Lord Brian Paddick writes: The difficult balancing act between privacy and security

Data storm byt Dave HerholzAs a Liberal former police officer I am acutely aware of the difficult balancing act the government has to perform between keeping us safe and keeping our personal data safe. At the same time I see both the anxiety that those concerned with civil liberties have over the new legislation and the Government’s need to act to prevent a valuable crime detection tool slipping from our grasp.

So why the need and why the rush? In cases of serious and organised crime and those plotting terrorist attacks, the police and the security services can go to communication service providers and internet service providers and ask who was communicating with whom, at what time and where they were at the time. They cannot find out what was communicated without a warrant signed by a handful of senior ministers and in the case of voice calls that have already happened, they are not recorded. To ensure this can be done after crimes have been committed, the service providers are required by secondary legislation to keep records for two years. Following a European Court of Justice decision, the service providers were coming under pressure from civil liberties campaigners not to keep such data and not to provide it to government agencies.

As with so much in life, whether it’s religion or government powers, it’s not that I have a major problem with the concept, it’s the implementation and the potential for abuse that worries me. It is a major help to the police investigating major crime if they can establish from mobile phone records, for example, that those suspected of a serious offence talked to each other in the run-up to an armed robbery they planned to commit and that they were ‘casing the joint’ (geographic location from cell site analysis) before the event. Rather than waiting, as happened in the old days, for them to hit the security guard over the head with a crow bar or even threatening to shoot him, and having to catch them ‘in the act’ as in ‘The Sweeney’, police can secure sufficient evidence of conspiracy before anyone is put in danger. Their ability to do this could be impaired if such data was not available to them.

The issue is, of course, that the records of everyone’s calls, texts and emails are kept and how do we know that our records are not being handed over where there is no justification for it? Enter Liberal Democrats in government. We are insisting that the agencies who can request such information is restricted, that the type and number of requests made are made public each year and that an independent body is set up to a advise government where the balance should be between privacy and security. A review of all the law in this area must be undertaken and the new legislation will expire with no provision for extension by the end of 2016.

Yes, the new legislation is designed to prevent the European Court judgement from depriving government agencies of this data but it simply puts the position back to where it was before that judgement and with the additional safeguards. Champions of civil liberties are right to say this is two steps forward and one step back but it’s not any worse a position than before the European Court judgement. It is not a further erosion of civil liberties but a move back to where we were six months ago and in my opinion, it is a necessary evil.

When the Home Secretary’s statement was repeated in the House of Lords this week, Peer after Peer stood up to condemn the Liberal Democrats for not agreeing to the previous attempt to extend powers in this area, the so-called ‘snoopers’ charter’, which Nick Clegg blocked, saying we would not need this emergency legislation if the Liberal Democrats had agreed to it. I was proud to be condemned by all sides for standing up for privacy and civil liberties. We are still the guardians of freedom and liberty, despite agreeing to is temporary extension of existing powers and we should not beat ourselves up for it.

Photo by Dave Herholz

* Brian Paddick Is Liberal Democrat spokesperson on Home Affairs. He was Deputy Assistant Commissioner in London's Metropolitan Police Service until 2007, the Lib Dem candidate for the London mayoral election in 2008 and 2012, and a life peer since 2013. He is joint President of LGBT+ Lib Dems.

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  • Wow – what a load of bull. Governments shouldn’t have the ability to access private information or details at any level. Especially if this information is going to be used to charge people with guilt prior to actually committing a crime. You also fail to appreciate the fact that this is not a matter of the type of legislation – the issue is the speed, lack of scrutiny or debate. The Enabling Act in 1930’s Germany seemed proportional to the situation and ‘urgency’ at the time, and i recollect that the Stasi was established with ‘temporary’ legislation in the 1950 GDR.

    I know this country has enemies, and i am not blind to their intent but i do mind my government using that as an excuse to undermine what it is to be British. Fundamentally this sort of revisionist article is exactly the problem – sometimes Lib Dems do not need to be reasonable – you need to stand up for what you believe in – not least the supremacy of the Human Rights Act as a guard against the uncontrolled hand of the government.

