Monthly Archives: December 2015

Some things old, some things new: A clause-by-clause review of the Draft Investigatory Powers Bill

ipbillSoon after the publication of the Draft Investigatory Powers Bill in November, a number of privacy, surveillance and freedom of expression specialist academics and practitioners gathered at the Institute of Advanced Legal Studies to discuss the detail and the main issues.

Fairly quickly it was agreed that a clause-by-clause review of legislative sources would be a useful resource, to inform and complement wider commentary and committee submissions. Under Professor Lorna Woods’ stewardship, we carved up the Bill and compiling/reviewing/administrative roles between us.

Given the length of the main Bill document (299 pages) plus all the accompanying material and relevant legislation and reviews to consider, it was an ambitious task. But we have managed to (just) meet our pre-Christmas deadline and today have published a set of working documents that identify the provenance of as many as the clauses in the draft Investigatory Powers Bill as possible.

We have taken the view that the clauses can be ascribed to one of three groups:

  • The same as a pre-existing provision (or functionally equivalent);
  • Completely new; or
  • Amended/extended.

Where there are pre-existing sources, we have highlighted the relevant provision [see list]; for those that are completely new there are no such sources, but we have included references to the three reviews published in 2015: the Anderson Investigatory Powers Review; the ISC Privacy and Security report and the RUSI Independent Surveillance Review. As regards this latter aspect, only a brief sketch has been included; it is safe to say that there is more detail from the reports that could be pulled through were a more detailed analysis to be undertaken. The aim of this project was not however, to provide such an analysis but rather to provide a tool to assist others seeking to undertake such projects.

Although our primary objective related to the identification or relevant sources we have as part of the project flagged up the significance of the changes, as well as issues where we were not sure of the consequences of the drafting/changes identified. This we hope will give food for thought for others engaged in this area. While one of the stated aims of this legislative endeavour is to clarify the terms on which surveillance may take place, the resulting draft is still long and complex, with parts of the old, fragmented system for surveillance still remaining in place.

Follow the links below for a Part-by-Part review of drafting provenance. The chapters of some Parts have been split into different Google documents, which you can view and download. These working documents may be subject to change, following further assessment. Comments/suggestions to: ipbillresearchgroup@gmail.com. 

THEMES

Introduction of oversight
One of the important novelties of the draft IPB is the introduction of oversight mechanisms (via the Judicial Commissioner process: the ‘double lock’ mechanism, and the consolidation of various external review bodies into a new body, the IPC). While this is significant in terms accountability and control, there will be questions as to what the standards of judicial review actual are and whether ex post facto review is sufficient – questions that become increasingly important in the light of Grand Chamber judgments from both European courts regarding mass surveillance and technical bypassing of oversight procedures (eg. Schrems, Digital Rights Ireland, Zakharov). There are also questions about the independence of the IPC and the scope of his/her review functions, and regarding the operation of the new error reporting provisions.

Standardisation of warrant process
Looking at the warrant process, similar ideas can be seen reoccurring in respect of successive types of warrant – so length of warrants, process for renewal and cancellation. This is probably advantageous from the perspective of transparency and accessibility. Nonetheless, while the oversight was built on a common structure, there were small differences in the precise elaboration of that structure across the various parts of the draft IPB, for example the approach to material obtained under a cancelled warrant. In sum there is not just one, uniform system despite the strong similarity between the various parts of the bill. Further, the impact of the new structures in terms of comparison with what has gone before would vary depending on what went on before. So while it is no doubt a good thing that the bulk interception warrants are limited to 6 months, this means that some of the pre-existing warrants will be extended from the current 3 months.

Normalisation of techniques
This ‘standardisation’ process also means that things that seem to have been limited under RIPA to interception warrants have been applied across the whole range of warrants under IPB – a sort of normalisation of those techniques (e.g capability maintenance and national security notices). This takes place against a background in which there are new forms of warrant (or perhaps existing forms of warrant are recognised and put on a specific statutory footing).

Impact of definitions
The definitions are very important as they determine scope of application for particular provisions. The definitions have been changed, perhaps in response to technological and market developments. There are some questions as to the precise scope of some of these concepts (instances of difficult areas were given in the evidence to the Science and Technology Committee, for example). Because of their systemic effect, however, changes to definitions have far-reaching consequences for the meaning and consequently scope of various powers and indeed, some provisions which appear not to have changed in terms of the wording used, will have changed because of changes to the definitions of those words. Careful reading is required to understand the significance of this.

Not a totally consolidated system
The introduction to the bill emphasised that the aim of the bill is to consolidate the regime, so that provisions enabling surveillance are not scattered across a range of instruments, some of which were arguably not designed for that purpose, empowering a wide range of authorities to intrude. Certainly, the bill goes some way in this direction, enclosing some behaviours within a detailed oversight regime and foreclosing the use of some general powers. Nonetheless, key general powers remain – such as those in the Police Act and the Intelligence Services Act – although some attempt has been made to curtail their use in circumstances falling with the scope of this Bill.

 CONTRIBUTORS

This project was put together with the support of the Information Law and Policy Centre at the Institute of Advanced Legal Studies (IALS). The team, led by Professor Lorna Woods, was: Andrew Cormack, Ray Corrigan, Julian Huppert, Nora Ní Loideain, Eleanor Mitchell, Marion Oswald, Javier Ruiz Diaz, Jessica Simor, Graham Smith, Judith Townend, Caroline Wilson Palow, and Ian Walden. A wider group of  specialist academics and practitioners have been involved in discussions over email and at two meetings held at the IALS in autumn 2015.

Further resources

Arts and Humanities Research Council (LAHP) studentships at the School of Advanced Study

A number of AHRC-funded studentships are available for postgraduate research students in Law at the Institute of Advanced Legal Studies, School of Advanced Study, University of London. Please see the IALS website, and consult with the SAS Registry (SAS.Registry@sas.ac.uk) about the opportunities for research study before making your application, either for a place to study or for a studentship.

Before applying for an studentship, applicants wishing to study in the School of Advanced Study should make an application for a place to study here; and we recommend that students wishing to apply for a LAHP studentship should apply for their place before 15 January 2016. The LAHP studentship application deadline is then midnight (GMT) on 29 January 2016.

For full details of how to apply for a LAHP studentship, including eligibility requirements, see http://www.lahp.ac.uk/apply-for-a-studentship/. The LAHP application form will be available via the online portal on 1 December 2015. Further information is available on the AHRC website, or from info@lahp.ac.uk.

The School is part of the London Arts and Humanities Partnership (LAHP), which has up to 80 multi-institutional studentships per year available for postgraduate research students studying arts and humanities disciplines across King’s College London, School of Advanced Study or University College London. Awards commence October 2016 and cover tuition fees and an annual maintenance grant (stipend), for three years.


Information about research opportunities at the Information Law and Policy Centre can be found here.

Lorna Woods: ECtHR case report and comment – Roman Zakharov v Russia (Grand Chamber)

In this post Lorna Woods, professor of internet law, University of Essex and senior associate research fellow at the Institute of Advanced Legal Studies, considers the ECtHR’s judgment  in Roman Zakharov v. Russia (47143/06) [GC] handed down on 4 December 2015.

Introduction

The European Court has heard numerous challenges to surveillance regimes, both individual and mass surveillance, with mixed results over the years.   Following the Snowden revelations, the question would be whether the ECtHR would take a hard line particularly as regards mass surveillance, given its suggestion in Kennedy that indiscriminate acquisition of vast amounts of data should not be permissible. Other human rights bodies have condemned this sort of practice, as can be seen by the UN Resolution 68/167 the Right to Privacy in the Digital Age. Even within the EU there has been concern as can be seen in cases such as Digital Rights Ireland and more recently in Schrems.

Facts

Zakharov, a publisher and a chairman of an NGO campaigning for media freedom and journalists’ rights, sought to challenge the Russian system for permitting surveillance in the interests of crime prevention and national security. Z claimed that the privacy of his communications across mobile networks was infringed as the Russian State, by virtue of Order No. 70, had required the network operators to install equipment which permitted the Federal Security Service to intercept all telephone communications without prior judicial authorisation.

This facilitated blanket interception of mobile communications. Attempts to challenge this and to ensure that access to communications was restricted to authorised personnel were unsuccessful at national level. The matter was brought before the European Court of Human Rights. He argued that the laws relating to monitoring infringe his right to private life under Article 8; that parts of these laws are not accessible; and that there are no effective remedies (thus also infringing Art. 13 ECHR).

Judgment

The first question was whether the case was admissible. The Court will usually not rule on questions in abstracto, but rather on the application of rules to a particular situation. This makes challenges to the existence of a system, rather than its use, problematic. The Court has long recognised that secret surveillance can give rise to particular features that may justify a different approach. Problematically, there were two lines of case law, one of which required the applicant to show a ‘reasonable likelihood’ that the security services had intercepted the applicant’s communications (Esbester) and which favoured the Government’s position, and the other which suggested the menace provided by a secret surveillance system was sufficient (Klass) and which favoured the applicant.

The Court took the opportunity to try to resolve these potentially conflicting decisions, developing its reasoning in Kennedy. It accepted the principle that legislation can be challenged subject to two conditions: the applicant potentially falls within the scope of the system; and the level of remedies available. This gives the Court a form of decision matrix in which a range of factual circumstances can be assessed. Where there are no effective remedies, the menace argument set out in its ruling in Klass would be accepted.

Crucially, even where there are remedies, an applicant can still challenge the legislation if ‘due to his personal situation, he is potentially at risk of being subjected to such measures’ [para 171]. This requirement of ‘potentially at risk’ seems lower than the ‘reasonable likelihood’ test in the earlier case of Esbester. The conditions were satisfied in this case as it has been recognised that mobile communications fall within ‘private life’ and ‘correspondence’ (see Liberty, para 56, cited here para 173).

This brought the Court to consider whether the intrusion could be justified. Re-iterating the well-established principles that, to be justified, any interference must be in accordance with the law, pursue a legitimate aim listed in Article 8(2) and be necessary in a democratic society, the Court considered each in turn.

The requirement of lawfulness has a double aspect, formal and qualitative. The challenged measure must be based in domestic law, but it must also be accessible to the person concerned and be foreseeable as to its effects (see e.g Rotaru). While these principles are generally applicable to all cases under Article 8 (and applied analogously in other rights, such as Articles 9, 10 and 11 ECHR), the Court noted the specificity of the situation. It stated that:

‘…. domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures’ [para 229].

In this, the Court referred to a long body of jurisprudence relating to surveillance, which recognises the specific nature of the threats that surveillance is used to address. In the earlier case of Kennedy for example, the Court noted that ‘threats to national security may vary in character and may be unanticipated or difficult to define in advance’ [para 159].

While the precision required of national law might be lower than the normal standard, the risk of abuse and arbitrariness are clear, so the exercise of any discretion must be laid down by law both as to its scope and the manner of its exercise. It stated that ‘it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power’ [para 247]. Here, the Court noted that prior judicial authorisation was an important safeguard [para 249]. The Court gave examples of minimum safeguards:

  • The nature of offences which may give rise to an interception order
  • A definition of the categories of people liable to have their telephones tapped
  • A limit on the duration of telephone tapping
  • Protections and procedures for use, storage and examination of resulting data
  • Safeguards relating to the communication of data to third parties
  • Circumstances in which data/recordings must be erased/destroyed (para 231)
  • the equipment installed by the secret services keeps no logs or records of intercepted communication, which coupled with the direct access rendered any supervisory arrangements incapable of detecting unlawful interceptions
  • the emergency procedure provided for in Russian law, which enables interception without judicial authorization, does not provide sufficient safeguards against abuse.

The Court then considered the principles for assessing whether the intrusion was ‘necessary in a democratic society’, highlighting the tension between the needs to protect society and the consequences of that society of the measures taken to protect it. The Court emphasised that it must be satisfied that there are adequate and effective guarantees against abuse.

In this oversight mechanisms are central, especially where individuals will not – given the secret and therefore unknowable nature of surveillance – be in a position to protect their own rights. The court’s preference is to entrust supervisory control to a judge. For an individual to be able to challenge surveillance retrospectively, affected individuals need either to be informed about surveillance or for individuals to be able to bring challenges on the basis of a suspicion that surveillance has taken place.

Russian legislation lacks clarity concerning the categories of people liable to have their phones tapped, specifically through the blurring of witnesses with suspects and the fact that the security services have a very wide discretion. The provisions regarding discontinuation of surveillance are omitted in the case of the security services. The provisions regarding the storage and destruction of data allow for the retention of data which is clearly irrelevant; and as regards those charged with a criminal offence is unclear as to what happens to the material after the trial.

Notably, the domestic courts do not verify whether there is a reasonable suspicion against the person in respect of whose communications the security services have requested interception be permitted. Further, there is little assessment of whether the interception is necessary or justified: in practice it seems that the courts accept a mere reference to national security issues as being sufficient.

The details of the authorisation are also not specified, so authorisations have been granted without specifying – for example – the numbers to be interception. The Russian system, which at a technical level allows direct access, without the police and security services having to show an authorisation is particularly prone to abuse. The Court determined that the supervisory bodies were not sufficiently independent. Any effectiveness of the remedies available to challenge interception of communications is undermined by the fact that they are available only to persons who are able to submit proof of interception, knowledge and evidence of which is hard if not impossible to come by.

Comments

The Court could be seen as emphasising in its judgment by repeated reference to its earlier extensive case law on surveillance that there is nothing new here. Conversely, it could be argued that Zakharov is a Grand Chamber judgment which operates to reaffirm and highlight points made in previous judgments about the dangers of surveillance and the risk of abuse. The timing is also significant, particularly from a UK perspective. Zakharov was handed down as the draft Investigatory Powers Bill was published. Cases against the UK are pending at Strasbourg, while it follows the ECJ’s ruling in Schrems, with Davis (along with the Swedish Tele2 reference) now pending before it. The ECtHR noted the Digital Rights Ireland case in its summary of applicable law.

In setting out its framework for decisions, the Court’s requirement of ‘potentially at risk’ even when remedies are available seems lower than the ‘reasonable likelihood’ test in Esbester. The Court’s concern relates to ‘the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court’ [para 171]. This broad approach to standing is, as noted by Judge Dedon’s separate but concurring opinion, in marked contrast to the approach of the United States Supreme Court in Clapper where that court ‘failed to take a step forward’ (Opinion, section 4).

The reassessment of ‘victim status’ simultaneously determines standing, the question of the applicability of Article 8 and the question of whether there has been an infringement of that right. The abstract nature of the review then means that a lot falls on the determination of ‘in accordance with the law’ and consequently the question of whether the measures (rather than individual applications) are necessary in a democratic society. The leads to a close review of the system itself and the safeguards built in. Indeed, it is noteworthy that the Court did not just look at the provisions of Russian law, but also considered how they were applied in practice.

The Court seemed particularly sceptical about broadly determined definitions in the context of ‘national, military, economic or ecological security’ which confer ‘almost unlimited degree of discretion’ [para 248]. Although the system required prior judicial authorisation (noted para 259], in this case it was not sufficient counter to the breadth of the powers. So, prior judicial authorisation will not be a ‘get out of gaol free’ card for surveillance systems. There must be real oversight by the relevant authorities.

Further, the Court emphasised the need for the identification of triggering factor(s) for interception of communications, as otherwise this will lead to overbroad discretion [para 248]. Moreover, the Court stated that the national authorisation authorities must be capable of ‘verifying the existence of a reasonable suspicion against the person concerned’ [260-2], which in the context of technological access to mass communications might be difficult to satisfy. The Court also required that specific individuals or premises be identified. If it applies the same principles to mass surveillance currently operated in other European states, many systems might be hard to justify.

A further point to note relates to the technical means by which the interception was carried out. The Court was particularly critical of a system which allows the security services and the police the means to have direct access to all communications. It noted that ‘their ability to intercept the communications of a particular individual or individuals is not conditional on providing an interception authorisation to the communications service provider’ [para 268], thereby undermining any protections provided by the prior authorisation system.

Crucially, the police and security services could circumvent the requirement to demonstrate the legality of the interception [para 269]. The problem is exacerbated by the fact that the equipment used does not create a log of the interceptions which again undermines the supervisory authorities’ effectiveness [para 272]. This sort of reasoning could be applied in other circumstances where police and security forces have direct technical means to access content which is not dependent on access via a service provider (e.g. hacking computers and mobiles).

In sum, not only has the Russian system been found wanting in terms of compliance with Article 8, but the Court has drawn its judgment in terms which raised questions about the validity of other systems of mass surveillance.

  • Professor Lorna Woods is Deputy Director of Research (Impact) at the School of Law, University of Essex and senior associate research fellow at the Institute of Advanced Legal Studies
  • Our blog posts give the view of the author and do not represent the position of the Information Law and Policy Centre or the Institute of Advanced Legal Studies.

Monica Ezsias: Copyright in Anne Frank’s Diary – A Question of Term

The famous Diary of Anne Frank has recently been in the news in relation to a controversy surrounding the duration of its copyright protection. In this guest post, Monica Ezsias from Maastricht University argues that the Diary should be allowed to fall out of copyright as of 1 January 2016. An earlier version of the post was first published on the Intellectual Property and Knowledge Management Blog of Maastricht University.

The Anne Frank Fonds was established by Anne Frank’s father, Otto Frank, as a charitable foundation dedicated to spreading Anne’s words, as well as to providing medical care. It is this organisation that possesses the rights in The Diary of Anne Frank, as well as other works such as Anne’s letters and photographs.[1] The diary is currently protected by copyright in the EU, but this protection is due to cease as of 2016: generally in Europe, copyright in a work runs for 70 years after the death of the author.[2] That period is calculated as of 1 January of the year following the one in which the author died – in this case, 1945.

There are indications that the Foundation wants to maintain its control of the Diary. They claim that their aim is to make sure that “Anne Frank stays Anne”[4], by preserving the integrity of her words. If they are not allowed to do so, the Foundation claims, there will be a surge of adaptations and publications and arguably, in a few decades, the essence of her Diary will eventually be lost. The Foundation’s website indicates that they consider her work to be further protected. According to this:

“It should not be assumed that the copyrights to Anne Frank’s Diary are due to expire in the near future, or that anyone will be free to use and publish the diary without permission”.[5]

Certainly in the US the term of protection will continue past 2016. US copyright rules relevant to the Diary depend the term on the date of first publication, so that the Diary’s copyright will not expire till the end of 2047, 95 years after the book was first published in 1952.[6] In Europe on the other hand, the term of protection depends on the date of first publication only in cases of anonymous or pseudonymous works: according to Article 1(3) of the Term Directive [7], where the author is not identified by name or uses a pseudonym, the term of protection shall run for 70 years after date at which the work was first made available to the public. That is not the case here.

Nevertheless, the Foundation has signalled that it is seeking to extend the Diary’s copyright protection in Europe by declaring that Otto Frank was, not only the editor, but also a co-author of the published Diary. While currently there seems to be no specific statement to that effect on the Foundation’s website, the claim has been reported by a variety of outlets in recent weeks, perhaps in worry of the approaching deadline of 2016. The move would be vaguely reminiscent of similar copyright extensions effected in the past. In the US, for instance, the Copyright Term Extension Act 1998 itself was brought into force to harmonise the US copyright term with that of Europe. The act is now also referred to as the “Mickey Mouse Protection Act”[8], as it prolonged the term of the valuable copyrights held by the Disney corporation, which petitioned in favour of the new law.[9]

Some cynicism likewise surrounds the notion that Otto Frank co-authored the Diary. The Foundation maintains that the diary underwent such significant editorial changes by Anne’s father, that he should be considered a co-author. If this suggestion is accepted, the copyright would be automatically extended up till the end of 2051, 70 years from the 1 January after the death of Otto, in 1980.[10]

The following should be borne in mind in relation to the extension of copyright…

Does Otto’s remodelling of the original diary qualify for copyright protection?

It is an accepted fact that Otto’s role was in editing and publishing the book. The Foundation has recently stated that Otto “created a new work” by merging, trimming and reshaping entries into a “collage”, contributions which thereby deserve their own copyright protection.[11] While “own intellectual creation” can be considered quite a high standard, it could be that Otto has provided an original expression.[12] But can we go as far as saying he embedded his “own personal touch” into the diary?[13]

Co-authorship should have been acknowledged sooner

If Otto amended his daughter’s diary to such a degree that he can be considered to be a co-author, this raises questions as to the authenticity of the Diary as a whole. How much of what we read was actually written by Anne? The claim of co-authorship, placing as it does in the back of readers’ mind the idea that Anne’s father changed paragraphs, cut things out, perhaps also added his own flare to the text, takes away from the experience of reading the book as one of absorbing the feelings of a young teenager in hiding. The situation may have been different if the book had been published from the beginning as a vastly edited version of the original diary as written by Anne. If such drastic changes however were made to Anne’s diary as to qualify Otto as a co-author, surely the public have, until now, been misled? It is one thing for Otto to have refrained from sharing every one of his daughter’s thoughts (something which the public can probably appreciate), but it is another to rewrite any part of it or take pieces from here and there and merge them together. Further, the timing of these arguments for co-authorship does make them appear as an attempt to limit the revenue from copyright strictly to the Foundation. If Otto really was a co-author, the public may have been able to accept this if it were the case from the beginning, but to vocalise such claims only when the expiry of copyright is nigh is nothing less than suspicious.

The Foundation should not be able to argue that they are seeking to preserve the Franks’ integrity by extending the Diary’s copyright protection

The Diary should now be considered as belonging to the world. The arguments on its authorship take away from and overshadow the importance of sharing the realities of life in hiding during the WWII. Furthermore, claiming that Anne merely co-authored her own diary arguably offends her memory.[14] Would Otto Frank have wanted to go down this route..? If the Anne Frank Huis Museum – a different body from the Foundation – would want to publish their own findings, interpretations and analysis of the Diary on their website for all to read, should not they be able to do so?

History has not been rewritten just because accounts of events are no longer copyrighted

Historical facts are not dependant on copyright protection. The world is not going to forget about Anne Frank or lose sight of what she went through in hiding simply because her work is due to fall out of copyright. The Diary has enjoyed its term under copyright protection and should be allowed to enter the public domain as of next year.

On the other hand, there are people that deny the Holocaust; it is arguably perhaps in the interest of future generations that The Diary of Anne Frank be further protected, so they do not end up believing Anne was a fictional character, a mere representation of how people in general suffer during wartime. Seen from this perspective, it is possible to appreciate the view according to which, by prolonging copyright protection, the essence of the Diary might have a better chance of surviving, unaltered by the interference of others.

[1] Anne Frank Fonds

[2] Article 1(1) Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights

[4] D Carvajal, “Anne Frank’s Diary Gains ‘Co-Author’ in Copyright Move”, The New York Times (13 Nov 2015)

[5] Anne Frank Fonds, “Q&A about the copyrights to Anne Frank’s Diary”

[6] The New York Times (n 4)

[7] Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the Term of Protection of Copyright and certain Related Rights

[8] See, for example, R Deazley and ors, “Privilege and property. Essays on the history of copyright” (2010) Legal Information Management, 257

[9] J Philips, “Copyright term, authorship and moral rights: the intriguing tale of Anne Frank’s Diary”, IPKat (18 Nov 2015)

[10] Article 7bis, Berne Convention for the Protection of Literary and Artistic Works

[11] The New York Times (n 4)

[12] Infopaq Int v Danske Dagblades Forening, Case C-5/09 [2009]

[13] Eva-Maria Painer v Standard VerlagsGmbH and ors, Case C-5/08 [2009]

[14] J Block and ors, “Matter of rights: Was Otto Frank really Anne Frank’s co-author?”, Pittsburgh Post-Gazette (18 Nov 2015)

Monica Ezsias is an LLM student in Intellectual Property Law and Knowledge Management at Maastricht University. She graduated with a First Class LLB from a UK university in 2015.

  • Our blog posts give the view of the author and do not represent the position of the Information Law and Policy Centre or the Institute of Advanced Legal Studies.

Steve Goodrich: FOI is under attack when it should be strengthened

stevegoodrichIn this guest post, Transparency International UK’s Steve Goodrich considers UK citizens’ right to access information, arguing that public money should be put towards examining how the Freedom of Information regime can be improved, not weakened

The right to access information held by the state, public officers and providers of state services is an essential part of a functioning democracy. It provides citizen-led checks and balances on concentrations of power, without which corruption would be allowed to thrive; allows citizens to make informed judgements about the efficacy of governments and elected representatives; and helps hold institutions and officials to account for their actions. It is, therefore, perplexing why the UK Government – with its welcome and newfound interest in tackling corruption – appears intent on watering down the Freedom of Information Act.

In July this year, Lord Hodges announced that the UK Government was establishing an ‘independent Commission’ to review whether the Act provided ‘safe space’ for Ministers and civil servants to develop and discuss policy. This might sound very well and reasonable – why shouldn’t a law be reviewed after it’s been in operation for a decade – however, the announcement missed out some important pieces of detail.

Firstly, there has already been post-legislative scrutiny of the Act. The Justice Select Committee did a thorough job back in 2012, which involved taking 140 pieces of written evidence and oral evidence from 37 witnesses during 7 evidence sessions. After talking to a range of individuals and organisations, the Committee concluded that there are sufficient protections for deliberation within public bodies. The Information Commissioner and Information Tribunal are both mindful of the need to ensure this ‘safe space’ exists – which is already provided for in the Act – and Cabinet minutes are not routinely outed. Considering this, it’s slightly baffling why the government wants this looking at again, and so soon after the last review.

Secondly, one of the reasons cited for re-examining the Act is the Supreme Court’s recent decision in the case of the Prince Charles ‘spider memos’. After the Upper Tribunal had ordered the government to disclose these documents the Attorney General, Dominic Grieve, tried to issue the Ministerial veto – something intended for rare and limited circumstances. However, on appeal the Supreme Court ruled that the veto could not apply because it was never intended to be an executive override for a judgment of the judiciary. As the Supreme Court’s judgment notes, it is a long-standing principle of the rule of law that the executive should only be allowed to do this in very specific circumstances where the power to do so is clear and explicit. This is not the case within the FOI Act.

Essentially, the review seems to be partly inspired by sour grapes. The government lost in a disagreement with the courts and its solution is to make the case for re-writing the law so it can ignore them in the future when it suits them. The public interest is noticeably absent from its motivations.

Thirdly, the composition and conduct of the Commission has raised some eyebrows. Members include Jack Straw, who has publicly criticised the Act, and Michael Howard whose expenses for gardening services were revealed through FOI. There are no major advocates of the Act on the panel.

The Commission has also adopted some opaque practices during the initial stages of its inquiry, including providing anonymous briefings to members of the press and considering anonymising evidence. Until civil society expressed concerns about the Commission in September, it wasn’t even planning to take external evidence and had the suspiciously ambitious deadline of November 2015 to report to government. Since then, it has opened itself up to submissions and its deadline for reporting appears to have disappeared. However, the damage has already been done – Transparency International UK has no confidence in the impartiality and independence of the Commission.

The saddest thing about this whole episode is that it’s been a missed opportunity. If public money is going to be spent on reviewing the Act it should be put towards examining how it can be improved, not weakened. For example, there are growing transparency gaps in our public institutions, with the private sector providing an increasing amount of goods and services. Although there are some circumstances where these companies can be subject to information requests, these are limited. This is why the Act should be extended to the private sector where they are providing public services.

Recently, Labour has announced that it intends to set-up its own Commission on FOI that will look at the Act as a whole, including how it can be strengthened. This is a welcome development. However, as with the government’s Commission, its members and their actions must gain the confidence of civil society and government if its findings are ever to be realised.

Steve Goodrich is  Transparency International UK’s (TI-UK) Senior Research Officer. He is responsible for leading on TI-UK’s research into lobbying open data and state accountability. He spoke at ‘Freedom of Information: Extending Transparency to the Private Sector‘ on 28 September 2015, an event co-organised by the Bingham Centre for the Rule of Law and the IALS Information Law and Policy Centre.

  • For other resources on FOI and the private sector please follow this link
  • Our blog posts give the view of the author, and do not represent the position of the Information Law and Policy Centre or the Institute of Advanced Legal Studies.

Visiting fellowships at the Institute of Advanced Legal Studies

The Institute of Advanced Legal Studies Visiting fellowship scheme is open for applications, for the academic year 2016/17.  We welcome applicants in the field of information/communication law and policy. The deadline for applications is 31 January 2016. Further information at this link, or below.

For information about the visiting fellowship scheme please contact Eliza Boudier at eliza.boudier@sas.ac.uk. For information about information law and policy research at the IALS, please contact Judith Townend at judith.townend@sas.ac.uk.

About the scheme

The Institute of Advanced Legal Studies has over the years welcomed many established scholars, mostly from overseas, to work in its well stocked library. It aims to offer, without charge and without formality, the basic essentials of library research: access to an extensive comparative legal research collection and a private desk at which to read and study together with IALS support services.

Since 1990, the Institute has offered each year a number of Visiting Fellowships. These Fellowships are intended to create close working relationships with scholars from other institutions, from overseas or in the United Kingdom, who are undertaking work within fields covered by or adjacent to its own research programmes, and who would like to base themselves for a period at the Institute. The Fellowships are designed for those already established in their own fields of activity; they are not intended for the support of postgraduate degree work.

