In a surprise move, the coalition government has announced a fast-track piece of legislation, designed to oblige Internet and mobile telephone service providers to retain the meta-data of call, text, and Internet activity of their users.
David Cameron has stated the need to act quickly in ensuring national security, citing current events in Iraq and Syria as reason not to scale back our capabilities for data interception. The early response to this move has been backbench dissatisfaction with a perceived rushing of parliamentary protocol, effectively stifling the opportunity for public debate before the summer recess. This response is, however, very narrow-minded and fails to recognise the broader shaping of the issue following the next general election.
The collection of meta data has, since the Edward Snowden revelations in 2013, continued to grow as a controversial issue on both sides of the Atlantic. Public disquiet about the ability of intelligence services to access the details of telephone and internet usage has resulted in major moves both in Washington and Whitehall to address the issue and curtail the activities of the intelligence services.
In Whitehall this even resulted in the first televised session of the Intelligence and Security Committee, where the heads of Britain’s three services – SIS, MI5 and GCHQ – took questions on matters raised by Snowden’s leaks.
Sunset clause
While criticism has emerged from backbenchers about the speed of passage in this legislation, another criticism has yet to be raised. This is the concern that the government is actually legalising activity that benefits intelligence collection both for law enforcement purposes and for national security. This carries echoes of the controversy in the 1980s over MI5 operations, focused at the time on the perceived ability for that service to tap telephones and break into the homes of anybody it chose. That activity was formalised in the 1988 Security Service Act, the key criticism of which was that it simply legalised official burglary. A similar criticism of this latest legislation should be expected.
This criticism should rightly be kept in mind, however a key detail that has so far eluded analysis in the coverage of this legislation has yet to be dealt with, which serves to mitigate the previous criticism of such legislative attempts. This is the two-year shelf life of the bill, announced by Downing Street as the “sunset clause” ensuring that this piece of legislation expires at the end of 2016. This will force the next government to revisit the issue and legislate again during the next parliamentary cycle.
This clause is hugely significant, in that it creates the opportunity in Britain for a prolonged and engaged public debate on the regulation of data collection, leading to the development of robust and enduring legislation. The issues of privacy, the right to forget, the regulation of data collection and the ability to ensure national security through enabling our intelligence services to function, can all be addressed in full measure.
The government has effectively adopted the same measure as it did for discussion on the Trident nuclear replacement – it has deferred the debate until long after the next general election.
Deferring the debate has received criticism, notably from the shadow home secretary, Yvette Cooper, who raised the question why can we not debate the issue now? She cites that the European Court ruling – which this legislation is being introduced to counter – as having taken place in April, meaning that plenty of time existed for discussion. There is some justification to her argument that the debate could have started several months ago with this development – and that the coalition has already been too slow.
Time for a broad debate
But the decision to defer does carry significant advantages: first is that a prolonged public debate can emerge that makes use of full parliamentary process, at a time which avoids being an primary election issue. As well as this, the fact that it is tabled for a period following the next national security and defence review which is scheduled for the autumn next year means that such a debate can be framed around an up-to-date assessment on the national security requirements that Britain faces. And unlike at present, where the implications of this legislation cannot be robustly analysed, deferring this debate prepares us for what lies on the horizon.
What lies on the horizon is that a dramatic shift in the legislative regulation of data collection will be coming this decade; one that will shape the online behaviour of Britons in dramatic ways in the future. It will also represent a potentially dramatic shift in how we legislate the activities of our intelligence services, the like of which has not been seen in more than 20 years.
It is rare to enjoy a position of advance notice of a major policy and legislative issue. So rather than lament the lack of consultation over this temporary piece of legislation, right now attention should turn to the future opportunity presented. This is that the government has shaped a possible timetable and agenda for this major issue to be properly debated. Preparation must now turn to establishing how we want to shape this debate as we move ahead to 2016.