Transparency and redress

Posted by Bella Sankey on 19 February 2016

Liberty is calling for a re-draft and the inclusion of strong safeguards in the Government’s Draft Investigatory Powers Bill. Our Eight-Point Plan lays out clear, practical ways we can guarantee surveillance is conducted in a necessary, proportionate and accountable way.

It’s vital the final Bill includes measures to improve transparency and redress mechanisms for people who’ve been spied on. These safeguards would provide much needed accountability for the use of intrusive surveillance powers by public bodies.

What’s this about?

We believe surveillance should target those under suspicion. If someone’s suspected of serious wrongdoing, it goes without saying that authorities should be able, with a judicial warrant, to use intrusive and targeted surveillance methods to investigate them. But when the criminal investigation ends, or once they’re no longer under suspicion, that person deserves to be told about the surveillance unless there is good reason for maintaining secrecy. Currently, they have no right to know.

The Government has tried to distract from this important protection by claiming that newly created Judicial Commissioners will provide oversight for surveillance powers. But in order to ensure justice in individual cases, we need the accountability that comes with post-surveillance notification. Oversight is all well and good, but it is always going to be arbitrary and vague. It relies on commissioners checking a fraction of surveillance cases and disclosing statistics on the scale of surveillance conducted – not scrutinising the application of surveillance techniques in individual cases. The European Court of Human Rights has repeatedly said post-notification is inextricably linked to the issue of remedies and effective safeguards against abuse. Put simply, how would you ever know or begin to know if your privacy had been breached, if you were never told you’d been monitored or spied upon?

Redress mechanisms for those who’ve been spied on unlawfully also need improving. The Investigatory Powers Tribunal (IPT) – which hears legal challenges against the use of surveillance – is unbelievably secretive and runs according to Alice-in-Wonderland-like rules. It doesn’t have to hold oral hearings and if it finds against a complainant it can’t give its reasons for doing so.

This means people who bring unsuccessful claims will never know whether their claim failed because they have never been subject to surveillance or they were but the IPT considers that the surveillance was lawful. If the IPT upholds a complaint it only has to provide the complainant with a summary of its reasoning and it’s not permitted to make a declaration of incompatibility under the Human Rights Act. Its judgements are often as opaque as they are dubious. The Draft Bill thankfully creates a much-needed right of appeal against Tribunal judgments, but fails to alter its other peculiar rules.

What the Government’s proposing…

By bringing some of the capabilities unmasked by Edward Snowden before Parliament, the Draft Bill at least introduces some small element of visibility. But simply legalising the breathtakingly broad surveillance powers he exposed does not make them necessary or proportionate. In fact it just formalises the likelihood and potential for abusive surveillance.

Proper accountability is therefore needed now more than ever. But the Bill allows Judicial Commissioners to inform someone subjected to a surveillance error only if they are made aware of it, they consider it sufficiently serious – and the IPT must agree that it’s serious and in the public interest for the victim to be informed. For the error to be serious it must have caused “significant prejudice or harm to the person concerned”. Unbelievably, the Bill states that a breach of the Human Rights Act shouldn’t be considered serious enough for an error to be reported. Really? So even where a public body has clearly broken the law and infringed someone’s human rights they shouldn’t be told? Back we go through the looking glass.

In some ways, the Government’s proposals actually make things worse. Whistleblowers’ revelations are currently the main way people discover they’re being spied on – without Snowden, after all, there would not even be a new law.

But the Draft Bill prohibits disclosure about the existence of surveillance measures and creates a new imprisonable offence for whistleblowers – stopping public servants and communication workers from warning that innocent people are being unlawfully spied on and preventing injustices becoming public.

Being consulted on the powers authorities have over us is integral to any democracy, yet it took a whistleblower to expose the mass surveillance secretly conducted in our name. The Draft Bill’s move to imprison whistleblowers is disturbing in itself and removes a much-needed avenue for accountability.  

Why should you care?

In a fair society, those who’ve been wronged deserve justice. If the state can spy on us unlawfully, without having to admit their mistakes or make good on violations we’ve been subjected to, what incentive do they have to follow the law?

In its report last week, the Joint Committee on the Draft Bill agreed with many of Liberty’s main recommendations for improving transparency and redress. Among reams of substantive recommendations, it called for the threshold for reporting surveillance errors to be reviewed, for the IPT to be able to make a declaration of incompatibility under the HRA and to decide whether its proceedings should be held in public. It also recommended that the Draft Bill should protect communication service providers and staff in public bodies in raising concerns and complaints they may have with the use of the powers.

What can we do?

This is a once-in-a-generation chance to shape our surveillance laws so they respect our rights and protect our security. Tech experts, campaigners and three parliamentary committees all agree the Government’s proposals simply won’t do that – and it urgently needs to go back the drawing board and redraft.

The more voices we have behind our Eight-Point Plan, the harder we are to ignore. Please sign up today – and keep checking our campaign page to find out how we can keep the pressure on the Home Office as it considers its next move.

 

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