The Investigatory Powers Act 2016
The Investigatory Powers Act 2016 is set to become law in the United Kingdom following its passing of the third stage of legislative scrutiny earlier this month. The Act seeks to consolidate and amend the legislative framework which governs the use of investigatory powers, including the Regulation of Investigatory Powers Act 2000 (RIPA). It is expected to receive royal assent by the end of 2016.
The draft Bill, nicknamed the ‘Snooper’s Charter’ by its detractors, was waved through the House of Commons in June this year with 444 votes to 69, fielding support amongst both Conservative and Labour MPs. The Scottish National Party (SNP) voted against it.
The passing of the Act comes one month after the Investigatory Powers Tribunal, the judicial body responsible for hearing complaints against MI5, MI6, and GCHQ, found that British security agencies had unlawfully collected confidential personal data for a number of years.
The Act provides for a combination of increased surveillance powers and a number of safeguards, setting out for the first time the powers available to the police and security services. Internet Connection Records (ICRs) will be retained by communications service providers in order to identify the sender of the communication, which services (for example a social media site) a person is using, or whether a person has been accessing or making available illegal material online. It does not provide a full internet browsing history. A service provider can be required to retain this data for up to 12 months.
The measures under scrutiny
The draft Investigatory Powers Bill was subject to scrutiny from three independent Committees: the Joint Committee on Human Rights; the Intelligence and Security Committee; and the House of Commons Science and Technology Committee.
In June this year, the Joint Committee on Human Rights published a report outlining pre-legislative scrutiny of the draft Bill. It explained that a number of rights are engaged. These include the right to respect for private life, family life, home and correspondence in article 8 ECHR; the right to privacy in article 17 of the International Covenant on Civil and Political Rights; and the right to privacy under article 7 of the EU Charter of Fundamental Rights, which applies within the scope of the application of EU law.
The Government had previously argued that the Bill would increase compliance with human rights law standards, thanks to the provision of ‘independent oversight’, the establishment of a ‘clear legal basis for the use of investigatory powers by law enforcement’, and the provision of ‘new legal remedies by (the introduction of) a right of appeal from decisions of the Investigatory Powers Tribunal’.
Following an extensive review, the Committee made a number of observations and recommendations. It found that the ‘bulk powers’ in the Bill were not inherently incompatible with the right to respect for private life, but were capable of being justified if they have “a sufficiently clear legal basis, are shown to be necessary, and are proportionate in that they are accompanied by adequate safeguards against arbitrariness.”
The Committee also recommended that the role of the Independent Reviewer of Terrorism Legislation be bolstered. On the ‘thematic warrants’, it recommended that the subject-matter of the warrants be circumscribed according to the Reviewer’s recommendation, in order to ‘prevent the possibility of large numbers of people being potentially within the scope of a vaguely worded warrant.’
In March this year the Government responded to the pre-legislative scrutiny of the draft Bill, in which then-Home Secretary Theresa May said that the revised Bill gave effect to the “vast majority of the recommendations made” by the three committees.
The wrong approach to human rights?
The Act has been criticised by a number of individuals and organisations including the chairman of the Bar Council of England and Wales, Chantal-Aimée Doerries QC. Ms Doerries QC has argued that the Act risks compromising the privacy of communications between lawyers and their clients. These communications are protected by ‘legal professional privilege’. According to the President of the Law Society, the representative body for solicitors in England and Wales, it is “fundamental to our justice system.” The Law Society states that this privilege “recognises the client’s fundamental human right to be candid with his legal adviser, without fear of later disclosure to his prejudice.”
Human Rights group Liberty has also criticised the Act, arguing that it “makes us all less safe, and less free.” It raised particular concerns that a citizen does not need to be reasonably suspected of wrongdoing to fall within the remit of the data retention powers. It also drew attention to the variety of government departments who will have access to personal information.
Jim Killock, Director of the Open Rights Group, raised concerns regarding the sharing of intelligence between GCHQ and the American National Security Agency, describing the data sharing as “near-complete”.
A petition for the repeal of the Act has now amassed more than 100,000 signatures, and therefore must be considered for parliamentary debate. Liberty have promised to “see the government in Court.” It seems that the saga is set to continue.
In the news
The UK Government has published a paper in which it responds to human rights judgments involving the country. The paper focuses on two types of human rights judgments: those from the European Court of Human Rights in Strasbourg against the UK and under the European Convention on Human Rights (ECHR); and cases in which UK courts have declared that a measure is incompatible with human rights law under section 4 of the Human Rights Act (1998). The report, which runs to 70 pages, is available here.
The BBC reports that the rights of a transgender man who was born female were beached by the recording of his previous gender on his marriage certificate. The Northern Ireland resident had previously entered into a civil partnership with his partner, in which he was recorded as a woman. He was subsequently granted a gender recognition certificate which gave him legal status as a man. The later marriage with his partner required the annulment of the civil partnership. The marriage certificate recorded the details of that partnership, including his former gender. He successfully argued against the Department of Finance and Personnel that the disclosure of the dissolution of the civil partnership constituted a breach of his rights to privacy under article 8 ECHR. The department’s contention that there was no deliberate publication of his gender history did not prevent the judge finding that the interference with his article 8 rights was without justification.
In the Courts
O’Neill and Lauchlan v The United Kingdom: The Grand Chamber of the European Court of Human Rights is considering whether to consider a referral in a case brought by two British nationals. In August 1998 Charles O’Neill and William Lauchlan were convicted of sexual offences and sentenced to eight and six years in prison respectively. They were questioned in September 1998 whilst serving their sentence over the murder of a woman, A.M., of which charges were brought against both men in April 2005. The men were indicted for trial in September 2008. Both men were eventually convicted in 2010. Mr O’Neill and Mr Lauchlan appealed to the European Court of Human Rights on the basis that the delay in and length of criminal proceedings had been excessive, and constituted a breach of their right to a fair trial within a reasonable time under article 6 of the ECHR. The original decision of June 2016 is considered by Fraser Simpson in this blog here.