Lord Judge, Clare Ringshaw-Dowle, Sir Stanley Burnton and Jo Cavan gave evidence.

Welcome to the panel. In a matter of a few words, please introduce yourselves .

Jo Cavan: I am Joanna Cavan. I am the head of the Interception Commissioner’s Office.

Sir Stanley Burnton: I am Stanley Burnton. I am the interception of communications commissioner.

Lord Judge: I am Igor Judge, the chief surveillance commissioner.

Clare Ringshaw-Dowle: I am Clare Ringshaw-Dowle, chief surveillance inspector.

Thank you to our distinguished panel for their time this afternoon. I think this is a first—me asking distinguished judges a question. It has always been the other way round for my entire career. I shall try to keep it short and sweet.

Can I start on the issue of the approval of warrants by judicial commissioners under the Bill, and the proposed test? Clearly judges perform different functions every day. One function is to issue a warrant—to search a premises, for example; judges do that day in, day out. They are the decision maker. An application is made to them and they look at it and make their own decision, and they issue or do not issue the warrant as the case may be.

A different function is a reviewing function—a public law function where a judge is essentially reviewing somebody else’s decision. On my reading of the clause on approving warrants, clause 21(1) and (2)—if you do not have it in front of you, I have copies of it—it appears to be clearly a reviewing function. The judge is reviewing the decision of the Secretary of State, not actually making a decision him or herself on the warrant. Do you agree with that?

Sir Stanley Burnton: I do, certainly.

Lord Judge: I agree too, but you have a problem: what do you mean by judicial review?

Can I explore that?

Lord Judge: You asked me for a short answer, and that is a short answer. [Laughter.]

Judicial review covers a range of different approaches depending on subject matter, intensity of review and so on. As worded, how much deference or margin do you anticipate judges will give to the decision maker, the Secretary of State, in exercising these functions?

Sir Stanley Burnton: In theory, you have a complete spectrum. A judge can operate at one end of the spectrum when he just accepts what the authority is putting to him, and at the other end he can be quite stringent in reassuring himself that the statutory tests have been properly applied and satisfied. Frankly, it is going to be the commissioner who will decide—fairly early on, I would have thought—how stringent the test should be in this case. My own view is that it should be quite stringent, approaching the one that was applied in the case of control orders.

Do you agree with me that as the Bill is currently drafted, it is not clear what Parliament intends, and therefore it will fall to the judges? In other words, it is broadly enough drafted to cover a longer-arm review or a closer intense review depending on what judges decide as cases evolve. It could accommodate both approaches.

Sir Stanley Burnton: It is left to the judges, is it not, to decide what the proper approach is?

On this draft.

Sir Stanley Burnton: On this draft. It may be difficult to draft more tightly. The other thing I would say is that whether the judge is a decision maker or an approver, he necessarily has to give a lot of weight to the opinion of the person who is making the application to him.

If the secret service is saying, “Our assessment of this man is that he is a dangerous terrorist”, it may be very difficult to go behind that, and there is no reason why the judge should go behind it unless there is material before him that indicates that that is a wholly unreasonable and unsupported assessment. But you are compelled to give weight to the opinion of the people who are actually involved in whatever the subject matter is.

Lord Judge: I do not go all the way along the route with Sir Stanley about this. I think “judicial review” is a very easy phrase to use. It sounds convincing, but it means different things to different people. People say, “Wednesbury unreasonableness”—that was a case decided by the Court of Appeal in 1948 or 1947, and it has evolved. Personally, I think that when Parliament is creating structures such as these, it should define what it means by “judicial review”. What test will be applied by the judicial—I call him that—commissioner, so that he knows what his function is, the Secretary of State knows what the areas of responsibility are and the public know exactly who decides what and in what circumstances? I myself do not think that judicial review is a sufficient indication of those matters.

