Over the next week, I will be publishing my detailed thoughts on the draft Investigatory Powers Bill Be warned – they’ll be long, and boring…

But before I do that, I want to discuss something which never seems to be covered. When discussing bills to do with surveillance and intelligence matters, there is always a discussion of the morality of the laws, of the interminable tug of war between privacy and safety. The debates in parliament often cover that, as well as some specific modifications, but what never seems to be discussed is how very different such bills are compared to most others, from a judicial and enforcement perspective.

The legal system in the UK is based around Common Law, generally through an adversarial system. I will below make the case that the legislation created for Intelligence and Surveillance related matters is insufficient, because of shortcomings in our legal system.

But first a bit of background… And a caveat – I am not a lawyer – the below is my understanding of the process and problems, and I would love to be corrected where I’ve made errors. Note: I have used civil liberties groups as an example of the opposition to government, but the relevant aspects could apply to any member of public.

Primary Legislation

Law generally begins with a need. The government decides that something should be made illegal, or should definitively be made legal. The government, or rather the specific departments, will provide a description of what they want to accomplish and pass this to the Office of Parliamentary Council. The OPC will draft a Bill. Eventually this Bill (after multiple iterations) will go through parliament, be voted on, and maybe become an Act of parliament, and law. See [1] for more details.

Secondary Legislation

An aim for Primary Legislation is for it to change slowly and rarely. However, the world changes – government departments are opened, closed, and disbanded. Technology changes. If the Primary Legislation is overly detailed, then parliament would spend all its time updating this legislation for minor tweaks rather than looking at the big picture. Most Primary Legislation therefore normally allows the government to provide minor updates, and more detailed instructions, through the use of Secondary Legislation.

This Secondary Legislation is limited by the Primary – i.e. the Primary specifically says what limited powers are conferred on the government. The Secondary Legislation, normally “Statutory Instruments” such as regulations, are written by the government and normally still need parliament to vote on and pass. However, these votes are generally quite pro-forma, and don’t have the large debates or proposed amendments that occur with primary legislation.

Common Law

A third class of law is created by the courts, rather than government. As cases are brought to the courts for judgement, case law [2] is created. Essentially, during the process of a trial the defendant and prosecution argue with each other (the adversarial system [3]). Ultimately the judge (and jury to a lesser extent) try to make a determination of what the law actually means, and whether the defendant is guilty or at fault. When a decision is made, case law is created – i.e. the court decides that the law, in this instance and any other similar/identical one, means x.

This case law can then be relied on for future interpretation of the primary and secondary legislation. Over time, a set of case law is created for any primary legislation, which will be much more detailed than anything parliament could, or would want to, create.

The Problem

Lack of case law

Intelligence related laws go through the normal process in their creation, both as primary and secondary legislation. However, I assert that they aren’t treated the same at the Common Law stage.

Intelligence related matters are necessarily secret. It is vital that the details of methods and techniques remain out of the hands of the country’s adversaries, as knowledge of them would allow these adversaries to avoid our intelligence agencies. This is a key reason why much intelligence-type surveillance is not allowed as evidence in trials. If included in evidence, then due to the adversarial system the defence would be able and indeed required to delve into how the evidence was obtained. As court proceedings are generally public, this would lead to sensitive information on methods and techniques becoming public.

Under some Acts of parliament, evidence may be introduced in secret, at closed hearings. A ‘special advocate’ is normally nominated to argue the defendants case in such a situation – however it should be noted that the defendant themself generally doesn’t know what happens in such courts, nor do their lawyers. There is therefore a lot of nervousness about whether the ‘special advocate’ is doing their job and has access to all relevant information. Furthermore, the detailed conclusions of such hearings do not become public, leading to such either not becoming case law, or leading to a secret set of case law such as that created by the US FISA courts [7].

Therefore, the main route by which intelligence-related law is tested in the courts and case law created, does not occur.

An alternate route to bring such laws into review and interpretation by the courts is through the public either suing the government because they believe the law has been broken (e.g. Amnesty and others over surveillance[4]), or seeking a judicial review if they think the process by which a law has come into effect was incorrect (e.g. David Davis MP and Tom Watson MP over DRIPA[5]).

