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The Evolution of the Bill: Oversight

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.

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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.

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We recommend that the Government should review the error-reporting threshold in light of the points made by witnesses.

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The Government has amended Clause 195 to make clear that Judicial Commissioners are subject to the same dismissal and suspension procedures as those applicable to serving senior judges.

The Government will consider whether there is a role for Parliament, e.g. the Intelligence and Security Committee (ISC), to play in determining, or reporting on the adequacy of, the budget of the IPC.

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.

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The Government has amended Clause 198 of the Bill accordingly. This will now allow the Investigatory Powers Commissioner to inform an individual directly if they have been subject to a serious error.

The Government will review the threshold for error reporting. However it is vital that national security and the wider public interest is not compromised as a result of individuals being informed that they have been affected by an error which is inconsequential or has had a very minimal or imperceptible impact upon their lives.

Clause 203 of the revised Bill now provides a route for CSPs and public authorities to refer complaints and concerns, or requests for clarification, directly to the Judicial Commissioners. Furthermore, there is a separate route for CSPs to refer notices to the Secretary of State who must consult both the IPC and the TAB as part of his or her deliberations.

It is the Government’s clear intention that the IPC will have an in house legal adviser. The Commissioner will also have budget provision for Counsel to be consulted and appointed when the Commissioner feels it is necessary. The Impact Assessments published alongside the draft Bill make it clear that this is being budgeted for.

The Government has revised Clause 172(3) now Clause 199 to make it clear that the Judicial Commissioners can communicate with the IPT without consulting the Secretary of State.

We recommend that the Judicial Commissioner should have access to technical expertise to assist them in fulfilling their authorisation and oversight functions.

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Clause 202 of the Bill has been amended explicitly to provide Judicial Commissioners with access to all relevant technical systems where necessary for them to provide effective oversight.

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.

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Courts and tribunals generally, including the IPT, do not have the power to carry out investigations into alleged unlawful conduct on their own initiative. It is a fundamental principle of our justice system that courts and tribunals will not consider and determine legal issues without individual parties having first issued a claim or initiated proceedings.

If Judicial Commissioners were to notify the IPT that they had identified unlawful conduct, there would be no meaningful action that the IPT could take. In order for the IPT to be capable of assuming jurisdiction, it would be necessary to extend the IPT's jurisdiction and empower the Judicial Commissioners to bring claims or complaints against public authorities in the IPT, making the Commissioners party to proceedings. The Government does not consider that it would be appropriate to extend the IPT's jurisdiction in this way. However, if the Judicial Commissioners had concerns about unlawful conduct then they would be able to make a direct report to the Prime Minister and the Government would ensure that remedial action was taken as a matter of urgency. If the IPC considered that their concerns were not being adequately responded to it would be open to them to bring an action for

Judicial Review in respect of the Government's failure to act.

The Government had envisaged that this information would be included in the Commissioner’s annual report, and has amended Clause 201 to make clear that he or she must report on these topics.

This will be included in the Memorandum of Understanding establishing the IPC’s operation and ways of working.

Rule 9 of the Tribunal Rules (SI 2000/2665) makes provision for how the IPT should hear a complaint. It gives the IPT discretion on whether or not to hold an oral hearing. In the vast majority of cases, the IPT will not hold an oral hearing, reflecting that most cases can be dealt with on the papers.

The Government has amended Clause 208 of the Bill to make the appeal route for Scotland and Northern Ireland clear.

The Government will consider the Chief Coroner’s proposals and discuss them with him further to determine how best to address

his concerns.

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.

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Eight reviews have been undertaken of the issue since 1993. The most recent review, overseen and endorsed by a cross- Party group of Privy Counsellors, published its findings in 2014. The 2014 review went further than any previous review by considering the costs and benefits of an intercept as evidence regime. The Government continues to keep the issue under review.

As the Committee notes, the Government legislated, through the Counter-Terrorism and Security Act 2015, to provide the

Secretary of State with a power to establish a Privacy and Civil Liberties Board in regulations, to support the Independent Reviewer of Terrorism Legislation, David Anderson QC. Having been informed by a public consultation and David Anderson’s views on the Board’s creation, the Government has since decided that in the interests of supporting the Reviewer to discharge his statutory functions in the most effective manner, it would instead provide him with assistants in the form that he recommended in his July 2014 Annual Report. The Government is currently working closely with David Anderson to ensure that the individuals he has identified to assist him in his role are suitably cleared to access sensitive material, enabling them to provide the specialist support required.

