The Lib Dems’ drippy defence of privacy

On Sunday, Edward Snowden came out of hiding in Russia to give a seven-hour interview to the Guardian. As well as reading lengthy extracts from the phone book, which will no doubt be lapped up by his devotees, Snowden decried the move by the UK government to introduce emergency legislation permitting the state powers to obtain and retain people’s communication data.

The government was forced to legislate after the home secretary, Theresa May, was challenged by judicial review. This challenge argued that the state has no right to continue to compel companies to retain communications data in light of a ruling by the European Court of Justice which found that current EU legislation, which allows governments to compel phone companies to store a wide range of communications data, violated human-rights law. It is now anticipated that the Data Retention and Investigatory Powers Bill (DRIP) will be rushed through the Commons to underpin the state’s powers to intercept and monitor communications.

DRIP was sold by the coalition on the basis that it maintained the ‘status quo’ with regards to retaining personal data, and did not give the state any new powers to snoop into communications. In fact, it makes far-reaching changes to the current legal framework related to data retention. It means that the obligation to retain communication data is likely to apply to more companies and to more kinds of communication. It makes a number of significant changes to the Regulation of Investigatory Powers Act (RIPA), which is the cornerstone of the legal framework surrounding the state’s right to snoop. The idea that the legislation merely maintains the status quo has been rubbished by almost all commentators who have actually bothered to read the legislation.

The suggestion that DRIP represented ‘business as usual’ was particularly important for the Liberal Democrats, who have tried to use the issue of privacy and state surveillance to make themselves matter in the coalition. In 2012, the Tories shelved the Communications Data Bill, which would have given draconian powers to the home secretary to make orders requiring companies to retain and disclose communications data. At the time, Lib Dem leader and deputy prime minister Nick Clegg said his party had ‘serious concerns’ about the powers granted under the bill. Earlier this year, he reaffirmed that the bill would not return, calling it a ‘matter of life and death’. The shelving of that bill was considered by the Lib Dems to be one of their few victories in the course of the coalition.

Now, Clegg is throwing his support behind the undemocratic expansion of the state’s powers of surveillance, while trying to reassure his party that the bill merely maintains the status quo. Clearly, Clegg’s purported commitment to privacy is nonsense.

What’s worse is that most of Clegg’s MPs threw their support behind the bill without knowing much about it. In an embarrassing Twitter exchange between a legal commentator and Lib Dem MP Julian Huppert, Huppert was asked whether the criminal offence of failing to comply with an interception warrant currently applied to non-UK nationals, an issue which stands to be affected by the emergency legislation. Huppert replied that he did not know. It seems that Lib Dem MPs are content to throw support behind rushed legislation, which makes changes to an area they purport to hold principled beliefs about, without even knowing what the legislation itself says.

The fact that the Lib-Con coalition feels so confident in rushing DRIP through shows that privacy has lost its force as a political dividing line. Cameron was able to celebrate the ‘cross-party support’ that DRIP received, even though most members of parliament did not have the chance to read the law before it was announced. Those that did read it appeared to misunderstand its implications. The passing of DRIP shows that privacy has lost all its force as a political issue, even for those parties that claim to hold ‘life or death’ principles about its protection.

Luke Gittos is law editor at spiked, a solicitor practicing criminal law and convenor of the London Legal Salon.