Last year, suspicionless surveillance of the lawful activities of ordinary citizens was authorised on a scale unprecedented in any other western democracy. Those of us who warned that the Investigatory Powers Act’s provisions in respect of the indiscriminate collection and retention of electronic communications were of dubious legality have already been vindicated by the court of justice of the European Union. The precise impact of the decision will now be confirmed by the court of appeal, which referred the matter to the court of justice.
Now, only months after the passage of the act, proposals that pose a further significant threat to civil liberties and freedom of expression have been quietly published by the Law Commission with no fanfare and not even a press release. The recommendations of the Law Commission of England and Wales are contained in a 326-page consultation paper entitled Protection of Official Data. Their proposals are extensive and could lead to a new espionage act replacing the Official Secrets Act.
While there can be no doubt that the law needs to be updated for the digital era, the need to simplify, clarify and modernise the law should not be used as an excuse to introduce draconian powers that fly in the face of the previous consensus that the “mere receipt” of official information should not be a criminal offence. Unfortunately, this is just what is proposed.
The changes in the law envisaged include criminalising obtaining and gathering as…