Where is the Tort? Something seems to be missing in the Investigatory Powers Bill

2nd March 2016

Here is an interesting omission from the Investigatory Powers Bill published yesterday.

The current legislation – the Regulation of Investigatory Powers Act 2000 – provides, at section 1(3), a tort for unlawful interference (emphasis added):

Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either—

(a) an interception of that communication in the course of its transmission by means of that private system; or

(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system

This provision means a person can sue another person for unlawful interception, rather than just rely on the government to prosecute.  It was, in this way, a directly enforceable privacy right.  (It was a tort used, I understand, in phone and computer hacking claims.)

But the Bill does not (seem to) have this tortuous protection for individuals, even though Part 1 of the Bill is supposedly protecting privacy. (If it somewhere else in the vast Bill, I cannot find it.  Please correct me if I am wrong.)

If this is correct, and the tort is being repealed, then why is the government removing this civil law right, leaving the individual only with criminal law protection under what will be the new Act – which in turn needs the prior consent of the Director of Public Prosecutions?

I have just noticed the omission (it was also missing from the earlier draft Bill). There may be a good explanation. Let’s see.  I have asked the Home Office if they can tell us.

But there is no point adding “Privacy” to the title of Part 1 of the Bill if the government is also taking the directly enforceable tort from the statute book.

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“Privacy is Surveillance” – Part 1 of the Investigatory Powers Bill

2nd March 2016

Yesterday the government put the Investigatory Powers Bill before parliament.

(Note it is not a “draft” Bill – that was the last one. This is now the Bill (which is, in turn, a draft Act).)

The parliament webpage for the Bill is here and it is worth bookmarking, as website will track the passage of the Bill and will provide links to the debates and other materials.

The Bill itself is here  and the “explanatory notes” are here.  (The explanatory notes are to explain the Bill – but they are not part of the Bill, will not become law, and will not bind any court.)

It is a long and complex Bill – many of the clauses are highly technical even before you try and fit the clauses together. (In this way, writing legislation or any other complicated legal document is lot like coding.)

It looks like government is seeking to rush the Bill through at speed.  Of course, such disregard for parliament is contrary to this government’s lofty assertions about “parliamentary sovereignty”.  There is a serious question as whether parliament can properly scrutinise the Bill.

In this post, I do not even try to scrutinise the Bill.  I am going to do something far more trivial but which may (or may not) show something telling about the Bill.

You will see that “Part 1” of the Bill is called “General Privacy Provisions”.

PrivacyIsSurveillance

From a liberal perspective, this is an encouraging signal.

A search for “privacy” in the Bill, however, reveals that other than in clause 1(3)(a) – in the image above – there are no mentions of “privacy” anywhere else in the Bill, other than in titles.

Of the fourteen mentions of “privacy” overall:

one is the title of Part 1;

one is the title of Part 1 in the contents page;

nine are mentions of the title of Part 1 in the headers;

one is at clause 1(3)(a); and

two are in mentions of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426).

So “privacy” is mentioned more often in the headers to pages than in the Bill itself, and it is only once used anywhere in the Bill when it is not in a title.

It is almost as if some bright spark at the Home Office thought that privacy concerns could be addressed by simply adding “privacy” to the title of Part 1 of the Bill.

Of course, this is not a complete way of assessing how privacy is addressed in the Bill – privacy points can be covered without necessarily using the word, and a search for “privacy” in the (non-binding) explanatory notes is an instructive exercise.

But, as far as Part 1 of the Bill is concerned, the motto could well be “Privacy is Surveillance” – as one famous political observer would have put it.

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Law and policy round-up: Do Ministers know best?

10th February 2016

This is today’s law and policy round-up.

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Ministers really do know best, it would seem.

A couple of days ago the Attorney-General – whose office is still narked at losing the Evans and Prince of Wales letter case [2015] UKSC 21 – gave a speech where he explained why ministers were better guardians of the public interest than judges.

And yesterday at a parliamentary committee, Justice Minister Shailesh Vara responded defiantly to powerful recent criticism by the Master of the Rolls on the shoddy MoJ research into the effect of court fees.

But meanwhile, back in the real world, the Intelligence and Security Select Committee published a scathing report on how Ministers did not have any clue why they were asking for the surveillance powers in the new Investigatory Powers Bill.

It would appear Ministers do not know best, after all.

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