The return of the Snoopers’ Charter? What to expect from the Investigatory Powers Bill

Is it a reincarnated Snoopers' Charter? Will the Lords revolt again? And what does it have to do with judges?

What is the Investigatory Powers Bill?

It’s a draft bill which will be read for the first time in the Commons on Wednesday 4 November. It’s an attempt to bundle together new rules about government surveillance under a single umbrella, as opposed to what we have now – a patchwork of different laws filled with loopholes and gaps.

As the Snowden revelations revealed, GCHQ was already collecting and storing far more of our data than we realised. This new legislation is an attempt to bring this surveillance under a legal framework.

What laws do we have at the moment on government surveillance?

The main legislation is the Regulation of Investigatory Powers Act (RIPA), which was passed in 2000. The rise of digital means it’s already hideously out of date. David Anderson QC, the independent reviewer of terrorism legislation, has said that the current system of laws is “undemocratic, unnecessary and in the long run intolerable”.

Haven’t we had new laws on this more recently?

Back in 2013, the Digital Communications Bill (better known by its media nickname, the “Snoopers’ Charter”) was defeated by the Liberal Democrats while they were still in coalition. Despite Conservative attempts to redraft it, it has lain dormant since.

In 2014, parliament rushed through the Data Regulation and Investigatory Powers Act (DRIPA), an emergency piece of surveillance legislation, but it didn’t last long – a year later, its first two sections were ruled illegal by the High Court as it was “inconsistent with European law”. The government was given until March 2016 to come up with replacement legislation, hence the slightly confusing state of play now.

What was the problem?

The sections ruled illegal stated that communications companies must collect all customer data and keep it for a minimum of 12 months, and that this data could then be accessed by security services.

According to the judges, these powers overstepped the mark – the act failed to provide “clear and precise rules to ensure data is only accessed for the purpose of preventing and detecting serious offence”. High Court judges also objected to the fact that access to the data was not authorised by “a court or independent body”.

What does all this have to do with this week’s bill?

All eyes are on the Home Office to see how it deals with these points of contention from previous bits of legislation. The biggest clue so far is that Theresa May has said that the more “controversial” aspects of DRIPA and the Snoopers’ Charter have been removed from this bill.

May has also confirmed that security services won’t be able to look through your browsing history – instead, they’ll have access to the domains you visited and when. Similarly, it’s predicted that they’ll be able to see who you texted and emailed, but not the content of those messages. It is likely, though, that the law will force companies to store our data for a minimum of 12 months.

The government has already made clear that, contrary to previous statements from David Cameron, there will be no attempt to prevent companies from encrypting messages (though this bill may state that they must be able to provide unencrypted data if requested by the security services).

Why do people keep talking about judges?

One thing that isn’t yet clear is precisely who will be able to authorise these intrusions on privacy – whether this power will remain with government ministers, or whether requests from police and security services will be assessed by judges.

Civil liberties groups and privacy specialists are, understandably, pushing for the latter – it adds a second layer of oversight from another of the three estates, and makes corruption less likely.

Shami Chakrabarti, head of human rights campaign group Liberty, said over the weekend:

“It’s a traditional Home Office dance first to ask for the most outrageous, even impractical powers, so that the smallest so-called ‘concessions’ seem more reasonable. The frantic spinning distracts from the sleight of hand – where is the judicial sign-off before our private communications can be collected, hacked and tapped? Where is the move back to targeted surveillance and away from the blanket collection of our private data?”‎

Where do the parties stand?

DRIPA was brought down through a joint effort by Labour’s Tom Watson and David Davis, a Tory MP.

Now, Davis has piped up again to say that this bill “will fail” unless it includes plans to give judges oversight (see above). On the BBC’s Sunday Politics, he said:

“There’s a new consensus on this right across the board – across the experts, across the spooks, across the parties, across both houses of parliament.”

It’s expected that Labour and the Liberal Democrats will vote against the bill in these circumstances too.

What about the Lords?

If it does get through the Commons, we may then see another Lords revolt, following their block on George Osborne’s tax credit cuts last month.

Tim Farron, leader of the Liberal Democrats, told The Independent that the 108 Liberal Democrat peers would vote against the bill: “we must not allow cornerstone civil liberties to be swept away”. Less than a third of the seats in the Lords are held by Conservatives.