Investigatory Powers Bill: Judges, not politicians, should set the final boundaries of privacy

Quite an operation, it has been. Next week the Government will publish a draft of its controversial surveillance Bill, and its employees have busied themselves laying the ground in anticipation. We have heard from the Director General of MI5, who believes – reasonably – the current terror threat to be larger than at any point in his career. We have been invited to inspect the inner workings of GCHQ, via the medium of a Times journalist disinclined to look too hard or ask too many questions. And we have been reassured, from all sorts of police sources, that the Investigatory Powers Bill (IPB) is nothing to worry about, merely a routine upgrade to the engine of domestic security. One starts to wonder whether the draft publication was timed deliberately to coincide with the release of Spectre, the latest James Bond film in which our dear 007 does battle with a range of villains who are after – you guessed it – our data.

There is no question that the intelligence agencies deserve respect and thanks for the job that they do. And the Government’s surveillance legislation is certainly in need of an overhaul: it is too fragmented and, most of it having been established in 2000, behind the times. That the Conservatives will put forward the Bill in draft form, allowing for a period of consultation, strikes an unusually conciliatory note from a party that has previously preferred to hurry through surveillance legislation. Just three days were granted for Parliament to scrutinise the Data Retention and Investigatory Powers Act last year – an unseemly rush that helped the Government grab an over-extensive set of powers, only for the Act to be struck down by the High Court a few months ago.

Whether the IPB consultation period will be anything more than window-dressing, however, remains to be seen. Early indications of what the Bill contains give genuine cause for alarm. It apparently revives the 2012 Snooper’s Charter proposal to grant the authorities power to monitor the web browsing habits – if not the content – of all UK citizens. Besides the intrusion on civil liberties, this would be vastly expensive and extremely difficult to put into practice. The absence of the Liberal Democrats will be felt acutely here, as former Deputy Prime Minister Nick Clegg was instrumental in blocking the Bill’s passage the first time around.

Another, equally concerning, area in which Theresa May, the Home Secretary, is proving stubborn is judicial oversight. The granting of warrants for the intelligence services to break into a citizen’s online life should be beyond the purview of politicians. Home and foreign secretaries, for one thing, do not have time to give each case proper examination: Ms May admitted at one point to signing off 10 every day. The UK is thus likely to remain the only member of the “Five Eyes” alliance – with the US, Canada, Australia and New Zealand – to let politicians, not judges, set the final boundaries of privacy. This is a mistake, and a serious one, flying in the face of reports from the Government’s own Independent Reviewer of Terror Legislation, and the Royal United Services Institute – as well as simple common sense.

As the Independent reports today, the IPB may face difficulties in the House of Lords, which is stocked with privacy-conscious lawyers. We have already had reason to thank the upper house this month: our unelected peers would burnish their reputation further if they could limit the scale of the Tories’ encroachment on online privacy, and force the party to reconsider any decision not to submit to the verdict of judges.