Many Liberal Democrats are congratulating themselves on a ‘sensible compromise’ on the emergency data retention bill, DRIP. I am afraid they are deeply wrong, and want to explain a little about why.
The first, most important point, is that DRIP doesn’t answer any of the points made by the Court of Justice of the European Union (CJEU) about data retention laws. Most importantly, they ask for an end to blanket retention, saying that retention must relate to specific threats, and be confined by specific criteria, such as a time period, geography, or a set of people of interest.
The clear intention of the Bill is to ignore this requirement and carry on with the same blanket retention arrangements. That is to say, data on innocent individuals will continue to be collected without any specific reason. In common parlance, we carry on with mass surveillance when a court has ruled it illegal.
The second important point is that judicial or independent oversight of access is required by the CJEU. This is ignored, alongside many other demands. For a list of them, read paragraphs 58-68 of the judgement.
This will very obviously be a case of the UK Parliament ignoring a court, and just carrying on with illegal surveillance activities, in the name of law enforcement. What is extraordinary is that the champions of human rights, the Lib Dems, are signing up to it.
The result will be that the new act will be quickly challenged in the UK and EU courts. It’s possible that both the European Union’s court, the CJEU, will be asked about it, as well as the European Court of Human Rights. Either way, the UK is going to get into a tussle over the lack of human rights compliance of our mass surveillance laws.
The political mistake in going along with this stitch up is that Theresa May will be able to portray the vote as the “settled will” of all three political parties that data retention is necessary for national security and criminal enforcement. With the whole of the UK Parliament going along with data retention, the views of EU human rights courts will be betrayed as an attempt to interfere with our Parliamentary sovereignty.
The only people this will benefit are those who oppose human rights and want to weaken our relationship with the EU. It will be a travesty to see this abuse of human rights being turned into an argument over the UK’s relationship with Europe, but this is now very likely.
Lib Dems should not be accepting blanket surveillance, and certainly not when a court tells the UK to stop. They believe they have won concessions, most importantly to review RIPA, but that is a very weak chance for reform. RIPA is enormous, and the powers arraigned against reform very strong. It is actually much more practical to reform surveillance law by tackling specifics, like data retention, and establishing principles such as no blanket surveillance, before trying to take on the entire regime.
Nor should Lib Dems be allowing entirely new concepts around international access to data and warrantry be debated in this bill. These are extremely complex issues. Knowing how Home Office interpretations can deviate over time, as with RIPA warrants allowing mass data collection, measure like these need to be subject to watertight scrutiny.
Allowing these measures as an emergency will be remembered as an enormous cave in. The laws will show themselves to be poorly thought out and failing to comply with human rights, despite Lib Dem claims to the contrary. It will remove the credibility the party has built around resistance to the Snooper’s Charter. The timing could not really be worse, closing in on an election, and also yet again denies the public a genuine debate on the legitimacy of security measures.
That of course is the real emergency. The Home Offices does not want a public debate and is avoiding it at every turn. The DRIP Bill could have opened up much wider questions, but will now risks serving as a quick way of cementing the UK’s developing surveillance state.
To save anything from this disaster, Lib Dems need to speak up now. It is possible some of the clauses could get dropped. Most importantly, the ‘sunset clause’ could be brought forward, so we can have the public debate we need before the end of this Parliament. This can at least allow genuine debate and a chance to resolve these issues without them becoming a way to rubbish our human rights.
These are the CJEU criteria in full:
- 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);
- provide exceptions for persons whose communications are subject to an obligation of professional secrecy (see paragraph 58 of the judgment);
- distinguish between the usefulness of different kinds of data and tailor retention periods on the basis of the data’s possible usefulness for the purposes of the objective pursued or according to the persons concerned (paragraph 63);
- ensure retention periods are limited to that which are ‘strictly necessary’ (paragraph 64);
- 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);
- restrict access and use of the data to the prevention, detection or prosecution of defined, sufficiently serious crimes (paragraphs 60-61);
- limit the number of persons authorised to access and subsequently use the data to that which is strictly necessary (paragraph 62);
- ensure the data is kept securely with sufficient safeguards to ensure effective protection against the risk of abuse and unlawful access (paragraph 66);
- ensure destruction of the data when it is no longer required (paragraph 67); and
- ensure the data is kept within the EU (paragraph 68).