Thank you. Sticking with functions, if I may, as the Bill is drafted, the body responsible for authorising investigatory powers, as we have just described, is also the body responsible for oversight after the event. On the face of the Bill, there is no structural distinction between those functions. Is that sensible, or could it be improved?

Lord Judge: As that is the way in which the surveillance commission works, I strongly recommend it to you. There are different people exercising different functions. The pre-authorisation that goes on in our section of the system involves a commissioner being satisfied—I am sure you all know about the relevant tests—and either agreeing or not agreeing; that is a very important moment. In most cases, happily, because people make responsible applications, they are agreed to. Sometimes it is suggested that they should be amended, and very occasionally they are refused.

That process then unfolds, and whatever happens happens. My inspectors annually inspect the entire force—not just the individual who made the application in the first place, but each police force and each prosecuting authority—to see whether their systems are effective and check, and not just on the ones that have come through, to ensure that the process was brought to an end speedily or, when nothing further happened, that the authorities did not go on too long and so on. It is also to ensure that when the authorisation was originally given, it was founded on proper evidence and then correctly given.

Normally, this has all worked perfectly well, but there is a danger in underestimating the value of the inspectors; I shall come to a different point on that when I can give a longer answer. The process works very well in this way. They report to me as chief surveillance commissioner. I then digest the report and go see the chief constable of each force, or get one of my commissioners to go see them, to say, “This is where you are going wrong, and this is where you must do this and that.”

That is because the inspectors have taken the thing apart. They go to police forces for days; the whole lot of them go to the Metropolitan police for a week. They have the right to see anything they like, and they demand to see it. The commissioners would not be best able to exercise that function, because they are judges. They are not qualified.

Jo Cavan: There are a number of important points around these clauses in the Bill. First, we are really disappointed to see that although the Government are talking about creating a world-leading oversight body, the clauses as currently drafted do not actually create a commission. They simply create an investigatory powers commissioner and a number of judicial commissioners.

When we look at approval by those commissioners, the reality is that they are only going to be approving 2% of the authorisations that will actually be undertaken under the Act—arguably, the more highly intrusive authorisations. The remaining 98% of authorisations will only be overseen post facto, and the reality is that they will be overseen by staff within the commission.

If we look at some of the judgments coming out of the European Court of Human Rights and the European Court of Justice, there are some really important safeguards on post facto oversight, looking at the retention, storage and destruction of material, how it has been used and any infringements or breaches around the acquisition post-approval. We really feel that the Government need to create this body in the clauses.

One final swift question on thematic warrants and the breadth of the powers proposed in the Bill. Do any of the witnesses have headline concerns that the Committee can take away to work on as we consider the Bill line by line?

Sir Stanley Burnton: First, the existing formulation in RIPA is very unsatisfactory and unclear, and it does not cover many cases in which it would be sensible to have a so-called thematic warrant. However, the wording of clause 15(2) is very wide. If you just have a warrant that gives a name to a group of persons, you have not identified—certainly not in the warrant—all those persons to whom it is going to apply. There could be substantial changes in the application of the warrant without any modification. At the moment, the code of conduct envisages a requirement that names will be given so far as practicable. Our view is that the warrant should name or otherwise identify all those persons to whom the warrant will apply, as known to the applicant at that date.

The other concern is that substantial modifications can be made to a warrant under the Bill with no judicial approval or even notification. That needs to be changed.

Lord Judge: I agree with Sir Stanley. I will not say anything more on the second point he made, but on the first, a part of the process that all of us involved in supervising surveillance attach a great deal of weight to is that we are looking at individuals. There has to be evidence that X requires this, that there is a situation in which it is necessary for this to happen, that it is proportionate in this particular individual’s case and that there is no collateral interference. For example—there are many different examples—why should a women who happens to be married to or living with a man who is suspected and so on have her life entirely opened up  in this way? Not having specific identified individuals leaves a very delicate situation. I suspect that the commissioners would find it very difficult to just say, “Well, we’re satisfied. There’s this gang here and they’re all pretty dangerous.” They might not be, and we have to be very alert to that.

