Kenny MacAskill anger at UK emergency data laws

Justice minister Kenny MacAskill said he was "disappointed" by the development. Picture: PA

Mr MacAskill says controversial new emergency laws agreed by the three main Westminster parties, and set to become law in just a week, would “impinge” on the Scottish legal system, which is the responsibility of ministers in Holyrood, not Westminster.

He demanded to know why UK ministers failed to consult the Scottish Government before announcing the emergency bill yesterday.

But last night Downing Street accused the SNP of trying to put the independence referendum ahead of public safety.

A UK Government spokesman said: “It is disappointing the Scottish Government is seeking to turn this into a referendum row. Our prime concern is the safety of the public and MPs will have the chance to debate these important measures next week.”

Prime Minister David Cameron and his deputy Nick Clegg announced the Data Retention and Investigation Powers Bill – already dubbed the “snoopers’ charter” – at a joint Downing Street press conference yesterday.

It will see emergency powers introduced next week to enable police and security services to continue to access phone and internet records.

Mr Cameron insisted the UK Government was forced to introduce the legislation because an EU directive requiring phone and internet companies to retain communications data for 12 months was ruled unlawful in April by the European Court.

That data would have covered when and who their customers called, texted and emailed, but not what was said.

The Prime Minister claimed the emergency legislation, which would mean firms can retain data for 12 months, was needed to prevent companies facing legal challenges and being forced to destroy the information within weeks.

Security experts had raised fears that without this legal underpinning, companies would start deleting data that is crucial for investigations into a range of serious crimes including terrorism, child pornography and drug trafficking.

Mr Cameron said: “We face real and credible threats to our security from serious and organised crime, from the activity of paedophiles, from the collapse of Syria, the growth of Isis in Iraq and al Shabab in East Africa.

“I am simply not prepared to be a prime minister who has to address the people after a terrorist incident and explain that I could have done more to prevent it.” And he warned: “Unless we act now, companies will no longer retain the data about who contacted who, where and when, and we will no longer be able to use this information to bring criminals to justice and keep our country safe.”

He said the move was not an extension of powers but a return to where the country was in April.

Mr Clegg insisted the move - backed by the three main Westminster parties - did not represent a revival of the so-called “snooper’s charter” which he blocked last year, but which Mr Cameron and Home Secretary Theresa May have said they will reintroduce if Conservatives win next year’s general election.

The full impact of the legislation on Scotland has not yet been established.

Scottish justice minister Mr MacAskill said: “We are disappointed at the lack of prior consultation and discussion from UK Government on this announcement, given how much this legislation potentially impinges on areas of Scots law that are clearly devolved and under the jurisdiction of the Scottish Government or our law-enforcement agencies, including the Crown Office and Procurator Fiscal Service.

“While the retention of communications data is currently a reserved matter, the Scottish Government takes the safety and security of our communities extremely seriously.”

However, Mr MacAskill insisted that his comments would not mean Scots would be any less safe if they voted Yes for independence in September.

He said: “In an independent Scotland, this government will set out clear arrangements for investigatory powers, updating existing legislation where necessary. This will ensure that law-enforcement agencies have the powers that they need to do their job and keep Scotland safe, while also clarifying the limit of those powers and the extent of the controls over them.”

But civil liberties advocates are furious with the government’s refusal to comply with the European ruling.

The Open Rights Group attacked the government for using the threat of terrorism to push through an “emergency law” that it argues has no legal basis.

Executive director Jim Killock said: “Not only will the proposed legislation infringe our right to privacy, it will also set a dangerous precedent where the government simply re-legislates every time it disagrees with the CJEU [Court of Justice of the European Union]. Blanket surveillance needs to end. That is what the court has said.”

Shami Chakrabarti, director of campaign group Liberty, said: “The government says it’s only plugging loopholes but its existing blanket surveillance practice has been found unlawful. We are told this is a paedophile and jihadi ‘emergency’, but the court judgment they seek to ignore was handed down over three months ago and this isn’t snooping on suspects but on everyone.

“We are promised greater scrutiny and debate but not until 2016, as it seems that all three party leaders have done a deal in private. No privacy for us and no scrutiny for them.”