  • It’s unbelievable that anyone can think this will be taken seriously. Our ‘security’ services have gone utterly mad. The only sensible policy would be to close down the lot, fire everyone and find someone who understands the idea of living in a free country.

    After Jean Charles de Menezes no one with the brains to qualify as a sentient being is going to believe a word the present lot say.

  • Radical Liberal 14th Jul '14 - 11:19am

    Disgraceful. Seems to me the Orange bookers want a small state when it comes to education, health etc but a big state when it comes to the security services.

  • James Baker 14th Jul '14 - 2:04pm

    “Yes, the new legislation is designed to prevent the European Court judgement from depriving government agencies of this data but it simply puts the position back to where it was before that judgement and with the additional safeguards. Champions of civil liberties are right to say this is two steps forward and one step back but it’s not any worse a position than before the European Court judgement. It is not a further erosion of civil liberties but a move back to where we were six months ago and in my opinion, it is a necessary evil.”

    1. Incorrect some of the clauses relate to NEW POWERS. Clause 4 means RIPA can apply to non-UK companies that provide communications services to the UK public and Clause 5 broadens the RIPA definition of telecommunications services. The Explanatory Note says this is so that webmail providers are clearly caught.

    2. It is a worse position because we are writing blanket indiscriminate retention back into primary legislation following a court ruling that it is unlawful. That undermines our adherence to principles of international law.

  • Et tu, Brian?

    “Yes, the new legislation is designed to prevent the European Court judgement from depriving government agencies of this data”
    Glad to see it being acknowledged explicitly that the entire purpose of this is to frustrate a European Court judgment. And Lib Dems are supporting it.

    “it simply puts the position back to where it was before that judgement and with the additional safeguards. ”
    No, it puts the position back to where it was, but with broad sweeping powers for a secretary of state to amend via statutory instrument pretty much any part of it.

    “Champions of civil liberties are right to say this is two steps forward and one step back but it’s not any worse a position than before the European Court judgement.”
    No they aren’t. It’s one stumble forward after being forced back several yards.

    “It is not a further erosion of civil liberties”
    Yes it is.

    “but a move back to where we were six months ago”
    No it isn’t, and even if it were, where we were six months ago is something many of us have been campaigning against for years upon end.

    “in my opinion, it is a necessary evil.”
    In my opinion it’s a horrifc authoritarian evil, and I cannot understand why so many previously sensible LDs higher up in the party have had the wool pulled over their eyes about it. Have you all gone native or what?

  • Richard Dean 14th Jul '14 - 4:53pm

    Why does retention of communications “meta” data breach anyone’s human rights at all? This data does not include the actual content of the communication, and so really only represents at most a very minor breach of privacy, if it’s a breach at all. It is possibly an acceptable price to pay for increased security, and no breach at all of freedom of expression.

    The ECJ’s ruling was carefully worded, and the 15 judges obviously thought rather deeply, but I am really beginning to think they were mistaken. They are not gods. Do they really have the right to cast aside the judgments made by the political representatives of ordinary people whose lives are likely to be a lot less secure than the judges’ lives?

  • John Broggio 14th Jul '14 - 7:38pm

    Why is metadata important? It all depends if you value keeping innocent peoples lives intact or not: http://blogs.computerworld.com/privacy/23511/whistleblower-nsa-targets-sim-cards-drone-strikes-death-unreliable-metadata

  • Richard Dean 14th Jul '14 - 8:18pm

    @John Broggio
    Are you suggesting that the UK government will mount a deadly drone attack against a cell-phone in the UK? Isn’t that taking paranoia a bit far?

  • John Broggio 14th Jul '14 - 9:04pm

    I’m suggesting that metadata isn’t as innocent as those who should (?must?) know better portray it.

  • Richard Dean 14th Jul '14 - 9:15pm

    @John Broggio
    In what way is metadata not as “‘innocent’ as those who … know better portray it”?

  • John Broggio 14th Jul '14 - 9:43pm
  • Richard Dean 14th Jul '14 - 9:56pm

    @John Broggio
    In a way that’s the point, it’s why we can assist the security services in allowing this data to be available to them, and it’s also why we need to ensure that the data is secure and only used for the intended security purposes. These considerations seem to be well entrenched in the draft bill and provisional regulations, as they should be.

