Investigatory Powers Bill

Written evidence submitted by the Equality and Human Rights Commission (IPB 34)

 

Introduction and Summary

 

The Commission is the national body with statutory duties to promote understanding and protection of human rights, including those set out in the European Convention on Human Rights (the ECHR or the Convention), and to encourage public authorities to comply with their duties under the Human Rights Act 1998. [1]

As the Government rightly acknowledges [2] a number of the rights contained in the ECHR (the Convention rights) are engaged by this Bill, including Articles 2 (right to life), 8 (respect for private and family life), 10 (freedom of expression), 14 (non­discrimination in the enjoyment of Convention rights) and Article 1 of Protocol 1 (the right to property), as well as relevant case law.

The proposals in the Bill go some way towards meeting the human rights requirements that there should be clear and detailed rules governing the scope of investigatory powers and robust legal and operational safeguards against arbitrary use and misuse of powers. There remain, however, a number of areas of concern. The most significant of these are set out below.

In this submission we make recommendations in relation to the following:

· Part 1: Overarching privacy principles.

 

· Part 8: Improvements to oversight provisions:

 

o Clause 199: Power to refer matters to the Investigatory Powers Tribunal.

 

o Clause 208: Power for the IPT to make a declaration of incompatibility.

 

· Clause 15: Thematic warrants.

 

· Parts 6 and 7: Bulk powers (interception, equipment interference, acquisition of communications data and bulk personal datasets).

· Part 3: Communications data.

· Clause 54(4)(d): Internet Connection Records (ICRs).

· Protecting the sensitive information of particular professions.

· Safeguards for sharing information abroad.

· Retention periods and destruction of data.

· Clause 216: National Security Notices.

1. Part 1: Overarching privacy principles

 

The Intelligence and Security Committee (ISC) recommended the Bill should include a single additional Part that addresses privacy safeguards and clearly sets out universal protections which apply across the full range of investigatory powers. [3] The Commission [4] , Royal United Services Institute, [5] and David Anderson, the Independent Reviewer of Terrorism Legislation [6] have all called for updated covert surveillance laws to be rooted in overarching principles incorporating vital privacy safeguards.

 

The Commission considers that the Bill’s provisions must be compatible with the following principles:

 

· The powers set out in the Bill are intrusive of privacy and therefore the scope and limits to those powers should be construed narrowly.

· The Bill must permit only necessary and proportionate covert capabilities, exercised by authorised individuals and bodies, in compliance with the Human Rights Act 1998 and the rights set out in that Act.

· Intrusion into the privacy of persons who are not suspected of wrongdoing is unlawful unless absolutely necessary and proportionate to the intended legitimate purpose.

· A power under this Bill may only be exercised where it is the most limited and least privacy intrusive power available to achieve a specified lawful purpose including in relation to:

i. the type of power used

ii. the number of people to whom it applies

iii. the duration of the authorisation

iv. the way in which the power is exercised.

· Information obtained by the exercise of these powers must :

ii. only be retained for the minimum period necessary for the purpose for which it was acquired.

iii. not be shared unless that can be done without breaching Convention rights.

· The exercise of the powers in this Bill, where they are intrusive of privacy, must be independently authorised in accordance with clear, necessary and proportionate laws, providing sufficient safeguards for Convention rights.

· Rigorous oversight arrangements must be exercised to deter, prevent and address misuse of powers in breach of Convention rights.

· The exercise of intrusive powers under this Bill must be kept under continuous democratic, judicial and other forms of independent review, to uphold privacy safeguards and to ensure the security, intelligence, law enforcement and other State agencies are supervised and, when required, held to account when using the powers in this Bill.

These principles are derived from human rights law, including rights to privacy and freedom of expression. These rights are not absolute but require that any interference with them must be in accordance with clear and transparent laws, necessary and proportionate. Throughout passage of the Bill, the Commission will support amendments which would mean the Bill’s provisions better reflect these principles.

 

2. Part 8: Improvements to oversight provisions

 

(a) Clause 199: Power to refer matters to the Investigatory Powers Tribunal

 

Commission's recommendation

 

Insert after Clause 199(2):

 

"A Judicial Commissioner may refer any matter the Commissioner considers may involve the unlawful use of investigatory powers to the Investigatory Powers Tribunal."

 

Our analysis

 

The Commission believes that giving the Judicial Commissioners power to ensure that issues of concern are brought to the Investigatory Powers Tribunal (IPT) without having to rely on a complaint being brought would increase accountability and transparency in the oversight arrangements. The Judicial Commissioners are much better placed to identify issues of systemic concern and issues of law requiring resolution by the IPT than the subjects of surveillance, who will often be unaware of the measures being taken.

 

The proposed amendment therefore provides an additional safeguard against unlawful exercise of the powers in the Bill. It also promotes compliance with human rights law, in particular that the exercise of powers should be clear and in accordance with law.

