Today saw the surprise springing of emergency new surveillance legislation, announced by David Cameron and Nick Clegg and agreed with Ed Miliband. The Lib Dems have been quick to assert this isn’t the Snoopers’ Charter Revisited – torpedoed by Clegg after a Lib Dem grassroots’ revolt in April 2012 – but any attempt by the government to legislate in these areas gets liberal hackles up.
I’ve not had chance to read and absorb the details yet, though I’m reassured by the clear evidence of Julian Huppert’s fingerprints on what’s proposed — and, more surprisingly, by The Guardian’s home affairs editor Alan Travis’s view that the legislation could prove “a rare liberal moment”. Here’s his take on what’s proposed:
There is no emergency that justifies rushing this urgent new “security” bill through parliament in its last knockings before its summer break, but it could prove a major opportunity to bring the rise of the surveillance state under democratic control.
In order to ensure the continued access of the police and security services to the personal internet and phone-use tracking data held by the telecoms companies, they have had to concede important privacy and civil liberty safeguards. …
This is a major package, albeit rushed, that will shape how we live and work in the digital world. It may just “safeguard the existing position” – these powers have been in use in Britain since 2009 – but it also provides an opportunity to introduce some civil liberties elements that up until now were missing.
Critics will argue that’s unduly optimistic. Perhaps: we’ll see. But I want to make three points about the political process.
First, the timing. Much is being made of the fact that the European Court of Justice ruling that’s triggered this legislation was published in April, so why take three months to come up with urgent legislation and insist it be passed through parliament within a week? The reason is pretty obvious, I’d have thought: there’s been a massive behind-the-scenes to-and-fro as the Lib Dems fight to stop the Snoopers’ Charter by the back door and try and get new safeguards inserted into the legislation. The delay shows the extent of Lib Dem influence in government.
Secondly, the parliamentary timetable. There’s no denying the legislation is being rushed through with unseemly haste. That’s not good for democracy, I agree. However, those critics who seem to think that greater scrutiny in the Commons would lead to more liberal legislation must see a different set of MPs debating and voting to me. I’ll put it crudely: we’ve got a much more liberal outcome from the sausage-machine of cross-party negotiations than we would have done through a fully democratic process. In the circumstances, I can see why Nick Clegg reckons outcomes trump process in this case.
Thirdly, the principle. For some liberals, any legislation which curtails the liberties of citizens is unpardonable. They live by Benjamin Franklin’s aphorism, ‘They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.’ However, as I wrote in April 2012 during the initial Snoopers’ Charter furore:
… the reality is that we — citizens, society, government — do trade liberty for security. We do it all the time. In order to safeguard our freedoms we have secret services and passport-checks and counter-terrorism units and border controls and so on. These are, to one degree or another, accepted as a necessary price to pay for our security from threats both internal and external. The key question — one which very often divides in politics, as we’ve so very clearly seen today – is where that line is drawn.
It looks to me, at first reading, that Lib Dems have drawn the line in the right place; or, at least, if not in the right place then in the most liberal place achievable.
Yes, the party could have grandstanded on the issue, could have said up with this we will not put. That was the approach we took — absolutely rightly I think — when refusing to back mandatory jail sentences for second knife offences. We didn’t stop that silliness becoming law, though, as the Tories and Labour teamed up to flex their muscles (mostly located where their brains should be) and send an ineffective-but-tough-sounding message.
Here, though, we had the opportunity to negotiate legislation which appears to be better, more liberal, than would otherwise have been the case. With 9% of the MPs that is often going to be the best we can hope for. For some, it won’t be good enough. I respect their purism but I don’t agree with it. Our liberalism is not shared by a majority of the public – at least not on this issue – and as democrats we sometimes need to recognise that and get our hands dirty.
Photo by Craig Sunter CJS*64
* Stephen was Editor (and Co-Editor) of Liberal Democrat Voice from 2007 to 2015, and writes at The Collected Stephen Tall.
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20 Comments
There’s certainly no doubt that what we’ve got, while far short of what we’d like, is a whole lot better than what Labour and the Tories would have agreed on without us.
