January 3, 2017

Civil Liberties: The EU saves the day (almost)…

Civil Liberties: The EU saves the day (almost)…

The Government’s Snoopers’ Charter’s on the ropes after ECJ rules bulk data collection illegal, says David Spencer.

The Snoopers’ Charter has upset a lot of people in recent weeks, with widespread media criticism and a petition to repeal it securing well in excess of the 100,000 signatories needed to force the Government to consider it for debate.

Sadly, all of these objections have been a case of too little, too late. As the Government’s response to the Petition made clear, the Investigatory Powers Bill, as it was, received several debates in both Parliamentary chambers before finally being passed on Halloween.

Amidst the hysteria around Brexit, a lot of other important Government work has been completely overlooked by both the media and the British people, and the Snoopers’ Charter is perhaps the most serious of these. Given the highly intrusive provisions in the Act, it is likely to be a matter of lasting regret to the British people that it was not scrutinised properly at the time.

Or will it? With the law approved and now signed off by the Queen, it came come into effect in the UK on 1 January. But a recent ruling (from the EU of all places) has the potential to have pulled the rug out from under the Government’s feet.

European Court of Justice ruling

It all stems from a court case originally brought by the unlikely alliance of then backbench Conservative MP David Davis and the deputy leader of the Labour Party, Tom Watson.

Supported by various campaign groups including Liberty, the Law Society, the Open Rights Group and Privacy International, they asked the UK High Court to rule on the legality of the bulk data collection provisions included in the Data Retention and Investigatory Powers Act 2014.

Their case was that these provisions were unlawful and the High Court ruled in their favour. Inevitably, the Government appealed and the Appeal Court then referred the case to the European Court of Justice (ECJ).

Needless to say, the case has been dragging along for a long time now. So long in fact that David Davis MP has, in the meantime, joined the Government as Secretary of State for Exiting the European Union, and so removed his name from the case.

It has continued without him, however, and on 21 December the ECJ handed down its ruling. And it couldn’t have been clearer.

The ECJ judges concluded that the “general and indiscriminate retention” of electronic communications data was illegal under EU law. In explaining their ruling, they stated, as privacy advocates have argued for many years, that it is possible to draw “very precise conclusions” from such data about the people it relates to.

And there was more. The judges went on to state that the collection of electronic communications data should require the authorisation of a court in each individual case and that it should only be collected for the purpose of “fighting serious crime”.

In a damning conclusion, they stated that the indiscriminate collection of data “cannot be considered to be justified within a democratic society.”

Elation

Among those campaigners who have been trying for the past year to draw attention to the intrusive nature of the Investigatory Powers Bill, there was elation.

Martha Spurrier of Liberty said “Today’s judgment upholds the rights of ordinary British people not to have their personal lives spied on without good reason or an independent warrant. The government must now make urgent changes to the Investigatory Powers Act to comply with this.”

Meanwhile, Jim Killock of the Open Rights Group concurred saying that “The government must act quickly to rewrite the Investigatory Powers Act or be prepared to go to court again.”

Timely Ruling

Coming as it did, just a couple of weeks before the Investigatory Powers Act comes into force, this ruling couldn’t be more timely. Because although it relates to the Data Retention and Investigatory Powers Act 2014 (a piece of legislation which the new Snoopers’ Charter supersedes) it has destroyed one of the core provisions of the new law.

The Investigatory Powers Bill enshrines in British law that the bulk collection of the communications data of everyone in the UK is now permitted, but the ECJ says such data collection is illegal.

So, what are the implications of the for the Investigatory Powers Act in 2017? It should first be noted that the ruling does not mean the new law will not come into force on 1 January as planned. The ECJ ruling was not explicitly about this new legislation and so there is plenty of scope for the Government to play for time.

The official Government response indicated that this was precisely what they would do. The Home Office said in a statement that they were “disappointed” at the ruling, but insisted that the Government would “be putting forward robust arguments to the court of appeal about the strength of our existing regime for communications data retention and access.”

As the Open Rights Group has indicated, they can expect swift legal challenges to the new laws off the back of this ruling, and as things stand, these are likely to succeed. But the big unknown factor is the timeframe.

Such legal proceedings, with appeals thrown in, can take years, and years offers the Government a potential loophole: Brexit.

Once Britain exits the EU, it seems likely that ruling of the ECJ will no longer apply in the UK. The timeframe for Brexit is currently expected to be two years from this coming March and it is quite feasible that any legal cases against the Investigatory Powers Bill could take longer than that.

So, in a final irony, it seems likely that one of the main deciding factors, in this case, will be a policy which currently sits on the desk of one of the men who brought the case in the first place; Secretary of State for Exiting the European Union, Rt Hon David Davis MP.

Doesn’t politics have a wonderful way of throwing up these existential dilemmas!

5.00 avg. rating (98% score) - 6 votes
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David Spencer
David is a freelance PR and public affairs consultant and writer working with clients in the UK, Europe, and Asia. He is a former aide to the Rt. Hon David Davis MP and also worked in the office of the Shadow Home Secretary. He can be found tweeting at @dspencer47.
  • Shadow Warrior

    Hammond is continuity Brown. He is a hand-wringing lefty looking for clever wheezes to raise more tax in ways that people don’t immediately notice.