 

(b) Clause 208: Power for the IPT to make a declaration of incompatibility

 

Commission's recommendation

 

Insert a new Clause before Clause 208:

 

Power to make declaration of incompatibility

 

After section 4(5)(f) of the Human Rights Act 1998 insert

 

"(g) The Investigatory Powers Tribunal."

 

Our analysis

 

The Draft Bill Committee recommended that the IPT should be able to make a declaration of incompatibility under the Human Rights Act [7] . The Commission endorses this recommendation. The Government’s response is that this provision is unnecessary because the Court of Appeal has this power on appeal [8] . The Commission considers that making it necessary for an appeal to be brought in a clear cut case solely for the purpose of securing a declaration of incompatibility is cumbersome and unnecessarily costly and time-consuming.

 

The Commission notes that IPT members include current and former High Court Judges [9] and that the President and Vice President are required to be of that or equivalent seniority. [10] If appropriate, further amendment to the Commission's proposal could limit this power to "any matter being dealt with by the President or Vice President of the Investigatory Powers Tribunal or by a puisne judge of the High Court." [11]

 

If the IPT is not given this power, the Commission considers that the Bill should be amended to expressly provide that the right of appeal to the Court of Appeal (in Clause 208) includes the right to appeal in order to obtain a declaration of incompatibility.

 

3. Clause 15: Thematic warrants

 

Under the Bill, thematic targeted interception warrants can be sought in relation to a group of people, organisations and premises. The draft Code of Practice makes it clear that "there is not a limit to the number of locations, persons or organisations that can be provided for by a thematic warrant" and that "the warrant does not have to identify the subjects of the warrant any more than is possible at the time of issue of the warrant" [12] . This suggests that thematic warrants may be issued with quite generalised descriptions of their scope, making them more like bulk powers than targeted powers.

Both the ISC and the Draft Bill Committee raised concerns about these provisions [13] . The Draft Bill Committee recommended amending Clause 15 so that thematic warrants concerning a very large number of people cannot be issued. The ISC recommended that thematic warrants should be used sparingly and subject to greater safeguards and as a minimum should be issued for a maximum period of one month to ensure greater scrutiny.

The Commission supports these recommendations and would wish to see amendments made to give effect to them. The issue of warrants against generalised thematic targets may breach Article 8 ECHR in two ways. First, on the grounds that they are not sufficiently clear to be "in accordance with law" as required by Article 8(2). Second, because they may be more invasive of privacy than necessary and therefore not proportionate, particularly if they result in significant collateral intrusion into the privacy of individuals against whom there are no grounds of suspicion.

4. Parts 6 and 7: Bulk powers (interception, equipment interference, acquisition of communications data and bulk personal datasets).

The use of bulk powers inevitably means the private information of many innocent people is obtained and potentially examined, resulting in considerable intrusion into qualified privacy rights. Such mass surveillance powers are different from targeted powers, requiring a much higher standard of justification. There are a number of legal cases, some pending, concerning whether such powers are compatible with the relevant requirements of the ECHR and EU law [14] .

Subject to the further views of the ISC, which has been provided with further classified information on the necessity of these powers, [15] the Commission’s view is that a sufficiently compelling case has not yet been made out for the present Bill proposals for bulk surveillance powers, both their extent and the safeguards applicable to their exercise. As such, as presently drafted, we consider they are likely to constitute an unjustifiable interference by the State with the individual’s right under Article 8 of the Convention to respect for private life.

If these powers are retained in the Bill, the Commission would wish to see amendments making those powers subject to additional safeguards, as the two parliamentary committees have already recommended. This might be achieved by having a requirement on the face of the Bill to use targeted powers whenever practicable, and a requirement to seek specific, rather than class, bulk personal datasets in the first instance.

5. Part 3: Communications Data

The Commission recommends there should be a separate system of independent administrative authorisation for access to communications data, with the ability to refer complex issues to the Judicial Commissioners.

In the absence of an immediately identifiable existing body that could undertake this task, the Commission appreciates that this recommendation has additional resource and practical implications. There are, however, existing provisions in the Bill concerning collaboration agreements [16] under which the Secretary of State can require one body to seek authorisation to access communications from another body. Consideration should be given to whether those provisions could be used or adapted to create an independent authorisation framework in the short term while further work is carried out to create a longer-term solution.

6. Clause 54(4)(d): Internet Connection Records (ICRs)

The purposes for which ICRs can be obtained has been broadened in the Bill to include "which internet service is being used, and when and how it is being used" [17] . The Commission considers this drafting is too broad and would recommend amendment to restrict this power to serious cases, in order to ensure it is not used routinely to access an individual’s internet browsing history.

In addition, the ISC recommended that the Bill be amended to make clear that the intelligence agencies have a range of other capabilities which enable them to obtain equivalent information. [18] The Commission calls for more information to be provided to Parliament about this so that the full extent of these powers can be considered.

7. Protecting the sensitive information of particular professions

The ISC has recommended that there should be consistent protection for the sensitive professions, such as lawyers and journalists, in relation to all investigatory powers on the face of the Bill [19] . The Commission endorses this recommendation, which would enhance the right to a fair trial and the right to freedom of expression, and would support appropriate amendments to the Bill.

