The UK's Home Office has been accused of making "it near to impossible to provide a meaningful response" to the public consultations which campaigners fought legal battles to have included in the Investigatory Powers Act.
In an open letter to Amber Rudd, the Home Secretary, lawyers and civil society campaigners complained that although UK courts had acknowledged "the need for public documentation of the processes surrounding the exercise of surveillance powers" this was not being effectively delivered by the consultation on the draft codes of practice.
Five of the six draft codes of practice (CoP), which are required to be published by the Investigatory Powers Act, were published in February, alongside a six-week notice period for lawyers and civil society to deliver their consultations.
These are comprised of a total of 413 pages of "dense legal text" according to the letter, and "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.").
The CoPs published regarding the Investigatory Power's Acts provisions for the interception of communications; national security notices; bulk acquisition of communications data; equipment interference; as well as the security and intelligence agencies' retention and use of bulk personal datasets. A remaining draft CoP, regarding communications data, has not appeared as the Home Office prepares to deal with a damning court ruling from last December.
The letter's writers continued:
We write to ask you to take the following steps in order to make this a meaningful consultation process:
- 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
- Extend the deadline for the consultation to a full three months, starting at the point that the information above is published
- Arrange briefings for lawyers, civil society and others to take them through the key points.
The Home Office has not responded to the letter as of publication, but said it would do so within the next 20 days. ®