Opinion: DRIP under the microscope – should Liberal Democrats support this Bill?

Samsung Galaxy Note 3Unusually for me, I’m starting writing this piece without knowing what conclusion I’ll come to by the end of it. Normally it’s straight forward enough to marshal evidence, decide on view and then write it up (unless the curse of writers’ block strikes of course).

But the Data Retention and Investigatory Powers Bill (DRIP) takes the usual perils of journalism turning most stories into a simple good versus bad dynamic, throws in the paucity of expert mainstream coverage of many technical issues and adds a dash of juggling different uncertainties.

Certainly if you approach the issue with a pre-existing outlook, it’s easy to find evidence to suit. If you want to base your views on the evidence, rather than your evidence on your views, then it is rather trickier. So I hope at least some readers will find my public thinking through of six key questions useful too.

Is the rushed nature of the legislation justified?

It is certainly odd for an April ruling by the European Court of Justice (ECJ) to be used to justify rushed legislation now, three months and one Queen’s Speech on. But DRIP is about fixing two legal problems, not one.

The second is not, as some have suggested, the impending legal challenges in the UK courts. Rather it is the fraying, verging on imminent ending, of cooperation by overseas companies with the current legal framework. They are under their own legal and other pressures elsewhere, and increasing doubts over whether their current cooperation with the British system is really underpinned by British law means that system is on the edge of collapse.

Fair enough so far, but why leave it until so late before legislating – and why then give so little Parliamentary time to it? Part of that too I’m willing to go along with – the legislation wasn’t published weeks ago because the Liberal Democrats were arguing in government to get it changed, to sink the Snoopers’ Charter Mark II Conservative plans and instead secure many changes (as outlined by Julian Huppert).

But, and it’s a big but, more time could have been given to debate. The Bill was published late last week. What do you or I do when something urgent comes up at the end of a normal working week? Work the weekend. What was Parliament doing this weekend? Not sitting. Likewise the rush to finish the debates this week is to get the Bill in before Parliamentary recess starts. Urgent, but not urgent enough to work the weekend or delay the start of recess.

Many MPs would object to doing either or both – but that’s rather the point. It’s all a bit too comfortable with the establishment way of doing things to do neither.

What’s more, the secrecy up until late last week means the party has once again repeated the mistake of thinking that talks inside government require silence outside, as I’ve said before:

 A campaigning party both secures better policy outcomes and it also then is in a more credible position to explain and defend the victories it has secured. Working in silence and then coming out into the daylight to say, ‘it’s all ok, we got some changes and trust us that we did the best’ is the classic insider, Whitehall establishment way of doing things. A campaigning, anti-establishment party campaigns in public to strengthen its hand when it has to meet in private with the representatives of the establishment.

Is the new legislation legal?

There’s a beguiling simple argument: the European Court of Justice ruled against blanket measures; DRIP includes a blanket 12 month retention of data; hence the new legislation isn’t legal.

I know enough about the limitations of my legal expertise outside the realm of imprints to know that I can only really judge the arguments on this at second hand. What is clear from my conversations with Liberal Democrats in government is that they are absolutely convinced that DRIP will withstand legal challenges (due in part to conditions imposed by Clause 5 of the proposed Data Retention Regulations and also in part to the way any future ECJ ruling on British law would look at the full British context, something not considered when it was ruling on just a European directive).

That is important because otherwise there is an attractive conspiracy theory –that the Tories are deliberately setting up a clash between UK law and Europe as a way of furthering their Eurosceptic arguments.

Moreover, suppose the legal view of Liberal Democrats in government is wrong and DRIP turns out not to go far enough. The legal debates in the Lords in particular on this point will be well worth following but if Liberal Democrat colleagues have indeed got it wrong, the result will be legal action that forces DRIP to be modified further – which given that would have to be in a more liberal direction is not such a bad worst case scenario.

Is the legislation really just restoring the status quo?

In part this is a matter of semantics: if you discover the law didn’t mean what you thought it meant and then change the law to match what you previously thought it meant, have you (a) restored the status quo (you’ve restored your previous view of what the law says), or (b) changed the law (it is now different from what it was)?

I will leave that one to the philosophy students. For me what’s important is what actual interception of our communications will take place compared to what has taken place. On that, DRIP will return things to as they were, so it is a restoration of the practical status quo, with the important caveat that the new provisions to shore up the system of working with overseas companies means that what previously was (arguably) in part voluntary will become fully statutory.

