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Hybrid institutions in the national security constitution: the case of the Commissioners

Published online by Cambridge University Press:  26 March 2019

Paul F Scott Open the ORCID record for Paul F Scott [Opens in a new window]
Paul F Scott*
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School of Law, University of Glasgow, Glasgow, UK
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*Author email: Paul.Scott@glasgow.ac.uk
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Abstract

This paper proposes the concept of a ‘hybrid institution’, defined with reference to certain institutions within the UK's constitutional order which provide oversight of national security processes. It focuses in particular on the Commissioners who have overseen and oversee the use of investigatory powers and the work of the intelligence services. These institutions, as was once said of another hybrid institution – the Independent Reviewer of Terrorism Legislation – are designed in order to operate within situations in which ‘potential conflicts between state power and civil liberties are acute, but information is tightly rationed’. They are ‘hybrid’ institutions in that they marry certain of the features characteristic of political institutions with others characteristic of legal institutions. The paper considers the relevant institutions and the role they play within the national security constitution, showing how their hybrid status facilitates the performance of a function which neither fully legal nor fully political institutions could fulfil.

Keywords

public lawnational securitycommissionershybrid institutions
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 3 , September 2019 , pp. 432 - 454
Copyright
Copyright © The Society of Legal Scholars 2019 

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Footnotes

†

This is an elaboration of a paper first presented at SLS 2017 in Dublin – I thank attendees at the session for their helpful comments and questions. I am also grateful to Marta Iljadica, Byron Karemba, Fiona Leverick, Chris McCorkindale and Adam Tomkins for helpful comments, as well as to the two anonymous reviewers for Legal Studies. Errors which remain are, of course, my own.

References

1 I take for granted here that the constitutional actor with primary responsibility for national security is the executive. For a challenge to the usual assumption that the unitary executive is institutionally best-suited to pursuit of national security objectives see Pearlstein, DN ‘Form and function in the national security constitution’ (2008–09) 41 ConnLR 1549Google Scholar.

2 The language of hybridity has been used to describe, amongst other things, the Joint Committee on Human Rights, which does not fit the pattern I identify here: see eg Kavanagh, A ‘The joint committee on human rights: a hybrid breed of constitutional watchdog’ in Hunt, M, Hooper, H and Yowell, P (eds) Parliaments and Human Rights: Redressing the Democratic Deficit (Oxford: Hart, 2015)Google Scholar.

3 D Anderson QC ‘The independent review of terrorism laws’ [2014] PL 403 at 421.

4 The literature on this topic is vast: some important contributions (limiting myself to those relating to the UK) include Griffith, JAG ‘The political constitution’ (1979) 42 MLR 1CrossRefGoogle Scholar; T Poole ‘Tilting at windmills? Truth and illusion in the political constitution’ (2007) MLR 250; Gee, G ‘The political constitutionalism of J.A.G. Griffith’ (2008) 28 Legal Studies 20CrossRefGoogle Scholar; Gee, G and Webber, G ‘What is a political constitution?’ (2010) 30 OJLS 273CrossRefGoogle Scholar; Tomkins, A ‘What's left of the political constitution?’ (2013) 14 GLJ 2275CrossRefGoogle Scholar.

5 While those who had already been made life peers are now disqualified also from sitting in the House of Lords while they remain on the bench: Constitutional Reform Act 2005, s 137(3)–(5).

6 The House of Commons (Disqualification) Act 1971, s 1 disqualifies from membership of the Commons holders of the judicial offices specified in Part I of Schedule 1 to that Act; Justices of the Supreme Court were added to that list by the Constitutional Reform Act 2005, s 137.

7 Constitutional Reform Act 2005, Part IV, Chapter 2 (though appointments to the Supreme Court are dealt with separately, under ss 25–31).

8 Senior Courts Act 1981, s 11, and Constitutional Reform Act 2005, s 33.

9 See Griffith, above n 4.

10 The extent to which the independence of individual MPs (and so, in turn, the scrutiny by Parliament of the executive) is undermined by the whip system is a subject of dispute. Much of the literature arguing for the superiority of legal institutions assumes that Parliament is incapable of fulfilling the constitutional role assigned to it, though that assumption is problematised by, eg, the work of P Cowley on backbench rebellion: see The Rebels: How Blair Mislaid His Majority (London: Politico's, 2005)Google Scholar. The judgment of Lord Reed in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 contains a defence of the whip system which is at odds with the assumptions which appear to underlie much modern judicial decision-making.

