Baroness Sarah Ludford writes…How not to use Brussels for policy laundering

Racks line photo by Tristan SchmurrThe new Data Retention and Investigatory Powers (DRIP) Bill responds to the European Court of Justice annulment of the 2006 EU Data Retention Directive.

The government asserts that the DRIP Bill only confirms existing law as it is broadly the same content as the 2009 regulations implementing the EU Directive. But as that Directive has been swept away, DRIP provides a new legal basis, and this will in fact be the first time that legislation to regulate retention of phone, email and internet records has been generated domestically.

After 9/11 the Regulation of Investigatory Powers Act provided the very flexible legal framework for access to data held by the telcos and ISPs. The Labour government did also try to put obligatory retention on a statutory basis domestically, but all that happened under the Anti-Terrorism Crime and Security Act 2001 was a voluntary code of practice. So they decided to try the Brussels policy-laundering route..

There was a lot of chatter post 9/11 about an EU data retention regime. MEPs were pushed to accept, in a 2002 Directive on data protection of e-communications, permission for Member States to adopt national laws on traffic data retention derogating from the normal obligation on telecoms firms to erase it after the billing period. There was no harmonisation of either the retention periods or the access regimes but EP-Council agreement was impossible.

Then after the Madrid 2004 bombings, a group of Member States – including  the UK – put forward a proposal for an EU mandatory retention regime. But it was solely under the ‘intergovernmental’ provisions that then governed law enforcement cooperation and relegated the EP to ‘ignored consultee’ status rather than co-decider of laws, so led by German Liberal Alex Alvaro MEPs rejected it.

The European Commission thus made a proposal for a Community law single market measure; at which point enter one Charles Clarke. As the Guardian editorial today explains:

 The EU directive… was a British concoction, pushed through in the post-7/7 mood, when an entirely understandable urge to give the authorities the anti-terror tools they required was intensified by New Labour’s authoritarian posturing.

I remember very well indeed being invited in what must have been late June 2005 to meet the then Labour Home Secretary, the UK being about to assume the rotating 6-month Presidency of the EU. I recall Clarke being dismissively rude about LibDems, especially LibDem lawyers like me.

A few days later the London bombs gave impetus to his case, and he bullied through by December of that year an agreement on what became the Data Retention Directive. The ALDE (Liberal) group opposed the text, not least because in a typical Council manoeuvre it used EU law to oblige retention but again left access – we wanted court warrants – to national law. But the grand coalition of Christian Democrats and Socialists (including UK Labour) plus UK Tories ensured a deal.

The rest is history, but it is an instructive example of how laundering policies and laws through Brussels in a hasty fashion can come unstuck.

 

Photo by Tristan Schmurr

* Sarah Ludford is a Liberal Democrat member of the House of Lords and was MEP for London from 1999-2014.

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7 Comments

  • Eddie Sammon 11th Jul '14 - 10:35pm

    An interesting and informative post, albeit a bit technical for people who aren’t familiar with this subject.

    I don’t like rushing laws, but I don’t assume every time the government says it is an emergency that they are lying, as others have been doing. I am not naive either – people need to remain “sober” minded.

    The only thing I can relate it to is UK tax law. I used to be a tax adviser and it was surprisingly easy to find loop-holes. The conclusion I came to was either the government, including the civil service, were incompetent or being dishonest. Perhaps it is also a case of being too hasty with laws.

  • Richard Dean 11th Jul '14 - 11:52pm

    Certainly a complex and interesting story, but isn’t it actually a lesson in how policy laundering can indeed work in the end? After all, are people not claiming that the policy that was laundered is now going to be put into practice in the emergency law?

  • Sarah Ludford 12th Jul '14 - 11:44am

    Richard Dean indeed has a very valid point. Perhaps I was trying to be too diplomatic in the way I described a ‘smoke and mirrors’ operation. The government (only the Tory side of it I hope) has suggested that the DRIP is necessary to ‘safeguard the existing position’. For those not versed in the EU history, it was easy to assume this meant that the ECJ had struck down a law which originated in the UK. For instance Rafael Behr in the Guardian http://www.theguardian.com/commentisfree/2014/jul/10/emergency-surveillance-laws-united-westminster said the European court of justice ruling had challenged ‘the legality of existing practice’ without specifying where ‘existing practice’ originated.

    I guess the confusion on this subject was why LDV asked me to explain the EU background and yes, Eddie, I’m afraid it is indeed ‘a bit technical for people who aren’t familiar with this subject’, but that’s the nature of this beast. And I don’t mind, you can say ‘anoraky and boring’ if you want!

    The LibDem justification for agreeing to this package is that it leverages the medium-term possibility of real and radical reform and curbs on snooping once the reviews, including the RUSI one Nick Clegg commissioned, have reported . Charles Clarke will indeed have won his policy-laundering wager won if we fail to exploit this opportunity.

  • Eddie Sammon 12th Jul '14 - 1:52pm

    I see, thanks for explaining further!

  • Baroness Ludford is putting across very effectively the main reason why the emergency legislation should be properly debated in both Houses, and should not be given the parliamentary time it has currently been allotted.

    The Government argues that the Bill is required because the European Directive was struck down as being incompatible with European Law. The truth is that it would never have been European Law in the first place had it not been for a British push to ramrod it through the European decision-making process. Otherwise, no-one would have been in this situation. I don’t think even the Spanish would have benefited from these provisions.

    The bottom-line to me is that this policy was unacceptable from first principles and the compromises currently levered in are not sufficient to address the privacy concerns which are more widespread than the party base. The promise of a review just isn’t enough. All the parties uniting on this one just proves the point that this parliamentary session has just been a series of badly-thought through and harmful Bills looking to gain Royal Assent. Its hard to be positive about something which appears to be the product of the Westminster bubble.

    Common sense should tell you that it makes little sense to pursue a terrorist group using the electronic equivalent of a postmark which could be a year old by the time it is requested. It isn’t a substitute for effective investigation as it would only be in place for those people not under surveillance. It doesn’t help that bodies like the Law Society are ignored as part of the stitch-up. Putting this through would erode trust in both political parties and in the State to protect our security without disproportionate sacrifice to our privacy.

  • Richard Dean 12th Jul '14 - 2:01pm

    Why not look at this bill for what it is – for the security issues it addresses – rather than as some form of bargaining chip?

  • Matt (Bristol) 12th Jul '14 - 11:53pm

    I think it is interesting to ask why we can’t consider what other EU countries are doing in response to this same Europe-wide issue, for eg –
    – Sweden decided to retain data but only do so for 6mths, being fined by the EU for doing so (as not compliant with the directive), until the ECJ ruling.
    – Germany has not retained data in this way since 2010 (I think) when its own constitutional court ruled this law unconstitutional

    No, we can’t learn from anyone else, we can only continue doing what we were already doing. TINA rules again.

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