I have questions for Jo Cavan. In your organisation’s written evidence, you have picked up on earlier concerns about the draft Bill and updated them in the light of the finalised Bill. In the first point, you say that you have concerns about the “aggressive timeline” for the Bill. Can you explain what you mean by that?

Jo Cavan: It is a really complicated and significant piece of legislation. Although I broadly support the Bill, because it is a good thing to put a number of the powers used by the intelligence agencies on a clearer statutory footing and to try to improve transparency, I do think that the scrutiny process has been very hurried. That is of concern because there are some significant privacy implications to the clauses in the Bill. There is still a long way to go towards strengthening some of the safeguards. Also, a lot of the operational detail is in the codes of practice. It is really important that those are scrutinised properly, line by line.

When you express concerns about the aggressive timeline for the Bill, are you talking about the Bill before us as well as the draft Bill?

Jo Cavan: Yes.

So you consider the time that has been afforded for the scrutiny of the Bill before us to be aggressive.

Jo Cavan: It has been challenging to say the least.

Do you think it is adequate?

Jo Cavan: You could argue that because we are waiting for a number of key judgments from either the European Court of Human Rights or the European Court of Justice, it might seem a bit premature to be legislating in some of these areas, but then when do you draw the line?

At point 5 in your written evidence, you pose the question:

“Is it desirable to have the same body responsible for authorising investigatory powers and undertaking the post facto oversight of the exercise of those powers?”

You say:

“If so, the judicial authorisation and oversight elements of that body must be operationally distinct.”

You have already explored point 2 of your written evidence with us, but will you elaborate on point 5?

Jo Cavan: It is clear to us that there needs to be some operational distinction between the approval—the judges who are going to be approving some of these techniques—and the audit and oversight after the event, because if the judges approving the requests are then responsible for the post facto oversight, essentially they could be accused of marking their own homework. Again, if the commission is created, you will be able to distinguish those key elements.

It is really important for the commissioners to work very closely with the inspectors and technical engineers and so on who will carry out the post facto audits. They are obviously going to need to support each other, but it is really important that there is a distinction. I think I have spoken to a number of our international oversight counterparts, and some of those are quite surprised that we are going down a route where we are putting both elements into one body.

At point 6 of your written evidence you expressed concern that in the draft Bill there were

“a number of clauses which provide exceptions for national security or which exempt the intelligence agencies from key safeguards”.

What is your view of the finalised Bill in relation to that concern?

Jo Cavan: Essentially there has been progress on one of the national security exemptions, which is around the acquisition of communications data to determine journalistic sources. The Government have amended clause 68 to remove the national security intelligence agency exemption. That was because that was picked up by the Intelligence and Security Committee and the Joint Committee.

However, there are still two broad exceptions in the Bill: clauses 54 and 67. One of them is really important, because it is around the independence of designated persons. This area was strengthened as a result of the Digital Rights Ireland case, and that is an area where we still find significant compliance issues within public authorities. Communications data is approved by designated persons—it will become designated senior officers in the Bill—who are from the same public authority. In almost half of the police forces, intelligence agencies and other bodies that we inspected last year, we made recommendations around that area because we were not satisfied with the independence.

The clauses as drafted seem to drive a horse and cart through the independence requirements for designated persons by exempting very broadly national security. The same is the case in the single point of contact provision in clause 67: that appears to exempt in national security cases the SPOC being consulted, and we see the SPOC as a key safeguard in the process. So the fact that the Government have already said that the exemption relating to journalistic sources was broad, and removed it, suggests that the same needs to happen to clauses 54 and 67.

Sir Stanley Burnton: I would just like to add that it is far from obvious that the interests of national security, which is a ground for the grant of a warrant, is itself an exceptional circumstance. It is very difficult to see what the logic behind that formulation is.

