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Regulation of Investigatory Powers Bill:

Second reading briefing

 

Introduction

 

The subject-matter of this Bill raises the challenge of striking the proper balance in a democracy between, on the one side, the protection of society from real threats to its integrity and, on the other, the need to preserve the very values that make a democratic society worth protecting: the rule of law, respect for individual liberty, and abhorrence of arbitrary or unjustified interference with citizens' rights.

 

The existing matrix of legislation in this area - the Interception of Communications Act 1985 ("IOCA"), the Security Service Act 1989, the Intelligence Services Act 1994 and the Police Act 1997 - was enacted under the last Government.  Liberty shares many of the concerns about the legislation expressed by the then Opposition. 

 

In particular, it is vital to recognise that:

 

·         the clandestine nature of the operations regulated by the legislation heightens the care needed to ensure that necessary official activities impinge as little as possible on citizens' rights;

 

·         against that background, the current criteria for authorising interception and surveillance are objectionably vague and overbroad;

 

·         the safeguards and scrutiny arrangements the law provides are insufficient to ensure that the interference with individual rights is strictly proportionate to the legitimate needs of the agencies concerned.

 

We welcome the Government's acknowledgement that the law must move on.  We hope that the Bill will be an opportunity not only to address new technologies and practices but also to bring the legislation into line with modern thinking - among the UK and European judiciary as well as the wider public - about the protection the law must give to citizen's rights in this sensitive area.

 

The Bill represents an improvement on the existing law in certain respects.  But a number of concerns remain, some of them significant; and the Bill itself unfortunately raises a number of fresh problems. For example:

 

·         the case law of the European Convention on Human Rights empashises that prior judicial sanction is the preferable safeguard for the citizen’s Article 8 privacy rights in the investigative context – rather than authorisation by a politician or police officer;

·         the individual's right to complain of an infringement of rights is reduced to a matter of chance;

·         the creation of a ‘tipping off’ offence is problematic;

·         in their current form, powers relating to encryption keys risk reversing the burden of proof.

 

Great care must be taken to ensure that this legislation complies with international human rights standards. In Liberty’s view it will require some amendment in order to achieve this.

 

Some of our principal proposals for changes and improvements to the Bill are outlined below.  We will make more detailed proposals for amendments when the Bill moves into Committee.

 

 

Part I: Interception of communications and disclosure of communications data

 

Scope of the power to intercept

 

Some of the Bill's provisions authorising interception without warrant are unacceptably open-ended: for example, those in clause 4 relating to prisons and secure hospitals.

 

The references to proportionality and necessity in the description of the circumstances in which interception may be carried out with a warrant are welcome.  But those apparent safeguards are severely undermined by two factors which together lead us to doubt whether these provisions would differ substantially in effect from the flawed Interception of Communications Act (IOCA).

 

First, the grounds described in clause (clause 5(3)) unfortunately suffer from the same defects as the corresponding provision of IOCA (section 2(2)):

 

National security" and "economic well-being" are extremely vague and subjective ideas.  The Bill defines neither.  If activity is so great a menace to society as to justify interference with fundamental rights of the citizen, one would expect it to be prohibited by the criminal law, with the definitional certainty that attracts.  Subject only to well-defined exceptions, "prevention or detection of serious crime" should be the sole ground for authorising interception.

 

In the field of national security, a range of crimes of espionage, terrorism and conspiracy cover an enormous range of harmful conduct. In the field of economic well being. Offences covering fraud, evasion of fiscal nad customs regulation, insider dealing, false accounting, counterfeiting and so forth prohibit an equally broad range of objectionable activity.  If Parliament has not judged an activity sufficiently grave or insidious to justify bringing it within the criminal law, then it should not generally be regarded as a legitimate basis for interception or surveillance.

 

The definition of "serious crime" (clause 71(4)) should not include the "common purpose" head.  That unjustifiably extends the net of surveillance indiscriminately to participants in legitimate collective activity - industrial action, organised protest and so on - who are not themselves suspected of inherently serious wrongdoing.  That cannot be regarded as proportionate.  It is also likely to deter individuals from exercising the right of freedom of  association protected by the Human Rights Act.

 

Second, clause 5(4) effectively replicates the unsatisfactory IOCA requirement that the Secretary of State merely "consider" the availability of alternative means of obtaining the relevant information.  Where access is sought in cases of routine crime to confidential or other sensitive material, Schedule 1 to the Police and Criminal Evidence Act 1984 requires the investigating authority to positively show that other methods have failed or are bound to fail.  For the Bill to apply a less stringent test where the individual faces an interference with fundamental rights on the basis of suspicion of serious wrongdoing turns proportionality on its head.

 

Authorisation procedures

 

Retention of executive rather than prior judicial authorisation of interception is fundamentally objectionable.  That the executive should secretly authorise itself to commit clandestine interferences with important rights is neither acceptable nor necessary. 

 

The Government has failed to advance any satisfactory case for failure to adopt a judicial procedure.  Prior judicial sanction operates well in routine criminal investigations (PACE 1984 Schedule 1: application to a circuit judge) and forms a satisfactory basis for clandestine interception arrangements in other European countries, including Germany. 

 

Judicial involvement maintains public confidence in the investigatory framework.  It would eliminate the risk of a débacle such as the Matrix Churchill affair.

 

We consider it essential that in all cases covered by clause 5, authority to intercept should be sought from a High Court or equivalent judge.

 

Disclosure to target

 

The individual's right to complain of an infringement of rights is reduced to a matter of chance - for example, the individual might become aware of interception only after a security service leak.  Scrutiny arrangements such as those envisaged by Part IV can only work effectively if those affected by interception are given notice as soon as practicable (usually after completion of the investigation) that it has been carried out.  Clause 18 currently prevents that. 

