ORIGINAL PUBLISHED ON EU LAW ANALYSIS
by Steve PEERS
Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today’s letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.
An open letter to all members of the House of Commons,
Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised
Actions Taken Under the Previous Government
During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.
Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterize the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.
Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice. The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.
The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’. The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.
The Way Ahead
The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.
As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.
This letter has been prepared and signed by 35 academic researchers. We are comprised of people from both sides of this issue – those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.
|Andrew Murray (contact signatory)||Paul Bernal (contact signatory)|
|Professor of LawLondon School of Economics||Lecturer in Information Technology, Intellectual Property and Media Law University of East AngliaPaul.Bernal@uea.ac.uk
|Subhajit BasuAssociate Professor
University of Leeds
|Sally Broughton MicovaDeputy Director LSE Media Policy Project, Department of Media and Communications
London School of Economics and Political Science
|Abbe E.L. BrownSenior Lecturer
School of Law
University of Aberdeen
|Ian BrownProfessor of Information Security and Privacy
Oxford Internet Institute
|Ray CorriganSenior Lecturer in Maths, Computing and Technology
|Angela DalyPostdoctoral Research Fellow
Swinburne Institute for Social Research
Swinburne University of Technology
|Richard DanburyPostdoctoral Research Fellow Faculty of Law University of Cambridge
||Catherine EastonLancaster University School of Law|
|Lilian EdwardsProfessor of E-Governance Strathclyde University||Andres GuadamuzSenior Lecturer in Intellectual Property Law University of Sussex
|Edina HarbinjaLecturer in Law University of Hertfordshire
||Julia HörnleProfessor in Internet Law Queen Mary University of London|
|Theodore KonstadinidesSenior Lecturer in Law University of Surrey
||Douwe KorffProfessor of International Law London Metropolitan University
|Mark LeiserPostgraduate Researcher Strathclyde University
||Orla LynskeyAssistant Professor of Law London School of Economics
|David MeadProfessor of UK Human Rights Law UEA Law School University of East Anglia
||Robin MansellProfessor, Department of Media and Communication London School of Economics
|Chris MarsdenProfessor of Law University of Sussex
||Steve PeersProfessor of Law University of Essex
|Gavin PhillipsonProfessor, Law School University of Durham||Julia PowelsResearcher Faculty of Law University of Cambridge
|Andrew PuddephattExecutive Director Global Partners Digital||Judith RauhoferLecturer in IT Law University of Edinburgh
|Chris ReedProfessor of Electronic Commerce Law Queen Mary University of London
||Burkhard SchaferProfessor of Computational Legal Theory University of Edinburgh
|Joseph SavirimuthuSenior Lecturer in Law University of Liverpool
||Andrew ScottAssociate Professor of Law London School of Economics
|Peter SommerVisiting Professor Cyber Security Centre, De Montfort University
||Gavin SutterSenior Lecturer in Media Law Queen Mary University of London
|Judith TownendDirector of the Centre for Law and Information Policy Institute of Advanced Legal Studies
University of London
|Asma VranakiPost-Doctoral Researcher in Cloud Computing Queen Mary University of London
|Lorna WoodsProfessor of Law University of Essex