Earlier this week, in anticipation of the publication of the Draft Investigatory Powers Bill, JUSTICE published Freedom from suspicion: Building a surveillance framework for a digital age.
Since our 2011 call for wholesale reform, in Freedom from suspicion: Surveillance reform for a digital age; in the intervening four years, change has become not only timely, but crucial.
The draft Investigatory Powers Bill, published yesterday, is said by the Government to be “comprehensive and comprehensible”. JUSTICE will provide a full response in due course to the lengthy provisions in the draft Bill and will provide written evidence to the Joint Committee of both Houses appointed to report in the New Year. Here are our initial thoughts:
Comprehensive?
- The Bill contains 202 clauses and 8 separate Schedules. While lengthy it doesn’t replace the Regulation of Investigatory Powers Bill 2000 (“RIPA”) in its entirety. The Bill deals with communications surveillance and replaces Parts 1 and 4 of RIPA, together with powers in other pieces of legislation. Other forms of surveillance – including the use of Covert Human Intelligence Sources – will continue to be governed by the outdated provisions in RIPA.
Investigators would continue to need both RIPA and the new law to make sense of the UK’s surveillance landscape.
Comprehensible?
- The Bill is accompanied by a number of “factsheets” which set out to explain its provisions. These, and the text of the Bill, will require some careful dissection. However, there are some early issues which suggest that the powers in the Bill are broader than they may at first appear. For the avoidance of doubt:
- The Bill confirms that Communications Service Providers may be required to retain communications data about all users for up to 12 months (see Clause 71). This appears to be out of step with recent decisions from the European Union on data retention and wider practice in other countries towards more restrictive rules on data retention (for example, a recent proposal in Germany would limit retention to 10 weeks).
- Bulk retention of data: Part 6 of the Bill deals with communications surveillance in “bulk”. This includes provision for the bulk interception of the content of communications, for the acquisition of data and for the interference with communications equipment.
- Internet Communication Records: A new power will require providers to retain data about the websites users visit. Without a warrant, police officers or agencies may access some information about the webpages visited (ie bbc.co.uk but not www.bbc.co.uk/weather) (Clause 47). Judicial approval will be necessary to obtain fuller information.
World-leading safeguards?
JUSTICE has long stressed that the existing safeguards in RIPA are inadequate to meet existing powers. The RIPA model is broken and out of date.
New safeguards, while welcome, cannot automatically render surveillance powers proportionate, necessary and lawful. The legality and propriety of the powers set out in the Bill will remain a question for Parliament.
- Judicial approval: JUSTICE recommends that the exercise of all compulsory surveillance powers should generally be subject to prior judicial authorisation.
The Bill proposes that decisions involving the interception of communications and some other forms of warrant should be taken by a Minister, subject to approval by a judicial commissioner (the “dual lock”). The limited value of this safeguard will be subject to close scrutiny. The judicial commissioner will not conduct a merits assessment, but will only subject the Ministerial decision to review on judicial review grounds. An “urgent” process will revert decision making power to Ministers or officials (See, for example, Clauses 19 – 21).
The Bill proposes no significant change to the process for accessing communications data, except in connection with the bulk processing of data (see Part 3). Police and other law enforcement agencies, other than local authorities, will access communications data – which might include significant information about who we communicate with and how, and about our internet usage – without a warrant, or any prior judicial oversight.
- The new Investigatory Powers Commission: The Bill reflects JUSTICE’s recommendation that a single body should be tasked with reviewing the conduct of agencies and law enforcement bodies exercising surveillance powers (Part 8, Chapter 1). This is a welcome development and we look forward to examining the Bill’s proposals for detailed powers and resources within the new IPC model.
- The Investigatory Powers Tribunal: The Bill provides for a new right of appeal from the Investigatory Powers Tribunal, but makes no further substantive recommendations to improve practice before the Tribunal (Clause 180). JUSTICE considers that there are significant steps which could improve the accessibility and effectiveness of the Tribunal.
JUSTICE will provide a full briefing on the Bill in due course, focusing particularly on the proposed mechanisms for authorisation, oversight and on the role of the Investigatory Powers Tribunal.
On 2 November 2015, JUSTICE jointly hosted a high-level roundtable discussion with King’s College London, at Somerset House, on Authorisation, Oversight and the Judiciary in Surveillance Law. An unattributed note of proceedings will be available shortly.