As you have probably heard, the UK government is using the most underhand of methods to pass a deeply undemocratic and illiberal law that would extend surveillance massively in this country, the Data Retention and Investigatory Powers Bill (DRIP). Here’s the absurd timeline of how it will be pushed through:
8th April – ECJ declares Data Retention Directive 2006/24/EC invalid – in theory telcos and ISPs no longer required to gather certain data
…wait for it…
7th July – Rumours surface in the press that “something will be done”
9th July – The Sun in the afternoon carries a “security beat privacy” piece boosting the scheme as the only way to beat terrorists and paedophiles.
10th July, 8am – Emergency cabinet meeting briefs senior ministers.
10th July, 11.18am – Bill becomes available on gov.uk website (still not available via parliament), Home Secretary makes statement in parliament.
11th July (Friday), 4pm – Draft regulations to be made under the Bill as soon as it is enacted made available.15th July (Tuesday) - All House of Commons Stages of the Bill (normally about 4 months).
This Gadarene rush is supposedly because there is an “emergency” - but one entirely of the UK government’s own making. In April, the European Union Court of Justice ruled that the EU’s Data Retention Directive directive was invalid, and so the UK’s regulations implementing it were invalid too. The UK government could have introduced the DRIP bill at any time after that, but instead waited until last week so as to create a fake “emergency” to justify rushing through the Bill without scrutiny.
As the excellent post by Guy Herbert quoted above points out:
The pretext, reinstating these regulations (which the Home Office has claimed are still subsisting in the UK anyway) is hard to accept as “vital”. Other countries manage fine without them, and they only existed at all because of some bullying by the UK of other EU states after the 7th July 2005 bombings. I covered this background in an article for City AM written on Thursday. But since then we have had a chance to read what is proposed.
Reinstating the regulations – or anchoring them against legal challenge, since they are still operating – would be simple. The new Bill need only say that parliament enacts the content of the regulations as primary Act of the UK parliament. I wouldn’t be pleased. But it would be doing what was required by the ostensible emergency. That however is not what is happening. The new Bill would broaden the regulations and the scope of the Regulation of Investigatory Powers Act under which most state snooping in Britain is conducted and give the Home Secretary powers radically to expand the data required, by further regulations. It is a move in the direction of the supercharged surveillance regime set out in the Communications Data Bill, which was dropped as too controversial ante-Snowden.
One measure of the seriousness of the situation is the number of really fine posts explaining why passing DRIP would be disastrous (including this one which makes a hugely important point.) I particularly recommend Graham Smith's, if you want an extremely detailed and rigorous analysis from a legal viewpoint:
DRIP, now with its accompanying provisional draft regulations which appeared on the Home Office website yesterday afternoon, has to square a circle. Ideally it should make a plausible attempt to address the 15 or so fundamental rights grounds on which the ECJ held that the Data Retention Directive was invalid. But at the same time DRIP has to deliver on Theresa May’s 10 July statement to the House of Commons that it maintains the status quo until 31 December 2016, when the sunset clause kicks in.
In reality DRIP cannot square the circle. Indeed the newly published Impact Assessment recognises that the legislation does not overcome all the ECJ stumbling blocks, claiming only to address the ECJ judgment “where possible” and “to the extent practicable”. It also acknowledges the “Risk of being perceived as ignoring the ECJ judgment”.
We can frame two simple questions.
Does DRIP merely maintain the status quo?
If so, how far is maintaining the status quo permissible in the light of the ECJ decision?
Or you may prefer Paul Bernal's extremely clear, non-technical discussion:
Thursday’s announcement by David Cameron and Nick Clegg that the coalition was going to expedite emergency surveillance legislation is something that should concern all of us, not just privacy activists. The speed with which the Data Retention and Investigatory Powers bill (‘DRIP’) is being brought into play, the lack of consultation and the breadth of its powers should matter to everyone. There is a reason that legislation usually requires time and careful consideration – and with a contentious issue like surveillance this is especially true. This is a shabby process, for what seems to be a very shady law. And, as David Davis MP has suggested, the ‘emergency’ is theatrical, not real. The need for new legislation was entirely predictable – and politicians and civil servants should have known this.
Whatever your preference in terms of the kind of analysis, I urge you to write immediately to your MP, perhaps using WriteToThem to make it as easy as possible, expressing your concerns in the strongest possible terms. Only if MPs become aware that there is a huge groundswell of outrage and anger at the way the government and its accomplices propose to act do we stand any chance of stopping this hugely dangerous Bill. Here’s what I’ve written to my MP:
I am writing to express my deep concern about the plans to push through the Data Retention and Investigatory Powers Bill without proper scrutiny. I am appalled at just about every aspect of this sorry saga.
First, the UK government knew back in April that the European Union Court of Justice had invalidated its regulations on data retention: there is absolutely no reason why this Bill could not have been presented earlier. To wait until now and then dub the situation an “emergency” - entirely of the Government’s own making – is cynical in the extreme.
Next, there is no emergency anyway. The earlier surveillance powers were only brought in the wake of the London and Madrid bombings, and were the result of an appeal to emotions, not to more rational judgment. Claiming that they are indispensable is ridiculous: yes, the intelligence services may like to have them to make their jobs easier, but in a free society that does not mean they should automatically be granted them, given the concomitant loss of privacy they imply.
What we need is a proportionate response to terror – knee-jerk reactions born of fear mean the terrorists have won. That proportionate response here is the use of warrants signed by judges on an individual basis to authorise access to data records, not a blanket retention with easy access as a matter of course.
If anything, the new Bill should be scaling back powers. Instead, it actually extends them hugely – notably to include Web mail and external communications – while falsely claiming not to do so. To pull this shabby trick is unworthy of the UK governmemt, and will ensure that its international reputation – already damaged in the wake of Edward Snowden’s revelations about GCHQ’s activities – will sink yet further, providing succour to more extreme regimes that can rightly point to the UK’s hypocrisy here.
Finally, the new Bill does not address the fundamental fact that the measures that were in place and that will be in place if the Bill is passed fall foul of the European Union’s Court of Justice ruling. To pass the same invalid law again is not just a slap in the face for the highest court in the EU, but deeply insulting to the British public, who are effectively being told that their human rights do not count, and can simply be overruled through shoddy legislation passed in a day.
The Prime Minister has said:
“I am simply not prepared to be a prime minister who has to address the people after a terrorist incident and explain that I could have done more to prevent it.”
However, a great Prime Minister would be brave enough to put things in perspective, pointing out that terrorist attacks kill a tiny fraction of those who die on the roads, say. Why is terrorism accorded such special treatment when its actual, relative impact is so small? It isn’t special – except for the fact that it can be used for the kind of emotional blackmail that we are seeing displayed here in the Data Retention and Investigatory Powers Bill.
To conclude, I urge you and your fellow Members of Parliament to put this Bill on hold to allow proper public consultation and Parliamentary scrutiny, rather than acquiescing in this charade of democracy that will put our basic freedoms even more at risk.