Investigatory Powers Bill: Government has set review of bulk powers an impossible task

Posted by Bella Sankey on 22 June 2016

As the Investigatory Powers Bill has made its way through Parliament, the Government has been roundly and repeatedly criticised for failing to justify the bulk surveillance powers it contains.

In February, the Bill’s Joint Committee called on the Government to produce evidence to support its claim that these unprecedented and disturbingly intrusive powers are needed – and demanded an independent assessment of that evidence.

And, during the Bill’s Second Reading, there was broad consensus that the Government’s case studies simply did not stand up to scrutiny.

Shadow Home Secretary Andy Burnham told the Commons: “it is fair to say that the detail has failed to convince everyone. It is still for the Government to convince people that the powers are needed.

The SNP’s Joanna Cherry branded the evidence “anecdotal and hypothetical”, saying it did not constitute “independent evaluation of the utility of bulk powers”.

No independent evidence

Here at Liberty, we have long been concerned at the lack of any independent evidence that mass surveillance keeps us safe. If anything, whistle-blowers’ testimony and first-hand evidence increasingly suggests it actually makes it harder for security and law enforcement agencies to do their jobs effectively.

Of the Five Eyes nations – an intelligence alliance comprising the UK, USA, Australia, Canada and New Zealand – only the USA has commissioned independent expert panels to consider the necessity of bulk powers.

They found the US domestic bulk phone records programme did not contribute to a single counter-terrorism investigation in any way that targeted methods could not have done – so Congress shut it down.

Basic requirements of a review

Liberty cautiously welcomed the Government’s belated concession earlier this month that it would permit a review of its evidential basis for bulk.

We set out the basic framework and requirements we believe are required to make that review effective and garner the confidence of politicians and public alike:

  • Those conducting the review must be completely impartial, with no preconceived ideas about its outcome.
  • It must be – and be seen to be – completely independent of the Government and those who would use the powers.
  • Reviewers need a diverse range of specialist skills and experience to properly challenge the information they received.
  • And they must be given enough time to review the case for each of the Bill’s many bulk powers in detail.

A Question of Trust

Heading the review is David Anderson QC, the Government’s well-respected Reviewer of Terrorism Legislation.

During his five-year tenure, this already challenging role has mushroomed as the Government has increasingly requested the Reviewer’s comments on matters beyond his statutory remit. It is to Mr Anderson’s great credit that he has steered a steady course through difficult waters.

In 2014, the Reviewer was tasked with scrutinising the operation and regulation of investigatory powers. In his report, A Question of Trust, he made extensive, detailed recommendations.

While Mr Anderson was not tasked to evaluate the necessity of bulk powers in that review, after analysing case studies provided by GCHQ he concluded that: “They leave me in not the slightest doubt that bulk interception, as it is currently practised, has a valuable role to play in protecting national security”.

Many criticised those case studies at the time, saying they simply did not contain sufficient information to lead to that unequivocal conclusion. Parliament’s insistence on a further review supports that.

When asked about this directly on Twitter, Mr Anderson responded: “I am not too proud to change my mind”. This is welcome – a truly open mind is a vital starting point for this hugely important review.

But, perhaps more importantly, the fact that Mr Anderson has expressed such a clear-cut view on the one of the review’s core questions creates the inevitable perception – however right or wrong – of a mind already made up, at the very least on the question of intercept powers.

Institutional independence

Anyone reviewing these powers must of course have security clearance. But the fact that the Government has delayed convening the review until this late date, and granted such a small window for its completion, means the pool of witnesses available to Mr Anderson is reduced to people with clearance – and therefore skewed toward those with current or recent ties to state institutions.

Initial fears of a flawed review have grown since the announcement of two of Mr Anderson’s appointed advisers: Robert Nowill, GCHQ’s former Director of Technology and Engineering, and Gordon Meldrum, the National Crime Agency’s former Director of Intelligence.

A panel tasked with this sort of inquiry must be seen as institutionally independent of the security and law enforcement agencies. With two of three advisers so closely associated with the agencies, this one is conspicuously not.

Too little time

With the Lords due to debate the Investigatory Powers Bill on 27 June, and Committee Stage debates in July, the review team are expected to report during the summer. The comparable review in the US looked at just one bulk power – and took six months to report.

Three years after the Snowden revelations first exposed the true scale of undemocratic and unlawful state mass surveillance to the British public, it is difficult to believe the Government is acting in good faith.

Anything less than a thorough, comprehensive and procedurally irreproachable review will do a disservice to this important public debate. But, by undermining due process from the start, the Government has set the panel what looks like an impossible task.