Wednesday, January 16, 2019

EU member states attempt to circumvent CJEU rulings on data retention

One of the things the UK government is going to miss desperately, once Brexit deal is done, is the monumental amount of policy washing they have been able to drive though the EU in the past four plus decades. Not that this will prevent future UK governments from blaming the EU for whatever their prevailing set of woes happens to be.

Case in point.

The Court of  Justice of the EU has repeatedly ruled that blanket data retention is a breach of the  Charter of Fundamental rights of the EU, most notably in the Digital Rights Ireland case in April 2014 and the Tele2 case in December 2016.

Ever since, EU member state governments and various branches of EU institutions have been furiously trying to find ways to circumvent the Court's judgments and continue and expand data retention practices. They are very happy, thank you very much, with their current illegal data retention regimes.

The contortionist wordplay at large in some of the forums considering the issue is bordering on awe inspiring.

The current great hope of those working to maintain, enhance and expand data retention practices is that the planned new e-Privacy directive can be constructed in such a way as to pretend that data retention is not really data retention. In diplomatese they are working towards a more “favourable” environment for data retention than the current ePrivacy Directive of 2002. Article 15(1) of that directive when read in conjunction with the EU Charter of Fundamental Rights, rather irritatingly, for its supporters and according to the CJEU, prohibits blanket data retention. It requires data retention to be
"a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system"
Thank you to the excellent crew at EDRi for the update on the ongoing shenanigans on this today.

Government defeat on the EU withdrawal agreement

In the wake of the historic defeat of Theresa May's UK-EU withdrawal agreement in the House of Commons last night, my MP, Layla Moran contacted me:
"I am writing to you, and other residents who contacted me in opposition to Brexit, to let you know that I have just left the House of Commons after voting against Theresa May’s Brexit deal.
 The vote was an overwhelming, with 432 against and 202 MPs in favour.

432 MPs of all parties voting against Theresa May’s deal is far more than even my wildest predictions. It shows that there is no version of this Brexit deal that will get past Parliament. The only way to break the impasse is to hold a People’s Vote.

Following the vote, Liberal Democrat Deputy Leader Jo Swinson spoke in the House of Commons and urged the Prime Minister to let Parliament have a vote on putting the issue back to the people - so that the electorate can have the final say on Brexit, including the option to stay in the EU. This remains my top priority, and I will spend the next few days fighting harder than ever for a People’s Vote on the Brexit deal.

We are also looking at how we can extend or delay Article 50 to allow time for Parliament to assess and vote on alternative courses of action. We cannot allow the Government to run down the clock in an attempt to crash out of the EU in a ‘no deal’ scenario.

Tomorrow there will be a vote of no confidence in the Government. If this passes, it could lead to a General Election. In that event, I am ready to fight to make sure that people in Oxford West and Abingdon, and the whole country, have the final say on Brexit.

I’ll keep you updated as things develop.

With best wishes, Layla
Layla Moran MP Liberal Democrat, Oxford West and Abingdon"
My response:
Thanks for the update, Layla. 
I watched the vote live last night and it was indeed an historic defeat for the government.   
The government will survive the vote of confidence today, another wasted day of parliamentary time, so we’re left with – 
• No deal 
• Extension of article 50 
• Revocation of article 50 
• Parliament voting for some alternative Brexit deal that the EU 27 would accept
• Parliament voting to remain in the EU 
• A second referendum with no guarantee of a decisive outcome 
Mrs May is obsessed with immigration and appeasing her extreme right wingers, the right wing media and the DUP. Mr Corbyn is obsessed with triggering a general election which, even if he succeeded, he would not win. Both of them are determined to drive a UK exit from the EU for reasons of their own. 
Parliament is deadlocked and cannot agree on anything. 
The signs are not promising that a constructive way out of this mess can be found or enacted. Nevertheless unlikely alliances do occasionally arise in the midst of crises and, as Margaret Mead said, “Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has.” I wish you and your fellow thoughtful, committed parliamentarians good luck in the days and weeks ahead. 
My preference, for what it is worth, would be for the UK to remain in the EU and drive reform of its myriad of deep flaws from within the (still) 28 member state alliance.