11 As recognised by the significant – but by no means infinite – deference afforded to the executive in the domain of national security generally, and counter-terrorism specifically. For a discussion of the evolution of this deference over time, see Kavanagh, A ‘Constitutionalism, counter-terrorism and the courts: changes in the British constitutional landscape’ (2011) 9 ICON 172Google Scholar.

12 The work of the Special Advocates is supported by the Special Advocates Support Office, established in 2006: see Special Advocates Support Office Guide to the Role of Special Advocates and the Special Advocates Support Office: Open Manual (2006). The SASO itself has a closed branch the lawyers and administrators within which are security-cleared and ‘therefore have access to both open and closed material’ ([87]).

13 Currently Mrs Justice Elisabeth Laing is the Chairman of the Special Immigration Appeals Commission, the Proscribed Organisations Appeal Commission and the Pathogens Access Appeals Commission.

14 Any person who reads with any frequency decisions of the High Court relating to national security (broadly understood) will soon recognise a pattern of names which recur.

15 See also C Barton and L Audickas Social Background of MPs 1979–2017, House of Commons Library Briefing Paper 7483 (2016), which contains details of the employment background of MPs within the relevant time frame and identifies 13 MPs elected at the 2015 general election with a background in the armed services, all but one of them representing the Conservative Party.

16 For a breakdown see M Russell and M Benton Analysis of Existing Data on the Breadth of Expertise and Experience in the House of Lords: Report to the House of Lords Appointments Commission (March 2010) and House of Lords Library Note House of Lords: Backgrounds in Public Life, LLN 2017/019 (2017). The latter identifies amongst members of the Lords four former Home Secretaries, three former Foreign Secretaries, two former Directors-General of the Security Service (MI5), six former Chiefs of the Defence Staff, eleven former or current Justices of the Supreme Court, and two former Secretaries-General of NATO.

17 See eg Scott, PF The National Security Constitution (Oxford: Hart, 2018)Google Scholar. We are therefore dealing both with institutions specific to the national security domain (as in the present paper) and with institutions whose work is only occasionally or potentially concerned with the topic. The leading consideration of the term ‘national security’ in the UK remains that found in Secretary of State for the Home Department v Rehman [2001] UKHL 47. For consideration of the key terms ‘constitution’ and ‘national security’, see Scott, above, pp 5–6 and 281–286.

18 As, for example, in the public interest immunity process: see R v Chief Constable of West Midlands, ex p Wiley [1995] 1 AC 274.

19 See the discussion in R Brazier ‘It is a constitutional issue: fitness for ministerial office in the 1990s’ [1990] PL 431.

20 See SSHD v HM Senior Coroner for Surrey [2016] EWHC 3001 (Admin).

21 For the classic exposition of the principle of open justice see Scott v Scott [1913] AC 417, as well as the discussion in Al Rawi v Security Service [2011] UKSC 34.

22 On in camera trials in the criminal context see Scott, P ‘An inherent jurisdiction to protect the public interest: from PII to “secret trials”’ (2016) 27 KLJ 259CrossRefGoogle Scholar.

23 An overview of these mechanisms is provided in Tomkins, A ‘Justice and security in the United Kingdom’ (2014) 47 IsLR 305Google Scholar.

24 Justice and Security Act 2013, Part 2. The 2013 Act allows for the making of a declaration under s 6 only (amongst other conditions) where the proceedings are proceeding a party to which would be required to disclose ‘sensitive’ material – that is, ‘material the disclosure of which would be damaging to the interests of national security’. This differs from other context-specific powers to hold a closed hearing, where the basis of a closed hearing is broader, usually that of an unqualified public interest.

25 By the Regulation of Investigatory Powers Act 2000, supplanting the Security Service Tribunal (under the Security Service Act 1989), the Intelligence Services Tribunal (the Intelligence Services Act 1994) and the Interception of Communications Tribunal (under the Interception of Communications Act 1985).

