Posted on 3rd December 2015
Home Secretary Theresa May recently presented the Government’s draft Investigatory Powers Bill with the aim of consolidating existing legislation concerning surveillance, and in particular the Regulation of Investigatory Powers Act 2000.
The draft bill follows three reviews commissioned by the Home Office to report on the existing legal framework by the Government’s Independent Reviewer of Terrorism; the Royal United Services Institute; and the Intelligence and Security Committee. All three of these reviews found the current legislation to be outdated and in need of reform.
The previous coalition Government attempted to introduce the draft Communications Data Bill back in 2012 but were forced to abandon this after facing significant criticism, most notably from Nick Clegg, who was influential in blocking the bill from progressing. It was therefore expected that this bill would have a longer period of consultation and Theresa May reassured Parliament that the significance of the issues deserved proper scrutiny. Despite this reassurance the joint committee tasked with reviewing the bill have only been provided with three weeks to hear evidence before they must report back by 11 February 2016, jeopardising the public confidence in their report. We were recently reminded of the power of the House of Lords when they voted to halt the Chancellor’s controversial cuts to tax credits, which the Chancellor has subsequently abandoned, and it is a real possibility that a number of the more privacy-conscious peers may cause difficulties with the progression of this legislation.
One of the main areas of controversy concerns how interception warrants will be issued and authorised. Theresa May explained that these warrants would now be subject to judicial, as well as ministerial oversight; a so-called “double-lock” security for authorisation. On closer inspection of the draft bill it becomes clear that the level of judicial approval proposed is actually just a review of the ‘process’ that has been undertaken by the Home Secretary, applying the same principles as a court would apply to a judicial review.
This significantly limits any genuine judicial influence as judges will not be making a decision afresh for themselves as to whether the warrant should be granted, but rather considering the reasonableness of the Home Secretary’s decision – and only where she has acted so unreasonably that no reasonable decision maker could have reached the same decision (a very high bar), will a judicial challenge succeed. Conservative MP David Davis has openly shared his criticisms of the draft bill and commented that this level of judicial approval is flawed because “Judges hate overturning the executive, and it happens very rarely”.
The Home Secretary reportedly authorised 2,765 of these interception warrants last year. It is questionable what level of scrutiny was applied to each of these authorisations, and there is little to instil public confidence that the Government has properly and appropriately used these surveillance powers to date. It would be far better, and restore some level of confidence, if the authorisation of interception warrants was delegated to judges who could review the facts and evidence relating to the warrant and make a more informed decision.
A further area of concern relates to the proposed statutory basis for the retention and acquisition of communications data, echoing the 2012 proposal to grant authorities power to monitor the internet browsing habits of all UK citizens. Relevant public authorities would be granted permission to obtain requested communications data as long as a designated senior officer is content that the request is necessary and proportionate for a number of reasons such as national security or preventing and detecting crime.
This proposal would also require internet companies to retain records of users’ communications data for at least 12 months interfering with individual’s privacy and introducing risks over the safety of this retained data. The Shadow Home Secretary, Andy Burnham, has raised concerns that there needs to be “a clearly defined threshold for access to internet connection records” and the request for records should be limited to “police officers of a specified seniority” to increase safeguarding of sensitive information.
One of the most worrying proposals from a civil liberties perspective appears to be the new powers concerning equipment interference. The Government have attempted to analogise this practice to property interference, such as when security services are warranted to physically bug a property, however equipment interference effectively authorises authorities to hack into individual’s computers, tablets or mobile phones by exploiting vulnerabilities in software or using viruses or malware. This part of the draft bill creates an objectionable duty for telecommunications providers to assist with the implementation of equipment interference. Shami Chakrabarti, Director for Liberty, stated that these are “breath-taking new powers…to hack into our systems and servers and devices” which she envisages could lead to the same systems becoming more vulnerable to fraudsters and terrorists.
In light of recent terror attacks across the world there appears to be an increased public appetite for increasing surveillance powers to deal with national security concerns but it is essential that this bill is not fast-tracked through Parliament without the required level of critical scrutiny. Investigatory powers are an important function of the state and it is clearly necessary for appropriate authorities to access information in order to protect against realistic threats. However, it is equally important for the public to remember that this legislation must strike the correct balance. As David Davis correctly identifies we need to stop being “intellectually lazy about defending liberty” and we must not rush to impose restrictions on our own freedoms. The complexity of the legislation makes it difficult for the public to make an informed decision but we must take advantage of the public legislative process to highlight the vulnerabilities that are inherent in the draft bill and protect our civil rights more assiduously. As it currently stands the draft bill appears to legalise significant encroachments on our freedom and privacy.
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