Back door law for EU's email and web data storage plan

Draconian, EU-driven plans to require the collection and storage of data relating to every website visited and
e-mail sent are set to be made law in Britain through the back door without Parliamentary debate.

Once passed into law it will not be possible for a future Parliament to reverse this legislation as EU law is supreme.

The requirements of EU Directive 2006/24/EC "on the retention of data generated or processed in connection with the provision of publicly available electronic communications services" were due to be enacted through a Communications Data Bill, scheduled for inclusion in November's Queen's Speech - as first highlighted by the DM back in June.

But the Bill was shelved following heavy criticism of the plans by the then Director of Public Prosecutions, the Information Commissioner and a range of civil liberties groups.

No debate

However, in order to meet the implementation deadline of 15 March 2009 stipulated in the EU Directive, the government is preparing to enact the plans by Statutory Instrument, which are not normally debated by MPs.

Annex B of this Home Office consultation paper(pdf) about the plans sets out the draft Statutory Instrument (SI) to be "laid before Parliament under Paragraph 2(2) of Schedule 2 to the European Communities Act 1972."

That paragraph of Schedule 2 of the ECA 1972 specifies that such SIs are "subject to annulment in pursuance of a resolution of either House". This means that once the SI is laid before the Commons it will become law, but MPs will have 28 (or occasionally 40) days in which to propose a motion calling for its annulment.

However, even if such a motion is supported by opposition parties or a large number of backbench MPs, there is no guarantee that a debate will be permitted.

Heavy criticism

Sir Ken Macdonald, until recently the Director of Public Prosecutions (DPP) and the man in charge of prosecuting terrorism in England and Wales, has described the data retention plans as threatening to 'break the back of freedom'.

Giving the Crown Prosecution Service lecture back in October, he said: "We need to take very great care not to fall into a way of life in which freedom's back is broken by the relentless pressure of a security state."

His verdict followed Lord Carlile of Berriew QC, the Government's independent reviewer of terrorism laws, who described the "raw idea" for handing over millions of pieces of private information to the state as "awful".

Britain's Information Commissioner, Richard Thomas, also warned that the plans were "a step too far for the British way of life".

Quoted in the Daily Telegraph back in August, he said "There needs to be the fullest public debate about the justification for, and implications of, a specially-created database - potentially accessible to a wide range of law enforcement authorities - holding details of everyone's telephone and internet communications."

Anti-terrorism or state control?

Government plans to spin the data retention scheme as a measure to combat terrorism were dealt a further blow in October, when it emerged that the EU Directive on which it is based was passed by qualified majority voting under "internal market" provisions in the EU Treaty, and not in the field of Justice and Home Affairs, which requires unanimity.

Following objections to this move by several EU member countries, EU advocate general Yves Bot said that the Directive "does not contain any provisions liable to come within the notion of 'police and judicial co-operation in criminal matters'," and was primarily an internal market issue.

No authority - no democracy

The absurd opinion by Mr Bot - whose view is followed by the European Court of Justice in 80% of cases - illustrates how the supposed independent arbiters of EU law are prepared to connive with the EU's law-making institutions to force through under completely inappropriate areas of the EU Treaty authoritarian measures which some EU member countries may try to block - if given the chance.

Further, the back door method by which this EU Directive is set to be implemented here in Britain reveals once again what little opportunity for democracy there is in how the EU's law-making powers are exercised.

The way this law has been brought forward first in the EU and now here in Britain is neither legitimate nor democratic.