Yet even as I type that I’m wary of how often rushed legislation ends up not quite doing what was predicted – and of communications interception legislation in particular ending up even more widely used than promised. I’m nervous about being too complacent about Clause 4 in particular with its new/not new extra-territoriality powers. Very little time is being given to everyone to be sure that it really does no more than restore what in practice has been happening anyway.

It is just the sort of area that should get the detailed consideration of the sort that the secrecy followed by rushed Parliamentary timetable precludes. But I’ve yet to see a convincing example of something that does not currently happen which would then happen after DRIP has been passed.

What about the statutory instruments?

Up till now I have talked about ‘the Bill’ as if that is all the legislation being legislated. But much of the concern is over the Statutory Instruments (SI), and the very broad powers on the face of it to future ministers to draw up SIs.

However, the SIs do not exist in a vacuum. They need to be within the powers granted by the parent Bill, which in this case restricts them to, for example, the types of data set out in Clause 2, and they need to withstand legal challenge, so they will need to remain far narrower in scope than the face of the Bill suggests if read in isolation. The very legal issues that have beget them also restrict their content.

How good are the concessions?

Because the Data Retention and Investigatory Powers Bill sets out to restore the status quo it is no surprise that campaigners against the current legal setup are also against legislation that restores it.

Amongst those who are not happy with the status quo are Liberal Democrats, so should we be agreeing to rushed legislation that restores something we don’t like?

The problem is that there is a large authoritarian majority in the Commons.

The only route by which a party with less than 1 in 10 MPs under its colours can get some of its beliefs put into action is to force concessions from the authoritarian majority. Else you just get a principled vote against and authoritarian policies steam ahead (as Stephen Tall rightly pointed out happened with the recent vote on knife crime). No amount of rhetoric about a valiant stand on principles changes the failure to make a difference to people’s lives.

The threat of the current system collapsing (see above) is a double-edged sword for extracting some concessions in return for speedy legislation. The authoritarians don’t want it to collapse, but they could force something through on their own in the end, and whilst the current system is authoritarian, its collapse would swing the system excessively the other way, way beyond what the Liberal Democrats want.

Faced with that authoritarian position of strength, somewhat paradoxically I’m both more willing than some to accept a limited number of concessions as the most that can be achieved but also very sceptical about concessions which simply mean a future authoritarian House of Commons votes on what will happen.

I think Julian Huppert has done a pretty good job at making the case for the concessions secured. Note that several would be nonsense to put into legislation (such as the appointment of a diplomat to negotiate with the US) – which makes the complaint of some that not all the concessions are in the Bill a very odd complaint indeed.

Moreover, the sunset clause to force further debate is of the form that would require more extensive Parliamentary debate than simple Parliamentary nodding through to overturn. Additionally, the Lords would need to vote for it, and the circumstances in which it is being proposed means the House of Lords and its key crossbenchers would be very anxious about a simple overturning of it without very good reason.

What’s more, the Bill’s proposals do not require communications providers to start storing new data beyond that which they currently create for the purpose of supplying their services. That is a crucial distinction between this legislation and previous illiberal proposals, which would have required the storage of new and extended information.

The big weakness is the number of the concessions which require future government or Parliamentary approval and hence my preliminary verdict on them still looks good: “With so many authoritarians in Parliament and government, that is not guaranteed to turn out well – making the question of how far Nick Clegg is willing to push the issue absolutely central to how it plays out.”

Do people understand what is being proposed?

I’ve touched on some of the areas of disagreement over what the detailed drafting of the Bill will do, and there are plenty more. Clause 5, for example, with its extended definition of “telecommunications service” is just the sort of legislation that can have unintended consequences unless first carefully considered. But at least measures such as the sunset clause and RIPA review mean such problems won’t just be left to fester on the statute book as authoritarians happily stand by and do nothing.

So where does this all leave things? There is an authoritarian majority in the House of Commons. There is an authoritarian majority (or more accurately, plurality) amongst the public. There should have been given more time for public and Parliamentary debate – and the failure to do so is a mistake for which Liberal Democrats in government share responsibility. But what is the sequence of events by which a more substantively liberal outcome would get voted through the Commons?

It’s a genuine question; I can’t think of a plausible sequence of events. If there is one, then I’m happy to change my mind, but for all the problems with what is happening, I can’t see how the party could have achieved much more in terms of the substantive legislation and other actions being taken – and could easily have achieved much less.

