are required to fulfil. Lord Judge told us:
“If you have the same number of commissioners I have, which is six plus me plus three assistant commissioners, that is ten before you start. If Parliament enacts a system in which there is authorisation for everything in advance, it is going to take a lot more people. It will cost a lot more. We can either do it on the cheap or spend more money … Yes, it will cost a lot more.”545
601.Sir Stanley Burnton agreed that significant numbers of staff would be needed:
“in order properly to run the system, there are going to be something like eight judicial commissioners, which is quite a lot of staff. They must be backed up with appropriate staff, with the kind of skills my office now has but more widely available. There will be more inspectors, who must be appropriately qualified. You are looking at significant sums of money.”546
602.We heard proposals for a number of alternative funding structures. The Bar Council suggested that the Home Office could propose a budget for the Judicial Commissioners which would then be examined and agreed by a Parliamentary Committee.547 The Equality and Human Rights Commission also recommended a “role for Parliament” in determining the Judicial Commissioner’s budget.548 Sir Stanley Burnton and Lord Judge both supported direct negotiation between the Investigatory Powers Commissioner and the Treasury.549 In New Zealand the Inspector-General of Intelligence and Security receives a percentage of the spend on intelligence and policing.550 Jo Cavan, the Head of the Interception of Communications Commissioner’s Office, thought that that model could work here and observed “our percentage would no doubt be significantly lower than the percentage in New Zealand, because of the larger scale of our intelligence agencies, in particular the bulk collection we do, in comparison to New Zealand.”551
603.In the United Kingdom, Estimates for the public service are normally laid before the House of Commons by the Treasury. There are four statutory bodies whose financial independence is enhanced by having their Estimates laid formally before the House of Commons by the Speaker (in the case of the Estimates for the Electoral Commission, House of Commons: Administration and for the Independent Parliamentary Standards Authority) or by the Chair of the Public Accounts Commission (for the National Audit Office). The spending of each of these four bodies out of the public money voted by Parliament is scrutinised by a statutory parliamentary committee. This model of statutory independence combined with parliamentary scrutiny is one possible approach to financial independence from direct Treasury control.552
604.We believe it is inappropriate for the Home Secretary alone to determine the budget of the public body which is monitoring her exercise of surveillance powers. The Government may want to consider a role for Parliament in determining the budget. (Recommendation 56)
Power to modify the functions of the Judicial Commissioners
605. Clause 177 of the draft Bill gives the Home Secretary the power to “modify the functions” of the Judicial Commissioners through secondary legislation. The Explanatory Notes states that the reasons for the provision is to allow “a level of flexibility about the role of the Commissioner to ensure that it can be modified and adapted to fit with the work that needs to be overseen.” The Explanatory Notes also comment that the changes would only occur with the consent of both Houses of Parliament.553
606.The Law Society of Scotland said that the effect of Clause 177 when read with Clause 197(1)(c) was to create a power to modify that was “exceptionally wide and draconian “effectively amounting to ‘Henry VIII powers’.” It noted that “There is no obligation to consult before making such modifications and there is no apparent oversight to ensure there is no excessive dilution of privacy rights. Also, it would appear there is no reasonable restriction on how the powers may be exercised.”554 JUSTICE also criticised the provision for its breadth and emphasised the negative impact of the provision on the perceived independence of the Judicial Commissioners. JUSTICE told us that the “limited capacity for Parliamentary scrutiny of secondary legislation makes this power inappropriate.”555 Amnesty International also criticised the provision for being an “extraordinarily wide power” and echoed concerns over the impact on the independence of the Judicial Commissioners.556 Martin Chamberlain QC observed that the breadth of the proposed power meant it could be used “to alter the test that a judicial commissioner has to apply when considering or reviewing the issue of a warrant.”557
607.Peter Carter QC suggested that limiting the power to modify the Judicial Commissioners functions so that it did not apply to the authorisation, renewal or continuation of warrants would counter some of the concerns expressed about its breadth.558 Both JUSTICE and Amnesty submitted that the power to modify should be confined to primary legislation allowing full scrutiny by both Houses of Parliament of the need for and effect of any change.559
608.Clause 177 contains a power for the Home Secretary to modify the functions of the Judicial Commissioners. While we recognise the concerns of some of our witnesses, we believe such a power is appropriate as we have every confidence such a power would only be exercised responsibly by the Secretary of State.
