Open letter to UK MPs: Ensuring democratic scrutiny of UK surveillance law changes

Steve Peers

Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today's letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.

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 characterize 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 35 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)	Paul Bernal (contact signatory)
Professor of Law London School of Economics a.murray@lse.ac.uk	Lecturer in Information Technology, Intellectual Property and Media Law University of East Anglia Paul.Bernal@uea.ac.uk
Subhajit Basu Associate Professor University of Leeds	Sally Broughton Micova Deputy Director LSE Media Policy Project, Department of Media and Communications London School of Economics and Political Science
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 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
Theodore Konstadinides Senior Lecturer in Law University of Surrey	Douwe Korff Professor of International Law London Metropolitan University
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 Powels 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	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

 

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[1]http://bit.ly/1jNzlUz

[2] http://bit.ly/1yiXUZD

[3] http://bit.ly/1LfVFz3

[4] http://bit.ly/1S4RCdJ    

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In defence of the EU Charter of Fundamental Rights

Steve Peers

The House of Commons European Scrutiny committee recommended today that the UK pass an Act of Parliament to disapply the EU’s Charter of Fundamental Rights in the UK. There are three fundamental problems with this suggestion.

First of all, it would not solve the uncertainty regarding the Charter that they refer to; rather it would further complicate the application of human rights rules in the UK.

Secondly, the suggestion could possibly lead to large fines being applied against the UK, for breach of EU law, as interpreted in light of the Charter.

Thirdly, the committee’s recommendation is essentially dishonest. If the UK disagrees with the legal obligations which it has accepted as regards EU law, then the honest response would be to seek to renegotiate the terms of our membership, or to withdraw from the EU. The idea that we remain a member, but flout key EU law rules, is fundamentally unprincipled.

This post first of all summarises the committee’s analysis, then elaborates upon the three points made above.

The committee’s analysis

The committee first of all concludes that the special ‘Protocol 30’ relating to the British (and Polish) application of the Charter, adopted at the time of the Treaty of Lisbon, is not an opt-out from the Charter. This opinion was supported by the chief drafter of the Protocol (Lord Goldsmith), and was confirmed by the Court of Justice of the European Union (CJEU) in the NS judgment, concerning the removal of asylum-seekers to Greece. It was also the widespread academic view, as discussed by Professor Anthony Arnull in his analysis of the Protocol in the Commentary on the EU Charter of Fundamental Rights.

Furthermore, the committee notes that the prior committee had reached the same conclusion back in 2007. But it states that there was some confusion about the issue because of contradictory government statements. In fact, the only evidence it gives for this assertion is a statement by Tony Blair as Prime Minister, just after agreement upon the Treaty of Lisbon, in the final few days of his mandate. Subsequent governments have not taken this position. Indeed, when David Cameron set out the Conservative party’s revised EU policy in November 2009, following the ratification of the Treaty of Lisbon, he stated that the UK did not have an opt-out from the Charter, and that he would seek a Treaty amendment to change that. Whether one agrees with his objective to renegotiate the Treaty or not, his statement of the current legal position was clear and accurate.

The committee also gives examples of judicial confusion, namely the contrasting views of the higher and lower courts in the NS litigation. But disagreement between different courts on the correct interpretation of legal rules is hardly new.

Next, the committee correctly sets out the legal effect of the Charter, as a mechanism for the interpretation and validity of EU law in light of human rights. As regards national law, the Charter applies only where there is a link to EU law. As the CJEU stated in the Fransson judgment last year, this means that the Charter applies not only where Member States implement EU law, but where their actions fall within the scope of EU law – a somewhat nebulous concept.

The committee notes that the supremacy of EU law means that any national law in breach of the Charter must be set aside by (any) national court. So the Charter has a stronger legal effect than the UK’s Human Rights Act, but a narrower scope. The committee then states that the Charter does not include new rights. In fact, from the perspective of EU law, this was confirmed by the CJEU in its NS judgment, in which it stated that the Charter did not contain any additional rights beyond those recognised previously in EU law, in the form of the ‘general principles of law’.

