Bad day for Britain's spies as intelligence watchdog grows teeth

Intercept: The draft investigatory powers bill would give authorities sweeping new powers to spy on electronic messaging
Intercept: The draft investigatory powers bill would give authorities sweeping new powers to spy on electronic messaging
Ian Dunt By

Intelligence agencies will be looking at today's intelligence and security committee report with horror. Back in the day, you could trust the committee to pay lip service to scrutiny but basically pass everything through on the nod. Malcolm Rifkind, the former chair, always claimed that it was a tough interrogator of the agencies, but when they once deigned to hold the evidence session in public, MPs were hardly able to stop themselves from getting the spies a cup of tea. To say the questions were soft would be an understatement. The Huffington Post ran with the headline 'Pussies Galore'.

That all changed with the removal of Rifkind, who stepped down as an MP at the election. He was replaced by Dominic Grieve, one of parliament's staunchest defenders of civil liberties and human rights. There are some other unusual figures on the committee as well, including SNP Westminster leader Angus Robertson, fiercely independent Labour MP Gisela Stuart, and socialist Fiona Mactaggart, who has a strong record defending civil liberties and immigrant rights. There are still some establishment figures, like the Marquess of Lothian and Lord Janvrin, but it’s a different beast.

Its report today on the draft investigatory powers bill shows just how different it is and quite how beastly it intends to be to the home secretary. The bill allows for authorities to collect bulk data about internet users' habits and lets intelligence agencies target interception at electronic communication. It is the snoopers' charter in all but name. Under the old committee, it would have gone ahead with a pat on the back and some lip service about scrutiny. Under this committee, it is basically torn to pieces.

The committee raises three major problems with the draft bill: firstly, that the powers it is asking for - and the supposed safeguards for the public - are unclear; secondly, that there are a lack of privacy protections; thirdly, that it would give authorities excessive powers.


SNP Westminster leader Angus Robertson is one of the new MPs on the committee

Lack of clarity

The report makes it clear that every aspect of the bill is beset by muddled demands and an unclear regulatory regime. The government ignored the committee's request that all the state's intrusive capabilities are put into the one bill, meaning the various powers are scattered all over the legislative books. It’s useful for authorities to keep it that way, because it makes it hard for anyone but lawyers to know exactly what powers they do or do not have.

But the lack of clarity seems to extend to the intentions of the people writing up the bill. In relatively polite terms, the committee basically tell the government that they don't know what they're doing. The report says:

"The issues under consideration are undoubtedly complex, however it has been evident that even those working on the legislation have not always been clear as to what the provisions are intended to achieve. The draft bill appears to have suffered from a lack of sufficient time and preparation."

Even the way the state must treat the communications data it has obtained is confused, with the government preferring to rely on the murky definition of "good practice" to give itself maximum leeway. It’s precisely this type of gentleman's assurance the Rifkind committee always gave way on. The new committee does not.

"The approach to the examination of communications data is currently inconsistent and confusing," it finds. "The committee considers it essential that the same safeguards are applied to the examination of all communications data, irrespective of how it has been acquired. This must be clearly set out on the face of the legislation: it is not sufficient to rely on policy and good practice."

Home secretary Theresa May now has a critical independent reviewer of terror laws and intelligence committee to navigate

Lack of Privacy Protections

Theresa May is stuck in a pincer between two scrutiny institutions which used to be reliably loyal to the government. The first is the intelligence committee. The second is the independent reviewer of terrorism laws. This used to be Lord Carlile, who was arguably even more hawkish on terror legislation than the governments he was meant to be scrutinising. He was replaced by David Anderson, who seems to genuinely live up to his job description. His report into the draft bill was a major setback for May and demanded all sorts of judicial scrutiny.

May threw most of it in the bin but she did make concessions on an Investigatory Powers Commission to oversee the use of the powers. Today, that pincer movement strikes again, with the intelligence committee warning it isn't enough.

"We had expected to find universal privacy protections applied consistently throughout, or at least an overarching statement at the forefront of the legislation," the committee says. "Instead, the draft bill adopts a rather piecemeal approach, which lacks clarity and undermines the importance of the safeguards associated with these powers."

They recommend a whole new section of the legislation dedicated to "overarching privacy protections". They add: "This will ensure that privacy is an integral part of the legislation rather than an add-on."

It's clear May has a problem here. The two main bodies tasked with scrutinising state surveillance powers are demanding greater safeguards. If she presses ahead without them, she will be doing so against the explicit demands of the organisations tasked with overseeing her.

MI5 boss Andrew Parker's grilling by the intelligence committee under chair Malcolm Rifkind convinced many observers that it lacked teeth

Excessive powers

With or without the safeguards, the committee found the powers demanded by the bill far exceeded what the government could show it needed. They found no reason at all to allow 'bulk' interference warrants, but instead said the standard 'targeted' warrants could be drawn "sufficiently broadly" that they were unnecessary.

They also raised the alarm about plans for 'class' warrants, which would allow intelligence agencies to obtain any number of individual's private information at a time. They'd do this by requesting a type of information – for instance on travel data - regardless of how many people it would include. "Given that each bulk personal dataset potentially contains personal information about a large number of individuals - the majority of whom will not be of any interest to the agencies - the committee considers that each dataset is sufficiently intrusive that it should require a specific warrant," the committee found.

In both cases, it’s clear the agencies were demanding sweeping powers to maximise their room for manoeuvre in the future. In both cases, the committee shot them down.

May and the intelligence agencies have a real problem here. Her independent reviewer of terror legislation is actually independently reviewing terror legislation and her committee tasked with scrutinising the intelligence agencies is actually scrutinising the intelligence agencies. It’s a brave new world for civil liberties and privacy campaigners. The parts of the system tasked with tilting the balance of power away from the spies actually seem to be doing the thing they are supposed to do.

 

 

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