Avoiding the Thin Veneer of Legality; Structural and Institutional Factors Impacting Judicial Scrutiny in a National Security Context

Discussions surrounding the role of judicial oversight in the national security context often revolve around discussions of appropriate standards of review and levels of deference for judges to take. While answering these doctrinal questions remains essential, the question of whether there are non-doctrinal factors which may influence how judges review executive action is relatively understudied. This article uses the so-called double-lock authorisation mechanism under the Investigatory Powers Act 2016 to show how structural and institutional factors may influence judicial decision-making in a national security context. These factors are not universal rather they are specific to the oversight mechanism in question. For the double-lock they are the issues with proximity to the executive, lack of inter partes argument, appointment procedures to the Investigatory Powers Commission and the ability for the executive to appeal a judicial commissioner’s decision. However, this points towards the need to evaluate non-doctrinal factors in other judicial oversight mechanisms going forward.