The big reveal

As sharp-eyed commentators have noted, the launch of the draft Investigatory Powers Bill on 4 November was accompanied by a significant avowal.  This related to the use by intelligence agencies (but not the police) of a bulk collection power, applicable to communications data but not to content or internet connection records, under s94 of the Telecommunications Act 1984.  The operation of that power had never been made public.

A number of people have asked whether I was aware of this during my Investigatory Powers Review.

The answer is that I was informed promptly and in some detail about the exercise of the power at the outset of my Review.  Until this week, that knowledge was very closely held: neither I nor the Intelligence and Security Committee of Parliament (ISC), which also had it, was authorised to reveal it.

Accordingly, I¬†warned in¬†A Question of Trust that “there are matters relevant to this Review that cannot be referred to in public and that I have therefore not referred to at all” (1.27).

I also recommended that¬†“existing and future intrusive capabilities” should be “publicly avowed by the Secretary of State at the earliest opportunity consistent with the demands of national security” (Recommendation 9).

I followed that recommendation up personally with Ministers, because of the particular importance I attached to it.   As I submitted to them, if MPs are to debate the proper scope of investigatory powers, it is an essential democratic requirement that they should first be properly informed as to the scope of the powers currently used.  Ministers accepted that principle without argument or reservation.

It is not my function to evaluate whether the newly-avowed power is necessary and proportionate, and I have not performed the detailed exercise that would be necessary to come to a conclusion on those issues.   Approval should not be inferred from my Recommendation 42(b), since as 14.73 makes clear there are other, less contentious uses for bulk communications data warrants.

However:

  • IOCCO, the¬†Interception Commissioner’s Office,¬†reported in March 2015 (para 10.3) that it had been asked to review the necessity and proportionality of directions given under s94, together with the use of those directions and the safeguards on their use.¬† It requested and is receiving additional resources for the purpose and will no doubt¬†publish its conclusions¬†in due course.
  • It¬†will be for Parliament,¬†advised by¬†the committees that scrutinise¬†both the draft Bill and, after its introduction in Q1 2016, the¬†Bill itself – including the ISC which can see secret material¬†– to judge whether the power should be included in the¬†new law.
  • The courts¬†will also¬†be invited to rule on whether this power is¬†lawful,¬†in the context of the fundamental rights to privacy and the protection of personal data.¬† Indeed the necessary proceedings may already have been brought.

As I told the BBC this week:

It is a power that the agencies…have found very useful since the 7/7 attacks ten years ago and I am sure they will want to defend it.

But it is absolutely right that they should have to defend that power in the public space,¬†where people can evaluate the claims they make and evaluate the risks as well as the benefits.”