Investigatory Powers Bill
The Draft Investigatory Powers Bill was published on 4 November 2015 for consultation. A Joint Committee appointed to report on the Draft Bill published its report on 11 February 2016.
The Investigatory Powers Bill was published on 4 March 2016 and will have its Second Reading on 15 March 2016.
In 2011, JUSTICE recommended that the Regulation of Investigatory Powers Act 2000 (‘RIPA’) be repealed and replaced by a modern legal framework for surveillance more suited to a digital age. Reconciling the right to respect for privacy and the security interests of the wider community requires careful consideration, but the public interests in privacy and security are not mutually exclusive. Surveillance is a necessary activity in the fight against serious crime. When targeted, it can play a vital part in our national security.
Building a legal framework for surveillance in the digital age is now a priority. However, JUSTICE remains concerned that the Draft Bill, like the Draft Communications Data Bill before it, includes broad provision for untargeted and bulk powers of surveillance, and makes limited provision for effective oversight and accountability.
The Joint Committee on the Draft Investigatory Powers Bill Report reflects many of our concerns. The Committee identified 86 separate areas for work and made significant criticism of the Government’s proposals.
This echoed the crucial conclusions of the Intelligence and Security Committee, chaired by former Attorney General, Dominic Grieve QC, that the Draft Bill is in parts “inconsistent and largely incomprehensible” and generally presents a “missed opportunity” to provide “the clarity and assurance which is badly needed”.
The House of Commons Science and Technology Committee agreed, criticising its “poorly defined” and “broad and ambiguous” provisions.
JUSTICE remains concerned about the compatibility of the powers proposed in the Bill with the provisions of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. While others will be better placed to advise the Committee on the practical impact of these powers or the operational case to support them, JUSTICE now hopes that Parliament will subject the Bill to close scrutiny.
JUSTICE has a number of detailed concerns about the Bill’s provisions:
Authorising Surveillance
(i) The Bill should be amended to provide for judicial authorisation of warrants throughout as a default, subject to a limited exception for certification by the Secretary of State in some cases involving defence and foreign policy matters. Certification should be subject to judicial review by Judicial Commissioners.
(ii) If a review is conducted, it should be clear on the face of the Bill that Judicial Commissioners are required to conduct a full merits review of the necessity and proportionality of a Secretary of State’s decision on surveillance.
(iii) The urgent procedure in the Bill should be amended to restrict the capacity for its arbitrary application.
(iv) All substantive modifications of warrants should be made by a Judicial Commissioner.
(v) Judicial Commissioners considering applications should have access to security vetted Special Advocates to help represent the interests of the subject and the wider public interest in protecting privacy.
The Investigatory Powers Commissioner
vi) The Bill should be amended to provide a clear statutory basis for a new Investigatory Powers Commission. The independence of the Commission and its Judicial Commissioners will be paramount to its effectiveness.
vii) The judicial functions of the Judicial Commissioners and the wider investigatory and audit functions of the Commission should remain operationally distinct. While it would, in our view, be beneficial for the Commissioners to be able to draw upon the wider expertise provided by the staff of the Commission, there should be no doubt about their capacity to take independent decisions on individual warrants.
(viiI) The Secretary of State should not have any involvement in the management of resources for the new Investigatory Powers Commissioner.
(ix) Any drain on the High Court when judges take up appointments as Judicial Commissioners should be offset by the Treasury.
(x) The Appointment of Judicial Commissioners by the Prime Minister should not be allowed to undermine their independence.
(xi) The Secretary of State should not be able to modify the functions of the Commissioners by secondary legislation.
(xii) The Bill’s provision for the reporting of errors should be substantially amended. At a minimum, it should be accompanied by a mandatory disclosure requirement for individuals targeted for surveillance to be provided with information after-the-event.
(xiii) JUSTICE is concerned that the Bill does not yet provide a clear safe-route to the IPC, as it fails to make clear that communications from officials or Communications Service Providers will not be treated as a criminal offence for any purpose, including when making voluntary disclosures.
The Investigatory Powers Tribunal
(xiv) The new right of appeal from decisions of the Investigatory Powers Tribunal is welcome. Members may wish to consider whether the test for appeal is unduly restrictive. The Bill should make clear beyond doubt that an appeal at any stage of proceedings against any determination on the law by the IPT remains possible.
(xv) JUSTICE considers that the Bill should be amended to modernise the procedures of the IPT. This should include an amendment to provide for the IPT to be able to make declarations of incompatibility pursuant to Section 4, Human Rights Act 1998, for example.
Additional Issues
(xvi) JUSTICE is encouraged that Ministers accept that Legal Professional Privilege must be addressed on the face of the Bill and subject to debate in Parliament. However, we regret that the provision in the Bill provides for the authorisation of the interference with legally privileged materials in circumstances which are considered ‘exceptional and compelling’. The safeguards proposed in the Bill are insubstantial and may pose a significant risk to individual confidence in the ability to secure confidential legal advice and assistance if implemented.
(xvii) The ban on the use of intercepted material in court proceedings should be removed.
(xvii) JUSTICE considers that the Bill should come with true sunset clause. Given the breadth of the intrusive powers in the Bill, and the uncertainty over their legality, Parliament should bear regular responsibility for the scrutiny of the operational need for such measures and their renewal or amendment if necessary.
Like the Armed Forces Bill, the Investigatory Powers Bill should be renewed on a regular basis, prompting an automatic Parliamentary consideration of effectiveness and necessity of the existing powers, any new capacities, and any concerns about the lawfulness of the underlying framework.
Follow this link to read JUSTICE’s further briefing for the House of Lords Committee Stage.
Follow this link to read our joint briefing on Legal Professional Privilege.
Follow this link to read JUSTICE’s briefing on Parts 1 and 2 for House of Lords Committee Stage.
Follow this link to read JUSTICE’s briefing on Part 8 for House of Commons Committee Stage.
Follow this link to read JUSTICE’s briefing on Parts 3 and 4 for House of Commons Committee Stage.
Follow this link to read JUSTICE’s briefing on Parts 1 and 2 for House of Commons Committee Stage.
Follow this link to read JUSTICE’s full briefing on the Bill.
Also available: JUSTICE’s response to the draft Investigatory Powers Bill.