Public Services

Initial judicial reckoning for Investigatory Powers Act expected in New Year

Neil Merrett Published 30 November 2016

Campaign groups are reviewing how best to challenge key provision in new legislation that received Royal Assent on Tuesday - formalising surveillance powers in wider public sector


Privacy campaigners and civil rights groups are looking at how best to challenge the Investigatory Powers Act in the courts, with the government potentially having to enact changes to the new law from a pending High Court ruling now expected on December 21.

The controversial legislation, which has faced ongoing calls to be further amended to ensure greater clarity around its provisions, received Royal Assent this week. It sets out the state's ability to intercept and monitor communications and information.

The act will formalise several existing pieces of legislation around encryption and collecting bulk personal communications data into a single law, attracting significant controversy and criticism from rights groups, as well as MPs and peers.

According to the Home Office, the legislation also introduces a new power relating to Internet Connection Records that would record web sites or instant messaging publications accessed online by individuals.

In a statement, the government has pledged to introduce a so-called "double-lock" on powers that are deemed to be the most intrusive, which will require a senior judge's approval, An Investigatory Powers Commissioner that will view how powers are used under the legislation will also be put in place.

With the Act now passed, Home Secretary Amber Rudd claimed the legislation "provided unprecedented transparency and substantial privacy protection" over powers being used to intercept communications data.

"This government is clear that, at a time of heightened security threat, it is essential our law enforcement, security and intelligence services have the powers they need to keep people safe," she said.

"The internet presents new opportunities for terrorists and we must ensure we have the capabilities to confront this challenge. But it is also right that these powers are subject to strict safeguards and rigorous oversight."

As well as intelligence and security-focused organisations such as GCHQ, a number of public sector organisations including central government departments, police services and specific governors in the Northern Ireland Prison Service will be able to try and obtain data under the law.

In each case, the legislation set outs the minimum office, rank or position of individual in each organisation who is able to seek date. Yet the broad reach of the legislation across the public sector has raised concerns about potential misuse of the powers afforded.

Online free speech campaign organisation the Open Rights Group said that despite some improvements to oversight in the bill, unprecedented powers for the police and intelligence services has now been granted to view private communications or internet activity.

"[This will happen] whether or not we are suspected of a crime," said the organisation. "Theresa May has finally got her snoopers' charter and democracy in the UK is the worse for it."

Although the legislation is just days old, a judgement is expected in the New Year ruling on a ruling by the European Court of Justice (ECJ) in July that concluded personal communications data must only be retained for the purpose of combating serious crime.

The ECJ's provisional decision on the issue of data retention was a response to a filing by figures including Labour Party deputy leader Tom Watson and a number of other claimants against provisions in the bill. The name of Conservative MP David Davis, a fierce critic of the bill who has now appointed to the Cabinet of Prime Minister Theresa May, has since been removed from the filing.

A spokesperson for the Open Rights Group said the ruling could yet provide a route for a legal challenge to the act's provisions on data retention relating to factors such as requiring independent authorisation for the activity to take place.
Meanwhile, civil rights group Liberty has also raised concerns about the quality of safeguards that have now become UK law.

"The Home Secretary is right that the government has a duty to protect us, but these measures won't do the job. Instead they open every detail of every citizen's online life up to state eyes, drowning the authorities in data and putting innocent people's personal information at massive risk," said Liberty policy director Bella Sankey.

"This new law is world-leading - but only as a beacon for despots everywhere. The campaign for a surveillance law fit for the digital age continues, and must now move to the courts."

Related articles:

Parliament passes IP Bill as critics pledge further legal battle

Home Office: IP Bill 'on course' for royal assent in 2016

No sunset in Theresa May's shadowy surveillance world


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