Late last week, the UK Government announced what they called 'emergency legislation' - the Data Retention and Investigatory Powers Bill. This was timetabled to be passed through the Commons yesterday (Tuesday 15th), and the Lords today and tomorrow (Wednesday 16th, Thursday 17th July). This is the final week of Parliament sitting before their summer recess.
To keep this brief, in April the European Court of Justice ruled the Data Retention Directive, specifically with regards to retention of communications data, was illegal and a breach of fundamental human rights. In response, the UK Government felt it necessary to legislate. They argued they needed to act to "clarify" the Regulation of Investigatory Powers Act, that this is doing nothing than "retaining the status quo", it "breaks no new policy ground", whilst ensuring "the police, the law enforcement agencies and the security and intelligence agencies have the capabilities that they need to protect the public and keep us safe". (All quotes, Home Secretary Theresa May during the second reading of the Bill)
I emailed my MP, Alan Campbell (Labour, Tynemouth) to voice my particular criticisms about this bill, which are:
There is not enough time for Parliament to properly scrutinise this bill, because it's being rushed through Parliament. It was agreed in secret by all parties and put to the floor at the last minute. They've had since April for this to be debated in Parliament, instead, they specifically chose this strategy.
The Government's argument that this is preserving the status quo is not true. Clauses 4 and 5 specifically extend powers beyond what is defined in RIPA. The Government might have "assumed" these powers based on the original legislation, but they're new in terms of being explictly defined in law. This is a position consistent with an open letter published by several of the UK's leading academics:
"DRIP is far more than an administrative necessity; it is a serious expansion of the British surveillance state"
The Government are choosing to act not to honour the ECJ decision, but to make what we were doing illegally, legal. They're completely ignoring it.
The 'sunset clause', the expiration of the legislation in 2016, is easily subverted by more primary legislation, so is nothing more than a promise.
Here's the reply I recieved, posted verbatim:
Thank you for writing to me regarding the government’s emergency legislation on communication data and interception.
As a result of a recent judgement by the European Court of Justice, the police and intelligence agencies are in danger of losing vital information which is used in 95% of serious and organised crime investigations as well as counter terror investigations and online child abuse.
In order to prevent this, UK legislation needs to change to be compliant with EU law. If these changes are not made, the police are likely to suddenly lose vital evidence this summer.
The Government has come forward with emergency legislation and in considering the Government's proposals, I believe it is essential to maintain the security of our citizens and also ensure people’s privacy is protected.
Serious criminal investigations and counter terrorism intelligence operations must not be jeopardised. That is why I support this emergency legislation which I accept is designed solely to protect existing capabilities.
However, given the limited Parliamentary time to discuss emergency legislation Labour has ensured that the Government's legislation is temporary and it will expire in 2016. This will require the Government and Parliament to properly consult on and consider longer term proposals next year.
Labour has also now secured agreement to our proposal for a major independent review of the legal framework governing data access and interception (the RIPA review we called for earlier this year) in the light of the huge changes in technology. As I have previously argued, in the wake of the Snowdon leaks and the concerns raised about whether the legal framework has failed to keep up with new technology, there is a clear need for wider public debate about the right balance between security and privacy online, a review of powers and stronger oversight.
This review will enable longer term questions and concerns to be properly dealt with and debated in time for new legislation. Changes will then follow. Labour has also called for and secured further safeguards to restrict the ways in which communications data and intercept can be used to prevent misuse.
I share some of your concerns about rushed nature of these proposals being presented to Parliament, and I am pleased that Labour has been able to secure safeguards within the limited timetable. I strongly support the temporary legislation it would be far too damaging to the fight against serious crime, online child abuse and counter terrorist intelligence to suddenly lose these capabilities now.
Thank you again for your letter on this very important issue.
Alan Campbell MP Tynemouth
I must admit to being incredibly frustrated by the response. It seems my MP has accepted, without question, the government and Labour Party spin on the Bill. The law is not being changed to be "compliant with EU law". You are not ensuring "privacy is protected" by compelling ISPs, telephone networks etc to store all communications data, ready to be handed over upon request. That kind of blanket retention was deemed illegal, this (re-)legalizes it. Indeed there is a balance to be struck between security and liberty, but this bill subverts that balance entirely, by going against the Court's decision. We cannot allow those who make the law to be its final arbiters. The legislation being "temporary" is academic; as we've seen with the "limited timetable" of this bill, passing something off as an emergency is an easy way to push primary legislation through Parliament. The same could be done to remove the sunset clause.
Passing this bill is an abuse of Parliamentary procedure, sets a dangerous legal precedent and is in breach of human rights. As Tom Watson MP says, it is a stitch-up.
This is how freedoms are eroded. Not in great chunks, but DRIP by DRIP.