For example, additional safeguards are required on the face of the Bill for acquiring lawyers' communications through the communications data investigatory power, which could identify a client or a witness or an expert instructed in litigation.

8. Safeguards for sharing information abroad

Concerns have been raised by both the Draft Bill Committee and the ISC that the provisions in the Bill governing the sharing with overseas agencies of information obtained using investigatory powers are too broad and need further definition and improved safeguards.

The Commission agrees that further safeguards are needed. Compliance with Convention rights requires safeguards concerning the retention, use and disclosure of information. In order to ensure real and effective protection of Convention rights, this protection must extend to decisions about disclosure of information abroad.

The Commission recommends an amendment to clarify the use of the power to share information with overseas agencies and the applicable safeguards. As a minimum the Commission recommends deletion of "to such extent (if any) as the issuing authority considers appropriate" from the relevant clauses (the provision occurs a number of times in the Bill, but see for example Clause 47(2)).

9. Retention periods and destruction of data

Under the Bill, information gained through interception powers only has to be destroyed when, for example, there are "no longer any relevant grounds for retaining it" (Clause 46(5)), meaning "retention is not necessary or not likely to become necessary" (Clause 46(6)). [20]

This means such information can be retained even where there is no current utility, if it is considered it may be of future utility. This is very broad, too vague and unlikely to be compliant with human rights law under Article 8 ECHR and under EU law.

The Commission recommends amending the Bill to provide additional safeguards which ensure data retention periods are proportionate in relation to all powers. We also recommend an amendment requiring that data must be destroyed when retention is no longer necessary and proportionate.

10. Clause 216: National Security Notices

Under Clause 216, the Secretary of State may give any UK telecommunications operator a notice ("a national security notice") requiring them to take such steps as the Secretary of State considers necessary in the interests of national security, provided that the Secretary of State considers that the specified conduct is proportionate to what is sought to be achieved. The notice cannot include steps for purposes which require a warrant or authorisation.

In order to be compliant with human rights standards, the rules which authorise interference with a person’s privacy must be clear and detailed. In order to provide sufficient additional safeguards over the exercise of this power, and promote public confidence in its use, we consider this power should be subject to judicial approval and automatic flagging to the IPC for review of how and why the power is being used.

The Commission would also welcome amendments restricting the type of steps which might be covered by this power and/or providing additional safeguards against its abuse.

About the Equality and Human Rights Commission

 

The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and promote and protect human rights. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited by the UN as an 'A status' National Human Rights Institution.

Find out more about the Commission’s work at: www.equalityhumanrights.com

March 2016


[1] Section 9 Equality Act 2006

[2] Home Office memorandum on the Investigatory Powers Bill and the European Convention on Human Rights.

[3] ISC report on the draft Investigatory Powers Bill, recommendation A at page3.

[4] EHRC response to call for evidence on the draft Communications Data Bill, August 2012 paragraph 23.

[5] A Democratic Licence to Operate. Report of the Independent Surveillance Review by Royal United Services Institute at page xiii.

[6] A Question of Trust. Report of the investigatory powers review. June 2015. Section 13: Principles at page 245.

[7] Report of Joint Committee on the Draft Investigatory Powers Bill, recommendation 75

[8] Government response to pre legislative scrutiny at page 73

[9] For a list of current members see http://www.ipt-uk.com/section.aspx?pageid=12

[10] Schedule 3 Regulation of Investigatory Powers Act 2000 and section 60(2) Constitutional Reform Act 2005.

[11] Adapting the approach used when the HRA was amended to allow declarations of incompatibility by the Court of Protection- see section 4(5)(f) HRA 1998.

[12] Draft Interception of Communications Code of Practice paragraph 5.12

[13] Report of Joint Committee on the Draft Investigatory Powers Bill, recommendation 38 and ISC report recommendation vii at page 11.

[13]

[14] In Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others [2014] 3 C.M.L.R. 44, in the context of bulk retention and acquisition of communications data, the European Court of Justice held that EU Data Retention Directive 2006/24, which required communications service providers to retain communications data in order to combat crime, was not compatible with the Charter of Fundamental Rights of the European Union articles 7 and 8. The cases of Big Brother Watch and Others v United Kingdom (application number: 58170/13 and 10 Human Rights Organisations v the UK (App No. 24960/15) are currently before the European court of Human rights and concern the lawfulness of bulk interception. In R (Davis) v Secretary of State for the Home Department 2015 EWHC 2092 (Admin), the Court of Appeal has referred questions to the CJEU seeking clarification on its approach in the Digital Rights Ireland case, regarding bulk communications data retention compatibility with the EU Charter of Fundamental Rights.

[15] Government response to pre-legislative scrutiny page 31.

[16] Clauses 69 and 70.

[17] Clause 54(4)(d).

[18] ISC report, recommendation I at page 9.

[19] ISC report recommendation B at page 3.

[20] Similar provision is made for information obtained through equipment interference - see Clause 112.

 

Prepared 24th March 2016