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Of Prime Ministers and Presidents: a review of the ISC Report on the Investigatory Powers Bill, actually

February 9, 2016

The Intelligence and Security Committee (ISC) has published its report on the Investigatory Powers Bill (the Bill). The scope of the report is limited to the work of the intelligence agencies: the Joint Committee will examine all other aspects of the Bill and is due to publish its findings later this week.

The report does not get off to a good start for the government, making the early and well-made observation that it fails to deal with the entirety of the intelligence agencies armoury: “[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”; an observation it is difficult to demur from.

But if the Home Office hoped the report was getting the bad news out of the way first, these were dashed. In paragraph 5, the hard-hitting report expresses three important concerns:

“i. Overall, the privacy protections are inconsistent and in our view need strengthening. We recommend that an additional Part be included in the new legislation to provide universal privacy protections, not just those that apply to sensitive professions.

  1. The provisions in relation to three of the key Agency capabilities – Equipment Interference, Bulk Personal Datasets and Communications Data – are too broad and lack sufficient clarity.

iii. In addition to these major issues of principle, there are a number of more detailed matters requiring specific amendments. These can be found at the end of this Report.”

This was remarkable – reminiscent of Hugh Grant’s prime-ministerial put down of a presidential Billy Bob Thornton in the movie Love Actually and universally welcomed by lawyers and campaigners. Buzz feed’s @jamesrbuk described it as a “savage report” at BBC security correspondent @gordoncorera “very critical” and leading surveillance law QC @rydermc strongly critical. Capturing the mood of the interested element of the nation, @3i5 (Eric King) mused that the new ISC chairman and former Attorney General Dominic Grieve QC would be off the Home Secretary’s Christmas card list this year.

The theme of the report was palpable frustration – the Bill “failed to provide the clarity and assurance which is badly needed” – and talked of rebuilding the public’s confidence in the work of the intelligence agencies. This is a really important point – it is significant that terror watchdog, David Anderson QC’s excellent report on surveillance powers, was entitled “A Question of Trust” – there is little of this around when it comes to our intelligence agencies at present. In a civilised society intelligence agencies can only legitimately exist where there is accountability and public confidence. Missing this fundamental principle in the drafting of the Bill is a serious error, giving the impression of it being seen as an opportunity to make compliant that found wanting either through leaks or adverse judgments and not seeking to give some integrity to the activities of our intelligence agencies. The ISC has mandated the government to address its concerns and publish a new draft.

Refreshingly, the ISC has stated in unequivocal terms that consistency is needed in terms of privacy protection. It is a remarkable feature of the existing regime that to intercept a telephone call, for example, a ministerial warrant is required and that the existence of the warrant or disclosure of the product without lawful authority is a criminal offence. If the same telephone calls are recorded on a listening device placed in a car using a hands free facility, an intrusive surveillance authority is needed, authorised internally and approved by a Surveillance Commissioner. If a covert human intelligence source hears the conversations only an internal authorisation is necessary. Incidentally the latter two resources do not need to be authorised: s 80 of RIPA, discussed here, makes clear such activities are not made unlawful in the absence of authority. The same content – telephone conversations – qualitatively the same interference with privacy but wildly different protections. A new part should be added to the Bill says the ISC to deal with this.

The ISC also expressed concerns about what is now called equipment interference – computer based covert investigations – and that there was a need for the Bill to provide a single legislative regime for this. Further repeal of the Intelligence Services Act 1994 (which placed GCHQ and MI6 on a statutory footing) is recommended.

On the subject of bulk interference, the ISC has stated bluntly that it has not been provided with, “sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants, given how broadly Targeted Equipment Interference warrants can be drawn”. Relying on the evidence of GCHQ itself that bulk interference was an exact science, the ISC has advised that the proposal for bulk equipment interference warrants are removed from the Bill. It is not just bulk equipment interference that should in the Committee’s opinion be consigned to the scrapheap, so too, “class bulk personal dataset warrants” (large datasets containing personal information about a wide range of people).

On the question of communications data, the ISC described the current proposed legislative provisions as “inconsistent and largely incomprehensible”. Importantly, the basis for their acquisition must specified in the legislation, “it is not sufficient” said the ISC, to rely on that which has come to the agencies rescue in some of the legal challenges, “internal policies or Codes of Practice”.

Other criticisms are made, including:

  1. The conflation of national security and economic wellbeing of the United Kingdom where relevant to national security (also the subject of criticism in Covert Policing Law & Practice).
  2. The absence of any specifity about the term “operational purpose”.
  3. Confusion over “Targeted Interception” and “Targeted Examination” warrants.
  4. The absence of effective review of timescales where material has been obtained without a warrant or on an urgent basis
  5. Absence of the power to refer certain matters to the ISC for investigation

If this was a bad day for government covert surveillance policy, it was great day for those seeking to strike the correct balance between the use of secret powers and accountability. In the end government failed to make its case and fell short; unable to justify a compelling case for the use of invasive and intrusive secret resources that have scope for huge abuse with little accountability. It is a bit like the scene from Samuel Beckett’s Waiting for Godot when Vladimir says to Estragon, “I don’t understand” and he replies, “use your intelligence, can’t you?” (Vladimir then uses his intelligence). Finally, says Vladimir, “I remain in the dark”. As Dominic Grieve said in an interview earlier today on the World at One, “when we asked why such a power was being provided, we didn’t necessarily get a clear answer”.

© Simon McKay (2016). Please ask for my permission before using or copying the material contained in this blog. If you do, attribute it to me, with a link to the original content. This is opinion, not legal advice.

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