David Anderson Q.C. Independent Reviewer of Terrorism ... · Joint Committee on the Draft...

David Anderson Q.C.Independent Reviewer of Terrorism LegislationKCL National Security LawAccountability for Transnational Counter-Terrorism OperationsSurveillance Oversight and Accountability10 March 2016

“Privacy and Security: a modern and transparent legal framework” (March 2015, Parliament’s Intelligence and Security Committee)

“A Question of Trust” (June 2015, David Anderson QC)

“A Democratic Licence to Operate” (July 2015, RUSI)

Transparent new structure

Disclosure of all existing powers

One new power: internet connection records

Stronger authorisation / oversight

Science and Technology Committee

Intelligence and Security Committee

Joint Committee on the Draft Investigatory Powers Bill

“The Government has accepted the vast majority of the Committees’ [198] recommendations”

– Response to Pre-Legislative Scrutiny, Mar 2016

House of Commons 2nd reading 15 March Joint Committee on Human Rights Public Bill Committee: 18 members

10 Govt, 6 Labour, 2 SNP

Keir Starmer QC, Joanna Cherry QC

Public evidence sessions, line by line sessions

Report stage, 3rd reading Then to the House of Lords … End date: December 2016

Replaces Part I and IV of RIPA, + 65 stat powers

Other investigatory powers

Other intelligence powers

Extraterritorial effect

Bulk retention for use of police

Communications data retention

Internet connection records

“Targeted” equipment interference

Bulk retention for use of intelligence agencies

Bulk intercept / communications data

Bulk personal datasets

Bulk equipment interference

“The Committee has not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants, given how broadly Targeted Equipment Interference warrants can be drawn.”

- ISC Report, February 2016

“It is entirely possible for a targeted “thematic” EI warrant to cover a large geographical area or involve the collection of a large volume of data....A bulk EI warrant must be foreign focused [and] additional access controls at the examination stage are required”

- Operational Case, March 2016, ch 8

“Directive 2006/24 .. is not restricted to a retention in relation (i) to data pertaining to a particular time period and/or a particular geographical zone and/or to a circle of particular persons likely to be involved, in one way or another, in a serious crime, or (ii) to persons who could, for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences.….

It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary.

Digital Rights Ireland, CJEU GC Apr 2015, paras 59, 65

“[I]t is a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies in pre-empting such attacks, including the massive monitoring of communications susceptible to containing indications of impending incidents. … In the face of this progress the Court must scrutinise the question as to whether the development of surveillance methods resulting in masses of data collected has been accompanied by a simultaneous development of legal safeguards securing respect for citizens’ Convention rights.”

Szabó and Vissy v Hungary, Jan 2016, para 68

S & Marper (2009): 0-5 home, 17-0 away

Gillan (2010): 0-5 home, 7-0 away

The European Court “has in the past taken exception to the characterisation of interference by English courts with private life as being minor”

Lord Sumption, R (Catt) v MPC, 2015

“To the extent that the law permits, there would be wisdom in acknowledging and seeking to accommodate such differences, which owe something at least to varying perceptions of police and security forces and to the different (but equally legitimate) conclusions that are drawn from 20th century history in different parts of Europe.”

- A Question of Trust, 2.24

ISC, IPT, IOCCO, IntellSC, AQOT Annex 9

Operational Case for ICRs: 31 pages

Operational Case for Bulk Powers: 47 pages

Evidence of harm not avoidable by stringent safeguards?

Luxembourg: C-698/15 Davis/Watson

Strasbourg: Big Brother Watch, Liberty

“Dual lock” authorisation

Warranting judges – amicus, publication

Thematic warrants / modification

Protected categories: journalists, lawyers

Internet connection records

Novel and contentious

“prior independent authorisation”

Investigatory Powers Commission

Investigatory Powers Tribunal

Error reporting

Intelligence sharing

“Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite) but on there being mechanisms to verify they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed.”

National Security LawResearch & Policy

Initiative

Surveillance Oversight & Accountability

IACL Constitutional Responses to Terrorism Research Group

Annual Conference 2016