Today Open Rights Group has released a thorough response to the government’s consultation on the Investigatory Powers Act Codes of Practice. They draw particular attention to the process itself, which they rightfully call inadequate:
Open Rights Group welcomes the opportunity to respond to these important documents but wishes to express a profound frustration at the consultation procedure and the unhelpful manner in which policy is being formulated.
There was no outreach from the Home Office on the original formulation of these codes, nor these updated drafts. There have been no meetings or workshops to attempt to brief interested parties about the contents of the documents. There is no guidance provided on the changes to the codes from the earlier drafts that were presented alongside the Investigatory Powers Bill nor explanation for why aspects of the codes have changed.
With the five codes totalling 413 pages, simply attempting to identify what changes have been made between versions has been a considerable undertaking, before attempting to discern whether the change was merely grammatical in nature or of more serious consequence.
As just six weeks has been provided to review, consider and respond to the codes the Open Rights Group regrets it has been forced to limit its response to a subset of concerns. This is of course an improper way of conducting policy making in any area, let alone one with such serious implications for our security and human rights.
Aside from the factual issues raised in their report, what concerns me here is that this is the second time I have seen a red flag being raised about inadequate consultation processes and digital legislation within in 24 hours.
We note that these proposals were foreshadowed in the Commission’s VAT Action Plan “Towards a single EU VAT area—Time to decide”. We recommended that this document should be debated in European Committee B early last year.With a complete disregard for the scrutiny processes of the House the Government has failed to yet schedule this debate on major changes to the VAT system. There will have to be a post Brexit VAT regime in the UK; the extent to which it might match the EU regime remains an important question…
As long ago as April 2016 we recommended that this document be debated in European Committee B. But disgracefully the Government has yet to schedule this debate.”
It brings back memories of the consultation process held prior to the implementation of VATMOSS, a process which was so flawed that the EU VAT Action campaign noted it would have been a matter for legal action if they had had the money to raise a case.
In the scrutiny process for another topic – the seemingly boring issue of mobile roaming charges across Europe – that same European Scrutiny Committee retained an issue even after receiving Government’s response on the basis that
“the proposal was cleared on the understanding that the Minister would respond to the Committee’s remaining questions concerning the implications of Brexit for the issue of mobile roaming. A number of these have not yet been answered.”
So clearly standards are slipping. But that was just yesterday’s leisure reading.
Today the Parliament home page carried a story from the Scrutiny Committee warning that “departments may not be dealing with existing dossiers competently in parallel with the Brexit negotiations.” It introduces a full report into the fact that Government, using Brexit as an excuse, is allowing standards, scrutiny, and respect for the rule of law to slip away fast:
The success of the scrutiny system depends on the quality of government engagement with it. We recognise the pressures of preparing for Brexit, but proper scrutiny and parliamentary accountability are part of that preparation. We note the Government’s previous reluctance to comply with the requirements of the scrutiny system by scheduling debates in a timely way. Debates recommended by the Committee are Government business, and can only be scheduled by the Government. As the Leader of the House accepted, the Government would have to think extremely carefully if it was defeated in such a debate. It is imperative that debates on European Union Documents are scheduled, and scheduled in good time, so that the House can make its views known in an effective way. The process of exiting the EU should reaffirm the sovereignty of Parliament, not bypass it.
I read Parliamentary documents and proceedings every day. I know what I see. Parliament sees it too, as does Open Rights Group. What we see should shame us all.
Whatever your stance is on Brexit, the indisputable fact is that Government is using it as an excuse to ride roughshod over Parliamentary scrutiny, transparent consultation processes, and the basic professionalism of responding to the questions asked – even on wholly domestic policy matters which do not concern Europe at all. This is an affront to the democratic values which we, allegedly, are working so hard to reclaim.
It just so happens that many of the regulations that are being shown this sort of contempt concern digital, and by definition, the future of our industry and those who work in it. Our industry is already in government’s sights. If we let this conduct pass for normal now, what message will it send in a few months’ time to those who see the open web, and those of us who work on it, as a threat to be neutralised?
There is no one else who can do it for you.
About the author
Heather Burns is a digital law specialist in Glasgow, Scotland. She researches, writes, publishes, consults, and speaks extensively on internet laws and policies which affect the crafts of web design and development. She has been designing and developing web sites since 1997 and has been a professional web site designer since 2007. She holds a postgraduate certification in internet law and policy from the University of Strathclyde. Learn about hiring Heather to write, speak, or consult.