The U.K. government has agreed on an amendment to draft surveillance legislation aimed at strengthening the public perception of privacy safeguards by adding a statement of priority to the face of the legislation.
The Investigatory Powers bill, which continues to attract controversy on account of the scope of the powers it sets out, is the government’s attempt to cement an overarching operational framework for state security agency and law enforcement surveillance powers, replacing a patchwork of antiquated legislation that is currently being used to authorize intercepts and other intrusive investigatory measures.
Lord Janvrin, a member of the Intelligence and Security Committee (ISC), introduced the amendment in a report-stage session on the IP bill in the House of Lords today. He noted this was one of the ISC’s recommendations when it delivered a critical report on the draft bill earlier this year.
The ISC surprised commentators with its critical report on the IP bill, given how much emphasis the security-cleared committee placed on the importance of enshrining privacy protections in a piece of legislation aimed at expanding security agency powers.
“We recommended that privacy should form the backbone of the legislation, around which the exceptional, intrusive powers are then built,” Lord Janvrin said today.
“This recommendation was then to underline at the very outset of the bill that there is a delicate balance to be struck between an individual’s right to privacy and the exceptional powers needed by the intelligence agencies to ensure our safety and security.”
And while he added that, in his view, the bill has seen “substantial changes” and “significant improvements in the protection afforded to privacy” — flagging up the government agreeing to add a “clause in general duties in regard to privacy” into the legislation — he said the aim of the amendment is “simply to reinforce the government’s approach” by including a more visible pro-privacy statement.
Speaking for the government today, Lord Howe said it was willing to agree to the amendment.
“The ISC still feels there is merit in placing a simple statement right at the very forefront of the legislation to provide additional clarity that there should be no doubt that privacy protection remains a fundamental priority. On that basis I am happy to support it,” said Lord Howe.
However another amendment also aimed at bolstering privacy and civil liberties protections — by proposing the creation of a U.S.-style Privacy and Civil Liberties Board — was shot down in flames on the floor of the House of Lords.
The amendment, introduced by Lib Dem Peers Lord Paddick and Lord Strasburger, was attacked from all sides of the house, including by other Lib Dem peers.
Criticisms included that the U.S. equivalent body is ineffective; that such a board would merely duplicate other oversight roles — such as the bill’s Investigatory Powers Commissioner and the existing role of independent reviewer of terrorism legislation; that it would be costly; and even that it would be dangerous to allow security-cleared material to be seen by an external body.
One peer dubbed the idea “an expensive and ill-conceived quango” and “a risk to national security.” Another described it as “one of the worst proposals I’ve seen in the area of National Security.”
While the Lib Dem’s Lord Campbell of Pittenweem also condemned the proposal, arguing it is “simply rehearsing the existing law,” and dismissing Paddick’s argument in favor of it — that the government, under former Home Secretary (now PM) Theresa May, had previously said it would create such a body — by claiming the proposed legislative framework at that point was entirely different.
“The original proposal, which is now contained in this amendment, was made against a wholly different statuary framework and therefore when one’s considering its necessity one must look at its necessity against the background of the statutory framework which this bill now encompasses,” he argued, adding: “[Paragraphs in the proposed amendment] add nothing to the obligations already incumbent on the security services.”
Under attack from all sides, Paddick and Strasburger withdrew the amendment.
An attempt by Green peer, Baroness Jones of Moulsecoomb, to pass amendments seeking to bolster the bill’s “double lock” authorization mechanism and further improve safeguards for when surveillance powers can be utilized by state actors also did not succeed.
“One of the biggest problems in every single power the Bill gives and sometimes creates is the lack of a reasonable suspicion — lack of a threshold that is absolutely clear for surveillance powers to be authorised for the purpose of preventing and detecting crime. Intrusive powers can be authorised to prevent and detect serious crime, but this general purpose is left wide open to broad interpretation and abuse without requiring the authorising authority to verify the existence of that reasonable suspicion of criminality,” argued Baroness Jones.
“A requirement of reasonable suspicion, when the purpose of preventing and detecting serious crime is invoked, would protect people and prevent the abusive surveillance of law-abiding citizens that we have seen in the past, without unduly limiting legitimate use of surveillance powers.”
Lacking support for her amendment, she withdrew it.
One Labour-backed intervention did inflict a defeat on the government by passing an amendment it does not support. But not on the issue of general privacy concerns; rather relating specifically to costs for victims of phone hacking (a recommendation from the Leveson enquiry into media practices). Peers were angry the government had not yet enacted the relevant section of the Leveson report — and pushed to inject in into the IP bill via an amendment.
Lord Howe also detailed government amendments that he said aim to put “beyond doubt” the importance of taking “particular care” in relation to sensitive communications, such as confidential journalistic material, by making it clear public authorities “should have regard to the human rights implications — in the widest sense — of interfering with communications that attract particular sensitivity”.
The bill has been criticized as a threat to journalists’ sources.
Concerns also continue to be raised about the risks the bill poses to legal professional privilege.
Scrutiny of the IP bill continues in the House of Lords, with the government aiming to have it pass into law this year.
This post was updated with additional comment, and to correct Baroness Jones’ party affiliation