UPDATED: DRIP under the microscope – should Lib Dems support this Bill?

Unusually for me, I’m starting writing this piece without knowing what conclusion I’ll come to by the end of it. Normally it’s straight forward enough to marshal evidence, decide on view and then write it up (unless the curse of writers’ block strikes of course).

But the Data Retention and Investigatory Powers Bill (DRIP) takes the usual perils of journalism turning most stories into a simple good versus bad dynamic, throws in the paucity of expert mainstream coverage of many technical issues and adds a dash of juggling different uncertainties.

Certainly if you approach the issue with a pre-existing outlook, it’s easy to find evidence to suit. If you want to base your views on the evidence, rather than your evidence on your views, then it is rather trickier. So I hope at least some readers will find my public thinking through of six key questions useful too.

Is the rushed nature of the legislation justified?

It is certainly odd for an April ruling by the European Court of Justice (ECJ) to be used to justify rushed legislation now, three months and one Queen’s Speech on. But DRIP is about fixing two legal problems, not one.

The second is not, as some have suggested, the impending legal challenges in the UK courts. Rather it is the fraying, verging on imminent ending, of cooperation by overseas companies with the current legal framework. They are under their own legal and other pressures elsewhere, and increasing doubts over whether their current cooperation with the British system is really underpinned by British law means that system is on the edge of collapse.

Fair enough so far, but why leave it until so late before legislating – and why then give so little Parliamentary time to it? Part of that too I’m willing to go along with – the legislation wasn’t published weeks ago because the Liberal Democrats were arguing in government to get it changed, to sink the Snoopers’ Charter Mark II Conservative plans and instead secure many changes (as outlined by Julian Huppert).

But, and it’s a big but, more time could have been given to debate. The Bill was published late last week. What do you or I do when something urgent comes up at the end of a normal working week? Work the weekend. What was Parliament doing this weekend? Not sitting. Likewise the rush to finish the debates this week is to get the Bill in before Parliamentary recess starts. Urgent, but not urgent enough to work the weekend or delay the start of recess.

Many MPs would object to doing either or both – but that’s rather the point. It’s all a bit too comfortable with the establishment way of doing things to do neither.

What’s more, the secrecy up until late last week means the party has once again repeated the mistake of thinking that talks inside government require silence outside, as I’ve said before:

 A campaigning party both secures better policy outcomes and it also then is in a more credible position to explain and defend the victories it has secured. Working in silence and then coming out into the daylight to say, ‘it’s all ok, we got some changes and trust us that we did the best’ is the classic insider, Whitehall establishment way of doing things. A campaigning, anti-establishment party campaigns in public to strengthen its hand when it has to meet in private with the representatives of the establishment.

Is the new legislation legal?

There’s a beguiling simple argument: the European Court of Justice ruled against blanket measures; DRIP includes a blanket 12 month retention of data; hence the new legislation isn’t legal.

I know enough about the limitations of my legal expertise outside the realm of imprints to know that I can only really judge the arguments on this at second hand. What is clear from my conversations with Liberal Democrats in government is that they are absolutely convinced that DRIP will withstand legal challenges (due in part to conditions imposed by Clause 5 of the proposed Data Retention Regulations and also in part to the way any future ECJ ruling on British law would look at the full British context, something not considered when it was ruling on just a European directive).

(UPDATE: See Lib Dem minister Norman Baker and legal expert and former Lib Dem MP David Howarth on some of the legality points in greater detail. David’s conclusion is not the same as mine – he’s more cautious in the Bill’s legality – but he does also deal with some of the criticisms of its legality.)

That is important because otherwise there is an attractive conspiracy theory –that the Tories are deliberately setting up a clash between UK law and Europe as a way of furthering their Eurosceptic arguments.

Moreover, suppose the legal view of Liberal Democrats in government is wrong and DRIP turns out not to go far enough. The legal debates in the Lords in particular on this point will be well worth following but if Liberal Democrat colleagues have indeed got it wrong, the result will be legal action that forces DRIP to be modified further – which given that would have to be in a more liberal direction is not such a bad worst case scenario.

Is the legislation really just restoring the status quo?

In part this is a matter of semantics: if you discover the law didn’t mean what you thought it meant and then change the law to match what you previously thought it meant, have you (a) restored the status quo (you’ve restored your previous view of what the law says), or (b) changed the law (it is now different from what it was)?

I will leave that one to the philosophy students. For me what’s important is what actual interception of our communications will take place compared to what has taken place. On that, DRIP will return things to as they were, so it is a restoration of the practical status quo, with the important caveat that the new provisions to shore up the system of working with overseas companies means that what previously was (arguably) in part voluntary will become fully statutory.

Yet even as I type that I’m wary of how often rushed legislation ends up not quite doing what was predicted – and of communications interception legislation in particular ending up even more widely used than promised. I’m nervous about being too complacent about Clause 4 in particular with its new/not new extra-territoriality powers. Very little time is being given to everyone to be sure that it really does no more than restore what in practice has been happening anyway.

It is just the sort of area that should get the detailed consideration of the sort that the secrecy followed by rushed Parliamentary timetable precludes. But I’ve yet to see a convincing example of something that does not currently happen which would then happen after DRIP has been passed.

