Don’t Fast-Track the Investigatory Powers Bill: A reply to Lord Carlile – Natasha Simonsen and Cian Murphy

16 November 2015 by Guest Contributor

Lord Carlile QC, former Independent Reviewer of Terrorism Legislation, has said that in the aftermath of the Paris attacks last weekend, 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’s 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. 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 struck down the Directive in its Digital Rights Ireland decision. It is of note that the Court of Justice didn’t 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 2014 (‘DRIPA’) – 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. 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 next year? 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 it does not out-live 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 Bill. It’s 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 amongst us is not afraid after the devastation of Beirut and Paris last week? 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 last week 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 last week’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.

Natasha Simonsen & Cian C. Murphy are faculty members at The Dickson Poon School of Law, King’s
College London.