Second committee calls for big changes to Investigatory Powers Bill

A second Westminster parliamentary committee has called for significant changes to the UK Government's Draft Investigatory Powers Bill, in a report published today.

The joint committee of both Houses of Parliament that was scrutininsing the bill concludes that the Government was right to propose the measure, but that it will need significant amendments and further work if it is to live up to the Government’s aspirations.

Earlier this week the Intelligence & Security Committee described the bill as a "missed opportunity" to provide a comprehensive legal framework, calling for greatly strengthened privacy protections among other improvements. (Click here for report.)

Today's report supports the intention behind the draft bill of bringing together the numerous provisions in statute governing intrusive powers which already exist into one clear piece of legislation. However the committee states that "important clarity" is lacking in a number of areas, and makes 86 detailed recommendations aimed at ensuring that the powers are workable, can be clearly understood by those affected by them and have proper safeguards.

The single biggest safeguard is the much greater involvement of judges in authorising warrants for intrusive capabilities, which the committee has welcomed.

Areas on which the committee wants the Government to provide greater clarity include:

• encryption, to ensure that the Government's approach is not designed to compromise security or require the creation of "backdoors";
• bulk powers: if these are to be included in the bill, a fuller justification for each should also be published alongside the bill;
• internet connection records, as to which the committee can see the desirability but has not been persuaded that enough work has been done to prove the case for them conclusively.

It also recommends the establishment of a joint committee of the two Houses to review the operation of the powers in the bill five years after its enacted.

Committee chairman Lord Murphy of Torfaen commented: “There is much to be commended in the draft bill, but the Home Office has a significant amount of further work to do before Parliament can be confident that the provisions have been fully thought through. In some important cases, such as the proposal for communications service providers to create and store users’ internet connection records, the committee saw the potential value of the proposal but also that the cost and other practical implications are still being worked out. In a number of areas the definitions used in the bill will be important, and we have asked the Home Office to do more to address these.

“The creation of a new judicial oversight body and the much greater involvement of judges in the authorisation of warrants allowing for intrusive activities are both to be welcomed. We make a series of recommendations which aim to ensure that the new system will deliver the increased independence and oversight which has been promised."

He added: “Much of the important detail about the way the new legislation will work is to be contained in a set of codes of practice. We echo the calls of other parliamentary committees that these should be published alongside the bill."

Jim Killock, executive director of the Open Rights Group, commented: "This is the third report that criticises the Investigatory Powers Bill, showing a troubling lack of clarity and evidence for the powers that are being demanded. Theresa May can no longer claim that this is a 'clear and comprehensible' piece of legislation.

"The Home Office needs to address the recommendations of all three reports and undertake a major re-write of the bill before it is laid before Parliament."

The Law Society of Scotland welcomed a recommendation in the report that legal professional privilege should be recognised and protected in the bill. President Christine McLintock said: “Ensuring our security as a nation and as individuals is vital; however legal professional privilege is key to the rule of law and is essential to the administration of justice. It ensures that a lawyer and client can exchange information without fear of it becoming known to a third party, without the clear permission of the client – unless of course the communications have any criminal purpose in which case the protection does not apply under existing powers.

“In our response to the Joint Select Committee call for written evidence recently, we emphasised our view that legal professional privilege should be expressly protected within proposed legislation rather than through a code of practice, as had been included in the draft bill in an attempt to mitigate against any possible abuse of the powers where ‘sensitive professions’, including lawyers, are concerned.

“All other legislation which relates to investigatory powers expressly provides for legal professional privilege and we fully support the joint committee’s view that it should be included in the face of the bill."

Click here to access the committee's report.