26 See the discussion in Tomkins, above n 23.

27 R v Sussex Justices, ex p McCarthy [1924] 1 KB 256.

28 Though the IPT is unusual amongst courts in having a very broad approach to standing, effectively being under a duty to determine any complaint made to it unless ‘it appears… that the bringing of the proceedings or the making of the complaint or reference is frivolous or vexatious’: RIPA 2000, s 67(4). This rule (along with ‘the absence of any evidential burden to be overcome in order to lodge an application with the IPT’) was emphasised by the European Court of Human Rights in deciding that, assuming that Art 6 was engaged, the IPT's procedures were not incompatible with it: Kennedy v United Kingdom (2011) 52 EHRR 4 at [190].

29 It was provided by RIPA that ‘[e]xcept to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’. No such order was ever made, and the implications of this clause for the IPT's amenability to judicial review are before the courts: see R (Privacy International) v Investigatory Powers Tribunal [2017] EWCA Civ 1868. The 2016 Act contained a provision creating an appeal right (on second-tier appeal criteria) to the Court of Appeal/Court of Session, but that has not yet been brought into force. A consultation in late 2017 indicated an intention to do so: Home Office Investigatory Powers Tribunal Consultation: Updated Rules (2017).

30 Though see Bank Mellat v Her Majesty's Treasury (No 1), addressing the situation in which the relevant statute (the Counter-Terrorism Act 2008) had not made explicit provision for appeals to the Supreme Court, and the (weak) authority of the Constitutional Reform Act 2005 were relied upon instead. In R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 it was held that where the original decision-maker enjoys a power to hold a closed hearing, so too does a court reviewing its decision on judicial review.

31 See House of Commons Information Office Some Traditions and Customs of the House, Factsheet G7 General Series (Revised August 2010) 5: ‘The House nowadays allows members of the public to be present at its debates, though not at prayers. This, however, was not always the case and the right to debate a matter in private is maintained. Should it be desired to conduct a debate in private, a Member moves “That this House sit in private”, the Speaker, or whoever is in the Chair, must then put the motion “That this House sit in private” without debate. The House last sat in private on the 4 December 2001 when it was debating the Anti-terrorism, Crime and Security Bill. Once in private session, no verbatim, sound or television record of that session can be made’. A history of the use of this procedure in the context of war is provided in chapter 5 of Fikfak, V and Hooper, HJ Parliament's Secret War (Oxford: Hart, 2018)Google Scholar. For a more general consideration of Parliament's role in ensuring accountability in the national security context see Horne, A and Walker, C ‘Parliament and national security’ in Horne, A and Le Sueur, A (eds) Parliament: Legislation and Accountability (Oxford: Hart, 2016)Google Scholar.

32 The oath of a Privy Councillor includes a commitment to ‘keep secret all matters committed and revealed unto you, or that shall be treated of secretly in Council’. Hayley Hooper has noted that ‘once a Privy Counsellor receives his or her briefing, its contents cannot be discussed openly on the Floor of the House’ and that it has been suggested in the past that ‘such briefings can be used strategically by the government to tacitly remove certain questions or issues from the political agenda’. HJ Hooper ‘Voting on military action in Syria: part II’ UK Constitutional Law Blog (1 December 2015). The common claim that all members of the ISC must be Privy Counsellors is false: Bochel, H, Defty, A and Kirkpatrick, J Watching the Watchers: Parliament and the Intelligence Services (Basingstoke: Palgrave Macmillan, 2014) pp 77–78Google Scholar.

33 For a consideration of Parliament's role in the context of legislation enacted during and related to the ‘war on terror’ see Shephard, M ‘Parliamentary scrutiny and oversight of the British “war on terror”: from accretion of executive power and evasion of scrutiny to embarrassment and concessions’ (2009) 15 JLS 191Google Scholar.

34 The issue of confidential material before Parliamentary committees generally is dealt with in the Osmotherly rules: Cabinet Office Giving Evidence to Select Committees – Guidance for Civil Servants (October 2014) at [47]–[53].