  • captainslugwash

    I predict the Budget will attempt to show the Left how caring the Tories are, and it will be funded by screwing over the working man.
    If Corp Tax comes down, I bet Divi tax will be going up.
    I would love to be wrong.

  • skynine

    We really need to look at tax credits, in particular in work tax credits that encourage people to work part time to preserve the benefits. 45% of women work part time and I would hazard a guess that tax credits are the main cause. This leads to low pay, low skill work in supermarkets and the retail sector including coffee shops. The government needs to get back to the employer paying people to do a job for economic reasons rather than to get onto the tax credit ladder. Like all government benefits it distorts the market and diverts government expenditure into non productive areas.
    The refrain that the government has cut expenditure is not true, it increases every year as more and more goes into welfare.

  • MrVeryAngry

    fat chance

  • MrSauce

    So, when wouldn’t we want a ‘budget for growth’?

  • Rob

    I note that the UK Government has just slapped on a 25% tax charge for anyone moving abroad and wishing to move out their private pension from the UK.

  • SonofBoudica

    The Remoaners will do their utmost to sabotage the Government’s negotiating position. They do not want a successful outcome; they want a failure. They want to be able to scream “Told you so!” from the rooftops.

  • EnglandLaments

    Thank goodness for Andrew Neil, the one media hack who scares the pants off the established politicians. He was spot on with Heidi Allen!

  • joshuafalken

    I had a very long, hard, studied and considered look at the hope, care and aspirations of all Europeans, before I voted to get the UK out of the toxic grasp of Brussels.

    The European Union and it’s charge of “ever closer union” has borrowed and spent its way to oblivion, whilst enslaving the working and middle classes in debt.

    The central control mantra of the unaccountable Brussels ruling elite, delivered through a mixture of socialism, globalism and corporatism is entirely responsible for the populist revolt by the millions of “Just About Managings” across Europe.

    We must remember the ultimate goal of socialists, globalists and corporatists is control, not prosperity. see https://mises.org/blog/goal-socialists-socialism-—-not-prosperity.

    Social equality and economic growth always fail under central control and fighting against the Brussels doctrine on behalf of all Europeans is why I voted for Brexit.

    Britain has a long history of helping Europeans depose tyrants and Brussels is just the latest incarnation.

    Britain is the most racially advanced and accepting society on the planet. We welcome those in need and those that can help us with open arms and a smile; that will not change.

    We are also one of the most innovative, talented and open societies in the world, which why everyone wants to live here. However, we cannot fit everyone in, so we have to have clear, balanced and fair immigration policy which is where the arguments start between the monetarists and humanists will never be reconciled.

    I thought long and hard before coming to the conclusion that leaving the EU was in the best interest of all Europeans, as Brussels is toxic and cannot be reformed from within.

    Also, I find it insulting that people who voted Remain have insufficient faith in British ingenuity, compassion and skill to get a good deal for us and see the Europe that we love get a better deal from Brussels and the reform that European people deserve. https://mishtalk.com/2017/03/29/bad-brexit-deal-better-than-no-deal-mathematical-idiocy-odds-of-no-deal/ and https://www.worldheadlines.info/2017/03/after-brexit-9-reasons-to-be-bullish-on-great-britain/

    The politics of left verses right are dead because neither have delivered the promised economic growth and social mobility for anyone, but themselves. The populists are not selfish per-se, they just want to take back control of their own destiny that left/right politicians have freely given away and/or exploited for their own ends. In my constituency, the local residents group are taking over the councils as politicians ignore voters, so Westminster should beware of the well-organised, local resident independents at the next election. This is a peoples revolution which should be shouted from the rooftops, but liberals remained deafened by the socialist, globalist and corporatist “vested interests” that have spectacularly failed us and are obediently crying foul and fake.

    There will be an initial unpalatable inflationary cost to fighting globalism and rolling back central control that few appear to have factored in, but dismantling failed left/right vested interests should eventually free libertarian socially-conservative capitalism from the shackles of TBTF corporatism to feed economic growth and social mobility.

  • agdpa

    The EU usually makes the wrong decision – on immigration, on freedom of movement, on the euro, on the Ukraine, etc. etc. Little hope it will get Brexit right.

  • brownowl

    Eh? Reference please!

  • Neil2

    Sod caring. Screw the spongers and breeders. Kill HS2. Stop all “green” subsidies. Slash “foreign aid” and walk away from the EUSSR with immediate effect.

  • Rob
  • John C

    What a confused article. It conflates surveillance by the security services with poor defences against fraud.

  • John C

    Err, it’s the UK that’s leaving the EU, not vice versa.

  • John C

    Me, now. ‘Growth’ is a manic obsession.

  • La Face Nord

    Mr Redwood – are you aware of the Biased BBC website? It’s been exposing their agenda for a long time, but I imagine you’ve been well aware of the BBC’s agenda for quite some time…

  • Contact Rvtech

    The post is great

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