Open letter on rule of law and surveillance

I am one of the signatories on an open letter to the members of the House of Commons – a letter set out below. The subject matter is UK surveillance law – and in particular the democratic process surrounding surveillance law. The signatories – academic researchers whose specialities are related to surveillance law, whether from the legal, technical or technological, socio-political or media-studies angle – are concerned that the democratic process is not effectively bypassed or short-cut as it has been in the last few years. We come from a wide variety of backgrounds and have very different perspectives on privacy, surveillance, security and so forth – but we share, I believe, the belief that proper scrutiny, proper debate, and proper legal processes should be followed.

Similarly, political backgrounds shouldn’t matter – this isn’t in any way a party political issue, but one that should transcend party politics. Politicians of all parties should care about the political process, and should want important political decisions to be made with the best information, and after proper consideration and debate. That has been conspicuous by its absence in recent years.

There is a lot at stake here, and parliamentarians, like most people, do not have the technical or even legal knowledge to be able to make good judgments over this kind of thing without taking an appropriate amount of time, talking with the appropriate experts, and doing their best to understand the issues. That, in theory at least, is what the full parliamentary process should allow for. Laws should not, except where absolutely necessary, be pushed through without proper debate. Significant changes should not be made through processes that were designed for small, procedural and detailed changes. New ideas should not be introduced at late stages of a bill without the chance for proper debate. All of these have happened in the last few years – we should do our best to stop that happening in the future. A new parliament, with new parliamentarians, should provide an opportunity for that.

Here is the letter.

---

 

An open letter to all members of the House of Commons,

Dear Parliamentarian,

Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised

Actions Taken Under the Previous Government

During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.

Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterise the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.[1]

Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice.[2] The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.

The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’.[3] The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.[4]

The Way Ahead

The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.

As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.

This letter has been prepared and signed by 38 academic researchers. We are comprised of people from both sides of this issue – those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.

Signatories

 

Andrew Murray (contact signatory) – Professor of Law, London School of Economics  a.murray@lse.ac.uk

Paul Bernal (contact signatory) – Lecturer in Information Technology, Intellectual Property and Media Law University of East Anglia Paul.Bernal@uea.ac.uk

Anne Barron – Associate Professor of Law, London School of Economics

Subhajit Basu – Associate Professor of Law, University of Leeds

Sally Broughton Micova – Deputy Director LSE Media Policy Project, Department of Media and Communications, London School of Economics

Abbe E.L. Brown – Senior Lecturer, School of Law, University of Aberdeen

Ian Brown – Professor of Information Security and Privacy, Oxford Internet Institute

Ray Corrigan – Senior Lecturer in Maths, Computing and Technology, Open University

Angela Daly – Postdoctoral Research Fellow, Swinburne Institute for Social Research, Swinburne University of Technology

Richard Danbury – Postdoctoral Research Fellow, Faculty of Law, University of Cambridge

Catherine Easton – Lecturer in Law, Lancaster University School of Law

Lilian Edwards – Professor of E-Governance, Strathclyde University

Andres Guadamuz – Senior Lecturer in Intellectual Property Law, University of Sussex

Edina Harbinja – Lecturer in Law, University of Hertfordshire

Julia Hörnle – Professor in Internet Law, Queen Mary University of London

Argyro P Karanasiou – Senior Lecturer in Law, Centre for Intellectual Property, Policy & Management (CIPPM), Bournemouth University

Theodore Konstadinides – Senior Lecturer in Law, University of Surrey

Douwe Korff – Emeritus Professor of International Law, London Metropolitan University, Associate of the Oxford Martin School, University of Oxford

Mark Leiser – Postgraduate Researcher, Strathclyde University

Orla Lynskey – Assistant Professor of Law, London School of Economics

David Mead – Professor of UK Human Rights Law, UEA Law School, University of East Anglia

Robin Mansell – Professor, Department of Media and Communication, London School of Economics

Chris Marsden – Professor of Law, University of Sussex

Steve Peers – Professor of Law, University of Essex

Gavin Phillipson – Professor, Law School, University of Durham

Julia Powles – Researcher, Faculty of Law, University of Cambridge

Andrew Puddephatt – Executive Director, Global Partners Digital

Judith Rauhofer – Lecturer in IT Law, University of Edinburgh

Chris Reed – Professor of Electronic Commerce Law, Queen Mary University of London

Felipe Romero-Moreno – Lecturer in Law, University of Hertfordshire

Burkhard Schafer – Professor of Computational Legal Theory, University of Edinburgh

