Free Speech

Parliament January 1st 2021

Joint Committee on the Draft Investigatory Powers BillOral evidenceJoint Committee on the Draft Investigatory Powers Bill……………………………………………………1Oral evidence………………………………………………………………………………………………………………1Rachel Logan, Law and Human Rights Programme Director, Amnesty International (QQ 197-206)…………………………………………………………………………………………………………………3David Anderson QC (QQ 61-75)……………………………………………………………………………….19Professor Ross Anderson, Professor of Security Engineering, University of Cambridge (QQ 76-93)…………………………………………………………………………………………………………………..34Adrian Kennard, Managing Director, Andrews & Arnold Ltd (QQ 116-126)……………………53Dr Paul Bernal, Lecturer in Information Technology, Intellectual Property and Media Law, School of Law, University of East Anglia (QQ 76-93)…………………………………………………..66Renate Samson, Chief Executive, Big Brother Watch (QQ 127-136)……………………………..85William E Binney, retired Technical Director of the United States National Security Agency (QQ 234-249)……………………………………………………………………………………………………….102Lord Blunkett (QQ 94-100)…………………………………………………………………………………….119Mark Hughes, President, BT Security (QQ 101-115)………………………………………………….131Professor Bill Buchanan, Head, Centre for Distributed Computing, Networks and Security, Edinburgh Napier University (QQ 207-215)……………………………………………………………..143Sir Stanley Burnton, Interception of Communications Commissioner (QQ 47-60)………..158Peter Carter QC (QQ 186-196)……………………………………………………………………………….171Jo Cavan, Head of the Interception of Communications Commissioner’s Office (QQ 47-60)…………………………………………………………………………………………………………………………..188Martin Chamberlain QC (QQ 186-196)……………………………………………………………………201Professor Michael Clarke (QQ 61-75)………………………………………………………………………218Jesper Lund, Chairman, the Danish IT Political Association (QQ 234-249)……………………233Rt Hon David Davis MP (QQ 174-185)……………………………………………………………………..250Foreign & Commonwealth Office (QQ 1-25)…………………………………………………………….266Erka Koivunen, Cyber Security Adviser, F-Secure Corporation (QQ 207-215)……………….287Christopher Graham, Information Commissioner (QQ 224-233)………………………………..302HMRC (QQ 26-38)…………………………………………………………………………………………………312Robin Simcox, Henry Jackson Society (QQ 216-223)…………………………………………………327Home Office (QQ 1-25)………………………………………………………………………………………….335James Blessing, Chair, Internet Service Providers Association (IPSA) (QQ 116-126)………356Baroness Jones of Moulsecoomb (QQ 174-185)……………………………………………………….369Lord Judge, Chief Surveillance Commissioner (QQ 47-60)………………………………………….385Eric King, Visiting Lecturer at Queen Mary, University of London (QQ 207-215)…………..398Colin Passmore, Senior Partner at Simmons and Simmons, on behalf of the Law Society (QQ 137-144)……………………………………………………………………………………………………….413Rt Hon Theresa May, Home Secretary (QQ 259-282)………………………………………………..423Tim Musson, Law Society of Scotland (QQ 137-144)…………………………………………………452Shami Chakrabarti, Director, Liberty (QQ 127-136)…………………………………………………..462Detective Superintendent Paul Hudson, Head of the Metropolitan Police Service Technical Unit (QQ 162-173)………………………………………………………………………………………………..479National Crime Agency (QQ 26-38)…………………………………………………………………………491Temporary Detective Superintendent Matt Long, Child Exploitation and Online Protection Command at the National Crime Agency (QQ 162-173)…………………………………………….506National Police Chiefs’ Council (QQ 26-38)………………………………………………………………518Michael Atkinson, Secretary to the National Police Council’s Data Communications Group (QQ 162-173)……………………………………………………………………………………………………….533Andy Smith, National Union of Journalists (QQ 137-144)………………………………………….545Alan Wardle, Head of Policy and Public Affairs, NSPCC (QQ 197-206)…………………………555Adrian Gorham, O2 Telefonica (QQ 145-161)…………………………………………………………..571Professor Sir David Omand GCB, Visiting Professor, Department of War Studies, King’s College London (QQ 76-93)……………………………………………………………………………………588Jim Killock, Executive Director, Open Rights Group (QQ 127-136)………………………………607Mr Owen Paterson MP (QQ 94-100)……………………………………………………………………….624Professor Christopher Forsyth, Policy Exchange (QQ 216-223)…………………………………..636Caroline Wilson Palow, Legal Officer, Privacy International (QQ 127-136)…………………..644Clare Ringshaw-Dowle, Chief Surveillance Inspector (QQ 47-60)………………………………..661Sir Bruce Robertson, New Zealand Commissioner of Security Warrants (QQ 250-258)…674Professor Mark Ryan, Professor of Computer Security, School of Computer Science, University of Birmingham (QQ 76-93)……………………………………………………………………..681Matthew Ryder QC (QQ 186-196)…………………………………………………………………………..700Adam Kinsley, Director of Policy and Public Affairs, Sky (QQ 101-115)………………………..717Graham Smith, Partner at Bird & Bird LLP (QQ 186-196)…………………………………………..729Bob Satchwell, Society of Editors (QQ 137-144)……………………………………………………….746Rachel Griffin, Director, Suzy Lamplugh Trust (QQ 197-206)……………………………………..756Hugh Woolford, Director of Operations, Virgin Media (QQ 101-115)………………………….772Mark Hughes, Vodafone (QQ 145-161)……………………………………………………………………784Sir Mark Waller, Intelligence Services Commissioner (QQ 39-46)……………………………….801Simon Miller, 3 (QQ 145-161)………………………………………………………………………………..812Rachel Logan, Law and Human Rights Programme Director, Amnesty International (QQ 197-206)Evidence heard in publicQuestions 197-206OralEvidenceTaken before th

