Draft Investigatory Powers Bill: Liberty calls for full redraft as Committee report highlights major concerns

11 February 2016

Liberty is urging the Government to pause and undertake a full redraft of its landmark surveillance legislation in the light of growing concern from cross-party MPs, technology experts and rights campaigners that no operational case has been made for the unprecedented powers it proposes.

In a report published today, the Joint Committee on the Draft Investigatory Powers Bill becomes the third cross-party parliamentary body in 10 days to highlight a raft of serious concerns with the legislation.

Shami Chakrabarti, Director of Liberty, said: “This report shows just how much homework the Government has to do on this landmark legislation. Despite reams of evidence from the Home Office, the Committee finds the case for unprecedented powers to bulk hack, intercept and collect our private data has not been made. 

“The Government needs to pause, take stock and redraft – to do anything else would show astonishing contempt for parliamentarians’ concerns and our national security.”

Major concerns

The 200-page report supports much of Liberty’s evidence. Among a raft of major recommendations, it concludes that:

  • The case for bulk surveillance powers has not been made – and such powers have the potential to breach the Human Rights Act (pp 88-90).
  • Bulk communications data retention is especially intrusive and requires further justification – and is currently subject to legal challenge by Liberty and MPs Tom Watson and David Davis (p 97).
  • So-called “thematic warrants” for interception and hacking are too broad and must be re-drafted so they cannot be used to target large groups of people (p 117).
  • No formal case has been made for the retention of Bulk Personal Datasets (BPDs) – huge files containing personal information about vast numbers of people (p 101).
  • Important changes should be made to provisions regarding encryption to make clear the Government cannot insist on “backdoors” or preventing end-to-end encryption (pp 76-79).
  • Protections for journalists’ and lawyer-client communications should be added to the face of the Bill (p119).
  • Justifications for surveillance must be tightened, and national security defined in legislation; intelligence-sharing safeguards are insufficient – and this may further human rights abuses; and the Government should reconsider its proposal to enforce extra-territoriality.

The Committee also appears to favour reform to make intercept material admissible in court, recommending the Government keep the issue under review in light of the “significant perceived benefits of using such material as evidence”.

Liberty disagrees with some of the Committee's conclusions, particularly its support in principle for mass surveillance – despite a concession that it was "not well placed to make a thorough assessment of the value of bulk powers”. Liberty also disagrees with the Committee’s conclusion in favour of blanket retention of Internet Connection Records and the review model for surveillance warrants, which would continue to see them issued by ministers.

Today’s report follows Tuesday’s forensic and damning Intelligence and Security Committee analysis, which called the Draft Bill a “missed opportunity”, parts of which were “inconsistent and largely incomprehensible”.

Science and Technology Committee report published on 1 February concluded the Draft Bill’s “poorly defined” and “broad and ambiguous” proposals were causing confusion even among technology industry experts.

Ongoing legal challenge could stop Bill in its tracks

Liberty is currently representing MPs David Davis and Tom Watson in a challenge to mass-data gathering and access powers in the Data Retention and Investigatory Powers Act (DRIPA). Many of these powers are replicated and extended in the Draft Investigatory Powers Bill, despite the ongoing legal challenge.

The case has been referred to the Court of Justice of the European Union (CJEU). This week, Liberty has received an Order from the CJEU confirming its decision to expedite procedure, with a hearing due to take place on 12 April.

The Order draws attention to the intrusiveness of bulk communications data retention, stating national legislation permitting this is liable to cause “serious interference with fundamental rights” protected by the Charter of Fundamental Human Rights.

If the Court finds this interference is unjustified, DRIPA will be struck down, replacement provisions for bulk data retention stopped in their tracks and the lawfulness of a range of bulk powers in the Draft Bill thrown into huge doubt, as the Committee acknowledges in today’s report (pp 60-62).

ENDS

Notes to editors:

Contact: Liberty press office on 020 7378 3656, 07973 831 128 or pressoffice@liberty-human-rights.org.uk.