Last week, the Home Secretary announced that, with all party agreement, the Data Retention and Investigatory Powers Bill - (DRIP for short) - would be introduced into Parliament. Much of that is covered in the previous post of 10th July. Since then, criticism has mounted in relation to the late introduction of the Bill prior to the summer recess. Further criticism is that the Bill is far from being just a limited Bill to close what may have been a legal gap left by the decision of the Court of Justice of the EU to invalidate the Data Retention Directive 2006/24/EC. The UK's 2009 Regulations, implementing the directive into domestic law, could well have been at risk via judicial review even though the Home Secretary asserted in the House of Commons that the government believed they remained valid. Critics point to the Bill being a considerable extension of State power. Here are links to the draft Bill, to the provisional regulations to be made under the Bill and to the explanatory notes.
The draft Data Retention and Investigatory Powers Bill - Draft Regulations -Explanatory Notes - 15 pages
A very good analysis of the Bill has been made available at Cyberlegal blog - Dissecting DRIP: the emergency Data Retention and Investigatory Powers Bill..
Even the most cursory
reading of that blogpost is sufficient to demonstrate the exceptional level of legal complexity and practical difficulty involved in this area. Such a reading should also be sufficient to conclude that this is not a topic which ought to be cursorily examined in guillotined debates in Parliament under both the pressure of the government claiming that there is a need for "emergency" legislation and the fact that the party leaders have agreed it all anyway! The Court of Justice of the EU ruled in early April. It is certainly hard to escape the conclusion that the lateness is deliberate and that the government is seeking to markedly extend its surveillance powers without either Parliament being given a fair opportunity to examine the Bill or the general public being allowed to have a proper say.
Amnesty International UK blogs about a case in the Investigatory Powers Tribunal (IPT) and, in relation to DRIP, comments - "in Parliament, there will be a ‘debate’ on Tuesday, on the newly proposed ‘emergency’ Data Retention and Investigation Powers Bill, we saw hurried out last week. I say ‘debate’ – because the Bill has apparently already got cross-party approval from the entire political establishment. I say ‘emergency’ because there was ample time to consult on this legislation, but clearly the government would prefer a quiet back room deal." The Guardian 14th July also takes a look at the case in the IPT.
There are of course some crumbs for the critics. DRIP has a "sunset clause" so that the legislation will terminate on 31st December 2016 but the next Parliament could easily extend that indefinitely so the clause will, in reality, have minimal impact. Two and a half years from now, the new surveillance regime will be well entrenched and difficult to remove in practice even in the perhaps unlikely event that its removal were to be thought desirable. The government also announced a review of this entire area and this is to be undertaken by David Anderson QC who is the Independent Reviewer of Terrorism Legislation. Mr Anderson is to report prior to the 2015 General Election but it is hard to envisage that any major action will take place on his report until the new Parliament is in place and settles down. Further measures announced by the Home Secretary were a reduction in the number of public authorities entitled to access communications data; the publication of annual "transparency" reports and the setting up of Privacy and Civil Liberties Board based on the US model.
Many articles have appeared over the last few days. Most are critical of this Bill - see, for example - The Independent 14th July - New data bill contains sweeping surveillance powers that affect everyone in the UK and The Independent 10th July - Emergency data law: new bill includes clause expanding jurisdiction of UK snooping laws. It is not very clear as to how these "extra-territorial powers" will operate in practice. As Cyberlegal notes (link above):
"DRIP ... goes to great lengths to devise ways of serving warrants and notices within the UK on non-UK entities. For communications data acquisition notices this can even include oral notification. Whether this elaboration is simply a question of practicality or perhaps reflects a deeper concern that serving government warrants and notices outside the UK might be regarded as executive acts violating the territorial sovereignty of another State is a matter for speculation."
Scottish Government Privacy Groups are also critical - Data retention bill blasted by Scottish government, privacy groups - Scottish justice secretary Kenny MacAskill said ministers north of the border were
"disappointed at the lack of prior consultation and discussion from UK Government".
He noted that although the retention of communications data is currently a reserved matter, the legislation would potentially impinge on areas of Scots law and law enforcement that are devolved. Mr MacAskill added: "In an independent Scotland, this Government will set out clear arrangements for investigatory powers, updating existing legislation where necessary. This will ensure that law enforcement agencies have the powers that they need to do their job and keep Scotland safe, while also clarifying the limit of those powers and the extent of the controls over them."
EU Law Analysis asks whether the Bill violates the EU Charter of Fundamental Rights where it is concluded that:
In conclusion, much of the UK’s draft Bill would, if adopted, fall within the scope of EU law, and therefore the Charter of Rights. It is possible, depending on the future statutory instrument, that the rules, when applied, will comply with the data retention safeguards demanded by the CJEU. But the government’s intention, as manifested by the Bill, to reinstitute mass surveillance of telecoms traffic data is a clear breach of the EU Charter of Fundamental Rights.
Addendum 15th July: The following are some additional links - again, mostly critical of either DRIP or the method of pushing it through Parliament.
Briefing Notes for MPs - Standard Note 14th July- (link to PDF)
Jack of Kent 15th July - Why DRIP matters
Tom Hickman - DRIP Bill - Plugging gaps in Surveillance Laws or Authorising the Unlawful?
Unlock democracy 15th July - DRIP: New surveillance bill highlights need for written constitution - On the same day as DRIP was announced, the Political and Constitutional Reform Committee launched their consultation into the options for a written constitution. Unfortunately, the government is only too eager to provide an illustration of why a constitution is sorely needed.
Global Network Initiative 14th July - Open letter to UK Prime Minister on the Data Retention and Investigatory Powers Bill
Paul Bernal 14th July - Theresa May - even more reason to worry about DRIP
The Guardian 14th July - Yvette Cooper tables amendments to controversial surveillance legislation
Now everyone knows what the spies can do then no competent baddy will use electronic devices for anything they don't want you to see or hear. Similarly, serious state actors will change their habits to ensure a small core of secrecy. You will not see them coming.
ReplyDeleteThe trivial rounds of diplomacy will remain for the amusement of observers. That everyone knows everyone else's industrial research - not such a bad thing I suggest. A 'busted flush' comes to mind.
So what is left? The citizenry and those who might oppose or inconvenience the state - the environmentalists, the human rights lobby, the tree huggers, the journalists. None of whom represents any sort of existential threat and none of whom seems the proper business of the spies, rather their proper opposition is by argument and evidence and correct government. So I hope this legislation falls foul of the EU asap.