I’m sorry, but this is a ridiculous kind of reasoning. It basically is a Pontius Pilate defence. It says “Labour and Tories wanted to build the Panopticon state, so we had to join in and make sure that there was an official who could review a list or two sometime.”
The Liberal would of course have nothing to do with a Panopticon state. He would have said plain and clear to the other parties that if they went through with this, they would do so on their own.
My god, when will you people learn that it doesn’t matter how few MPs you have. What matters is that government legislation can not go through without Labour joining in. You have a legislative ace. You can refuse legislation. You don’t HAVE to submit to every authoritatarian whim coming out from Theresa May’s black heart.
You can tell the Tories that you won’t play, and there’s nothing they can do but huff and puff. They can only get legislation through by bringing in Labour, which they’ve done now, and which afforded you the opportunity to stan for flipping Liberal principle.
That you didn’t says it all. That the party needs to send its cadre of spin doctors out to talk about the solitary little official who will check the lists says it all.
What we’ve been “offered” is the status quo. If this is the case, I will go on strike, and will refuse to campaign for any MP who votes for such a measure.
I suggest other activists do the same.
On your three points:
1) why didn’t the party leadership use this period since April (especially post-election) to strengthen their position by getting party members to campaign on this issue? Not only would it have been a chance to show how many people are against these power grabs, but it could have helped unite the party in support of civil liberties.
2) edges close to saying that we shouldn’t let grubby democracy get in the way of the elites deciding what’s best for us. People are already pointing out many flaws with the proposed bill which should be the role of proper Parliamentary scrutiny.
3) Yes, we might not have stopped it but we couldn’t stop the Iraq war either but we understood that standing up for principle is important. And from a political side, if this leads to bad outcomes, we’ll be as tarnished as the others in having allowed it to happen. If we stand by our principles and say we’re against it, we can then point out we were right when it all goes wrong
I’m happy to see this article. I understand those who are against it, I just think the best option is to take a proportionate approach.
People shouldn’t be able to just type a name and monitor everything they do, that would be a recipe for abuse, but people who have flagged up warnings should be monitored.
We have pulled our weight and made a difference. I trust Norman Baker, and Julian Huppert and Nick Clegg on this issue.
Well done to the LDV team for their reporting today. Great job.
But why the rush ?
OK – This isn’t going to win me too many popularity contests.
Looking through the comments here and on other websites today I’ve been looking at the comment of various quality that this legislation has generated and it strikes me that this is all a great illustration of how civil libertarians (of all parties – I stress I make no partisan point here) have embraced a conception of civil libertarianism that has produces a strangely limited set of libertarian goals.
Mr Tall’s remark in particular jumped out at me. ‘For some liberals, any legislation which curtails the liberties of citizens is unpardonable.’ Well…perhaps on some level that is true. However what seems to have been embraced in recent times is a equating of civil liberty with the bounds of the state. Now, of course, that is an important argument to have. I don’t doubt that. But surely liberty and crimps on it extend beyond the state. Liberty as freedom from the state is well and good, but is there a qualitative difference (as distinct from an ideological difference) between that, and having one’s liberty stepped on by actors other than the state? I would suggest it is a distinction that has been too overlooked in much libertarian argument of recent years.
Frankly, and this might sound rather old-fashioned, whatever happened to the liberal analysis of oppression by capital? Obvious example: buy-to-let agreements generally affront the liberty of often young poor renters – are liberals seeing that as, ‘unpardonable?’ If so they don’t seem to be saying, or indeed doing, much about it. What about trade union rights? What about the liberty implications of zero-hours contracts? Do liberals have anything to say on this – because if not it looks terribly like a conception of liberty as the freedom to starve.
Of course it is problematic that the state retains data AND it is also problematic that tenants are denied liberty by private landlords. But is there equal debate? I’m doubtful, and the stark truth is that whether my niece has her social media profiles recorded is less an immediate concern to her than is the landlord’s liberty to make her homeless on short notice. The principles of liberty extend beyond Franklin quotes precisely because civil liberty is much more than the balance of freedom and security. It has to be about a genuine and meaningful autonomy for individuals in a civil society.
Autonomy, not freedom per se is the source of civil liberty I would suggest.
