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Investigatory Powers Bill: Spooks willingly entering the light?

Not quite the end of their prerogrative to pry

IPB The redrafted Investigatory Powers bill is about to return to Parliament, accompanied by complaints that the government is trying to rush it through, threats of Conservative backbench rebellions and a withdrawal of Labour support. It could almost be the European Union referendum.

Arguments over process and party splits are not the only things the IP bill shares with the EU vote. In both, the big picture is more important than the detail.

If passed, the IP bill will mark the end of a 40-year shift for the surveillance of communications from secrecy to democratic oversight. Duncan Campbell revealed GCHQ’s existence in the media in May 1976 (PDF) – Bletchley Park had only been revealed in 1974.)

The government officially admitted it in 1983, and section 94 of the next year’s Telecommunications Act gave ministers the power to give secret directions to communications network providers. Late in 2015, home secretary Theresa May said this had authorised MI5’s bulk retention of data on domestic phone calls since September 2001.

Some go even further back. Sir David Omand, former director of GCHQ and the unofficial government spokesman at the Scrambling for Safety conference earlier this year, namechecked Elizabeth I’s principal secretary, Sir Francis Walsingham, who set up Her Majesty’s first Secret Service. From then until the late 20th century, British spying was carried out under the royal prerogative, Sir David said. “The Crown did whatever the Crown felt necessary in the circumstances of the day to secure the state.”

Parliament just authorised the budget.

Things changed in the 1980s due to a series of cases under the European Convention on Human Rights that forced the government to pass laws that authorised spying, a period Sir David called “legal compliance.” But the digital revolution and Snowden means this is no longer tenable.

“2016 has to be the year of reconciliation, has to be the year through the medium of this new bill we end up with a social compact in which after extensive public debate we end up with a new democratic licence to operate,” Sir David said. “It will be the first time, really, in 500 years that secret intelligence has been brought fully under the rule of law.”

When an activity is avowed rather than secret it becomes easier to challenge, both legally and politically. Those challenging may lose, but the fact such activities are public provides motivation for the government to make them resistant to challenges in the first place. It also makes life a bit easier for whistle-blowers, if the rules they say are being broken are public.

This may not sound like much compensation if the bill is tilted against privacy. “Just because things were happening outside the law and it is now proposed to put them inside the law, doesn’t mean that we’ve got the balance right,” Shami Chakrabarti, director of civil rights campaigner Liberty, told the same event.

However, there are greater pressures on the government to tone down this bill than amp it up. Scrambling for Safety was attended by several parliamentarians, who listened to detail on specific problems. These were covered again in parliamentary committee hearings, and three reports have been published between then and now by those committees. The science and technology committee discussed the potential £2bn annual cost of data harvesting on the tech industry.

The intelligence committee called for amendments and clarifications. And the bill’s joint committee made 86 recommendations, including that the government defines what an ‘internet connection record’ actually is and reviews the whole thing in five years’ time.

It would be surprising if the Home Office ignored all of this, not least because the redrafted bill then has to get through Parliament, which will take a dim view if its reports are ignored. In the Commons, the government has a working majority of just 17, including likely rebel David Davis. Shadow home secretary Andy Burnham has said he could withdraw Labour support for the bill if he feels there is insufficient time for scrutiny.

The shadow minister for immigration, refugees and security Keir Starmer reckons he sees the case for extended powers but they have to be “more transparent, more robust, than they were before.”

Starmer, who is leading for Labour on the bill, issued the Scrambling for Safety event with “an open invitation to work with me” on improving the bill; his contact details are here.

The Lords, where the government has no majority, has a reputation for defending civil liberties. David Cameron might recall how the Identity Cards Act was repeatedly delayed in 2006 by their Lordships.

Surprisingly, those calling for moderation apparently also include the staff of a large glass doughnut on the outskirts of Cheltenham. Terrorism legislation reviewer David Anderson QC believes that what it comes to judicial sign-off for interception: “The people who lobbied me hardest for independent authorisation, something that really passes muster internationally, is the intelligence agencies. It’s partly a question of recruitment for them,” he said.

It’s important to remember that Parliament has to pass legislation of some kind by the end of this year. Should it fail, then the security services’ authority for some kinds of surveillance under the Data Retention and Investigatory Powers Act 2014 lapses.

It will be surprising if the eventual Investigatory Powers Act does not sort out some of the flaws in its original draft. It will be even more surprising if it is rewritten to the extent that privacy campaigners are happy with it.

No matter what, though, it will represent British communications surveillance taking a further step on its long walk out of the shadows. ®

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