Rachel Logan, Law and Human Rights Programme Director, Amnesty International (QQ 197-206)Evidence heard in publicQuestions 197-206OralEvidenceTaken before the Joint Committeeon Monday 21 December 2015Members present:Lord Murphy of Torfaen (Chairman), Suella Fernandes MP, David Hanson MP, Shabana Mahmood MP, Dr Andrew Murrison MP, Matt Warman MP, Baroness Browning, Lord Butler of Brockwell, Lord Hart of Chilton, and Lord Strasburger.Witness:Rachel Logan, Law and Human Rights Programme Director, Amnesty International,gave evidence. Q197 The Chairman: A very warm welcome to all three of you. Thank you so much for coming along so close to Christmas. We are very grateful. As you probably know, the way the Committee operates is that we will ask you a number questions, which we hope will give you the opportunity to make whatever points you want. I will open by asking you a very general question and in each of your replies please feel free to make anything you like by way of an opening statement. What do you think of the draft Bill? Do you think it strikes the right balance between safeguarding our civil liberties and crime prevention? Perhaps we can start with you, Ms Griffin.Rachel Griffin: I should start by saying that I am from the Suzy Lamplugh Trust. We run the National Stalking Helpline. A large proportion of the people who we help each year are affected by digitally-assisted stalking of some kind or another. The first thing to say about the draft Bill is that it is definitely necessary, from our point of view, for the police to have access to communications data to investigate many cases of stalking and cyberstalking. It is certainly necessary for the police to be able to access communications data to investigate and detect crimes. However, the point we want to make is that legislation should be only one part of a strategic plan to address digital offending. On a day-to-day basis we are finding that the police often do not make very good use of the legislation that they already have available to them. Our question would be whether a change in legislation would have an impact on the experience of victims on a day-to-day basis. On whether the Bill strikes the right balance between safeguarding and civil liberties, I defer to other organisations to answer that question. Our point of view is very much on the experience of victims of stalking.The Chairman:That is what we would expect it to be.Rachel Logan: Amnesty very much welcomes the opportunity to be here. We very much welcome having a draft Bill of some kind, because we are one of those organisations that has been saying for a long time that the existing statutory framework in thisarea is not up to scratch. Unfortunately, we are very disappointed by what we see in the Bill that has been put forward. To touch on a very small number of areas, given the time available, first, we see in the Bill not one, not two, but five sections dealing with bulk, indiscriminate collection of or interference with individual privacy. From our perspective, that simply does not strike the balance or draw the line in the right place. We even see some targeted powers shading into what we would see as bulk powers in the case of thematic warrants.I move on to intelligence sharing, which we have been litigating on for more than 18 months in the Investigatory Powers Tribunal. It has been the subject of at least two rulings. We were very surprised to see in what bare terms it is dealt with in the Bill, given how big the subject area is.

