The data bill debate must move beyond terrorists and Orwell

It is wrong to define the argument over the bill as one between security and liberty.

For almost a decade, the intelligence and policing community has been worried that changes in modern communications – mainly the shift from telephones to more varied devices and networks – would make their work more difficult. And each government of the day has tried (and failed) to push through legislation to update capabilities in the face of staunch opposition.

The latest attempt is the draft Communications Data Bill. To recap, the Bill aims to improve government access to internet "communications data" (who, when, and where you communication with someone, but not what you say to them). Communications data are vital for law enforcement, intelligence work and the Crown Prosecution Service. When these agencies needed this information, they used to go to the small number of telecommunications companies who collected it. Now of course we communicate via e-mail, social media messaging, phone apps, game platforms and more - so now communications data are being generated by all sorts of companies who don’t routinely collect or save it, and so it's not always there when needed. The Bill is asking/demanding/paying relevant companies to collect and retain it, so that such data is available on request.

Such was the furore when it was announced back in April that a pre-legislative joint committee was scrambled to calm the maelstrom and review the proposals. Today it published its report. Anyone familiar with the Bill would not have been surprised by its findings. To sum it up as briefly as possible: yes, the government needs to improve access to communications data, but the Home Office did not make the case well enough, nor consult widely enough. The powers contained in the Bill are too broad in scope - and greater oversight is needed. Go back and re-draft it. The committee has been extremely diligent (and I hope David Davis MP will apologise to the chair, Lord Blencathra, whom he had little faith in). But I think there are three big lessons from this whole affair.

First, the bitter rancour surrounding this Bill is caused by a fundamental problem. State surveillance needs to be proportionate and necessary, but these words are losing all meaning, because no one really understands the technology and the possible risks and benefits that come with it as internet-enabled devices become ever more ubiquitous, least of all our law makers.  When critics protest the measures will not work, or 'we're the only country that does this', the Home Office are unable to respond with technical details for obvious reasons. And the government wants to make the legislation broad – ‘future proofed’ - because the technology will have moved on again soon, and they don’t want to go through this again in two years. This Civil liberty groups, understandably, weren’t too pleased about that. This is going to get worse in future.

Second: terrorism and paedophiles do not automatically trump digital rights. The Home Secretary, Theresa May, has consistently argued the new Bill is essential to tackle terrorism, serious crime and paedophilia. She may have believed that any law strengthening powers to do that would be more or less accepted. In that, I believe she may have underestimated how important digital freedoms and data sovereignty are to people today. Surveys consistently show that data and privacy are among the top concerns citizens have. The online and privacy community – often tech savvy, networked, and highly defensive of internet freedom – are a powerful lobby group.  

Third, any legislation about security powers tends to degenerate quickly into a debate about terrorists versus an Orwellian dystopia. Last Monday, in an interview with the Sun, the Home Secretary said that anyone against the draft Bill is putting politics ahead of people’s lives; and came close to saying anyone opposed to the Bill is taking the side of those criminals, terrorists and paedophiles. It was an unfortunate and inaccurate charge levelled against the Bill’s many thoughtful and principled opponents. But the Bill’s opponents have also been alarmist by (inaccurately in my view) calling it a "snoopers' charter" and claiming it represents mass internet surveillance. Suggestions that this Bill would put us alongside China, Iran and Khazakstan are wholly inaccurate. When giving evidence to the committee, the Observer journalist Henry Porter (who also called the Bill the "megalomaniac dream" of a senior civil servant) said that these measures could become "the structure for a police state" – something the Crown Prosecution Service and others that have actually used communications data dismissed.

Ignore the papers this morning: the committee’s response is a sober and careful one. At core, it recognises that the philosophical pros and cons of the Bill are not really about security versus liberty, but the more nuanced debate of pro-active data collection (collecting and retaining data so it’s there if you need it) against a more limited one (using what you have), and whether we need to ‘future proof’ law of this kind (it thinks not). It realises that modern communication has changed dramatically, and law enforcement must keep up, including in designing a regulatory system that reflects the changing concerns people have about privacy. It recognises this is not easy and will ultimately fall to Parliament.

This means going back and re-drafting a Bill that trades a bit of operational secrecy for clarity about when and where the measure will be used. Above all, the Home Office should consult more widely, and then set about some improved drafting to eliminate worrying ambiguities, give a tighter clarity of purpose, and include tougher scrutiny and oversight. A revised Bill could keep both sides content.  This is all less interesting than terrorists and Orwell, of course, but then making law usually is.

Jamie Bartlett is the head of the Violence and Extremism Programme and the Centre for the Analysis of Social Media at Demos.

Home Secretary Theresa May warned MPs who oppose the bill: "Do not put politics before people’s lives." Photograph: Getty Images.

