Paddick: EU court ruling on surveillance shows that Government overstepped the mark

When the Data Retention and Investigatory Powers Act was just a Bill being rushed through Parliament with indecent haste, the pros and cons were hotly debated on this site.Today, the European Court of Justice ruled that the general and indiscriminate collection of data was illegal.

Now, this was a Bill passed by the Coalition Government with Liberal Democrat consent So shouldn’t we be feeling a bit embarrassed by this ruling? I guess we need to look at the position we were in at the time. Even if we’d told the Tories that we wouldn’t support the legislation, there would have been a majority in the House of Commons for it. In fact, Labour would have been falling over itself to make it even more authoritarian.

We also know what the Tories wanted to do with communications data – because they did it with the much more pervasive and illiberal Investigatory Powers Act passed, again with Labour support, as soon as they had a majority.

Back in 2014, we secured some important concessions from the Tories in return for our support on the DRIP Act.  Julian Huppert wrote at the time that it was what we already had but with additional safeguards as he set out the context to it all:

There is an issue we have to deal with now. The European Court of Justice threw out the European Data Retention Directive, which underpins all collection of communications data in this country. I sympathise with the reasons, but we must acknowledge that it causes real problems – we do need to have some way to keep some communications data, but under very careful control.

Some people would love to use this to bring back the awful Communications Data Bill – known as the Snooper’s Charter – that Nick vetoed last year. A number of Tories pushed it and Labour tried something similar themselves. We will not allow this to happen. We’ve blocked it once, and we will continue to do so. This legislation just allows the agencies to continue with their current abilities.

I’ve had the chance to speak to Nick and Norman Baker about this – all of us have been clear. We must keep our country and citizens safe, but not by allowing the erosion of our civil liberties and increasing unchecked intrusion into our lives.

We need legislation to allow communications data to be available, but not to store more than is already allowed. And in this post-Snowden world, we need to move towards keeping less, and finding better and more proportionate ways to do so.

We need to completely rewrite the law in this area. But that cannot be done quickly. We have to get it right, which will take a lot of work from many experts. We’ve already started that off – our ‘Digital Bill of Rights’ motion calls for a commission of experts to review all state surveillance and information from the Snowden revelations – that takes time. Nick has already started this work with the Royal United Services Institute, and they need to finish that work.

So I think it is right to agree to a stop-gap. A piece of legislation that can be passed quickly, but crucially will automatically expire at the end of 2016, giving time to write something better, and the certainty of knowing it will not just become entrenched.

And in this stop-gap legislation, we should agree to no more than was previously allowed.

And we’ve managed better than that – we’ve also negotiated and won a package of pro-civil liberties measures to go with it:

  • The Bill includes a termination clause that ensures the legislation falls at the end of 2016 and the next government is forced to look again at these powers.
  • Between now and 2016 we will hold a full review of the Regulation of Investigatory Powers Act, to make recommendations for how it could be reformed and updated.
  • We will appoint a senior diplomat to lead discussion with the American government and the internet companies to establish a new international agreement for sharing data between legal jurisdictions.
  • We will establish a Privacy and Civil Liberties Oversight Board on the American model, to ensure that civil liberties are properly considered in the formulation of government policy on counter-terrorism. This will be based on David Anderson’s existing role as the Independent Reviewer of Terrorism Legislation.
  • Further reform of the Intelligence and Security Committee, so that in future the Chair must be drawn from the Opposition parties.
  • We will restrict the number of public bodies that are able to approach phone and internet companies and ask for communications data. Some bodies will lose their powers to access data altogether while local authorities will be required to go through a single central authority who will make the request on their behalf.
  • Finally, we will publish annual transparency reports, making more information publicly available than ever before on the way that surveillance powers operate.

I don’t claim that this is a perfect long-term solution. But I don’t think anyone could write down, right now, what would be perfect. And it’s a huge lot better than either the Tories or Labour would have done on their own. But because this legislation – though not the extra safeguards – will end in 2016, there will have to be a proper full discussion in the rest of this Parliament and the next on this – the status quo cannot be continued forever.

