Open letter to UK MPs: Ensuring democratic scrutiny of UK surveillance law changes

Steve Peers

Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today's letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.

An open letter to all members of the House of Commons,

 

Dear Parliamentarian,

 

Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised

 

Actions Taken Under the Previous Government

 

During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.

 

Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterize the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.[1]

 

Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice.[2] The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.

 

The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’.[3] The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.[4]

 

The Way Ahead

 

The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.

 

As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.

 

This letter has been prepared and signed by 35 academic researchers. We are comprised of people from both sides of this issue - those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.  

 

Signatories

 

Andrew Murray (contact signatory)	Paul Bernal (contact signatory)
Professor of Law London School of Economics a.murray@lse.ac.uk	Lecturer in Information Technology, Intellectual Property and Media Law University of East Anglia Paul.Bernal@uea.ac.uk
Subhajit Basu Associate Professor University of Leeds	Sally Broughton Micova Deputy Director LSE Media Policy Project, Department of Media and Communications London School of Economics and Political Science
Abbe E.L. Brown Senior Lecturer School of Law University of Aberdeen	Ian Brown Professor of Information Security and Privacy Oxford Internet Institute
Ray Corrigan Senior Lecturer in Maths, Computing and Technology Open University	Angela Daly Postdoctoral Research Fellow Swinburne Institute for Social Research Swinburne University of Technology
Richard Danbury Postdoctoral Research Fellow Faculty of Law University of Cambridge	Catherine Easton Lancaster University School of Law
Lilian Edwards Professor of E-Governance Strathclyde University	Andres Guadamuz Senior Lecturer in Intellectual Property Law University of Sussex
Edina Harbinja Lecturer in Law University of Hertfordshire	Julia Hörnle Professor in Internet Law Queen Mary University of London
Theodore Konstadinides Senior Lecturer in Law University of Surrey	Douwe Korff Professor of International Law London Metropolitan University
Mark Leiser Postgraduate Researcher Strathclyde University	Orla Lynskey Assistant Professor of Law London School of Economics
David Mead Professor of UK Human Rights Law UEA Law School University of East Anglia	Robin Mansell Professor, Department of Media and Communication London School of Economics
Chris Marsden Professor of Law University of Sussex	Steve Peers Professor of Law University of Essex
Gavin Phillipson Professor, Law School University of Durham	Julia Powels Researcher Faculty of Law University of Cambridge
Andrew Puddephatt Executive Director Global Partners Digital	Judith Rauhofer Lecturer in IT Law University of Edinburgh
Chris Reed Professor of Electronic Commerce Law Queen Mary University of London	Burkhard Schafer Professor of Computational Legal Theory University of Edinburgh
Joseph Savirimuthu Senior Lecturer in Law University of Liverpool	Andrew Scott Associate Professor of Law London School of Economics
Peter Sommer Visiting Professor Cyber Security Centre, De Montfort University	Gavin Sutter Senior Lecturer in Media Law Queen Mary University of London
Judith Townend Director of the Centre for Law and Information Policy Institute of Advanced Legal Studies University of London	Asma Vranaki Post-Doctoral Researcher in Cloud Computing Queen Mary University of London
Lorna Woods Professor of Law University of Essex

 

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[1] http://bit.ly/1jNzlUz

[2] http://bit.ly/1yiXUZD

[3] http://bit.ly/1LfVFz3

[4] http://bit.ly/1S4RCdJ    

Letter to the Daily Telegraph: The need for the UK to opt in to the EAW

Steve Peers

The following is the text of a letter published in today's Daily Telegraph, and the subject of a  front page story in that paper (see also the web version), as well as the Guardian and BBC News websites. The vote in Parliament is scheduled for Monday 10th November. 

If you are a UK practitioner, academic, politician or NGO or and would like to add your name to this list of signatories, please tweet me at @StevePeers or e-mail me at speers@essex.ac.uk.  

For more details of the argument for opting back in, see the previous post on this blog. 

Dear Sir,

Parliament will soon face a crucial vote on the Government’s proposal to opt into certain EU measures. A key concern is the European Arrest Warrant (EAW).
 



Without the EAW other EU members may be unable speedily to extradite suspects like Hussain Osman or Jeremy Forrest to Britain - both in jail after use of the EAW. Unsurprisingly, the Association of Chief Police Officers believes we cannot afford to lose it.

