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U.K. Data Retention and Investigatory Powers Act 2014: Sticking Plaster or Solution?

Earlier this week, I summarized the British Government’s “fast-track” surveillance legislation proposals: the Data Retention and Investigatory Powers Bill. A mere four days later: the Bill has now become law, the Data Retention and Investigatory Powers Act 2014 (or “DRIP”):

A few observations on DRIP:

First, neither of the Government’s two justifications for DRIP (see my earlier post) adequately explain why this important legislation had to be rushed through Parliament as it was. If DRIP was indeed primarily a response to the ECJ judgment of April 8, 2014 (and the conclusion that the Data Retention Directive is invalid) then it is difficult to understand why it took three months for the Government to decide to push through emergency legislation, apparently urgently needed to avoid the real prospect of a serious degradation in the ability of our law enforcement and intelligence agencies to investigate crime, preserve national security and protect the public.” (James Brokenshire, the Minister for Security and Immigration, House of Commons, July 15, Column 686). Not only has a House of Lords’ Committee said that the handling of DRIP is “a matter for concern,” but as one speaker in the House of Commons pointed out

“A number of organisations wrote to the Home Secretary at the time of the ECJ judgment to express the view that the regulations no longer stood, but this elicited a response that they were still legally in force and that service providers had been advised that they should continue to observe the notice obligation set out in the data retention regulations. In other words, the Home Secretary knew this point was coming, yet appears to have turned a blind eye. That she is now seeking to fast-track such controversial legislation is deeply concerning. I am also worried that the Bill is an attempt to circumvent other legal proceedings, namely a judicial review, happening in this very week, that challenges the legality of the Data Retention (EC Directive) Regulations 2009 and could see the regulations declared unlawful by a UK court as well as by the ECJ. Any new regulations could also be subject to judicial review if they do not comply with the Digital Rights Ireland judgment.” (Caroline Lucas, House of Commons, July 15, Cols. 694-695; emphasis added)

Secondly, the Government has asserted that DRIP maintains the status quo and does not introduce any new powers. But DRIP aims to address two matters: (a) the ECJ judgment and (b) the extraterritorial reach of interception powers. Even if DRIP does nothing more than maintain the status quo in relation to (a), by ensuring that the secondary English legislation which implemented the Directive cannot be challenged and set aside (pursuant to the ECJ judgment), it is questionable, to say the least, whether it maintains the status quo in relation to (b). The premise of the Government’s assertion is that there is an agreed status quo regarding the extraterritorial reach of interception powers – but that does not seem to be correct (see the quotation from the House of Commons’ debate which follows) and if it is not correct then it is difficult to see how it can be accurately said that DRIP involves no innovations or extensions:

“The other important part of the Bill relates to questions of extra-territoriality. This is a difficult and sensitive issue, because obviously many communications service providers are not UK companies and would be reluctant or might refuse to recognise any restrictions imposed on them. I shall read out one sentence from the explanatory notes that have been prepared for the benefit of the House on this part of the Bill, which explains why this is an important and justifiable provision. The explanatory notes state on page 4: “While RIPA has always had implicit extraterritorial effect”— the Government themselves have said that it is extraterritorial “some companies based outside the United Kingdom, including some of the largest communications providers in the market, have questioned whether the legislation applies to them. These companies argue that they will only comply with requests where there is a clear obligation in law.” In other words, up till now it has been implicit that the legislation is extraterritorial—that has certainly been the Government’s view—but that has never been spelled out explicitly. That is what the Bill now seeks to rectify, and we are told in the explanatory notes that some of the communications providers based outside the United Kingdom have said that that is what they are looking for. If it is an explicit obligation, they will be willing to comply with it. If it is not, they will have to consider whether they wish to do so or not.” (Sir Malcolm Rifkind, House of Commons, July 15, Cols. 726-727; emphasis added)

Thirdly, the assertion that DRIP does not innovate has been resisted by others: see the letter dated July 15 to all Members of Parliament from a group of 15 “UK internet law academic experts” where they state that DRIP is “a serious expansion of the British surveillance state”.