As The Independent puts it, “the law may in fact, in a few years, benefit the civil libertarian cause” whilst The Guardian says the Bill, “provides an opportunity to hardwire in some civil liberties elements that were missing when Labour introduced them. Given Labour’s ‘Big Brother’ record on these matters when they were last in government, this may prove a rare liberal moment.”

To achieve more in future, we need to strengthen the liberal campaigning voice, both within the party and outside it. The party needs, finally, to embrace public campaigning to strengthen its position in government – and to appreciate that without such public campaigning it is always going to be an uphill task to persuade those outside the party that the Liberal Democrats have really achieved a good outcome in the face of an authoritarian majority.

So one closing thought – we do really need a good Liberal Democrats for Civil Liberties campaign body, to push the issue internally and build bridges externally. If you’re interesting in supporting such an initiative (and, crucially, have some of the valuable time to help make it happen), do drop me an email ([email protected]) and in the meantime do follow the Facebook page.

Photo by Tristan Schmurr

* Mark Pack is a member of the Federal Board and editor of Liberal Democrat Newswire.

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29 Comments

  • “They need to be within the powers granted by the parent Bill, which in this case restricts them to, for example, the types of data set out in Clause 2,”

    This doesn’t take account of the “different provision for different purposes” clause in s.1. That this can be used for expanded purposes is explicity acknowledged in the Explanatory Notes – “Paragraph (e) allows for a notice to
    make different data types subject to different provisions so, for example, there may be a requirement to retain different types of data for different periods of time.”

    What will the RIPA review actually do? Is there a time frame? Commitment to legislative time in this Parliament to implement it’s findings?

    Or that fact that the Data types in Clause two are to start with a very broad set of data – and can in themselves be explanded by an Order made by the Secretary of State.

  • James Baker 14th Jul '14 - 1:38pm

    “But I’ve yet to see a convincing example of something that does not currently happen which would then happen after DRIP has been passed.” –

    Graham Smith’s blog points out three clauses that have nothing to do with data retention , clause 4 about applying RIPA to non-UK companies providing communications services to the British public is new. This is one example why I have am calling the claim this reinstates the status quo an outright lie.

    http://cyberleagle.blogspot.co.uk/2014/07/dissecting-emergency-data-retention-and.html

    “These are the non-data retention aspects of DRIP.
    Clause 4 addresses the government’s concern that it should be able to apply RIPA to non-UK companies that provide communications services to the UK public.

    Clause 5 broadens the RIPA definition of telecommunications services. The Explanatory Note says this is so that webmail providers are clearly caught. The change will also have implications for data retention because of crossover into DRIP.

    Clause 3 places a further restriction on the general purposes for which interception warrants and communications data acquisition notices can be issued. This will bring RIPA into line with the existing codes of practice.”

  • James Baker 14th Jul '14 - 1:40pm

    and regarding members of the government claiming it does comply with ECHR then that view is at odds with the view of Liberty who claim

    “Clause 1 of the Bill contains powers for the Government to continue to mandate blanket retention of communications data within the UK for 12 months. This is in direct contradiction of a CJEU judgment, delivered in April, which held that blanket indiscriminate retention of such private data breached human rights. The judgment laid out ten criteria for proportionate retention and access to communications data that are ignored in this Bill. The Government has known of the judgment for over three months and cannot justify the ‘emergency’ it now claims.”

    http://jamesbaker.mycouncillor.org.uk/2014/07/13/liberty-claim-new-surveillance-powers-breach-human-rights/

  • James Baker 14th Jul '14 - 1:56pm

    “What’s more, the Bill’s proposals do not require communications providers to start storing new data beyond that which they currently create for the purpose of supplying their services. That is a crucial distinction between this legislation and previous illiberal proposals, which would have required the storage of new and extended information.” –

    Is that correct? The explanatory notes state that the additional cost of state surveillance ‘relating to communications data amount to £8.4 million ‘(Present Value over 5 years). (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/328940/draft-drip-notes.pdf)

    The Guardian is also reporting on the new powers contained within the bill – http://www.theguardian.com/world/2014/jul/13/surveillance-bill-new-powers

    Mainly those to demand overseas companies hand over data relating to communications.

  • matt (Bristol) 14th Jul '14 - 1:59pm

    If the leadership feels the bill is workable, yet as at the same time the membership want, as Mark Pack seems to, an ongoing campaign on this issue so that the Bill is not regarded as a settlement of the issue, just as the best available compromise, we need one key thing secured and maintained.