Britain also risks becoming a safe haven for fugitives from justice – a handful of them British citizens, but the vast majority foreign nationals wanted for crimes elsewhere in Europe.

At home, recent statutory changes should help prevent extradition to long pre-trial detention overseas, and curb EAW use for trivial offences. Overseas, Britain can only lead reform of Europe’s criminal justice co-operation by being part of the system.


There is no credible alternative to the EAW. Other EU members will be reluctant to adopt new laws if we reject a system that works. Resort to international law on extradition would be slow and ineffective.

A vote to opt in will be a vote for security and for fair and effective criminal justice. 


Yours,

from the Legal Profession

Rt Hon Lord Phillips of Worth Matravers KG

Lord Carlile of Berriew CBE QC

Rt Hon Sir Henry Brooke CMG

Rt Hon Sir David Edward KCMG QC FRSE

Rt Hon Sir Anthony Hooper

Rt Hon Sir Francis Jacobs KCMG QC
Rt Hon Sir David Latham

Rt Hon Sir Konrad Schiemann

Andrew Caplen, President of The Law Society of England & Wales

Alistair Morris, President of The Law Society of Scotland

Evanna Fruithof, Consultant to The Bar Council

Jonathan Cooper OBE, Doughty Street Chambers

Richard Clayton QC, 4-5 Gray’s Inn Square

Tom de la Mare QC, Blackstone Chambers

Helen Malcolm QC, Three Raymond Buildings

Professor Philippe Sands QC, Matrix Chambers

from Law Enforcement and Civil Society

Lord Blair of Boughton QPM

Lord Harris of Haringey

Baroness Ludford, former Member of the European Parliament

Rt Hon Lord Roper

Rt Hon Charles Clarke

Andrea Coomber, Director of JUSTICE

Charles Grant, Director of the Centre for European Reform

William F Hughes CBE QPM, former SOCA Director General

Michael Kennedy CBE, former President of Eurojust, former COO at CPS

Peter Neyroud CBE QPM, former Chief Constable

from the Legal Academy

Professor John Spencer QC, Cambridge University

Professor Estella Baker, De Montfort University

Professor Patrick J Birkinshaw, Hull University

Professor Paul Craig, Oxford University

Professor Brice Dickson, Queen’s University Belfast

Professor Piet Eeckhout, University College London

Professor Angus Johnston, Oxford University

Professor Valsamis Mitsilegas, Queen Mary University of London

Professor Steve Peers, University of Essex

Nicola Padfield, Cambridge University

Dr Cian Murphy, King’s College London

Dr Veronika Fikfak, Cambridge University

Dr Alicia Hinarejos, Cambridge University

Dr Rebecca Williams, Oxford University

Hugo Brady, London School of Economics

Further signatories:

Fergus Randolph QC, Brick Court Chambers
Paul Garlick QC
Roger Smith, former chair of Justice
Daniel Sternberg, barrister
Carl Gardner, blogger, Head of Legal
Klentiana Mahmutaj, barrister
Thomas Garner, Gherson Solicitors
Shoaib M Khan, human rights lawyer
Charlie Edwards, Royal United Services Institute for Defence and Security Studies
Camino Mortera, Centre for European Reform
Dr Marianne Wade, University of Birmingham
Theodora Christou, Queen Mary, University of London
Professor James Chalmers, Glasgow University
Dr Egle Dagilyte, Bucks New University
Professor Tamara Hervey, University of Sheffield
Professor Ed Cape, University of the West of England
John Flood, Visiting Professor, University of Westminster
Dr Paul James Caldwell, University of Sheffield
Professor Geoff Gilbert, University of Essex
Matilde Ventrella, University of Wolverhampton
Dr Richard Ball, University of the West of England
Professor Jo Shaw, University of Edinburgh 
Colm O'Cinneide, University College London 
Professor Geert van Calster, King's College London and barrister
Dr Sara Drake, Cardiff University
Josephine van Zeben, Oxford University
Alison Young, Oxford University
Dr Barbara Havelkova, Oxford University
Professor Sionaidh Douglas-Scott, Oxford University
Professor Julie Dickson, Oxford University 
Dr Maria Fletcher, University of Glasgow
Helena Wray, University of Middlesex
Professor Laurent Pech, University of Middlesex 
Dr Noreen O'Meara, University of Surrey
Dr Mario Mendez, Queen Mary University of London
Claude Moraes, Member of the European Parliament 

Barnard & Peers: chapter 25