Given the events of last week, it hasn’t been long before various wags have been comparing the passage of the Data Retention and Investigatory Powers Act through Parliament with another example of hasty legislation, the Dangerous Dogs Act.
A few are already calling DRIP the ‘Dangerous Logs Act’ – but I think that’s wrong.
Having been (slightly) involved in the discussions that led to the drafting of the DDA, almost exactly 23 years ago, (I was the Association of British Insurers’ Legislation Manager at the time) I thought I should explain why.
The Dangerous Dogs legislation was prepared in great haste during the early part of the summer of 1991, following a spate of dog attacks on young children. The ensuing media commotion and the cry that “something should be done” led to Parliamentary draftsmen being given almost no notice with which to create a legal instrument that would have the effect of assuring the public that sufficient was being done before Parliament rose for its summer holidays. With minimal debate, a short (10 clause) bill was rushed through both Houses of Parliament, and it received Royal Assent on 25 July 1991.
Significantly, the DDA sought to cover four types of dog, and cross breeds of these types. The were the pit bull terrier, the Japanese tosa, dogo argentina and fila Brasiliero. The problem, in classifying the prohibited animals by “type” rather than breed label caused huge problems. No-one had thought about whether, on the face of the bill, there should be a provision to set out who had sufficient expertise to assess whether an animal that was brought before them actually had the relevant offending physical characteristics. So chaos ensued as the initial attempts were made by courts to decide which animals should be put down, and which owners should be prosecuted for acting unlawfully.
The RSPCA criticised the act as like using “a sledgehammer to crack a nut,” and argued that it was wrong to criminalise individual breeds of dog: “Demonising individual breeds does not achieve anything as all breeds can attack people, just as all breeds can produce wonderful dogs.”
In hindsight, this was rushed legislation which was an overreaction to a transient public mood.
Now, lets turn to recent events.
The Data Retention and Investigatory Powers Act was prepared in less haste during the early part of 2014, following an adverse judgment in cases heard by the European Court of Justice, which declared the Data Retention Directive (2006/24/EC) invalid. This was the legislation that provided the statutory underpinning for the data retention obligations that had been imposed on European telecommunications service providers. It became necessary to ensure that the UK providers could have a degree of legal certainty as to what records should be kept and for how long, in order that they could be subsequently made available to law enforcement investigators (when it was necessary and proportionate for them to demand it).
Accordingly, Parliamentary draftsmen created a legal instrument that would have the effect of assuring providers that sufficient was being done before Parliament rose for its summer holidays. With minimal debate, a short (eventually 8 clause) bill was rushed through both Houses of Parliament, and it received Royal Assent on 17 July 2014.
Significantly, DRIP was designed as a short-term measure that would offer some immediate protection to providers, while at the same time enabling Parliament to embark on a longer-term review of the issue of how communications data is used for law enforcement purposes. The longer-term nature of the review means that the major decisions will be made by the Government that is to be formed after the next general election.
Accordingly, this controversial issue has been “parked” by politicians who currently have at least one eye on forthcoming election. Whatever proposals are to emerge from their review of the current legislation will generate a huge degree of media attention. But no political party wants to deal with potentially divisive issues (particularly when elements of the media hold entrenched positions that don’t accord with Home Office views), when their main aim is appearing united and focused on what will really inspire an electorate.
Unlike the DDA, I really don’t think that, in hindsight, commentators will view DRIP as an overreaction to a transient public mood.