In Praise of Theresa May

November 6, 2015

Some people say nasty things about Theresa May, indeed some of her fans say things about her that I wouldn’t regard as flattering if said about me. But she deserves some credit for the draft Investigatory Powers Bill.

You will probably by now have acquired a view on the virtues or evils of this particular piece of legislation. What cannot be disputed is that the draft bill has two virtues. First, it drags out a series of powers and lays them beneath the Parliamentary spotlight – the use (or misuse) of the Telecommunications Act 1984, s 94 being the obvious example of a power that will now be more transparently controlled. Secondly, and gloriously, it is a draft bill – it is subject to change to an even greater degree than a bill formally presented to Parliament.

I am sure that many will feel that the procedure is a sham and that Home Office minds are made up. Many tech lawyers will despair when they see political expediency trump legal clarity. Many technologists will see populism triumph over technical feasibility. Fight against any inclination to despair.

The presentation of this draft bill presents a superb opportunity for tech lawyers to apply their special expertise. Of course, many will have client expectations that require them to lobby for a change here and there. Others will have entrenched views on the fundamental balance between the handling of security threats and the maintaining of personal security through privacy and these can easily blinker them. And then there is the temptation to throw up one’s hands when one sees the process tacking on the gale generated by an ill-informed tabloid headline while the warnings of choppy waters from informed sources are ignored. None of that should put tech lawyers off aggressively contributing to the process of transforming the draft bill into cogent legislation that will have long-term effect and bring greater clarity to a murky area.

The contribution must be three-fold. Obviously it should include clarification and acting as a bridge between experts in technology who are befuddled by the (inevitable) complexity of legislation. And that role does not only extend to explaining the effects of the legislation to that befuddled technologist it should encompass explaining to the Home Office any aspect of the technology that will undermine the law. Secondly, IT lawyers have a role to play in making sure that, by the time this draft bill is enacted, we end up with an Act of Parliament that is as clear as it can be. Finally, and whatever one’s views on the merits of the broad approach taken by the Home Secretary, technology lawyers should do their best to ensure a public debate about these matters. That role clearly would include doing what can be done to ensure that any debate is informed and accurate. But what seems to me to be even more important is that the debate should recognise that the issues addressed in the draft bill have a fundamental impact on every member of British society.

In short, Theresa May has allowed us an opportunity to get involved. When tech lawyers are so well placed to contribute, not taking up that opportunity is not just a chance missed but a responsibility shirked.