    That is that our parliamentary leadership avoid defending the bill as anything other than a concession we were able to wring out of the authoritarian parties, and not as one of our ‘achievements in government’ which would suggest we and they are prepared to defend it to the hilt and makes moving the issue further in election campaigning more difficult.

  • Jim Killock 14th Jul '14 - 2:06pm

    “ Moreover, suppose the legal view of Liberal Democrats in government is wrong and DRIP turns out not to go far enough. The legal debates in the Lords in particular on this point will be well worth following but if Liberal Democrat colleagues have indeed got it wrong, the result will be legal action that forces DRIP to be modified further – which given that would have to be in a more liberal direction is not such a bad worst case scenario.”

    I’d love to agree Mark, but the problem in the UK is that governments have to take the court rulings and apply them. Each time the rulings appear they have a chance to misapply them. Justice delayed is justice denied.

    The rhetoric makes it very clear that blanket retention will continue. Nobody has sought to say this will not be the case. Nor has any change been made to the access regime.

    In short, if Lib Dems can’t help Parliament impose human rights judgements, who on earth can?

  • James, Hywel and Jim are all people who are expert in this field. They know very much what they are talking about, and having actually read the proposed legislation I can’t see anything wrong in what they are saying. They question posed in the title of this piece, then, is a classic QTWTAIN.

  • Richard Dean 14th Jul '14 - 4:22pm

    What human rights does blanket retention of data breach? Retained data has no impact unless it is accessed, and the ECJ’s main recommendations seem to recognize this. The ECJ also recognizes that governments and populations have legitimate rights to carry out some actions that ensure their security.
    http://curia.europa.eu/juris/document/document.jsf?text=&docid=150642&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=29835

  • David Howarth 14th Jul '14 - 4:45pm

    A good summary from Mark. There is, however, an important distinction to make. There is a difference between the Bill itself being in human rights difficulty and individual retention notices made by the Secretary of State under the Bill being in human rights difficulties.
    The bill itself restricts making retention notices to situations in which the Secretary of State considers them to be ‘necessary and proportionate’. Since that is what human rights law requires, whether considered by the CJEU, the ECtHR or the UK domestic courts, the bill itself will therefore probably be OK, apart from there being a possible problem with the subjective drafting (‘considers’ rather than just ‘is’ necessary and proportionate). But that does not protect any of the retention notices themselves from human rights or just ordinary public law challenge. Each one can be scrutinised, initially by the UK domestic courts, for human rights compliance.
    The key challenge will be about blanket retention. Liberty is wrong that the bill ‘mandates’ blanket retention, but it doesn’t in terms ban it either. The question is whether the UK courts will agree with the CJEU about that point. They are not bound to agree, since the CJEU was deciding a case under the EU Charter about an EU Directive, not a matter of UK domestic human rights law, but I fail to see how anyone can be ‘absolutely convinced’ that the government will win on that point. I suspect that people who are saying that are, either deliberately or just through failure to understand the law, confusing the position of the bill itself and the position of the individual notices.

    BTW, @Hwyel – Fortunately there is no problem – the ‘different provision for different purposes’ clause is a standard clause that cannot authorise going beyond the purposes of the parent Act. It just means that within the purposes of the Act there can be different rules for different subcategories of subject matter (such as here phone data and email – indeed the CJEU judgment says that such differentiation is needed if the notices are to be proportionate).

  • Nigel Jones 14th Jul '14 - 5:55pm

    Mark Pack is right in condemning the way this has been handled. Coming out with something we say is OK after secret inside talks, is not the best way to project our correct image. Indeed should we be saying it is OK, rather than saying this in the circumstances is the best we can achieve at the moment but it is not what we want and certainly not what we want for the future.
    This is similar to what our leadership said, for example in 2012 about the budget. That it was great because we influenced it, rather than saying it is not a Liberal Democrat Budget, but we have managed to get some Lib-Dem items into it.
    Mark says we are an anti-establishment party, but unfortunately very few now see us that way.

  • “So one closing thought – we do really need a good Liberal Democrats for Civil Liberties campaign body, to push the issue internally and build bridges externally”

    How can you build bridges whilst approving things like secret courts? How can you campaign on civil liberties, if people like Clegg do not really believe in them?