35 Justice and Security Act 2013, Part 1. See also HM Government Justice and Security Green Paper, Cm 8194 (2011) ch 3 and, before that, Ministry of Justice, The Governance of Britain, Cm 7170 (2007) 32.

36 ISA 1994, Sch 3, para 1(3).

37 JSA 2013, Sch 1, para 1(2)(c).

38 JSA 2013, s 1(6).

39 In practice several members possess potentially relevant experience. The present Chair, Dominic Grieve, is a former Attorney General, while other members include a graduate of the Royal Military Academy (Richard Benyon, Conservative), a Naval Lieutenant (Lord Janvrin, Crossbench), a former Minister of State for Security, Counter-Terrorism, Crime and Policing (David Hanson, Labour), and a Queen's Counsel (The Marquess of Lothian, Conservative).

40 JSA 2013, s 2(1)(a). Cf Intelligence Services Act 1994, s 10, which refers instead to ‘expenditure, administration and policy’.

41 JSA 2013, s 2(2).

42 Intelligence and Security Committee Annual Report 2013–2014 (HC 794, 2013-14) Annex A.

43 ISC, above n 42.

44 JSA 2013, s 2(3), outlining the limited circumstances under which the ISC may consider ‘operational matters’.

45 JSA 2013, s 2(3).

46 JSA 2013, Sch 1, para 4(a)(i). Paragraph 5 provides that information is ‘sensitive’ if it falls into one of three categories:

  • ‘(a)

    ‘(a) information which might lead to the identification of, or provide details of, sources of information, other assistance or operational methods available to (i) the Security Service, (ii) the Secret Intelligence Service, (iii) the Government Communications Headquarters, or (iv) any part of a government department, or any part of Her Majesty's forces, which is engaged in intelligence or security activities,

  • (b)

    (b) information about particular operations which have been, are being or are proposed to be undertaken in pursuance of any of the functions of the persons mentioned in paragraph (a)(i) to (iv),

  • (c)

    (c) information provided by, or by an agency of, the Government of a country or territory outside the United Kingdom where that Government does not consent to the disclosure of the information’.

47 JSA 2013, Sch 1, para 4(4)(a)(ii).

48 JSA 2013, Sch 1, para 4(b).

49 JSA 2013, s 3(1) and (2).

50 JSA 2013, s 3(3) and (4).

51 See eg Intelligence and Security Committee Privacy and Security: A Modern and Transparent Legal Framework (HC 2014–15, 1075), untitled and unnumbered preface (the same preface is found in most if not all of the ISC's reports). See however the ISC's report on drone strikes in Syria, where the government's proposed redactions were accepted in their entirety not because the ISC agreed with them, but because it was the only way to have the report published before the 2017 general election: Intelligence and Security Committee UK Lethal Drone Strikes in Syria (HC 2016–17, 1152) at [11]–[13].

52 JSA 2013, s 3(7).

53 Such institutions are often neglected in the literature considering the question of which institutions should be relied upon for oversight within the national security context: see for example F de Londras and Davis, FF ‘Controlling the executive in times of terrorism: competing perspectives on effective oversight mechanisms’ (2010) 30 OJLS 19Google Scholar, which debates whether oversight is best provided by legislative or judicial mechanisms (assuming – like the present work – that we do not want to simply ‘trust the Executive to behave responsibly and lawfully’ (19)) but addresses only the ‘pure’ forms of such institutions.

54 On which see D Anderson QC ‘The independent review of terrorism legislation’ [2014] PL 403 and ‘The independent review of terrorism legislation’ (2011) EHLRL 544; Blackbourn, J ‘Evaluating the independent reviewer of terrorism legislation’ (2014) 67 PA 955Google Scholar and ‘Independent reviewers as alternative; an empirical study from Australia and the UK’ in Davis, FF and de Londras, F (eds) Critical Debates on Counter-Terrorism Judicial Review (Cambridge: Cambridge University Press, 2014)CrossRefGoogle Scholar.

