It’s time to overhaul the Investigatory Powers Bill

11 February 2016 by Guest Contributor

By Cian C. Murphy and Natasha Simonsen

This morning, the Joint Committee on the Draft Investigatory Powers Bill issued a 200-page report on the draft new law. It’s the next step in the scrutiny of a foundational piece of UK national security law – capabilities and safeguards on internet surveillance. The Report is remarkable and comprehensive work – not least because it was done in a few short months. The Committee has made no fewer than 86 recommendations for how the Bill can be improved.

The report is detailed and its recommendations are constructive. The Committee condemns the draft Bill’s definition of ‘data’ as “unclear, unhelpful, and recursive”. The report expresses concerns about the meaning of the term ‘Internet Connection Record’ and the Home Secretary’s failure to make sufficient case as to the feasibility of their collection, retention, and use by law enforcement.

These concerns are significant. The law will not work if key terms lack clear definitions. Neither parliamentary committees nor the public can effectively scrutinise the Bill if its meaning is opaque. The Committee also calls for further consultation, some of which will have to be quite extensive, on several aspects of the draft law. There is therefore much work to be done, and no time to waste: the sunset clause on the Data Retention and Investigatory Powers Act 2014 (DRIPA), which the new Bill hopes to replace, expires in December of this year.

In this post we make preliminary points on three aspects of the Report: authorisation of interception warrants, the oversight body, and the Investigatory Powers Tribunal. Our previous thoughts on the draft Bill can be found here  and all written evidence to the Committee is here.

Authorisation of Interception Warrants

The Report endorses the ‘dual-lock’ mechanism that will see Ministerial issuance of interception warrants subject to review by Judicial Commissioners. However, there remains intense debate over the requirement in the Bill that Commissioners apply ‘judicial review principles’ in deciding whether to approve or reject a warrant. We have expressed concern, as have others, at the risk that Commissioners could adopt a deferential approach to judicial review given the national security context, when ‘anxious scrutiny’ might be more appropriate given the rights at stake.

The Home Secretary’s comments have added to our worries: the Commissioners, she claims, are “not re-taking the [Ministerial] decision [to issue a warrant]. They are looking to see whether the original decision was flawed”. This suggests she is hoping for light touch, rather than substantive, review. The Committee’s press release says “the single biggest safeguard is the much greater involvement of judges in authorising warrants for authorising intrusive capabilities, which the Committee welcomes”. And yet, the process is quasi-judicial rather than judicial, with review of authorisations conducted ex parte, and perhaps with deferential review.

On balance, the Committee accepts assurances that the wording in the draft Bill affords the Commissioners a useful ‘flexibility’. An amendment moved by Lord Strasburger would have recommended greater clarity on judicial review principles but was voted down 7-6 by the Committee. It is rather a pity that Lord Strasburger’s amendment was not adopted. If the reference to judicial review principles is to afford the Judicial Commissioners discretion, then why include it at all? To omit it entirely would afford the same discretion without the spectre of deference hanging in the air.

The Report is much more robust when it comes to ‘urgent warrants’. The draft Bill would allow the Minister to issue such warrants alone, with their review by a Judicial Commissioner to follow within five days. Little justification has been given for this timeframe. The Committee’s recommendations that the period before review be shortened to 24 hours (recommendation 36) and that the Bill include a definition of ‘urgent’ for this purpose (recommendation 37) is therefore most welcome. One possible definition of urgent might involve an ‘immediate threat to life’ or some such formulation.

Parliament would do well to give extensive attention to this aspect of the Bill during its passage. The ‘dual lock’ is the centrepiece of the authorisation regime. Without an adequate system in place the Judicial Commissioners may offer a mere simulacrum of review (as the EU General Court once said in another context) and the law could fall foul of international human rights standards.

Oversight: Judicial Commissioners and a Commission

The Committee recommended the creation of an Independent Surveillance and Intelligence Commission (ISIC), “a body corporate with statutory powers” to house the Judicial Commissioners (recommendation 51). The absence of such an office came in for persuasive criticism from the existing Interception of Communications Commissioner’s Office, from David Anderson QC, and from many others.

