This week the home secretary, Theresa May, gave her speech to Conservative Party Conference, setting out her proposed counter-terrorism measures. The key message from her speech was that crime is changing and that the public should be aware that the threat is now now on their door step. Whilst the Home Secretary was keen to stress the threats and announce her proposals on how to tackle them, there was little detail of how those measures will impact on ordinary member's of the public's own lives.
The home secretary declared that she would bring back the Communications Data Bill if the Conservatives win a majority at the next election. This is the same piece of legislation that was nicknamed the snoopers charter by its adversaries as it required the Internet Service Providers and mobile phone companies to maintain records (but not the content) of each user's internet browsing, social media activity, emails, calls, internet gaming, and mobile messaging services.
Whilst surveillance legislation that is fit for the digital age is welcomed, it is widely recognised that in order to win over the public they must be told how the UK's surveillance laws are being used. Evidence must also be provided to prove the current oversight mechanisms are adequate. This is particularly pertinent in light of the revelations that these very powers have been used by police to access British journalists' phone records.
It is also worth noting that in 2012, a YouGov poll, showed that only 6% of the public thought that the Government had made a clear and compelling argument for the Bill. 71% also said they didn't trust that the data collected would be kept secure.
It would therefore be reckless to attempt to legislate for further surveillance powers before the independent review of the existing legal framework has taken place. This is not merely a view held by civil society, but one that is supported by a broad political consensus including the deputy prime minister, the shadow home secretary and the Home Affairs Committee.
The public would have more sympathy for the powers if there was an evidential basis that they actually prevented serious crimes and terrorism from happening. This is the problem with the additional announcements that the home secretary made to strengthen the Terrorism Prevention and Investigation Measures (TPIMs) and to introduce Banning Orders and Extremism Disruption orders.
If you look at the TPIM system, where individuals are placed under house arrest and other freedoms of expression and association are curtailed all without a judge and jury being involved, it has undoubtedly been ineffective. These individuals have their communications data and conversations monitored, yet an outdated convention which prevents that very evidence being used in court means they cannot be locked up. Indeed the 2013 review by David Anderson QC, the self-styled anti-terrorism legislation watchdog, revealed that the Crown Prosecution Service was unable to prosecute any of the ten individuals under TPIMs due to "sufficient evidence of their guilt cannot be deployed in an open criminal court."
So what's the answer? Adding further arbitrary restrictions to their freedoms certainly isn't, but allowing intercept evidence in court as a way of helping to resolve any evidence gap may well be.
The home secretary was also clear that the government is not just interested in restricting the freedoms of those that pose a terrorist threat to us, but to all those that could cause a threat to "public order". By anybody's standards this is an enormously broad definition. Whilst we are still waiting to see the detail of the proposals, it is clear that any legislation that has the potential to impact on the freedoms of ordinary members of the public must be done so with a clear head, and the Home Office should absolutely recognise that.
They must only look to the example of the National Domestic Extremist Database, which the public were told would only contain details of those who posed a serious threat to national security. Yet we know that councillors, London Mayoral candidates and ordinary members of the public who have done little more than organise meetings on environmental issues are on the database. We already have a system to tackle extremists that cloaks itself in mystery, refusing to divulge simple details of how many people are on the Extremist Database and the criteria for being added to it.
The home secretary must be very clear about how effective her proposals will be in curtailing those who pose a serious threat to the UK and what the potential consequences for ordinary members of the public will be. Undoubtedly she must act to ensure that the police and intelligence agencies across the country have the power and expertise to protect the public from all those who pose a threat to our country, but this must be shrouded in a system due legal process, transparency and accountability.