Council proposes, Parliament disposes..

… and Brussels imposes.

Or not. Ireland – or rather the Irish Dept. of Justice – is threatening to legally contest the traffic data retention directive passed (with disgraceful ease) by the European Parliament (EP) this week. The directive will force internet service providers and telcos to store at their own cost all the traffic data of their users in case it is ever required by government agencies. Using the well-worn ‘national competence’ argument, the Irish government is arguing that the EP had no right to decide about data retention in the first place. The argument runs like this; Ireland should retain its veto in sensitive justice matters, and should not be told what to do by the European Commission and EP. This is a very disingenuous argument on the face of it, and rather perplexing when you dig deeper.

Traffic data retention has been the subject of the most cynical forum-shopping around Europe for the last five years, pre-dating September 11th, 2001 by about 6 months. More recently, a small number of member states – the UK, Ireland, France and Sweden – tried to ram a mandatory EU-wide data retention measure through the European Council over a year ago. The idea was to impose data retention under the Third Pillar, i.e. by a unanimous decision of the closed shop of justice ministries, and then flog it at home as ‘something Brussels imposed’. After a year of wrangling, several countries ultimately threatened to veto the proposal, and it died early last summer. Without unanimous support, nothing can come through the Third Pillar, and the Germans and Poles were holding out.

So why is Ireland is now saying the only place for this issue to be discussed is the one forum that couldn’t pass the measure in the first place? Perhaps it has something to do with the fact that the Irish legislation has been in place for several years (the first year of which the Irish Data Protection Commissioner was kept ignorant of) and might not compare favorably to the new measure. Or perhaps there’s a been a shift of position in the Council of Ministers, and the Irish Dept. of Justice (a trusty flag-bearer for the UK Home Office in these matters) thinks the measure could finally go through. Or it’s just about possible that the Irish government genuinely doesn’t want the precedent of a justice issue going through the First Pillar, and wants justice issues to remain the hidden preserve of the relevant ministries as a matter of principle. But this seems unlikely.

First off, a crime-fighting measure taken by governments but implemented by the private sector must by necessity have external input during the legislative process. The Third Pillar has not been successful at incorporating the interests of those outside government; but in the First Pillar, this happens all the time. Secondly, the defunct European Constitution – agreed by the 25 heads of government/state only thanks to the strenuous efforts of the Irish Taoiseach in 2004 – is pretty clear on the need to do away with the ‘pillars’ altogether and shift decision-making on justice and home affairs out of the closed and single-stakeholder environment of the Third Pillar to one where Council, Commission and Parliament each has a prominent role. So, all in all, the Irish threat to challenge this week’s decision seems just plain odd. Maybe it’s a simple case of dog in the manger, but I suspect there’s more behind it.

Anyway, with the Council at an impasse earlier this year, the Commission came out with its own proposal. Trying to position itself as an honest broker, the Commission made a power grab by initiating legislation on its own through the First Pillar – which requires input from the EP, too. But the timing of the submission of that proposal to the EP (21 September last, with heavy pressure from the UK Presidency to nod it through by Christmas) seemed calculated both to insult the EP and ensure there was no time for research, reflection and a proper debate. There followed an almighty power struggle between the Council (i.e. member state justice ministers) and the EP – a fight the EP was always going to lose because 732 MEPs can’t match the discipline or follow through of 25 member-state ministries.

That said, no one comes well out of this. In the same week MEPs decided ‘in principle’ to investigate CIA renditions, Parliament bent over backwards to vote through a measure that appears to contravene the European Convention on Human Rights and the Data Protection Directive (95/46) principles on proportionality. Just as it did in May 2002 on the same issue (Directive 2002/58), Parliament started out with lots of noisy rhetoric about civil liberties, and acquiesced at the last minute in a back-room deal with member state governments. It seems the EP is very big on human rights, just not the ones we have in Europe.

Parliament has been out-manoeuvred at every turn. The EP went through all the same arguments and saw all the same tricks on this issue two and a half years ago. But the new parliament voted in last year had a massive turnover which also saw the exit of most of the MEPs who knew anything about data retention. The learning curve was steep, and it was clear from the debate that this EP never mastered the issue. Instead, the EP took the bait to frame data retention as an inter-institutional power struggle, while accepting the impossible and arbitrary deadline that a deal had to be struck by the end of the UK presidency. This meant the EP was always going to have to knuckle under and come up with a face-saving compromise that preserves the illusion of its influence while doing little to mitigate the human rights concerns of the legislation itself.

We deserve better.

*The minority EP opinion (page 36 of the EP report on the Directive; sets out very succinctly the weakness of the measure passed:
“The legislation proposed by the Commission contravenes the proportionality principle even with the amendments contained in this report. Moreover, it is neither necessary nor effective. The proposed retention period is far too long, and the types of data to be retained are too wide-ranging. The definition of the competent authorities which are to have access to the data is imprecise, and access for intelligence services is not excluded. Inadequate provision is made for control mechanisms for data security.

The proposal for a directive seriously impinges on the fundamental rights of citizens and we cannot support it. Union citizens must not be placed under general suspicion. The Council and Commission have so far failed to provide proof that serious criminal offences can indeed be more successfully investigated by retaining vast amounts of communications data of all kinds.

Bearing in mind that introducing this measure would be extremely cost-intensive, it is preferable to invest this money in more effective measures to combat serious crime, such as targeted investigations and improved cooperation between law enforcement authorities.”