“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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The Provocative President of the Supreme Court

1st March 2016

A couple of years ago, the President of the Supreme Court was being provocative about the constitution:

“I think that it is very significant that the UK has a very different constitutional arrangement from every other European country. Unlike every other European country, we have no written constitution and we have parliamentary sovereignty. Indeed, it may be said with considerable force that we have no constitution as such at all, merely constitutional conventions, and that it is as a consequence of this that we have parliamentary sovereignty.”

(Full lecture here; discussion at Professor Mark Elliott’s site here.)

It was a playful statement, plainly intended to stimulate reflection and reaction.  He was not even putting forward his own view – “it may be said with considerable force” implies that he is offering a view up for discussion.

In essence, the President was trolling us – in the proper sense of that much-abused word.

I think the President has a point – it is difficult to define what is meant by the UK having a “constitution”.  Even “parliamentary sovereignty” as a principle is not clear, despite the Diceyan orthodoxy.

Of course, it is possible to provide a (merely) descriptive answer to the question “How is the UK constituted?”.

But beyond that, the lack of the constitution being codified means the “British Constitution” is difficult to define, as opposed to describe.

Here the President – knowingly – is setting out a view point contrary to received wisdom.  There would be many lawyers – and law students – who would rush to contradict him, saying “how stupid to say there is no constitution”.  But the President is wiser than those people would realise.

The President should be congratulated for provoking debate on this.

(The pretext for this post is a piece here which took the tweets I sent about this a few days ago to mean (incorrectly) that I was having swipes at the President’s “apparent lack of constitutional law knowledge” and that I was intending to “not be very nice” about him.  This false interpretation could only mean my tweets were not sufficiently clear, and so I thought it would be useful to set out my views more fully.)

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Regular blogging at Jack of Kent is made possible by the kind sponsorship of Hammicks Legal Information Services.  

If you value this blog and its content, please do click on the links to Hammicks and have a browse.

To get alerts for my new posts at Jack of Kent and the FT, and anywhere else, please submit your email address in the “Subscribe” box at the top of this page.