So we did what we could at the time to make the legislation a lot less invasive than it would have been had Theresa May done it on her own.

Brian Paddick said that today’s ruling definitely called into question the legality of Theresa May’s bill  subsequent Bill.

This ruling proves that this Conservative Government has overstepped the mark.

The legality of the Investigatory Powers Act – passed into law with Labour’s full support – has now been called into question.

Collecting and storing everyone’s internet web browsing histories and phone records so government agencies can look at them is an Orwellian nightmare that intrudes into our privacy and erodes our civil liberties. Liberal Democrats tried to stop the worst excesses and now the courts agree.

We need to keep people safe but mass surveillance as sanctioned by the Investigatory Powers Act is unacceptable in a democratic society, would be unconstitutional in many countries, and is likely to be ineffective and counter-productive.

This dreadful piece of legislation will cost millions to implement and unless the Government reconsider, they will inevitably face further embarrassment in the courts.

Today’s ruling does not come as a huge surprise to anyone who has in-depth knowledge of these issues. There is an irony, of course, in that it was Brexit Secretary David Davis who was one of those who mounted the legal challenge when he was just an awkward squad backbencher. The next Cabinet meeting should be interesting.

* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

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16 Comments

  • The court has spoken. We made a mistake in passing the bill. We should be willing and prepared to acknowledge it.

  • Only 2 Lib Dems voted against this bill (3rd reading). Nothing compelled the Lib Dems to support it except there own choices. Much as I like you you did and continue to do a lot of damage to the party with ultra-loyalist things like this.

    Until the party accepts and starts talking about the things it got wrong in coalition it will continue to struggle.

  • A tad hyperbolic, Hywel, I think.

    The DRIP Act made many of us feel very uneasy. It was, however, the most liberal piece of legislation in this area that we are likely to see for some time. That is an undeniable fact.

    We made mistakes in coalition. The General Election Review was praised externally and internally for being pretty honest and credible. We learn and we move on. We can’t spend the next 10 years wallowing. This country needs an active Liberal Democrat party. We know people want to vote for us when they are given the chance so let’s get on with it.

  • I don’t think Hywel is being hyperbolic. If the Lib Dems won’t vote against things like this then what are they for?

    Personally, I could forgive the compromises made over tuition fees, but the DRIP seems to go against the core of Lib Dem identity.

  • It’s the best part of two years on and you’ve posted a piece that is entirely backwards looking and basically summarises as “we were right”. I’m not sure whos doig the wallowing here. Who’s the one not moving on?

  • The Lib Dems didn’t have to vote for this anymore than they had to vote for increasing tuition fees. It would have been far better for the party to have let Labour and Tories vote it through, then people could at least see who was responsible. It is the idiotic attitude of thinking the ‘new politics’ of coalition involves voting for things you fundamentally oppose that made it such a disaster, that and having a leader who thinks that community politics and the big society are the same thing, well it was to him, tory wet lite.

    The general election review was far from full, frank or credible, it finally touched on a few issue that had become thought crimes, and we are meant to celebrate that ?

  • I agree with Paul on this. DRIPA was the only thing the Lib Dems did in coalition that made me seriously reconsider my support of the party.

  • This judgement from the Court of Justice of the European Union (CJEU) is an important and timely reminder of one the lesser talked about, yet tangible, benefits arising from our EU membership, namely the protection of our rights and freedoms.

    What is going to be interesting is to see how the government handles making the Investigatory Powers Act 2016 compliant. If the government are serious about Brexit, I would expect them to delay revision, on the other hand, if they set up a committee to review the Act…

  • Caron, and when the next terrorist event happens in this country and sadly there will eventually be one and the security forces state they may have been able to prevent it had they had the power just denied them and they will, you will say what?
    Give me liberty or give me death is a fine sentiment; personally I find life the better option, whilst alive there are always possibilities. Death is so permanent.