Joseph Savirimuthu – Senior Lecturer in Law, University of Liverpool

Andrew Scott – Associate Professor of Law, London School of Economics

Peter Sommer – Visiting Professor, Cyber Security Centre, De Montfort University

Gavin Sutter – Senior Lecturer in Media Law, Queen Mary University of London

Judith Townend – Director of the Centre for Law and Information Policy, Institute of Advanced Legal Studies, University of London

Asma Vranaki – Post-Doctoral Researcher in Cloud Computing, Queen Mary University of London

Lorna Woods – Professor of Law, University of Essex

 

---

 

[1] https://paulbernal.wordpress.com/2014/07/15/open-letter-from-uk-legal-academic-experts-re-drip/

[2] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/401863/Draft_Equipment_Interference_Code_of_Practice.pdf

[3] http://www.legislation.gov.uk/ukpga/2015/9/notes/division/3/2/2/4

[4] https://www.privacyinternational.org/?q=node/584

---

 

Labour didn’t lose the election in 2015….

…it lost it a lot earlier than that. It lost it in 2010 – not by its conduct in what was always likely to be a disastrous election, but in its reaction to that election. It lost it through cowardice, through short-termism, and through  what must have felt like political expediency at the time. It lost it by failing to challenge the Tory (and to an extent Lib Dem and UKIP) attempts to rewrite history, and to set a new agenda. It lost it by failing to stand up for itself, by failing to stand up for exactly those people that Labour was created to support and protect. It lost it by failing to stand up for the truth – and by failing to challenge a whole range of myths.

The first of those myths is the most obvious – the cause and nature of the economic crisis. Labour didn’t cause the crisis. Labour’s spending – whether you think it ‘overspending’ or not – was neither here nor there in the grand scheme of things – and yet almost the first we’ve heard of this from Labour has been in the 2015 campaign, and then almost apologetically. Labour should have been shouting this from the rooftops continuously from 2010, and should be shouting it still. And yet even now it’s a bit half-hearted, and every time a Labour MP says ‘no, we didn’t overspend’ it is greeted with shock! ‘Of course they overspent, everyone knows that’ seems to be the reaction – and that’s mostly because for five long years they’ve hardly dared mention it.

The next of the myths is the myth of the scrounger – fed and supported by poverty porn like Benefits Street, nurtured daily by the Daily Mail, but also seemingly accepted and agreed with by Labour spokespeople from Liam Byrne to Rachel Reeves. A myth, nonetheless – in scale, particularly. Yes, of course there are ‘scroungers’, but the numbers are relatively minuscule and the significance of benefit fraud and ‘living on benefits’ is overstated in almost every way. And yet Labour do not dare challenge it – for fear of being seen as ‘soft’. It’s not ‘soft’ to tell the truth. Indeed, it would be much braver to tell the truth. Too brave for Labour. And yet every time this fake ‘toughness’ is shown by Labour, the myth grows, and Labour’s future chances diminish. If poor people are really scroungers, then we should place our trust in those who can properly deal with them – the Tories. Each time Labour feeds this myth, it puts another nail in its own coffin. Every word of Liam Byrne, every article in the Guardian by Rachel Reeves hammers those nails in.

The third myth is about immigration – a two-fold myth, first of all that immigration is bad, and secondly that Labour got it ‘wrong’ by letting in too many people. By having an ‘open doors’ immigration policy. And yet all of these are myths. All the evidence suggests that immigration is beneficial in a wide variety of ways. It doesn’t cause unemployment or even depress wages. Benefits tourism and health tourism are particularly pernicious myths: immigrants are net contributors financially and the NHS relies on immigrant labour at every level, from surgeons to cleaners. And yet we get apologetic statements from people at the top in Labour, we get ‘Controls on Immigration’ on mugs and the Ed-Stone. And, just as for social security, every bit of ‘toughness’ is another nail in Labour’s coffin – feeding the execrable UKIP as well as the Tories. And still Labour keeps on hammering those nails home.

