The enemies of liberty

The sudden appearance of the Data Retention and Investigatory Powers Bill and the proposal to bulldoze it through Parliament in a few days has set off alarm bells for many who care about civil liberties.

Members of the Liberal Democrat leadership and Parliamentary party have been out and about pressing a three stranded argument to try to counter the view that their support for this Bill represents a complete abandonment of the party’s principles.

The three strands are that:

• The Bill does no more than re-establish the status quo ante, following the adverse ECJ ruling on the legality of the previous legal framework.
• The Bill therefore does not represent an extension of powers and is in no way comparable to the Snoopers’ Charter that the party rightly opposed only a few months ago.
• The party has won valuable concessions in terms of constraints on, and oversight of, snooping activity, which would not have happened without hard work on the part of the Liberal Democrats. These concessions include a sunset clause to repeal the Bill in December 2016.

It seems appropriate to make three points in response.

First, why are we happy with re-establishing the status quo ante? The point of the ECJ ruling was that the UK’s existing data retention laws were disproportionate and represented a breach of multiple rights. The Bill might mention that it is aiming to facilitate ‘proportionate’ action but shows little awareness of the principles around privacy that the ECJ were seeking to see underpinning the law. Of course the ECJ was striking down the European framework which was mirrored in UK law. But are we saying therefore that the right to privacy might be all very well for those effete continentals but we can’t be precious about these things? Presumably we are.

Second, to say that the draft Bill does not represent an extension of powers is simply untrue. It is a piece of enabling legislation that provides the Secretary of State with broad powers to modify its scope through secondary legislation at a later date with limited scrutiny. Sections 3 to 5 of the Bill contain material that has nothing to do with addressing the ECJ judgment. They contain a substantial extra-territoriality provision – extending the reach of RIPA beyond the UK. The Government has argued that it was always intended that RIPA should apply in this way, but this wasn’t very clear. So it is necessary to legislate again to make it explicit. So that is de facto an extension of its scope.

And section 5, if I’ve read it correctly, expands the meaning of telecommunications service to be technology neutral. So it allows governments to harvest data from any current or future communication system without having to worry about defining in advance what sort of system we’re talking about. This was, if I remember correctly, the sort of extension of scope that the snoopers’ charter was seeking to effect.

Third, while the substance of the concessions that the Liberal Democrats have gained is in its positive, only the sunset clause to repeal the legislation in 2016 is in the Bill itself. The claims to have “secured” concessions would be more credible, and I’d be much more inclined to take them seriously, if the proposed structures for extending oversight and constraining powers were actually written into the legislation.

I don’t find the emphasis placed on the importance of sunset clauses or on this legislation being intended as a temporary measure to be very plausible. Anyone who thinks that a sunset clause is a meaningful safeguard would appear to have missed the irony here. It is included in section 6 of legislation that is being hurried through Parliament in near record time with cross-party support in response to an unspecified ‘emergency’. It will no doubt be just as simple to engineer a timely emergency in 2016 to justify renewing the powers.

That brings us to the question of process. We have ’emergency’ legislation for which the Government has not actually specified the nature of the ’emergency’ in coherent terms. The Bill is published with pre-announced cross-party support. The aim is to rush it through Parliament within the week. This is all kinds of wrong. If we observed this happening elsewhere in the world we would rightly condemn it as the illiberal action of an unaccountable and authoritarian state. Perhaps we need to pause and look in the mirror.

Someone on Twitter yesterday observed that we appear to be seeing a demonstration of Michels’ Iron Law of Oligarchy before our eyes. That strikes me as a rather pertinent observation.

If the Liberal Democrats wanted to demonstrate that coalition was a new kind of government that didn’t involve stitch ups behind closed doors then it isn’t clear how DRIP helps make that case. More likely it to does precisely the opposite.

If they believe they can tame the onward march of the security state with a few non-statutory safeguards then they are naive in the extreme.