Investigatory Powers Bill

Written evidence submitted by Dr Lindsey Bell, Lecturer in Law, Royal Holloway, University of London (IPB 43)

Summary

This submission argues that the new ‘double lock’ provided by Judicial Commissioners, as proposed in the Investigatory Powers Bill, is unlikely either to improve human rights protection or the accountability of secret surveillance. It is recommended that Judicial Commissioners should, instead, be robust in making their decisions so as to protect human rights more effectively and also that they should be made accountable for these decisions.

Key points

- Intrusive surveillance, particularly bulk collection and bulk personal datasets, form an essential element of counter-terrorism investigations.

- There is no perfect legal or moral solution to the privacy and security dilemma; proportionate trade-offs are not only inevitable but entirely justifiable by reference to international human rights law.

- Secretaries of State are democratically accountable for surveillance authorizations.

- The purpose of the new ‘double lock’ is to increase public confidence in the necessary and proportionate use of intrusive surveillance powers.

- But public confidence comes at a price; under the proposed arrangements Judicial Commissioners would not be accountable for their decisions.

- It is not apparent that the role of Judicial Commissioner will, in practice, protect human rights more effectively than is currently the case.

- In order to protect human rights effectively Judicial Commissioners must

o be robust in making their decisions.

o accountable for those decisions.

1. It is well-understood that few human rights are absolute and many, including the rights to privacy and security which are the focus of the Investigatory Powers Bill, conflict with each other.  It is inescapably the case that, if bulk collection and bulk personal datasets (BPDs) constitute a vital part of effective counter-terrorism investigations, intrusions into the privacy of those who are not subject to any criminal investigation cannot be avoided. But finding an appropriate balance between the competing goals and values of privacy and security is difficult not least because individuals typically do not ascribe the same value to their own privacy or security, a problem which increases at the interface between state and society. Oral evidence from privacy campaigners in the ISC’s Privacy and Security report typifies the view of what may be called ‘privacy fundamentalism’, that bulk collection and BPD are completely unacceptable in any circumstances and with any form of oversight, even if their use might prevent terrorist attacks. However, international human rights law accepts that there is no perfect legal or moral solution to this dilemma and that what is needed instead is to find the ‘least bad’ solution – accepting that bulk collection and BPD are unavoidable as an essential element of CT investigations and putting in place a robust and credible authorisation and warranty regime to ensure that any intrusion is both necessary and proportionate.

2. Under the current regulatory regime, the power to authorise warrants for intrusive surveillance, including bulk collection and BPD, lies with the relevant Secretary of State. Oversight of warranty authorisations is retroactive and carried out by the Interception of Communications Commissioner and the Intelligence Services Commissioner. The two main reasons the Secretary of State has the power to authorise intrusive surveillance is because only he/she is able to see the wider political and social context of the decision and because they can be held accountable for their decisions by Parliament.

3. One of the key innovations of the Investigatory Powers Bill is the new ‘double lock’ on authorisations relating to bulk collection and BPD. Drawing on the recommendation made in David Anderson’s report, this provides that, before a warrant can be issued by a Secretary of State, it must be approved by a Judicial Commissioner, a requirement intended to mitigate an assumed lack of public trust and confidence in elected politicians. On the face of it, the double lock and increased oversight afforded by the involvement of Judicial Commissioners is a welcome development in terms not only of increasing public confidence in the use of intrusive surveillance powers, but also as an additional layer of scrutiny at the authorization stage. There is however a significant legitimacy issue with the double lock: unlike the Secretary of State, who is democratically accountable to Parliament, there is as yet no comparable mode of accountability for Judicial Commissioners. Judicial Commissioners are instead accountable only to the law. This creates a political dilemma – the double lock may provide a solution, of sorts, to the question of trust in recourse to intrusive surveillance, and to bulk collection and BPD in particular, but it offers little accountability in practice. An alternative would be to separate the roles of Secretary of State and Judicial Commissioner, making the Secretary of State responsible for assessing the political context and wider impact of the intrusion, and making the Judicial Commissioner responsible for assessing the legality of the intrusion. But this presupposes that ‘lawfulness’ and ‘political and social context’ are entirely distinguishable which is unlikely in practice except for the simplest applications.

4. Although consolidating the existing Commissioners into a single body is welcome, it is questionable whether human rights will be protected more effectively by the new double lock authorisation. The most recent reports from both the Interception of Communications Commissioner and the Intelligence Services Commissioner do not suggest that unlawful intrusions into privacy are regularly taking place. Each report concluded that the numbers of mistaken intrusions (so called ‘errors’) was very low and, none of those which occurred was unlawful. It is not yet clear how consolidating the role of Commissioners in the authorisations process will play out in practice. If Judicial Commissioners are merely rubber-stamping decisions of the Secretary of State, then no additional safeguard to the right to privacy has been provided and the double lock is, therefore, unlikely to increase public confidence in the authorisation of intrusive surveillance. On the other hand, if Judicial Commissioners are robust in making their decisions and challenge intrusions authorised by the Secretary of State which they do not view as necessary and proportionate, then they must be accountable and answer for the consequences.

Recommendations

5. Ironically, if the purpose of the double lock is to increase public trust, in its present form it will be purchased at the price of reduced accountability. To achieve the goal of both protecting human rights and ensuring that there is democratic accountability around some of the most sensitive and controversial intrusive surveillance capabilities it is essential that the decisions of Judicial Commissioners both robust and that they are accountable for those decisions. The present conception of the Judicial Commissioner role does not yet fulfil this purpose.

April 2016

 

Prepared 6th April 2016