Impact of authorisation and oversight functions being exercised by the same body
609.The draft Bill provides that the Judicial Commissioners carry out both authorisation of warrants and oversight of the bodies applying for and exercising the powers granted by the warrants. This approach was heavily criticised by many of our witnesses.560 The Interception of Communications Commissioner’s Office said the dual function of the Judicial Commissioners could present a problem if “serious questions” arose over the “appropriateness” of a warrant in a particular case which required “proper investigation.”561 Much of the criticism focused on the public perception of the Judicial Commissioners’ independence. The Information Commissioner told us that there must be no impression the Judicial Commissioners were “’marking their own work’” or the oversight role would be “compromised”.562 JUSTICE thought that “conflation” of functions reduced the “objective independence” of the Judicial Commissioners and potentially undermined the effectiveness of the “IPC model.”563
610.We were told by the Open Rights Group that “similar arrangements” to those proposed by the draft Bill had been criticised by the European Court of Human Rights in a recent case for raising doubts about independence.564
611.The Home Secretary said she recognised the concerns expressed by our witnesses. Mrs May told us that it was expected that the Judicial Commissioner would keep their authorisation and oversight functions separate: “There will be two functions and, therefore, two sets of people within the Investigatory Powers Commissioner and that office—those who are undertaking the authorisation process and those who are undertaking the inspection process.”565 Mrs May anticipated some benefits from the “ability of [Commissioners] to interact, to understand some of the issues of practice” but expressed confidence in the Judicial Commissioners to “fiercely defend their independence” and the separate nature of their functions.566
612.While we accept that the Judicial Commissioners must not be perceived as overseeing their own work, we do not think this is an insurmountable problem. We agree with the Home Secretary that the senior judges who will act as Judicial Commissioners will be well aware of the need to separate the authorisation and oversight functions with which they are entrusted. We emphasise that there needs to be a clear delineation of functions within the Judicial Commissioners in order to ensure public confidence in the independence and impartiality in the exercise of the Commissioners’ oversight functions.
Error-reporting and notification
613.Clause 171 provides that the Investigatory Powers Commissioner must inform a person about any “serious error”567 when the Investigatory Powers Tribunal agrees the error is serious and that it is in the “public interest for the person concerned to be informed of the error.”568 The error must be a “relevant error”, one which concerns a public authority’s breach of obligations imposed by the Bill or Code of Practice issued under Schedule 6 of the Bill.569 A “serious error” is defined as a “relevant error” which the IPC and the IPT agree “has caused significant prejudice or harm” to the individual concerned.570 The draft Bill excludes a breach of an individual’s Convention rights from being a “serious error” where there has been no further harm.571 When making a decision on whether a person should be informed of a serious error the IPT must consider whether informing that person would be prejudicial to national security; the prevention or detection of serious crime; the economic well-being of the United Kingdom, or the continued discharge of the functions of any of the the security and intelligence agencies.572 Numbers of relevant and serious errors must be published in the Investigatory Powers Commissioner’s annual report together with the number of people informed of serious errors.573 In 2014, the Interception of Communications Commissioner recorded 998 errors that were reported to his office.574
614.The Bingham Centre for the Rule of Law told us that the approach in the draft Bill to error-reporting and notification was a matter of “profound concern”:
“We accept fully that there will be circumstances where a person has suffered significant prejudice or harm but that there will be good reasons (eg, national security) why they should not be notified, and it is right that the legislation provides for that. However, it is entirely inappropriate that the legislative presumption is against notification and that the legislation does not provide for notification at a future point when there are no longer reasons for secrecy. The rule of law requires access to justice, and this means that a person who is wronged should have an effective right to a remedy. This is especially so when that wrong has been at the hands of the state, and when the wrong has resulted in significant prejudice or harm.”575
615.The Interception of Communications Commissioner’s Office (IOCCO) told us that the provisions in Clause 171 were weaker than the current “well established” powers on error-reporting because it requires the agreement of the Investigatory Powers Tribunal to inform a person of an error. The approach adopted by the draft Bill “interferes with, dilutes and limits significantly the very well established function of the IOCCO to identify and investigate errors and of the Interception Commissioner to make determinations on errors and, where relevant, to inform individuals affected.”576 Dr Tom Hickman told us that there were no reasons for the reduction in the power of the oversight body to report errors, the current oversight bodies had operated their powers in this area without raising any concern.577
616.The requirement that an error cause “significant prejudice or harm” was criticised for being “a very high bar.”578 JUSTICE agreed describing the test as disproportionate and “inappropriately” high.579 IOCCO said the test was “extremely high”.580 It noted that the test conflicted with the test for applying to the IPT where an applicant only has to show that their Convention rights may have been breached by a public authority. The IOCCO was also concerned that the test did not take into account the egregiousness of the conduct that led to the error and focused solely on the consequences.581
