The Justice Secretary, Kenny MacAskill, has a point in criticising the UK Government for failing to consult with the Scottish Government on the vexed question of fast-track anti-terror legislation.
The Data Retention and Investigation Powers Bill will ensure that police and security services maintain existing powers to access mobile and internet data in order to help tackle terrorism, child pornography and drug trafficking.
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The three main UK party leaders had already made a pact to support the legislation when the Prime Minister and Deputy Prime Minister announced the plans yesterday. Mr MacAskill said he was disappointed by the lack of consultation, and with good reason. As he points out, the law will impinge on areas under the jurisdiction of the Scottish Government. Even with a piece of emergency legislation, it should not have been beyond the wit of Westminster to consult with colleagues in the devolved administrations.
This oversight seems particularly strange in view of the sensitivities in relations between Holyrood and Westminster as the referendum campaign enters its final phase. It is also questionable whether it was necessary to wait until now to introduce the Bill. Tory MP David Davis, a long-standing champion of civil liberties, has called it a "theatrical emergency" since officials were aware of the need to act since April. There is cross-party disquiet about the rushed nature of the Bill, with Labour backbencher Tom Watson expressing concern that it is being rushed through at a time when not all MPs will be present. It is always, of course, a pained process to balance civil liberties against the ability of law enforcement agencies to keep citizens safe.
If security personnel are to have access to the private thoughts of citizens, they must be able to do so only within tightly controlled parameters. There is some reassurance to be had in details regarding the legislation. It will maintain the powers police and security services already have, rather than add to them.
In addition, those powers are being renewed with additional safeguards (for which the Liberal Democrats are likely to be responsible), such as a sunset clause that would terminate the legislation at the end of 2016, thereby forcing the Government to bring forward a new Bill that could, and should, be properly and fully debated. A Privacy and Civil Liberties Oversight Board will be created and the number of public bodies that might request data will be restricted. Importantly, so-called transparency reports will show how surveillance powers are being used.
Passing the law should only be the beginning of the process. This is a stop-gap piece of legislation and careful consideration of its replacement must begin immediately; it will not be acceptable simply to try to push through the same law yet again once it comes up for review. Such a law can only be justified based on clear evidence of preventing harm.
Some will see expediency in the rushing through of this Bill. A wide-ranging public debate on civil liberties must follow its introduction.
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