  • John Broggio 14th Jul '14 - 10:25pm

    Well, if anyone can point to a peacetime period in the last century when our police & security services have never gone beyond the “intended security purposes”, I’d be amazed.

    It’s not obvious why the electronic equivalent to the mass surveillance tactics of the Stasi is something defensible in a supposedly liberal, democratic nation.

  • Richard Dean 14th Jul '14 - 10:39pm

    @John Broggio
    You just have to read the papers, watch the uncensored footage, maybe even go to a place that isn’t a leafy suburb.

  • “A review of all the law in this area must be undertaken”

    A review is often a way to do nothing.

    “As a Liberal former police officer”

    A certain mindset comes with being a police officer. There is this tendency to be in favour of new powers for police.

    It is for the same reason that we do not simply trust politicians when they say something. History shows that politicians can be very short-sighted. This is why we look for independent expert to endorse what the politician is saying.

  • Richard Dean 14th Jul '14 - 11:10pm

    “independent expert” ???
    So who is to provide an independent expert judgment about who is an “independent expert”?

  • Brian Paddick 15th Jul '14 - 12:12am

    I was at a meeting today where a former Director of Public Prosecutions said that he could not think of one case of serious and organised crime or terrorism that he was involved in that did not heavily rely on data from communications companies and in some cases it was critical. This is about accessing data about specific individuals suspected of criminal activity, not trawling of data about everyone (that is a separate and worrying issue). The data is retained about everyone but is only given-up by the communications companies on a specific request about a specific individual for a legal reason. It was the European Data Retention Directive that was struck down by the European Court of Justice, not the UK regulations or RIPA. To date RIPA has been found to be compliant with the Human Rights Act.
    The reason the legislation took a while to be published was because Lib Dems in government were fighting hard for the concessions we have achieved. The reason it is urgent is because NGOs are putting pressure on the communications companies not to store the data.
    I lost my job in the police for telling the truth about Jean Charles de Menezes. I have been personally thank by his family for making the stand I did. Don’t lecture me about Jean Charles de Menezes.
    Radical Liberal
    I don’t know what an Orange Booker is let alone am I one. For the record, I believe in increasing taxes, increasing welfare support, the Living Wage and a massive social house building programme. Oh and I believe in the legislation.
    1. Wrong. RIPA refers to all types of communication as does this Bill. Wrong. At the moment, in the most serious cases, a senior minister can sign an interception warrant to acquire the content of a communication between two people in the UK, usually email. If they use an ISP based in the UK – no problem. If the ISP’s servers are abroad, it could be a problem so this Bill says it should not make any difference if the email was handled by servers in the UK or abroad. It does not extend the power to intercept communications. It does extend the geographic scope of the power. Ergo, it is not a further erosion of privacy.
    2. Wrong. Other countries did not rely on the European Data Retention Directive but had their own primary legislation instead (with safeguards). They are unaffected by the European Court judgement. This legislation puts the UK on the same footing as those other countries (with safeguards) and will be compliant with the European Court of Justice ruling.
    The European Court judgement said the European Data Retention Directive was too broad and did not have enough safeguards, not that the practice of data retention was illegal.
    What we have achieved as a result of this judgement is a sunset clause to force a fundamental review of all legislation in this area, the fundamental review you and we and lots of other people have been calling for. There will be a new international agreement between governments. There will be a Privacy and Civil Liberties Oversight Board, not just one independent reviewer of anti-terrorist legislation. There will be restrictions on the public bodies that can access the data. Local authorities will have to apply through one central authority where their requests can be properly scrutinised. There will be annual transparency reports to ensure data requests stay at reasonable levels, preventing blanket requests for data. And the chair of the Intelligence and Security Committee will be an opposition MP.
    You have hit the nail on the head. The storage of the data is not the big issue. It is ensuring access is only given when it is reasonable and proportionate to do so and it is given only to the appropriate authorities for legitimate reasons.
    Welcome to Earth. On this planet I have consistently argued against further police powers both when I was a police officer and since I left the police. I have a substantial following of serving and former police officers who would like to throw me in a cell and throw away the key as a result! When I opposed 28 day detention of terror suspects without charge, whenI was a senior officer at Scotland Yard, I was threatened with the sack. Of course we should not trust politicians. Of course you should raise objections, question what is happening and put your point of view. Nick Clegg said at the weekend you should never trust government.
    I left the chamber of the House of Lords tonight at 10.45pm having just made a speech opposing another government proposal in the Criminal Justice and Courts Bill and I will make another speech opposing the government on knife crime on Monday under the same Bill. If you look at my speeches in the House I speak my mind even if it is against the government (voting is another issue – let’s not go there – it’s called coalition apparently). On this Bill, I agree with Nick.

