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IPB: Lords raise concerns over cost recovery, ICRs and legal privilege

Posted by Sam Frances on Tuesday, June 28th, 2016 at 16:56

Peers have raised concern about cost recovery and legal privilege implications of the Investigatory Powers Bill, in the IPB’s second Lords reading yesterday.

Lord West raised “concerns about clarity over compliance cost”, arguing that as things stand “businesses will be unable to make the necessary financial planning for storing internet connection records”. Baroness Harding said raised questions over the Home Office’s cost estimates, while Baroness Browning made a plea for reassurance on behalf of smaller service providers, who had “expressed concern about the capital costs involved”.

A number of Lords spoke out in favour of greater protections for privileged communications.

The mere prospect of surveillance creates the risk of a chilling effect on openness of communications with a lawyer. The accuracy of legal advice is an immediate and obvious casualty, but so is the rule of law. Without being able to discuss candidly, defending lawyers might not know about important defences open to a client. Courts may adjudicate cases on a misleading or incomplete basis. When people cannot speak safely with their lawyers, it is not only individual privacy that is affected but the administration of justice as a whole. … The Bill should forbid deliberately targeting legally privileged communications.
—Lord Lester

Internet Connection Records were also a subject of debate, although here views were more evenly spread. Lord Oates said that ICRs were “an issue of grave concern”.

The Home Office failed to make an operational case for it. The Government have not approached the issue by demonstrating where a lack of data is obstructing criminal investigations and then exploring how to tackle it. They have taken a proposal that the Home Office has been pushing unsuccessfully for nearly 10 years—perhaps more—and stated that the data would be useful for the police and intelligence services. That is not evidence-based policy-making; it is policy-based evidence-making and we should not accept it unless we have some much better answers than the Home Office managed to provide in the other place.

In a similar vein, Lord Lucas called ICRs and the request filter a resource “that Francis Urquhart would have loved to have his fingers on: absolute knowledge of everyone’s private life”.

But others were quick to defend ICRs, with Home Office Minister, Baroness Neville-Jones arguing that it was “necessary for us to have this technical capability”.

Meanwhile, digital rights activists have argued that the Bill should be put on hold until the political turmoil surrounding the Brexit referendum has receded. Jim Killock, CEO of the Open Rights Group said:

With the current political crisis, we cannot expect that such an important Bill, with far-reaching consequences, will receive the scrutiny it needs.

Until this crisis is resolved, and a new Prime Minister is in place, the IP Bill should be put on hold. The UK cannot legislate on matters of national security until its future is clear.

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