The Government is committed to ensuring that the IPC has the powers, resources and access to specialist knowledge to effectively and visibly oversee the security and intelligence agencies and the use of investigatory powers in the Bill. The Government cannot dictate how the independent IPC must undertake their scrutiny. We expect, and would welcome, though, the IPC scrutinising the automated analysis of bulk datasets. The Bill has been amended to make clear that the IPC has access to software and systems. The Government agrees that this would be part of the IPC’s role.

To assist Parliament in scrutinising the Bill, the Government has published drafts of six statutory Codes of Practice that will be made under the Bill. These codes include details of implementation and technical application. The Government invites comments on the draft Codes of Practice. The new Codes of Practice will be published for formal consultation following Royal Assent of the Bill. They will require approval by Parliament and will have statutory force.

The Government is committed to post-legislative scrutiny of the Bill. Clause 222 requires the Secretary of State to prepare a report on the operation of the Investigatory Powers Act within six years of the Bill being enacted. This is in anticipation of a Select Committee of either House of Parliament (whether acting alone or jointly) undertaking a review of the powers in the Bill within five years and six months of Royal Assent.

The Government is committed to creating a new oversight body which simplifies the current oversight landscape, provides a more visible single body, and one with greater powers and resources. This will be achieved without the need for a new statutory body to be created. Creating an Investigatory Powers Commission as a statutory body would significantly increase its running costs, as it would have increased reporting and corporate / administrative responsibilities and so require extra staff and the appointment of Non-Executive Directors. The Government anticipates that it would cost an extra £0.5m p/a. However, it would have no additional powers and would not, in practice, be any more independent.

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.

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The Government has amended the Bill at Clause 202 to make it explicit that Judicial Commissioners have the power to initiate investigations.

It is an important principle that the Judiciary are as independent from each other as they are from the executive, to avoid accusations of a system of patronage. Similarly although the Lord Chief Justice may consult his counterparts, he would have no authority to make appointments relating to the deployment of Scottish or Northern Irish judges; agreement in principle from the Scottish Government to bring the relevant legislative consent motions is contingent on Scottish Ministers having a role in appointments of Judicial Commissioners and the IPC. The Government considers that the LCJ and his or her devolved equivalents should be consulted in the appointment process. A requirement for the Prime Minister to consult the Lord Chief Justice has been provided for in Clause 194 of the revised Bill. The Government will consult with the Judicial Appointments

Commission on these provisions.

The Government has amended the Bill at Clause 202 to make it explicit that Judicial Commissioners have the power to initiate investigations.

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.

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The Government will carefully review the appointment provisions with the stakeholders that the Committee have suggested.

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.

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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.

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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.

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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.

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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

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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.

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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.

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We agree with this conclusion of the DPRRC on the power in Clause 201 (2) to make consequential provision and recommend the deletion of powers to amend future enactments.

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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.

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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.

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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.

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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.

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There is a domestic route of appeal from the IPT to the Court of Appeal which, as a senior court, already has the power to make a declaration of incompatibility.

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.

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The Government agrees that the Judicial Commissioners should have this function. It is now clear in the draft Codes of Practice, specifically: Chapter 13 of the Interception of Communications Code of Practice Chapter 22 of the Communications Data Code of Practice Chapter 10 of the Equipment Interference Code of Practice Chapter 12 of the Bulk Acquisition Code of Practice Chapters 4 and 6 of the security and intelligence agencies’ retention and use of Bulk Personal Datasets Code of Practice

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.

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As the Committee recognised, the test for any appeal from the IPT is consistent with the appeal route found elsewhere. The Bill provides in Clause 208 for appeals on any point of law, giving the IPT or appellate court significant discretion. They are able to give permission to appeal not only where there is an ‘important point of principle’, but also where they conclude there is another ‘compelling reason’ for granting leave. The Government believes this should provide enough flexibility for the court to ensure that all points of law which merit an appeal (suitably significant) are able to proceed.

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.

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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.

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The Government has amended the Bill to provide for this in the new Clause 208.

Clause 203 has been amended to make clear that the public authorities who can exercise the powers contained in the Bill can discuss any concerns with the IPC. It will be for the IPC to determine what further action may be appropriate.