617.The test was also criticised for being poorly defined. The Law Society of Scotland told us that “no definition [is] provided for ‘error’ or ‘serious error’. In the absence of a definition, these may be defined either widely or narrowly.”582 Privacy International said “what is considered “serious” needs further explanation, and what the public interest test will be is not clearly defined.”583 The IOCCO raised the practical point that the Investigatory Powers Commissioner and the IPT may have difficulties determining whether “serious harm or prejudice” if they are unable to contact the person in question,584 and Amnesty International UK noted that the decision-makers would have no access to any “independent evidence” on this point.585
618.Both JUSTICE and Human Rights Watch argued that a breach of Convention rights should be an adequate reason for informing a person of an error so they are able to exercise their right to seek redress.586 The IOCCO did not commit itself to a specific test but noted that a breach of some Convention rights are serious in and of themselves such as the rights to life, liberty and the protection against inhuman and degrading treatment.587 An alternative test, proposed by Open Intelligence, would require the reporting of errors to individuals as a matter of course “unless there are significant reasons not to do, such as prejudicing an ongoing or planned operation/investigation”.588
619.We heard from witnesses who called for a system of notification. This would require that a person who had been the subject of surveillance is informed of the fact “(and the grounds for it and materials selected, as well as potential remedies) as soon as this may be done without jeopardising the legitimate purpose of the surveillance.”589 Amnesty International UK told us that this approach is a “necessary requirement under international human rights law”. McEvedys Solicitors agreed and said “A monitoring scheme will not be ‘in accordance with the law’ if it fails to ensure that persons who are monitored are notified of the surveillance (if only ex post facto), see Assn. for European Integration and Human Rights & Ekimdzhiev v Bulgaria.”590
620.In A Question of Trust, David Anderson QC recommended that the Judicial Commissioners be given the power to report errors to individuals where they may be entitled to compensation and subject to a duty not to disclose anything that would be damaging to national security or prejudice ongoing operations.591
621.Clause 171 changes the existing powers of the relevant commissioners to report errors in the use of surveillance powers to the individuals affected by raising the applicable test and requiring the involvement of the Investigatory Powers Tribunal in making the decision. This approach is cumbersome and unnecessary given there are no concerns over the way the current oversight bodies have used their powers of error-reporting. We recommend that the Investigatory Powers Commissioner exercise the error-reporting power alone, without reference to the Investigatory Powers Tribunal. (Recommendation 57)
622.We recommend that the Government should review the error-reporting threshold in light of the points made by witnesses. (Recommendation 58)
Powers and duties of the Judicial Commissioners
623.We heard a number of observations, criticisms and endorsements of the draft Bill’s approach to the powers and duties of the Judicial Commissioners. We review these here and where appropriate provide our own conclusions.
Constraint on Judicial Commissioners
624.Clause 169(5) provides that in exercising the functions contained in the draft Bill a Judicial Commissioner must not act in a way that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime or the “the economic well-being of the United Kingdom.” Clause 169(7) limits the duties imposed by subclauses 169(5) and (6) to the oversight functions of the Judicial Commissioners.
625.Amnesty International UK criticised the “very broad drafting” of these subclauses, which do not define many of the terms they contain. This approach “lacks the required clarity of the law for such a serious provision.” The breadth and vague nature of the subclauses was such that they had the potential to jeopardise the effectiveness of the Judicial Commissioners’ oversight.592 McEvedys Solicitors agreed and suggested that the Judicial Commissioners must consider proportionality at the same time as the other matters detailed in the subclauses.593
626.It should be made clear in the duties laid on the Judicial Commissioners in subclauses 169(5) and (6) that they must comply with those duties in a proportionate manner. The subclauses are drafted in very broad and uncertain terms which have the potential to impact upon the work of Judicial Commissioners in unintended ways. Public confidence in the independence of the Judicial Commissioners requires clarity and transparency in both powers and duties. We recommend that Clauses 169(5) and (6) should be re-drafted to protect the Judicial Commissioners’ independence and to ensure the Judicial Commissioners are not constrained from providing effective oversight. (Recommendation 59)
Whistle blowers and the Judicial Commissioners
627.The Interception of Communications Commissioner’s Office suggested that the Bill should include “an explicit provision for CSPs and staff within public authorities to refer directly to the Investigatory Powers Commission any complaint or concern they have with conduct proposed or undertaken, or any matter on which they require clarification.”594 Graham Smith thought that service providers should be able to bring “a legal interpretation asserted against them” to the attention of the Judicial Commissioners who would then be able to inform other service providers by making the interpretation public.595 More controversially, we also heard a suggestion that the Bill address whistle-blowing in the security and intelligence agencies. The relationship between potential whistle-blowers in the agencies and the Judicial Commissioners received attention from some witnesses. The nature of surveillance powers inevitably means that, if they are misused or misapplied, individuals who are aware of any misconduct may not only be legally barred from making their concerns public but may in any event be loath to do so given the potential assistance disclosures could give to people who pose a threat to national security.
