Yesterday’s publication of the Draft Investigatory Powers Bill marks an important moment in the ongoing debate about surveillance powers in the UK. The former Shadow Home Secretary David Davis MP is a long-time campaigner for civil liberties and has been highly critical of previous legislation, including the Data Retention and Investigatory Powers Act (DRIPA) which he challenged at the High Court. In this interview, he comments on some of the background around DRIPA, drawing out relevant lessons to inform the current debate.
Can you outline the principle points of the Data Retention and Investigatory Powers Act and what it was intended to achieve?
The Data Retention and Investigatory Powers Act 2014 (DRIPA) was introduced as emergency legislation in response to the Court of Justice of the European Union (ECJ) decision in April 2014 that the Data Retention Directive (Directive) was invalid. The European Data Protection Supervisor labelled the Directive, “without doubt the most privacy invasive instrument ever adopted by the EU.”
DRIPA replaced the former UK enactment of the Directive (2009 Regulations) and echoes a number of those provisions. DRIPA permits the Secretary of State to issue notices to communication service providers (CSPs) mandating the retention of communications data where “necessary and proportionate”. The retention period for any data is a maximum of 12 months.
As DRIPA was intended to be temporary legislation, the legislation includes a sunset clause providing for DRIPA to be repealed on 31 December 2016.
You’ve described the legislation as “fatally flawed“. Can you explain why you and others including Tom Watson MP have opposed it so strongly, including contesting it at the High Court?
DRIPA has been widely criticised for its lack of Parliamentary debate and scrutiny, for failing to adequately address the ECJ’s concerns and for its impact on privacy and data protection. The ECJ branded the untargeted, mass collection of our data as a, “wide-ranging and particularly serious interference with [our] fundamental rights”.
To start with, the Government rammed this legislation through Parliament in a single day, without any time for proper scrutiny or debate. The use of the emergency legislation route came in spite of the fact that the Government had had months between the court’s ruling and the introduction of DRIPA to bring remedial proposals before Parliament.
The legislation failed to take into account the points raised by the ECJ, in particular that the oversight regime was inadequate and the access regime was too lax; and that the blanket collection of the whole nation’s data without differentiation, limitation or exception is an unnecessary and disproportionate measure.
The Act was quashed by the Divisional Court in July 2015 on the grounds that it was incompatible with EU law. How significant was this ruling?
This was a historic moment. Not only was this one of only a handful of instances where the courts have struck down primary legislation, it was also the first time a Member of Parliament has brought a successful judicial review against the Government.
It was also a sign that the argument was starting to swing against the Government’s and agencies’ position that extensive surveillance powers were necessary, lawful, and effective. The judgment follows closely on the heels of two authoritative reports on surveillance powers, the first undertaken by David Anderson, the Independent Reviewer of Terrorism Legislation, and the second by the Royal United Services Institute, which were both highly critical of the legal framework surrounding surveillance.
It is becoming increasingly clear that the current system of authorisation and oversight is, as David Anderson put it, “undemocratic, unnecessary and – in the long run – intolerable”. This ruling puts further pressure on the Government to use the upcoming Investigatory Powers Bill to make much needed reforms.
There are serious privacy implications for ordinary members of the public – why do you think people should be worried?
Since Edward Snowden uncovered the extent to which the security agencies collect all of our data, there has been a drip-drip of facts that are embarrassing for the Government and concerning for the public.
As Snowden himself said, “Every border you cross, every purchase you make, every call you dial, every cell phone tower you pass, friend you keep, article you write, site you visit… is in the hands of a system whose reach is unlimited but whose safeguards are not.”
But it is not just our privacy that is infringed by these activities. We now know that GCHQ is also intercepting communications between suspects and their lawyers, even in cases where GCHQ itself is subject to court action. And the police have used surveillance powers to uncover journalists’ sources.
So what we have learnt is that there is an area of government activity which is subject to ineffective oversight and is actively undermining our privacy, our freedom of expression and even the right to a fair trial. There is every reason to be worried about these threats to our liberty.
Evidently, there will be a number of occasions when intercepting and tracking data is justified as a means of preventing serious crime and threats to life. With this in mind, how might it be possible to design legislation that protects citizens at the same time as preserving civil liberties?
Of course, giving the security service the ability to fight terrorism is vital. But there is a balance to be struck.
The key, and there is a new consensus on this emerging among policymakers, the surveillance community, experts and politicians, is that judicial consent for use of these powers would offer a far higher level of oversight, and would be a far stronger protector of people’s liberties, than the current system of ministerial authorisation.
The Home Secretary has indicated that she wishes to maintain sole responsibility for authorising surveillance warrants, but with around 10 a day requiring careful scrutiny this is clearly not a sustainable position.
All of the other ‘five-eyes’ nations (our intelligence partners the US, Canada, Australia and New Zealand) employ some sort of judicial consent to surveillance, without any apparent lessening of public security, and Germany has far higher levels of oversight, so there is no reason why we cannot do the same.
The Media Policy Project at the LSE has an interest in the specific implications of legislation that affects the media. How might the media be impacted by the kind of surveillance legislation we’re seeing at the moment?
Last year, it was revealed that the police had been using surveillance powers to secretly obtain the phone records of journalists investigating the Andrew Mitchell and Chris Huhne cases. The police defended their actions, claiming there were sometimes “higher needs for justice” than protecting confidential journalists’ sources.
Given that 25 police forces refused to respond to freedom of information requests for details on their use of surveillance powers, and a further nine claimed disclosure would involve a “risk of undermining national security”, it seems likely that the practice is more widespread. Use of metadata is an easy way to discover who a journalist has had a telephone or email exchange with, and therefore who their sources are.
Protection of journalist’s sources is a key condition for press freedom. Without it, sources are deterred from passing information to the press, and a huge amount of information, disclosure of which is in the public interest, would never reach the public domain. Without proper oversight, and judicial restraint placed upon the police and security services, the ability of the press to hold the Government to account is undermined.
What role can civil society and academia play in participating in this important debate?
Reform of the UK’s surveillance legislation has two important hurdles.
The legislation itself can be fiendishly complicated. Indeed, it was described by David Anderson QC as, “incomprehensible to all but a tiny band of initiates”. Academia can, and has, taken a vital role in analysing the legislation, uncovering problems, and suggesting solutions.
The other hurdle to reform is that many people are not aware of surveillance, or believe that it doesn’t affect them. Civil society, through organisations like Liberty and Big Brother Watch (and many, many others), have done a fantastic job of raising the profile of this issue, and making people aware of how their rights are being eroded.
Can you give us a sense of the timetable for what happens next, and how you plan to respond?
The next step will be the Government’s Investigatory Powers Bill. This was published yesterday, and will now be subject to scrutiny by a Parliamentary committee before it is considered by both Houses of Parliament. MPs and peers will be able to have their say on the Government’s proposals; I don’t believe that the legislation will get through either the Commons or the Lords without some form of judicial consent for warrants being included in the legislation.
This article gives the views of the author and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics and Political Science.