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GCHQ, Ministry of Defence

Chuck Palahniuk in his book Survivor says of the past: ‘If you watch close, history does nothing but repeat itself. What we call chaos is just patterns we haven’t recognized.’

This seems apposite as the public confronts the latest draft legislation relating to state surveillance, the Investigatory Powers Bill which gets its second reading today.

The Regulation of Investigatory Powers Act 2000 (RIPA), some of which the Bill, once passed, will repeal was described recently by the specialist Investigatory Powers Tribunal (IPT), set up to determine issues arising out of it, as ‘incomprehensible’ – and without question the same can be said of the Bill.

There are, by way of just one example, over a dozen sub-definitions of the term ‘relevant communications data’ (all of which are scattered like debris throughout the draft legislation) and the definition of data could, without any sense of irony, be compared to some unbreakable code.

In today’s Guardian over 200 lawyers, including a former Lord Justice of Appeal, have signed an open letter that in its present form, the Bill is not fit for purpose. The former DPP and leading human rights lawyer Keir Starmer QC added his voice to the concerns saying that: ‘Instead of defining sweeping powers more tightly on the face of the Bill, the government has taken the opportunity to widen the powers and place them in non-binding codes of practice.’

‘These are international standards found in the recent opinion of the UN special rapporteur for the right to privacy, and in judgments of the EU court of justice and the European court of human rights. At present, the bill fails to meet these standards – the law is unfit for purpose.’
Guardian letter

Following the publication of the first draft of the Bill a joint committee of MPs and the Intelligence and Security Committee (ISC) reported on the proposed new scheme. The ISC was scathing:

‘[The Bill] is handicapped from the outset in terms of the extent to which it can provide a clear and comprehensive legal framework to govern the use and oversight of investigatory powers… [it is] a significant missed opportunity.’

One of its key recommendations was the inclusion of a new part in the Bill to deal with privacy protections, which the ISC had found wanting. Its response was to add the words ‘General Privacy Protections’ to the already existing Part 1.

In fact Part 1 does little to provide for privacy protections; indeed it arguably takes away, since the Bill does not include the statutory tort of unlawful interception that is in s 1(3) of RIPA.

The respected legal commentator David Allen Green has asked the Home Office for an explanation. At the time of writing, none has been forthcoming. These concerns simply scratch the surface, there are many others, including but not limited to, the protection of journalistic sources and the erosion of legal professional privilege and the retention of Internet Connection Records (known as ICRs).

The Bill attempts to address the legal vulnerabilities exposed following the revelations by former NSA officer Edward Snowden and judgments of the IPT as well as the effect of the decision in Digital Rights Ireland (which declared invalid the regulations requiring internet service providers to retain communications data for a specific period). Targeted and Bulk interceptions can take place whether or not there is reasonable suspicion and against groups of people, organisations and premises.

What lies behind today’s letter in the Guardian is legitimate concern about key aspects of the proposed legislation arising out of decisions in the European Court of Justice and European Court of Human Rights.

In the former, the Schrems case, the court held that the ‘essence of the fundamental right to respect for private life’ is usurped by law permitting the state to have access to the content of electronic communications on a generalized basis. In the latter, the Zacharov case, the court placed emphasis on the need for target specifity and reasonable suspicion. The provisions in the Bill fail to meet this minimum threshold and the important standards are not met.

Privacy is a key concept here.

The Bill follows on from the review of investigatory powers by David Anderson QC, the independent reviewer of terrorism legislation. His acclaimed report was a key driver behind the need to legislate. At paragraph 2.16 he wrote:

‘Those who mistrust the state tend to argue that such powers should not exist at all; others accept the powers but emphasize the need for robust safeguards on their use. The question of trust is thus at the core of the issues to be considered in this Review.’

Few, if any reasonable commentators, could argue there should not be state surveillance to tackle serious crime, terrorism and threats to the nation’s security. But the quid pro quo is that the public must have confidence such powers will be carefully drafted, limited in their scope and justified only in the most appropriate cases. It cannot be said more eloquently than the Anderson report’s title: it is quite simply, ‘a question of trust’ (PDF).

The former law lord Tom Bingham, in his book The Rule of Law, written before the UK confronted the spectre of mass surveillance (and to be sure there is no question that mass surveillance has occurred – the debate now is whether mass ‘collection’ equates to monitoring but, in legal terms, it matters little) lamented on the absence of significant legal challenges to covert surveillance in the UK since the functions of an independent judiciary include keeping the state in check.

The same could not be said today – the challenges by Privacy International, Big Brother Watch and others before the IPT and European Court of Human Rights – would have answered Lord Bingham’s musings as to how such cases would have been resolved; but his belief then that ‘the British government can claim to have complied with the rule of law in the field of public surveillance’ would have been shaken. He cited the Council of Europe in 2002 as the principle to which the public could cling:

‘The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire setting aside legal safeguards hat exist in a democratic state [but] it may nit use indiscriminate measures which would only undermine the fundamental values they seek to protect. For a state to react in such a way would be to fall into the trap set by terrorism for democracy and the rule of law.’

The Home Secretary has said that the Bill on enactment will establish ‘a world-leading regulatory regime’. Amidst the chaos, she cannot see the patterns as history inexorably repeats itself.