628.Public Concern at Work, a charity which runs a confidential helpline for potential whistle blowers, noted that the channels through which intelligence service personnel could report misconduct were uncertain. While evidence given to the Intelligence and Security Committee may not be used in civil or criminal proceedings unless it is given in bad faith, the position for anyone contacting the ISC but not giving evidence is not protected. Public Concern at Work suggested that where a whistle-blower’s concerns fall within internationally recognised specified categories of wrongdoing or malpractice596 they should be able to report them to the Judicial Commissioners without being at risk of prosecution for breaching the Official Secrets Act.597
629.We recommend that the Bill should contain an explicit provision for Communication Service Providers and staff in public authorities to refer directly to the Judicial Commissioners any complaint or concern they may have with the use of the powers under the Bill or any request for clarification on the use of those powers. Where clarification is provided the Judicial Commissioners will need to have the power to make that information public should it be appropriate in the circumstances. This will enable better compliance with the provisions of the Bill and will help to reduce costs. (Recommendation 60)
630.We recommend that members of the security and intelligence agencies should be able to contact the Investigatory Powers Commissioner with concerns over the misuse of surveillance powers without being at risk of prosecution for breaching the Official Secrets Act. The Investigatory Powers Commissioner should then have discretion whether to exercise his or her power to initiate an inquiry into the allegations. We recognise that there may be wider concerns over the role of whistle-blowers in this area. This is a matter which requires consultation and therefore this is not the appropriate Bill in which those wider concerns should be taken forward. (Recommendation 61)
Legal advice and access
631.The Anderson report recommended that the Judicial Commissioners have both an “in-house legal presence” and “one or more” part-time “security-cleared standing counsel”. Counsel’s function would be, on request:
- to give advice on recent developments in the law;
- to advise ISIC on possible legal vulnerabilities in the arrangements whose operation it reviews;
- to advise (at the request of the Judicial Commissioners) in relation to applications for warrants or requests for authorisations on proposed communications data authorisations;
- to assist with the legal aspects of formulating guidance and contributing to Codes of Practice; and
- by these means to help ISIC ensure that the activities it authorises, audits or reviews are lawful, and that the public authorities it oversees have due warning of legal difficulties.598
632.We asked the current Commissioners whether they thought the Judicial Commissioners would require legal assistance. Lord Judge, the Chief Surveillance Commissioner, told us he thought they would because the law in this area is “extremely complex”:
“RIPA is a dreadful piece of legislation. I say that with some strength of feeling, having had to try to understand it. Why do judges need a legal adviser? For that reason: to say it could be any one of 17 possible interpretations, rather than the five you thought you had. More importantly, in this system, from time to time you need advice.”599
633.The Bingham Centre for the Rule of Law thought that a special advocate would be required to advise the Judicial Commissioner when an application for a warrant or authorisation was “novel or raises especially contentious issues (including where the possible interpretation of a statute which would see an expansion of powers that differs from what is apparent on the face of the legislation)”.600 Dr Tom Hickman agreed “one can envisage their use routinely in controversial cases on the boundaries of ‘national security’, in cases involving journalists and lawyers and major operations, in cases which rely on a broad meaning of the Act or which test key provisions, and in many other cases in which a JC perceives some issue on which he or she would appreciate contrary argument being put forward.”601 Amnesty International UK said that it was “highly desirable to enhance the adversarial nature” of the authorisation process to ensure human rights was properly considered.602
634.The law in this area is complex and developing. Judicial Commissioners will have to make decisions without the benefit of adversarial argument. We agree with the Independent Reviewer of Terrorism that Judicial Commissioners must have access to both in-house legal expertise and, on request, security-cleared independent counsel to assist them in both the authorisation and oversight functions of their role. (Recommendation 62)
Technical advice and access
635.The Interception of Communications Commissioner’s Office told us that effective oversight required that the Judicial Commissioners must be “provided with access to technical systems to assist audits, inspections and inquiries to be carried out. Any new technical systems (e.g. secure automated CSP disclosure systems, the request filter, workflow systems managing applications and authorisations) must be developed with oversight and audit functions in mind.”603 Such a mandate would contribute to compliance with the European Convention on Human Rights by assisting the Judicial Commissioners in providing effective oversight.604