A judicial review can only be used if there has been an error in process, in the case above the error being that EU law wasn’t correctly applied/followed when creating DRIPA. The result will generally to quash, or allow, law or specific parts. It will not, I believe, generally result in case law about the interpretation of meaning existing law.

The public can only sue if they have evidence that wrongdoing has taken place. Due to the secrecy inherent in intelligence matters, such evidence does not generally become public. Subjects of surveillance are not, as a rule, aware that they are under surveillance, irrespective of whether it is lawful or not. The suit brought by Amnesty et al was only possible due to the Snowden leaks.

Ultimately therefore, except when egregious errors are made in process, or whistleblowers leak possible areas of unlawfulness, the courts do not get to see these matters in public, and so no case law can be created.

Difference of opinion

Another way of saying the above is that there is no way to clarify what the government thinks a law says, and whether that tallies with what the public thinks it says. Primary Legislation is very vague, and Secondary Legislation is often not much less so. Furthermore, Secondary Legislation generally goes through much less rigourous examination.

A concrete example is that of the phrase “external connection” in RIPA. The government believed it referred to any communication with an external endpoint, including any servers the data routes through. So, for example, if your email server is external to the UK, then it is an external connection, even when using that email to talk to another person in the UK [6]. This was at odds with what a lot of people, including civil liberties organisations, believed to be the case.

Due to our adversarial system, a judge cannot act as inquisitor, delving into the truth. Instead, they remain an impartial arbiter as two parties fight to convince the judge of their interpretation. Without the laws going through the courts, there is no opportunity for this fight, leaving the legislation wide open for interpretation, and without any realistic check or balance that the government is interpreting. Oversight bodies are limited in their powers. They additionally run the ever-present danger of internalising the government’s interpretations (especially within, for example, the Intelligence and Security Committee of Parliament) without realising they are doing so.

Possible Solutions

Ultimately, I think a combination of things are needed for Intelligence-related (which includes Surveillance, such as the draft Investigatory Powers Bill) legislation. This includes changes in the way that such legislation is drafted, the government being more open of interpretation, and ways to create case law outside of traditional approaches.

The first item needed is greater specificity in both primary and secondary legislation. This runs the risk of creating law which needs changing more often, and so a case can be made that this should be done in regulations rather than the bills themselves. However, it must be recognised that secondary legislation normally go through on the nod, without much or any debate. If specifics will be implemented in secondary legislation then there must be a recognition that more debate and review will be needed at that stage.

The next is that the government should be open about interpretation of law, even when it applies to potential methods and techniques. This will help build trust between civil liberties groups and the government, and will also help the government avoid situations such as that which the IPT found in the Amnesty case – that the government had been breaking the law but that due to the leaks of Snowden it was now not doing so, because the leaks had made public facts that should already have been public.

Finally, there must be a recognition that the courts do not have the opportunity to create case law in these matters – a situation the current draft Investigatory Powers Bill makes no better, and indeed s171(3) of that draft may make worse. Alternate approaches should therefore be considered. For example, an approach somewhat akin to Moot courts [8] where civil liberties groups and government can work together to introduce representative test cases, with the government taking part in a neither-confirm-nor-deny approach with respect to methods and techniques actually being used. The results of such moot trials could be allowed as case law, which the government would be required to treat as real case law.

I submit that the status quo is insufficient, and has contributed to the current breakdown in trust between the people and government. We must look outside normal practices, while staying inside established principles of legislation and jurisprudence, in order to help heal this wound. Failure to do so will only lead to increased recriminations on all sides.

[1] https://www.gov.uk/guidance/legislative-process-taking-a-bill-through-parliament

[2] https://en.wikipedia.org/wiki/Common_law

[3] https://en.wikipedia.org/wiki/Adversarial_system

[4] http://www.ipt-uk.com/docs/Liberty_Ors_Judgment_6Feb15.pdf

[5] https://www.judiciary.gov.uk/wp-content/uploads/2015/07/davis_judgment.pdf

[6] http://www.theguardian.com/world/2014/jun/17/mass-surveillance-social-media-permitted-uk-law-charles-farr

[7] https://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court#Secret_law

[8] https://en.wikipedia.org/wiki/Moot_court