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The Investigatory Powers Act - a break with the past?

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In November 2015, the then Home Secretary, Theresa May, introduced the Investigatory Powers Bill with the claim that it was ‘a significant departure from the proposals of the past…the legislation we are proposing today is unprecedented.’ A year later, on 29 November 2016, the Bill became law, with virtually all of its initial proposals intact. 

The tone of the debate is recognisable to historians of public surveillance. On the one hand there is a parade of actual and potential enemies of the state and its citizens; on the other an assurance that Britain stands apart from repressive regimes elsewhere. According to David Anderson, the Independent Reviewer of Terrorism and author of two influential reports on the case for reform, the Act introduces ‘world-leading standards of transparency.’ Not since the heyday of Victorian liberalism has there been such confidence in the progressive modernity of the British system of secrecy.

The most obvious break with the past is in the length of the Act – some 227 pages plus 64 pages of Schedules - and the intensity of the debate inside and outside Parliament. When the Bill completed its passage in the Lords, the Guardian journalist Ewen MacAskill reported that ‘“Extreme surveillance” becomes UK law with barely a whimper.’ Yet in the context of the history of security legislation, the noise of debate has been exceptional. Compare the year of parliamentary scrutiny, drawing on three independent reports, and three parliamentary committee reports on the draft and three more on the bill, plus an open consultation process, with the passage of first major legislation in this field, the Official Secrets Act of 1911 which passed through both Houses of Parliament in a single day in the midst of the Agadir Crisis, without, as Colonel Seely recalled, ‘a word of explanation from the ministry in charge’

More familiar is the complaint of the many critics of the legislation that their voices had not been heard. The most they achieved was the inclusion of a general statement of the value of privacy at the head of the Bill, and some added protections given to ‘sensitive’ professions of journalism and the law and to MPs themselves. The root cause of their failure was the absence of effective electoral support. Public reaction to the Snowden revelations was relatively muted in Britain, and in the subsequent General Election there were no votes to be gained in criticising the so-called ‘Snooper’s Charter’. The only Party to foreground its opposition, the Liberal Democrats, suffered a catastrophic defeat at the ballot box. During the second half of the twentieth century, when Labour repeatedly passed up reform of the secret state, despite its periods in government, the same arguments were put forward to justify inactivity. In the words of Merlyn Rees, Home Secretary from 1976 to 1979, ‘The Guardian can go on for however long it likes about open government and reform of the Official Secrets Act, but I can tell you that in my own constituency of 75,000 electors I would be hard pressed to find many who would be interested in what I am talking about.’

In terms of the content of the Act, there are two fundamental areas of continuity. In the first case, with the exception of the requirement to retain ‘internet connection records’, this Act, like its predecessors, is merely legalising practices which were already taking place because of the lax drafting and supervision of earlier legislation, or because of what the Investigatory Powers Tribunal ruled in October 2016 was the unlawful collection of bulk data stretching back more than a decade.

More specifically, the boundary of legitimate surveillance is drawn in exactly the same terms as in all previous legislation. In the 1985 Interception of Communications Act, the 2000 Regulation of Investigatory Powers Act (RIPA), and throughout the current Act, the same trinity of criteria appears: ‘national security’, ‘serious crime’ and the ‘economic wellbeing’ of the UK, occasionally qualified in the current Act by the phrase ‘in circumstances relevant to national security only if the information which is considered necessary to obtain is information relating to the acts or intentions persons outside the British islands’, which presumably will cover the looming Brexit trade negotiations. The terms are not otherwise defined in the legislation, but they have a quite specific genealogy. Privacy became a human right with Section 8.1 of the 1950 European Convention on Human Rights. It was a qualified right, and Section 8.2 listed the restrictions as, actions ‘necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country.’ This cut-and-pasting by successive Parliamentary draftsmen is not merely a lack of imagination.  It reflects the overriding continuity in Governments’ approach to surveillance, the desire to hide behind the phraseology of the European Convention and keep to a minimum subsequent legal challenges.

The criteria run through the Act like lettering in a stick of rock. They not only circumscribe the sphere of legitimate investigation but they also control the policing of surveillance. The proposed Judicial Commissioner is enjoined not to act in a way which is ‘prejudicial’ to the three categories, including the unqualified ‘economic wellbeing of the United Kingdom’. It is, however, in what Lord Carlile, David Anderson’s predecessor as Independent Reviewer of Terrorism, described in the House of Lords debate as a ‘monster of regulation’ that the Act may come nearest to conforming to Theresa May’s claim to innovation. The Investigatory Powers Commissioner and his or her colleagues are to audit, inspect, investigate and report on the conduct of the investigatory powers, and to constitute a ‘double lock’ with the Home Secretary on the authorisation of warrants. There has been some kind of structure of report and appeal since the 1985 Act, and an important function of the current legislation is to rationalise a number existing commissioners. Past practice offers limited confidence, but in the five-and-a-half years before the Act as a whole is due for review, the conduct and impact of the Judicial Commissioners will be critical in determining the scale of change in the realm of secret surveillance.   

Please note: Views expressed are those of the author.

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