The Government has made some small concessions over the Snoopers Charter (otherwise known as the The Investigatory Powers Act 2016), although these concessions go nowhere near far enough.
European Court of Justice (ECJ) To Rule On The Legality Of Bulk Data Collection
We set out the full background to the Snoopers Charter in our last article on the subject. As we pointed out in that article, in December 2016 the European Court of Justice (ECJ) ruled that the indiscriminate collection of communications data that the Snoopers Charter allows is unlawful. A desperate and weak UK Government then tried to argue that the ruling did not apply to areas of national security, and that the bulk collection of communications data was therefore permissible. The question as to whether or not it is was, was then addressed by the Investigatory Powers Tribunal (IPT) on the 8th September 2017. The Tribunal ruled that the ECJ will now need to specifically determine the issue. The IPT stated: “In our judgment, it is unclear whether, having regard to Article 4 TEU, and Article 1 (3) EPD, the activities of the intelligence services in relation to the acquisition and use of BCD for the purposes of national security: are to any extent governed by Union law, are subject to the requirements of Article 15(3) EPD in accordance with the decision in Watson, or, in accordance with Article 4 TEU and Article 1(3) EPD, and following the decisions in Parliament v Council and Ireland v Parliament, should be treated as outside the scope of the EPD, or are subject to the requirements stipulated by the decision in Watson at paragraphs 119 – 125 and, if so, to what extent, taking into account the essential necessity of the SIAs to use bulk acquisition and automated processing techniques to protect national security and the extent to which such capabilities, if otherwise compliant with the ECHR, may be critically impeded by the imposition of such requirements.”
Hence, fearing a humiliating defeat at the ECJ (and separately in a case to be heard by the Court of Appeal – both cases to be heard in February 2018), the UK Government has now made some concessions over the Snoopers Charter in an feeble and belated attempt to comply with the ECJ’s ruling from December 2016.
The Government’s Concessions Over The Snoopers Charter
The UK Government has proposed the following concessions over the Snoopers Charter:-
- A 7 week consultation on proposed changes to the Snoopers Charter
- The police and over 600 hundred other public bodies will supposedly no longer be able to self-authorise access to (i.e. snoop into) peoples communications data. Instead, they will have to apply to a new body, to be called the ‘Office for Communications Data Authorisation’. How Kafkaesque!. For cynics, their cynicism is well placed. This extremely expensive new quango will be engaged in nothing more than a rubber stamping exercise, with absolutely no oversight involved or proper consideration given whatsoever to the applications they receive. Moreover, as usual, there is a get out clause for those who are determined to self-authorise, as the 600+ public bodies who are able to snoop into your communications data will still be able to do so by using the excuse that they felt that it was a “validly established urgency” – a concept that has been deliberately left undefined. Pure sophistry!
- Confining the use of communications data to ‘serious crimes’ punishable by a prison sentence of at least 6 months. But here we go again. ‘Serious crimes’ are usually defined as punishable by a prison sentence of a least 3 years. The Snoopers Charter was justified by the Government on the back of concerns about terrorism. However, the reality is that the use of the terrorism pretext was a mask that was used by the Government to hide its true intentions – to snoop into all aspects of the public’s private lives. Keeping the bar as low as 6 months would still enable the Government to get away with doing that. The only real concession that the Government has made in this area, is that they have removed tax collecting, financial services regulation, and public health as reasons for snooping into peoples communications data.
Reaction To The Government Concessions
Tom Watson, who along with David Davis, launched the legal challenge which led to the ECJ ruling said that the concessions over the Snoopers Charter did not go far enough. He stated: “The current legislation fails to protect people’s fundamental rights or respect the rule of law. That’s what my legal challenge proved and I’m glad Amber Rudd is making……concessions today. But I will be asking the court to go further, because today’s proposals from the Home Office are still flawed. Ministers aren’t above the law – they don’t get to pick and choose which rights violations they address and they can’t haggle with the courts to avoid properly protecting people’s freedom. All of the fundamental safeguards demanded by the court must now be implemented.”
Liberty, who have launched judicial review proceedings against the Government over the Snoopers Charter, called the Government concessions “half-baked“. Liberty’s senior advocacy officer, Silkie Carlo, stated: “This is window dressing for indiscriminate surveillance of the public, when ministers should be getting on with changing the law. We warned the government from the start that the authoritarian surveillance powers in the Investigatory Powers Act were unlawful. It should be a source of deep embarrassment that, less than a year after it passed, ministers have had to launch a public consultation asking for help to make it comply with people’s basic rights.”