636.Sir Mark Waller, the Intelligence Services Commissioner, told us that the functions covered by his office did not need “a great deal of technical expertise.”605 Lord Judge told us, however, that in his view the Judicial Commissioners would require “one or two people with serious expertise in technology” in order to fulfil their functions.606 David Anderson QC said that technical expertise would enhance the ability of the Judicial Commissioners to fulfil their oversight function noting “I have very high regard for what the commissioners have done, but I remarked in my report that it was not the courts, commissions or committees of London that disclosed to the British people what was going on; it was the revelations that originally came from Mr Snowden. That is not the way it should be.”607
637.We recommend that the Judicial Commissioners should have a legal mandate to access all relevant technical systems required to ensure effective oversight of the powers contained in the Bill. This mandate should appear on the face of the Bill. (Recommendation 63)
638.We recommend that the Judicial Commissioners should have access to technical expertise to assist them in fulfilling their authorisation and oversight functions. (Recommendation 64)
Other powers and duties
639.Clause 172(3) requires the Judicial Commissioners to consult the Home Secretary before advising or providing information to a public authority “or any other person” if the Judicial Commissioner believes providing the advice or information may be contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom, or the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner. JUSTICE expressed concern that the drafting of this clause could require the Judicial Commissioners to consult the Home Secretary before advising the Investigatory Powers Tribunal on a point of law, and that this could mar the Judicial Commissioners’ independence.608 It is unclear what purpose the application of the duty to consult the Home Secretary would serve when the issue is legal advice to a court and it appears this may be an unintended and inappropriate consequence of the drafting.
640.The Judicial Commissioners should be able to communicate with the Investigatory Powers Tribunal on a point of law without consulting the Home Secretary. Clause 172(3) should be redrafted to reflect this. (Recommendation 65)
641.We were told that the draft Bill does not contain a power for the Judicial Commissioners to refer matters to the Investigatory Powers Tribunal for consideration. The RUSI report on surveillance recommended that the Judicial Commissioners have a statutory right to refer cases to the IPT where they find a material error or arguable illegality or disproportionate conduct.609 The Interception of Communication Commissioner’s Office agreed. It said that this power should be “express” to allow the two bodies to carry out their respective roles “the Investigatory Powers Commissioner as an audit and investigation body” and the Investigatory Powers Tribunal as “the means by which individuals can seek remedy where they believe they have been a victim of unlawful action under RIPA or human rights infringements.”610 JUSTICE added that this power “could be particularly useful where an issue affects a group or class of individuals unlikely to pursue an individual claim before the Tribunal; or in circumstances where the interpretation of the law or its application to a new practice may be in doubt.”611
642.The Judicial Commissioners should be able to make a direct reference to the Investigatory Powers Tribunal where they have identified unlawful conduct following an inspection, audit, investigation or complaint. (Recommendation 66)
643.Clause 174(2) sets out the mandatory requirements of the Investigatory Powers Commissioner’s annual report for the Prime Minister. The Information Commissioner told us that the report must contain information on the “results achieved” from the use of investigatory powers. “This is essential to judging whether measures are necessary”, the Information Commissioner said, and would assist in “effective post-legislative scrutiny.”612
644.The Information Commissioner also suggested that “transparency would be … aided” if the IPC’s annual reports contained figures on the number of warrants or notices that have been served at one time, although without the names of the organisations involved: “Expanding the breadth of the IPC’s reports will also be a welcome step towards further increased transparency, a prerequisite for helping maintain public trust and confidence.”613
645.When considering the arguments for an expanded annual report we noted that the draft Bill gives the Prime Minister the power to redact the Investigatory Powers Commissioner’s reports, after consultation with the Investigatory Powers Commissioner. The redacted report is then laid before Parliament.614 The “wide discretion” available to the Prime Minister under this provision caused Amnesty International UK some concern.615
646.The Investigatory Powers Commissioner’s annual report must include information about the impact, results and extent of the use of powers in the Bill so effective public and parliamentary scrutiny of the results of the powers can take place. (Recommendation 67)
