It’s time to overhaul the Investigatory Powers Bill

11 February 2016 by

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.

 

2 comments


  1. […] Legislators hope to pass the bill before the Data Retention and Investigatory Powers Act 2014 expires in December of this year. […]

  2. […] The Joint Committee on the Investigatory Powers Bill picks no less than 86 holes in the draft new law (UK Human Rights Blog) […]

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: