In this post, Professor Lorna Woods, University of Essex and Senior Associate Research Fellow at the Institute of Advanced Legal Studies, considers a report by the Joint Committee on Human Rights on the Investigatory Powers Bill.
The Joint Committee has reported on the IPB. In doing so, it has made clear that this is an expedited report to aid the bill’s hasty progress through Parliament. The Joint Committee does not suggest that its review covers all the issues, nor that it might not come back to issues. The Joint Committee discussed issues arising under seven headings: bulk powers; thematic warrants; modifications; MPs and the Wilson Doctrine; legal professional privilege (LPP); journalists’ sources; and oversight.
The headline news on this topic is that the Joint Committee did not consider the bulk powers to be ‘inherently incompatible’ with Article 8 ECHR. While the Joint Committee emphasised that compatibility will in the end come down to the precise scope of the safeguards and the way the powers are used, there is a question as to whether the Joint Committee was right as to finding that there is a possibility for use of bulk powers.
In coming to its conclusion, the Joint Committee referred to the evidence it had heard: that of Prof David Anderson (Independent Reviewer of Terrorism); Mr Michael Drury; Iain Cameron; Martin Scheinin; and Council of Europe Commissioner for Human Rights. Mr Drury and Prof Cameron both referred to Weber and Saravia (2003), an admissibility decision which specifically referred to ‘strategic’ monitoring of content, to determine that bulk interception could comply with Art. 8.
While Prof Anderson noted this, he also noted that more recently there might be a difference now between the British view and that in Europe. Certainly, both the Commissioner for Human Rights and Prof Scheinin questioned the legality of bulk surveillance. Prof Scheinin referred to more recent case law, specifically the Grand Chamber decision of Szabó and Vissy (as well as some EU jurisprudence), to state that bulk powers are incompatible with European law.
So how do we reconcile these divergent views? The recent Grand Chamber decision in Zakharov, which can be seen as an attempt to restate or consolidate the existing jurisprudence on surveillance, concerned the direct access of security services to the mobile communications network in Russia which was found to violate Article 8. In coming to this conclusion, the European Court found that the safeguards in place were insufficient. Does this mean, however, that any mass surveillance must be disproportionate, or was this a decision on its facts?
In Zakharov the court did refer to earlier case law relating to safeguards – including Weber and Saravia – which suggests that where there are adequate safeguards even mass surveillance could be justified. But, when considering the scope of review, the Court emphasised that any such review ‘must be capable of verifying the existence of a reasonable suspicion against the person concerned’ [para 260]. This could be read as suggesting that mass surveillance cannot be so assessed because by its nature it is indiscriminate.
Zakharov is, of course, not a precise match for the bulk powers because Zakharov concerned interception of content whereas the main bulk provision concerns communications data. In Szabó and Vissy, a decision handed down shortly after Zakharov, while the Chamber found the safeguards there insufficient, in passing it discussed mass surveillance seemingly more broadly as follows:
For the Court, it is a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies in pre-empting such attacks, including the massive monitoring of communications susceptible to containing indications of impending incidents. The techniques applied in such monitoring operations have demonstrated a remarkable progress in recent years and reached a level of sophistication which is hardly conceivable for the average citizen (see the CDT’s submissions on this point in paragraphs 49-50 above), especially when automated and systemic data collection is technically possible and becomes widespread.
In the face of this progress the Court must scrutinise the question as to whether the development of surveillance methods resulting in masses of data collected has been accompanied by a simultaneous development of legal safeguards securing respect for citizens’ Convention rights. These data often compile further information about the conditions in which the primary elements intercepted by the authorities were created, such as the time and place of, as well as the equipment used for, the creation of computer files, digital photographs, electronic and text messages and the like.
Indeed, it would defy the purpose of government efforts to keep terrorism at bay, thus restoring citizens’ trust in their abilities to maintain public security, if the terrorist threat were paradoxically substituted for by a perceived threat of unfettered executive power intruding into citizens’ private spheres by virtue of uncontrolled yet far-reaching surveillance techniques and prerogatives.
In this context the Court also refers to the observations made by the Court of Justice of the European Union and, especially, the United Nations Special Rapporteur, emphasising the importance of adequate legislation of sufficient safeguards in the face of the authorities’ enhanced technical possibilities to intercept private information (see paragraphs 23 and 24 above). [para 68].
The Court then went on to consider the safeguards in the Hungarian system, relying on Zakharov. In his concurring opinion Judge Pinto De Albuquerque criticised the approach of the majority in this context for “condon[ing] volenti nolenti widespread, non-(reasonable) suspicion-based, “strategic surveillance” for the purposes of national security, in spite of the straightforward rebuke that this method of covert intelligence gathering for “national, military, economic or ecological security” purposes received from the Grand Chamber in Roman Zakharov”.
