Independent Surveillance Review calls for “fresh start” to the law on interception of communications
Following on from 12 months of thorough investigation and consultation, the Independent Surveillance Review has now delivered its conclusions to Prime Minister David Cameron in the form of a report entitled: ‘A Democratic Licence to Operate’ which duly states that a new and democratic licence to operate is now required.
The Independent Surveillance Review was undertaken by RUSI (the independent Think Tank for defence and security) in March 2014 at the request of the (then) Deputy Prime Minister Nick Clegg partly as a response to the disclosures made by Edward Snowden in 2013. It follows on from reports published by the Parliamentary Oversight Committee, the ISC and by David Anderson QC, the Independent Reviewer of Counter-Terrorism Legislation.
The Review shows how a democracy can combine the high level of security which members of the public have a right to expect and also ensure the respect for privacy and freedom of speech that are the very foundations of any democracy. Unanimously, the Review Panel now calls on Government, civil society and industry to accept its recommendations and, more importantly, work together to put them into practice.
Indeed, ‘A Democratic Licence to Operate’ states: “Despite the disclosures made by Edward Snowden, we have seen no evidence that the British Government knowingly acts illegally in intercepting private communications, or that the ability to collect data in bulk is used by the Government to provide it with a perpetual window into the private lives of British citizens.”
Continuing this theme, the report proceeds to comment: “On the other hand, we have seen evidence that the present legal framework authorising the interception of communications is unclear, has not kept pace with developments in communications technology and does not satisfactorily serve either the Government or members of the public. A new, comprehensive and clearer legal framework is required.”
The Review Panel drew on the broad experience of its members, emanating from the fields of investigative journalism, the Internet, law, policing, political life and moral philosophy and including former heads of the three British Intelligence and Security Agencies.
Members of the Panel have argued that new legislation is “essential” in order to provide a “fresh start” on a basis of mutual trust in the key principles which the Review sets out.
Members of the Review Panel were Professor Heather Brooke, Mrs Lesley Cowley OBE, Lord Jonathan Evans KCB DL, Baroness Lane Fox of Soho CBE, Professor John Grieve CBE QPM, Professor Dame Wendy Hall DBE FRS FREng, Professor Lord Hennessy of Nympsfield FBA, Professor Sir David Omand GCB, Baroness O’Neill of Bengarve CH CBE FBA FRS, Lord Rooker, Sir John Scarlett KCMG OBE, Professor Ian Walden and Professor Michael Clarke (RUSI‘s director general who chaired the Review Panel). RUSI’s Charlie Edwards acted as secretary to the Review Panel.
Recommendations made by the Review Panel
The Review Panel makes the case for a radical reshaping of the way in which intrusive investigative techniques using the Internet and digital data are authorised such that they’re fully compliant with the Human Rights framework.
A recommendation is made that, in future, requests for interception for the prevention and detection of serious crime be authorised by a senior Judge, and that the warrants signed by Secretaries of State for purposes relating to national security (including counter-terrorism) should all be subject to judicial scrutiny according to arrangements set out in ‘A Democratic Licence to Operate’.
Importantly, this represents a significant strengthening of the present system of safeguards.
The Independent Surveillance Review also examines the powerful digital techniques available to the intelligence agencies and the police service and accepts that they’re needed. However, the members of the Panel are again unanimous in their view that the state should always be reluctant to invade the privacy of its citizens in an open society. “It should never be a matter of routine” are the words employed. Intrusion into the privacy of the citizen is something about which the secret part of the state “should rightly feel unease”.
Like other recent reviews, the Independent Surveillance Review highlights inadequacies in law and oversight and calls for urgent new legislation in this session of Parliament to provide a new democratic mandate for digital intelligence. The present arrangements are said to be “too complex to be understood by the citizen” and have contributed to a “public credibility gap” that must be addressed as a matter of urgency.
On that basis, the Review sets out ten tests that any new legislation must pass before it can be regarded as giving the police and the intelligence agencies a democratic licence to operate.
Comments by members of the Review Panel
Launching ‘A Democratic Licence to Operate’ at RUSI, Professor Michael Clarke explained: “With our report, which represents the third major study of this subject in 2015, the Government has a golden opportunity to make a fresh start by introducing legislation that provides a clear and legally sound framework within which the police service and the intelligence agencies can confidently operate knowing that, at all times, they will be respecting our Human Rights.”
Clarke continued: “At present, there’s no shortage of mechanisms to regulate the way in which the Government runs interception programmes, but they’re complicated, overlapping and, in some cases, creaky. There’s a manifest need for new legislation. We have outlined ten tests that people in Britain should apply when they hear what the Government proposes. If Government proposals genuinely meet these criteria, the new legislation will be able to address justifiable public concerns while allowing the police and the intelligence agencies to get on with their jobs.”
Lord Jonathan Evans of Weardale said: “These proposals seek to ensure that the state can continue to protect its citizens through the use of appropriate surveillance powers while also providing for a consistent accountability regime that guarantees their proportionate and lawful use.”