55 Still others might equally be taken to exemplify the phenomenon at issue in the same policy context: see, for instance, the Security Commission, which was responsible for reviewing security breaches (but has become moribund in the last decade) but lacked a roving jurisdiction, reporting only on matters referred to it by the Prime Minister. During a debate on what became the Justice and Security Act 2013, Lord Lloyd of Berwick – who had earlier carried out a major review of terrorism legislation – suggested that the functions which had once been exercised by the Commission should be handed over to the ISC: ‘[f]uture historians would no longer have to worry about whatever happened to the Security Commission and we would have given that body what one might call a decent burial’ Hansard, HL Deb, vol 738, col 1008, 9 July 2012. On the Security Commission generally, see I Leigh and L Lustgarten ‘The Security Commission: constitutional achievement or curiosity?’ [1992] PL 215.

56 A special consultation process applies where it is proposed to appoint a judge to an inquiry panel: Inquiries Act 2005, s 10.

57 See eg Sir William Gage The Report of the Baha Mousa Inquiry (HC 2011–12, 1452-I), and Sir Thayne Forbes The Report of the Al Sweady Inquiry: Executive Summary (HC 2014–15, 819). A discussion of the historical use of inquiries in the security context is found in Lustgarten, L and Leigh, I In From the Cold: National Security and Parliamentary Democracy (Oxford: Oxford University Press, 1994) ch 17Google Scholar. Lustgarten and Leigh note, at pp 487–488, the tendency to call upon the same individuals repeatedly and, at 488ff, identify possible problems caused by judicial involvement in such matters, including possible harm to judicial reputations, and damage to the impression of judicial impartiality where those who have carried out such inquiries later decide cases raising national security issues.

58 Hansard, HC Deb, vol 513, col 176, 6 July 2010.

59 It therefore had no statutory power to compel the giving of evidence, or to require the provision of material. Instead, a Protocol agreed with the government stated that it would receive ‘the full support of, and cooperation from, HMG and its security and intelligence agencies. This includes access to all relevant government papers, and an expectation that serving government officials will attend as witnesses if the Inquiry so requests’: The Detainee Inquiry and HM Government Protocol for the Detainee Inquiry at [4].

60 Crown Prosecution Service statement: Operation Lydd, 9 June 2016.

61 Intelligence and Security Committee, Detainee Inquiry – Press Release (19 December 2013): ‘The Detainee Inquiry, headed by Sir Peter Gibson, has today published its report summarising the preparatory work of the Inquiry and highlighting the themes and issues which the Inquiry believes should be subject to further examination… The Prime Minister has asked the Committee to consider those issues identified by Sir Peter Gibson. The Committee has agreed to undertake this responsibility’.

62 In the press release announcing its assumption of responsibility for these matters, the ISC noted that the previous investigations it had carried out on related topics had been limited as a result of the prior statutory regime governing its acquisition from the SIAs of relevant material: ‘At that time the intelligence Agencies were not under any statutory obligation to provide the Committee with all relevant information in their possession. They were entitled to reach their own decision as to what to provide. Since those reports were produced, the ISC has been given important new powers under the Justice and Security Act. The Agencies are now under a statutory obligation to provide the Committee with all relevant material. The Committee now has a statutory right to consider all aspects of work across the intelligence community, which is backed by the power for its staff to go into the Agencies themselves and inspect their files’: ISC, above n 61. When the ISC's second round of reports on UK involvement in rendition were published, it became clear that these powers remain insufficient: ‘We reached the point in our Inquiry where we had covered the breadth of the issues but needed to examine certain matters in detail, which could only be done by taking evidence from those who had been on the ground at the time. We have been denied that access’: Intelligence and Security Committee Detainee Mistreatment and Rendition: 2001–2010 (HC 2017–19, 1113) at 1.

63 There is relatively little consideration of the Commissioners within the literature, though the material which exists is cited at the relevant points below. For a consideration of them within the wider accountability context see Moran, J and Walker, C ‘Intelligence powers and accountability in the UK’ in Goldman, ZK and Rascoff, SJ Global Intelligence Oversight: Governing Security in the Twenty-First Century (Oxford: Oxford University Press, 2016)Google Scholar.