    People are likely to judge the LibDems on their record

  • This may prove the biggest blunder the Lib Dem decision makers have made in the last 10 years.

  • Apologies for being a bit slow in replying to comments – a Lib Dem meeting took a few hours longer than expected!

    @Hywel – David Howarth has replied to your main point about the scope of the Bill. On the RIPA review, I agree there are lots of uncertainties – one of the problems with the secrecy followed by rush which illustrates why that was a poor choice.

    @Jamees – I agree about the three clauses not being to do with dealing with data retention (the ECJ ruling). They’re there to deal with the second legal problem I outlined above. I’m not clear where the myth that the Bill’s urgency case is only based on the ECJ ruling came from (and it may be the government’s fault for not making this clearer), but whereever it came from, it’s still mistaken.

    On the £8.4 million point – the £8.4 million cost in the explanatory notes is compared to doing nothing – i.e. if the current system were to collapse due to the two urgent legal issues – and in fact £8.4 million is what is currently being spent. That the bill for the post-Bill system equals that for the pre-Bill system therefore in fact bolsters the case for the Bill being a restoration of the status quo.

    Re The Guardian piece (and the briefing note from campaigners on which it seems to be based) – I think on some key points it’s wrong, for the reasons outlined in my post.

    @Jim – the justice delayed point is a good one, which is why I’d be much happier if there was more time to put to the test the legal arguments over the proposed legislation’s compliance with ECJ and ECHR requrirements. But in answer to your question – what’s the route by which the Lib Dems would have achieved in full what we both want? It’s great to have people like ORG pressing the Lib Dems and others to go as far as possible – but when those willing to back the ORG’s case are in a minority, we can only go so far.

    @Jennie – you’re right they know a lot about the subject area, and knowing I was disagreeing with such people in this post is the main reason I asked LDV to let me write a longer post than usual so I could set out the argument in detail. I think (so far!) for the reasons given above in this comment it’s stood up to their examination.

    Thanks also to all the other commenters – this thread is a good example I think of where comment threads can be really useful and add more to a post than you get from it on its own. I don’t think there are any other questions I’ve missed, but let me know if I’m wrong 🙂

  • @Linda – sorry, missed out your comment. If we were in opposition, we might well be much more strident about the legislation – because it would be far worse without the Lib Dem concessions in it….! And we’d feel great about the simplicity of damning it (myself included!) – but if in the end we ended up with an outcome worse that what we’re getting, how does that end up helping making us a more liberal society with people’s rights and privacy better protected?

  • James Baker 15th Jul '14 - 1:00am

    @Mark I think your point about more time to test the legal argument, or at least debate some aspects of them in parliament is a good one. The comparison between the detailed pre-legislation scrutiny of the cross-party committee on the comms bill and this rushed ’emergency’ legislation is as people have pointed out startling.

    A more convincing line to take would be perhaps something like “we think the ECJ ruling raises serious questions about the current retention regime’s legality and compliance with Human Rights Law . However on the basis of the concessions we have won, we have agreed to introduce this law for six months before brining forward legislation we are satisfied will comply with the ECHR and the Human Rights Act”.

    Interestingly now it appears the Labour front bench is actually stealing the initiative , although these amendments (as reported in Graun) still doesn’t include the key points in the ECJ ruling about not having blanket retention and having some judicial or administrative oversight to data access. – http://www.theguardian.com/politics/2014/jul/14/yvette-cooper-tables-amendments-suerveillance-legislation

    @Linda – I agree with you 100% you can compromise on some issues but not on a constitutional interpretation of a fundamental right such as the right to privacy.

    @Alistair – That’s a bold claim with so many to choose from 🙂

    @Colin – You are right to champion liberty not only to you have to try and negotiate improvements, you also have to make principled stands. The party decided to do that over knife crime and mandatory sentences rather than mass surveillance and blanket data retention it seems.

  • James Baker 15th Jul '14 - 1:36am

    @Mark you say ” For me what’s important is what actual interception of our communications will take place compared to what has taken place. On that, DRIP will return things to as they were” –

    Again this isn’t quite right. Firstly clause 5 extends the definition of a telecommunications service this means bits of communications data falling under the new definition will be captured.

    Secondly as things were the legal framework for retention was based on the directive and then the 2009 regulations that brought them into UK law. This meant the ECJ could rule on the directive’s compliance based on the ECHR. This was an additional legal safeguard as a European legal institution was providing a legal check and balance on powers used by the UK government. If as did happen they struck out the directive it would leave the regulations that put it into UK law subject to a judicial review (one that was under way).

