The Supreme Court: Our Last Hope?   Leave a comment

The Supreme Court: Our Last Hope?

By Keir Martland

On 15th March 2016 the Investigatory Powers Bill was passed by 281 votes to 15 at Second Reading. Conservative backbenchers competed during the debate over who could praise the Bill the most. Her Majesty’s Most Loyal Opposition presented no principled opposition to the new powers proposed. The Scottish National Party seemed to have a proportionally higher turnout than the Labour Party, and one or two SNP MPs made some very pithy comments. UKIP Leader Nigel Farage has not made it onto the media to denounce the Bill, if indeed that is to be the UKIP line – you can’t tell these days with UKIP – although Steven Woolfe MEP has. Undoubtedly, however, the champions of freedom from within politics at the moment are Conservative backbencher David Davis and the Liberal Democrats.

If Mrs May’s Investigatory Powers Bill, drafted 4th November last year, receives Royal Assent, then the security services and the police shall, for the first time ever, be given the explicit power to hack our telephones and our computers. The Bill also specifies that the last year of our search history is fair game for the police and security services.

In addition, all companies providing a “telecommunications service” to more than 10,000 customers are also to be forced to aid the police and security services in hacking their own customers. This applies to more than just your internet service provider. Facebook will be bound by this law, should it pass.

But it doesn’t stop there. Not only the police and the security services, but any important figure employed by your local council will have access to your telecommunications data. And, call me a cynic, I don’t think it will mean the head of the local waste disposal unit! No, local councillors and their more sinister business interests will be the recipients of any and all data they want.

There are sections of the Bill which purport to limit the new powers. Don’t be fooled. This Bill is poorly drafted, but intentionally so. For example, while there is some provision for judicial approval for data interceptions via a warrant, it is also specified that the Home Secretary can add names to any already issued warrant.

It is a thoroughly beastly Bill. You can read it here in all its glory. Every venomous line of it raises new questions for those of even a mildly libertarian inclination.

Should it pass, and there are enough men and women in Parliament who want a police state for it to pass, it won’t stop there. But even this Bill has the potential to make life in 21st century Britain much more unpleasant than it need strictly be. This Bill has been introduced ostensibly to keep us safe from Islamist terrorism, when in fact the Cameron Government’s definition of “terrorism” is worryingly vague, with action which creates a risk to “health and safety” defined as terrorism by Lord Carlile.

However, there may be some cause for optimism.

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This Bill undermines, or rather, flies in the face of, numerous Fundamental Laws of England, Magna Carta (clause 39) for one. Since Magna Carta is one of the Fundamental Laws of England, Lord Neuberger’s Supreme Court can actually strike down any future Investigatory Powers Act as unconstitutional.

While not a new innovation – the 17th century Lord Chief Justice, Lord Coke, would have agreed with the judiciary’s powers of review in such cases – it has only recently been reaffirmed, with the concept of judicial review over primary legislation having lay dormant largely since the 17th century in England. The power of the judiciary – since 2009 headed by the new Supreme Court – to strike down acts as contrary to the Fundamental Laws of England was established in 2002 in the case of Thoburn v Sunderland City Council. In this ruling, Lord Justice Laws said that there exist such things as “constitutional statutes” and he gave Magna Carta, the Bill of Rights, the Habeas Corpus Act 1679 and others as examples. While he also included the European Communities Act, what he was in effect doing was resurrecting the idea of the ancient constitution, or the Fundamental Laws of England. Given that Magna Carta is what Lord Justice Laws called a “constitutional statute” and that a future Investigatory Powers Act would be incompatible with the former, the latter could be struck down if there was to be a test case.

I would rather that this awful Bill did not pass, just as Blair’s 90 day detention without trial did not pass. There may still be some hope of that as the Bill is now to face the Committee stage, then Third Reading, and even then may be rejected by the Lords. Yet, as I have just said, there is no reason for it to stand even after it has been passed and received the Royal Assent.

For centuries it has been understood that since Parliament is sovereign, in the words of A.V. Dicey, “there is no law which Parliament cannot change.” Constitutional theorists like Walter Bagehot regarded the legislative sovereignty of Parliament as the “efficient secret” of the English Constitution. Therefore, it is perhaps regrettable that the Whiggish idea of the Fundamental Laws of England, if those Laws are to be preserved intact for posterity, must now be turned against the idea of a sovereign Parliament. Indeed Magna Carta was itself instrumental in the creation of Parliament as the ultimate successor to the Council of Barons. The problem is that Parliament is no longer comprised largely of men and women who understand or agree with the important clauses of Magna Carta or any of the other Fundamental Laws of England. It is for this reason that we can only hope that some other institution can save us from the machinations of the Cameron Regime.

How odd would it be if Mr Blair, by establishing the new Supreme Court (i.e. by moving the Law Lords across the road from the House of Lords), had inadvertently done those of us with some regard for the Fundamental Laws of England a favour? What if, having been given a new, Americanised name, an expensive new building, and greater visibility, the Supreme Court took Thoburn v Sunderland City Council to its ultimate conclusion? What if they did something to challenge the legislative sovereignty of Parliament?

We already treat them like American justices; it’s time they behaved like American justices!

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