64 Investigatory Powers Act 2016, Part 8, Chapter 1. The 2016 Act is considered in full in McKay, S Blackstone's Guide to the Investigatory Powers Act 2016 (Oxford: Oxford University Press, 2018)Google Scholar.

65 Section 4 of the Official Secrets Act 1920 put in place an authority of sorts for the interception of ‘external’ communications – that is, those sent to or from (but not within) the UK.

66 Lord Diplock The Interception of Communications in Great Britain Cmnd 8191, 1981. A year earlier, Lord Diplock had reported on the law regarding interception of communications: Lord Diplock The Interception of Communications in Great Britain Cmnd 7873, 1980. See, before this, Report of the Committee of Privy Councillors Appointed to Inquire into the Interception of Communications (1957) (the Birkett report). Later, Lord Bridge would produce a rushed and poorly-received report into the claim, made by Cathy Massiter, of politically-motivated action by MI5: see the discussion in Lustgarten and Leigh, above n 57, pp 489–490 and Ewing, KD and Gearty, C Freedom under Thatcher: Civil Liberties in Modern Britain (Oxford: Oxford University Press, 1990) pp 54–55Google Scholar.

67 Interception of Communications Act 1985, s 8. The Commissioners were, in the period before RIPA was enacted, Sir Anthony Lloyd, Sir Thomas Bingham, and Lord Nolan. See Lustgarten and Leigh, above n 57, pp 62–65.

68 Security Service Act 1989. The only Security Services Commissioner in the period in which the post existed was Lord Justice Stuart-Smith. For discussion of the role and its limitations see Leigh, I and Lustgarten, L ‘The Security Service Act 1989’ (1989) 52 MLR 801CrossRefGoogle Scholar.

69 Intelligence Services Act 1994. The post, when created, was given to Lord Justice Stuart-Smith, who was already acting as the Security Services Commissioner. For discussion see Wadham, J ‘The Intelligence Services Act 1994’ (1994) 57 MLR 916CrossRefGoogle Scholar.

70 Security Service Act 1989, s 4; Intelligence Services Act 1994, ss 8 and 9.

71 Interception of Communications Act 1985, s 8(1); Security Service Act 1989, s 4(1); Intelligence Services Act 1994, s 8(1).

72 Interception of Communications Act 1985, s 8(2); Security Service Act 1989, s 4(2); Intelligence Services Act 1994, s 8(2).

73 See the discussion – based upon interviews with the first holder of the post – in Lustgarten and Leigh, above n 57, pp 430–433.

74 Security Service Commissioner Report of the Commissioner for 1990 Cm 1480, 1991, para [12].

75 Security Service Act 1996, s 1. For comment see M Hunt and P Duffy ‘Goodbye Entick v Carrington: The Security Service Act 1996’ (1997) EHRLR 11.

76 Security Service Commissioner Report of the Commissioner for 1996 Cm 3679, 1997, para [9].

77 Regulation of Investigatory Powers Act 2000, s 57. Previous Commissioners were Sir Swinton Thomas, Sir Paul Kennedy and Sir Anthony May. The final Interception of Communications Commissioner was Sir Stanley Burton.

78 Regulation of Investigatory Powers Act 2000, s 59. The Commissioners have been: Lord Justice Simon Brown (later Lord Brown of Eaton-under-Heywood upon his appointment to the Judicial Committee of the House of Lords), Sir Peter Gibson (formerly Lord Justice of Appeal), Sir Mark Waller (ditto) and was, at the time it ceased to exist, Sir John Goldring (ditto).

79 Police Act 1997, s 91.

80 Police Act 1997, s 91(2); RIPA 2000, ss 57(5) and 59(5). See eg Sir Mark Waller Report of the Intelligence Services Commissioner for 2015 (HC 2016–17, 459) 3: ‘All Commissioners are required to be holders or past holders of high judicial office, meaning that they are independent and will form their own impartial judgement, that they will have had long experience of drawing out the facts and that they should be seen to carry authority because of their position’.