    Now however what is happening is that powers ruled unlawful are being placed under a new act of parliament. This will make it harder for a ruling in strasborg as the UK government will try and argue the awful RIPA laws we want to review meet the requirements of the ECHR. Whether they do as the Home Office (and sadly Lib Dem MPs) or they don’t as Liberty etc claim will inevitably be determined in a legal challenge and another ruling. That’s is where we are heading.

    So then we get back onto what ‘actual’ interception will take place, under the primary legeslation we can say for certainty some more due to the change in definition of telecommunications provider. A little less due to the tightening of RIPA clauses on collecting data in economic interest.

    The problem is this time next year a Conservative or Labour Home Secretary could bring forward a new SI dramatically increasing the amount of data retained (most likely whilst arguing it’s just maintaining existing capacity) in that situation the actual data retained will be vastly different. As the act allows for that kind of SI to occur I don’t think you can say DRIP returns things to where they were.

  • James Baker 15th Jul '14 - 1:47am

    @Hywel – Sorry missed your point. Enabling legislation that creates new executive powers to expand surveillance powers through regulations is classic database state. It’s the Home Office modus operandi thanks to the influence of people like Charles Farr.

    There is a suspicion among some civil liberties people this bit of legislation was waiting to be dropped into some bill or other and the current climate of OMG terrorists, and paedophiles seemed a good time to push it. Note also the Sun was briefed and carried a pro security story on it before cabinet were informed.

  • @linda – what is the ‘fundemental liberal principal’ at stake here. presumably we all agree the state needs power to intercept commnications of criminals and terrorists. There is clearly a discussion to be had about the extent of this and what controls are needed .

  • Jim Killock 15th Jul '14 - 8:00am

    @Mark Not being in government, it is hard for me to say how the Lib Dems should have got what was needed, but the Lib Dems are in a coalition and they do have to agree before the government can advance bills into Parliament. It’s reasonable to say that a Bill should be lawful, match the coalition agreement (“end storage of emails without good reason”) and not enter into a constitutional conflict.

    The rush is artificial: time for debate would have allowed some of the issues to play out. And if the Lib Dems had been voted down in the end, we would know who the lawbreakers are.

    @Simon the fundamental liberal principle is (a) your right to privacy as outlined in three human rights instruments, plus (b) a human rights court judgement demanding blanket retention ends on human rights grounds and (c) Parliament ignoring that judgement and thereby undermining the Rule of Law.

  • Thankss David. I will (feeling rather like David looking up at Goliath) take issue with you 🙂

    First – is there need for the “Different provision etc” clause at all. This is emergency legislation to address a specific defined gap in the law. If it IS such an emergency then the executive should be able to clearly define it and only want emergency legislation to address that specific gap.

    Secondly, if it doesn’t authorise going beyond the purposes of the act then we need to consider how that is defined. The most obvious starting point I can think of is the preamble which lists the following:
    1) to amend the grounds for issuing interception warrants, or granting or giving certain authorisations or notices, under Part 1 of the Regulation of Investigatory Powers Act 2000;
    2) to make provision about the extra-territorial application of that Part and about the meaning of telecommunications service for the purposes of that Act;
    3) and for connected purposes.

    Those are pretty generally expressed and the purposes are referred as those defined in RIPA – which again are pretty widely drawn (and pretty much cover anything). The defintion of “relevant communications data” could be easily extended by regulation – plus if all else fails you have the “connected purposes” clause. So in effect you have a wide ranging general power which can only be exercised for widely defined purposes.

    There may well be situations where that is sensible legislation – but that should not be the case in emergency legislation which by its very nature is not adequately scrutinised.

    And thirdly, if these regulations were used to “push the envelope” where could they be challenged. I’ve not looked at this in detail (and I’m not going to start!) But as a general concept, whilst secondary legislation can be judicailly reviewed, if Parliament has given a minister a fairly broad power, exercisable for fairly broad purposes. And then approved (particularly by an affirmative vote) the regulations produced under those powers then it would be a pretty big encroachment into Parliamentary Sovereignty to do that on grounds other than proportionality/Human Rights. Those would be grounds, but we should really be legislation in a way that doesn’t have to rely on that as the fail safe?

    If there were proper Parliamentary process then some of these things could be probed in the passage of legislation. Where you can’t do that it’s just plan bad legislating. If you don’t want Ministers acting in a way you wouldn’t approve of, then the safest course of action is not to give them that power in the first place!

