Parliament’s most important human rights committee, the Joint Committee on Human Rights (JCHR), has published a report assessing the human rights impact of the Investigatory Powers Bill. It has given a very qualified ‘thumbs up’ to the bill overall, but says that key tweaks will be needed to make it compliant with human rights laws.
A bit of background: The Investigatory Powers Bill proposes to grant the police and security services a range of new surveillance powers. The JCHR is a parliamentary committee which, amongst other things, scrutinises Government Bills for compatibility with human rights. You can read more background in our previous post.
What does the report say?
The JCHR has welcomed the steps which the Bill takes towards providing a clear, transparent legal basis for the investigatory powers already used by the security and intelligence agencies and law enforcement authorities. But the JCHR said that the Bill could be improved to enhance the compatibility of the legal framework with human rights. The report deals with various provisions of the Bill separately, and assesses their potential human rights impact.
1. Bulk Powers
The Bill proposes to permit bulk collection and retention of data in certain circumstances. The report states that the “significant human rights issue” raised by these bulk powers is that their exercise will result in acquisition of large volumes of untargeted data about a large number of people, most of whom will not be of intelligence interest. This would constitute an interference with their privacy.
The report concludes that these bulk powers are not inherently incompatible with the right to privacy; they are “capable of being justified if they have a sufficiently clear legal basis, are shown to be necessary, and are proportionate in that they have adequate safeguards against arbitrary use”. However, the JCHR recommends that the Independent Reviewer of Terrorism Legislation should review the Government’s operational case for bulk powers before the Bill is passed, and should report every five years on whether there is a continuing need for bulk powers.
Warrants permit law enforcement officers to do certain things, such as intercept a person’s communications or look through their possessions. The JCHR recognises the value of warrants which extend to people or places that are unknown at the time the warrant is issued (“thematic warrants”), but considers that certain clauses in the Bill are too broadly drafted.
Currently, the Bill provides that anyone part of “a group of persons who share a common purpose” can be subject to a warrant, and there is nothing in the Bill to prevent the group being defined so broadly as to extend to very large numbers of unidentified people. The JCHR recommends that the Bill be amended to avoid large numbers of people potentially falling within the scope of a vaguely worded warrant.
The Bill also currently allows for major modifications to a warrant (such as adding the name of a person) without judicial approval. The JCHR consider judicial oversight to be a “vital safeguard against arbitrariness”. It recommends that major modifications to warrants should not take place without approval by a Judicial Commissioner.
3. Confidential communications
In relation to intercepting the communications of Members of Parliament (MPs), the Bill provides that consultation of the Prime Minister is required before the Secretary of State can issue a warrant for targeted interception or examination of MP communications. But the JCHR does not think that the requirement that the Prime Minister be consulted is a sufficient safeguard, given the importance of MPs in holding the Government to account. The JCHR recommends that the parliamentary Speaker or Presiding Officer be given notification of the decision to issue a warrant, to enable them to be represented at a hearing before the Judicial Commissioner.
The report also indicates that more robust safeguards are needed for lawyer-client confidentiality. In relation to confidential communications between lawyers and clients which are likely to be included in intercepted communications, the JCHR recommends that there should be a strong presumption against interference.
In relation to protection of journalists’ sources, the JCHR expresses concern that the safeguards in the Bill are inferior to safeguards in other contexts. The report recommends that the Bill should provide the same level of protection for sources as currently exists in relation to search and seizure under the Police and Criminal Evidence Act 1984, including an ‘on notice’ hearing before a Judicial Commissioner, unless that would prejudice an investigation.
JCHR Chair, Harriet Harman said:
Protection for MP communications from unjustified interference is vital, as it is for confidential communications between lawyers and clients, and for journalists’ sources. The Bill must provide tougher safeguards to ensure that the Government cannot abuse its powers to undermine Parliament’s ability to hold the Government to account.
You can read the JCHR Report on the Investigatory Powers Bill here.
Read more about the background to the Bill with our previous RightsInfo coverage here and learn about your right to respect for private life and correspondence with our infographic poster and other privacy resources.