I don’t pretend to know the answers. And I realise my view on this might not go down well. But if civil libertarianism is to be a LDP calling card, as it should be, then it needs a vision of the protection of civil liberty that protects against BOTH the state and other factors. And it needs to act on that vision. As it stands I just sense that the present vision has a somewhat limited horizon.
Of course, like most legislation, it is important to look beyond the headlines and the bland assurances from senior politicians. Concentrate on the details. Much of the Bill has little to do with addressing the specifics of the ECJ ruling. It is fairly clear that as currently drafted this Bill will not only extend the RIPA powers but also give huge power to the Secretary of State to redefine and broaden its scope through secondary legislation once it is enacted. It is a short Bill because it is an enabling bill that lacks specifics while conveying a wide discretion, with limited safeguards to prevent the extension of its scope.
Anyone who thinks that a sunset clause in 2016 is any kind of meaningful safeguard would appear to have missed the irony of its inclusion in legislation that is being bulldozed through Parliament with cross-party support in response to an unspecified ’emergency’. The same thing will no doubt happen in 2016 to renew the powers in response to another timely emergency.
It seems the Lib Dem mantra will be that this is about maintaining the status quo. This is patently false since section 5 extends the use of RIPA specifically to online services that provide the ability to communicate and to companies that aren’t even UK companies. It gives the SoS the power to amend the effects of code of conduct over use of our data (which can not only make more harsh the penalties, but also take the penalties away).
On the issue of status quo, it continues to allow the SoS to appoint pretty much whoever they want to be able to access the data, and it continues to use the same definitions of data as before. Hardly anything to cheer about there either.
It seems, potentially, to have (as the Guardian seem to believe) entrenched some civil liberties in only two areas. 1) the maximum time limit, which tbh isn’t really much of an achievement at 12 months. 2) No longer being able to retain data about potentially detrimental economic matters unless it is a national security threat as the SoS sees it.
This is a useful post;
http://gigaom.com/2014/07/10/uk-fast-tracks-communications-data-retention-law-and-plans-new-us-data-sharing-deal/
The Official Secrets Act of 1911 was rushed through by a Liberal Government without proper debate. This legislation is being rushed through and Civil Liberitarians are being pressurised by the spectre of imminent terrorism to do otherwise than they would like. Surely we need this to be reviewed annually like the Prevention of Terrorism Act. The Party needs to stand up to this kind of Tory and Labour orwelllianism.
Sorry Stephen, I utterly disagree with you here. You quote the Travis’ piece that was written before the author had actually seen the legislation. “The detail of the “emergency” law when it is published will spell out exactly how far the government is prepared to go in complying with the 10 privacy principles set down by the European court of justice”
The draft bill is now published and it goes no where toward complying wit h the 10 privacy principles set down by the European Court of Justice.
What it does is grant the Home Secretary enabling powers to create data retention orders via means of Statutory Instruments. Granting ministers powers to create secondary legislation that ‘could’ bring in all the aspects including in the snoopers chart via means of Statutory Instruments is far from liberal.
Also aside from a very small change to RIPA none of the ‘safeguards’ promised are included in the legislation itself. Lib Dem ministers have had the wool pulled over their eyes. They held a massive ace as they could have argued ECJ compliance as the price for any new legislation. Instead they have folded for things like a Sunset clause. It’s worth noting the US Patriot Act 2001 also had a Sunset clause. How did that work out?
Firstly, this Bill reintroduces laws which are ruled to contravene our human rights. That’s an inescapable fact that is reason enough to not do it.
Secondly, this Bill extends data retention orders to companies like Google and Facebook. This second inescapable fact is proof the Bill is NOT reimplementing the status quo.
Thirdly, there are no safeguards whatsoever in the Bill. Presumably they will be in the next draft but don’t put your name on something before it is written!
Fourthly, while the Bill would require primary legislation to renew after the sunset clause, this would be a formality under either a Tory or Labour govt in 2015 et al.
The Bill, in its current sloppily-written draft, may allow multiple orders for _permanent_ retention of data. It also seems to allow a lot more data be required to be retained.
