Surveillance, emergencies and the rule of law

This month, the Global Law Summit will be held in London to celebrate 800 years of Magna Carta and the rule of law. Promoting the anniversary in this way is far more than a whimsical exercise in Whig history: Magna Carta has symbolic importance.

Western capitalist societies enthusiastically praise the rule
of law at home and abroad alongside democracy, freedom and the free market. Tony Blair argued: “Anywhere, anytime, ordinary people are given the chance to choose, the choice is
the same: freedom, not tyranny; democracy, not dictatorship;
the rule of law, not the rule of
the secret police.”

David Cameron introduces the Global Law Summit by suggesting it is “yet more evidence that Britain continues to lead the way in promoting free enterprise, economic growth, and
the rule of law around the world”.

Uncertain concept

Of course, the modern world
of market choice, freedom, democracy and the developed rule of law is a long way from the medieval, feudal world of King John’s Magna Carta of 1215 and ‘the rule of law in embryo’ (Tom Bingham). Medieval England was violent and troubled, and feudalism addressed rulers’
need for armed warriors and agricultural production. The nascent rule of law – not to mention a free market or democracy – was subordinate
to security and survival.

Yet even now, what is really meant by the rule of law, and the circumstances in which the rule
of law can itself be overruled,
are unclear. The House of Lords Constitution Committee’s sixth report (2007) noted the explicit reference to the ‘rule of law’ in section 1 of the Constitutional Reform Act 2005, but acknowledged that despite this legislative appearance, which implied that rule of law was a known quantity, in fact rule of law was “a complex and, in some respects, uncertain concept”.

Western governments increasingly respond to the uncertainties and instabilities of the geo-political and global market environment (terrorism, the global criminal economy, financial crises and austerity) through ‘states of exception’ in which normal legal principles are suspended and mass surveillance is extended. Perhaps the most notorious example of this is Guantanamo Bay – described by one US official as the ‘legal equivalent of outer space’.

Emergency powers

In the UK, the Civil Authorities (Special Powers) Act (Northern Ireland) 1922, originally introduced as emergency legislation but made permanent in 1933, empowered the government to “take all such steps and issue all such orders as may be necessary for preserving the peace and maintaining order”. The Act was the basis for the reintroduction of internment
in Northern Ireland in 1971.

This is not an isolated example of emergency legislation. The Constitutional Affairs Committee has identified more than 30 fast-track Bills since 1974.
These include the Criminal Justice (Terrorism and Conspiracy) Bill 1998, a response to the Omagh bombing, the Imprisonment (Temporary Provisions) Bill 1980,
a response to industrial action by the Prison Officers’ Association, and the Banking (Special Provisions) Bill 2008 to deal
with the economic crisis.

Individually, these 30 bills appear to have a ‘one-off’ character. However, in some areas, including surveillance, it is arguable that ‘exceptional’ circumstances, apparently straining the rule of law, are no longer exceptional. Tony McNulty MP, the then Minister for Security, Counter-terrorism, Crime and Policing, admitted as much
in 2008 when he told the Constitutional Affairs Committee that surveillance is “today’s normality. CCTV, DNA database, and a whole range of these other elements are not there as a response to exceptional threats and exceptional circumstances.
I think that is routine in the 21st century.”

The Law Society regards the recent emergency passage of the Data Retention and Investigatory Powers Act 2014 (DRIPA) as an affront to the rule of law. DRIPA reinstated mass communications data retention – including retention of data subject to ‘professional secrecy’ – after the European Court of Justice invalidated the EU Data Retention Directive. In January,
we launched the Professionals
for Information Privacy coalition
to oppose state monitoring
of communications between professionals and their clients
– an issue we will be exploring further at this month’s Global
Law Summit. SJ

Timothy Hill is the technology policy adviser at the Law Society