Joanna, I guess you are pretty familiar with the legislative process and the way Parliament works.

Jo Cavan: I would hope so.

Good. How often have you encountered a Bill that before its publication in draft had been preceded by three reports, and which was subsequently considered by three Committees of the House before  embarking on the normal process of scrutiny? Can you think of another Bill in the last 10 years like that? How many can you list?

Jo Cavan: I am afraid I cannot think of any off the top of my head, but I will say the reviews—

You said it had been hurried; that is what I was trying to get at.

Jo Cavan: Yes, absolutely. The reviews were comprehensive in their own right. However, the three reviews that you talk about were specifically focused on certain areas. David Anderson was specifically focused around interception and communications data, so he did not look at equipment interference, for example. Some of the capabilities had not been avowed at that stage, so they are seen for the first time in the Bill. I think it is a challenging timeline, and a number of the witnesses have talked about their concerns.

But I just wanted to establish, just to be clear, that in my 20 years I cannot think of a Bill that has had quite such extended scrutiny. I am sure there must be some, but they do not spring to my mind and they clearly do not spring to yours, either.

Jo Cavan: No, that is right.

On a second point of fact, you talked about the number of cases in which judicial approval is involved. That is the double lock. The double lock applies where a Minister—the Secretary of State for Northern Ireland, the Foreign Secretary or the Home Secretary—issues a warrant. The double lock applies where one of those people is involved. That is right, is it not?

Jo Cavan: That is right.

You would hardly expect the second part of the lock to apply where a Minister is not involved, would you?

Jo Cavan: The figures from last year that were published by all three commissioner bodies show that only about 7,000 out of 290,000 applications actually have judicial approval.

Where the Minister is involved. So the judicial approval is a double lock, and therefore the second part of the lock applies where the first part applies.

Jo Cavan: Not in all instances in the IP Bill, but in the majority, yes. There are still some exclusions.

On a separate point, it has been said that the judicial commissioner—this is a question for any of you, but I am thinking of the two gentlemen in the middle in particular—will not be sufficiently independent, and that they will be deferential towards the politicians involved. Is that your view? Are they likely to be deferential, or are they likely to act independently?

Lord Judge: I think you should ask the last 10 Secretaries of State whether they had an easy time when judges have had to consider whether they are acting lawfully.  You will find, I suspect, that many of them feel fairly scarred by the experience. There is no danger whatever.

I have known a number of Home Secretaries, and none of them has suggested that the judiciary is deferential. I take your point. Finally, in terms of the appointment of the judicial commissioners, would the Judicial Appointments Commission be a better place to appoint them, or do you rather like the model we have come up with?

Lord Judge: No, I much prefer the model you have come up with. The Judicial Appointment Commission appoints judges usually from people who have not been judges. This is an appointment system that will work for people who have already been through the process, have acted as judges, have been appointed at whatever level they have eventually ended up, and are then exercising a new function. There is no point whatever in involving the Judicial Appointments Commission, ignoring the fact that it has got far too much to do anyway and not enough people to do the work.

My concern about the appointments is the speed with which all this is going to happen. We are going to have, under clause 233(3), a new investigatory powers commissioner within two months of the Bill becoming an Act. Where is this wonderful individual, male or female, going to come from within two months? The processes of appointments that I have had anything to do with take a very long time. I announced my retirement in November 2011 to be replaced by October 2013, and nobody knew who the next Lord Chief Justice was until the end of July. I am very worried about that. It is a very serious point. It is not a big point, but it is serious.

We must all rise to the challenge.

Sir Stanley, in response to Sir Keir’s question, you said that you felt that judges would be compelled to give weight to the person applying. Will judges, considering that it has been signed off by the Home Secretary, feel compelled to give weight to the fact that the Home Secretary has already authorised the warrant?

Sir Stanley Burnton: Well, you give weight to it, but you none the less look at the material to see whether she was entitled to come to the decision she came to.

