While the government made a number of concessions to strengthen privacy protections, Scottish PEN does not believe these reforms go far enough to fully protect free expression and privacy.June 8, 2016
Yesterday, the IP Bill passed the 3rd reading with a vote of 444 MPs for and 69 against. While the vote represents a key step in the bill’s journey to expand and update the UK’s surveillance powers to near unprecedented levels, the nature of the debate should be of grave concern to everyone who sees Parliament as the seat of democracy in the UK.
While the government made a number of concessions to strengthen privacy protections and other safeguards to protect both journalists and trade unions, Scottish PEN does not believe these reforms to be substantial enough to fully protect free expression and privacy.
The work of Joanna Cherry QC MP and her SNP colleagues is to be commended in their attempt to remove both internet connection records (ICRs) and bulk powers from the bill, rightly stating that the operational cases for their existence have not been made. For powers not seen in any other democracy, this is a vital step that we believe has not been achieved. This is not an opinion we hold alone. The Joint Committee on Human Rights, while stating that bulk powers are not incompatible with section 8 of ECHR, did call on the government to narrow the focus of thematic warrants, which they deemed to be ‘too broadly drafted’.
The committee also suggested an independent review on bulk powers to take place and the government has rightly asked the Independent Reviewer of Terrorism Legislation, David Anderson QC to lead this. While this is a welcome development, Scottish PEN believes it to be too little too late; the MPs who have been analysing the bill will not be able to debate on the contents of this review, as it will report back when the bill is already in its next stage, to be debated on in the House of Lords. It is also vital that the independence of the review is guaranteed. The inclusion of Dr. Robert Nowill on the review panel who spent five years as GCHQ’s Director of Technology and Engineering raises questions as to whether all scrutiny of bulk powers can be completed in an independent and transparent manner.
While the government went to great lengths to highlight how bulk powers have already aided in the tackling of terrorist attacks, paedophilia and sex trafficking, this seems to run counter to the security services themselves. When giving evidence to the Joint Committee on the IP Bill, Bill Binney, formerly the technical director of the NSA, stated that bulk powers are 99% useless as they swamp the security services with too much data, going further to state that this approach “costs lives, and has cost lives in Britain”. This is further supported by secret reports made public by Edward Snowden which outlined the MI5’s concerns that the deluge of data being received “creates a real risk of ‘intelligence failure’ i.e. from the Service being unable to access potentially life-saving intelligence from data that it has already collected.”
While this is an immensely complex and technical issue, the debate that closed the report stage did not represent the necessary nuance and sensitivity, instead depending on hyperbole and the nascent fear of terrorism. The evocation of Bletchley Park and code breaking enabled the government to draw a false parallel between the powers necessary in wartime and those that are needed in peacetime. While debating the SNP amendment to drop bulk powers, the government was quick to dissolve this distinction, claiming that the UK is not only at war with terrorism, but also fighting fraud and paedophilia. Such hyperbole has no place in the legislative process and does neither our liberties nor our security justice.
The bill will now make its way to the House of Lords. Scottish PEN will continue to campaign against the bill in its current form, calling on the peers to make the changes necessary to fully protect our civil liberties.