UK's 'world-leading' spy powers 'a beacon for despots'
Liberty hints opposition to â€˜Snoopers' Charter' will go to the courts as Bar chair claims the Act falls short on protecting legal privilege
The failures of the government's new mass surveillance legislation, the Investigatory Powers Act 2016, have once again been highlighted by lawyers, who also stressed the importance of upholding the fundamental rights of UK citizens and the rule of law amid the global war on terror.
Described as the 'most extreme spying powers ever seen' by privacy campaigners, the Act, which received royal assent today, has long been criticised by lawyers as 'insidious' and 'an affront to liberty and justice'. But in a statement today, the home secretary, Amber Rudd, said that at a time of heightened security threat it was 'essential' for the security and intelligence services to 'have the powers they need to keep people safe'.
'The internet presents new opportunities for terrorists and we must ensure we have the capabilities to confront this challenge. But it is also right that these powers are subject to strict safeguards and rigorous oversight,' she said. 'The Investigatory Powers Act is world-leading legislation that provides unprecedented transparency and substantial privacy protection.'
However, responding to the home secretary's statement, Bella Sankey, policy director for Liberty, argued: 'It's a sad day for our democracy as this Bill '“ with its eye-wateringly intrusive powers and flimsy safeguards '“ becomes law.'
Accepting the government 'has a duty to protect us', the non-practising barrister maintained the Act would fall short of its objectives and would 'open every detail of every citizen's online life up to state eyes, drowning the authorities in data and putting innocent people's personal information at massive risk'.
'This new law is world-leading '“ but only as a beacon for despots everywhere,' she continued. 'The campaign for a surveillance law fit for the digital age continues, and must now move to the courts.'
In her opening remarks at the 10th Annual International Rule of Law Lecture last night, Chantal-AimÃ©e Doerries QC also took aim at the new law, saying there were 'many risks associated with government's ability to access private information online'.
In July a cross-party group of peers called on the government to amend its surveillance bill to protect clients' legal right to communicate with a lawyer in confidence. It followed pleas from the Bar to have legal professional privilege enshrined in law.
The Bar Council, along with the Law Society, had been critical of the government's 'rushed timetable' and had tried to secure amendments to the so-called 'Snoopers' Charter' to ensure protection for LPP, but the representative bodies were at odds over the final draft that eventually wound its way through parliament.
The Law Society praised the government for amendments to the Bill in October. The solicitors representative body said the changes would help protect privileged communications 'accidentally caught in legitimate searches' from being 'inappropriately accessed'. The society's president, Robert Bourns, said the government's response was 'still a significant improvement from where the Bill started'.
The Bar, however, remained far from satisfied with the amendments, with its chair warning that LPP 'looks permanently to be compromised'. Contrasting with her Chancery Lane counterpart, Doerries said there was 'still too much scope for a client's privileged communications to be deliberately targeted and intercepted'.
'Sadly what was passed in the end fell significantly short of what we would consider sufficient to protect this important and fundamental right, underpinning the rule of law,' remarked Doerries in her address on 28 November.
In her address, the Bar Council chair also made reference to Tony Blair's statement in the aftermath of the 7 July London bombings that 'the rules of the game are changing', and highlighted the importance of the House of Lords' ruling on the detention of terror suspects held without trial in Belmarsh prison.
'Many of us will remember the debate around whether it was right that former US President George W Bush characterised this as a 'war' in the aftermath of the attack on the twin towers and also former Prime Minister Tony Blair's words in 2005 that 'the rules of the game are changing',' she said.
'We may have wondered what that meant in real terms, particularly about the balance that needs to be struck when introducing measures that are effective in deterring and preventing acts of terrorism,' she continued. 'At some point we saw detentions without trials re-introduced in this country, brought to an end by the Belmarsh Prison House of Lords judgment, an important case in relation to the government's powers to restrict human rights protection in pursuit of national security.'
Doerries added: 'Striking the right balance is crucial for the success of counter-terrorism strategies and the maintenance of tolerant and democratic societies.'
The Investigatory Powers Act comes in to force just over a year since the terrorist attacks in Paris and eight months after the ISIS suicide bombings at Brussels airport and Maalbeek metro station.
John van der Luit-Drummond is deputy editor for Solicitors Journal