CHAPTER 14: EXPLANATIONS
14.64. Recommendation 30, trailed at 14.56(d) above, is my suggested mechanism for
reconciling judicial authorisation with the special expertise of the Secretary of State
where the defence of the UK or its foreign policy are concerned. In short:
(a)
Where a warrant (specific or bulk) is sought for a national security purpose
relating to the defence of the UK or its foreign policy, I recommend that the
Secretary of State should have the power to certify that the warrant is required
in the interests of the defence and/or foreign policy of the UK. In the case of a
bulk warrant, the Secretary of State should also have the power to certify that
the warrant is required for the operation(s) and/or mission purposes identified
on the warrant (Recommendation 46).
(b)
The Judicial Commissioner should be able to depart from that certificate only
on the basis of the principles applicable in judicial review:59 an extremely high
test in practice, given the proper reticence of the judiciary where matters of
foreign policy are concerned.60
(c)
Responsibility for verifying that the warrant satisfied the requirements of
proportionality, and for authorising the warrant, would remain with the Judicial
Commissioner.
14.65. The twin advantages of that arrangement are that it would preserve the proper role of
the Secretary of State in relation to the assessment of the defence and foreign policy
priorities of the country, whilst protecting the judges from being drawn into political or
diplomatic judgements that are properly for the executive. The Judicial Commissioner
would, of course, retain the ability to scrutinise such warrants for compliance, in
respects falling outside the scope of the certificate, with the requirements set out in
Recommendation 29 (specific interception warrants) and Recommendation 45 (bulk
warrants). It seems to me proper that such scrutiny should remain with an
independent judicial figure.
14.66. In such cases as in all others, the warrant-requesting authority would have a right to
resubmit the application having remedied any defect identified by the Judicial
Commissioner (Recommendation 33(a)), or indeed to appeal to the Chief Judicial
Commissioner, a procedure modelled on that which is applied by the Office of
Surveillance Commissioners (Recommendation 33(b)).
14.67. I do not consider it necessary to extend Recommendations 30 and 46 to national
security warrants of a domestic nature. In particular:
(a)
59
60
The same political and diplomatic considerations do not arise. Terrorism, which
accounts for the bulk of national security warrants going through the Home
Office, is criminal activity. The gathering of material on it for intelligence or law
There are parallels for this test in national security legislation: it is for example the basis on which the
High Court must proceed when reviewing the determination of the Secretary of State’s assessment of
the need to impose a Terrorism Prevention and Investigation Measure (TPIM) under the TPIM Act
2011, s9(2).
It is difficult to imagine a warrant being refused on this basis, short of e.g. a complete lack of evidence
that it might achieve the objective(s) sought.
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