81 RIPA 2000, ss 57(6) and 59(6).

82 Police Act 1997, s 91(4)–(7).

83 Sir Mark Waller Review of Directions Given under Section 94 of the Telecommunications Act (1984) (July 2016).

84 RIPA 2000, ss 57(3), 59(3), and 67(2).

85 D Anderson QC A Question of Trust: Report of the Investigatory Powers Review (2015) at [14.94]–[14.100].

86 Particularly as regards the relationship between the functions of the Interception of Communications Commissioner and the Intelligence Services Commissioner.

87 Joint Committee on the Draft Investigatory Powers Bill Report on the Draft Investigatory Powers Bill (2015–16, HL 93, HC 651) at [574].

88 Investigatory Powers Act 2016, Part 8, chapter 1. The Act clarifies that the IPC ‘is a Judicial Commissioner and the Investigatory Powers Commissioner and the other Judicial Commissioners are to be known, collectively, as the Judicial Commissioners’ (s 227(7)).

89 The Scottish Ministers must be consulted but have no veto: IPA 2016, s 227(5). In relation to the IRTL, the method of appointment was not previously such as to ensure the person's independence: appointment was ‘in the sole gift of the Home Secretary; and other than the bald requirement that the reviewer be independent, there [were] no statutory limits on her discretion’: David Anderson QC ‘The independent review of terrorism legislation’ (2011) EHRLR 544 at 548. Anderson described the process elsewhere as ‘indefensible’: Anderson, above n 3, at 410. Now, the post is recognised as a public appointment, and so the process involves a panel drawing up ‘a list of appointable candidates by an open, fair and merit-based process, from which Ministers will choose’: Anderson, above n 89, at 548.

90 Office of the Interception of Communications Commissioner Written Evidence on the Draft Investigatory Powers Bill (IPB0101).

91 Joint Committee on the Draft Investigatory Powers Bill, above n 87, at [587].

92 Joint Committee on the Draft Investigatory Powers Bill, above n 87, at [587].

93 IPA 2016, s 228(2) and (3).

94 IPA 2016, s 228(4) and (5). The draft Bill would have permitted JCs to be removed by the IPC on grounds of ‘inability’ or ‘misbehaviour’. These grounds were removed, having been criticised by the Joint Committee on the Draft Investigatory Powers Bill. The Joint Committee's argument for subjecting JCs to the same removal and suspension procedures as apply to senior judges was not, however, accepted: Joint Committee on the Draft Investigatory Powers Bill, above n 87, at [594]–[597].

95 Anderson, above n 89, at 548.

96 As was accepted by the Joint Committee on the Bill, above n 87, at [592].

97 IPA 2016, s 227(2).

98 IPA 2016, s 227(3).

99 IPA 2016, s 227(4).

100 This formulation was criticised by the Office of the Interception of Communications Commissioner in its written evidence on the Draft Bill – these words, it said, ‘appear to be an afterthought and are insufficient’. It was also noted that the relevant provisions of the Bill did not ‘compare favourably with the clear powers and legal mandate in place for some of our international counterparts’ including New Zealand's Inspector-General of Intelligence and Security: IOCCO, above n 90.

101 IPA 2016, s 229.

102 RIPA 2000, s 59A, as inserted by Justice and Security Act 2013, s 5.

103 The Intelligence Services Commissioner (Additional Review Functions (Bulk Personal Datasets) Direction 2015.

104 RIPA 2000, s 59A.

105 Available at https://privacyinternational.org/node/1006. Privacy International linked to a letter, sent by Bhatt Murphy solicitors to the Government Legal Department on 28 November 2016, to which was annexed a copy of the relevant page of the Confidential Annex. Though the page is redacted, that part of it which is not states that ‘[t]he Prime Minister has now issued three such directions placing all of my oversight on a statutory footing’ and noting that two of the directions are set out in the open report.

106 IPA 2016, s 230.

107 IPA 2016, s 230(3).

108 IPA 2016, s 231.

109 IPA 2016, s 231(9). To be a ‘relevant error’, however, an error must also be ‘of a description identified for this purpose in a code of practice under Schedule 7’. The various codes of practice made under the 2016 Act contain such definitions, the effect of which is in all cases to further limit – at times quite significantly – the range of errors the IPC will be required to make such a report.