647.The Investigatory Powers Commissioner should be able to inform the Intelligence and Security Committee if he or she is unhappy about the use of the Prime Minister’s power to redact his annual report. (Recommendation 68)
Issuing guidance
648.The Anderson report recommended that the Judicial Commissioners should have the power to issue guidance to public authorities applying for warrants and authorisations. The guidance would “supplement the new law and any codes of practice issued under it and … should be published where the constraints of national security permit.”616
649.We recommend that the Judicial Commissioners should have the power to develop guidance to public authorities to assist them in applications seeking to use investigatory powers. This will help applicant bodies to formulate focused applications saving time and resources. Where the constraints of national security allow, the guidance should be published in the interests of public transparency and foreseeability. (Recommendation 69)
The Investigatory Powers Tribunal
Power of appeal
650.The Investigatory Powers Tribunal does not have a route of appeal beyond an application to the European Court of Human Rights on a point of human rights law.617 Clause 180 creates a new right of appeal from the Investigatory Powers Tribunal. An appeal may be made if it would raise an important point of principle or practice, or if there is another compelling reason for granting leave.618 An appeal may only be made with the leave of the Investigatory Powers Tribunal or the court which would have jurisdiction to hear the appeal—the Court of Appeal in England and Wales or a court specified in regulations by the Home Secretary.619
651.The introduction of a right of appeal, which was recommended by both the Anderson and RUSI reports,620 was welcomed by witnesses.621 The restrictive nature of the right of appeal was though the subject of negative comment. Martin Chamberlain QC told us:
“This restrictive test is modelled on the test for second appeals in rule 52.13(2) of the Civil Procedure Rules 1998. But this is a first appeal. It is unclear why such a restrictive test is considered necessary here. There is no similar restriction on appeal from the Special Immigration Appeals Commission (see s. 7 of the SIAC Act 1997, which confers a right of appeal “on any question of law material to [the] determination”).”622
652.Matthew Ryder QC said the way the right to appeal was drafted was “at best, unhelpful” because it could constrain the Court of Appeal to refuse leave to appeal “even if it considers there are arguable grounds that the Investigatory Powers Tribunal made a significant error of law” because that error of law did not raise an “’important point of principle and practice’”.623 Mr Ryder described such an outcome as “unconscionable” as identified errors of law would be without remedy or appeal. In A Question of Trust, David Anderson QC recommended that an appeal from the Investigatory Powers Tribunal should be available for an error of law.624
653.JUSTICE raised two concerns over the proposed appeal process. The first was that the right to appeal only seems to apply to a final judgment not to interim legal decisions during proceedings. “This could lead to unfairness and wasted resources as proceedings may continue to a full determination on the basis of an error in law, only to result in an appeal at a later stage.” JUSTICE also queried the decision to provide that an appeal in Scotland and Northern Ireland would be heard by a court specified by the Home Secretary: “delegation of this kind is inappropriate. Routes of appeal should be specified on the face of the Bill.”625
654.We recommend that the right of appeal from the Investigatory Powers Tribunal in Clause 181 should be amended to include cases where there has been an error of law to prevent injustice as a matter of public policy and to satisfy the rule of law. (Recommendation 70)
655.We recommend that rulings in the Investigatory Powers Tribunal should be subject to an interim right of appeal on the grounds of an error of law to save time and costs. (Recommendation 71)
656.We recommend that the appeal route for Scotland and Northern Ireland should appear on the face of the Bill. It is unclear to us why there is not a specified route of appeal in Scotland and Northern Ireland nor what appellants in those parts of the United Kingdom are expected to do before the Home Secretary issues regulations on this issue. (Recommendation 72)
Review of procedures and processes
657.Both the reviews carried out by the Independent Reviewer of Terrorism Legislation and the Royal United Services Institute (RUSI) recommended an overhaul of the Investigatory Powers Tribunal. RUSI recommended that “The Investigatory Powers Tribunal (IPT) should be as open as possible and proactively find ways that make its business less opaque to the public.”626 Mr Anderson observed that public confidence in the IPT was not encouraged by the fact that “1,673 complaints determined by the end of 2013, only 10 were upheld—five of them involving members of the same family, and none of them against the security and intelligence agencies.”627 The recommendations to review the IPT are not addressed by the draft Bill.
