Investigatory Powers Bill 2nd Reading Part 3: Joanna Cherry

The SNP's Joanna Cherry QC's speech in the debate on the day of the 2nd reading of the Investigatory Powers Bill in the House of Commons on 15 March 2016 began at 3.04pm. The SNP are substantively opposed to the Bill in its current form but abstained the vote later in the day.

Ms Cherry opened by expressing grave concerns about the Bill whilst noting the law in this area needs a thorough overhaul and that the police and security services need appropriate powers to fight terrorism and serious crime. These powers have to be necessary, proportionate and compatible with the rule of law and the right to privacy. The IPBill is seriously deficient on all these fronts and hence the SNP could not support it.

She went on to note the SNP feel the IP Bill is a "rush job" being pressed forward with insufficient time for scrutiny, when the ink was barely dry on the three parliamentary reports criticising the draft Bill. Just the previous week, the UN's special rapporteur on the right to privacy published a report seriously and specifically questioning the IP Bill (paragraphs 39 to 42) and its failure to meet standards set out in judgments of both the European Court of Human Rights and The Court of Justice of the European Union. The Tory jeering squad got lively at this point and Ms Cherry cheerily admonished them suggesting they might like to read the special rapporteur's report. It contains a careful explanation of recent case law and can't simply be dismissed lightly.

Good practice suggests surveillance should be targeted and facilitating warrants should be focused, specific and rooted (nearly said "rotted" there which would have been an unfortunate slip) in reasonable suspicion. Yet the so-called targeted interception warrants enable spying on groups of people or multiple organisations or premises. Bulk interception warrants require neither specificity nor reasonable suspicion. We're not talking merely about mass surveillance with this Bill but suspicionless surveillance. The national security test in the Bill doesn't actually even require a national security threat.

The powers to retain internet connection records and other bulk powers in the IP Bill go way beyond what other western democracies do and will set a very bad precedent likely to be copied elsewhere. Denmark's equivalent of ICRs didn't work and were abandoned. The US found bulk data collection unconstitutional and ineffective for counter terrorism. The government have to justify - and have failed to do so - why it alone should be allowed powers way beyond those available to other western governments.

The SNP, Ms Cherry continued, did not believe the government were providing sufficient time for consideration of the Bill. The Home Office published about 1200 pages of documents relating to the IPBill on 1 March. The suspicion was they were dumping large tranches of documents and rushing the parliamentary process to avoid proper parliamentary scrutiny.

The Home Secretary interrupted, rather irritated, complaining that she had made an effort to publish all necessary documents because opposition parties are always moaning the government fails to do so when publishing Bills. Ms Cherry responded that Mrs May misunderstood her concern - not that the documents had been published but that insufficient time was being given to scrutinise them. The SNP would not be bullied into supporting a mass surveillance Bill of dubious legality just to avoid being labelled soft on terror. They would not tolerate bogus charges of this nature for the crime of requiring proper parliamentary scrutiny of and justification for expansive surveillance powers.

The SNP's concerns, Ms Cherry said, were widely shared by many MPs on all sides, parliamentary committees, industry and the UN special rapporteur and 200+ lawyers that wrote to the Guardian. Another interruption came at this point from the government benches declaring the lawyers wrong. Ms Cherry suggested a look at the distinguished list of signatories, experts whose opinion deserves some respect.

That letter to the Guardian highlighted the problem of bulk interception. Generalised initial interception is the issue - this generality, lack of focus and specificity is what the lawyers are worried about.

Dominic Grieve intervened to agree if what was happening was the kind of generalised interception of electronic communications in bulk, outlined in the Guardian letter, it would be "a very serious matter indeed". He does not believe that this is what the IP Bill facilitates.

Ms Cherry accepted his sincere belief to that effect but disagreed with his interpretation of the Bill as do the 200+ lawyers and many others. And if she and many respected lawyers can have varied interpretations of such critical laws it highlights the importance of having clear and focused language on the face of the Bill. Vague language poorly understood can be twisted to the desires of those in authority in future and has been in this area in the past.

If the government want "world beating" legislation they can't simply go around violating international standards. The UK is still bound by the European Court of Justice and the European Court of Human Rights and the IP Act as it will become will likely be challenged and possibly struck down in those arenas. The government and their supporters may choose to follow Russia's approach from December 2015 and pass a law to avoid complying with international human rights standards but Ms Cherry wouldn't recommend it.

