This month has seen two very different stories about emergency legislation emerge on either side of the Irish Sea. Here follows the results of my ruminating on the stories (my word of the week after seeing a professorship in non-ruminant science advertised).
In the UK, the Data Retention and Investigatory Powers (“DRIP”) Bill is before the House of Commons today. After a debate on timing, at lunchtime today, it was agreed that all ‘stages’ be taken today. (Normally, legislation gets a broad second stage debate, consideration over a longer period (line by line) in a committee, and a final Commons stage). It’s due before the House of Lords tomorrow. Given the strong support for the truncated timing given by MPs earlier today (only 50 or so voted against), it’s very likely that the Commons will say yes – what the Lords make of it is to be seen.
I signed a letter about this legislation, which has provoked some interesting coverage (e.g. here, here and here). I think that the Government is making a mistake in how it’s handling this legislation. It’s well known that the Court of Justice of the European Union found the Data Retention Directive invalid as a matter of EU law in April. As Judith Rauhofer and I pointed out in our editorial (see part 4), this raised significant questions for the future of national measures adopted on the basis of it, as well as similar replacement measures. The CJEU declared the Directive invalid immediately and also made important points about what safeguards were required as a matter of EU law, including human rights.
Now this could have been a good opportunity for sober consideration of how to draft a new scheme, compatible with EU law and the European Convention on Human Rights, and informed by the engaging public debate on surveillance, security and technology. But readopting the bulk of the EU measure (without necessarily restoring lawfulness), along with some separate ‘clarifications’ (which may have merit in themselves or at least be the basis for further debate), is not a way for Government to establish and defend the legitimacy of data retention and surveillance. It’s inadvisable that this be construed as an emergency. It’s clearly a matter of national importance and I do see the significance of the arguments put forward on the need to have a well-regulated system of intelligence and investigation. And something did have to be done after the CJEU’s decision – doing nothing would be, in my view, still a mistake.
But after the last few years of Snowden, the NSA, Wikileaks, well-founded fears about technological development and all that, now is the time to build support and trust. (The sad thing is that for a lot of people who don’t follow Parliament closely, they are paying attention today and not really seeing democratic deliberation at its best). Today hasn’t achieved the goal of establishing trust and legitimacy, and I’d encourage readers to contact members of Parliament (especially the House of Lords) asking for a proper, careful debate.
Meanwhile, in Ireland, emergency legislation was one of the many proposals put forward to deal with a licensing decision (under the Planning & Development Acts – see part XVI) by Dublin City Council. The decision was significant because it pertained to proposed concerts by Garth Brooks. Promoters had already sold tickets (“subject to licence”) for five concerts at Croke Park (the largest stadium in the city), but the local authority only granted a licence for three. (The full reasoned decision is published here).
One point that seemed to annoy some people was the inability of elected representatives to override this decision. A fair point, if one disregards the sorry history of planning corruption in Ireland and the need to apply the law in a consistent and transparent fashion. So with that in mind, ‘emergency legislation’ was proposed (one Bill was even drafted by an opposition member of the Dáil). Again, I’m not saying that the law is perfect – the controversy has highlighted some areas for procedural change in particular (I taught a course on entertainment law last year – and hereby offer my free services to any official body in Ireland that wants some suggestions). Nor am I unsympathetic to the disappointed ticket-buyers (not least because, having been a teenager in 1990s Ireland, I truly understand that he has a serious fan base – in my day, local radio playlisters first and foremost). But for a licensing system to have credibility, responsible authorities have to be able to say no as well as yes; the sale of tickets for what is at the time an unlicensed event shouldn’t affect this. So while it can be tempting to call for a new law, that also deserves proper consideration – of models from other jurisdictions, for example.
Fortunately, despite a lot of posturing, the Irish parliament didn’t go down that route, and it looks like the concerts aren’t happening at all. Here are some interesting things to read on the topic: Fergal Davis, Rebecca Moynihan & Jane Horgan-Jones, Gene Kerrigan.