Fourthly and finally, DRIP contains a sunset clause. The legislation will be repealed on December 31, 2016 (section 8). This is a perplexingly long sunset and one which is difficult to reconcile with the haste with which the legislation was passed – if it was truly emergency stop-gap legislation then one would expect it to perform a stop-gap function and for there to be proper Parliamentary scrutiny and debate for any longer-term laws. In the House of Lords an amendment was proposed to shorten this period but it was withdrawn in the face of the explanation:

“While we have no option but to act swiftly now, festina lente is a sensible approach to finding the new solution for the future. The technological changes we are facing…and the balance between security and liberty, should be looked at with a view to the longer term. We will set up, as I have said, in the Bill, a review of the investigatory powers and their regulation to be headed up by the current independent reviewer of terrorism legislation, David Anderson QC. He will report by 1 May 2015, just before the general election. I believe we should be discussing this sort of issue at that time. We need to be realistic. None of us knows who will form the Government after the election. We all have our own views; we sit on opposite sides of the House. However, decisions need be made in the light of information that should be available to Parliament as a whole. It is not reasonable to expect an incoming Government, of any persuasion, to take a decision immediately on assuming office. That is what in effect would have to happen given the legislative timetable, and it would be without due consideration of David Anderson’s report or any other work that is going on in this area… Even if the Bill were to be introduced in the first month of the Government’s new term, the timetable would be extremely tight. I think that all noble Lords with experience of legislation—which probably includes everybody in this House—would know that. Rather, it would be better if the new Government were allowed to develop their own policies, taking advice as appropriate, and enact legislation within their first 18 months. If noble Lords think about it, they will recognise that that is as pretty tight timetable. The new Government would also have the benefit of the Joint Committee of Parliament that all parties have agreed should be established after the election.” (Lord Taylor of Holbeach, House of Lords, July 17, Cols. 734-735)

So pragmatism won the day. The question is, as Baroness Kennedy’s intervention highlights (see below): at what cost?

“I do think that there is a hope that somehow the current high level of interest in this will dissipate and that the usual British torpor about what happens with the security services will settle itself back on to our society and we will become unquestioning again. This is about kicking it into the long grass; this is really about postponing it for as long as possible because by that time people will have forgotten the disclosures that we recently had through Snowden and others. We should be concerned to ensure that we act while people are interested and concerned about these issues because they are pressing and very important to a vital and vibrant democracy.” (Baroness Kennedy of The Shaws, House of Lords, July 17, Col.731; emphasis added).

In considering that cost it is relevant to bear in mind the Shadow Home Secretary’s characterisation of DRIP as a short term sticking plaster:

“I have no doubt that the legislation is needed, however, and that we cannot delay it until the autumn. ..So Parliament does need to act this week so that existing investigations and capabilities are not jeopardised over the next few months, but this is a short-term sticking plaster. As we support the legislation today, we must also be clear that we cannot just go on with business as usual, when the powers and safeguards that keep us free and safe are rarely discussed and only debated behind closed doors. I want to set out today why this parliamentary debate needs to be the start of a much wider debate about liberty and security in an internet age, why we can only pursue this short-term legislation if it is the beginning and not the end of the debate, and therefore why this legislation is needed in the short term, but also why safeguards are needed, too. My real concern about how the Government handled the issue is not only about the delay in introducing the legislation after the court judgment in April and the limited time we have to debate it. It is bigger than that. It is about the Government’s failure to rise to the bigger challenge and debate of the past 12 months. They have said almost nothing in response to the Snowden leaks, to provide either reassurance or reform. They tried to limit the debate over the draft Communications Data Bill, drawing it too widely, and have never been clear about what they really wanted and needed to achieve. They have not faced the new challenges of the digital age and recognised the importance of changing technologies and expectations. They have not started a serious review of the legal framework or the powers and oversight needed…. …We need to have a sustainable debate about how to get the right kinds of reforms to sustain the framework for the longer term and, crucially, about how we get public consent in this. (Yvette Cooper, House of Commons, July 15, Cols. 717-720)

Regrettably, the lengthy sunset clause in DRIP simply sanctions ongoing postponement of that much needed wider debate and scrutiny.

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Queen's Counsel Barrister practicing at Blackstone Chambers