The Draft Investigatory Powers Bill – Achieving a Good Faith Debate

November 23, 2015

We all get angry.  There are times when we should be angry.  The aftermath of the Paris attacks is one of those times, as is the recent discovery of two mass graves in Sinjar containing the bodies of older Yazidi women.  Izzeldin Abuelaish wrote that it is important to feel anger in the wake of such terrible events: ‘anger that signals that you do not accept what has happened, that spurs you to make a difference.’ [‘I Shall Not Hate’ (2011)].  But sometimes we find it hard to believe and respect others’ anger and the conclusions they come to.  This is especially true for the anger – or the sadness – of politicians, or more concerningly, of our public servants.  We may struggle to believe that their anger could be real, that they could be genuinely motivated by the wish to make a difference.  I find this in itself sad.  We might find the references by successive Home Secretaries to the ‘hard working and dedicated members of our intelligence agencies’ as rather a cliché, or scoff at stories of police officers being moved to tears by the London bombings.  This does not mean it is not true.

Many have echoed Andrew Parker’s call for a ‘mature’ debate over the future powers of the intelligence agencies, as now proposed in the Government’s draft Investigatory Powers Bill.  For this to happen, the genuine and legitimate concerns around proportionality and feasibility already expressed elsewhere must be taken seriously by those promoting the Bill.  There should be no ‘fast-tracking’; having already been introduced to Parliament, the right process for the Bill is already underway.  It is right to be critical, to wish to examine and pull apart the detail.  That is an essential part of the Parliamentary process if we wish to have legislation that is proportionate, technically viable and containing trustworthy safeguards.  It is right to be sceptical.  Anger can make us hasty, judgemental, willing to put too much faith in the ‘next big thing’ that promises a solution.  Assertions around the benefits of data retention and analysis in particular must be examined and justified.  On the other hand, a mature debate inevitably requires a certain understanding and respect for the other’s position, and – perhaps most difficult of all – the courage to trust that the other is operating in good faith.

I have three observations from what I have seen of the debate so far:

1.      Reverting to simplistic rhetoric ultimately undermines the argument being made – whether in the form of unspecific language (‘mass surveillance’) or unsound logic (‘the French had these laws and look what happened’ or ‘it can all be done traditionally’).  The term ‘mass surveillance’ may well be useful shorthand for bulk data retention, particularly for those opposed to the Bill’s provisions, but it risks the detail of exactly what the powers and safeguards entail being side-lined in favour of a polarised debate founded on distrust and mischaracterisation.  The proposals in the draft Investigatory Powers Bill appear to me at least to represent a good faith (although by no means perfect) attempt to reflect the principles established by recent case-law, such as transparency around all relevant powers and independent approval of certain intelligence agency activity.  As such, they deserve detailed and sober examination devoid as far as possible of rhetoric and it is hoped that the Parliamentary committee process will provide the robust, evidence-based scrutiny required.

2.      Intelligence work is not black and white; it is not the case of either using communications/internet data or human intelligence/physical surveillance.  Both fill in gaps left by other sources.  There are genuinely held concerns that premature deletion, or suppression, of intelligence will hamper the agencies’ ability to use information to make connections.  Our courts have recognised these concerns: Lord Sumption said in Catt that most intelligence ‘can only be judged in hindsight, as subsequent analysis for particular purposes discloses a relevant pattern. The picture which is thus formed is in the nature of things a developing one…’.  Examples have been given in the Bill documents of the ways in which information has been critical to particular investigations, such as communications in the investigation into child abuse by Ian Watkins, access to bulk communications data to identify members of a terrorist group, and the matching of datasets of individuals with firearms access against records of terrorists.  It will however be impossible to guarantee that in the future, when information is retained and then accessed in accordance with the Bill’s safeguards, it will always be immediately useful in the sense of enabling executive action to be taken.  This illustrates one of the complexities of intelligence work and one that it would be valuable to bear in mind as criteria for retention, access and use of data are debated and developed.  We should also think carefully about the ‘targeted not mass surveillance’ argument.  It is often not that simple.  Again, our courts have shown sound logic in working through these issues.  In Davis, while holding much of the Data Retention and Investigatory Powers Act 2014 inconsistent with EU law, Lord Justice Bean noted that the European Court decision in Digital Rights Ireland must be interpreted to mean that ‘a wholly innocent person’s data might be accessed in order to assist in the detection of serious crime by others.  The need for access to data is not limited to data directly attributable to particular individuals suspected of having committed serious crimes’.

3.      Finally, the secret nature of intelligence work can be mistaken for deliberate evasion of the truth.  It is not possible to tell everyone everything and at the same time retain the intelligence agencies’ essential operational secrets.  It has been encouraging to see more transparency recently about how intrusive powers are used, including the publication of real-life case studies.  This greater transparency should be pushed as far as it possibly can without prejudicing the police and agencies’ operational work.  Where details cannot be disclosed for good reason, the existing oversight, and the new proposals, are there to give us confidence that secret things are happening in accordance with the law and when things go wrong, that effective remedies are available.  And so it is crucial that the new oversight bodies – the Investigatory Powers Commissioner and Judicial Commissioners – are given the powers, resources and independence needed to create that confidence.  The provisions of the draft Bill (Part 8) are designed to achieve this deserve particular scrutiny, including the new provisions for ‘error reporting’ in clause 171.  On Friday, the Court of Appeal ruled in the Government’s appeal against the Davis judgment, holding that the Divisional Court was wrong to conclude that Digital Rights Ireland laid down mandatory requirements in relation to access to retained communications data:

‘it seems to us that precisely what safeguards may be required must be assessed in the context of the measure concerned and, in particular, must have regard to its objectives, its breath and such safeguards as have been included.’ [para 76] 

The Court recognised however that the ‘true effect’ of Digital Rights Ireland will be central to the validity of all future legislation in this field [para 117] and so has referred two questions to the CJEU:

1.      Did the CJEU in Digital Rights Ireland intend to lay down mandatory requirements of EU law with which the national legislation of Member States must comply?

2.      Did the CJEU in Digital Rights Ireland intend to expand the effect of Articles 7 and/or 8, EU Charter beyond the effect of Article 8 ECHR as established in the jurisprudence of the ECtHR?

The Independent Reviewer of Terrorism Legislation, David Anderson QC, has pointed out that this judgment is likely to be of ‘considerable comfort’ to the Government, with the CJEU’s determination unlikely to be obtained before the scheduled enactment of the Investigatory Powers Bill.  In my opinion, this decision should not mean that any less attention is given to the oversight arrangements in the Bill.  To quote Digital Rights Ireland, it is crucial that those arrangements give confidence that ‘the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data’ [para 54].  As discussed above, when dealing with intelligence and national security matters, it is often not possible to tell everyone everything publicly, thus compounding the importance of the oversight function.

In respect of this, might there be a role for an independent ethics committee, made up of members with a range of skills and opinions, to scrutinise in particular the retention of meta-data (including communications & Internet Connection Reports)?  The necessity for retention and use of such data is justified by the Government on the basis of the case studies put forward and the potential usefulness for future investigations.  Many may be understandably dubious.  An independent committee could complement the oversight role of the Commissioner and provide assurance that the views of technology experts, the public and critical opinions are represented.  It may be that members would have to be subject to developed vetting but I cannot see that being an insurmountable obstacle.

Marion Oswald is Senior Fellow in Law, Head of the Centre for Information Rights, University of Winchester. Twitter: @_UoWCIR