Britain’s response to the attacks in Paris

IMG_0250This post brings together two similar pieces I wrote in response to the terrorist attacks in Paris in November 2015. They focus in particular on the potential impact of events in Paris on the passage of the Investigatory Powers Bill currently making its way through Parliament. The first longer piece appeared on the Democratic Audit blog on 20th November. The second shorter piece also considers the implications of the attacks in relation to the operation of NATO. It was published on the website of the Lincolnshire Echo on 16 November.

Parliament must not be marginalised in Britain’s response to the attacks in Paris

In times of crisis, particularly when issues of national security are at stake, it is customary for Parliament to defer to the Executive. There can be very good reasons for this, if a situation is fast moving and requires a quick and decisive response, or if the government is in possession of intelligence of a threat which it does not feel able to share with parliament. However, such occasions are rare and there are also very good reasons to argue that it is at times of crisis or national emergency that Parliament should more closely scrutinise the powers of the Executive. Such scrutiny should aim to ensure that governments do not seek to take advantage of circumstances to force through measures which have previously been rejected, or to ensure that special measures introduced to deal with particular circumstances do not remain on the statute books in perpetuity.

It is, therefore, vital that Parliament is not marginalised in the government’s response to the recent terrorist attacks in Paris or in the development of a strategy for dealing with the wider threat of international terrorism. The attacks in Paris coincide with an ongoing debate about the powers of the intelligence and security agencies in the UK. The draft Investigatory Powers Bill, which was published a little over a week ago, provides for controversial new surveillance powers including the bulk retention of communications data, something which had previously been rejected by Parliament.

The government has recognised the complex and controversial nature of the Investigatory Powers Bill and has allowed for a long period of pre-legislative scrutiny. The draft Bill will be subject to scrutiny by a Joint Committee of Parliament, the Intelligence and Security Committee has said that it will also look at the Bill and other parliamentary committees may well take an interest. The government has also invited comments from industry, academia and civil liberties groups. In a rare intervention, the Director-General of MI5 has also called for a mature debate on surveillance powers. While there is clearly some element of perception management in all of this, it is nevertheless, a welcome opportunity for substantive debate about intelligence agency powers, and is in marked contrast to previous legislation relating to the intelligence and security agencies which was subject to relatively scant parliamentary scrutiny and generally made it onto the statute books unchanged.

The attacks in Paris have not changed the debate about surveillance in the UK but they have intensified it and they may well have foreshortened it. The immediate response of some to the Paris attacks has been to suggest that the case for the Investigatory Powers Bill has now been made and that detailed scrutiny should be curtailed. On Friday’s edition of the BBC’s Newsnight, while the attacks were still going on, Nadhim Zahawi, Conservative member of the foreign affairs select committee used the attacks to justify the Investigatory Powers Bill, asserting that it was necessary to ‘help our police and intelligence agencies to track those people electronically’. On Sunday, Lord Carlile, formerly the Government’s independent reviewer of terrorism legislation, asserted that the Bill gave the intelligence agencies all the powers they now need to fight terrorism and asserted that ‘I and other politicians want this Bill to be expedited, so that rather than becoming law by the end of 2016, which is the plan, it should become law as soon as possible.’ The Prime Minister also suggested that scrutiny might be foreshortened when he told the Today programme on Monday morning that ‘we should look at the timetable’ for the Bill. The government’s decision on Tuesday to bring forward an announcement of further resources for the intelligence and security agencies, a decision which had clearly been made before the attacks in Paris, have further added to the sense of urgency around the Bill.

Such statements have raised obvious and understandable concerns that the attacks in Paris will be used as a pretext to ‘fast-track’ legislation through Parliament without proper scrutiny. As others have observed, good legislation is rarely made in haste, nor, one might add, as an immediate response to individual events. Britain’s recent experience with anti-terrorism legislation is an object lesson of the problems associated with such an approach. Between 2001 and 2010, Labour introduced a raft of anti-terrorist legislation in response to terrorist attacks (9/11, 7/7) or, more often than not, in response to court rulings that elements of previous legislation (detention without trial, control orders, asset-freezing) were unlawful.

The coalition government’s attempts to bring forward legislation on the collection and retention of communications data were similarly faltering. It is important to remember that the draft Investigatory Powers Bill is not a response to the terrorist threat from ISIS, or any other group, but rather to a series of legal challenges and inquiries which have cast doubt on the legality of the intelligence agencies’ surveillance activities and the effectiveness of the current regulatory framework under which they operate. Earlier this year the European Court of Justice ruled that elements of the Data Retention and Investigatory Powers Act, which the Investigatory Powers Bill will replace, were incompatible with EU law. The Investigatory Powers Tribunal also ruled that bulk communications data collection had been unlawful and that the communications of civil liberties groups including Amnesty International had been unlawfully intercepted. There has also been considerable debate about whether the communications of some groups including lawyers, journalists and MPs, which have variously been presumed to be privileged should be subject to further protections. The current reviewer of anti-terrorism legislation, David Anderson, described the current arrangements for interception of communications as ‘undemocratic, unnecessary and – in the long run – intolerable.’

Legislation which is not subject to substantive, detailed and sustained scrutiny is unlikely to enhance national security. It is vitally important not only that the intelligence agencies have the powers they need to combat the terrorist threat but also that they operate within a sound legal framework. Failure to provide such a framework will undermine the work of the agencies and lead to the unwelcome distraction of further legal challenges. The government’s initial proposal to consult widely on the draft Investigatory Powers Bill was a good one. It is hard to avoid the conclusion that in responding to the attacks in Paris some, including perhaps the Prime Minister, have been swayed by Churchill’s maxim to ‘never let a good crisis go to waste’. However, relying on a sense of urgency in order to get measures onto the statute books will not make for good law and does a disservice to the intelligence agencies and those they are tasked to defend.

Britain’s response to the terror attacks in Paris

The terrible attacks in Paris on Friday will raise understandable concerns about the threat of further terrorist attacks, including in the UK. Although Paris has suffered two serious attacks this year the government will be keen to ensure that the British public are not complacent about the threat of attacks in the UK. The system of publishing threat levels within the UK was introduced following the Bali bombings in 2002. The current threat level of ‘severe’ has been in place since August 2014 when it was raised in response to the conflict in Syria. The government has not chosen to raise that to the highest level, ‘critical’, which means that it does not at this time have specific intelligence of an imminent threat of attack within the UK, but that could of course change at any time.

In the longer term these attacks will certainly change the context in which the government is seeking to introduce controversial new surveillance powers for the British intelligence and security agencies, which were included in the draft Investigatory Powers Bill published a little over a week ago. While supporters of the Bill will wish to stress that attacks such as these reinforce the need for additional powers. Opponents of these proposals, including many within the Prime Minister’s own party, will argue that what is needed is better intelligence about what are often known threats, rather than additional powers to facilitate mass surveillance.

The attacks will also once again raise the possibility of another Parliamentary vote on British participation in military action in Syria. The Prime Minister will not want to risk losing another vote on this issue and is therefore only likely to seek one if he is confident of winning. However, the Paris attacks will certainly strengthen the arguments in favour of intervention. One factor which may influence parliamentary opinion here is the response of Britain’s NATO allies. President Hollande’s declaration that the attacks amount to an act of war raises the possibility of an invocation of article 5 of the North Atlantic Treaty, which states that an armed attack against one member state constitutes an armed attack against them all. The only previous occasion on which article 5 has been invoked was following the attacks of September 11, 2001. Crucially article 5 does not specify how member states should respond but there would be considerable pressure for Britain to stand by her allies in this case.

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