An open letter to Jeremy Browne MP on civil liberties… Part 2: Problems at the Home Office

Dear Jeremy,

In part 1 I explained why the Interception of Communications Commissioner is a failed regulator and one the Home Office should be fixing, yet your civil servants have been reluctant to do so. That should give a pause for thought about the proposals Home Office civil servants keep on pushing to extend the ability of the government to snoop on what we do online.

So too should the way in which the Home Office regularly changes its views of what counts as being in the national interest or vital for the fight against crime, and indeed makes outlandish claims along the way.

How do I know this? Because of a freedom of information request I put in a year ago about the costs incurred by the existing monitoring powers. That has been working its way through the appeals process, including a ruling in my favour on part of the issue by the Information Commission just recently (decision notice reference FS50469527).

During this process the Home Office has regularly changed its arguments, always sure that it doesn’t want to provide me with full answers even as it regularly changes its reasons. That in itself raises questions about in how much good faith your civil servants really approach their legal obligations under the freedom of information legislation.

For example, they first argued that simply knowing if auditors had expressed any concerns a decade ago over the Home Office’s controls for payments to cover costs incurred by the regulatory requirements of the Regulation of Investigatory Powers Act would “place the public at risk by undermining national security or law enforcement thereby assisting those intent on committing crimes”.

Perhaps wisely it has abandoned this claim. But that its views on matters of interception, the public interest and national security are so malleable obviously raises questions about how well grounded its claims are on other issues of interception , the public interest and national security.

To give another example, the Home Office tried arguing that giving any indication of which sorts of communications are currently covered by its monitoring arrangements would help terrorists and criminals. Until that is, I pointed out that Theresa May (and indeed, ahem, Nick Clegg) have spoken in public about methods of communication that current powers do not cover, such as issues to do with Skype.

Either the ministers have been regularly fibbing in public, or the information the Home Office claims is too sensitive to tell me has already been broadcast to the world.

Now add to the questions over the Home Office’s attitudes caused by that, the ruling the Information Commission has just made in my favour. Its bare bones are simple. I asked for some information. The Home Office said it didn’t have it. The Information Commission enquired and decided that despite what it had said, the Home Office actually did have some of it. The Home Office’s excuse? As it didn’t have all the information I asked for it, that it was ok for it to say it didn’t have anything.

No doubt angel on pinheads counting lawyers can justify why saying ‘we don’t have it’ is ok when the truth is ‘we have some of it’. But really.

Add up all those doubts: the failure of the regulator, the failure to push for reform of the regulator, the regularly changing claims about national security and fighting crime, the sweeping refusal to provide information on grounds that paint Theresa May and Nick Clegg as having aided terrorists, and the insistent secrecy that leads to the absurd situation of claiming you don’t have information which you do.

Do you really think you should be trusting the judgements of your Home Office civil servants when it comes to the Draft Communications Data Bill?

Best wishes,

Mark