GENEVA/LONDON (29 June 2018) – The UN Special Rapporteur on the right to privacy, Joe Cannataci, has praised significant improvements in the UK’s system of privacy protection, and has made several recommendations for further reform in a number of areas, including surveillance and health data.
“Three years ago, I openly criticized the UK’s system of oversight of its intelligent services as a joke. Today, I am pleased to see that my concerns and recommendations seem to have been listened to and that, thanks largely to pressure from civil society and many concerned officials and members of the UK Parliament, the UK’s oversight regime has been significantly improved,” said Mr. Cannataci in a statement at the end of his first official visit to the UK.
The problem was tackled by the development and implementation of the Investigatory Powers Act 2016.
“This piece of legislation has also been much improved since I called the first draft ‘worse than scary’ back in November 2015. It still remains a subject of controversy, especially with some NGOs, and the jury is still out as to whether some of the safeguards it now offers will completely succeed but, on the whole, there can be no doubt that the oversight regime it has established is a significant improvement on what existed before,” said the UN expert.
“This includes the establishment of a better resourced Investigatory Powers Commissioner’s Office (IPCO) and the double-lock system, with the involvement of the equivalent of five full-time Judicial Commissioners who are tasked with reviewing the most sensitive authorization decisions signed off by politicians such as the Home Secretary or the Foreign Secretary,” Mr. Cannataci added.
“During my visit, I had meetings with GCHQ, MI5 and SIS as well as the Home Office, the outcomes of which were corroborated by evidence received from IPCO and other sources.
“I am satisfied that the UK systematically employs multiple safeguards which go to great lengths to ensure that unauthorized surveillance does not take place, and that when authorization is sought it is granted only after the necessity and proportionality of the surveillance measure are justified on a case-by-case basis,” Mr. Cannataci emphasized.
“Moreover, from a UN perspective, I am greatly encouraged that the UK has translated its commitment to human rights globally into procedures which do not discriminate between UK citizens and non-UK citizens when it comes to safeguards employed and remedies available.”
Mr. Cannataci also commended the public commitment and the new push for greater transparency taken by IPCO as well as the special attention that this new oversight authority is paying to controversial subjects such as bulk powers. He remains concerned, however, about certain possible deficiencies inherent in the new UK Investigatory Powers Act 2016.
“I have no reason to doubt the integrity and competence of the leadership and staff of the new oversight authority, IPCO. On the contrary, I am very positively impressed by the efforts they are making in so many areas, and look forward to working closely with them in order to be able to take the many good practices that they are developing and share them with other UN member states,” the Special Rapporteur said.
“My remaining concern about the new oversight authority is not about the people who staff it or the efficiency with which they do their job. It would seem to me that the relatively extensive safeguards now provided by UK law are in very good hands indeed. The concern that I have expressed with the UK authorities lies with those parts of the IPA 2016 which imposes on IPCO the dual task of both authorizing surveillance and then providing oversight of the way it is carried out,” Mr. Cannataci explained.
“To many observers and especially people outside the UK, the new law seems to create a situation whereby someone is expected to mark his own homework. This is rather undesirable, since justice should not only be done but also seen to be done.
“This arrangement would probably also detract from the ability to utilize the UK system as a model in other jurisdictions where the culture may be different and not sufficiently robust in key aspects such as judicial integrity,” added Mr. Cannataci.
“The proof of the pudding will be in the eating,” said Mr. Cannataci, who recommends that this aspect of the IPA 2016 be subjected to special attention when the law is reviewed in or after 2021.
“I have probed several aspects of the controversial subject of bulk acquisition including ‘bulk interference’ which give rise to serious concern about the proportionality and necessity of such measures,” Mr. Cannataci continued.
“The conclusions of the case studies to be found within the Anderson report (August 2016 Bulk Powers Review) may be construed as confirming the necessity of such measures, but I have recommended to the Chair of the Intelligence and Security Committee (ISC) of the UK Parliament that the ISC exercises its powers and revisits the subject of necessity of the use of bulk acquisition during the next three to five years.
“If these controversial powers are found to be both proportionate and truly necessary in practice then the current provisions of the law may be retained. If not however, I would expect the law to be suitably revised,” the expert stressed.
“While the new set-up may still contain a number of imperfections, the UK has now equipped itself with a legal framework and significant resources designed to protect privacy without compromising security,” said Mr. Cannataci.
“Given its history in the protection of civil liberties and the significant recent improvement in its privacy laws and mechanisms, the UK can now justifiably reclaim its leadership role in Europe as well as globally.
“The UK is now co-leading with that tiny minority of EU states which have made a successful effort to update their legislative and oversight frameworks dealing with surveillance. This will remain work-in-progress for years to come, during which I look forward to the UK engaging with the mandate of the Special Rapporteur on the right to privacy in efforts to raise the level of protection globally through good practices and innovative legislation,” Mr. Cannataci concluded.
During his two-week visit, the expert travelled to London, Edinburgh, Belfast and Cardiff, and met officials at national and local levels, representatives of civil society, businesses and academics.
Mr. Cannataci will present a comprehensive report containing his findings and recommendations to the UN Human Rights Council in March 2019.
Mr. Joseph Cannataci (Malta) was appointed as the first Special Rapporteur on the right to privacy by the Human Rights Council in July 2015. He is an academic who has had a pioneering role in the development on data protection, privacy law and technology law. A UK Chartered Information Technology Professional & Fellow of the British Computer Society, he also continues to act as Expert Consultant to a number of international organisations. In March 2018 the Human Rights Council renewed his mandate to July 2021.
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
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