  • “This is about accessing data about specific individuals suspected of criminal activity, not trawling of data about everyone (that is a separate and worrying issue)” – Fine so you would argue that both the following ECJ ruling principles missing from this bill ought to be included in it?

    1. ” empower an independent administrative or judicial body to make decisions regarding access to the data on the basis of what is strictly necessary” (paragraph 62) and

    2. “restrict retention to data that is related to a threat to public security and in particular restrict retention to a particular time period, geographical area and / or suspects or persons whose data would contribute to the prevention, detection or prosecution of serious offences” (paragraph 59);

    “The reason it is urgent is because NGOs are putting pressure on the communications companies not to store the data.” – No there was a judicial review into the 2009 Regulations that incorporate the Directive into UK law and the Home Office realised it couldn’t continue to tell ISPs the law still stood for much longer.

    “This legislation puts the UK on the same footing as those other countries (with safeguards) and will be compliant with the European Court of Justice ruling.” – Many countries such as Germany would consider the current data retention scheme in the UK unconstitutional such is their stronger protection for privacy.

  • @Brian
    I see no response from you to the point by Jennie that it gives powers to the secretary of state.

    It seems to be the standard around here that those who write articles cannot handle the detail required to defend them.

    Until Clegg steps up, I remain opposed to the bill.

  • @James Baker
    Not sure about your first principle.

    “regarding access to the data on the basis of what is strictly necessary”? Necessary for what? It would surely be better to spell it out, otherwise it could be used for stopping fly-tipping for example.

    The test of necessity would suggest that all emails which contain the word “terrorism” could be read just on the offchance that it might reduce terrorism.

  • Brian Paddick 15th Jul '14 - 8:16am

    Give me a break. I had been up for 19 hours when I wrote these replies. Scrutiny of the secondary legislation is an important part of the parliamentary process and this will start today with a meeting of the committee that considers secondary legislation. Unlike the primary legislation, the regulations will be considered in slower time and will therefore be subject to much greater scrutiny than the Bill. We take a very dim view (in the Lords) of too much power being given over to ministers.
    1. As I have said, at Lib Dem insistence there will be a Privacy and Civil Liberties Oversight Board, an independent body that will decide the balance between privacy and security. Courts will no doubt be engaged through a process of judicial review to decide whether particular cases of access were necessary and proportionate.
    2. The European Data Retention Directive said data should be stored for 2 years. The UK always have said that it is too long to be justified and have only asked for 12 months of data. The Bill now says a maximum of 12 months and different types of data records will be subject to differing time frames depending on the demonstrable need for security and crime prevention and detection.
    I am told the 2009 Regulations have not been successfully challenged in the courts, only the underlying European Directive. As a result of the Directive being struck down, NGOs have been putting press on companies not to retain the data and not comply with government agency requests for the data, on the threat of being sued.
    I don’t know enough about Germany but it is the case that some other countries are unaffected by their data rendition requirements of communications companies.

  • Props to Brian for coming back and replying.

