Putting Parliament in Charge

The Investigatory Powers Bill was published today in draft, together with explanatory notes and¬†an unprecedented volume of impact assessments, factsheets and other “overarching documents“.

One of the reports that contributed to the draft Bill was “A Question of Trust“, the report of my Investigatory Powers Review that was published in June 2015.¬† Other reports were produced in March 2015 by the Intelligence and Security Committee of Parliament and in July 2015 by¬†the Royal United Services Institute.¬† All have left their mark on the Bill.

The best thing about the draft Bill is that it puts Parliament in charge.  For the first time, we have a Bill that sets out, for public and political debate, the totality of the investigatory powers used or aspired to by police and intelligence agencies.  The list includes:

  • some functions that were publicly avowed only a few months ago (“equipment interference“, including in bulk and by the police, and the use of bulk personal datasets);
  • one function that was avowed only today – the use of section 94 of the Telecommunications Act 1984 for the bulk collection of communications data for the use of the intelligence agencies; and
  • a proposal¬†that police have¬†access to internet connection records for defined purposes, a watered-down version of proposals¬†made in 2012 and never progressed because of Coalition disagremeents.¬†¬†It is accompanied by the operational case that I described as the minimum starting-point for a debate on this subject – published so that it can be scrutinised by all.

Not everyone will be happy about those powers.  It will now be for Parliament to decide whether they are justified.  That is the way things should be in a democracy Рbut rarely are at the moment, anywhere in the world.  Whatever the content of the eventual UK law, it will no longer be possible to describe it as opaque, incomprehensible or misleading.

As was said in 2013 by Lord Blencathra, Chair of the Joint Bill Committee that considered the draft Communications Data Bill: “Many of us are happy to have certain information collected by the state, but, by God, we’ve a right to know the parameters under which they are operating“.¬† It is a vital function of Parliament not just to know, but to decide, those parameters.

The draft Bill also contains safeguards.  My report, and that of RUSI, were particularly influential here.  There will be a powerful, outward-facing super-regulator,  and save in urgent cases, no warrant will enter into force without judicial approval Рa reversal of consistent practice since at least the 17th century.

Opinions will differ as to whether these safeguards go far enough.  The judges need to be well-supported, and exposed to a sufficiently wide range of opinion for there to be no question of them operating as rubber stamps.

It also needs to be asked whether there is sufficient independence in procedures for access to communications data, bearing in mind in particular the Digital Rights Ireland judgment on whose meaning the European Court of Justice has recently been asked to pronounce, and the particularly sensitive or intrusive nature of some data (for example, the fact that a lawyer may have communicated with a potential witness).

I am pleased that the draft Bill draws extensively on my report. But with the publication of that report, I passed on the baton to others: notably the parliamentary scrutiny committee which will soon be inviting comments on the draft Bill.  The intention is for that committee (as well as the Intelligence and Security Committee) to report on the draft Bill prior to the Bill itself being introduced to Parliament in the early part of 2016.

I will be doing a little media this evening to give my immediate reaction to the Bill.  You may be able to hear me on the BBC Radio 4 PM programme at 1700, Sky News after 7, ITV evening news and Newsnight on BBC2 after 2230.

After that, I shall not be commenting on the draft Bill (unless I am asked to do so by parliamentary committees) or giving any interviews on it.¬†¬† Please don’t ask me to make an exception.¬†¬†¬†I did my best to inform the debate (with the help of my small but diverse team) but that debate is now open to all, as it should be, and I hope as many knowledgeable people as possible will participate in it.

POSTSCRIPT:

My article in The Times, 28 October 2015, on different judicial attitudes to privacy protection in the UK and Europe, the legal conflicts that could result and the lessons for the IP Bill

Guardian Article by Jonathan Freedland, 7 November 2015, on a similar theme (though by reference to popular rather than judicial attitudes)

PM interview 4 November 2015, from 14.40-30.30.

Newsnight 4 November 2015 with Glenn Greenwald (who agreed with me on democracy but not on bulk), from 23.45-30.00

Report of Commons Science and Technology Committee, 1 February 2016

Report of Intelligence and Security Committee, 9 February 2016