Oh, THIS is the new politics Clegg promised? Meetings for months in secret then rush legislation through before the public can have a debate about it. Another blinder from NC that really marks the party out as an alternative to politics as normal. It never ceases to amaze me that this party finds yet another depth to sink to when I thought it had already reached the mud.
There used to be a party that consistently spoke up for civil liberties. Now there isn’t. As a result, the idea of civil liberties can be treated as a marginal and even extremist position. That’s dangerous.
It is also dangerous to permit the use of statutory instruments to make substantial amendments to legislation. Once the Liberal Democrats would have spoken against this.
Surveillance has a long history of being abused and laws which are made with good intentions can be used for bad purposes. Proper scrutiny in and by parliament is meant to prevent this.
I haven’t much hope that my objections and those of others will be heard or treated with respect by those in power.
On Stephen’s point 1, let me get this right.
The Lib Dems have had a huge and beneficial influence on what has happened, and the proof of that assertion is that we have no evidence for it.
We could have made a great big shouty fuss and got nowhere. Ergo, the fact that we didn’t say a peep in public just proves beyond peradventure that we must have achieved a great deal.
Er…
Little Jackie Paper said:
“Liberty as freedom from the state is well and good, but is there a qualitative difference … between that, and having one’s liberty stepped on by actors other than the state? I would suggest it is a distinction that has been too overlooked in much libertarian argument of recent years.”
I broadly agree. You give a good example on “the liberty implications of zero-hours contracts”. If the (“evil”?) state acts to restrict the freedom of unscrupulous employers to exploit powerless individuals, then it can promote the freedom of those individuals from virtual enslavement. State power can be a liberal force for good.
I have written elsewhere about the phenomenon of “liberal fundamentalism”, which afflicts many liberals, and which makes them a laughing-stock in the eyes of most observers. When “fundamentalist liberals” automatically support the freedom principle as a knee-jerk reaction to all issues, even when one person’s freedom is everybody else’s oppression, they simply discredit themselves. Then when a genuinely important liberal issue does come along, nobody listens to the liberals.
https://www.libdemvoice.org/opinion-against-liberal-fundamentalism-35229.html
Now, in this case, liberals are not being listened to because of fears of terrorism, and also because liberals discredit themselves by using untrustworthy arguments.
We need to make it clear that, first of all, we have no intention whatsoever to weaken our security services in their fight against terrorism. We then need to give simple, easily understood reasons why mass unsupervised surveillance of the innocent is dangerous. What did the Metropolitan Police do with covert surveillance powers? They spied on Stephen Lawrence’s parents, in the hope that they might find out about some unrelated misdemeanour which would defelct attention from their own appalling record of failing to bring Stephen’s killers to justice. That is what big organisations very often do when they have excessive power – they misuse it, badly, and they hurt ordinary people with it. That is why we should oppose what is happening now. That is what rational liberalism is about.
Clegg misses another golden opportunity to distinguish us from New Labour and the Tories. In what way has this legislation been altered to garner Clegg’s support? Yet another epic fail.
Zerohedge is carrying an interesting report about just how useful all that gathered intel actually is. This is from the Washington Times : http://www.washingtontimes.com/news/2013/oct/2/nsa-chief-figures-foiled-terror-plots-misleading/?page=all#pagebreak
The article is very informative but the key quote is Gen. Keith B. Alexander admitted that the number of terrorist plots foiled by the NSA’s huge database of every phone call made in or to America was only one or perhaps two
Also, if anyone seriously thinks that all that is being recorded is metadata (who called who and when) then you need to think again. The Zerohedge article quotes Bill Binney – a former code-breaker for the NSA: “At least 80% of all audio calls, not just metadata, are recorded and stored in the US. The NSA lies about what it stores.”
Binney claims that the total storage capacity of the NSA is 966 EXABYTES per annum – equal to the entire global flow of data on the internet, and disputes Alexanders figures for attacks stopped by the total information domination program: “The NSA is mass-collecting on everyone”, Binney said, “and it’s said to be about terrorism but inside the US it has stopped zero attacks.”
@Nick Barlow
“why didn’t the party leadership use this period since April (especially post-election) to strengthen their position by getting party members to campaign on this issue?”
A good question. The answer is that the party does not presently ‘do’ campaigning. 🙁