A comprehensive law is needed for the interception powers of communication and data by the state, the UK’s terror watchdog said in a major review published today.
David Anderson, QC and the independent reviewer of terrorism legislation for the Prime Minister, said a “clean slate” was needed in determining what powers police and intelligence agencies should have and what controls should be in place to combat terror threats.
The 379-page report, called A Question of Trust, was commissioned by the government last year under the Data Retention and Investigatory Powers Act 2014. It is supposed to give a thorough overview of the effectiveness of existing legislation relating to investigatory powers. The current framework was fragmented and obscure, Anderson said.
“Modern communications networks can be used by the unscrupulous for purposes ranging from cyber-attack, terrorism and espionage to fraud, kidnap and child sexual exploitation,” he said. “A successful response to these threats depends on entrusting public bodies with the powers they need to identify and follow suspects in a borderless online world.”
The report recommended that requirements to service providers to retain communications data for a period of time should still be allowed, but consistently with the requirements of the ECHR and of EU law. Security and intelligence agencies should also continue to practise “bulk collection” of intercepted material, but only subject to strict additional safeguarding.
A new provision would be introduced to require authorisation of a judge for all warrants for interception, limiting the role of the home secretary in this process to specific instances.
David Davis, a Conservative MP, welcomed the recommendation in parliament today and said it was the most important one. It was also said that with the exception of Zimbabwe, Britain has about the worst record in allowing politicians to authorise interception.
But Home Secretary Theresa May said the intelligence and security committee took a different view and any solution should not disrupt the balance between the executive and the judiciary.
The definition of communications data – which currently does not include the content of an email or phone call – should be “reviewed, clarified and brought up to date” and supervision of its use should be improved, according to the report.
Dominic Grieve, the Conservative former attorney general, said he agrees with Anderson about how incomprehensible the current legislation is and the agencies need powers to protect us. In his experience, they behave “ethically”, he said.
The Data Retention and Investigatory Powers Act was pushed through Parliament in three days last July, and allowed spy agencies new powers to gather people’s phone and internet communications data. Last week two MPs took to the High Court a legal challenge to the government’s emergency extension of surveillance powers on human rights grounds.
The MPs' legal challenge comes as proposals are drawn up for a separate Investigatory Powers bill in the new parliament. It also follows a reduction in powers of the National Security Agency in the US after President Barack Obama signed a bill into law this week.