Tentative Reform of State Surveillance Powers in the UK

Andrew Wheelhouse 14th April 2015

Rumblings of discontent have been heard from the supervisory bodies that are entrusted with providing oversight of surveillance operations by UK intelligence agencies. While these demonstrate that the security services do not get everything their own way, the proposals made will likely amount to little more than a tweaking of current extensive surveillance powers.

Observers of this area of law will have noted late last year the general approval given by the UK’s Investigatory Powers Tribunal to the UK’s mass surveillance program in Liberty v GCHQ [2014] UKIPTrib 13_77-H (see previous post here). A key component of the reasoning of the tribunal was that the statutory bodies charged with overseeing the exercise of surveillance powers were sufficient to ensure the right to privacy was being respected.

Both of those bodies have produced reports critical of the legislative framework as it currently stands.

First, the Intelligence and Security Committee of Parliament (ISC) has recommended that the hodgepodge of statutes currently governing the intelligence services be replaced with a new Act of Parliament. The current framework lacked ‘transparency’ and the new law should formally set out the ‘purposes, functions, capabilities and obligations of the Agencies’. The need for the government to protect privacy and release as much data as operational constraints allow should be explicitly acknowledged.

Second, the Interception of Communications Commissioner’s Office (ICCO), headed by former Court of Appeal judge Sir Anthony May, published a report which criticised the use of surveillance powers by police forces to obtain information about journalistic sources. The ICCO insisted that in future judicial authorisation be obtained before access is granted. Accordingly, the relevant statutory Code of Practice is being amended to require the issue of warrant by a judge under s.9 and Schedule 1 of the Police and Criminal Evidence Act 1984.

We must concede that, at the very least, these reports demonstrate that the different organs of the regulatory system governing surveillance are taking notice of developments and making efforts to correct flaws in the system. The proposals put forward are hard to argue with. The ISC’s desire for a consolidation of the law governing the intelligence services is perfectly sensible; the wish to bring the spooks ‘in from the cold’ and specify their role within the constitutional framework is laudable as far as the rule of law is concerned. Similarly, acting on the ICCO’s concerns will go some way to closing down the new ‘phone hacking scandal’, in many ways more disturbing than the one that brought about the Leveson Inquiry.

That said, these developments are hardly likely to change anyone’s mind about the state of the law. We have no idea what the proposed new intelligence statute will look like. It is perfectly possible that it will afford defined, but vast, powers to the state. In addition, the reports, whilst thorough, do not challenge the validity or the desirability of the surveillance powers regime in general. The ISC refused to accept that GCHQ’s mass surveillance program constituted surveillance at all given that only a small proportion of the data collected is ever read. Liberty’s director immediately criticised the ISC in forthright terms, labelling it “a simple mouthpiece for the spooks…clueless and ineffective”.

Nevertheless this does have something of the quality of a ‘dog bites man story’. These are bodies set up by the government and run by individuals who possess technocratic competence more than they possess campaigning zeal. In a world with myriad security threats and uncertainties, it was never likely that the wholesale dismantling of expensive surveillance programmes was going to be proposed. Programmes which, it has to be admitted, don’t directly involve anything so ugly as detention without charge, extraordinary rendition or following citizens around the park as they walk the labrador.

It stands as testament to the essential truth that radical reform was never delivered by a committee or quango. It is likely that until campaigning organisations find a way to properly mobilise public opinion on the matter, which they have signally failed to do thus far, that we are more or less stuck with the current regime.

Author profile

Andrew Wheelhouse was called to the Bar Of England & Wales at Middle Temple in 2013. Between January and July 2014 he served as a Foreign Law Clerk to Justices Skweyiya and Madlanga at the Constitutional Court of South Africa. He writes here solely in a personal capacity.

Citations

Andrew Wheelhouse ‘Tentative Reform of State Surveillance Powers in the UK’ (OxHRH Blog, 14 April 2015) <http://humanrights.dev3.oneltd.eu/tentative-reform-of-state-surveillance-powers-in-the-uk/> [Date of Access]

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