Striking the balance between promoting public security and protecting privacy and freedom of expression is emerging as one of the key human rights issues of our time. A report from the committee appointed to consider human rights issues nationally on new surveillance legislation in the UK offers interesting insights into some of the challenges.
The Investigatory Powers Bill, which the UK government presented to Parliament in March, provides a new legal framework to govern the use and oversight of the investigatory powers employed by UK law enforcement, security and intelligence agencies, and other public authorities. At this stage the Bill has been voted through various readings in the House of Commons and will soon be sent to the House of Lords.
Several parliamentary committees have commented on the bill so far, most recently the Joint Committee on Human Rights, which welcomed the bill as a “significant step forward for human rights terms” before offering recommendations designed to bring the Bill further within relevant human rights law standards. We examine those here.
The committee observed that the “bulk powers” delineated in the Bill – referring to the bulk collection and retention of data – are not intrinsically incompatible with the requirements of Article 8 of the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights. Article 8 establishes a right to respect for one’s private and family life and the right to respect for home and correspondence, which can be limited in certain circumstances that are lawful and necessary in a democratic society.
Nevertheless, the committee articulated that the use of bulk powers must have a sufficiently clear legal basis, be shown to be necessary and proportionate, and be structured under a framework of checks and balances to protect against arbitrary use. The committee recommended independent review of an operational case prepared by the government that explains why bulk interception, acquisition, equipment interference, and so forth are necessary, and periodic reviews thereafter by the independent reviewer of terrorism legislation to ensure that the bulk powers enumerated in the Bill are, and remain, necessary.
As to the possibility of “thematic warrants” – those designed to capture data associated with particular individuals, organizations, or premises unknown at the time of a warrant’s issuance through interception and equipment interference – the committee shared its view that provisions concerning the possible subject matter of the potential warrants are overly broad. According to the committee, specificity is necessary to forestall against the possibility of large numbers of people (an example would be protesters) falling potentially within the scope of a vaguely worded warrant.
With respect to provisions in the Bill that would allow targeted interception warrants to be modified after issuance but without judicial approval – by adding or varying the name or description of an individual, organization, or premises for instance – the committee emphasized that these major modifications should be signed off on by a Judicial Commissioner to safeguard against abuse.
As for proposed changes to the system of oversight of investigatory powers – a single Investigatory Powers Commissioner to be supported by a body of Judicial Commissioners – after allowing that “[h]uman rights law does not lay down a simple standard of oversight” for gauging the effectiveness of different oversight arrangements, the committee highlighted separation of powers as a critical feature. Specifically, with respect to warrants, the committee said the Investigatory Powers Commissioner should ensure that different personnel carry out seeking requests for judicial authorization and ex post inspection review.
The committee lastly recommended implementing important safeguards to ensure that communications of members of parliament, between journalists and their sources, and between lawyers and their clients are kept confidential. The committee highlighted the legislature’s key role in holding the executive to account; it described the “chilling effect” on the willingness of sources to speak to the media without protection, which could ultimately limit the media’s access to whistleblowers. With respect to attorney client privilege, the committee shared its view that including a power to target lawyer-client communications as the Bill currently does is unnecessary since communications that further a criminal purpose already fall outside legal privilege by virtue of the so-called “iniquity exception.” It finally recommended a “threshold test” that must be satisfied before an interception warrant can be issued, beginning with a strong presumption against interference.