This recommendation reflects concerns we have previously expressed about the institutional culture of an organisation that is responsible both for oversight and authorisation. A separate statutory body, with the power to initiate investigations (recommendation 52), would improve the transparency of its operations and build public trust in the institution. The Committee’s recommendations on these points should be written into the draft Bill before its introduction into Parliament.

The Committee has also shifted the dial on appointment of the Commissioners. Although our preference remains for appointment by the Judicial Appointments Commission (JAC), the Committee has opted to give the role to the Lord Chief Justice, owing to his ability to consider the impact of appointments on the work of the courts. The JAC, the Committee states, should be consulted “to ensure that the appointments procedure is fair and transparent” (recommendation 53).

Giving the power to the Lord Chief Justice is a step in the right direction. However, his role should be reversed with that of the JAC. Fairness and transparency are paramount concerns that cannot be met by mere ‘consultation’. The JAC should make appointments and should ‘consult’ with the Lord Chief Justice on the impact on the justice system.

The Report notes there’s plenty more work to do on this front. It gives careful consideration to term lengths, renewal of terms, funding for the office, and grounds for dismissal (recommendations 54-56). The Government should take the opportunity to look again at the appointment process: the powers and functions of the Judicial Commissioners must not be reduced to mere rubber-stamping

Redress: The Investigatory Powers Tribunal

The draft Bill’s inclusion of a right of appeal from the Investigatory Powers Tribunal has met with seeming universal approval. The Committee makes several further recommendations on this issue: to expand the right of appeal to include error of law (recommendation 70); to introduce an interim right of appeal on the ground of error of law (recommendation 71); to introduce an appeal route for cases from Scotland and Northern Ireland (recommendation 72). These recommendations are eminently sensible and we hope will be swiftly adopted.

Importantly, the Report recommends the immediate introduction of new powers for the IPT to decide whether its hearings will be open or closed (recommendation 74), and to issue declarations of incompatibility under the Human Rights Act 1998 (recommendation 75). In other respects however, the draft Bill is a missed opportunity to reform the IPT.

The IPT has been subject to resounding criticism from diverse quarters, ever since its establishment under the Regulation of Investigatory Powers Act 2000. Existing almost entirely outside the regular judicial system, previously headquartered within the Home Office, the IPT has sole jurisdiction over the intelligence agencies but can only make orders with respect to them with their consent. to describe the IPT as flawed is a serious understatement. Taking these criticisms seriously, the Committee has recommended that the Home Office “conduct a consultation and review of the powers and procedures of the IPT with the aim of improving openness, transparency and access to justice” (recommendation 73). A thorough overhaul of the IPT is necessary and yet further consultation and review will take time. It would be regrettable if these important reforms were subject to lengthy delay: or worse, lost sight of entirely in the rush to pass the new Bill into law.

What’s Next?

The legislative schedule for the new law is driven by the sunset clause in DRIPA, expiring on 31 December 2016. For a foundational piece of legislation this timeframe is too short. The looming expiry of DRIPA also appears to be behind the EU Court of Justice’s attempt to speedily hear a challenge to the regime’s legality brought by MPs David Davis and Tom Watson.

There are strong constitutional reasons for sunset clauses in emergency legislation such as DRIPA and we are supportive of the mechanism. However, in this instance the clause means the legislative process is being rushed. There are (at least) three options to address this problem:

• renew DRIPA for a further year to allow more time for the Investigatory Powers      Bill to be subject to adequate scrutiny and to facilitate the necessary consultations by the Home Office;
• remove the communications data retention aspects from the Investigatory Powers      Bill so that the DRIPA sunset clause does not impact upon the Bill in general (this does not resolve the problem of the expiration of those powers of retention in DRIPA);
• enact an Investigatory Powers Bill by the end of this year with strong post-legislative scrutiny review and, if necessary, revision mechanisms to ensure that Parliament remains attentive to the subject beyond the current legislative cycle.

The Committee’s Report is largely in congruence with the final option and it may be the most realistic. If Government does go ahead, it needs to ensure that the Bill is literate in both technological and legal terms. The broad endorsement of this report, and adoption of the majority of its recommendations, would go a long way towards that end. At present, the Bill does not provide robust safeguards, or at least not robust enough given what is at stake.