On Tuesday 15 July, the House of Commons will debate ‘DRIP’, the Data Retention and Investigatory Powers Bill. They will pass it.
On Wednesday, the House of Lords will debate ‘DRIP’. They will pass it.
DRIP is a dramatic extension to government information surveillance powers, which goes beyond those it previously had, and beyond those in the ‘Snoopers Charter’ which public pressure decisively defeated.
It is passing them in two days using Emergency Powers, the justification being that an EU court ruling undermined previous powers’ justification. Despite the current situation having existed since April.
A Bill of this size usually takes about four months, enough time for your elected representatives to actually read it, amend it, improve it, defeat it. Instead DRIP will slide through our legislature with no scrutiny because TERRORIST PAEDOPHILES ARE COMING TO RUIN THE COUNTRY!
I’ve written previously about the government’s dangerous use of emergency powers to force bills through parliament at break-neck speed. The current use is simply preposterous, the debate and scrutiny risible. Recently the UK High Court ruled on the government’s 2013 use of this power in early 2013, rejecting it as it broke UK human rights law on fair trials. (Yes, that means Iain Duncan Smith’s department was technically acting criminally.)
Until this April, some government snooping was justified by an EU law (to which we’d agreed happily), but this law was struck down after constitutional challenges in Austria, Ireland and the EU’s highest court. Note well, readers, the EU sometimes does restrict its own power.
GCHQ and other security services have therefore been operating with no legal justification (‘ultra vires’) for two and a half months. If this was truly an ‘emergency’, we should’ve had this bill immediately after the Court’s ruling? No, we should’ve had a much simpler bill merely justifying the powers then in place, not this Bill, which substantially expands them. RIPA (Regulation of Investigatory Powers Act) would have needed replacement to save the country.
In fact, after the ruling the Home Office contacted the digital and communications firms from which it harvests data and told them “Ignore it, keep giving us the info or else”, and they did. Britain is not currently (in security terms) waddling around with its trousers down. No, our trousers are buttoned up tightly as ever, God Save The Queen, be thou still my strength and shield etc.
So the ‘Emergency’ is effectively to sneak through the new elements of DRIP that didn’t exist under the previous power, RIPA.
I say ‘sneak’ because the government is employing several tactics to ensure the public doesn’t have time to scrutinise the bill. Besides the rush, Cameron is having a Cabinet reshuffle across Monday and Tuesday. William Hague, the Foreign Secretary, has resigned along with Kenneth Clarke, former Home Secretary and Chancellor. This is big political news, and will mean most leading papers and TV stations will devote journalistic attention, and their top stories, to which politicians are sacked, which are promoted, and what it all means for the country.
I also say ‘sneak’ because the bill has the support of Labour leader Ed Miliband. Such support can only have been won through backroom dealings and compromises – which are off record, completely devoid of scrutiny. Labour’s support means the bill will pass without question, unless hordes from multiple parties rebel. Which is unlikely, as all the party leaders will accuse rebels of being unpatriotic supporters of terrorcriminalphiles. YAY
Ashes in the Fall
To placate those who care about silly things like privacy, civil liberties, and parliament fulfilling its basic role, the DRIP bill does have a ‘sunset clause’, meaning it will cease to exist in two and a half years unless parliament passes it again.
That sounds fair, right?
In two and a half years, the security forces will be so used to the new powers that they’ll be able to claim they are absolutely vital to national security, and that any dilution of them will be tantamount to treason. Labour, who are constantly attacked for being soft on crime as it is, are really unlikely to go against the explicit recommendations of the security chiefs. Best of all, as we’ve seen through the whole Snowden Affair, the public is so in awe of ‘spooks’ that we need no proof or examples of snooping powers being used to prevent crime or terror. How spies operate is so secret that the public can’t possibly be told – and neither can MPs besides one committee, which is told just a little bit. Even Harbringer of the Right, David Davis, is furious about the bill’s justifications.
There’s a campaign to bring the sunset clause forward to December 2014, within this parliament, which would be good for scrutiny. But probably not enough, since with the same MPs and same leaders, little’s likely to change. It would be an admission of guilt. Who knows, the sunset clause might be a good excuse to ‘clarify’ the bill for more power! YAY
Hue man rights
It’s all shades of grey, geddit?
The previous Court decision explained that RIPA-like powers could only be used to prevent ‘threats to public security’. DRIP doesn’t even pretend to obey the highest court – its justifications for data harvesting include tax collecting and ‘preventing disorder’, i.e. stopping demonstrations and rallies that aren’t approved by police. [I’ve written previously about the government’s joyful attempts to clamp down on our right to protest.]
DRIP will also break the human rights laws which the Court used to dismiss the previous powers. These human rights laws, to which the UK freely signed up, can be used to challenge DRIP in the court system as soon as it’s passed, just as Liberty are currently challenging the old laws! The government will doubtless fight this tooth and nail despite knowing that DRIP is explicitly contravening Article 8 of the human rights convention, (in UK law under the 1998 Human Rights Act). So we’ll get another long, very expensive, little-reported court case which will probably bring us right back to this point in many years’ time. YAY.
A more academic and less angry explanation of the powers, and all the reasons they’re crap, can be found here, in a readable paper supported by Liberty, the Open Rights Group, Big Brother Watch, Article 19 and Privacy International. Their paper points out lots of other important problems, such as DRIP including no requirement for judges to approve authorities sharing your harvested information.
I’m clean though
Yeah, OK, you’re not a criminalist. Well done.
The government will still collect all your metadata. That’s what the bill says it wants. Even metadata held by non-UK companies like google.
The BBW paper above notes that metadata can ‘reveal personal and sensitive information about an individual’s relationships, habits, preferences, political views, medical concerns and the streets they walk…[C]onsider the range of situations in which just the fact of a single communication and the identity of the parties speaks volumes: the phone call from a senior civil servant to a Times reporter immediately before a major whistle-blower scandal fills the front pages, the email to a civil liberties watchdog from a police officer during the course of an inquest into a death in police custody’.
The government would be able to see non-criminals calls to victim support charities and to disreputable institutions (e.g. sex workers, drug dealers). The current information commissioner found over 100 breaches in the use of personal data – how can you be sure that over your life you’ll never do anything (legal but) personally compromising, and be sure no employee of the state will use this to defame or blackmail you?
Blanket harvesting of data has already been judges as unnecessary or harmful by courts in America, Germany, Belgium, Sweden and Greece. It’s the very definition of ‘indiscriminate’ and ‘arbitrary’.
Yvette Cooper of Labour has at least put up a little fight, tabling amendments for regular review and an oversight committee. They don’t address the heart of the matter but at this stage, anything’s worthwhile.
It may also be worth noting that the Attorney General, Dominic Grieve, who whatever else one might say about him certainly cared deeply about parliamentary process and constitution, has been sacked in the aforementioned reshuffle, along with Kenneth Clarke (a barrister).