Comment This is an extract. Men need to be very careful in their relationships with women, which is a primary focus of this bill. It has wider ramifications in terms of controlling the internet for the purposes of controlling information and consensus building. R.J Cook

Why it’s time for a British First Amendment to protect free speech

If we want to retain our right to free speech, we should copy the US approach—though it would require a UK constitution Posted December 20th 2020

by Hugh Tomlinson / February 20, 2018 / Leave a comment

Activists march in support of the New York Times. But is the British press also under threat? Photo: PA

Four years ago, under the watchful glare of technicians from GCHQ, Guardian journalists destroyed computers used to store the top-secret documents leaked to them by Edward Snowden. The then-Guardian editor Alan Rusbridger had been required to set his staff to work on the hardware with angle-grinders and drills following government threats of an injunction. He explained his actions by reference to there being no right to free speech in English law. The bizarre episode led Wikipedia founder Jimmy Wales to call for the UK to adopt a US-style “First Amendment,” the free-speech clause in the American constitution, to protect whistleblowers.

I have a special, personal interest in such suggestions since, during the Leveson Inquiry into the culture and practices of the press, I was involved in drafting a sort of British equivalent to the First Amendment (see below).

Had it ever been implemented, it would have required public authorities to uphold freedom of the press. But the incident in the Guardian basement reminded everybody of the obvious truth: governments find the temptations of censorship difficult to resist. This raises the question of how, in legal terms, speech can be properly protected.

The argument is never—not even in the United States—absolutely unconditional. Many kinds of speech are banned or criminalised under our law, such as threats to kill, or blackmail demands. Others are less obvious and are often brought in to respond to some new, passing, moral panic. The dangers of this are obvious, which is one reason why there is interest in some kind of over-arching protection of free expression.

The call for a British First Amendment has attracted wide support. In his polemic You Can’t Read This Book, the journalist Nick Cohen gave some “Advice for Free Speaking Citizens”: “If you have the chance to enact one law… make it the First Amendment,” which he calls the “best guarantor of freedom yet written.”

There is no doubt that the US approach is a tempting one. The relevant part of the 1791 First Amendment to the US Constitution provides that “Congress shall make no law… abridging the freedom of speech or of the press.” Advocates of a British equivalent would like to see an Act of Parliament to enshrine the same approach in our law.

Unfortunately, this is not straightforward. The first problem is that the apparently unqualified words of the First Amendment cannot be taken literally. Everyone agrees that Congress can abridge freedom of speech and of the press in some circumstances. It can, for example, forbid witnesses to make false statements in court.

Again, in the well-known words of Oliver Wendell Holmes, “The most stringent protection of free speech would not protect a man falsely shouting fire in a crowded theatre.” The US courts have developed a complex and difficult set of principles for deciding when and how speech can be restricted or prohibited.

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Read Afua Hirsch on why free
speech isn’t about freedom, but power

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Nonetheless, free speech remains a “primary value” under the US Constitution—it is often a “trump card.” In the 1960s, the First Amendment was used to restrict the application of the law of defamation. In practice, public figures can only make defamation claims if they can show that person publishing the statement knew it was false. This is a difficult hurdle to overcome, and it has left some sensitive souls—foremost among them President Donald Trump—demanding that US libel law be made easier to use. Whether or not this is a good idea, it would now require a constitutional amendment.

Free speech does not, historically, have the same primacy under English law. Free speech is important but not decisive. The primacy of free speech is not compatible with the European Convention on Human Rights—a code written by British lawyers.

This requires that the various and frequently competing rights be balanced against one another. This approach is enshrined in UK law by the Human Rights Act. In some courts, there has been a tendency to privilege free speech over other rights, which led one judge at the European Court of Human Rights in Strasbourg to complain that, under US influence, some have made a “fetish of freedom of the press.” He called for the pendulum to swing back.

