Proposed new U.K. surveillance powers are getting a second reading in parliament today, as the government seeks to update and extend the law in this area before the end of the year.
The Investigatory Powers bill has been dubbed a Snoopers’ Charter by privacy and civil rights groups. It also received substantial criticisms from the three parliamentary committees that scrutinized the first draft of the legislation.
The official opposition Labour Party is taking a more nuanced — or else strategic — stance in its opposition to the bill at this stage, with Shadow Home Secretary Andy Burnham describing the “Snoopers’ Charter” label as a “lazy” characterization during today’s second reading.
Labour’s position is important here in part because the U.K.’s Conservative government only has a small majority, but also because the government is seeking to pass complex and lengthy legislation within a relatively short parliamentary timetable — and the quickest way to do that would be to gain consensus from opposition MPs (not to mention wholesale support from the public).
“The simple fact is, Britain needs a new law in this area,” Burnham told parliament. “Outright opposition, which some are proposing risks sinking the Bill and leaving interim laws in place. To go along with that would be to abdicate our responsibility to the police, security services and more importantly the public and I am not prepared to do that.”
However, he also confirmed the Labour party will not be voting for the bill in its current form. It will instead abstain on the second reading vote. This follows remarks he made yesterday, when he said the party wants to see “substantial changes” to the IP bill — and would prefer to see the legislative timetable extend into 2017 rather than a bad bill being rushed through this year.
In his speech today Burnham noted: “Of the 122 recommendations in the three [committee] reports the government has reflected less than half of them in this revised bill. And I say to the Home Secretary she will need to be prepared to listen more and make further significant changes to her bill if she is to achieve her goal of getting it onto the statute book by December.”
He went on to detail six specific areas where Labour wants to see amendments or other action, namely:
- stronger privacy protections, taking on board earlier recommendations by the ISC committee — and bolstering specific privacy protections for the legal profession, journalists’ sources and MPs’ communications with constituents
- raising the threshold for the exercise of certain powers set out in the bill — including so-called Internet Connection Records (ICRs, aka a 12-month record of every web domain and service accessed), with Labour wanting to limit access this to only “serious crime;” and also requiring bulk collection powers to be more tightly tied to national security, rather than also having “economic well-being” as a justification for this type of intrusion; it also wants “national security” to be more “explicitly defined” within the bill
- tighter definitions for ICRs and also narrowing the list of public bodies that would be authorized to access them
- an independent review of the operational case for bulk powers, in a bid to quell public concern about the intrusiveness and necessity of such powers, reporting in time for the third reading
- strengthening of the “double lock” oversight warrant authorization mechanism to ensure it is not just a narrow process review, but rather what Burnham dubbed “an equal lock” — with the judiciary also able to consider the merits and substance of warrant applications
- stronger laws for the misuse of the powers relating to both obtaining data as well as misusing it
“Given the seriousness of these concerns people have questioned why we are not voting against the government. The simple answer is we need new legislation. But this bill isn’t yet good enough — and that is why we have set the tests that we have. Simply to block this legislation would in my view be irresponsible. It would lead the police and security services in limbo,” added Burnham.
“However… there is no blank check for the government. We will not be voting for this bill because it is so way from being good enough. And if the government fails to respond adequately to the concerns I have raised then I give notice to them today that we will withdraw our support for the timetabling of this bill… I think the public interest lies in getting this right — and not sacrificing quality to meet the deadline.”
Home Secretary Theresa May reiterated the government’s claim that it has made a swathe of amendments to the draft bill, taking on board committee recommendations to, for example, reduce the time when an urgent warrant that is authorized by the Secretary of State must be reviewed by a judicial commissioner from a period of five days to three.
In her opening remarks she also claimed privacy protections are now “hardwired into the bill” — a phrasing Burnham took issue with, arguing the government needs to do far more to achieve a balance between security and privacy considerations.
“We all share an interest in maximising both our individual privacy and our collective security. As a House of Commons, our goal should be to give people both,” he argued.
Also speaking up for more to be done to bolster privacy safeguards in the legislation was Dominic Grieve, chair of the ISC, who noted that the government had responded to only nine of its 22 recommendations.
“We were disappointed that the bill doesn’t include a clear statement on overarching privacy protection,” said Grieve. “We accept the bill has safeguards but they do come across as slightly piecemeal so we think it’s a missed opportunity — a missed opportunity above all of providing that level of public reassurance, even if the practical consequence wouldn’t make a vast amount of difference.”
The committee had been seeking to improve the legislation by trying to provide “greater clarity, transparency and increased safeguards” as a way to bolster public trust in the bill, he added.
“The fact a particular power may never to our knowledge have been misused doesn’t mean we should disregard creating transparent safeguards for its use — if this can be done without interfering with operational capability. We also have to accept the possibility that times might change and standards slip. It’s important we should provide safeguards against such slippage.”
Grieve added that another missed opportunity with the current bill is the fact that it does not gather all the investigatory powers into one place. “The government has chosen to leave some powers elsewhere. We thought it would have been helpful to put them all in this bill,” he said.
Burnham said a key part of Labour’s concerns with the legislation as it is currently drafted is the risk of misuse of the powers by state agencies, going on to detail several instances where he asserted state surveillance capabilities have been inappropriately used in the past.
“In recent years, there have been revelations about how bereaved families, justice campaigners, environmental campaigners, journalists and trades unionists have all been subject to inappropriate Police investigation,” he said.
“Last year, a former senior police officer turned whistleblower claimed Police involvement in supplying information that led to the blacklisting of construction workers. And, for those who claim these fears are exaggerated, I would refer them to the biggest unresolved case of this kind — the 1972 national building-workers strike and the convictions of the 24 pickets known as the Shrewsbury 24.”
Responding to Burnham’s point about raising thresholds for the use of powers in the bill, May pointed to the addition of judicial authorization as the independent check and balance the government is baking in to combat any such misuse. But he countered that the grounds for which police and security services have the ability to put forward applications for warrants “should be as tightly defined as possible.”
“I don’t think it helps if she is proposing that they can be brought forward on the grounds of general economic well-being… It opens up a much wider range of potential activities that could be subject to the most intrusive warrants,” he added.
During the reading, May was also asked by Conservative MP David Davis how long she personally spends reviewing each of the circa 2,500 warrants she is asked to review each year — aka some 10 warrants per working day.
“It’s impossible to put a time on it because each decision differs,” she said. “The amount of information that’s available, the type of case that wants looking at, the extent to which it may refer to a matter that has already been considered. It all varies. So the amount of time I give to each case is the amount of time necessary to make the right judgement about each case.”
The Scottish National Party also said it will be abstaining from today’s vote, raising a raft of concerns about the current draft, including what it dubbed “vague definitions,” the wide-ranging scope of ICRs and the continued role of ministers in authorizing warrants (versus a system based solely on judicial authorization, as is the case in the U.S. and elsewhere).