Quis Custodiet Legis Latori?

If another smug unionist argument repeats the claim that bigger is automatically better and that we can all relax in the arms of Big British Brother, I may have to reach for the boke bag. Let’s leave aside unanswered questions why inhabitants of Switzerland or Singapore can be so much better off than ‘global power UK’ or why Eire shows no desire to re-enfold itself in Britannia’s protective skirts and focus on just one item that is an insult to Scottish autonomy on even the devolved scale.

Pardon me if this gets anorak and esoteric in its detail. Scottish Ministers are responsible for policing and justice. A Regulation of Investigatory Powers Act was signed into law by Westminster in 2000. It was already the case that Scottish Ministers signed off any request for intercept on serious crime grounds but being in its infancy, the Scottish Parliament accepted the legislation in full. It permits five types of surveillance:

  • Interception of Communications—this involves listening to the calls made on a telephone or opening and reading the contents of a target’s letters or e-mails. This is only allowed under the authority of a warrant signed by a Secretary of State
  • Intrusive Surveillance – covert surveillance in residential premises or in private vehicles – so covertly filming a person’s house, bugging a house or car.
  • Directed Surveillance – covert surveillance mainly in a public place – so covertly monitoring the movements and actions of specific targets, following them around, listening in or filming in mainly public spaces.
  • Covert Human Intelligence Sources A CHIS is a person who, under direction from a public authority, establishes a personal or other relationship in order to (covertly) use the relationship to obtain information or disclose information gained from the relationship.
  • Communications Data – this contains the record of a communication, such as a telephone call, email or website visited – it does not contain the content of the communication.

It appears that the European Court of Justice deemed the original Bill contradicted the rights of its citizens, so there was an indecent rush at Westminster to patch the legislation so it did not. Some haste is understandable but it seems Theresa May sat on the revision since April and left minimal time for public debate—always a bad sign when Tories are dealing with security.

Many opposition MPs, including Pete Wishart (Perth and North Perthshire, SNP) objected to the resulting wholly unnecessary ‘bum’s rush’:

“I have massive concerns about this Bill. I do not like the way in which it has been brought to the House. I do not like the way in which we have to rush through this process at breakneck speed, even though this is an issue that was flagged up to the Government some three months ago. I am suspicious about the reasons why we are doing all of this now. I do not like the fact that it seems little more than a half-hearted attempt to get around a European Court of Justice ruling that declared the European directive invalid and thereafter practically everything that the Government are doing on data retention probably illegal.”

In the background, all UK parties and leaders were brought into line around “unspecified threats”, reminiscent of the dark days of the creation of New Labour’s anti-libertarian state. Despite having responsibility for the judiciary, policing and even delivering parts of RIPA in Scotland, the Scottish Government were never consulted. Theresa May’s department pretend this legislation is business as usual. But it is clearly an extension of what the Government can do in the collection and retention of an individual’s personal data.

The Prime Minister said that the Government were not introducing “new powers or capabilities”, but clauses 3 to 5 make significant amendments to the range of powers included in RIPA. The Bill extends the Government’s surveillance powers in two very important ways. Clause 4 clearly extends the territorial scope of RIPA, and the Government can now issue interception warrants for communications data to companies outside the UK. It also extends the definition of what “telecommunications services” means within RIPA to include webmail services such as Gmail—the most fundamental change in the relationship between ISPs and the state.

The Government have had three months to address the Court’s findings. It is not the threat of terrorism or of criminal activity that has forced the Government’s hand in bringing this forward today. It is the threat of legal action by organisations such as the Open Rights Group and others that has prompted this emergency legislation. The Government should not mislead us about the urgency of the Bill. Given its significance and the issues it raises about our civil liberties, it should not have been passed without proper parliamentary scrutiny.

In the interests of legality—not to mention people’s rights against unwarranted surveillance, the Government must come clean that this is not business as usual. These are significant and substantial new powers. What the European Court of Justice said was that we have a very low threshold for the retention of data, and it made it clear that the retention of data of every single person strikes the wrong balance between the need to tackle serious crime and our right to privacy and a private family life.

The Bill is more than the sum of its parts. It is a statement of intent. The Home Secretary’s real intention is, of course, to reintroduce her much-coveted snoopers’ charter in this Bill. The way in which the Bill brings on board the overseas ISPs is little more than a paving Bill for the reintroduction of that most unwanted anti-civil libertarian measure.

About davidsberry

Local councillor, tour guide and database designer. Keen on wildlife, history, boats and music. Stood for the Scottish Parliament 2011; lost by 151 votes.
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