This call has been heeded. It is now well established that the Convention requires a “balancing” of rights in every case: on one side, free speech; on the other, reputation and privacy. At the outset, all these rights are taken to be of equal value. Everything depends on the particular facts—the type of speech involved, the nature of the damage to reputation or the kind of privacy. Political speech has a high value and is likely to prevail. Entertainment journalism has less value and so is more likely to lose out to privacy.

The European Convention forms part of English law. A US-style First Amendment, with the general presumption that free speech trumps other rights, is not compatible with human rights principles, and so would require us to leave the Convention. It would require the English law to set out in a very new direction.

But there is another, distinctly British, problem with a British First Amendment. The power of the US First Amendment derives from the fact that it is part of the US Constitution. Laws that are incompatible with the US Constitution can be struck down by the Courts. To take just one remarkable example, in 2005 Congress passed the Stolen Valor Act, criminalising false statements about military honours. But, seven years later, the Supreme Court struck this down as being inconsistent with the First Amendment. The Court was clear: false speech is protected.

None of this is possible in Britain. The constitutional protection of free speech requires a constitution. The so-called “unwritten constitution” of the UK is, in reality, no such thing. A proper “written” constitution sets limits on the powers of the institutions of government, “Congress shall make no law…” The loose and flexible set of rules that is described as Britain’s unwritten constitution sets no such limits. It can be changed—sometimes by new legislation, but often by mere government decision, or a change in practice.

The constitutional protection
of free speech requires a constitution. 

It is, of course, possible for a parliament to try and give special status to laws it passes. The Human Rights Act is a good example. But a subsequent parliament can always take a different view: throughout much of its 20-year life, there have been regular calls from the political right to repeal the Act, and these have sometimes been taken up as Conservative Party policy. The survival of the Act thus far has been entirely contingent: the combination of party policy and parliamentary arithmetic has never been quite right to repeal it, although Theresa May continues to flirt with the idea.

A First Amendment in the UK could, likewise, be encroached on or overruled by a subsequent Act of Parliament. This overruling does not even have to be explicit. A law banning offensive tweeting would take precedence over an earlier law prioritising free speech.

So is there any way to entrench free speech and enact a British First Amendment? There is, but it would require a UK Constitution. This would set out the powers of the institutions of the State and make clear their limits. Laws that were inconsistent with this Constitution would, as in the US, be struck down. This kind of system—which is in place almost everywhere else in the world—is not completely foreign to our own legal system. The Scotland Act 1998 operates as the constitution of that country. The powers of the Scottish Parliament and government are limited by this Act. Scottish legislation that is incompatible with it can be struck down by the courts.

A UK Constitution could, and should, include a “Chapter” protecting fundamental rights, which would include the right to freedom of speech. But such a right should, as in the human rights convention, remain a qualified one. It would have to be balanced against other rights—such as privacy and reputation.

Having worked on both sides of the issue, arguing for the protection of a person’s right to air controversial opinions, but having also represented the victims of phone hacking, a criminal invasion of private life aimed at no higher purpose than selling newspapers, I am convinced that such balancing is a requirement of justice, and provides continuity with English legal traditions.

But even with all the constraints outlined above, a free-speech provision would be of benefit in the fight to protect the right to expression. Most importantly, it would mean that when government or parliament brought in a measure restricting what can be said, that restriction would have to be properly justified. It would have to be for a proper purpose and necessary and proportionate to that purpose.

A balanced First Amendment in a UK Constitution would not provide universal protection for free speech. This is not possible. There is no easy way out of the difficult job of balancing rights on a case by case basis. The real value of such a provision would be to require government, parliament and the Courts to defend and justify the imposition of any restrictions on free speech. Fundamental rights should not be casually disregarded.


The British First Amendment

One of the recommendations of the Leveson Inquiry into the British press was that an explicit duty should be placed on the government to protect the freedom of the press.

Hugh Tomlinson QC was involved in drafting such a measure, which some would call “a British First Amendment.” The first three clauses of this are reproduced below.

But the government didn’t like the idea and, because it was part of a package which included independent regulation, neither did the press. As a result, the proposal was never implemented.

1. Protection of media freedom

(1) Public authorities must aim to:

(a) protect the freedom of the media, and (b) support the independence of the media.

