A bill allowing for such extensive powers to intercept and store communications was inevitably going to incite fierce debate within political and legal spheres. Perhaps the Home Secretary’s foreword to the Draft Bill itself gave an indication of what a provocative topic it would become:
“The means available to criminals, terrorists and hostile foreign states to co-ordinate, inspire and to execute their plans are evolving. Communications technologies that cross communications platforms and international borders increasingly allow those who would do us harm the opportunity to evade detection.”
The language is certainly powerful, perhaps even provocative. There can be no doubt that the law must evolve to meet the challenges of our complicated digital age, but those of us who work within the criminal justice system will no doubt shudder at the thought of yet another unscrutinised bill being rushed through parliament; more ‘knee-jerk’ legislation that will, in it’s current form, lead to confusion, injustice and lengthy legal challenge.
Was David Davis right when he warned in March of this year that the Bill was being rushed through Parliament to avoid scrutiny? Perhaps so when one considers that all three parliamentary reports on the draft Bill concluded that it did not meet the requirements of clarity, consistency and coherence. Whilst those reports called for new drafting, further safeguards, further evidence and further consultation; the government responded just weeks later with a Bill that contained even more expansive powers than the earlier draft.
The Home Secretary promised that the Bill will ensure that “the use of powers is subject to robust safeguards and visible, effective oversight.” However, what was recently made clear by way of an open letter which was published the Guardian, is that leading lawyers, judges and academics disagree. Within that letter some 200 senior lawyers described the Bill as ‘not being fit for purpose.’
For many years lawyers have grappled with a number of bills rushed through Parliament that were afforded insufficient time for proper scrutiny (particularly those made in response to the growing threat of terrorism.) Perhaps those lawyers are best placed to foresee the problems that will inevitably flow from the rushing of such significant legislative change.
The new powers will allow the authorities to record private communications; to know where you are, who you are speaking to and even what you are saying. All this without any ‘reasonable suspicion’ of wrong-doing. Such laws will not just give the Home Secretary herself access but the police and a variety of government departments too.
In the reading on March 23rd, Ken Clark said that we need to be “vigilant against some future administration abusing the powers” and pointed out that “all kinds of curious public bodies” would be able to gain access to huge amounts of extra information. But even leaving those “curious public bodies” aside, consider for one moment how valuable that information would be to those who seek to harm us and to those from whom the government are seeking to protect us? It is well known that data is valuable to criminals; our financial data for example is at constant risk of being stolen and exploited. Imagine the value of the data sought to be intercepted and retained under such expansive new powers.
There have been many calls for the government to re-visit various parts of the Bill to address the raft of concerns. Andy Burnham has made clear that unless very many specific concerns are met, Labour will “not co-operate with getting the Bill on the statute book by the end of the year.”
There can be no doubt that the provisions allowing for bulk interception and equipment interference warrants are of significant concern, which is why they have attracted perhaps the fiercest criticism. But for someone working on the ground within the legal profession, the ill-defined provisions concerning Legal Professional Privilege are also of grave concern. Here the government have been afforded an opportunity to provide a statutory safeguard for what is an essential protection in a free society governed by the Rule of Law. As the Bar Council reminded the Joint Committee “The privilege is that of the client, and failure to protect that right against the state amounts to a significant inroad into a long-standing principle, which has formed an important foundation of our rule of law.” The erosion of that privilege will inevitably impede the right to a fair trial and lead to the obstruction of justice. The only safeguard within the Bill covering LPP is that there must be “exceptional and compelling” circumstances (clauses 25, 100, 135 & 171). Any further definition or clarification is dangerously absent. Perhaps this is another omission that will lead to the unnecessary and expensive litigation predicted by leading lawyers?
We live in an evolving digital age and it is right that we are in need of a new legal framework that balances powers with proper safeguards. There can be no doubt that changes need to be made for the law to adapt, which is no doubt why the opposition chose to stand back rather than oppose the passing of the Bill through the commons. However, instead of taking the lead in enacting laws to protect its citizens, this government is instead running the risk of being the first to permit levels of intrusion that threaten its peoples’ fundamental right to privacy. What a victory that would be to the ‘criminals, terrorists and hostile foreign states” who seek to undermine our democratic values.
Jessica Sobey is a Barrister at leading criminal defence firm Stokoe Partnership Solicitors.
 Written Evidence on Investigatory Powers Bill – Bar Council, 21 Dec 2015