I have often bemoaned government action that cried out for a
consultation with those with real expertise before the action was taken but
ignored that need. So I was delighted to see that the Home
Office has announced that it ‘will shortly launch a public consultation on
the government’s response to the Court of Justice of the European Union (CJEU)
judgment on data retention’. I was a trifle bemused by the fact that it is not
the actual consultation but the academics among you will know that it usually
takes longer to draft the questions than it does to write the answers. Perhaps
there is to be a questionnaire and its drafting has proved tricky.
The CJEU judgment set out the safeguards that need to be in
place in order for the UK data retention regime to be consistent with EU law.
The government accepts that amendments will be required to the Investigatory
Powers Act 2016 in response. It is often remarked that the IPA 2016 represents
a considerable barrier to the UK gaining an adequacy ruling post-Brexit (see
Rosemary Jay’s excellent and thorough analysis here)
and one suspects that the Home Office has been leaned on to respond adequately.
The Home Office’s very laudable aim is that the proposed
response ensures that ‘the police and other public authorities can continue to
acquire communications data in a way that is consistent with EU law and our
obligation to protect the public’. Cynics may see that as a cry for a solution
that changes as little as possible in practice while meeting the letter of the
CJEU judgment. I was amused to note that the Home Office carefully avoid
labelling the CJEU judgment – perhaps, lest the name Watson (or, even worse, ‘Davis’)
sully its lips.
While I would dearly love to see SCL members come up with a
solution to this problem and would encourage those with an interest in this
field to ready themselves for a constructive response, I fear that it might be
tricky to square this particular circle. I am reluctantly reminded of Ginsberg’s
Howl (‘I saw the best minds of my generation destroyed by madness’), and trust
I am not encouraging you towards mental torment. The fact that the questions
for the consultation are not yet ready, almost a year on from the CJEU judgment,
hints at the difficulties to come.
But we all want DP adequacy and to protect the public so I
hope you will bring your best efforts to squaring this particular circle.
