Response to Call for Evidence for the Review of Communications Data & Interception Powers:
Oct 2014

1. Our Mission: Promoting human rights and holding governments to account, drawing upon the lessons learned from the conflict in Northern Ireland.

2. Our Expertise and Achievements: Since 1990, Rights Watch (UK) (formerly British
Irish Rights Watch) has held the UK Government and non-state actors to account for human rights abuses in conflict settings. We work with victims and communities to expose human rights abuses, to obtain redress and to hold those responsible for such abuses to account. Our interventions have reflected our range of expertise, from the right to a fair trial to the scope of the government’s investigative obligation under Article 2 of the European Convention in Human Rights. We have a long record of working closely with Non-Governmental Organisations (NGOs) and government authorities to share that expertise. And we have received wide recognition, as the first winner of the Parliamentary Assembly of the Council of Europe’s Human Rights Prize in 2009 alongside other honours.

3. We have experience of working with communities and individuals who believe that they have been subject to undue surveillance. We have commented on the interception of communications data including in written submissions to the Privacy and Security Inquiry of the Intelligence and Security Committee of the House of Parliament, we will giving additional oral submissions to this inquiry on 15th October.

4. We will make submissions on the following issues regarding the use of communications data and interception found in the terms of reference of the Review of Communications Data and Interception Powers:

  • The safeguards to protect privacy;
  • The case for amending or replacing the legislation;
  • The statistical and transparency requirements that should apply; and
  • The effectiveness of current statutory oversight arrangements.

5. Issues with the current regime

Many individuals and communities feel that they have been subject to unwarranted surveillance of their activities due to perceived links to terrorist groups. These groups have consistently expressed concerns to us that the regime for monitoring the interception of communications data is inadequate as it lacks sufficient safeguards. Currently the safeguards regime is fundamentally flawed as:

  • There is little independent oversight of the interception of communications data
  • What oversight there is not transparent; and
  • There is a lack of clarity as to what actions are permitted under the law

6. The interception of communications data is carried out under the Regulation of Investigatory Powers Act 2000. This regime provides for a system of internal oversight of the decision to make authorisations and notices to obtain communications data, overseen by the Interception of Communications Commissioner. The Commissioner has a small team of 9 inspectors; they had to contend with 514,608 notices and authorisations in 2013 alone. Such a ratio makes it impossible for the Commissioner to assess a significant proportion of the notices and authorisations made undermining the oversight he can provide. This means in the majority of cases that there will be no outside scrutiny of a decision to intercept communications data. This makes it difficult for members of the public to have confidence in the system of oversight and regulation.

7. This issue is compounded by the fact that individuals’ who wish to challenge the possible interception of their communications data can only do so through the Investigatory Powers Tribunal (IPT). This can be a difficult and frustrating procedure due to the lack of transparency in the way the tribunal operates. Lawyers and communities have therefor lost confidence in the Tribunal, meaning that they are unwilling to bring cases to the Tribunal as they do not believe that they will get a fair hearing. Individuals’ have reported concerns that bringing a case would lead to increased surveillance rather than providing them with protection from this. Whilst it is understandable that the IPT must operate in such a way as to not undermine the activities of the police and security services, it must also ensure that justice is seen to be done if it wishes to deal with the lack of confidence in its impartiality.

8. The Interception of Communications Commissioner states in his 2013 report:

‘I have very considerable sympathy with those who are hazy about the details of the legislation. The Regulation of Investigatory Powers Act 2000 (RIPA 2000) is a difficult statute to understand…..Because RIPA 2000 Part I is difficult legislation, this narrative may in places be dense and perhaps itself indigestible. I have tried to make it as accessible as possible, but apologise if I have not entirely achieved this.’ Section 1.6

The lack of clarity in the law makes it difficult for those commissioning the interception of communications data to ensure they are doing so within the law and for those scrutinising the interception to ensure that it has occurred properly. If those who work with these powers on a regular basis find them difficult to use or explain, then it is understandable that the general public are likely to feel that there are no effective safeguards in place to ensure that their communications data is not intercepted illegitimately.

9. Overall therefore the system is currently inadequate as it fails to ensure that there are safeguards in place that give confidence to the public that interception of communications data powers are not misused. This is particularly important among communities who are considered suspect due to the involvement of some of their members with terrorist activity. Our experience from Northern Ireland indicates that when communities lose faith in the oversight and monitoring agencies this causes them to disengage from efforts to co-operate with policing. Instead communities feel victimised which adds to their sense of alienation. This provides fertile ground for extremist and radical ideologies to take root, undermining the security of the United Kingdom, the very situation that conferring such powers seeks to prevent.

10. Proposed amendments that would make the law more effective

To restore public confidence, especially amongst suspect communities, what is needed is a more open and accountable system, where justice is seen to be done. We would therefore suggest the following changes:

  • Independent oversight of all authorisations and notices relating to communications data
  • A simplified statutory regime to make it clear in what circumstances communications data can be accessed by governmental bodies
  • Taking additional steps to ensure that that the IPT appears to be (and is) independent.
  • Providing more detailed statistics that clarify how communications data is used in general by accessing bodies.

11. The Interception of Communications Commissioner’s office should be better funded so as to enable them to increase the level of staffing to ensure that all requests to access communications data are scrutinised by an independent body. This would add a level of oversight that would ensure that cases of misuse are minimised, and promote best practice. It would also give the public greater confidence that the powers to intercept communications data were not being misused.

12. A single set of rules governing the interception of all communications data, regardless of its origin, route of communication, and end point would improve the transparency of the regime. It would ensure that the regime is clear for those who use it, scrutinise it and are subject to it. This would promote greater confidence in the system as it would be more easily understood by ordinary individuals.

13. The Investigatory Powers Tribunal requires significant reform for it to be considered a trustworthy court by many. Firstly, its rules procedure and membership should not be subject to the discretion of the Secretary of State as this significantly contributes to the perception that is the IPT is not independent from the Government. Secondly, individuals should be able to appeal their cases from the IPT to a higher court, accepting that this appeal may have to be heard using closed material procedures. The lack of right to appeal also adds to a perception that the tribunal is not an independent body, but simply a dead end with which to confound legitimate complainants. Thirdly, the IPT should provide more clarity as to how it operates and how it comes to its decisions. This will provide more transparency and accountability for the tribunal and help restore public confidence.

14. Currently the statistics relating to the interception of communications data are at a high level, providing only a breakdown by overarching justification of the authorisation; what type of public body made the authorisation or notices and as to what type of data was intercepted. The Interception of Communications Commissioner concedes that these statistics are inaccurate due to the way that different public bodies record each authorisation. This should be rectified by clear reporting standards for all public bodies ensuring uniformity of reporting and clarity of statistics. The statistics should also go into greater depth, for example explaining how many authorisations are made to access the communications of individuals who are imprisoned, on bail or subject to Terrorism Prevention and Investigation Orders, compared to those used for investigations. Disclosure of these statistics would not endanger national security as they could not be used to inform individuals about specific cases, but would give more clarity to the public as to how public bodies use communications data.

Respectfully Submitted

3rd October 2014