658.A number of witnesses complained that the Investigatory Powers Tribunal operated in an “opaque”628 manner with a “bias towards secrecy”.629 Specific concerns were directed at the use of closed hearings, the lack of special counsel for claimants, the restrictions on disclosure and evidence and the limited reasons given to claimants even when they are successful.630 Matthew Ryder QC told us that “any blanket prohibition on publicity of categories of IPT judgments (e.g. an absolute ban on providing any details of a finding against a complainant) is undesirable and should be reconsidered.”631 Rachel Logan of Amnesty International UK told us that the “sparse” judgement meant her organisation had “found very little out” from a case it won in the IPT.632 Ms Logan also told us that Amnesty International UK had been unable to get an explanation for why it had initially been told that it had not been successful in that case, only to later be told that there had been a mistake, Amnesty International UK had won but the IPT had apparently confused the organisation with another claimant:633
“That was following a hearing that supposedly was looking in the most detailed consideration at our rights and at particular communications that had been intercepted and whether that was lawful and proportionate. We asked, quite rightly, “How can this happen?”, and asked for an open determination explaining how a mistake of this kind had been made. We received a very unsatisfactory response from the tribunal. Indeed, Parliamentary Questions have been asked about this by quite a few Members of the House—both Houses, in fact—seeking a Statement from the Secretary of State, asking whether other human rights organisations have been in the same position, and nothing has been forthcoming.”634
659.Amnesty International UK concluded that the IPT’s rules and procedures impaired the “essence of fair trial rights” and did not constitute an effective oversight body.635
660.The Home Office should conduct a consultation and review of the powers and procedures of the Investigatory Powers Tribunal with the aim of improving openness, transparency and access to justice. (Recommendation 73)
661.In its report, the Royal United Services Institute recommended that the IPT “should hold open public hearings, except where the Tribunal is satisfied that private or closed proceedings are necessary in the interests of justice or other identifiable public interest.”636
662.Martin Chamberlain QC told us that the Investigatory Powers Tribunal had recognised in 2003 that as much of its proceedings must be held in public as possible.637 To date such disclosure as was made as a result of the open hearings had been made with the consent of the intelligence agencies. Mr Chamberlain suggested that:
“It would add to the credibility of the IPT as an oversight mechanism, and to its ability to contribute to compliance with Article 8 standards, if it were given express power to decide for itself whether material deployed before it should be made public and to what extent. In exercising this power, it would of course consider carefully any arguments made to it by the agencies that disclosure would be damaging to national security or another protected public interest, but it would ultimately have the function of deciding that question for itself.”638
663.The Investigatory Powers Tribunal should have the power to decide whether its proceedings should be held in public. When making a decision on whether a hearing or part of a hearing should be open or not the Tribunal should apply a public interest test. (Recommendation 74)
664.The IPT is not a “senior court” which means it is not able to make a declaration of incompatibility under section 4 of the Human Rights Act 1998. In A Question of Trust, David Anderson QC recommended that the IPT should have this capacity.639 Both Liberty and JUSTICE supported this recommendation.640
665.Mr Anderson observed that his recommendation that the IPT be empowered to make a declaration of incompatibility was in based in part of the lack of an appeal from the IPT to a higher court which was able to make such a judgment. The draft Bill introduces a right of appeal but it is drafted in restrictive terms and requires that the appeal engage an “important point of principle and practice”.641 Allowing the IPT to make a declaration of incompatibility will improve access to justice in this area.
666.The Investigatory Powers Tribunal should be able to make a declaration of incompatibility under the Human Rights Act. (Recommendation 75)
The oversight landscape
667.As noted above, the draft Bill greatly simplifies the oversight landscape by replacing the three surveillance commissioners with one. We heard evidence, that further simplification could be undertaken. The Interception of Communications Commissioner’s Office (IOCCO) said: “In our view there is still considerable room to revise the oversight provisions to simplify the oversight landscape, avoid overlaps and ensure consistency of decision making.”642 Other witnesses drew attention to the provisions in the draft Bill concerning the Information Commissioner. Open Intelligence said: “some oversight functions of the bill are still given to another body, the ICO. For completeness, the obligations under cl 182 should also be carried out by the IPC.”643 Vodafone commented:
“at the moment, it appears that the Information Commissioner’s Office, rather than the Investigatory Powers Commissioner, will be responsible for assessing some aspects of a provider’s compliance. We fear that this bifurcated approach is likely to lead to a complexity and confusion, when what is needed is a simple and strong oversight regime.”644
668.Virgin Media expressed similar concerns on the grounds that “the IPC … will have extensive audit rights and considerable knowledge of any infrastructure. We believe this is the best approach to ensure security of the retained data.”645
669.The Information Commissioner told us that his role in auditing Communication Service Providers’ infrastructure ensuring the security of retained data could be made easier if the draft Bill addressed a number of practical points such as ensuring the CSPs were obliged to cooperate with him and extending the criminal sanctions he and his staff faced if they revealed data they obtained in the course of an investigation to the ICO’s communications with CSPs.646
670.We have heard evidence that there is potential for the further simplification of the oversight landscape. This would improve transparency, reduce overlaps and ensure consistency of decision-making which would all contribute to ensuring oversight of the powers contained in the Bill comply with international law standards. We recommend that the Home Office should carry out a review to identify areas in which further simplification of oversight could occur. (Recommendation 76)
Privacy and Civil Liberties Board
671.The Committee notes that the Privacy and Civil Liberties Board, whose creation was authorised under section 46 of the Counter-Terrorism and Security Act 2015 has not yet been created by the Government. We call on the Government to outline its plans for the establishment of the Privacy and Civil Liberties Board. (Recommendation 77)
479 European Court of Human Rights Klass v Germany (1978) 2 EHRR 214 and Zakharov v Russia (2015) application no. 47143/06
481 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, para 12.86
482 Royal United Services Institute (RUSI), A Democratic Licence to Operate: Report of the Independent Surveillance Review, July 2015, p.xii
483 Intelligence and Security Committee (ISC), Privacy and Security: A modern and transparent legal framework, 12 March 2015, HC 1075, Recommendation JJ
