Reports into Investigatory Powers

James Berry Excerpts

Thursday 25th June 2015 Commons Chamber

[James Berry (Kingston and Surbiton) (Con)]

People in the UK face a range of threats to their liberty and security from terrorists and criminals on a daily basis. The police and the security services, in whom we put our faith to keep us safe, are not assisted in their task by the fast pace at which communications technology is advancing. Devices and applications that have become features of everyday life for our general use and pleasure have routinely been exploited by those who mean us harm.

RIPA was enacted in 2000, shortly before I went to university to study law. At first flush, RIPA looked very straightforward. It governed large proportions of the law on surveillance and interception of communication, and did not require eager students to resort to vast swathes of case law in the way that the laws of tort or equity did. On further examination, however, RIPA was indeed one of the most impenetrable pieces of legislation with which a law student could possibly have to grapple.

What is worse is that RIPA was out of date almost as soon as it was enacted. In 2000, about 27% of us in the United Kingdom were internet users, and most of us used static devices. By 2013 the figure had climbed to 90%, and most people were using mobile rather than static devices. As a result, RIPA and associated regulations and guidance have been repeatedly amended, and, while that process may have introduced necessary changes that have brought the law up to speed with changes in technology, it has not made the law in this area any more penetrable for either the layman or the lawyer. It is incumbent on the House of Commons to pass laws that can be applied, and applied straightforwardly, by those on whom we call to keep us safe. I therefore endorse David Anderson’s recommendation that RIPA and other related legislation should be replaced by one—and this time, hopefully, one straightforward—piece of legislation.

Simplifying the law in this area is important for another reason, and that is public confidence. When applied properly, RIPA offers safeguards against the unlawful infringement of article 8 of the European convention on human rights, which confers the right to privacy. While there are cases at the margins in which the courts can rightly be accused of stretching the proper interpretation of article 8 beyond its natural meaning, the interception of communications is certainly not one of them. It is a classic infringement of article 8, and one that will be lawful only when the infringement is both necessary and proportionate.

It is right for the law in this area to be reformed so that it commands the confidence of the public, but that will happen only if the face of the law is plain, if there are clear avenues for challenge, and if the overall system of surveillance and interception of communications is transparent. With that in mind, I commend the Anderson proposal for the oversight commissioners to be merged into one. The role of the unified commissioner should, in my view, involve producing clear and accessible guidance for the public on the whole issue of surveillance and interception of communications, as the Information Commissioner has done.

The proposals for reform of the Investigatory Powers Tribunal are also interesting, and worthy of careful consideration. In my limited professional experience of the tribunal, it has striven to ensure that hearings are conducted on an inter partes basis. That said, however, it deals with an area of our law that is little understood. Its procedures need to be streamlined, and that should be done through clear procedural rules to avoid the need for the public—and, indeed, lawyers—to pick through its published judgments.

Section 17(1) of RIPA prohibits absolutely the use of intercept evidence in criminal prosecutions and proceedings. That prohibition is strict, and extends even to mention of the fact of the interception. It does not just prevent intercept evidence from being used in criminal proceedings; it also prohibits its use in cases of serious misconduct by police officers, and cases in which state agents, including the police, are being sued for damages or challenged by judicial review. While I entirely understand the basis of the section 17 rule, it does little for public confidence to know that relevant, important and perhaps even decisive evidence cannot be adduced in cases in which it would have ensured the conviction of a dangerous criminal or avoided a payout to a claimant that was entirely unmeritorious. Clearly a balance would have to be struck—in some cases, it would be impossible to disclose the facts or the products of interception because it would compromise a covert tactic or put life at risk—but I think that the relaxation of the absolute terms of section 17(1) so that it can be approached on a case-by-case basis is worthy of careful consideration.

I shall not touch on the issue of judicial oversight, which has already been covered by other Members, and which will no doubt be the subject of a wider debate involving human rights organisations, lawyers, Members of Parliament and, of course, the public. Let me end by saying that, while the public do need to have confidence in the system of checks and balances that regulates our interception and surveillance system, they also need to feel confident that the state has the powers and capabilities to keep us safe from the ever more technologically adept enemies of our freedom.