British legal history has long inspired the common law world. The Magna Carta, an 800-year-old agreement between a King and his barons, remains an icon of liberty, seen around the world as the foundation stone of the rule of law. In contrast, British law on online surveillance and privacy has been arcane and obscure – a field that is for reluctant experts if it is for anyone at all.
The law has largely been developed in reaction to external pressure. The Regulation of Investigatory Powers Act 2000 was the result of a series of judgments of the European Court of Human Rights. The Data Retention and Investigatory Powers Act 2014 was rushed into law after an EU Court of Justice ruling. This piecemeal approach provides a poor basis for investigatory powers and a worse one for privacy rights.
Momentum towards change has been building. The Edward Snowden revelations brought to an end the public’s ignorance – or quiet endurance – of state surveillance operations. So, although last year’s emergency law permits ongoing data surveillance, it also put in motion a review of the powers of intelligence and law enforcement agencies.
David Anderson QC, Independent Reviewer of Terrorism Legislation, led the work. The publication of Anderson’s report, A Question of Trust, may lead to reform that would leave Britain more secure and more protective of privacy. In a state without a formal constitution, whose legal progress can ebb and flow, a new settlement may well be on the horizon.
Such a settlement would be significant beyond British shores. Those sceptical of European influence over British law should remember that the common law does not include privacy protections. British privacy law is the result of European courts’ insistence on the right to private and family life. It has little home-grown heritage. This much is clear from the 1979 judgment in Malone v Metropolitan Police Commissioner, in which warrantless wiretaps were held to be legal, because nothing in the law made them illegal. It was a European court ruling that put the law right.
However, today the EU is struggling to come to a common view on security, surveillance, and privacy, not least because of different legal, political, and social attitudes across the continent. If Britain wants to lead in Europe, and not merely follow, a new constitutional settlement in this field would be a profound way to do so.
The Anderson Report is well aware of the potential for international leadership and it imposes an Atlas-like burden on the legislature:
nothing should be proposed for the UK that would not be accepted if it were adopted by other democratic nations.
Parliament must not, it seems, merely acquiesce in the reauthorisation of state surveillance, but rather develop a system that can guide the world’s efforts.
A new law, perhaps a Communications Security and Privacy Act, could do just that. The Anderson Report sets out five principles to inform the law: to minimize no-go areas, limit powers, ensure rights compliance, promote clarity and transparency, and the pursuit of a unified approach across surveillance agencies. These are strong principles and in the Report 124 recommendations give them effect.
The call to lead by example would not be mere altruism. Just as British surveillance affects those overseas, so too do the systems of surveillance elsewhere affect Britons at home and abroad. A high standard of protection is in everyone’s interests and the transnational diffusion of any new British law could help achieve these goals.
There is already discomfort on the Government’s front bench about the politics of such an effort. The Home Secretary is sceptical of judicial control of surveillance – a key feature of Anderson’s proposals. The Prime Minister commends the Report but speaks of further consultation after further reports from other experts. The impression is of a football team that wants to play the game but only abide by some of its rules. Perhaps the Government hopes that if it drags the match on for long enough the public will get bored and look away.
Of course, the Report leaves certain questions open, the work of consultation is not done, and new law should not be rushed. The proposal to replace three existing oversight bodies with a new Independent Surveillance and Intelligence Commission requires particular care in implementation. But deliberation should not be used an excuse for delay and evasion of reform.
The Anderson Report’s spirit, of transparency, clarity, and precision of thought and expression, should inform the debate on any new law. That debate must engage the public, and not just politicians. Privacy, we must remember, is an individual right, but it is also a collective social good. The new constitutional settlement cannot be for the barons alone.
Indeed, as the world looks on, the British public have something of a global responsibility. As surveillance is increasingly a transnational legal problem, it may not just be Britain, but the world at large, that will get the law the British public endures. The opportunity of the moment should not be lost.
Dr Cian C. Murphy is Academic Co-Director for the Center for Transnational Legal Studies (CTLS)