And so now the “Data Retention and Investigatory Powers Bill” is now law. The fallout from Cameron’s cabinet reshuffle pretty much drowned it out, but we need to ask how much of the rush towards the law is actually caused by the Euroscepticism of the Tory Party. The European law dimension will return to Parliament before the general election and the firing of the Attorney General, Dominic Grieve who may have been one of the chief obstacles inside the cabinet may have been a necessary step to securing the laws passage. They would have looked foolish having got the LinDems and Labour on board and failing to get the Attorney General. What was the cause and what was the effect?
The original Bill had an 18 month sunset clause, which would have postponed any meaningful parliamentary debate until after the election. While there is some question as to whether the Bill extends investigatory powers; the government say No because they think that all they do is legal anyway, the Bill’s opponents and independent lawyers say that it does. Most importantly, no-one can believe that the UK’s previous law would have stood the likely scrutiny undertaken by the CJEU. By passing a piece of primary legislation, the ConDem coalition with the support of Labour’s front bench have set up a Parliament vs. EU constitutional row which arguably the Tories in Cameron’s new cabinet want. This is because until last week, the CJEU was only reviewing European Law which had been adopted in the UK through parliamentary committees. It remained European Law. Now it’s British Law and if the CJEU strikes it down, we’ll be back to an issue of Parliamentary Sovereignty which for some reasons the Tories love.
It’s highly likely that the Attorney General’s advice on the legality of DRIP would have been that it would not meet our EU & ECHR commitments. Grieve is a man who, as his resignation interview shows, believes in the rule of law. In fact Saddiq Kahn, in an article in the Guardian on the European Convention asks about Grieve’s advice on DRIP and presumably the ‘status quo’. Again Cameron’s ability to move forward was almost certainly eased by the replacement of the his chief legal officer, Greive, his chief spymaster, Hague with Hammond and the dismissal of Clarke and Green, (ex Minister for Justice and previously Home Secretary) and Damian Green (ex Minister for Police). Hague’s views are unknown, although we have no reason to believe that he disagreed with the Government, the others have a long venerable record in favour of the rule of law and in favour of judicial review of the overweening power of the state.
This might have taken place after the election, but must now take place before, since the sunset clause is now only six months. Liberty & ORG are in the process of challenging the previous legal position which they expect to end up in Europe, probably at the ECHR in Strasbourg. The hope is that this will get to Europe quicker than some cases, since there is an argument that there is no independent court to exhaust since the IPT is not independent.
This rail crash may be accelerated by the need to refer the law to the European Union Council as pointed out by James Firth on his blog. Since DRIP regulates telcos, there is a single market aquis related to specifically telco and ISP regulation. I have said before that the single market has proved a better defence of human rights than the European Convention, and it may prove so again. This is another accelerant and will exacerbate the row between the Tories and the European Union.
The featured picture is by clappstar, @flickr and is published CC BY-NC-ND 2011. I have resized it.