  • A Social Liberal 23rd Dec '16 - 2:43am

    Tynan
    I could not disagree with you more. If we enable illiberal acts in the name of fighting terrorism then those terrorists will have won. Those illiberal acts will have the added effect of being used as a recruitment tool by those terrorists. We have evidence of this, the effect of internment – even though it lasted only seven days – was that PIRA had a huge influx of recruits and was able to prosecute the asymetric war for years longer than would otherwise have happened.

    Incidentally, your phrase ‘when the next terrorist event happens in this country’, shows some naivity on your part. In 2015 there were 16 security attacks commited nationally which were placed at the feet of republican terrorists. Thus why the threat level in response to dissident republicans is at the same level as islamic terrorism – severe.

  • Lorenzo Cherin 23rd Dec '16 - 3:18am

    I agree with Caron on this and her response yes, to Hywel.

    I would agree a lot more if I thought I knew what is meant by a genuine Liberal Democrat party , rather than one that is knee jerk and over the top at times on some issues , but does not allow or encourage a genuine Liberal and Democrat perspective ,in keeping with principles that need to adapt to a dangerous populism we shall not counter with one issue political stances or ultra -liberal modern attitudes .

  • Lorenzo Cherin 23rd Dec '16 - 3:31am

    PS

    Just to add , as did not go into the explanation . Hywel , it is not correct that Caron is wrong in her stance on the coalition. What can be the good in further critisim of Nick Clegg in any strong way when he is doing such a good job on Brexit and was always a fine communicator of Liberalism even , as Caron does say , when he made real mistakes. I say what I do above , because I believe we are sometimes too out of touch with the middle , the mainstream , not because we need more agro re the past years.

    I have differences with Caron as with anyone on some things , unity is not is not alll singing from the same hymn sheet always. She is trying to unify the party and this site . Many of us have proverbial bees in bonnets goodness knows I do , on the coalition and many issues . But looking back does little if wallowing is all.

    I played Don Quixote in Man of La mancha , a line in it ” look always forward, in last years nest , there are no birds this year .”

  • Social Liberal-:
    I don’t see that I in anyway alluded to the identity of who would carry out the next attack or for what cause,only that there would be one. I aware of the dissident republican threat and that of other groups.
    We just disagree then, in much the same way as I disagree with the statement by one of the Green party that ‘attack by terrorists is the price of living on a liberal democracy’ err, no my children are not thee to fuel the flames of any ideology. Holding hands, singing and back lighting.nations monuments will not in itself prevent further attacks. I support the security agencies of this country, they have done a fantastic job of protecting us, despite grotesquely ignorant policies by all governments and opposition,including those of the coalition and of course the best efforts of the European Court.

  • A Social Liberal 23rd Dec '16 - 4:52pm

    Tynan

    So I take it you are in favour of control orders and their just as illiberal successor, given that they both allow people to be detained without trial – either in the home or Belmarsh. You must also agree with rendition given that our security forces think that kidnapping and forced removal to an allied country is a good idea – anything to aid our Security Forces. Oh, we mustn’t forget throwing away the key at Guantanamo or even just putting them up against the wall.

    Where do we draw the line, Tynan, in aiding the security forces to do their job. As an ex member of the Northern Irish security forces, I personally say none of the above including the Snoopers Charter

  • Again, don’t see that anything you say follows from what I said, but the short answer is if that or my child being murdered by terrorists then yes and if need be more to protect me and mine. Are you willing to sacrifice your kids and hug a tree hold hands lift a lighter on the air and song cum by yah in the hope it will detract any further attacks, because we are nice people, even if they hate us and every thing we stand for.

  • Well done to the security forces who stopped the person wanted for the recent murders in Germany. The fact he wad there at all and crossed four boarders on the free travel area would stand further scrutiny.

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