The UK government's Investigatory Powers Bill will be read for a third time in the House of Commons on Tuesday 7 June. Before that the House will consider a large number of amendments to the Bill at the Report stage for which, unusually, two days have been set aside, in recognition of the complexity of the legislation.
At the Bill's second reading the SNP expressed grave concerns and abstained from giving it support on the basis that we would work hard at committee stage to amend it. However we made it clear that if the Bill was not amended to our satisfaction we would vote it down at a later stage. It appears that stage has now been reached.
There are aspects of this Bill which we want to support because they are necessary for law enforcement across these islands and to replace some powers already in force in Scotland. We also think that the attempt to consolidate a number of statutes and to have a modern and comprehensive law is laudable. However, we are very concerned that some of the powers in the Bill run contrary to decisions of the Court of Justice of the EU and the European Court of Human Rights. They also significantly exceed powers provided for in other western democracies. The retention of internet connection records and bulk powers, which have been the subject of criticism by the UN Special Rapporteur on Privacy, both fall into these categories..
We believe that provision for the retention of Internet Connection Records should be removed from the face of the Bill. What is proposed is unacceptably intrusive and practically unworkable. The scheme proposed is of questionable legality and it is noteworthy that our allies do not feel the need to authorise such intrusion into the privacy of their citizens for the purposes of law enforcement or the prevention of terrorism.
In response to pressure from the SNP and Labour the government have agreed to commission a review of the operational necessity of bulk powers. This is welcome but the SNP do not think that bulk powers should be in the Bill until such time as a convincing case has been made for them. We doubt whether this can be done, having regard in particular to the experience of bulk powers in the USA which led to a recognition that, as well as being extremely intrusive, they were not effective.
The SNP believes that law enforcement and the intelligence and security services should have necessary and proportionate powers to fight serious crime and terrorism. However, we also believe that, in order to protect civil liberties and data security, surveillance should be targeted, by means of warrants that are focused, specific and based on reasonable suspicion. Oversight and safeguards should be independent of the executive and robust. In committee the SNP tabled numerous amendments to attempt to achieve these principles as a thread running throughout the Bill and to remove those provisions which were not in accordance with law and unjustifiable. Not one was accepted.
In the face of cross party opposition and the sunset clause on the present legislation the government are getting a little twitchy and some concessions have now been made. The SNP welcomes a new clause containing an over arching privacy requirement and the government's acceptance of the SNPs arguments that there should be civil as well as criminal liability for unlawful interception. However these concessions are small comfort given the Bill's continued lack of adequate safeguards and oversight in the face of some of the very intrusive surveillance powers.
Last week I wrote to the Home Secretary listing what would need to be done before the SNP could contemplate giving this Bill our support. I have yet to receive a reply.
As well as seeking to remove ICRs and bulk powers from the Bill we have tabled amendments to improve the safeguards afforded by judicial authorisation of warrants, to afford extra protection to citizens who communicate with journalists, lawyers or parliamentarians, to tighten up the overly broad hacking powers and to improve oversight and transparency.
It remains to be seen what sort of a response our amendments will receive.
Joanna Cherry QC is the SNP spokesperson on Justice & Home Affairs and SNP MP for Edinburgh South West