Having passed its final vote in the House of Commons on 7 June, the Investigatory Powers Bill is now with the House of Lords, awaiting its second reading on 27 June, when all aspects of the Bill will continue to be debated.
The view of the Joint Committee on Human Rights was that the “bulk powers” in the Bill can be capable of being justified if “they have a sufficiently clear legal basis, are shown to be necessary, and are proportionate in that they are accompanied by adequate safeguards against arbitrariness”.
The new clause 5 “General duties in relation to privacy” arguably shows the Government’s intent to provide such safeguards, but this and numerous other key issues require significant further discussion, including:
- Bulk powers and warrants: what safeguards will be put in place? It is currently envisaged that interception warrants authorised by the Home Secretary cannot come into force until approved by a judge. An independent review of the necessity of bulk powers will be led by David Anderson QC.
- Obligations on CSPs: how will communications service providers be affected? There has been and will continue to be widespread debate surrounding the proposed obligation for CSPs to retain search activity records of customers for up to 12 months, and to assist the Government in enforcing its rights, including by removing encryption.
- Legal privilege: will the Bill’s reach extend beyond legal privilege? Or will the conflict in this scenario be addressed in a “code of practice” setting out guidance on how data should be treated in situations which would generally hold legal or other privilege?
For privacy campaigners, the Bill remains at odds with our fundamental right to privacy. For others, as voiced by Teresa May: “as crime moves into the digital age…so the authorities, law enforcement, the police, and our security services can…have the powers they need to deal with crime and terrorism…”.
In any event, we can expect the Bill to come into force in some form by 31 December, in time to replace the Regulation of Investigatory Powers Act.