Administration of justice update

Lord Carlile QC, former independent reviewer of terrorism legislation, has said that in the aftermath of the Paris attacks, parliament should fast-track the Investigatory Powers Bill into law. Given his extensive experience in the field, Lord Carlile’s views should not be taken lightly. But Lord Carlile is wrong. To fast-track the Investigatory Powers Bill is undesirable and unnecessary. It would also end a crucial public conversation in a wrong-headed paroxysm of governmental action.

An undesirable response

Fast-track national security law is undesirable for (at least) two reasons. First, legislatures tend not to function well in the aftermath of any emergency. If they legislate immediately, the result is often not just overreach, but legislation that is bad in technical terms. Second, these general concerns are of especial significance in this field of law because existing flaws in our investigatory powers law are a result of failures of scrutiny in the past.

Let us take the present case. In 2004, after the Madrid bombings, EU governments sought to retain telecommunications data for use by security services. The European parliament, with concerns for privacy, held up the draft legislation. However, after the London bombings in 2005, the proposal became law as the Data Retention Directive.² The directive was broad, vague and weak on oversight – flaws that are often the consequence of quick political agreement in a contentious field.

In 2014, after years of challenges in national courts, the EU Court of Justice (EUCJ) struck down the directive in its Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, Commissioner of the Garda Síochána , Ireland, Attorney General and Irish Human Rights Commission ( intervener) and Kärntner Landesregierung), Seitlinger, Tschohl and others C-293 /12; C-594 /12 decision. It is of note that the EUCJ did not have a problem with data retention per se, but rather with the poor safeguards in the law.

The response in the UK was to enact the Data Retention and Investigatory Powers Act (DRIPA) 2014, an emergency law on data retention that will cease to have effect next year. DRIPA is already in trouble in the courts and the Investigatory Powers Bill will entirely replace it. This is a sorry tale of emergency law-making , and of lengthy and costly litigation. We are not made more safe when the energies of the legislature, executive and judiciary focus on bad laws made in the immediate aftermath of crises. It is an entirely undesirable mode of government.

An unnecessary response

The fast-track Lord Carlile is calling for is also unnecessary. Theresa May, the Home Secretary, assures us that the purpose of the Investigatory Powers Bill is not to introduce broad new surveillance powers. It is, she claims, to consolidate and update the legal basis for such powers. What powers, therefore, are in the bill that cannot wait until its enactment in 2016? And, for the sake of argument, say there are some such powers. Those powers could be laid out in a separate, short, emergency bill, which parliament could then fast-track . A putative Emergency Powers Bill 2015 could fly through parliament, with a sunset clause to ensure that it does not outlive the future Investigatory Powers Act. It would empower the agencies, but not disrupt the legislative process for the bill as a whole.

This would not be without its problems, but it would be better than immediate enactment of a 200-page draft Investigatory Powers Bill. It is hard not to see Lord Carlile’s intervention as a call for the swift passage of the bill because swift passage may now be possible. But this would perpetuate the mistakes of previous legislation: doing in haste what must be done with caution, and with care. As we have set out elsewhere, there is much in the bill that requires improvement through scrutiny by the Joint Committee on Human Rights and the Intelligence and Security Committee. We must not rush.

Devastation and deliberation

Our concerns are not just about the quality of the law. Swift legislative action may have a short-term , palliative effect on the public mood – and who among us is not afraid after the devastation of Beirut and Paris? But this bill, in part, aims to improve public trust of the law enforcement and intelligence agencies. Any short-term public assurance that a fast-track law would bring would soon disappear if emergency law once more proves to be poor law, and if the government is thought to have seen opportunity in crisis.

Most of all, if we fast-track this bill, we lose the opportunity to react to the Paris attacks as a mature democracy. We are in the midst of a constitutional conversation about the role of the intelligence services; about communications and privacy; and about whether, and the terms on which, we will barter our freedom and our security.

It is trite to point out that November’s barbarism is a repudiation of the ideals that underpin our collective commitment to such conversations. In the face of such acts, what we need from our political leaders is not reactionary legislation – it is resilience. The Investigatory Powers Bill requires scrutiny, and then enactment. And this process must be driven by the cool logic of a careful legislature – not the fear we all feel today. Don’t fast-track the bill!