* Jim Killock is the Executive Director of Open Rights Group
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15 Comments
Fantastic article Jim. The question party members should ask their MPs is “Are you prepared to back a bill that directly contradicts a ruling of the European Court of Justice on Human Rights?”
Because if the answer is yes and they do it will undermine not only the party’s reputation on Civil Liberties but also the wider concept of Human Rights and international law.
>“Are you prepared to back a bill that directly contradicts a
>ruling of the European Court of Justice on Human Rights?”
That depends on how close it is to their summer holiday! When is the vote?
Bringing the sunset clause up to around the end of this year is an interesting idea – I expect it’ll get shot down by Labour and the Tories who would rather deal with this the year after an election instead of the year before, but it’s obviously the ideal answer for us.
Some of the ten points in the judges’ list, perhaps all, are addressed in the Provisional Draft of the Data Retention Regulations 2014, which may be accessed through one of the following sites:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/329785/Provisional-DRR2014-with-cover-sheet.pdf
https://www.gov.uk/government/publications/the-data-retention-and-investigatory-powers-bill
For instance section 7 of the provisional regulations seems to go some way towards addressing the eighth item in the judges’ list, that of data security
@Richard Dean
The two key points are 1 and 5 above:
“1 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);”
“5 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);”
These are absent from the bill, some minor points might get answered but without clear restrictions on blanket retention, and independent supervision of access, the #DRIP will face a human rights challenge.
@JIm Killock
Clause 3 of the Bill appears to address your item 1.
Clause 2(5) of the Bill provides for parliamentary oversight, which may address your item 5. If not, would it satisfy you if provision were made in the bill for an independent administrative or judicial body? What form should it take, and how might its workings be supervised?
@Richard Dean No, Clause 3 relates to a completely different issue, which is warrants for data held overseas. This and clause 4-5 relate to a second supposed “emergency” to do with overseas companies and access regimes. None of this has been discussed in public up to now.
Only clauses 1 and 2 relate to the data retention regime. These say nothing about either issue I’m afraid. Parliamentary oversight is not the same as someone independent checking each request prior to the police getting the data. You need both, Parliamentary oversight is not a substitute for judicial or independent authorisation.
@Jim Killock
So what do you suggest regarding the “independent administrative or judicial body”?
The real problem seems to be we are not very good at detecting before the event, terrorism of child abuse. So trying to find contacts is a bit difficult after suicide bomb or arrest as they tend not to communicate. BUT to back trace contacts needs prior collections and should require a warrant.
Of = Or hate iPad predictive text!
The ECJ does not rule on human rights directly. I haven’t read the judgement, but presume it relates to what restrictions a government can reasonably place on E-business under the various EU treaties. There will be an interesting situation if there is a further appeal to the ECJ, which rules that the Act is still non-communitaire. I foresee Google and the like, which are predominantly foreign-owned, refusing to cooperate.
@Richard Dean A judge, or an independent authority, to decide on access to data requests, is what’s needed in the Bill. The High Court, perhaps?
@Frank Little The CJEU does now rule on human rights issues within the acquis, because of the Charter of Fundamental Rights: http://www.europarl.europa.eu/charter/pdf/text_en.pdf
This also incorporates the ECHR. This judgement is a human rights judgement, rather than something looking at commercial law.
” The only people this will benefit are those who oppose human rights and want to weaken our relationship with the EU. It will be a travesty to see this abuse of human rights being turned into an argument over the UK’s relationship with Europe, but this is now very likely”
The mistake you are making in see the EU as the end itself, rather than merely as a means with which to achieve a liberal end.
Do you see the lib-dems as a political party seeking governance with the aim of enacting liberal policy, or, as a pressure group providing advocacy on behalf of issues that members like?
@jedibeeftrix
My point is that this very important matter—a breach of our fundamental rights—will be used as ammunition against the role of Europe and European courts. The fundamental rights are the issue, the question for the Lib Dems is how they uphold the Rule of Law, or otherwise undermine it. Going along with this Bill makes them complicit in tactics that seek to remove legal restraints on our government that uphold human rights. Shortening the sunset period at least helps reduce the harm.
The issue of surveillance will be debated at the SLF conference this Saturday.
See http://socialliberal.net/slf-conf-2014/
Open Rights members are welcome to come along and take part in the debate with Julian Huppert MP and Sarah Ludford