Beware Government "concessions" on surveillance

Posted by Mairi Clare Rodgers on 02 November 2015

Judicial authorisation: the growing consensus

Voices from across the spectrum are calling for judicial authorisation on surveillance requests

Last week, our very own James and Jane Bonds opened their doors to the Times newspaper and on Sunday we had the denouement: the Great Government Climbdown. “We’ve listened” they told us and – although they know that extensive powers are desperately needed – they understood that we, the people, need reassurance that they would be used in a “necessary, proportionate and accountable way”.

“Theresa May forced to backtrack on internet snooping plans” trumpeted the headlines.  Police wouldn’t be given full access to our internet history, there would be no ban on encryption and UK communication service providers would not be asked to capture and store internet traffic from US-based companies. So victory for privacy campaigners everywhere!

Except it isn’t.

An invisible climbdown

They say that the three rules of sleight of hand are practice, practice and more practice – and here at Liberty we’ve seen so many Government attempts at misdirection over the years that they’d have to get up pretty early in the morning to catch us out.  So, in case of doubt, this self-proclaimed volte-face is mere spin – a well-worn tactic from the Home Office to ask for the most outrageous powers so that even the thinnest sliver of a concession appears reasonable.

In fact, all the Home Secretary has announced so far is that they’ve decided to discard powers which were legally unenforceable and drop proposals which even the police were privately telling them were not going to be of much practical use anyway.

And as for the promise that our internet use records will only be available subject to safeguards, well this is a convoluted way of saying, for the very first time, all our records are going to be stored and made accessible to the State. Some climbdown.

Safeguard by judges

The huge elephant in the room, which the Government is pointedly ignoring, is judicial authorisation of surveillance requests.  This is the most basic safeguard which they could propose. A huge number of democratic countries make use of judges in signing off surveillance – Australia, Canada and the USA among them.  Here, senior politicians sign off on the requests.  

As Sir Keir Starmer – former DPP – said, it’s a classic judge test “ it necessary? Is it proportionate? Is it focused on the right person?”  If the authorities need a judge’s warrant before they search our homes, why not before the equal or greater intrusion of accessing our private communications? 

Our failure to implement prior judicial authorisation leaves us looking increasingly isolated and outdated, even within our own borders: a homegrown consensus includes former heads of both MI5, GCHQ, ACPO, the former MET police director of intelligence, the Government’s reviewer of terror legislation as well as parliamentarians across the political spectrum.  

The State have spied on Doreen Lawrence, human rights groups, journalists, torture victims and social justice campaigners – this is what happens when our authorities are left to grant their own surveillance requests.  

The upcoming draft Investigatory Powers Bill is a once in a generation opportunity to shape our laws for the better, so they protect security and defend privacy. We’ll be responding to the draft Bill on Wednesday, and we hope you will be too…