(2) In particular, in exercising their functions public authorities must:

(a) have regard to the importance of the freedom and independence of the media, and

(b) recognise the right of the media to receive and impart information without interference by public authorities.

(3) It is unlawful for a public authority to interfere or attempt to interfere with the media unless the interference or attempt is undertaken:

  1. (a)  for a legitimate purpose which the public authority considers necessary in a democratic society, and
  2. (b)  having full regard to the importance of the freedom and independence of the media.

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Subject: Re. Roberta Jane Cook robertajane.cook <robertajane.cook@btinternet.com>To: Amanda Hawke AHawke@tavi-port.nhs.uk; nordenhouseadmin@nhs.net; gmc@gmc-uk.org;20/12/20 15:383

Dear Ms Hawke,

Trying to get information from yourselves is like seeking the proverbial blood from a stone. However, at risk of providing you, other NHS bodies and the police with more excuses to label me paranoid, I have no choice but press for more information. For the purposes of Satute of Limitations and my forthcoming indictment, I have to keep a record of your on going obfuscation.

As your Dr Laura Barone Scarone ( I am writing her name from memory and her name may be misspelt here), early on ,concluded, my gender is not the most important aspect of my life and I pity those who feel otherwise on this issue. Having visited my father in a terminal ward for 9 months,when I was aged between 9-11, hearing the death rattle of many before it was my father’s turn, and consequently growing up in a poor one parent working class family, I know there are more important issues than gender and what working class women like my mother, and pregnant unmarried schoolgirl sister, endured was no fashion parade.

Had your pre loaded so called psychiatrist Ramsay really wanted to profile me, he would have asked about this and my working life rather than taking a briefing from yourselves – as he admitted he had to me – Norden House and corrupt police. He would also have asked to see my substantial published work and taken interrest in my career and life changing moments before his ridiculous bi polar PPD diagnosis.

Above all, I am seeking evidence that Ramsay used to sustain his paranoid personality disorder ( PPD ) diagnosis which GIC clearly had concluded before my meeting with Sahota in February 2018 when she insisted on anti psychotics and me seeing Ramsay. Her body language and speech pattern on that day , was shifty and disconcerting.

If that was due to sudden source information, it is crucial you disclose – particularly if you seriously believe I am paranoid because then I am a risk to myself and others. Goodness knows how an alleged violent alcoholic anti social person like me handled truck driving, warehouse and customer care for the last 13 years – it is all in Ramsay’s report and a stark contrast to conclusions from a forensic psychiatrist Mr Maganty, a court witness who backed me in 2013..

If the GIC still refuses to explain , then it speaks for itself. If you knew at the outset, then I need to know why I wasn’t told and why two years following life changing treatment commenced without confronting this issue. Certainly if there was any evidence on my medical records at the outset, in 2016, then Ramsay, Norden House and yourselves were negligent. I tend to the conclusion that, the best one could say about the GIC is that you think all of your patients have mental health issues. My further research on this subject certainly pushes my conclusion in that direction. The GIC also seems to have some expecfation of transvestitism which they blur with transgender. Interesting.

Now, here are some simple questions for you, with possible repetition but new emphasis. I need to establish dates for, as I said, Statute of limitations and court ( that countdown cannot start until you answer, and I believe you et al are the reason my recent legal approach was dropped ) and for forthcoming Crown Court Trial.

1) What is my GIC status now. If I have been deleted, why wasn’t I told , when did it happen and why ?

2) If I have been deleted from you patient list , why have I not been informed , according to my GP’s written instructions to you ?

3) Explain how Ramsay supported his conclusions to you, using the files that he said would upset me.

