'Partly cloudy with a chance of drip', Flickr, Pekka Nikrus

‘Partly cloudy with a chance of drip’, Flickr, Pekka Nikrus

As Parliament stands less than a fortnight before the summer recess, the Data Retention & Investigatory Power Bill (DRIP) is being rushed through Parliament at ‘breakneck pace’. Now at the second reading stage, Teresa May yesterday faced scepticism about both the scope of the Bill and its dash through parliament. Shadow Home Secretary Yvette Cooper, lamented that the Bill had been left until the final full week of parliament before the recess, given that the European Court of Justice (ECJ) struck down the ‘Snoopers Charter’ in April.

According to Cooper, DRIP, which must be published and debated in both Houses within a week, ‘reflect[s] the serious challenge of how to sustain both liberty and security, and privacy and safety in a democracy. This is therefore not the way in which such legislation should be done. Let me be clear that its last-minute nature undermines trust not only in the Government’s intentions, but also in the vital work of the police and agencies.’

The Home Secretary insisted that the Bill was ‘merely replacing the situation we have at present’. Should this Bill not be passed, the current legislation (which was declared unlawful by the ECJ) would fall away completely. It was agreed that to have no legislation governing this area would be unsatisfactory, with Cooper and May agreeing that there was ‘no doubt that legislation is needed’.

The European judgment did not oppose the retention of communications data but previously there was little to safeguard against unbridled retention of data. The Home Secretary argued that the Government owe the public a protection, by ensuring that police and agencies do not ‘lose vital capabilities which they need in order to do their jobs’.

The Bill has been divided into two elements: ‘communications data’ and ‘interception’. Communications data is accessible, dubbed the ‘who, where, when & how’ of the communication. Interception will provide the legal power to acquire the content of a communication, and can only take place in ‘limited circumstances’.

Clause 1 of the Bill enables a continued blanket retention of communications data for 12 months, despite MP Caroline Lucas contending that the ECJ ruling made it clear that such retention was ‘not permissible’. The home secretary argued for the importance of retaining data for that length of time, approximately 50{3234d8c1bc8391a7e63ebaf7e32c90a4a5b2a92b92485c9509211683c01cefb1} of the communications data used in child abuse cases was more than six months old. Labour opposition argued that the degree of retention ran counter to the ECJ judgment. The Isle of Wight MP Andrew Turner asked Teresa May to explain why it was legitimate to retain data for 12 months with the approval of the UK Government, but not the ECJ. Teresa May stated that although the previous ‘set period’ of data retention was 12 months, the Government had accepted that there ‘should not just be one period of retention for all types of data’. Lower time limits could be set for certain types of data, and 12 months was now the maximum period in which data could be retained.

Clause 4 of the Bill requires overseas compliance with the Bill. MP Hazel Blears argued that enforcing extraterritorial compliance against companies not based in the UK would be difficult. The Bill will be subject to a review after six months, with May offering assurances that, should there be ‘concerns that the legislation is going beyond the current position’, the issue could return to the Commons.

As the debate rumbled on in the Lords today, Conservative MP for St Albans Anne Main voiced the concern that her constituents were not aware of ‘what the difference would be, what [the Bill] was all about and what it will mean to the public’. DRIP was nothing more than ‘repeated sticking plaster legislation’ in the eyes of Yvette Cooper, and those who opposed the Bill argued its disproportionate intrusion.

Author: Caislin Boyle

Caislin has completed the BPTC at the University of Law London and is currently seeking pupillage

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