In most democratic countries, making laws is a slow and laborious process, and deliberately so. It is such an important task that it is often shackled with all manner of checks and balances to prevent abuse of power. The feeling among constitutional framers was that waiting a long time for legislation to pass is a small price to pay for having good laws on the books, and it makes it difficult for freedoms to be curtailed.
It is therefore alarming to privacy advocates that the British government is fast-tracking legislation through the House of Commons aimed at allowing the authorities to continue to access telephone and internet records. What critics are calling the “snooper’s charter” does not require companies to log the content of all communications, but it does require them to retain twelve months’ worth of meta data such as when calls were made, what numbers were dialed, internet browsing histories and so on. However it allows a “legal intercept” to be made, whereby a target can be identified for additional monitoring, in which case the contents of the communication can be monitored.
Why the rush? In April the European Court of Justice struck down existing powers brought about by way of an EU directive, and David Cameron’s government wants British law clarified. Other EU member states are also going to have to make their own arrangements to clarify their laws in the absence of an EU-wide directive. The British government is arguing that service providers are being threatened with legal action by privacy advocates if they do not start destroying data, and the feeling is that some of that data could be vital in criminal cases.
The Liberal Democrats and the opposition Labour Party have agreed to support the legislation, but with a considerable number of strings attached. These conditions, which were initially resisted by Mr Cameron, include a range of measures to ensure “transparency and oversight.” A Privacy and Civil Liberties Oversight Board will be established to assess the impact on civil liberties, annual reports will have to be published on how the powers are used, the number of public bodies that can ask for communications data will be restricted, and other checks and other measures will be taken to prevent abuse.
In justifying the high speed legislation the Prime Minister raised the usual specters of organized crime, paedophiles, Isis, and al Shabab. This may play well with conservative voters who respond well to fear-based campaigning, but will meet with skepticism among others. The catastrophic and unprovoked war in Iraq, waged on trumped-up charges, has made a lasting impression on people’s willingness to trust government warnings about threats from evil-doers.
The opposition Labour Party has expressed concerns about the rushed process to get the law on the statute books before the summer recess, but the party leader Ed Miliband has expressed support for the law and will support it.
However parliamentary support for the legislation is not unanimous. David Davis, a Conservative backbencher and former shadow home secretary, has described the situation as a “theatrical emergency” and says that officials have been aware of the court’s ruling since April and there has been plenty of time for ministers to get a response through Parliament with proper scrutiny. “This is complicated law, it needs to be got right,” he says.
The emergency law will lapse in 2016, after the next general election. After that, any renewal will be subject to review through the usual parliamentary channels, but skeptics will continue to wonder why such scrutiny cannot take place now, or why the opposition is not doing a more thorough job of testing government policy to destruction.