A request for referral to the Grand Chamber in Szabó and Vissy is pending. While the Court is clear such mechanisms must be subject to adequate safeguards, it seems to accept that mass (population level) techniques could be legitimate. It seems hard to square this with a requirement for individualised suspicion unless when we talk about ‘not inherently compatible’ we are talking about a level of possible legality which exists only as a step in the argument which can never exist in reality.
Whatever the outcome of this argument, we should note that not all the bulk powers are the same and much be considered on their own merits. The Joint Committee flagged the issue of Internet Connection Records, though it should be noted that even ‘normal’ phone records can be very revealing (see report of research on meta data here).
Perhaps the most intrusive is the use of bulk personal datasets, in which the data of those of no interest to security services is retained. While the explanatory documents give examples of data which is held by public bodies (e.g. electoral roll), the phraseology of the bill gives a much wider scope. The question of adequate safeguards here has not received that much attention.
It is interesting to note that the Joint Committee did not seem to consider the jurisprudence from the EU, even though the evidence covered the strong views of the European Court of Justice in Digital Rights Ireland and Schrems. Pointing out that there is a pending case (Davis – the opinion in which is due after the referendum) does not undermine the status of the existing case law. The Joint Committee did suggest that an operational case needed to made, and that this case should be independently scrutinised.
The Joint Committee flagged up concerns about thematic warrants. In principle these are used in respect of people who are part of a group that have triggered suspicion, but the question is whether the safeguards and the drafting are sufficiently rigorous to prevent these turning into a legitimation of a form of mass surveillance, opening the way for the circumvention of some of the safeguards on the use of bulk powers. In recommending that the thematic provisions be more tightly drawn so as
“to ensure that the description in the warrant is sufficiently specific to enable the person unknown, but who is the subject of it, to be identified and to prevent the possibility of large numbers of people being potentially within the scope of a vaguely worded warrant”,
the Joint Committee is reiterating the views of other committees which have reviewed the bill. It is also reflecting the concerns of at least some of the judges in the Strasbourg court.
One of the key safeguards is independent oversight of the need/appropriateness of a warrant. The bill envisages two categories of modifications: major and minor. Major modifications include the adding to the warrant of new persons, premises or devices, which could quite clearly bring new individuals into the surveillance net.
Yet modifications – whether major or minor – do not need the review of the Judicial Commissioner. The Joint Committee expressed concerns about this, rightly so as it is hard to see how a warrant subject to a major modification can reflect individualised suspicion the evidence for which has been tested as suggested in the Strasbourg jurisprudence and also that of the Court of Justice.
Wilson Doctrine, LPP and Journalists’ Sources
These three issues are grouped together because they relate to individuals who are key in the functioning of a democratic society; in various ways they work to challenge authority and to ensure that it stays within the bounds of the law. Additionally, fundamental rights other than Article 8 ECHR are implicated, such as freedom of expression (Art. 10 ECHR); right to a fair trial and access to a court (Art 6 ECHR), as well as respect for a parliamentary, democratic political system. The protection of these groups is important.
The current proposed framework, as the Joint Committee seems to recognise, does not do enough to enshrine in law protection for these groups from partisan motivation; an elevated level of concern may well be a response to recent case law of the IPT, notably: Caroline Lucas MP, Baroness Jones of Moulsecoomb AM, George Galloway vs. the Security Service, SIS, GCHQ (IPT/14/79/CH, IPT/14/80/CH, IPT/14/172/CH); and News Group Newspapers Limited and Others v. The Commissioner of Police of the Metropolis (IPT/14/176/H).
The Joint Committee thus suggested that improvements be made in all three areas: that the Speaker be informed of any decision to carry out surveillance on MPs; that surveillance of lawyers should require ‘exceptional and compelling circumstances’ and that the level of protection of journalists sources should be the same as that found in the Police and Criminal Evidence Act.
There has been much discussion about whether the oversight mechanism is sufficient but much has focussed on the question of the level of review. Whether the IPB has got this right may still be the subject of some discussion. Here, however, the Joint Committee considered another issue: the need for independence or separation between the authorising of the warrant and the monitoring of its implementation.
This has been raised by a number of international bodies too, such as the Commissioner for Human Rights. The Joint Committee agreed with David Anderson that independence did not require institutional separation but instead the requirement that different individuals within the same institution could carry out the independent review; the Joint Committee proposed that the IPB should provide for such clear separation and the Investigatory Powers Commissioner should have a duty to ensure that these two distinct functions are carried out by different Commissioners.
Whether this addresses the issues that arise from the oversight mechanism is questionable. The European Commissioner for Human Rights raised the issue of both appointment procedures for any such bodies as well as the need for adequate resources.
Further Information Law and Policy Centre resources on the Draft IP Bill – created before the current bill was published – can be found at this link.