How the Bill changed from the original draft

The Home Office has issued its latest draft of the Investigatory Powers Bill just three weeks after three separate committees called for significant reform to the legislation, but little has amounted from this legislation.  

The Joint, Science technology and the Intelligence and Security committee detailed 122 recommendations to change parts of the legislation. The Home Office made 42 changes to the Bill and only responded to 32 recommendations with an altercation to the Bill. Of those 32 recommendations, only 9 changes reflected what the committees recommended entirely. 

While all three committees lauded the goal of providing clarity to the complex world of surveillance law, all three also agreed that the bill had failed to do so and would need significant reform.

The Intelligence committee said: “The Committee supports the Agencies’ use of investigatory powers where it is necessary and proportionate. Against that backdrop, it is nevertheless disappointing that the draft Bill does not cover all the Agencies’ intrusive capabilities – as the Committee recommended last year. Taken as a whole, the draft Bill fails to deliver the clarity that is so badly needed in this area.”

The chairman of the Committee, Lord Murphy of Torfaen, said: “There is much to be commended in the draft Bill, but the Home Office has a significant amount of further work to do before Parliament can be confident that the provisions have been fully thought through.”

However, that important revision only took less than a month before the new legislation was published and then voted on in the House of Commons."

Privacy international said: “Those recommendations have instead been met with changes that could not even be considered cosmetic, and which mock the parliamentary process. The Government’s claim to have redrafted the Bill in-line with privacy protections has amounted to changing the title of Part 1 from “General Protections” in the draft to “General Privacy Protections” in the published version.”

The government detailed its response to each recommendation, which gives insight into what is driving the changes. 

For the most part, when the government has made a change to the bill, it has been at an oversight in writing or when the change will give more powers to the government.

In other times, the government responds to recommendations with a change, but not the one that was recommended. For example, the Joint committee recommended the Lord Chief Justice appoint the judicial commissioners. The government responded by changing it, so the LCJ is consulted, but not the person appointing. However, it gave no explanation why it did not listen to the recommendation

Joint Committee Recommendation 53

We recommend that the Lord Chief Justice should have the power to appoint Judicial Commissioners following consultation with his judicial counterparts in Scotland and Northern Ireland and with the Prime Minister, Scottish Ministers, and the First Minister and deputy First Minister in Northern Ireland. This will ensure public confidence in the independence and impartiality of the Judicial Commissioners. It will also enhance political confidence in them. The Lord Chief Justice will also be able to assess the impact of appointments on the work of the High Court and the Court of Appeal, which must not be impaired by the creation of the Judicial Commissioners. The Judicial Appointments Commission must also be consulted to ensure that the appointments procedure is fair and transparent. 

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Government Response:

The revised Bill includes an additional requirement for the LCJ, and his or her equivalents in the Devolved Administrations, to be consulted on the appointment of the Judicial Commissioners. This follows a recommendation from the Joint Committee (recommendation 53). 

The Joint Committee recommended that the government change the legislation to include more powers when dealing with anything that was life threatening and the government obliged that request. 

Joint Committee Recommendation:

We believe that law enforcement should be able to apply for all types of communications data for the purposes of ‘saving life’. We recommend that the Home Office should undertake further consultation with law enforcement to determine whether it is necessary to amend Clause 46 (7)(g) to make this explicit on the face of the Bill.

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Government Response:

The Government has amended Clause 46(7)(g) of the revised Bill now Clause 53 to remove the words ‘in an emergency’ to make it clear that law enforcement can always acquire communications data for the purpose of saving lives. 

Then, there are the cases when the government rejected the ideas of the committees, such as with cost sharing. The Committees thought that the government  should incur the cost of storing Connectivity records, but the government thought that would unreasonably burden future budgets and the mechanisms in place would not make it unreasonable for companies.  

Recommendation:

As the communications data will be held for purposes that are not related to the CSP’s own business purposes, we agree that the Government should provide CSPs with whatever technical and financial support is necessary to safeguard the security of the retained data. While we do not agree that 100% cost recovery should be on the face of the Bill, we do recommend that CSPs should be able to appeal to the Technical Advisory Board on the issue of reasonable costs

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It would not be appropriate to commit future Governments to pay the full cost of compliance, as it would limit their discretion on this issue. The Government welcomes the Committee’s conclusion on this point. In practice, the Government has a long- standing position of reimbursing 100% of the costs associated with data retention. There are no current plans to change that policy, which was confirmed by the Home Secretary on the floor of the House of Commons on 21 February 2016.  Any retention notice must specify the level, or levels of contribution which the Secretary of State determines should apply in relation to that notice. Clause 80 of the Bill provides a clear route for CSPs to appeal to the Secretary of State should a company consider that the obligation placed on them would incur unreasonable costs. In considering their appeal, the Secretary of State must take advice from the Technical Advisory Board (TAB) on costs and technical feasibility and from the Investigatory Powers Commissioner (IPC) on proportionality. 

There are still changes to be made as the bill is currently being revised in the House of Lords before it comes back to the House of Commons for more revision, but some have criticized Theresa May for trying to rush through a complex legislation in order to be finished before the end of the year.  

The privacy rights group Liberty signed a petition with more than 100 politicians and activists calling on the government to take more time with the legislation. The director of Liberty, Shami Chakrabarti said: “Less than three weeks ago, MPs advised 123 changes to the majorly flawed Draft Bill. The powers were too broad, safeguards too few and crucial investigatory powers entirely missing.

"Minor Botox has not fixed this bill. Government must return to the drawing board and give this vital, complex task appropriate time. Anything else would show dangerous contempt for parliament, democracy and our country's security."

To look through how the government responded to more reccomendation click on the links below. Each one will bring you to different recommendations from the committees about different parts in the bill.