And the side effects of accepting these myths are hideous. The first makes austerity look ‘sensible’ and ‘necessary’ rather than ideological brutality. It means that the real causes of the problems are largely ignored – and that just makes further disasters more likely. The second creates division, ferments hatred of people on benefits and in particular of disabled people – and indeed fuels violence against them – as well as building shame in those who find themselves needing help, shame that can be deeply, deeply damaging. The third fosters racism and xenophobia – it has pumped up the rabid nastiness of UKIP and others, allowed hideous laws like the Immigration Act 2014 that entrenches racism in the law by making landlords and employers suspicious of anyone they suspect might be an immigrant: anyone who looks or sounds ‘foreign’. All this could and should have been opposed – not just because it’s based on lies and innuendo but because it is deeply and dangerously damaging. And yet, rather than opposing it, Labour has largely fed the myths themselves. Out of fear, it would seem, more than anything else.

So no, Labour didn’t lose the election in 2015. They had already lost it long before. And unless they take a genuinely difficult decision and start to tell the truth, and start to stand up for what they believe is right rather than what they think the electorate will find attractive, they’ll keep on losing. They’ll keep on doing their very best to destroy their own party – and letting down the people who their party was formed to support.

It may well be too late already. All these myths have taken hold very strongly indeed – and it would be very, very hard to fight them. I doubt very much Labour is up for that fight, even if it wants to be.

That British Bill of Rights…

The much discussed ‘British Bill of Rights’ is already being drafted. I can exclusively bring you some extracts* of the current draft.

---

Article 1 – Right to Life

Everyone shall have the right to life, unless their death is deemed necessary in the interests of national security, or if they cannot afford the relevant insurance to pay for hospital bills.

—-

Article 6 – Right to a Fair Trial

Everyone shall have the right to a fair trial unless they cannot afford it or the Home Secretary should decide that such a trial is not necessary in the interests of national security

—-

Article 8 – Right to a Private Life

Everyone shall have the right to respect for their private and family life, except if any intrusion in that private or family life is performed by the police, the security services, tabloid newspapers, Google, Facebook or any other commercial enterprise as agreed with the Secretary of State for Business, Innovation and Skills.

—-

Article 10 – Right to Freedom of Expression

Everyone shall have the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers, except if such information is deemed unsuitable, extreme, or otherwise inappropriate by the Home Secretary, the Prime Minister, Rupert Murdoch, Paul Dacre or the Taxpayers Alliance

—-

Article 11 – Freedom of assembly and association

Everyone has the right to freedom of peaceful assembly and to freedom of association with others, excluding the right to form and to join trade unions for the protection of his interests, and excluding any form of assembly or association that the Home Secretary should deem disorderly, embarrassing, annoying or otherwise objectionable.

—-

Article 12 – Right to Marriage

Everyone has the right to marry and found a family, but the choice of partner shall be considered subject to approval by the Home Secretary, the Minister for Inequality and the media.

—-

Scope of these rights

These rights shall be accorded to all British Citizens, except Scots, Welsh people, Irish people, those who the Home Secretary determines are undeserving of rights, or decides to strip citizenship from, or are determined by the media to be scroungers, immigrants or children of immigrants, internet trolls or persons otherwise objectionable in what the Prime Minister deems to be a democratic society.”

---

This is understood to be the current draft, but it is believed that certain members of the cabinet believe these rights are too extensive and too generous.

*This may not actually be the real thing.

Denial isn’t a river in Africa – it’s an election in the UK

Just a few words after a depressing but somehow familiar-feeling election. My overwhelming sense is that many of us – and I certainly include myself in this – have been in denial, before, during and now after the election.

The Lib Dems have been in denial about the reality of their coalition for pretty much the whole of the five years, right up until the end. They were in denial about what the coalition did. They were in denial about how it looked to the electorate. They were in denial about the extent of the carnage that lay ahead – and even now they’re in denial about the reason for their catastrophe. I’ve had Lib Dems blame people like me for ‘talking them down’ and for pushing the ‘myth’ of their betrayal…

The number of things the Labour Party have been in denial about is probably too huge to even guess – but the denial about what happened to them in Scotland is the biggest. Even a few weeks ago they were still denying the extent of the likely disaster, and even now they seem to have very little idea of why it happened. They are still, to an extent at least, blaming the electorate – suggesting that people have deluded themselves about what the SNP really is, and that they’ll soon come to their senses. They’re in denial about the details – about the vote where Ed Balls (sigh…) voted in favour of austerity, suggesting that he didn’t, and that he avoided Osborne’s trap. He didn’t avoid a trap – he blundered right into it like a blindfolded elephant.

UKIP are (and have always been) in denial about the whole nature of their party – even this morning I had one of their supporters taking me to task for suggesting they were racists, since they had some Sikh and Polish candidates. Yes, some of their best candidates are black… but… And they were no less in denial about their own electoral prospects – a few weeks ago, they were talking about five or six seats. One was always the most likely, and that was more about personal loyalty to Carswell.