Jamie Bartlett is the head of the Violence and Extremism Programme and the Centre for the Analysis of Social Media at Demos.

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Winning Scottish independence will be even harder than before - but it may be the only choice

Independence campaigners will have to find answers on borders, currency and more. 

The Brexit mutiny has taken not just the UK economy and its relationship with Europe into uncharted waters. it has also imperilled the union between Scotland and England. From Sir John Major to the First Minister, both Unionists and Nationalists had warned of it. The outcome, though, has made this certain. The Leave vote in England and Wales contrasted with an overwhelming Remain vote north of the border.

That every region in Scotland voted to stay In was quite remarkable. Historically, fishing and industrial communities have blamed the European Union for their woes. That antagonism was probably reflected in lower turnout - an abstention rather than a rejection. 

The talk now is of a second referendum on independence. This is understandable given the current mood. Opinion polls in the Sunday Times and Sunday Post showed a Yes vote now at 52 per cent and 59 per cent respectively. Moreover, anecdotal evidence suggests even arch No vote campaigners, from JK Rowling to the Daily Record, are considering the option.

The First Minister was therefore correct to say that a second referendum is now “back on the table”. Her core supporters expects no less. However, as with the economy and Europe, the constitutional relationship between Scotland and England is now in uncharted seas. Potential support for independence may be higher, but the challenges are arguably bigger than before. The difficulties are practical, political and geographic.

Of course the Little Englanders likely to take the helm may choose a velvet divorce. However, given their desire for the return of the Glories of Britannia that’s improbable. They’re as likely to wish to see Caledonia depart, as cede Gibraltar to Spain, even though that territory voted even more overwhelmingly In.

Ticking the legal boxes

Practically, there’s the obstacle of obtaining a legal and binding referendum. The past vote was based on the Edinburgh Agreement and legislation in Westminster and Holyrood. The First Minister has indicated the democratic arguments of the rights of the Scots. However, that’s unlikely to hold much sway. A right-wing centralist Spanish government has been willing to face down demands for autonomy in Catalonia. Would the newly-emboldened Great Britain be any different?

There are no doubt ways in which democratic public support can be sought. The Scottish Government may win backing in Holyrood from the Greens. However, consent for such action would need to be obtained from the Presiding Officer and the Lord Advocate, both of whom have a key role in legislation. These office holders have changed since the first referendum, where they were both more sympathetic and the legal basis clearer. 

Getting the EU on side

The political hurdles are, also, greater this time than before. Previously the arguments were over how and when Scotland could join the EU, although all accepted ultimately she could remain or become a member. This time the demand is that Scotland should remain and the rest of the UK can depart. But will that be possible? The political earthquake that erupted south of the Border has set tectonic plates shifting, not just in the British isles but across the European continent. The fear that a Brexit would empower dark forces in the EU may come to pass. Will the EU that the UK is about to leave be there for an independent Scotland to join? We cannot know, whatever European Commission President Jean-Claude Juncker may be saying at the moment. The First Minister is right to start engaging with Europe directly. But events such as elections in France and the Netherlands are outwith her control. 

Moreover, currency was the Achilles heel in the last referendum, and hasn’t yet been addressed. George Osborne was adamant in his rejection of a currency union. The options this time round, whether a separate Scottish currency or joining the euro, have yet to be properly explored. A worsened financial situation in the 27 remaining EU members hampers the latter and the former remains politically problematic. 

The problem of borders

Geography is also an obstacle  that will be even harder to address now than before. Scotland can change its constitution, but it cannot alter its location on a shared island. In 2014, the independence argument was simply about changing the political union. Other unions, whether monarchy or social, would remain untouched. The island would remain seamless, without border posts. An independent Scotland, whether in or out of the EU, would almost certainly have to face these issues. That is a significant change from before, and the effect on public opinion unknown.

The risk that's worth it

Ultimately, the bar for a Yes vote may be higher, but the Scots may still be prepared to jump it. As with Ireland in 1920, facing any risk may be better than remaining in the British realm. Boris Johnson as Prime Minister would certainly encourage that. 

David Cameron's lack of sensitivity after the independence referendum fuelled the Scottish National Party surge. But perhaps this time, the new Government will be magnanimous towards Scotland and move to federalism. The Nordic Union offers an example to be explored. Left-wing commentators have called for a progressive alliance to remove the Tories and offer a multi-option referendum on Scotland’s constitution. But that is dependent on SNP and Labour being prepared to work together, and win the debate in England and Wales.

So, Indy Ref The Sequel is on the table. It won’t be the same as the first, and it will be more challenging. But, if there is no plausible alternative, Scots may consider it the only option.

Kenny MacAskill served as a Scottish National MSP between 2007 and 2016, and as Cabinet Secretary for Justice between 2007 and 2014.