Letter to Ed Miliband about the Data Retention and Investigatory Powers Bill

The Rt Hon Edward Miliband MP

Leader of Her Majesty’s Official Opposition

House of Commons

London

SW1A 0AA

Dear Ed

It was a huge personal disappointment to hear of your agreement with the fast-tracked Data Retention and Investigatory Powers Bill (‘DRIP’). Without our party to critique the Bill — and assertions underpinning it — DRIP will be rubber-stamped within days. Members and the public will barely know what DRIP means before the deal’s done. Liberty describe this as a ‘staggering disregard for parliamentary democracy and the rule of law.’

Far from scrutinising DRIP, we seem to have helped generate the panic needed to rush this important Bill through under controversial emergency procedures; and myth needed to present it as the antidote to paedophilia.

You may know I’ve written to Yvette twice about data retention since the date of the ECJ decision of 8 April. That decision — DRIP’s trigger — found a ‘wide-ranging and serious’ interference by the Data Retention Directive on 2 fundamental rights of British citizens, the right to privacy and protection of personal data. I explained our need to rethink the UK’s Data Retention Regs (‘DDR’) in May. I also shared my view on how this might fit into our vision for RIPA review. I can’t help thinking this might have helped Labour lead the debate, rather than fire-fighting.

There hasn’t been any response or dialogue about data retention until now, but that’s not the point. The point is that the letters show how easy it was to anticipate this so-called ‘emergency’: a theatrical emergency that’s forced our hand and abdication of our role to scrutinise the work of the Coalition.

This undermines the mixed bag of reasons offered for the Bill — a rehash of the DDR that makes absolutely no attempt to address the issues concerning indiscriminate data retention raised by the ECJ. Instead, ironically, the DRIP affirms and promotes the very same surveillance practices that are being challenged this week before the Investigatory Powers Tribunal. Senior lawyers have started worrying about the increase of extraterritorial RIPA powers in clause 4 and broader definition of telecommunications service in clause 5 . Perhaps that’s why the Home Office impact assessments predict DRIP will cost an additional £8.4M to implement. I’m not sure whether DRIP has appeared through incompetence or a deliberate strategy from the Home Office.

Contrary to the Home Secretary’s repeated assertions, DRIP doesn’t just maintain existing interception ‘capabilities’. It’s primary legislation which will support and extend controversial mass interceptions revealed by Snowden — the use of which has been doubted by the US Privacy and Civil Liberties Oversight Board and criticised by the Interception Commissioner. I haven’t found it easy to work out how this fits with our acknowledgement that these practices may not be governed properly or understood.

Looking forward, I agree the concessions Yvette has negotiated have some potential to mitigate DRIP. But further work is needed to make these meaningful, especially because they’re based on trust.

Ed, I urge you to consider the following action points before the Business of the House motion is agreed tonight:

Supporting a simple amendment reduce the ‘emergency period’ needed from 2 and a half years to 6 months. I will table this amend with cross-party support from David Davis MP at 10pm. This is the real test of metal: if there is any form of emergency, our sunset clause should be for the minimum period necessary — like data retention itself. I will not be able to support DRIP at third reading without a 6 month sunset.

Seek minimum requirements for a robust and independent review of RIPA. These should include terms of reference, funding, timescale and scope as well as proposed Chair. We need a high quality investigation panel with rights to call witnesses and seek information from departments and non-government bodies. The Chair should report to parliament and disclose as much information as possible to the public.

Seek minimum requirements to review UK-USA data sharing. We should identify and agree the diplomat who will commence discussions with our US allies. We should clarify our goals: to update existing arrangements for (i) data interception and processing by the US in the UK (ii) UK-US data sharing and (iii) retention and data use by the US in view of new technologies and innovative practices since the UKUSA 1946 Agreement (as amended). We need a specific assurance that UK data will not be available to support activities that would be unlawful in the UK, including extrajudicial targeted killing, noting confirmation from senior US officials that ‘meta data kills’.

Seek primary legislation to establish a Privacy and Civil Liberties and Oversight Board. As things stand, this looks sets to be a whitewash — we have no information at all on proposed powers or functions of the Board. We need to establish the basics for a proactive and independent Privacy Board, drawing on the American model.

I look forward to hearing from you later today.

Yours

Tom Watson

Member of Parliament for West Bromwich East

CC. Yvette Cooper MP