Soon after the publication of the Draft Investigatory Powers Bill in November, a number of privacy, surveillance and freedom of expression specialist academics and practitioners gathered at the Institute of Advanced Legal Studies to discuss the detail and the main issues.
Fairly quickly it was agreed that a clause-by-clause review of legislative sources would be a useful resource, to inform and complement wider commentary and committee submissions. Under Professor Lorna Woods’ stewardship, we carved up the Bill and compiling/reviewing/administrative roles between us.
Given the length of the main Bill document (299 pages) plus all the accompanying material and relevant legislation and reviews to consider, it was an ambitious task. But we have managed to (just) meet our pre-Christmas deadline and today have published a set of working documents that identify the provenance of as many as the clauses in the draft Investigatory Powers Bill as possible.
We have taken the view that the clauses can be ascribed to one of three groups:
- The same as a pre-existing provision (or functionally equivalent);
- Completely new; or
Where there are pre-existing sources, we have highlighted the relevant provision [see list]; for those that are completely new there are no such sources, but we have included references to the three reviews published in 2015: the Anderson Investigatory Powers Review; the ISC Privacy and Security report and the RUSI Independent Surveillance Review. As regards this latter aspect, only a brief sketch has been included; it is safe to say that there is more detail from the reports that could be pulled through were a more detailed analysis to be undertaken. The aim of this project was not however, to provide such an analysis but rather to provide a tool to assist others seeking to undertake such projects.
Although our primary objective related to the identification or relevant sources we have as part of the project flagged up the significance of the changes, as well as issues where we were not sure of the consequences of the drafting/changes identified. This we hope will give food for thought for others engaged in this area. While one of the stated aims of this legislative endeavour is to clarify the terms on which surveillance may take place, the resulting draft is still long and complex, with parts of the old, fragmented system for surveillance still remaining in place.
Follow the links below for a Part-by-Part review of drafting provenance. The chapters of some Parts have been split into different Google documents, which you can view and download. These working documents may be subject to change, following further assessment. Comments/suggestions to: email@example.com.
- Part 1
- Part 2
- Part 3
- Part 4
- Part 5
- Part 6 (chap 1)
- Part 6 (chap 2)
- Part 6 (chap 3)
- Part 7
- Part 8
- Part 9 (chap 1)
- Part 9 (chap 2)
- Source list of relevant legislation and reviews (incl. abbreviations)
Introduction of oversight
One of the important novelties of the draft IPB is the introduction of oversight mechanisms (via the Judicial Commissioner process: the ‘double lock’ mechanism, and the consolidation of various external review bodies into a new body, the IPC). While this is significant in terms accountability and control, there will be questions as to what the standards of judicial review actual are and whether ex post facto review is sufficient – questions that become increasingly important in the light of Grand Chamber judgments from both European courts regarding mass surveillance and technical bypassing of oversight procedures (eg. Schrems, Digital Rights Ireland, Zakharov). There are also questions about the independence of the IPC and the scope of his/her review functions, and regarding the operation of the new error reporting provisions.
Standardisation of warrant process
Looking at the warrant process, similar ideas can be seen reoccurring in respect of successive types of warrant – so length of warrants, process for renewal and cancellation. This is probably advantageous from the perspective of transparency and accessibility. Nonetheless, while the oversight was built on a common structure, there were small differences in the precise elaboration of that structure across the various parts of the draft IPB, for example the approach to material obtained under a cancelled warrant. In sum there is not just one, uniform system despite the strong similarity between the various parts of the bill. Further, the impact of the new structures in terms of comparison with what has gone before would vary depending on what went on before. So while it is no doubt a good thing that the bulk interception warrants are limited to 6 months, this means that some of the pre-existing warrants will be extended from the current 3 months.
Normalisation of techniques
This ‘standardisation’ process also means that things that seem to have been limited under RIPA to interception warrants have been applied across the whole range of warrants under IPB – a sort of normalisation of those techniques (e.g capability maintenance and national security notices). This takes place against a background in which there are new forms of warrant (or perhaps existing forms of warrant are recognised and put on a specific statutory footing).
Impact of definitions
The definitions are very important as they determine scope of application for particular provisions. The definitions have been changed, perhaps in response to technological and market developments. There are some questions as to the precise scope of some of these concepts (instances of difficult areas were given in the evidence to the Science and Technology Committee, for example). Because of their systemic effect, however, changes to definitions have far-reaching consequences for the meaning and consequently scope of various powers and indeed, some provisions which appear not to have changed in terms of the wording used, will have changed because of changes to the definitions of those words. Careful reading is required to understand the significance of this.
Not a totally consolidated system
The introduction to the bill emphasised that the aim of the bill is to consolidate the regime, so that provisions enabling surveillance are not scattered across a range of instruments, some of which were arguably not designed for that purpose, empowering a wide range of authorities to intrude. Certainly, the bill goes some way in this direction, enclosing some behaviours within a detailed oversight regime and foreclosing the use of some general powers. Nonetheless, key general powers remain – such as those in the Police Act and the Intelligence Services Act – although some attempt has been made to curtail their use in circumstances falling with the scope of this Bill.
This project was put together with the support of the Information Law and Policy Centre at the Institute of Advanced Legal Studies (IALS). The team, led by Professor Lorna Woods, was: Andrew Cormack, Ray Corrigan, Julian Huppert, Nora Ní Loideain, Eleanor Mitchell, Marion Oswald, Javier Ruiz Diaz, Jessica Simor, Graham Smith, Judith Townend, Caroline Wilson Palow, and Ian Walden. A wider group of specialist academics and practitioners have been involved in discussions over email and at two meetings held at the IALS in autumn 2015.
- Investigatory Powers Draft Bill page on gov.uk
- Draft Bills before Parliament
- Materials and commentary on the IP Bill
- Science and Technology select committee – Investigatory Powers Bill: technology issues (open inquiry)
- Joint committee on the Draft Investigatory Powers Bill (open inquiry)
- Joint Committee on Human Rights – Investigatory Powers draft Legislative Scrutiny (accepting evidence)
- Intelligence and Security Committee consideration (media statement)
- Independent Reviewer of Terrorism Legislation site
This post originally appeared on the Information Law and Policy Centre Blog and is reproduced with permission and thanks.