The Intelligence and Security Committee (ISC) in its report in response to the draft Investigatory Powers Bill (the Bill) said, “Overall, the privacy protections are inconsistent and in our view need strengthening. We recommend that an additional Part be included in the new legislation to provide universal privacy protections, not just those that apply to sensitive professions”. In less than a month, the revised Bill was published. In response to the ISC’s recommendation, the parliamentary draftsperson added under the heading “Part 1” the heading “General Privacy Protections” but failed to change the content of Part 1 in any other material way. The failure to do so caused astonishment. David Allen Green at Jack of Kent exposed the cynicism in a blog called “Privacy is Surveillance”, Buzz Feed’s James Ball tweeted dryly “ISC said ‪#IPBill needed a new section to “provide universal privacy protections”. Instead, they changed a heading” and NSA whistleblower Edward Snowden, who exposed the spectre of unlawful mass surveillance by state agencies on a global scale and catalyzed the current reform tweeted sardonically “Headline: “Revised bill adds privacy safeguards.” Reality: Govt changed one header”.

The need for universal privacy protection in the context of covert policing resources is made clear when a typical surveillance scenario is considered: surveillance of a telephone conversation.

If the conversation is intercepted, it needs a Ministerial certificate. Interception has consistently been regarded as “highly intrusive activity”: see the government’s Consultation on Interceptions in 1999. If it takes place without lawful authority it is a criminal offence: s 1, Regulation of Investigatory Powers Act 2000 (RIPA). The content of the conversation is inadmissible and its disclosure is a criminal offence: ss 18 and 19 RIPA.

However, if the conversation takes place on a “hands-free” telephone within a car, the authorisation regime is different. A combined interference with property and intrusive authority is required. This is self-authorised at Chief Constable level but requires approval from a Surveillance Commissioner. The content of the conversation is admissible: R v Alsopp [2009] EWCA Crim 462.

If a person present listening to the conversation (or indeed recording it) is a Covert Human Intelligence Source (and informer or undercover officer) the authority required is internal – superintendent or above – and not subject to the approval regime. The Code of Practice says this at §3.25:

A CHIS, whether or not wearing or carrying a surveillance device, in residential premises or a private vehicle, does not require additional authorisation to record any activity taking place inside those premises or that vehicle which takes place in his presence. This also applies to the recording of telephone conversations or other forms of communication, other than by interception, which takes place in the source’s presence. Authorisation for the use or conduct of that source may be obtained in the usual way”

The material obtained in this manner is admissible. Neither the acquisition of the content of the telephone conversation through a listening device or if recorded by a CHIS is unlawful: authorisation is purely voluntary: s 80 RIPA and C v Police and Secretary of State, IPT/03/32/H

There is no qualitative difference to the nature of the material that is the subject of the surveillance, yet the protections traverse the panoply of authorisations available through the legislative regime. This position will remain if the Bill is enacted in its current form. A similar case can be made out in respect of other investigatory techniques that would be available to the state when the Bill becomes law.

It is worth reflecting on Edward Snowden again. Whether you consider him someone who acted in the public interest or treasonously, it is inarguable that he exposed unlawful acts by governments (our own and foreign). He prompted this change in the law. International standards require it to be sufficiently clear and precise. The ISC, chaired as it is by an eminent QC, no doubt had this at the forefront of its mind when it made its recommendation. If it fails to meet the standards it will be found wanting either here or in Strasbourg. The ISC’s recommendation was the act of a responsible oversight body; in rejecting it the government has acted like a petulant child. It says the Independent Reviewer of Terrorism Legislation, David Anderson QC’s report has heavily influenced the proposed statutory framework. If it was, it has singly failed to appreciate why it was perceptively entitled A Question of Trust.