Attorney General on the Investigatory Powers Bill

10 December 2015

                                                    Attorney General

The Attorney General, the Rt Hon Jeremy Wright QC MP, guest blogs for the Bar Council on the draft Investigatory Powers Bill, which was published last month for pre-legislative scrutiny and public consultation. In his piece, the Attorney General talks about how judicial oversight is a key part of the draft bill and encourages the legal profession to take the time to analyse its contents and have their say.
 

Last month the Government published the draft Investigatory Powers Bill for pre-legislative scrutiny and public consultation. The Government has been clear for a long time about our intention to provide public authorities with the powers they need to address evolving threats within a changing communications environment, as well as providing the public with clarity and reassurance about how those powers and capabilities are used. These issues are of huge importance and I hope that the legal profession will take the time to scrutinise the draft Bill and share views in the debate. 

The draft Bill has taken into account recent reports published by the Intelligence Select Committee, the Royal United Services Institute and David Anderson QC, the Independent Reviewer of Terrorism Legislation.  Almost all of the powers in the Bill are already provided for in existing law, but the draft Bill replaces existing multiple legislation with a single statute that is comprehensive and comprehensible.  It brings together all the powers to obtain communications and data about communications and leaves no doubt about when and how law enforcement and the security and intelligence agencies can acquire, store and access information.

We want these powers to be completely transparent and we want the public to have confidence in their exercise. That is why the draft Bill provides for consistent, effective legal safeguards through the creation of a new Investigatory Powers Commissioner - a senior judge supported by a team of senior judicial commissioners to scrutinise the use of investigatory powers.

It also introduces a new authorisation model whereby a senior judicial commissioner will review all warranted powers on judicial review principles before the warrant comes into force, except in a small number of urgent cases. That will mean that except for those urgent cases, a warrant authorised by the Secretary of State must also be approved by a judicial commissioner, almost always in advance.

This strikes a balance between democratic accountability and independent judicial scrutiny of the exercise of the most intrusive powers.  Given the responsibility of the Executive to the public and to Parliament in this area, it is important that Secretaries of State retain primary decision making responsibility.  That is not to say, however, that judicial commissioners will be 'rubber stamping' warrants - far from it - judicial commissioners will have the power to quash warrants where they see fit.  This 'double lock' mechanism is the way in which we will retain accountability while also ensuring independent judicial examination of the Government's actions. 

We also want to make sure the use of investigatory powers respects legal professional privilege and does not hinder the ability of lawyers to advise in confidence - fundamental as this is to the interests of justice.  At the same time as publishing the draft Bill, the Government laid in Parliament a revised interception code of practice which provides further detail on the additional safeguards for handling confidential material, including legally privileged material.  That revised code reflects responses from a number of bodies representing the legal profession. The Government intends to replicate these safeguards in codes made under the new Investigatory Powers legislation.

In the lead up to publication of the Bill in November, the Government held over 60 meetings with industry, civil liberties groups and other organisations, including the Bar Council, to inform policy development. We want to continue to engage and to listen before a revised Bill is introduced to Parliament in the Spring, so if you would like to know more or to share your thoughts please visit:

https://www.gov.uk/government/publications/draft-investigatory-powers-bill

The Rt Hon Jeremy Wright QC MP

UK Attorney General