The Institute’s Visiting Fellowships are non-stipendiary but the holders will enjoy a variety of benefits in kind which will facilitate their work, along with close association with the relevant research and training activity being pursued at the Institute:

The benefits are as follows:

  • private office or carrel space within the Institute Library
  • borrowing rights in the Library
  • enjoyment (within pre-determined reasonable limits) of free telephone, fax, mail and photocopying facilities at the Institute, and of Library computing facilities
  • publication in Working Paper form of research undertaken while at the Institute
  • associate membership of the University of London Union, permitting full use of its sports and social facilities

The Institute and the Fellows will have a common expectation that the Fellows will play a part in the intellectual life of the Institute and will make such specific or general contributions in a particular area of research as may be agreed with the Director at the time of selection.

Visiting Fellows will be expected to stay for a period of at least three months, and up to a year if they wish. Applicants from non-EU countries may need to make a Tier 5 visa application. Visiting fellows needing to make a Tier 5 visa application will be assigned a Tier 5 Certificate of Sponsorship by the University of London. More information on this process is available from Eliza Boudier (eliza.boudier@sas.ac.uk).

These Fellowships are designed for persons already established in their own areas of activity who are undertaking work within fields covered by or adjacent to the Institute’s own research programmes which are currently in the following areas:

  • legal practice and the legal profession
  • legal education (including legal skills)
  • comparative law
  • legislative studies and legislative drafting
  • European law
  • company and commercial law
  • access to legal information (law reporting, legislative drafting, legal databases, legal bibliography, management of legal information services)
  • Information/data law and policy

While these topics are preferred because work is already going on, the Institute is ready to receive other proposals from persons wishing to be considered as Fellows. Any such proposals should indicate the interest for the Institute of work in the proposed field.

These Fellowships are not confined to academic lawyers, but are equally open to scholars of other disciplines working in the relevant fields, and to practising lawyers or judges with scholarly projects to pursue.

Application details

Applications are accepted annually by 31st January. The application form should be sent to Eliza Boudier at eliza.boudier@sas.ac.uk.

Applications are reviewed by the Institute’s Research Committee, which meets annually in March. Applicants will be informed shortly afterwards as to whether their applications has been successful.

Interdisciplinary fellowships

In addition to the Institute’s own schemes, additional Visiting Fellowships are also offered by the School of Advanced Study, of which the Institute is a member. These Fellowships are intended for scholars wishing to undertake inter-disciplinary research in the humanities and social sciences, especially across the fields of study of the School’s member institutes: Institute of Advanced Legal Studies, Institute of Classical Studies, Institute of Commonwealth Studies, Institute of English Studies, Institute of Historical Research, Institute of Latin American Studies, Institute of Modern Languages Research, Institute of Philosophy, and the Warburg Institute.

Further particulars of these Fellowships can be found on the School’s web site at:
http://www.sas.ac.uk/support-research/fellowships/visiting-fellowships.

Arts and Humanities Research Council (LAHP) studentships at the School of Advanced Study

A number of AHRC-funded studentships are available for postgraduate research students in Law at the Institute of Advanced Legal Studies, School of Advanced Study, University of London.

Please see the IALS Website, and consult with Christian Otta (christian.otta@sas.ac.uk) about the opportunities for research study before making your application, either for a place to study or for a studentship.

Before applying for an studentship, applicants wishing to study in the School of Advanced Study should make an application for a place to study here; and we recommend that students wishing to apply for a LAHP studentship should apply for their place before 15 January 2016. The LAHP studentship application deadline is then midnight (GMT) on 29 January 2016.

For full details of how to apply for a LAHP studentship, including eligibility requirements, see http://www.lahp.ac.uk/apply-for-a-studentship/. The LAHP application form will be available via the online portal on 1 December 2015. Further information is available on the AHRC website, or from info@lahp.ac.uk.

The School is part of the London Arts and Humanities Partnership (LAHP), which has up to 80 multi-institutional studentships per year available for postgraduate research students studying arts and humanities disciplines across King’s College London, School of Advanced Study or University College London. Awards commence October 2016 and cover tuition fees and an annual maintenance grant (stipend), for three years.