4 ) Give me substantive examples of my delusions. This would include – if you have been guided by the police, as follows. :

a ) Evidence of dates, procedures, allegations, witness statements, response and investigations of alleged domestic violence, abuse, etc

b) Supply any evidence of me allegedly stalking my ex in laws, over weekend of October 4th/5th 2008 and any other dates, threatening violence to them, including threats of kidnapping and harming their children.

c) Tell me whether you were told that after West Mercia Police blocked my enhanced CRB for 71 days on the basis of malicious records, to stay with a female friend in her flat adjacent to the 9th year girls’ dorm at exclusive Woldingham School, that it was ultimately approved.

d) Supply any evidence used for supporting a PNC Criminal Marker and soft intelligence records created by my ex brother in law’s West Mercia Police force,-where he rose to second in command – placed on October 9th 2008. You must have been told because I saw a letter from the police advising my GP to contact you. This should include dates and the prior legal process of arrest, interview, charges, precise allegations etc. I assume you were told of officers numbers, location, interviews , disobeying warnings etc before the marker was placed. You are iinvolved in a very serious damaging criminal case raising questions about your methods, sources and integrity. If you can do this, you can prove that I am deluded.

e) Confirm that yourselves and Ramsay were told that the police lost two previous court cases concerning my criminal allegations – relevant because clearly you have sources stating that I am deluded on these matters, so fundamental to the PPD you have acted on. It follows that my allegations were and still are true. If I am deluded about that court case and all else, tell me where I got the 2016 court transcript from and the memories of a year’s hell, followed by 7 court hearings with the judge ranting about domestic violence and threatening me with a long jail term if I did not plead guilty. That is some delusion, and if you can prove it, then I will tap in to an amazing source of talent for fiction.

f) Relase information supplied by the police relevant to homsosexual prostitition allegations which obviously relate to Ramsay conclusion that I am more likely to die by misadventure than suicide. You were warned at the outset that I am a writer and member of the NUJ with specific interests, inluding transgender – hence my book on the subject. So don’t try to use that trick as an escape. You have nailed your colours to Ramsay,’s and the corrupt police’s mast. By the way, I don’t fancy men and am not a transvestite. So this point is most serious because your Ramsay has linked it to my possible cause of death among other things, by misadventure. Obviously this is part of Ramsay’s ‘ If Roberta saw all of the files it would upset her.’ Being patronised like that is, I must say, a true girlie experience – more powerful than wearing a dress. By the way, I remind you, the police lost the ludicrous whorehouse ruse, obviously triggered by a malicious ex partner who told me that the police had been in regular contact for a year before I ended our relationship. They also lost an attempt to jail me on the basis of me swearing at a CID officer in this case, which they tried to back with bad character based on 13 years of their lies and corruption.

As I said, I have to ask these questions for the record. The British police are instutionally corrupt and dangerous. Finally, bear in mind that without evidence or counter evidence, no person could reasonably conclude that I am deluded. However, if yourselves and Ramsay seriously believe this, then lets have answers to my questions to support your malicious and very nasty diagnosis along with the police and their malicious 13 year plus cover up. When this goes to court, in the absence of your fullsome response, I will apply for a court order for disclosure.

I would prefer to commit suicide -as I nearly did last time after 18 hours in a dirty cold police cell, on August 24th 2020,- than put up with this anymore. No doubt you will have received the police version of this event because, as a long time public servant, I was taught the mantra ‘cover yourself’.. May I remind you that I was then transferred to a mental health facility where, a panel of two doctors and a senior mental health practitioner accepted my explanation concluding that I was well enough to go free.

Since Ramsay’s diagnosis has not been revoked, the NHS still have duty of care and responsibility for consequences. I am aware that I have been put on an adult care list and will be citing Ramsay’s diagnosis for backdated care allowance, nominating my eldest son as my carer. No person could have endured all of this, including the loss of my beloved mother, without significant harm to physical and mental health – compounded by Covid lockdown. All replies must be in writing. I do not have equipment for video conference as previously suggested. It is not approprate. This, as I keep saying is very serious. I need a paper trail.

One doesn’t have to be insane to commit suicide. Such a goal is best achieved by the sane and preferable to my life of injustice, extreme insecurity, misery and social ostracism which threatens to put myself and son on the street – a prospect almost inevitable now Covid and lockdown has rendered me unemployed. The label paranoid is almost funny given the facts, raising the question that Ramsay is either an idiot or guilty of malpractice as his duty of care was and still is to me – not the police or you. This matter is no longer about my GRS. It is about your misconduct through involvement with a very corrupt police force who should have had no involvement in my health care, but as with everything else they have done, they are conforming to type and profile.

Yours Sincerely R.J Cook