Next, the committee reaches the conclusion that the Charter does not create new economic and social rights, and that those Charter rules which create ‘principles’, rather than ‘rights’, are not justiciable. In the absence of CJEU case law on these points, it is not yet clear if this is correct, although the Court’s judgment in January in the AMS case (discussed in a previous blog post) has begun to clarify the law on these issues, at least via the indirect route of indicating which Charter rights are not precise enough to be enforceable directly. A further case on this issue, Fennoll, has recently been heard by the CJEU, and so will be decided soon.

On the other hand, the committee is undoubtedly correct to say that the Charter does not give the EU new competences. This is expressly set out in Article 51 of the Charter, and has been confirmed many times by the CJEU. But despite this, the committee states that the Charter could possibly affect the way in which the CJEU interprets EU law.

The committee then objects to the lack of legal clarity as regards aspects of the Charter, namely as regards five points: the distinction between rights and principles; the overlap with the pre-existing general principles; the scope of application of the Charter; its consistency with the ECHR; and its horizontal application.

This brings us to the committee’s recommendations. It argues that the UK government should set out its legal position as regards the correct interpretation of the Charter. While the UK government is planning to intervene in cases concerning the Charter, in order to clarify its scope of application in particular, the committee does not believe that this is likely to be successful. So to avoid the ever-increasing jurisdiction of the CJEU, the committee recommends that the UK pass a new Act of Parliament to disapply the Charter in the UK.

Problems with the recommendation

As I set out at the outset, there are three fundamental problems with the recommendation: it would lead to more legal uncertainty, not less; it could result in large fines being applied to the UK; and it is essentially unprincipled.

Legal certainty

First of all, as regards legal uncertainty, the committee raised five specific points, as listed above. On four of these five issues, the committee definitely has a point; but the conclusions which it draws from this are not convincing.

Taking these four points in turn, the distinction between rights and principles is unclear, but as noted above, the CJEU is beginning to clarify this issue. Next, as regards the scope of application of the Charter (the committee’s main reason for recommending an Act of Parliament to block the Charter’s application in the UK), the Fransson judgment certainly at first sight takes a broad approach to this issue. However, other judgments point the other way. A more recent case, Siragusa, as discussed in a recent post on this blog, takes a much narrower approach. The CJEU has also, quite unjustifiably, refused to rule on whether various national austerity measures demanded in return for EU-organised bailouts are in breach of the Charter. So the committee’s assumption that the Court’s jurisdiction regarding the Charter will apply to ‘an ever wider field with increasingly unintended consequences’ is contradicted by the facts.

 As regards the consistency between the Charter and the ECHR, the committee raises two points. First of all, arguably the Charter itself sets higher standards than the ECHR, in at least some cases where the two overlap. In fact, as I discuss in detail in my analysis of Article 52 of the Charter in the Commentary, it is not clear if this interpretation is correct. So far, the CJEU has not clarified the issue expressly, but has implicitly refused to set higher standards, even when the issue was crucial in the case (see, for instance, the Melloni judgment).

 Secondly, the EU can set higher standards than the ECHR, in its secondary legislation. This is undoubtedly true. But the examples which the committee offers are hugely inappropriate. They object specifically to the recent proposals on legal aid and the presumption of innocence. But regards of the merits of their objections, the UK has opted out of these proposals. More broadly, the committee objects to ‘unwarranted interference in matters of pre-eminent significance in terms of the constitutional settlement of the UK’. But as far as criminal justice is concerned, this is simply bombast: the UK can opt out of any proposals that it wishes to, so there is no ‘interference’ at all.

And even beyond this, the committee’s objection here is misconceived, since the EU’s power to adopt secondary legislation setting higher standards than ECHR rights is not derived from the Charter. The Charter simply confirms the existence of such a possibility. So disapplying the Charter in the UK will change nothing in this regard.

As for the horizontal application of the Charter, this point overlaps with the distinction between ‘rights’ and ‘principles’. On this point, the AMS judgment more expressly clarifies the case law on this issue, and as noted above, more clarification can be expected soon.