484 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015
486 Ibid.
487 Ibid.
490 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, Recommendation 82
494 Written evidence from McEvedys Solicitors (IPB0138) See also written evidence from Liberty (IPB0143)
496 Clause 167(1)
497 Clause 167(2). Senior judge is used as defined in Part 3 of the Constitutional Reform Act 2005.
503 For example, written evidence from the Bar Council (IPB0134), Privacy International (IPB0120) and Cian C Murphy and Natasha Simonsen (IPB0096)
510 The Lord Chief Justice, The Lord Chief Justice’s Report 2015, January 2016
514 Ibid.
515 Clause 168(2) and (3)
526 Clause 168(4)
527 Whether the sentence of imprisonment is suspended or not Clause 168(5)(d)
528 Clause 168(5)(a)
529 Clause 168(5)(b)(i) and 168(5)(c)
530 Clause 168(5)(b)(ii) and (iii)
531 Clauses 168(6)(a) and 168(7)
532 Clauses 168(6)(b) and 168(7)
533 Constitutional Reform Act 2005, section 180
535 Ibid.
538 Clause 176(2)
539 Home Office, Draft Investigatory Powers Bill: Explanatory Notes, Cm 9152, November 2015, para 409
552 House of Commons Administration Act 1978; National Audit Act 1983: Political Parties, Elections and Referendums Act 2000; Parliamentary Standards Act 2009, Schedule 1, paragraph 22
553 Home Office, Draft Investigatory Powers Bill: Explanatory Notes, Cm 9152, November 2015, para 410
560 For example, written evidence from Amnesty International UK (IPB0074), Cian C Murphy and Natasha Simonsen (IPB0096), Privacy International (IPB0120) and Liberty (IPB0143)
564 Written evidence from Open Rights Group (IPB0108), European Court of Human Rights Zakharov v Russia (2015) application no. 47143/06
567 Clause 171(1)
568 Clause 171(2)(ii)
569 Clause 171(11)
570 Clause 171(3)
571 Clause 171(4)
572 Clause 171(5)
573 Clause 171(10)
574 The Interception of Communications Commissioner, Report of the Interception of Communications Commissioner, March 2015
581 Ibid.
587 Article 2, 5 and 3 of the European Convention on Human Rights, respectively
591 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, Recommendation 99
596 As set out in Open Society Foundations, Global Principles on National Security and the Right to Information (Tshwane Principles), 12 June 2013
598 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, Recommendation 110 and written evidence from David Anderson QC (IPB0152)
604 For example, European Court of Human Rights Zakharov v Russia (2015) application no. 47143/06
609 Royal United Services Institute (RUSI), A Democratic Licence to Operate: Report of the Independent Surveillance Review, July 2015, Recommendation 16
613 Ibid.
614 Clause 174(4)
616 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, Recommendation 84(f)
617 Regulation of Investigatory Powers Act 2000 sections 65–68
618 Clause 180(4)
619 Clause 180
620 Royal United Services Institute (RUSI), A Democratic Licence to Operate: Report of the Independent Surveillance Review, July 2015, Recommendation 14; David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, Recommendation 114
621 For example, written evidence from the Bingham Centre for the Rule of Law (IPB055) and Cian C Murphy and Natasha Simonsen (IPB0096)
624 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, Recommendation 99
626 Royal United Services Institute (RUSI), A Democratic Licence to Operate: Report of the Independent Surveillance Review, July 2015, Recommendation 11
627 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, para 6.106
630 Written evidence from Open Intelligence (IPB0066), Amnesty International UK (IPB0074) and JUSTICE (IPB0148)
633 Ibid.
634 Ibid.
636 Royal United Services Institute (RUSI), A Democratic Licence to Operate: Report of the Independent Surveillance Review, July 2015, Recommendation 12
637 Written evidence from Martin Chamberlain QC (IPB0133); Investigatory Powers Tribunal, Kennedy and Other Ruling, IPT/01/62& 77
639 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, Recommendation 115
641 Clause 180