    I have to say though, the Sunset Clause does not bring me much comfort, given that it is for after GE2015 when, unless something miraculous haooens, there will be less Lib Dems in parliament to make sure that whatever replaces this isn’t even worse…

  • Dear Lord Paddick,
    You criticized my blog posted on the UK Const Law Group site for “factual inaccuracies in important respects” and said that I would find corrections here and kindly invited me to respond.
    I am very happy for any inaccuracies to be pointed out. As I mentioned, the key difficulty faced by the public in respect of DRIP is the lack of information and the lack of time to really understand what is going on.
    That said, I cannot see anything here which discloses factual inaccuracies in my blog piece – although I cannot claim that there are none.
    One general point is that we seem to be approaching the issue rather differently. You are focused on how the existing powers are used in practice and how the new powers will be used in practice. I have looked at how they could be used. I have done so for two reasons. First because I do not have the benefit of your briefings, so I cannot know how they are used. Secondly, as RIPA teaches us, technological changes and changes in practice mean that focusing on how it is expected powers will be used at the time legislation is enacted may not reflect reality a few years down the line. What we do know about how RIPA powers are used makes clear that they have enabled far more extensive investigation and surveillance powers and have given much greater powers to UK agencies than was contemplated when RIPA was enacted. I think we can probably agree on that!
    A few thoughts on your specific points:
    1. The data retention requirement on public companies is important for police investigations. I agree. I said a legislative fix was necessary. What I have questioned is the process by which the legislation is being brought in and the safeguards included within it.
    2. RIPA requests for communication data relate to specific individuals for a legal reason. I am glad to hear that is the case. But note (i) the powers both to require data to be retained under DRIP and to request communications data under RIPA are wider than this (essentially constrained by general notions of proportionality but quite what this is taken to mean in practice and how confident we should be in the assessments made is not at all a straightforward issue); and (ii) your focus here is on criminal investigations whereas we are told that the powers are also used by intelligence agencies, which will enable them to build pictures of the activities and associations of persons of interest. – Again I have no problem with that in principle the question is whether the safeguards are adequate.
    3. The reason for the delay in the legislation was the efforts of the Lib Dems to get safeguards built in. Again, I am glad to hear it. For the record, I am not one of those who think the Lib Dems are a spare wheel in government. But you will understand that these negotiations took place behind closed doors rather than in the Parliamentary chamber so people like me can only take the draft legislation as they find it.
    4. The extension of RIPA to companies abroad relates to ISP servers abroad who provide email access in the UK. Fine. This is one example. My focus was on what other uses the extra territoriality provisons could be used for and on the fact that they seem to confer potentially very wide scope (whether this wide scope is fully exploited is another matter entirely). I suggested the provisions raise important issues that deserve proper Parlaimentary scrutiny. I am not yet persuaded that I was wrong.
    5. The CJEU does not relate to domestic law. This is only partially correct. The principles – or safeguard – articulated by the CJEU as required to make a system of data retention compliant with the Charter on Fundamental rights apply equally to domestic laws within the scope of EU law (which the DRIP Bill may well be) and in any event are directly analogous to principles applicable under the Human Rights Act. So the domestic law on data retention must comply with those principles. I believe the Government initially accepted that domestic law falls short of the numerous requirements articulated by the Court. I understand that the Government have done some more work on this and have some new arguments as to why the domestic law regime will be Charter and HRA compliant (even if it falls short of satisfying all of the Court’s precise stipulations). Fine. Good. It is a shame we are not going to be in a position to assess these arguments before the Bill becomes law.
    Kind regards,

  • @Brain Thanks for responding.

    The directive said data had to be stored for a minimum of six months and could be stored at most for 24 months. You are correct the 2009 regulations had not yet been struck out, but they were subject to a judicial review Tracey Cosgrove v Secretary of State for the Home Department, CO/ 7701/2011. Until this new power was announced the judicial review proceedings had not been public knowledge.

    The proceedings challenge the legality of the Data Retention (EC Directive) Regulations 2009 and their compatibility with Article 8 of the ECHR and Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. The review also alleges that the Regulations are ultra vires the European Communities Act 1972 .

    So please don’t try and claim that NGOs have been pressuring ISPs and that’s why there is a need to bring in more laws. The ’emergency’ was the imminent threat the UK law would be struck out as non complying with the ECHR and HRA because it’s based on the EU directive that had been struck out by the ECJ.

    I never thought I would live to see the day where senior Lib Dems would argue they needed to bring in emergency legislation to avoid the implications of a European Court of Justice Ruling on Human Rights.