The Government agrees with the Committee on the importance of access to technical expertise. It is our clear intention that not only will the Judicial Commissioners have a range of specialist inspectors to assist them, they will also have budgetary provision to consult additional technical experts and advisers when they feel it is necessary and appropriate. The Impact Assessments published alongside the draft Bill make it clear that this is being budgeted for.

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The Investigatory Powers Tribunal should be able to make a declaration of incompatibility under the Human Rights Act.

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The Committee recommends that the Government keeps the issue of the inadmissibility of intercept material as evidence under review and takes note of the significant perceived benefits of using such material as evidence.

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The Committee recommends that the Government should consider the Chief Coroner’s proposals and engages further with him to come to a satisfactory agreement about which judges can be included in the list in Schedule 3. The Committee received written evidence from HH Judge Peter Thornton QC, the Chief Coroner, proposing that this list be extended. He proposed that “the list of persons who are “a relevant judge” in paragraph 21 of Schedule 3 to the Bill be extended to include: retired judges of the High Court or retired Circuit judges who are under the age of 75.”

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The Government believes that the three recent scrutiny reports have provided a thorough review of the IPT’s powers and procedures. The IPT is also subject to Triennial Reviews in line with Cabinet Office requirements.

The Government believes that the oversight landscape has already been sufficiently reviewed by the three reports in this area. Similarly, regular (triennial) reviews are already undertaken of all Government bodies, to ensure that they are still performing unique and necessary functions. The Government does not consider that it would be appropriate to remove the oversight function performed by the Information Commissioner’s Office

(ICO) which, would undermine data security protections. However, the Government has made clear in Chapter 21 of the draft Communications Data Code of Practice that where a CSP is required to report an error to the IPC, it should not also be obliged to report that error to the ICO.

The Committee recommends that the Bill should include a definition of national security in order to provide clarity to the circumstances in which these warrants can be issued.

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The Committee recommends that the Bill should include a definition of economic well-being in order to provide clarity to the circumstances in which these warrants can be issued.

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The Codes of Practice will provide essential further details on how the powers in the draft Bill will be used in practice. We recommend that all of them should be published when the Bill itself is introduced to allow both Houses to conduct full scrutiny of their contents.

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We recommend that a provision should be added to the face of the Bill for post-legislative scrutiny by a committee of the two Houses within six months of the end of the fifth year after the Bill is enacted.

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We urge the Investigatory Powers Commissioner to scrutinise the automated analysis of bulk datasets conducted by the security and intelligence agencies to ensure that they are conducted appropriately and proportionately and with regard to privacy and data protection requirements.

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The Bill provides for warrants to be sought in the interests of the economic-well-being of the United Kingdom so far as also relevant to national security. This replicates the current statutory purpose for which interception warrants may be authorised and which is contained in RIPA, replicates language in the e-privacy directive, and is consistent with the statutory functions of GCHQ and the Secret Intelligence Service. The ‘economic well-being’ purpose for which warrants may be sought is not precisely identical to the ‘national security’ purpose. Consequently, removing ‘economic well-being’ from the Bill could have the effect of preventing the agencies from undertaking operations in future that they would be able to

undertake today. The UK’s National Security Strategy and Strategic Defence and Security Review 2015 highlighted economic security as a separate issue that is closely related to national security, and reflected the long-term shifts in the balance of global economic and military power and the emergence of more powerful non-state actors. It would not be appropriate to hinder the ability of the security and intelligence agencies to undertake investigative activity into issues where the primary risk is to economic security, which has an effect on national security. Such issues might include instability in parts of the world or unexpected crises which may undermine British markets and other economic interests, or create difficulties in the continued supply of a commodity on which our economic security depended. Such issues would also have a national security impact but their primary effect would be on economic well-being.

It has been the policy of successive governments not to define national security in statute. Threats to national security are constantly evolving and difficult to predict, and it is vital that legislation should not constrain the ability of the security and intelligence agencies to protect the UK from new and emerging threats.

It is necessary to retain the power to amend future enactments, although it is anticipated that there will be very limited circumstances in which the power will be exercised in this way. Legislation going through Parliament at the same time as the Bill (for example the Policing and Crime Bill and the Northern Ireland (Stormont Agreement and Implementation Plan) Bill) may require to be amended in consequence of the Investigatory Powers Bill, and it is impossible to anticipate how such Bills may be amended in Parliament or which Bill may receive Royal Assent first. The power is, however, limited by the fact that any amendment to legislation must be

Each box is a different recommendation that one of the three committees made about oversight.

Click on the boxes to see how the government responded.

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