With the sheer amount of chaos that has erupted following the EU referendum, our forward vision is clouded and obscured, and as the debate rages on, this situation appears unlikely to change any time soon. For now, we are waiting to see what happens: what will our relationship with Europe look like, who will lead the Government, will Jeremy Corbyn remain the leader of the official opposition, will we see another Scottish Independence vote, and will there ever be a plan for Brexit? However, while we wait to have these questions answered, the Investigatory Powers Bill continues apace through Parliament.
Unseen by most of the media and public, the bill received its second reading in the House of Lords on June 27. This is a bold and complex piece of legislation, unprecedented in its scale and ambition, which is underpinned by complex issues including privacy, intelligence sharing and data protection that cannot be treated in ignorance of the role of the EU. The importance of the EU in standardising data protection practices and thresholds cannot be underestimated. It is the foundation of many of the powers in the IP Bill and how data is shared within and without the EU. So with our relationship with Europe about to change in the most drastic manner since our membership commenced, it is farcical to believe robust analysis can be undertaken.
Organisations such as Open Rights Group have called for the bill to be halted until a stable and balanced political system exists to ensure it is given the level of scrutiny necessary. We cannot pretend the EU referendum didn’t happen; nor can we continue to use the threat of national security as a justification for the expedited debate on the IP Bill, irrespective of the broader political issues shaping our society. If we do, we will be left with a bill that is unworkable in its technical obligations and overly invasive in its compatibility with our fundamental rights to privacy and free expression. The UK will be significantly weaker as a result.
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Haste has defined the passage of the bill through the House of Commons. The current situation, which sees the country’s attention split between the EU referendum result and leadership battles commencing both in government and in the official opposition, further limits the public and political scrutiny offered to this divisive legislation.
The Court of Justice of the EU ruling in the Schrems case regarding Safe Harbour (the manner by which data can be transferred between Europe and the US) and the pending ruling on DRIPA demonstrates how interwoven our laws are with Europe. Prior to the commencement of negotiations and the evocation of Article 50, we cannot assume the legal landscape will remain the same as was originally envisaged when the IP Bill was announced to Parliament.
This was highlighted in December of last year by Open Intelligence who stated: “Given Schrems, it is doubtful that a UK with a board power IP Act in place outside the EU would be seen as ensuring an adequate level of protection of personal data to allow the transfer of data to or through the UK under EU legislation”. The IP Bill does not appear to be Brexit-proof; we should only be debating the bill when we know what our relationship with Europe looks like.
This state of flux was identified by Lord Rosser in the bill’s second reading in the House of Lords where he stated: “The resignation of our European commissioner does not suggest our involvement with and influence in the EU and European organisations will continue at the present level until the necessary negotiations on our withdrawal have been completed”.
It is far too early to have any idea what the new level of cooperation will look like and this turmoil is not the environment within which we should consent to the unprecedented expansion of surveillance powers as demonstrated in the IP Bill.
The EU referendum result cannot be allowed to be a smokescreen behind which the IP Bill is snuck through with limited public scrutiny, nor must it obscure the complex interplay between the UK and the EU on core issues that underpin both this bill and intelligence sharing in the modern world. If this debate were to continue, it only serves to highlight once again the fragility of the democratic façade that underpins our legislative process.
Nik Williams is Policy Advisor for Scottish PEN.