  • Brian Paddick 15th Jul '14 - 12:32pm

    Thanks for seeking out this piece and responding so comprehensively. I agree that there is always potential for ‘mission creep’ and misuse. That is why we have insisted on transparency reports to show whether there an increase in data requests and who made them. That is also why we insisted on the creation of an independent panel to advise on the balance between privacy and security. I accept that you are looking at this from a “what could go wrong” perspective rather than a “how useful it is” perspective. That is why we have also insisted on a fundamental review of the whole surveillance area and forced the review through the sunset clause. I don’t have time to go through your piece again line by line so it is only fair to withdraw my inaccuracy claim against it and as you suggest substitute a difference of perspective one.
    This whole area makes me feel uneasy but no more uneasy than I felt with the existing law. Whether the new law is ECHR compliant remains to be seen. Home Office lawyers say that it is and as far as I can see, I believe it is otherwise I would not support it. You do not believe it is and I am not a lawyer but the court a will have to decide.

  • Brian Paddick 15th Jul '14 - 12:35pm

    Can I also add that this has been very useful and I will try to put some of your concerns to the Minister in the debates in the House of Lords.

  • >Home Office lawyers say that it is and as far as I can see, I believe it is otherwise I would not support it.

    Freaky to see Lib Dems channelling Blair prior to the invasion of Iraq. At least Brian’s following up on the comments!

  • I still see no response to the objection from Jennie that it gives more power to the secretary of state.

  • R Uduwerage-Perera 15th Jul '14 - 5:55pm

    As a former police officer myself I am saddened by the fact that we as a Party have our fingerprints on this particularly illiberal legislation.

    This legislation is under the current climate going to be disproportionately aimed at people who are or are perceived as being Muslim and have either acted in or expressed an opinion that is apparently contrary to what is deemed as a norm!

    Most of the people reading this thread will have nothing to fear, but alas some will merely because they are known to hold a particular faith and have challenged the Government openly about the level of Islamophobia that exists and its causes and may find themselves subject of even greater intrusive scrutiny.

    Ruwan Uduwerage-Perera

    Liberal Democrat English Party Diversity Champion
    Ethnic Minority Liberal Democrat (EMLD) – Vice Chair

  • @Ruwan
    I am interested in adding to my list of policies. Can I suggest that you write an article for LDV on Islamophobia in Britain today and your solutions?

  • Richard Dean 15th Jul '14 - 8:12pm

    I think it would be irresponsible to claim that this legislation is “anti-Muslim”. Some will perceive it to be so, and they need to be reassured that it isn’t, not encouraged to think that it is.

    In the context of Syria/Iraq/IS and the Islamic Spring, Muslims and particularly Muslim parents are as shocked as anyone else would be if their children go off to a horrid war. Most don’t want it to happen, and don’t want their children becoming terrorists when they come back. This legislation can help prevent that – and help avoid the pain of those parents. In that context and sense, this legislation should be seen as pro-Muslim.

    Of course the legislation applies to other, wider contexts too.

  • Brian Paddick 15th Jul '14 - 9:13pm

    The powers given to the secretary of state are equivalent to the powers she currently has under RIPA so no extension there either as far as I am aware. That is not to stay that I am not concerned about any secondary legislation.

  • Brian Paddick 15th Jul '14 - 9:15pm

    I’m flattered you made the freudian slip of calling me Brain!

  • @Brian
    Here is what Jennie said
    “No, it puts the position back to where it was, but with broad sweeping powers for a secretary of state to amend via statutory instrument pretty much any part of it.”

    These are the powers I am concerned about. If you have evidence that the SOS will not have them, I would be interested. Otherwise I am opposed to the legislation

  • Actually, having looked at the draft of the bill, it appears that the SOS has the power to issue notices at will!

    This could be used to bring in the “snooper’s charter” which the Lib Dems were against.
    How can they support the bill and still claim that they are opposed to the snoopers charter?

  • “We are insisting that the agencies who can request such information is restricted”

    I have read the bill and cannot find any indication that the bill restricts the agencies who can request the information.
    Can you point out the section that implements this?

  • Eddie Sammon 6th Oct '14 - 12:06am

    What’s this article on the Times front page about secret filming in Care homes? The Orwellian nature of it made me gasp. I’m normally arguing for more filming things, but secret filming should be a no no. Shall we have trade unions introducing secret cameras in offices? Ridiculous. 🙂

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