  • David Howarth 15th Jul '14 - 11:49am

    @Hywel
    On your first point, whether there is an emergency is off this particular point. The issue is what ‘different provision for different purposes’ means in the context of an power to make regulations. There is often a debate within the Office of Parliamentary Counsel about whether there is a need for a ‘different provision for different purposes’ clause but only on the ground that some people argue that it is obvious that a power to make regulations can be exercised differently for different purposes . The debate usually goes in the direction of being explicit. There is such a clause in more than a dozen Acts passed this year.
    On your second point, working out the limits of a power to make regulations are not defined by the short title of the Act as a whole (it’s not a Preamble, btw, that’s a completely different thing) but by the clause that creates the relevant power to make regulations, namely clause 1 itself. The purpose of clause 1 is to empower the Secretary of State to make ‘necessary and proportionate’ retention notices. No regulations made under clause 1 can be about anything irrelevant to that purpose.
    On you third point, I’m afraid that you do have to ‘look in detail’ at the conditions for challenging regulations. It is entirely possible for regulations that have gone through the affirmative procedure to be struck down by the courts – see e.g. Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, see further F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 365 per Lord Diplock. The courts do sometimes give the government a little more leeway in cases about regulations passed by affirmative resolution (e.g. R. (on the application of MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13, 57, about justification for discrimination caused by the bedroom tax), but not so much as to allow illegality or violations of the Human Rights Act.

  • >it would be far worse without the Lib Dem concessions in it

    …and you’re sure you’re happy with this epitaph?

    Perhaps Lib Dems should find other sympathetic MPs and try to get some amendments through that further clarify and limit the scope of bill. At least then it won’t look like we’re agreeing to legislation this poor and we can claim to of shaped it into something more palatable. You’re trying to convince us that’s already happened, but considering the members you might want to rethink this position of promoting Lib Dem stewardship of this bill.

  • James Baker 15th Jul '14 - 1:11pm

    @David

    Are you in agreement with the following open letter that the bill does contain new powers?

    To all Members of Parliament,

    Re: An open letter from UK internet law academic experts

    On Thursday 10 July the Coalition Government (with support from the Opposition) published draft emergency legislation, the Data Retention and Investigatory Powers Bill (“DRIP”). The Bill was posited as doing no more than extending the data retention powers already in force under the EU Data Retention Directive, which was recently ruled incompatible with European human rights law by the Grand Chamber of the Court of Justice of the European Union (CJEU) in the joined cases brought by Digital Rights Ireland (C-293/12) and Seitlinger and Others (C-594/12) handed down on 8 April 2014.

    In introducing the Bill to Parliament, the Home Secretary framed the legislation as a response to the CJEU’s decision on data retention, and as essential to preserve current levels of access to communications data by law enforcement and security services. The government has maintained that the Bill does not contain new powers.

    On our analysis, this position is false. In fact, the Bill proposes to extend investigatory powers considerably, increasing the British government’s capabilities to access both communications data and content. The Bill will increase surveillance powers by authorising the government to;

    compel any person or company – including internet services and telecommunications companies – outside the United Kingdom to execute an interception warrant (Clause 4(2));
    compel persons or companies outside the United Kingdom to execute an interception warrant relating to conduct outside of the UK (Clause 4(2));
    compel any person or company outside the UK to do anything, including complying with technical requirements, to ensure that the person or company is able, on a continuing basis, to assist the UK with interception at any time (Clause 4(6)).
    order any person or company outside the United Kingdom to obtain, retain and disclose communications data (Clause 4(8)); and
    order any person or company outside the United Kingdom to obtain, retain and disclose communications data relating to conduct outside the UK (Clause 4(8)).
    The legislation goes far beyond simply authorising data retention in the UK. In fact, DRIP attempts to extend the territorial reach of the British interception powers, expanding the UK’s ability to mandate the interception of communications content across the globe. It introduces powers that are not only completely novel in the United Kingdom, they are some of the first of their kind globally.

    Moreover, since mass data retention by the UK falls within the scope of EU law, as it entails a derogation from the EU’s e-privacy Directive (Article 15, Directive 2002/58), the proposed Bill arguably breaches EU law to the extent that it falls within the scope of EU law, since such mass surveillance would still fall foul of the criteria set out by the Court of Justice of the EU in the Digital Rights and Seitlinger judgment.

