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.
Sources:
Image
credit:
.
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