UK Government Faces Lawsuit Over Emergency Surveillance Bill

judgecorp (778838) writes The British Government has had to produce an emergency surveillance Bill after the European Court of Justice ruled that European rules on retaining metadata were illegal. That Bill has now been passed by the House of Commons with almost no debate, and will become law if approved by the House of Lords. But the so-called DRIP (Data retention and Investigatory Powers) Bill could face a legal challenge: the Open Rights Group (ORG) is fundraising to bring a suit which would argue that blanket data retention is unlawful, so these emergency measures would be no more legal than the ones they replaced.

Comments

Support for this was not unanimous

[fiannaFailMan]

Some lawmakers were not so keen on the fast-tracking of this legislation. Checks and balances are there for a reason, it's a shame that they can be sidetracked when politically expedient.

Are they forgetting that this is the UK?

[mysidia]

New acts of parliament supercede previous laws regardless of source due to Parliamentary Supremecy, a fundamental pillar of English law.... Parliament is the supreme law-making body: its Acts are the highest source of English law.

Unlike in other countries such as the US, there is no such thing as an unconstitutional law, or an act of parliament being "illegal" if properly passed, because there is no constitution in the UK, and an act of the parliament duly passed is supreme.

Re:Are they forgetting that this is the UK?

[Anonymous Coward]

there is no constitution in the UK

False. It's just not a "written constitution" - IOW it is a body of tradition that everyone recognises, along with certain Acts which are regarded as more important than others (especially relevant when the law conflicts, as normally the later would just cancel out the earlier).

Consider: If there were no constitution, what would be the legal basis for Parliamentary supremacy?

Re:Are they forgetting that this is the UK?

[TechyImmigrant]

there is no constitution in the UK

False. It's just not a "written constitution" - IOW it is a body of tradition that everyone recognises, along with certain Acts which are regarded as more important than others (especially relevant when the law conflicts, as normally the later would just cancel out the earlier).

Consider: If there were no constitution, what would be the legal basis for Parliamentary supremacy?

It's a system of threats and balances. The queen grants a constitutional basis to the parliament and the parliament grants continued existence to the queen. It's worked quite well since Cromwell. Much more stable than these new fangled republics.

Re:Are they forgetting that this is the UK?

[mysidia]

Consider: If there were no constitution, what would be the legal basis for Parliamentary supremacy?

The legal basis being the monarch in a sovereign monarchy has absolute power; England is a sovereign monarchy, and the courts rely on this sovereignty to get to say anything.

The monarchy was then forced to cede many of their God-given powers after the Glorious revolution in 1689; at which time parliament passed the Bill of Rights asserting Parliament to be supreme, even over the monarch, and the "truce" between Monarchy and Parliament, effectively forever moved the supreme source of law to Parliament by agreement.

Re:Are they forgetting that this is the UK?

[whoever57]

Parliament is the supreme law-making body: its Acts are the highest source of English law.

Unlike in other countries such as the US, there is no such thing as an unconstitutional law, or an act of parliament being "illegal" if properly passed, because there is no constitution in the UK, and an act of the parliament duly passed is supreme.

No. It isn't. UK law must be in accordance with EU treaty requirements.

I am beginning to suspect that they whole anti-EU campaign is not really an astroturfing (and use of the useful idiots) by the 1%ers to get rid of those pesky EU laws that are preventing unrestrained wealth acquisition by the rich at the expense of the poor.

Re:Are they forgetting that this is the UK?

[AHuxley]

The GCHQ has just the kind of legal history with this kind of project.
The bulk data interest could always be seen as with the first Intelsat (international satellite telephone calls) efforts at Goonhilly Downs -CSO Morwenstow,/GCHQ Bude got every keyword of interest in the late 1960's. Staff asked why domestic calls and numbers where also been tracked after they where only tasked to international calls. The retaining domestic metadata idea went on with little internal legal comment.
When the GCHQ/Intelsat news got into print in the early 1990's nothing was done. There was no legal protection decades ago. There was no protection once domestic collection tasks made it into the UK press. On into the 1990's the UK had new laws around the SIGMod funding initiative (sigint modernisation programme) to further clear up any domestic legal issues over domestic data sorting. The other legal magic is to pass telco work to SIS or other "agencies'". Then you have the vast US shared sites that can capture all but have even less to do with UK laws. More legal cover can flow form "ministerial level" support. If the political class is questioned they will never comment on past or ongoing security issues.
ie law reform cannot get past secrecy laws or get political comment reducing all domestic legal protections to chilling living document status.
One person might risk 20 years and another might have all changes dropped to get the story out of the media.
The fun legal part for the UK is now to make US "parallel construction" very legal. They want to use what they intercept or decode in closed courts so the structures have to have a legal expert evidence trail. The UK is back to the days of National Criminal Intelligence Service, Government Telecommunications Advisory Centre, Government Technical Assistance Centre (GTAC ~ GCHQ Technical Assistance Centre) to try and help courts with decryption, domestic and global tracking.
Will it work? Anyone with the cash can buy ex gov staff to sell them the super expensive advice: stay away from all electronic telco products.

Re:Are they forgetting that this is the UK?

[whoever57]

The UK Parliament can pass a law that directly contradicts a treaty. A judge faced with a law that also gives clear direction that the intention was to override European law should have no choice but to interpret it so, rather than assume as now that the intention is to remain in accord with Europe given the prior acts Parliament have passed that speak to exactly that.

Once again, No

And yes you're right, how could anyone not love a massive command-based supranational state with poor democratic issues, endemic corruption, and a legal code largely directed at controlling behaviour rather than respecting individual rights. Worked out really fucking well last time.

The EU has its problems. But for the UK, pulling out would be worse. In order to trade with EU members, the UK would still have to follow many EU requirements, but without any influence over the setting of those requirements. Those car factories in the UK? Likely closed, like so many other businesses as exporting to EU countries becomes difficult.

Re:Biased and wrong summary (flamebait)

[FireFury03]

EU court just told UK that the data retention law is illegal - so what did they do? make another law to do exactly the same thing, WTF?

Well, not quite. As far as I understand, the ECJ declared the snooping law unlawful because it was too broad, and outlined what restrictions would need to be placed on any replacement snooping law. So parliament is basically just passing a new law with those restrictions in it to satisfy the ECJ.

Of course, that doesn't make the law right, but then neither was the original law.

I've written a bit about it on my blog.