Ms Cherry challenged the oft repeated notion that we gain more security by sacrificing privacy. It is simply not backed up by any evidence. The government responded to the Intelligence and Security Committee call for privacy to form the backbone of the Bill by adding the word privacy to the title of part 1. That comes across as somewhat cynical. And mass data collection is ineffective and counter-productive. Swamping electronic haystacks with more hay makes it harder for analysts to find the needles. We need to do security more intelligently not blanket data collection and suspicionless surveillance.

The SNP have many problems with the IP Bill in its current form but she wanted to focus on four of these given her limited time.

1. the legal thresholds for surveillance
2. the authorisation process
3. the provision for the collection of internet connection records
4. bulk powers

Regarding legal thresholds for surveillance, the Government essentially want to subsume RIPA’s three broad, vague and "dangerously undefined" grounds for surveillance into the IP Bill. She welcomed the move in the direction of some judicial oversight but want the commissioners to have substantive oversight, not just judicial review, powers - not a double lock but an equal lock process. In technical legal terms she is concerned a less intensive standard of judicial review will be applied—more Wednesbury reasonableness than strict necessity and proportionality. Why not go as far as other countries like Australia, Canada and the US on judicial oversight? This would additionally help solicit cooperation from the big US technology firms.

There is a false assertion made repeatedly that ministers are accountable to parliament in the issuing of warrants. That is not the case and won't be here because warrants are generalised and will not be disclosed. Besides, disclosing the existence of a warrant is and will be a criminal offence under the IPBill. And requests in the House of Commons for information on warrants are brushed off with the national security excuse. Ministers are not accountable to the parliament for warrants, practically politically or democratically. So she doubts the IP Bill authorisation of warrants processes meet European court standards requiring independent judicial supervision.

On internet connection records, the case made for their collection and retention in bulk is fatally flawed. ICRs cannot be equated to itemised phone bills. ICRs are quite fantastically intrusive and David Anderson has pointed out they would not be countenanced in Germany, Canada or the US.

"What the internet connection records will show is a detailed record of all of the internet connections of every person in the United Kingdom. There would be a 12-month log of websites visited, communication software used, system updates downloaded, desktop widgets, every mobile app used and logs of any other devices connected to the internet. I am advised that that includes baby monitors, games consoles, digital cameras and e-book readers. That is fantastically intrusive. As has been said, many public authorities will have access to these internet connection records, including Her Majesty’s Revenue and Customs, and the Department for Work and Pensions, and it will be access without a warrant. Do we really want to go that far? There is no other “Five Eyes” country that has gone as far. David Anderson QC said: 

“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US”
and therefore, he said, “a high degree of caution” should be in order."

Finally she turned to bulk power, suggesting they are a radical departure from both common law and human rights law. Parliament has never before been asked to vote on or approve bulk powers of this nature. They have been deployed in secret, something we only became aware of because of Edward Snowden. Whatever you think of Snowden, she shares the serious concerns of the UN Special Rapporteur on Privacy that these bulk powers are probably the most worrying part of the IP Bill. She quotes from paragraph 39 of his report:

"It would appear that the serious and possibly unintended consequences of legitimising bulk interception and bulk hacking are not being fully appreciated by the UK Government. Bearing in mind the huge influence that UK legislation still has in over 25% of the UN’s members states that still form part of the Commonwealth, as well as its proud tradition as a democracy which was one of the founders of leading regional human rights bodies such as the Council of Europe, the SRP encourages the UK Government to take this golden opportunity to set a good example and step back from taking disproportionate measures which may have negative ramifications far beyond the shores of the United Kingdom.  More specifically, the SRP invites the UK Government to show greater commitment to protecting the fundamental right to privacy of its own citizens and those of others and also to desist from setting a bad example to other states by continuing to propose measures, especially bulk interception and bulk hacking, which prima facie fail the standards of several UK Parliamentary Committees, run counter to the most recent judgements of the European Court of Justice and the European Court of Human Rights, and undermine the spirit of the very right to privacy."

She then concluded:

"The SNP is in favour of targeted surveillance. We welcome the double lock on judicial authorisation as an improvement, but it does not go far enough. Our concern is, quite clearly, that many of the powers sought in this Bill are of dubious legality and go further than other western democracies without sufficient justification. It is for that reason that we cannot give this Bill, in its current form, our full support. We will work with others to attempt to amend it extensively. Today, we shall abstain, but if the Bill is not amended to our satisfaction, we reserve the right to vote it down at a later stage."