Home Secretary Amber Rudd has proposed changes to the new Investigatory Powers Act in response to a successful legal claim brought by Tom Watson MP, but according to civil liberties campaign group Liberty, the Conservative Government’s proposals only partially comply with the landmark judgement made by the European Court of Justice (ECJ) and “must go further” than they do at present.
The concession follows on more than three years after Watson (the Labour MP for West Bromwich East and Deputy Leader of the political party), represented by solicitors at Liberty, launched a legal challenge to the Data Retention and Investigatory Powers Act (DRIPA) – the predecessor to the Investigatory Powers Act.
In 2015, the High Court ruled that core parts of DRIPA were unlawful due to the lack of safeguards governing access to huge amounts of people’s personal data. The Government then took the case to the Court of Appeal, which referred it to the ECJ for clarification.
In December last year, the ECJ backed the original High Court ruling and decided that, before citizens’ personal data is accessed, there should be prior approval from a Judge or an independent body. It also ruled that retention of data was only acceptable for the purposes of dealing with serious crime, that people whose data had been obtained were entitled to be notified as such and that the data needed to be retained within the European Union.
According to Liberty, the Home Office’s latest proposals are an admission that changes are urgently needed to rectify the rights violations highlighted by the ECJ, but the Government’s plans “only partially address the safeguards fought for by Tom Watson” and now required by law. “It disregards a significant part of the court’s ruling,” claims Liberty.
Speaking about the Home Secretary’s announcement, Tom Watson said: “The current legislation fails to protect people’s fundamental rights or respect the rule of law. That’s what my legal challenge proved, and I’m glad Amber Rudd is making significant concessions, but I will be asking the court to go further as these proposals from the Home Office are still flawed. Ministers are not above the law. They don’t get to pick and choose which rights violations they address and they cannot haggle with the courts to avoid properly protecting people’s freedoms. All of the fundamental safeguards demanded by the court must now be implemented.”
Martha Spurrier, director of Liberty, explained: “It’s encouraging to see the Government acknowledge the need to fix a law that breaches people’s rights, but these plans are a cop-out. The Government has defined the ‘serious crime’ exception absurdly broadly to include crimes punishable by only a few months in prison. It fails to propose the robust system of independent oversight that’s so vital to protect our rights, while also ignoring other critical changes demanded by the court. People in the UK deserve a surveillance law that keeps our country free and democratic and that protects our privacy, our freedom of speech, our right to protest and our free press. This is window dressing for indiscriminate surveillance of the public when ministers should be making the law fit for purpose.”
Seven-week consultation period
The Government is now consulting on new safeguards for the use of communications data. The consultation, which runs for seven weeks from 30 November, is seeking views on amendments to the UK’s communications data and acquisition regime in response to the judgement handed down by the ECJ in December last year.
The proposed changes will introduce additional safeguards to ensure that communications data can continue to be used to keep people safe from crime and terrorism while complying with the judgement.
Launching the consultation, Security Minister Ben Wallace said: “Communications data is used in the majority of serious and organised crime prosecutions and has been employed in every major Security Service counter-terrorism investigation over the last decade. Its importance cannot be overstated. As this is an issue of public importance, we consider it vital to consult on our proposed changes in order to inform our legislative response and subsequent Parliamentary debate. All responses will be welcomed and carefully considered.”
The new provisions include the introduction of independent authorisation of communications data requests by a new body – known as the Office for Communications Data Authorisations – under the stewardship of Investigatory Powers Commissioner Lord Justice Fulford, restricting the use of communications data to investigations into serious crime, additional safeguards which must be taken into account before a Data Retention Notice can be given to a telecommunications or postal operator, clarification of the circumstances in which notification of those whose communications data has been accessed can occur and mandatory guidance on the protection of retained data in line with European data protection standards.
The Communications Data Code of Practice, which sets out how the safeguards governing the retention of communications data by telecommunications operators and its acquisition by public authorities will operate, has also been published for consultation.
The Government is clear that the December 2016 judgement doesn’t apply to the retention or acquisition of data for national security purposes as national security is outwith the scope of EU law. Nevertheless, a number of the proposed changes will apply to certain national security applications for communications data to create a simpler and somewhat more practical regime.