The Home Office and its antidemocratic surveillance plans

It’s not an emergency and this DRIP bill is neither business-as-usual nor uncontentious

Last week, the Home Secretary Theresa May announced in Parliament that she was introducing emergency legislation to require companies to store metadata about our communications — our phone calls, text messages and Internet use. That legislation — the Data Retention and Investigatory Powers Bill — is due to be rushed through Parliament, with cross-party support, this week.

The Labour MP Tom Watson wrote about this last week in his piece “Something terrible could be happening in Parliament on Monday and I need your urgent attention”; he wrote to his party leadership yesterday: “Letter to Ed Miliband about the Data Retention and Investigatory Powers Bill”. As Tom points out, Liberty describe this as a “staggering disregard for parliamentary democracy and the rule of law”.

Below is the letter I have written to my MP on the subject. If you want to do something, then call or email your MP now — this Bill is due to be rushed through the Commons today!

Links you might find useful:

Good luck! ☺

Dear Mr Lord,

I’m sure you’re aware that there is a bill being rushed through the Commons in the morning, the Data Retention and Investigatory Powers Bill.

Now I know that the Home Secretary has claimed that this is a necessary piece of legislation, that does nothing beyond re-legitimising existing capabilities in reaction to the CJEU judgement, that it includes concessions to the CJEU judgement, that the Bill will expire quickly and that it’s essential we pass this legislation without delay — even the short delay to ensure we have proper legislative scrutiny of the Bill.

There are several ways in which Mrs May is mistaken.

Firstly, it is arguable whether or not we even need this law at all. The CJEU ruling was clear that blanket data retention interfered with our right to privacy and our right to a private family life. Other European countries — including Austria, Belgium, Bulgaria, Germany, Greece, Romania and Sweden — have rejected blanket data retention. These countries continue to tackle serious crime without undermining their citizens’ civil liberties through blanket data retention.

Secondly, it is simply untrue that this Bill solely re-legitimises the powers struck down by the CJEU. Clause 1 restates the 2009 regulations that were rendered ultra vires by the CJEU and clause 2 provides definitions. Clause 3 does indeed appear to restrict the powers in the Regulation of Investigatory Powers Act 2000. Clauses 4 and 5, however, are new powers, adding extraterritorial scope to RIP and extending the definition of “telecommunications provider” — other than the first two, none of these clauses should properly be found in a piece of emergency legislation and in no way relate to the CJEU judgement.

Thirdly — and most surprisingly, to my mind — the Bill doesn’t even attempt to deal with the fundamental objections from the CJEU when they struck does the Data Retention Directive (2006/24/EC). The article in Computer World by Glyn Moody summarises those objections well: Importantly, however, the first objection was that blanket data retention is fundamentally illegitimate. This Bill does not prevent Regulations being created that authorise blanket data retention, which would fall foul of the same legal hurdles. The government also claims the Bill will restrict the number of public bodies that can request communications data, yet this concession does not appear in DRIP or the secondary legislation that will implement it. There has been no acknowledgement of the legal requirement to preserve British citizens’ right to privacy.

Fourthly, the sunset clause is unduly long. If the government merely wants to re-legitimise data retention while MPs debate and replace those powers appropriately, the Bill does not need to be continued past the next election. While I can see that 2½ years is a convenient amount of time, it doesn’t seem overly onerous to expect that a piece of legislation that is designed as a stop-gap that threatens our liberties should be debated thoroughly and replaced with a properly scrutinised act. Given that Parliament was prorogued early in May due to lack of agreed policy between both Coalition parties — and given that there is cross-party consensus of the importance of these measures — it seems reasonable to think that the government could have an updated RIP Act assented by the end of this year.

The biggest issue, however, is the idea that this Bill is urgent. The CJEU delivered their judgement on 8 April. On 11 May, Parliament was prorogued early. Now, in July, this issue is suddenly so urgent that a Bill must be introduced with cross-party consensus and rushed through both Houses in a week? That the CJEU was about to make its judgement was well-known in advance; it is implausible that no-one in the Home Office knew this might be coming — it is inconceivable that there would not have been contingency plans already drawn up in Marsham Street. Yet it took three months for those plans to make their way to the House of Commons?

It is disingenuous for the leaderships of the three main parties to pretend that the time cannot be found for proper scrutiny of this Bill. Emergency legislation is almost invariably found wanting and the British people deserve better than a stitch-up over surveillance powers that could lead to further expensive legal proceedings if not handled carefully.

I would very much appreciate it if you could read the joint briefing put together by several NGOs:; I hope it might convince you to support amendments to address these concerns.

I look forward to reading back from you shortly.

Yours sincerely,

Owen Blacker

Image credit: The cover image for this post is a photograph of the Home Office headquarters at 2 Marsham Street, taken by Wikipedian User:Canley and dual-licensed (GFDL and CC BY-SA) on the Wikimedia Commons.



🇪🇺🏳️‍🌈🏴󠁧󠁢󠁷󠁬󠁳󠁿♿⧖ Mainly-gay, mainly-Welsh political geek; proud social justice warrior+trans ally. @WikiLGBT, @OpenRightsGroup, ex- @mySociety. he/him

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Owen Blacker

Owen Blacker


🇪🇺🏳️‍🌈🏴󠁧󠁢󠁷󠁬󠁳󠁿♿⧖ Mainly-gay, mainly-Welsh political geek; proud social justice warrior+trans ally. @WikiLGBT, @OpenRightsGroup, ex- @mySociety. he/him