On 30 November 2017 the Home Office issued an open consultation regarding proposed amendments to the UK Investigatory Powers Act 2016. These amendments were proposed in response to an adverse judgment by the Court of Justice of the European Union in Joined Cases C-203/15 and C-698/15.
The full scope of the proposed amendments are discussed in the Government’s Consultation Document.
Dr. Daragh Murray, Prof. Pete Fussey, and Prof. Maurice Sunkin QC submitted written evidence, focusing on the Government’s proposal to amend the statutory purposes for which communications data may be retained or acquired. It argues that the Government’s proposals are overly broad, add uncertainty to the law, and have not been adequately justified.
The submission argues that the burden lies on the Government to demonstrate the strict necessity of bulk communications powers. This involves: clarifying why such powers are strictly necessary, and undertaking a proportionality assessment that demonstrates why existing techniques are inadequate. This will in turn require that the circumstances in which these powers may be used be strictly delimited. In this regard the focus should be on the exceptional need for the powers. Effective oversight measures must also be in place to assess the strict necessity of any such measures; the establishment of the Investigatory Powers Commission is a welcome first step in this regard.
The submission does not suggest that the retention and acquisition of communications data can never occur. It is conceivable that, in certain circumstances, these powers may satisfy the strict necessity test, and may be necessary to protect human rights. However, the burden lies with the Government to make the case for such powers and to clearly delimit the circumstances in which they should be employed. In doing so, the focus should be on identifying those exceptional circumstances, where alternative techniques are inadequate.
Ultimately, the Government’s proposals have not been shown to be strictly necessary. They are almost certain to be held incompatible with the Government’s legal obligations relating to strict necessity. The proposals are uncertain in their scope and may be applied broadly. As such, they are incapable of providing relevant authorities with appropriate guidance, do not provide the population with sufficient clarity, and present risk of abuse. It is essential that law be clear. The current proposals fall short in this regard.
The full text of the submission is available here.