Commenting in some detail, Lord Rooker added: “I want to live as an individual within society. Yes, I want individuals to have privacy, to be awkward and have the right to challenge all and sundry but I also want our society to be the society that allows and underpins these freedoms. For that society to function and bloom, I’m prepared to share and sometimes sacrifice elements of my privacy to protect and benefit society as a whole. I’m part of the balance. Therefore, I don’t complain too much if I need to share my privacy, provided society as a whole sees that there are limits and regulation to such invasion and that genuine benefits to society arise from the outcomes. This report will greatly assist legislators in framing modern protections for individual privacy.”
Air his views on the matter, Professor John Grieve said: “Communications data is fundamental to all aspects of policing in the 21st Century, not just to counter-terrorism. Looking at CSP and OC plus missing persons, domestic violence, stalking, serious public disorder and volume crime, I was very impressed with the care, commitment, skills and ethics of all the teams we visited.”
Professor Ian Walden explained: “The current legal and regulatory framework has been constructed over the years from various sources, both national and European, and been driven by differing policy motivations and considerations. The resultant regime is neither comprehensive nor comprehensible. The sunset clause in the Data Retention and Investigatory Powers Act 2014, which is set for the end of December 2016, provides us with an opportunity to engage in a wide-ranging and inclusive debate about where and how the boundaries should be redrawn, in turn recasting the rules governing state surveillance for the coming decades. I hope that our report’s recommendations contribute to this debate and the outlines of a new settlement.”
Sir John Scarlett added: “The role of the British state is to protect the security, privacy and way of life of our fellow citizens. In our liberal democracy, security and privacy are mutually dependent. They reinforce each other. Extraordinary technological change requires us to rigorously monitor the social contract, including legislation, which allows our democracy to strengthen and prosper. The Independent Surveillance Review’s Report makes an important contribution to this ongoing task.”
Concluding comments from members of the Review Panel, Professor Sir David Omand said: “Here is the evidence and the arguments to show the world how a mature democracy can both protect the public and, at the same time, respect our individual rights. Parliament now needs to endorse these concepts in law. It’s time to lift the cloud of unjustified suspicion from the digital activity of British intelligence and the work that’s essential to keep us safe.”
Reaction from Big Brother Watch
In response to ‘A Democratic Licence to Operate’, Renate Samson (CEO at Big Brother Watch) told Risk UK: “The RUSI Review Panel’s conclusion that privacy is not just a balance to security but a vital component of society is significant. Privacy concerns should not be seen as a burden by those in power but rather as an essential addition to democratic debate.”
Samson continued: “With the recommendations of the ISC, David Anderson QC and now the RUSI report echoing one another in their calls for change, it’s clear that the status quo is no longer acceptable. We support a number of the recommendations made, including scrapping the current outdated ‘patchwork’ of legislation, the judicial approval of warrants, a clearer and ‘beefed up’ method of redress, reform of the MLAT process and the introduction of a new, technically adept and fully-supported oversight regime.”
In conclusion, Samson stated: “In light of the analysis given by the three reports, there’s no excuse to rush through ill-considered laws. Proper attention and consideration must be given to ensure that a balanced regime is established which protects our privacy, security and the future economic well-being of the nation.”
National Police Chiefs’ Council reaction
Assistant Chief Constable Richard Berry, the National Police Chiefs’ Council’s (NPCC) lead on communications data, has also commented on the High Court ruling in respect of the Data Retention and Investigatory Powers Act 2014.
“Given the digital environment in which we now live more and more of our life,” said Berry, “policing has become increasingly reliant on the availability of communications data, not only in relation to the investigation of criminality, but also in meeting our obligations to safeguard lives under the Human Rights Act.”
Berry continued: “A significant proportion of our acquisition of data relates to situations where life is at immediate risk and a significant proportion of those requests relate to non-crime enquiries, for example tracing vulnerable and suicidal missing persons. Accordingly, and in order to reassure the public, we will rigorously assess how this ruling would impact upon our core mission to protect life. Any reduction in our ability to protect and safeguard members of the public would cause the police service grave concerns.”
In addition, Berry said: “We are aware that the Government intends to appeal this ruling and, therefore, we do not intend to comment further until that process has been completed.”
*Download your copy of ‘A Democratic Licence to Operate’ at: https://www.rusi.org/downloads/assets/ISR-Report-press.pdf
***The Terms of Reference of the Independent Surveillance Review were to:
• advise on the legality, effectiveness and privacy implications of the UK surveillance programmes, particularly as revealed by the ‘Edward Snowden case’
• examine potential reforms to current surveillance practices, including additional protections against the misuse of personal data and alternatives to the collection and retention of bulk data
• make an assessment of how law enforcement and intelligence capabilities can be maintained in the face of technological change while respecting principles of proportionality, necessity and privacy