    Further, the bill incorporates a number of changes to interception whilst the purported urgency relates only to the striking down of the Data Retention Directive. Even if there was a real emergency relating to data retention, there is no apparent reason for this haste to be extended to the area of interception.

    DRIP is far more than an administrative necessity; it is a serious expansion of the British surveillance state. We urge the British Government not to fast track this legislation and instead apply full and proper parliamentary scrutiny to ensure Parliamentarians are not mislead as to what powers this Bill truly contains.

    Signed,

    Dr Subhajit Basu, University of Leeds

    Dr Paul Bernal, University of East Anglia

    Professor Ian Brown, Oxford University

    Ray Corrigan, The Open University

    Professor Lilian Edwards, University of Strathclyde

    Dr Theodore Konstadinides, University of Surrey

    Professor Chris Marsden, University of Sussex

    Dr Karen Mc Cullagh, University of East Anglia

    Dr. Daithí Mac Síthigh, Newcastle University

    Professor David Mead, University of East Anglia

    Professor Andrew Murray, London School of Economics

    Professor Steve Peers, University of Essex
    Julia Powles, University of Cambridge

    Professor Burkhard Schafer, University of Edinburgh

    Professor Lorna Woods, University of Essex

  • David Howarth 15th Jul '14 - 2:45pm

    With some qualifications. Their point about art. 15 of the 2002 Directive does not work with respect to the Bill itself. That is because art. 15 requires that any national measure for the purposes of e.g. crime prevention and detection has to be ‘necessary, appropriate and proportionate’ and the Bill authorises only ‘necessary and proportionate’ notices. It might, however, work for the individual notices themselves and so provides yet another route to attack them, and one the government appears to be even less likely to win than under domestic human rights law.
    On the clause 4 points, the government claims that RIPA has extra-territorial effect anyway and they are just clarifying that position. The government made the same claim to the Draft Communications Data Bill Committee so it hasn’t just made it up recently. I very much doubt whether the government is correct, however. As a matter of statutory interpretation there is a strong presumption against extra-territoriality, to be displaced only by clear words. There are no such words in RIPA. So I think these are new powers.
    As a matter of practical effect rather than legal obligation, the government’s argument seems to be that the companies have been complying extra-territorially anyway and have asked to be compelled to provide them with better grounds for complying. I’m not sure how plausible that is. Have any of the companies said this publicly? What precisely is the nature of the pressure on them not to comply? In any case, clause 4 says that the court has to take into account any requirement of foreign law that the company does not comply. So I’m not convinced.

  • @Colin
    Exactly right. Mark’s idea for a body has as much credibility as Lord Carey launching a body to campaign against prayer in churches.

    @Mark
    “but if in the end we ended up with an outcome worse that what we’re getting”

    We got a worse outcome on secret courts thanks to LibDems. How does it help society if Labour, Conservative and LibDem are all bad on civil liberties? How does it create clear yellow water to make the party successful in the future?

  • Mark Pack: “Unusually for me, I’m starting writing this piece without knowing what conclusion I’ll come to by the end of it. ”

    Translation: “In truth, this is an indefensible pig’s ear. However, I’m here to make the Lib Dems smell of roses. How can I do that? Well, write a long and balanced-looking article, admit to some of the indefensible faults, but then explain how hard it all is and how important it is to recognise that Lib Dems did their best against an authoritarian majority. That should get us off the hook, sort of.”

  • Bradley Sneddon 27th Feb '16 - 6:08pm

    Regarding the open letter from Academic Internet Law Experts:

    How does DRIP actually and literally “introduce powers” that are “some of the first of their kind globally”?

    Consider – the Egyptian government passes an act granting itself the power to demand information from any foreign communications company and part of that act includes a provision that the company served with an interception warrant is forbidden from notifying anyone at all of its reception of such a warrant and its subsequent compliance.

    And there you are in the UK, running an internet service provision company and you receive such a warrant from the Egyptian security services.

    Are you going to meekly comply?
    Are you going to allow the Egyptian security services to make a total knave out of you? Are you actually going to suffer this in silence and NOT notify the police, your solicitor, your local MP and MI5 or anyone else appropriate about such an affront not just to democracy but to the dignity of your nation’s sovereignty?

    DRIP does not actually and literally “introduce powers” that are “some of the first of their kind globally”.

    It merely articulates a delusion held by her majesty’s government about having such powers.

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