The independent commentary on British political affairs.
The independent commentary on British political affairs.
May 2008
Vol. 11, No. 11
A People's War: Brenda Boardman | The shadow over Brown's plan's to change the way we are governed: … More…
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On July 24 the House of Lords approved a statutory instrument (SI) that will take Britain one step further into the now notorious domain of the ‘surveillance society’. Almost nobody noticed.
The SI in question was enabled by the EU Data Retention directive that mandates member states to enforce a requirement that telephone and mobile phone companies should keep all customer data for at least twelve months, even in circumstances where they would not normally want or need to keep it. This means that from October, information on everyone you call or text, everyone who calls or texts you and every location from which you use your mobile phone will be archived for use by more than 700 local authorities, quangos and departments.
The information can be used for a wide range of purposes: national security, crime prevention (including minor offences), preventing disorder, protecting the country’s ‘economic well-being’, public safety, public health, assessing or collecting any tax, duty, levy ‘or other imposition’ or collecting anything that is owed by anyone to a government organisation.
By any standard this new power is significant, but in the context of personal privacy the idea of creating such a vast reserve of sensitive communications data on the whole population is nothing short of momentous.
One major concern is that the SI permits a vast range of organisations to use this data. These include all police forces, revenue & customs, the security service, the secret intelligence service, government communications headquarters, NHS trusts, the department for transport, the food standards agency, the gaming board, Royal Mail and more than 400 district councils and local authorities.
The government relies on the European Communities Act of 1972 to empower itself to impose statutory instruments without the requirement for fresh legislation (a right that applies as long as there is an EU-wide directive in place on the matter). However, even without this provision the House of Lords has held to a long-standing convention not to block SIs relating to primary legislation. The cloak of invisibility that protects SIs has ensured that knowledge of their provisions is limited, and almost always retrospective.
The use of SIs is endemic. Thousands of them are produced each year (more than 3,500 in 2006). The functioning of nearly all primary legislation requires such subordinate legislation — in the case of the Identity Cards Act more than two dozen such rule-making powers are set out. And yet there is almost no mechanism in place to moderate their use. Government rarely publishes them in draft form, parliament’s role as a watchdog is largely symbolic and the sheer number of SIs being presented each year is such that the relevant committees have little ability to adequately scrutinise the activity — even if they had the resources or opportunity to do so. The Joint Committee on Statutory Instruments, by way of example, concerns itself almost exclusively on drafting rather than substance.
There is a convincing case that the use of these instruments is ripe for reform and that their use merits attention as part of the promised ‘national conversation’ over constitutional reform.
Of course it is true that not every aspect of regulation can be set out on the face of legislation, but an over-reliance on SIs can lead to poorly- or hastily-drafted laws. That overused saying ‘the devil’s in the detail’, so popular on the floor of parliament, applies with disquieting frequency whenever government relies on such instruments to form the practical basis for the functioning, potentially controversial elements of legislation.
Few, if any, would decry the government’s recent commitment to curb the power of the executive. There, however, the consensus ends. The green paper that sets out new options for governance of the UK is admirable in nature, but conspicuously lacks attention to executive reform.
It is a simple matter to suggest, as the government has done, specific changes to royal prerogative, or flag protocol, but it is quite another to reach to the heart of executive power. If government truly wants to rebuild trust, core issues such as secondary legislation must be tackled, no matter how painful the consequences may be.
Placing SIs into a resilient legal framework might be the first practical measure for reform. The government’s own handbook on SI practice says it all: ‘There is no express rule of law as to the manner in which subordinate instruments are to be made.’ Given that most legislative effect in the UK derives from these instruments, there is a powerful case for such a legal footing to be created.
A further step toward reform could be to contemplate the idea that all SIs should be subject to amendment by parliament. Currently, most secondary instruments must be approved in their entirety and without change. The present arrangement, whereby SIs are symbolically presented, approved on the nod and ritually signed into effect by government, could be modified so that these instruments are subjected to greater scrutiny and debate.
In doing so, the government would make an important inroad into creating the sort of trust that it has pledged to build into democratic process.
Simon Davies is the Director of the constitutional reform project ‘Future Britain’ at the London School of Economics. He is also director of the human rights group Privacy International.