Could Boris Johnson’s appointment persuade the Lords that we need judicial authorisation?

Is it penning a goat-shagging limerick about Turkey’s President Erdogan? Claiming Barack Obama’s Kenyan heritage means he has an “ancestral dislike of the British empire”? Or describing Hillary Clinton as having “a steely blue stare, like a sadistic nurse in a mental hospital”. While Eton-educated Alexander Boris de Pfeffel Johnson is commended for taking politics to the common man, there are concerns that his gaffe-prone tendencies mean he is unsuited to managing the diplomacy needs of a Brexiting UK that wants to secure its place on the world stage.

However there has been little discussion of one of Johnson’s key responsibilities in his new role. Along with new Home Secretary Amber Rudd, Johnson will get to authorise surveillance warrants for the UK’s intelligence agencies.

While Rudd is still something of an unknown, the man who likes to respond to difficult questions with “blah blah fishcakes” is not known for his love of detail. Nor does he appear to have an aversion to breaking the rules – he was sacked by The Times for making up a quote, and from the Conservative front bench  in 2004 when he failed to come clean about an affair.  But now decisions about whether GCHQ should be permitted to hack networks or tap into fibre optic cables, will fall to a man who it is alleged did not follow procurement procedures properly while Mayor of London. Boris will of course be supported by senior officials in making these decisions. And who knows, he may scrutinise warrants with the dedication that he showed for cricket in the days after Brexit.

Flippancy aside, this is something that both Rudd and Johnson are likely to find challenging. They will need to learn the legal interpretations of necessary and proportionate, and assess what the agencies are asking of them. They will need to swiftly understand the legal frameworks as they decide who and how people are surveilled and assess whether the requests are justified. There is also a questions of logistics. Theresa May reportedly signed off the equivalent of ten warrants a day while Home Secretary.

Such complex legal decisions should not be down to politicians who may have little or no expertise in the practicalities of surveillance and the law. Most countries insist that independent judges sign off warrants for surveillance. The UK is the only Five Eyes country ( a group that includes the US, New Zealand, Australia and Canada) to allow politicians to do so. The reason is obvious. A leaked GCHQ document noted: “Senior High Court judges (they) are INDEPENDENT, non govt (sic) and not openly swayed by personal contact”.

Prime Minister Theresa May has claimed that the Investigatory Powers Bill will introduce a double lock of authorisation with Judicial Commissioners checking ministers’ decisions. But the detail of the Bill means that Commissioners will be checking the process and will not have the powers to challenge surveillance decisions.

Independent judicial authorisation will do more than just ensure that surveillance decisions are necessary and proportionate. It may help the Government get the cooperation it seeks from US tech companies. In his report, A Question of Trust, the independent reviewer of Terrorism, David Anderson noted: “a number of major US companies, accustomed to the FISC procedure in the US, disliked the notion of authorisation by the Secretary of State and indicated to me that they would be more comfortable about complying with a warrant if it were judicially authorised.” (p207)

The IP Bill is currently being scrutinised by the House of Lords who can amend it to ensure that the UK has independent judicial authorisation. It’s not too late to get the ‘blah blah’ details right.