Investigatory Powers Bill 2nd Reading Part 2: Dominic Grieve

Though I did not agree with them in their entirety, the contributions of Conservative Dominic Grieve and the SNP's Joanna Cherry were amongst the few well-informed inputs to the debate on the day of the 2nd reading of the Investigatory Powers Bill in the House of Commons on 15 March 2016. Mr Grieve's speech began at 2.53pm.

He explained the Intelligence and Security Committee, which he chairs, is satisfied that the government are justified, in broad terms, in seeking the powers in the Bill, including the bulk powers. The ISC also welcome the government's attempts through the Bill to bring greater transparency to surveillance powers and are keen to get away from the incomprehensibility of the Regulation of Investigatory Powers Act 2000.

The nature of the work done by the intelligence services, he said, means many of their powers need to be taken on trust. His experience as chair of the ISC and as Attorney General is that the agencies consistently act to high ethical standards. Yet even supposing, which to best of his knowledge is the case, none of these powers had ever been misused, it does not mean there should be no safeguards to prevent such misuse. Times and regimes change and standards might slip.

The committee were appreciative of the government making an effort to address some of their concerns. Mr Grieve welcomed movement relating to legal professional privilege but suspected there is still some way to go with this. The ISC were "disappointed that the Bill does not include a clear statement on overarching privacy protections" and the protections that are in it are piecemeal and unlikely to reassure the public. It was a missed opportunity in relation to such reassurance and the chance to consolidate all legislation relating to investigatory powers operations in one place. The government are leaving some of these powers in other legislation which will not help with transparency.

One of the ISCs most pressing concerns was the lack of consistency on safeguards relating to authorisation procedures for the examination of communications data. The government response to this was that it would be too burdensome for senior officers if they make the processes consistent. The unspoken suggestion from government is that we can rely on the authorities not to misbehave.

The ISC were also seriously concerned about the authorisation process for bulk equipment interference. They have since accepted reassurance from the government that there will be consistency between the authorisation of bulk equipment interference and bulk interception. But in both cases they are withholding their stamp of approval until they see satisfactory detailed safeguards.

A third substantial concern of the ISC was the authorisation process around bulk personal datasets. The bulk of this data relates to innocent people.  There can be no substantive oversight of the mass intrusion into the lives of vast numbers of innocent people, if class based authorisations remain in the Bill. Ministers should authorise retention of personal datasets. The government rejected this idea as "too onerous" for ministers. The ISC responded that there was therefore an opportunity to expand the role of investigatory powers commissioners in this area. Class based authorisation must be removed from the Bill and it is not an excuse to say they're needed but too difficult to monitor with the requisite degree of care to avoid abuse.

There were a whole collection of other issues Mr Grieve did not have time, in his alloted 8 minutes, to put to the House but he did want to conclude with two further important ones. Firstly the ISC has not seen the full list of operational purposes underpinning the bulk powers in the IP Bill. This is absolutely fundamental and he hopes the committee will get to see this list before the Bill gets passed and becomes law. They had seen examples of operational purposes which appeared valid as far as they went.

The last concern he raised was that the ISC felt it would be appropriate if they were given the power to raise any concerns they might develop over the use of investigatory powers to the Investigatory Powers Tribunal.

Mr Grieve rounded off by saying the Bill was important and well-intentioned and he would support the government on the 2nd reading but that there were still improvements to be made to respect fundamental liberties.

The impression I came away with is that Mr Grieve is well intentioned, has a good grasp of the legal issues but not necessarily of the technology. A collection of briefings from a smart and articulate collection of techies might go a long way to helping. I'd suggest perhaps Ross Anderson, John Naughton, Richard Clayton and Ian Brown to begin with.

And if any Open University T171 alumni trip across this piece, there was a lovely animation in that course demonstrating the difference between circuit and packet switching that could prove very instructive for any MP struggling with the notion that there is a difference beween itemised phone bills and internet connection records. There's a pdf capture of the website here. The animations I'm interested in would have come at the end of Module 2 Section 2.7 of that version of the course. If anyone has portable versions of those animations or links to archived versions I'd appreciate a copy or pointer.