But Home Secretary Theresa May warned innocent lives would be lost if Parliament did not act swiftly in response to the European Court of Justice ruling. She said that action was needed to confirm the legal basis for security and intelligence agencies to intercept the content of suspects’ emails and phone calls under warrant and head off the risk that communications companies based overseas might withdraw co-operation.

Labour leader Ed Miliband and shadow home secretary Yvette Cooper confirmed Labour will support the emergency legislation, telling the party’s MPs in a letter: “Serious criminal investigations and counter-terrorism intelligence operations must not be jeopardised.”

However, in a sign the bill has already divided Labour, leading backbencher Tom Watson denounced the emergency legislation as a “stitch-up” that was denying MPs the chance to canvass voters’ views.

Conservative MP Secretary David Davis, a longstanding campaigner on civil liberties, accused the government of staging a “theatrical emergency”.

The UK government claimed the planned legislation would contain safeguards, including the creation of a new oversight board and a “sunset clause” ensuring the powers end in 2016, enabling a longer and wider debate about what would replace them.

So do we need the new bill?

YES: Graeme Pearson

Technology has over the years outstripped administrative arrangements to deal with matters like gathering data. Genuine sensitivities about “security” issues have also prevented an open debate on these arrangements for fear of exposing the techniques and the capabilities involved.

The real challenge created here emanates from the private companies who manage data for us. With the April decision from the EU court these companies could, some would, refuse to respond to demands for historical access to data fearing civil liabilities might arise. They will therefore delete data, as data protection legislation demands, and thereby prevent the authorities from using the intelligence that if retained as the agencies would wish, would otherwise be available.

Be in no doubt the data requests involved here are absolutely vital to investigations into terrorism and organised crime. Often too it is not the actual conversations that are important to the authorities, it’s the identification of the links between people that tells investigators what they need to know about who is involved.

That knowledge is gold dust when interviews and additional evidence is gathered. It is also critical in the effort to prevent terrorism and crime. Patterns of communications regularly point to the commencement of an enterprise be it a bombing, a transfer of funds, or the initiation of a paedophile link. It can be stopped by an effective response before it can have impact.

In my experience the oversight of these requests by both the security agencies and law enforcement demand a high benchmark of justification and a significant oversight by both surveillance inspectors and the courts. The audit trail is there for reviewers to examine.

I welcome the sunshine clause for the legislation in 2016. It gives Westminster and Holyrood the opportunity to decide the way forward in these matters. I also welcome the opportunity to provide a rigorous legal framework thereafter.

I am disappointed, however, in Kenny MacAskill’s response to this problem. Can he really think a Dirty Harry approach to the future is sensible? Does he really believe Scotland would wish to take years of debate to decide these matters leaving it to those who would undermine us have full advantage?

• Graeme Pearson is a Labour MSP. He is a former police officer and director general of the Scottish Crime and Drug Enforcement Agency.

NO: Sara Ogilvie

Back in April the Court of Justice of the European Union ruled against an European Union directive which required the retention of our personal communications data by phone and internet providers.

In a hugely welcome and significant judgment, the court rightly criticised not only the blanket nature of the obligation to retain such information but the distinct lack of safeguards too.

That was more than three months ago.

And yet now the government has announced it will rush through supposed “emergency” legislation – the Data Retention and Investigatory Powers Bill – allowing the Home Secretary to require the blanket retention of such data.

That means information about our phone calls, text messages, emails and more.

Prime Minister David Cameron and Deputy Prime Minister Nick Clegg insist that they’re merely maintaining capability.

But the existing policy of blanket surveillance has already been found unlawful in the Court of Justice of the European Union for breaching human rights.

And while we’re assured that this is a paedophile and jihadi emergency, we’re not talking about just snooping on suspects here but on each and every one of us.

Our political leaders have also been at pains to promise that greater security and public debate in this area will follow – but not until 2016.

In truth it seems that all three party leaders have done a deal on surveillance behind closed doors. No privacy for us – no scrutiny for them.

The end result is the government resorting to emergency legislation to ignore the rule of law and flout the court’s intervention on mass snooping. MPs have been given barely any time to scrutinise the bill – published at the eleventh hour, just before the summer recess.

There will be absolutely no chance to question its provisions properly. So much for Britain’s famous system of “parliamentary democracy”.

• Sara Ogilvie is a policy officer at the civil liberties and human rights group Liberty