Oh Shit! You mean spying on everyone is illegal?

Better change that then! In April, the Court of Justice of the EU, ruled that its 2004 Data Retention Directive mandating Information System Services Providers to store all their records for 12 months was declared incompatible with the EU’s Fundamental Charter of [Citizen’s] Rights. It and all the national laws implementing the Directive need to be reviewed to see if they remain legal. Last week, the Government announced that it planned to introduce new laws to plug the gap. This is to be called the Data Retention and Investigatory Powers Bill/Act. (DRIP) which they plan to pass in less than ½ a week using emergency provisions and the agreement of the Labour front bench.

Since the Tories generally haven’t got enough for Parliament to do, and they don’t want MPs hanging around plotting and representing their voters, they had already announced that Parliament will recess on 22nd July and so they are running out of time to pass the law before the Autumn which is why they have announced the the unusual accelerated schedule. The agreement of the Labour (and LibDem) front benches is based on improving the civil oversight of the retention and access to people’s communication records.

The key issues are

  1. Is this an emergency or can we wait and allow our MPs to scrutinise the proposed legislation?
  2. Does the new law meet the requirements of the EU court and also of the Human Rights Act?
  3. Does the new law extend the legal powers of the intelligence agencies & the police? i.e. is this really just restoring the status quo prior to the EU courts ruling?

Tom Watson clearly feels the answer to Q1 is No!

He rails against the stitch up and the Home Office mendacity in the Guardian. I would add that emergency legislation has never been good; it’s always an overreach and it seems to me that this government has been particularly careless in its pre-legislative scrutiny as its record on Free Schools, Universal Credit, Communications Data Bill and its failure to get the Digital Economy Bill out of Ofcom shows.

The Government have had since April to introduce a legislative response. I think we can agree that the delay and the accelerated parliamentary schedule is designed to minimise scrutiny since last time MPs looked at this, they said that the intelligence agencies could not have more powers.

To me the answer depends upon the answers to the latter two questions.

Graham Smith & Mike Harris, together with Jim Killock look at the answers to questions two & three. Despite Mike’s article’s title he reviews all three questions and highlights the amount to be considered through secondary legislation. Graham Smith, who blogs at Cyberlegal, also looks at the proposed law with a lawyers training.  He also references the draft text, its explanatory notes and the impact assessment. Graham raises the issue that meeting the European Convention might be easier than meeting our EU obligations which is of importance since the ECHR is incorporated into UK law.   Killock in an article on the ORG’s blog provides an easy list of tests as to whether the new law meets the CJEU’s objections to the current regime.

Smith is clear that the proposed law does not meet the requirements of the European Court, and the obvious corollary from Killock’s article is the same.

Smith and Harris are clear that the new law extends the surveillance powers of the intelligence services and police even if it reduces that of local councils. Killock’s article was written last week before the law had been published and so was unable to comment on this issue. The law proposes that intercept warrants can be applied to services not previous covered; and also that warrants can be served on foreign entities, which as Graham suggests will be interesting. (They want to legalise the spying on Facebook and Google.)

It would seem that the Government have offered some improvements in civil oversight of the intelligence services but these will come after the proposed Act.

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