And the Tories? Or rather their supporters? They’re in denial about the harm that their policies will bring to vulnerable people, to the legal system, and much, much more. They really believe there is no ‘real’ poverty in this country – just relative poverty, where people watch big screen TVs and play with their Wiis… They really believe that disabled people aren’t going to suffer – and those that do are mostly faking.

It’s that denial that’s the worst of all. And people are already suffering as a result….

Why I’m voting Labour in Cambridge

I’ve finally decided how to vote – as I’ve blogged before, in Princess Bride style, it’s been very hard to decide how to vote in Cambridge. Cambridge is a strange seat – over the last few decades we’ve had Tory, Labour and Lib Dem MPs – and at present it is a Lib Dem/Labour marginal. The sitting MP, Julian Huppert, is a good man, a local man, and one of very few MPs who understands the internet, something that really matters to me. And yet, after today, I can’t either support him, or vote Green (I’m a Green party member) which might effectively support him. Instead, I feel that I have to vote Labour. Why? For one simple reason: it looks very much as though the Lib Dems would prop up a Tory government.

Nick Clegg has been the persuasive factor. Today, he’s been saying things that confirm that, to all intents and purposes, he would prefer to go into coalition with the Tories. There are many reasons for him to prefer that – but even the suggestion means that I have to vote against the Lib Dems.

The ‘logic’ that Nick Clegg has used is that he would do a deal with the ‘largest party’, and he has suggested that this would be the ‘legitimate’ thing to do – though constitutionally this is entirely unconvincing. Rather, it looks like an entirely self-serving suggestion. And it’s worse than that. Choosing which party to form an alliance with based solely on the number of seats they win is a morally bankrupt position: it’s like choosing who to have a relationship with based on the amount in their bank balance. Would anyone with any morals do that at all? Don’t you choose your partners on whether you like them or not? Whether you get on well together? Whether you’re compatible? The same, surely, has to be true of political alliances – unless your party has no morals, no objectives, no policies, surely you would choose which party to ally with on the basis of their policies, first and foremost, or their politicians themselves – their trustworthiness, and so forth? Clegg isn’t saying that. He’s saying that his party is open to offers from whoever has the most seats. If he really doesn’t care about their policies, then what kind of morality does that suggest?

If, on the other hand, the Lib Dems choose to cozy up to the Tories because they prefer their policies, then I’m even more worried. Which of the Tories’ policies do they like? The brutality of their policies towards vulnerable people? The illiberalism of Grayling’s legal policies? The xenophobia of the immigration policies? The divisiveness of their tax policies? The Govean attempts to bring education back to the ‘golden age’ of division and discarding those deemed unworthy?

None of that sounds very convincing as a reason for the Lib Dems to cozy up to the Tories. It’s easy, on the other hand, to see why Clegg himself should like to cozy up to the Tories: it looks very much as though his survival as an MP will depend on Tory defectors. The polls suggest that the Tory voters like Clegg – and one of the main reasons for that is how compliant Clegg has been in coalition.

That, then, brings the biggest and most worrying thing of all – and the ultimate reason why it would seem wrong not to oppose the Lib Dems in every way. The Independent, in their leader, suggested that the best result would be another Conservative/Lib Dem coalition, but one that is more liberal and less conservative. The problem is, exactly the opposite would be inevitable should the Lib Dems ally with the Tories. How could the Lib Dems exert more leverage this time around, if they had half the number of MPs that they had before? And how likely is it that the Tories would be anything but more conservative? The few ‘liberals’ amongst their ranks have been sidelined or discarded – Dominic Grieve and Ken Clarke for example – whilst the hardliners have been kept or promoted. Iain Duncan Smith. Chris Grayling.

No, any new Tory/Lib Dem coalition would be almost certain to be much more conservative, more extreme than this one – and that is too hideous not to oppose in every way possible. That, in Cambridge, means voting Labour, even if that means voting against one of the best MPs in the house. If he was really as independent as he sometimes claims, I would vote for him – but he isn’t. He’s too decent, and too loyal to a leader and a party that does not deserve his loyalty – and for that reason I have to vote against him.

So, though I have huge misgivings about Labour, from their immigration and civil liberties policies onwards, I have to vote for them. There is no real choice, now that the Lib Dems have shown their hand.