This brings us to the committee’s weakest point: the overlap between the Charter and the pre-existing general principles. It does not acknowledge that in the NS judgment, the CJEU stated that the Charter went no further than the general principles, and that in the Fransson judgment, the Court stated that the scope of the two sources of law is the same. So to some extent the overlap has been clarified.

But the problems with the committee’s reasoning go much deeper than that. Its recommendation is to disapply the Charter in the UK, but not the general principles. So they would continue to apply. But not only do they contain all of the rights in the Charter (as confirmed in NS), they also raise again many of the same objections regarding legal uncertainty: the scope of the general principles has been disputed; their relationship with the ECHR is unclear; and their horizontal effect has been confirmed by the CJEU in the Kucukdeveci case. In fact, since the general principles do not take the form of a formal legal text, if anything their interpretation is even less certain than that of the Charter. And if the general principles apply in the UK, but the Charter does not, there could be a need for additional litigation to confirm whether CJEU case law relating to the Charter is also applicable to the general principles.

Of course, it could be argued that the UK should disapply both the Charter and the general principles as a matter of domestic law. But as the committee itself notes, a key aspect of the Charter (and, prior to the Treaty of Lisbon, the general principles) is the requirement to interpret EU secondary legislation in light of it. It is hard to see how that secondary legislation could be interpreted in light of the Charter and general principles in most Member States, while disapplying consideration of those aspects in the UK. There could also be cases where the CJEU rules that an EU measure is invalid because it breaches the Charter, and the question would obviously arise whether that measure is still valid in the UK. It can only be concluded that the committee’s suggestions are in fact a recipe for creating the maximum possible legal uncertainty.

Financial liability

If the UK (like any other Member State) fails to apply EU law which is binding upon it, the Commission can ask the CJEU to impose fines upon the UK. Because of the UK’s generally high degree of respect for EU law, the Commission has never done this.

 But if the UK disapplies the Charter as a matter of national law, then this may result in such proceedings. This is because, due to the obligation to interpret secondary EU law in light of the Charter, this might well result in the UK not applying EU law correctly. There is therefore a possible significant financial cost to the committee’s proposal.

Lack of principle

The EU’s fiercest critics in the UK either want the UK to leave the EU altogether, or to renegotiate the terms of its membership. Either position, whether we agree with it or not, is fundamentally an honest one. In particular, David Cameron’s pledge (which was ultimately frustrated when the Conservative party did not get a majority of seats in 2010) to renegotiate the Treaties to disapply the Charter to the UK entirely was honest. It would have caused great legal uncertainty, for the reasons described above, but that’s a different issue.

In contrast, the idea that the UK should remain an EU Member State, but not fully comply with the obligations which it has accepted, is not honest. It’s certainly legal as a matter of domestic law, since under the British constitution the authority of EU law in this country derives from Acts of Parliament. But the Charter is part of our obligations as an EU Member State, and as long as we are a Member State bound by the Charter, the principle of the rule of law demands that our national law provides for it to be given effect. Furthermore, disapplying it in our national law would hardly help the position of British citizens and British businesses seeking to rely on EU law to vindicate their legal rights in other Member States.

Conclusions

For the reasons set out here – legal certainty, financial liability and principle – the idea that an Act of Parliament should disapply the Charter in the UK should be roundly rejected. But as a final point, we cannot forget the intrinsic value of human rights, and the importance of the Charter as a means to uphold them, within the scope of EU law. While the EU has not – despite the claims of its most deranged critics – committed atrocities equal to or worse than those of Nazi Germany, neither can it be claimed that no serious human rights abuses occur within the scope of its law.

To take just one example, the subject of the NS case, it was established in the European Court of Human Rights, in the judgment in MSS v Belgium and Greece, that asylum-seekers sent to Greece are subject systematically to appalling conditions, both in and out of detention, for instance resorting to drinking out of toilets after they were refused water. The Charter has an important part to play in addressing such abuses, and the committee’s suggestions to disable it in the UK should be rejected for that reason alone.


 Barnard & Peers: chapter 9

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