There is a lot of weight already by the time it gets to the judge to make the decision, so the bar is high for you to overturn the application.

Sir Stanley Burnton: These are serious matters. To authorise or to approve a warrant is a serious matter, but equally not to may be a serious matter.

Thank you so much for a great answer. Joanna, following on from the Minister’s question, have you ever come across a Bill of this complexity, size and importance in your career?

Jo Cavan: No.

So it is unique, and therefore the conditions that lead up to it are unique as well.

Jo Cavan: That is right, although I defer to the individuals in this room who have been involved in this type of stuff for far longer than I have. Six codes of practice containing the operational detail were published  on 1 March accompanying the Bill. That is a huge amount of material to examine.

May I go back to the first points made about the judicial review test? I put in a plea for the poor parliamentary draftsmen and women who work very hard indeed to try to strike a balance between avoiding excessive prescription and the dangers of being unduly vague. Lord Judge, you suggested we were falling more towards the latter end of the spectrum and being somewhat unhelpful.

There are in clause 18 the necessity criteria that are applied by the Secretary of State and then by the commissioner. The difficulty I have is, what do I do? I am trying to ensure the commissioners have discretion and the ability to make a nuanced decision based upon the individual case before them. At the same time, I am being told, “Well, that isn’t good enough.” Should the draftsmen produce a non-exhaustive checklist, or is that in itself full of dangers for the commissioners when it comes to their decision making?

Lord Judge : I think it is a matter of principle that has to be decided by Parliament—of which I am a Member, in the other place. What check is appropriate for Parliament to put on the Secretary of State exercising this very important power?

That is there; it is in clause 18.

Lord Judge : There it is. If you leave it as judicial review, we know that judicial review depends on the context, on when you have last been in the Supreme Court and when the last case came from the European Court of Human Rights; it is a flexible concept. That is one of its strengths, but I am not sure that in the context of the public responsibility that goes with the issue of these warrants there should be a flexible concept.

The Home Secretary has to make the decision. As it happens, if there is the equivalent of Brussels here in London, she will now be there. She will be answering. She will say, “I did issue this warrant,” or “I didn’t.” Whichever way she did it, she will be responsible and answerable to you. What is the role of the judicial commissioner in such an arrangement? Does he come before you too, because he said, “I don’t agree with this warrant,” or, “I do agree; I do support it”? We need to be clear what you want the commissioner to do. Not everybody agrees with me, but I think that just saying “judicial review” is not clarifying where responsibility rests at the really crucial moment, which is when disaster strikes.

But you appreciate the problem that we have in getting this right.

Lord Judge : I do, but that is what Parliament is for. We have to decide what the law should be. I myself would like the law on this issue to be absolutely unequivocal, whatever Parliament or the House of Commons ultimately want.

Sir Stanley Burnton : We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, “You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.”

Building on the point made by the Solicitor General, clause 21 sets out the “necessary”  and “proportionate” tests. We have heard a lot about those words. What questions do you ask when you are assessing proportionality? What is that analysis?

Sir Stanley Burnton : You are looking at the effect of the measure in question as against alternatives and as against the mischief that is aimed at—are we talking about saving life, or it just a matter of money? If it is money, is it a lot of money? Is it pensioners’ money or the Government’s? You weigh one up against the other, and in the end, it is a matter of assessment—looking at one and looking at the other.

So reading that meaning of proportionality, which we all agree on, with the factors listed in clause 18, is it not clear to a decision maker what factors are relevant and the level of scrutiny to be applied?

Sir Stanley Burnton : You have had my answer already. I am content with the Bill as is, but Lord Judge takes a different view.

Lord Judge: The answer surely is that those criteria are applied by the Secretary of State. The commissioner will apply the same criteria, but are you asking him or her to be a co-decision maker or a supervisor of the Minister? If a supervisor, then you have to define what his or her role should be.

Thank you very much, panel. Have a happy Easter and enjoy your weekend reading.