UPDATE: Some people have claimed that the Bill’s impact statement comes with a bill of £8.4 million for implementing it, and so question how there can be such a bill for restoring the status quo. However, the £8.4 million cost is compared to doing nothing – i.e. if the current system were to collapse due to the two urgent legal issues – and in fact £8.4 million is what is currently being spent. That the bill for the post-Bill system equals that for the pre-Bill system therefore in fact bolsters the case for the Bill being a restoration of the status quo.

What about the statutory instruments?

Up till now I have talked about ‘the Bill’ as if that is all the legislation being legislated. But much of the concern is over the Statutory Instruments (SI), and the very broad powers on the face of it to future ministers to draw up SIs.

However, the SIs do not exist in a vacuum. They need to be within the powers granted by the parent Bill, which in this case restricts them to, for example, the types of data set out in Clause 2, and they need to withstand legal challenge, so they will need to remain far narrower in scope than the face of the Bill suggests if read in isolation. The very legal issues that have beget them also restrict their content.

How good are the concessions?

Because the Data Retention and Investigatory Powers Bill sets out to restore the status quo it is no surprise that campaigners against the current legal setup are also against legislation that restores it.

Amongst those who are not happy with the status quo are Liberal Democrats, so should we be agreeing to rushed legislation that restores something we don’t like?

The problem is that there is a large authoritarian majority in the Commons.

The only route by which a party with less than 1 in 10 MPs under its colours can get some of its beliefs put into action is to force concessions from the authoritarian majority. Else you just get a principled vote against and authoritarian policies steam ahead (as Stephen Tall rightly pointed out happened with the recent vote on knife crime). No amount of rhetoric about a valiant stand on principles changes the failure to make a difference to people’s lives.

The threat of the current system collapsing (see above) is a double-edged sword for extracting some concessions in return for speedy legislation. The authoritarians don’t want it to collapse, but they could force something through on their own in the end, and whilst the current system is authoritarian, its collapse would swing the system excessively the other way, way beyond what the Liberal Democrats want.

Faced with that authoritarian position of strength, somewhat paradoxically I’m both more willing than some to accept a limited number of concessions as the most that can be achieved but also very sceptical about concessions which simply mean a future authoritarian House of Commons votes on what will happen.

I think Julian Huppert has done a pretty good job at making the case for the concessions secured. Note that several would be nonsense to put into legislation (such as the appointment of a diplomat to negotiate with the US) – which makes the complaint of some that not all the concessions are in the Bill a very odd complaint indeed.

Moreover, the sunset clause to force further debate is of the form that would require more extensive Parliamentary debate than simple Parliamentary nodding through to overturn. Additionally, the Lords would need to vote for it, and the circumstances in which it is being proposed means the House of Lords and its key crossbenchers would be very anxious about a simple overturning of it without very good reason.

What’s more, the Bill’s proposals do not require communications providers to start storing new data beyond that which they currently create for the purpose of supplying their services. That is a crucial distinction between this legislation and previous illiberal proposals, which would have required the storage of new and extended information.

The big weakness is the number of the concessions which require future government or Parliamentary approval and hence my preliminary verdict on them still looks good: “With so many authoritarians in Parliament and government, that is not guaranteed to turn out well – making the question of how far Nick Clegg is willing to push the issue absolutely central to how it plays out.”

Do people understand what is being proposed?

I’ve touched on some of the areas of disagreement over what the detailed drafting of the Bill will do, and there are plenty more. Clause 5, for example, with its extended definition of “telecommunications service” is just the sort of legislation that can have unintended consequences unless first carefully considered. But at least measures such as the sunset clause and RIPA review mean such problems won’t just be left to fester on the statute book as authoritarians happily stand by and do nothing.

So where does this all leave things? There is an authoritarian majority in the House of Commons. There is an authoritarian majority (or more accurately, plurality) amongst the public. There should have been given more time for public and Parliamentary debate – and the failure to do so is a mistake for which Liberal Democrats in government share responsibility. But what is the sequence of events by which a more substantively liberal outcome would get voted through the Commons?

It’s a genuine question; I can’t think of a plausible sequence of events. If there is one, then I’m happy to change my mind, but for all the problems with what is happening, I can’t see how the party could have achieved much more in terms of the substantive legislation and other actions being taken – and could easily have achieved much less.

As The Independent puts it, “the law may in fact, in a few years, benefit the civil libertarian cause” whilst The Guardian says the Bill, “provides an opportunity to hardwire in some civil liberties elements that were missing when Labour introduced them. Given Labour’s ‘Big Brother’ record on these matters when they were last in government, this may prove a rare liberal moment.”

To achieve more in future, we need to strengthen the liberal campaigning voice, both within the party and outside it. The party needs, finally, to embrace public campaigning to strengthen its position in government – and to appreciate that without such public campaigning it is always going to be an uphill task to persuade those outside the party that the Liberal Democrats have really achieved a good outcome in the face of an authoritarian majority.

So one closing thought – we do really need a good Liberal Democrats for Civil Liberties campaign body, to push the issue internally and build bridges externally. If you’re interesting in supporting such an initiative (and, crucially, have some of the valuable time to help make it happen), do drop me an email and in the meantime do follow the Facebook page.