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Human rights vs the surveillance state

Law Society | Law Society

3 min read Partner content

The Law Society's Technology Policy Adviser, Timothy Hill outlines the political and legal issues around the mass retention of communications data, warning that 'a lot is at stake.'

The acquisition and retention codes of practice Orders are part of a bigger story  and a wider context.

Keith Vaz, Chairman of the Home Affairs Committee, reminded the House of part of that story by pointing out that his Committee had recommended a fundamental review of the Regulation of Investigatory Powers Act 2000 (RIPA): “RIPAs days had come and gone” he said. The Law Society agrees.

Another part is the call by the Intelligence and Security Committee (ISC) for a ‘fundamental review’ of legislation relating to the intelligence and security services – including RIPA  -  with a view to the introduction of a new consolidating Intelligence Services Bill. Again, the Law Society agrees.

The rest of the story involves the independent reviewer of terrorist legislation, David Anderson QC’s review of investigatory powers (mainly RIPA) and the security and intelligence services continued calls for additional surveillance powers to keep up with technology.  There are fears that these additional surveillance powers will involve a revival of the draft Data Communications Bill 2012 – a measure dubbed ‘the Snooper’s Charter’. This would compel communications service providers to collect and retain additional information about their customers which could then be accessed by investigators. It was blocked by the Liberal Democrats.

The wider context is that human rights legislation has been snapping at the heels of the surveillance state. If the security and intelligence services are going to get the additional powers they want then the legislative framework needs to be tidied up and made fully human rights compliant. This may well be the gist of David Anderson’s recommendations.

Mass retention of communications data clearly sits uncomfortably with article 8 of the European Convention on Human Rights (ECHR), which provides a qualified right to respect for private and family life, home and correspondence. Indeed, the European Court of Justice (ECJ) in striking down the EU Data Retention Directive in the recent Digital Rights Ireland case noted that the Directive constituted ‘an interference with the fundamental rights of practically the entire European population’ and that ‘…[f]urthermore, it does not provide for any exception, with the  result that it applies even to persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy’

The Law Society has a particular interest in legal protection for legally privileged communications. Apart from the indiscriminate retention of communications data noted by the ECJ (and reinstated by the UK government in the Data Retention and Investigatory Powers Act 2014) there are currently no statutory rules explicitly governing the interception of legally privileged communications under RIPA or by means of ‘equipment interference’ under the Intelligence Services Act 1994. This must change, and the Law Society agrees with the ISC’s call that statutory protection for LPP must be considered.

This week’s Orders will probably rouse little public interest but the bigger story and the wider context will continue to play out post-election. A lot is at stake. 

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