Letter to Home Secretary on Investigatory Powers Act codes consultation

Letter to Home Secretary Amber Rudd MP from civil liberty groups, lawyers and other parties concerned about the consultation into the Codes of Practice for the Investigatory Powers Act.


Tuesday, March 28, 2017

Dear Home Secretary,

As you know in February, the Home Office gave us six weeks to respond to your consultation on five codes of practice required by the Investigatory Powers Act.

There are five draft codes of practice:
• Interception of communications

• National security notices

• Bulk acquisition of communications data

• Equipment interference

• Security and intelligence agencies’ retention and use of bulk personal datasets

These documents contain information about the functioning of UK surveillance powers and how these very intrusive and often risky activities are to be used in practice.

The need for publication as you will know was won through legal challenges that resulted in the UK courts acknowledging the need for public documentation of the processes surrounding the exercise of surveillance powers. The Codes expand upon, although are not a substitute for, the primary law of the Investigatory Powers Act.

However, the five documents now being consulted on include a total 413 pages of dense legal text. They are accompanied by a mere nine pages of notes, including just 15 paragraphs to describe what is at issue in the entire 413 pages of the five codes of practice. The 15 paragraphs describe only what the activities constitute, and in no way delineate what the Codes are attempting to deliver or protect.

Furthermore, the changes between the drafts shown to Parliament and the proposed codes are not in any way documented in the accompanying notes, yet fundamental differences can be found, such as changing duties from “must” to “may”.

The Codes are often restructured and reordered from the drafts in ways that are unhelpful in detecting the changes.

There has been no effort to reach out, for instance through meetings or workshops, to brief people about the contents of the documents.

In short, responding to the consultation on the five codes is an enormous piece of work for anyone to undertake, and the Home Office has made it near to impossible to provide a meaningful response.

In our view, the consultation is in breach of Cabinet Office guidelines (Principle C "Consultations should be informative. Give enough information to ensure that those consulted understand the issues and can give informed responses.”).

We write to ask you to take the following steps in order to make this a meaningful consultation process:

1. Publish detailed information describing 

  • The functional purposes of the Codes, the safeguards and duties contained 

  • The justifications for the approaches within each code; and 

  • The changes made to the draft codes since they were presented to Parliament

2. Extend the deadline for the consultation to a full three months, starting at the point that the information above is published

3. Arrange briefings for lawyers, civil society and others to take them through the key points.

Yours sincerely,

Amie Stepanovich, Access Now
Thomas Hughes, ARTICLE 19
Renate Samson, Big Brother Watch
Peter Sommer, Birmingham City and de Montfort Universities (in private capacity)
Tom Sanderson, Centre for Investigative Journalism
Angela Patrick, Doughty Street Chambers
Danny O’Brien, EFF
Jo Glanville, English Pen
Dr Julian Huppert, former MP for Cambridge
Melody Patry, Index on Censorship
Duncan Campbell, investigative journalist
Martha Spurrier, Liberty
Eric Metcalfe, Monckton Chambers
Sarah Kavanagh, National Union of Journalists
Victoria Henry, OpenMedia
Jim Killock, Open Rights Group
Sarah Clarke, PEN International
Caroline Wilson, Privacy International
Rebecca Vincent, Reporters without Borders
Nik Williams, Scottish PEN
Hannah Thomas, SumOfUs
Dr Paul Bernal, UEA Law School
Renata Avila, Web Foundation