Ben Wallace MP sent ORG this letter in response to our recent letter on consultation on Investigatory Powers Act Codes of Practice.
5 th April 2017
Open Rights Group,
Thank you for your letter of the 28th March 2017 in relation the Codes of Practice of the Investigatory Powers Act 2016.
As you note in your letter, the Home Office published five draft Codes of Practice that will provide guidance to a range of public authorities on their use of investigatory powers. The Codes of Practice relate to the Investigatory Powers Act, which was passed following three independent reviews and subject to the scrutiny of a prelegislative Joint Committee of Parliament, the considerations and approval of both Houses, the views of two additional Parliamentary committees and the conclusions of a further independent review of the bulk powers contained within the legislation.
In addition to this extensive scrutiny of the primary legislation, the Home Office published the Codes of Practice in draft alongside the introduction of the Bill in March 2016 and published updated drafts in October 2016, reflecting a number of changes made to the Bill during its passage through Parliament. The Codes of Practice have therefore been in the public domain, and open to scrutiny, for over 12 months.
The Codes of Practice featured frequently in Parliamentary debates and in media reporting during the passage of the Bill. Their early publication helped Parliament to scrutinise the Bill and provided an unprecedented level of information to the public about the intended use of the powers. As a result of comments received throughout the passage of the Bill, and in order to reflect changes to the primary legislation, the Codes have been updated. The updated Codes were published in February 2017 for formal consultation in line with Cabinet Office guidance and the requirements of the Act. Despite a number of necessary updates, the majority of the contents of the Codes has not changed considerably since updated drafts were published in October 2016. The earlier drafts of the Codes remain publicly available online, should you wish to compare them.
The consultation website provides information that explains the scope of the consultation, basic administrative information and a brief summary of each Code of Practice. It is not the purpose of this information to explain and justify every provision of each Code of Practice. Doing so would only duplicate information that is already available for review in the Codes themselves.
Since March 2016, a wide range of organisations to whom the Codes apply have been specifically consulted on their content. This includes every public authority that will be able to exercise the powers to which the Codes relate, as well as communication service providers, technology companies, the Law Society and the Bar Council, and the existing oversight bodies. I note too that many of the signatories of this letter were consulted at several stages during the passage of the Act and had opportunities then to raise any issues with the Codes of Practice as they stood.
The formal public consultation enables the Home Office to receive further representations on the draft Codes, including any from other individuals and groups seeking to contribute their views, even if they are not required to abide by the provisions of the Codes. A number of comments have already been gratefully received from civil liberty organisations through the consultation website, including from some of the signatories to this letter, and any further comments will be welcomed and carefully considered.
However it is also important, as Cabinet Office guidance advises, that the consultation process does not unduly delay the commencement and implementation of the important safeguards and powers contained within the Act. It is my view that the consultation period, in addition to the scrutiny the Codes have already received, is fair and provides sufficient time for interested parties to submit their comments.
At this stage, arranging a further briefing before the consultation closes may be challenging, however if it remains helpful for your organisations to receive a briefing please let me know and I will seek to arrange a meeting with the relevant officials at a convenient date.
Ben Wallace MP