110 IPA 2016, s 231(6).

111 IPA 2016, s 231(1)(b).

112 IPA 2016, s 231(2).

113 IPA 2016, s 231(3).

114 IPA 2016, s 231(4).

115 Also, the statutory definition of ‘relevant error’ refers only to errors by public authorities, and so would not encompass errors by private bodies who cooperate in implementing interception warrants etc.

116 The Commissioners have, however, no explicit power to refer matters to the Investigatory Powers Tribunal – as had been argued for by some, including the Office of the ICC – but only a general power to provide information and advice to public authorities: IPA 2016, s 232(1).

117 IPA 2016, s 234.

118 IPA 2016, s 234(2)(a). Historically, there was an unwillingness to offer such figures, and when they were provided, it was justified on the basis of exceptional circumstances: see, eg, Birkett, above n 66 and Diplock, above n 66.

119 IPA 2016, s 234(3).

120 IPA 2016, s 235(1).

121 IPA 2016, s 235(2) and (3).

122 IPA 2016, s 235(4).

123 IPA 2016, s 234(7).

124 IPA 2016, s 234(9).

125 IPA 2016, s 230(4).

126 Investigatory Powers Commissioner (Additional Directed Oversight Functions) (Consolidated Guidance) Direction 2017, dated 22 August 2017. The issue had been pursued in Parliament by the former Justice Secretary, Ken Clarke: see written question 113216, asked on 15 November 2017 and answered 30 January 2018. The Direction was eventually published (on the website of the Investigatory Powers Commissioner's Office) on 13 February 2018.

127 Indeed, some commentary on the Draft Investigatory Powers Bill assumed (incorrectly) that oversight of the Consolidated Guidance was provided for by the Bill: Home Office Written Evidence on the Draft Investigatory Powers Bill (IPB0146) Annex F2.

128 Investigatory Powers Commissioner (Additional Directed Oversight Functions) (Security Service agent participation in criminality) Direction 2017, dated 22 August 2017, though the IPCO's statement noted that the Direction was originally given in 2014. As this language suggests, the relevant framework is non-statutory, and no information as to its contents appears to be in the public domain.

129 Relating, that is, to specific people or groups of persons or, in the case of bulk warrants, relating to a group of people many of whom will be of no interest to the security services.

130 IPA 2016, s 23, outlining the role of the JCs in targeted interception warrants.

131 IPA 2016, s 23(2)(a).

132 IPA 2016, s 23(5).

133 See eg Szabó and Vissy v Hungary (2016) 63 EHRR 3 at [77].

134 RIPA 2000, s 36(4)(a). See also Police Act 1997, s 97 which gives the Surveillance Commissioners an analogous role in relation to certain authorisations for interferences with property under Part III of that Act.

135 [2006] EWCA Civ 1140.

136 [2006] EWCA Civ 1140 at [54].

137 Kennedy v United Kingdom [2010] ECHR 682 at [179].

138 See, most famously, Malone v Commissioner of Police of the Metropolis (No 2) [1979] Ch 344.

139 And, indeed, cases which might have conceptualised as relating to individual privacy have often been determined on some other basis – see for example R v Secretary of State for the Home Department, ex p Daly [2001] UKHL 26, which is determined on the basis that the policy governing the search of prisoners’ cells was a violation of the fundamental right of access to the courts.

140 IPCO ‘Approval of warrants, authorisations and notices by judicial commissioners’ Advisory Notice 1/2018 (8 March 2018).

141 IPCO, above n 140, at [19]–[20] (references omitted).

142 IPCO, above n 140, at [18].

143 It leaves open also the possibility that the executive, which issues many of the relevant warrants, will dispute the IPC's reading of what the double-lock requires. One question which arises is whether there is open to the executive any attempt to challenge that reading, presumably by way of judicial review.

144 Anderson, above n 85, at [14.98].

145 IOCCO, above n 90.

146 IOCCO, above n 90.

147 Joint Committee, above n 87, at [612].

148 Letter to Sir Adrian Fulford (8 November 2017). The sender's details are redacted, but the reply of the IPC is addressed to GCHQ's Director for Legal Affairs.

149 Letter from Sir Adrian Fulford to GCHQ's Director of Legal Affairs (28 November 2017).