 

Clause 16 accentuates the problem.  The current equivalent (IOCA s. 9) operates unfairly by placing prosecution and defence in a profoundly unequal situation.  The possibility of after-the-event relief under clause 1 or Part IV is little consolation to an individual who has suffered a miscarriage of justice as a result of the non-disclosure rule and the restrictions imposed by clause 16.  Relevant intercept material should generally be subject to the ordinary disclosure rules in criminal proceedings.  Unlawfully obtained material should be inadmissible against the accused.

 

Communications data

 

Clause 21 permits access to such data on broader grounds than apply to interception proper.  The underlying assumption that data access represents a lesser intrusion into rights of privacy than nterception is misconceived.  The grounds should be no wider than we recommend in relation to interception.  Access to the data should not be by mere notice to the holder but on the authority of a judge granted only after an application on notice to the holder.

 

 

Part II: Surveillance and covert human intelligence

 

The gathering and use of information about the citizen through each of the three techniques to which this Part applies (clause 25(1)) interfere with rights under Article 8 of the Convention.  The proposed scope of the powers and procedural safeguards in relation to authorisation raise issues similar to those arising under Part I.

 

This Part applies to a wider variety of investigative objects including detection and prevention of routine rather than just serious crime.  We accept that greater flexibility is appropriate as regards the grounds on which activity may be authorised and the content of the authorisation procedure. 

 

However, the requirement of proportionality means that the more that is at stake for the suspect - that is, the more intrusive the technique in question and the more serious the allegation against the target - the greater the necessary safeguards.

 

Clauses 28 and 29 are therefore unsatisfactory because proposing a single, wide set of grounds, and a system of wholly executive authorisation, to all the possible kinds of operation covered by the Part.  The proposal for "second-guessing" certain authorisations by a Surveillance Commissioner (clauses 33-35) does not adequately address the problem.  We will support amendments aimed at ensuring that operations involving serious interferences with rights are authorised on appropriately defined grounds and by prior judicial sanction.

 

 

Part III: Encrypted data

 

This Part raises the right to privacy in its broadest sense, extending to the citizen's interest in development and exploration of human contact and relationships.  Mass electronic communications offer the public unprecedented scope for creating relationships on a global level.  Confidence in the security of data is vital for the continued expansion of electronic communications - whether personal, commercial or of other kinds.  Striking the wrong balance between privacy and investigatory risks undermining that confidence.

 

We consider that the Government has failed to demonstrate any need for a new regime of compulsory access to decryption keys.  The parties to an electronic communication remain free to encrypt "at source" themselves.  There is no technical necessity that encryption keys should be held by anyone but the parties.  Persons who intend serious wrongdoing are precisely those most likely to take advantage of that fact.  So the Bill will enable serious infringements of privacy for no worthwhile gain.  That flatly conflicts with the principle of proportionality.  The reference to proportionality in clause 46(2) cannot meet this fundamental objection.

 

If a case of need can be made in principle for access to encrypted information, it is unlikely to support the draconian step of requiring supply of decryption keys.  PACE 1984, Schedule 1 para. 5, provides that a judge's order for disclosure of information held on computer requires its supply "in a legible and visible form".  That provision could readily be adapted to supplement other investigatory powers.

 

If Part III is to remain in broadly its present form, we have the following concerns (among others):

 

·         Authorisation should generally be by way of application to a judge on notice to the key holder.

 

·         The clause 49(1) offence is too onerous and improperly casts the burden of proof on an accused who, by definition, is not the target of the investigator's suspicions.  The basic obligation should be take all practicable steps to disclose a key (or plaintext) in one's possession when the authorisation is served.  The prosecution should have to prove non-compliance with that obligation in the ordinary way.

 

·         The tipping off offence (clause 50) is a serious one (subs. (3)).  Several of its provisions improperly cast a burden of proof on the accused.

 

·         There should be a requirement (and corresponding exemption from clause 50) for after-the-event notice to the parties whose data security has been compromised by the disclosure of a key.

 

 

Part IV: Scrutiny and Codes of Practice

 

The Tribunal proposed by the Bill is potentially a considerable improvement on the present restrained and secretive separate tribunal systems.  However, it also preserves number of serious deficiencies in the present framework.

 

Disposal of complaints

 

The Tribunal should have power to review the substantive merits of authorisation of the interception, surveillance or other measures in question.  It should not be confined to the narrow grounds on which an application may be made for judicial review (clause 58(2) and (3)).  That restriction will lead in many cases to violation of Article 6 of the Convention.

 

The Tribunal's determination should give an adequate indication of its findings on the issues raised by the complaint.  The cryptic determination proposed by clause 59(4) falls short of even the most modest requirements of fairness in judicial decision-making.

 

There should be an express statutory right of appeal from the Tribunal to the High Court on a point of law.  The draft Electronic Communications Bill 1999 proposed this in relation to what is now Part III of the Bill.  That proposal has now been commuted to the wholly unsatisfactory clause 58(8).

 

Procedure

 

Clause 60 raises the prospect of a significant step forward from the present statutory framework, whose various tribunals fall well short of the requirements of fairness and transparency required in a modern democracy, even allowing for the particular demands of their subject-matter. 

 

The test to be applied by the Secretary of State when making procedural rules (clause 60(6)), and by the Tribunal itself when applying them, should be one based firmly on proportionality: any derogation from the usual standards of fairness and publicity associated with court and tribunal proceedings should be permitted only to the strict extent necessary in pursuance of the demonstrable requirements of national security or operational secrecy.

 

Liberty, 28 February 2000