Why RIPA matters

Introducing an important statute.

In its early years, the last Labour government passed a sequence of what may be called "constitutional statutes", including the Human Rights Act 1998, the Scotland Act 1998, and the Freedom of Information Act 2000.

But it is the (so far) lesser known Regulation of Investigatory Powers 2000 ("RIPA") which may turn out to have the most practical political significance.

RIPA was enacted with a sense of necessity. The passing of the Human Rights Act, which was to take effect from 2 October 2000, required that an express legal basis be provided for a wide range of investigatory, interceptive, and clandestine activity.

Amongst the rights incorporated by the Human Rights Act is Article 8 of the European Convention on Human Rights. This provides a general right to privacy, and it requires that any interference with personal privacy has to be proportionate and be positively permitted by law. This meant that the old and illiberal notion that police forces and the intelligence services were able to do anything they liked, unless it was specifically prohibited, could no longer be sustained. The legal position was to be inverted. Passing an enabling statute was urgent.

And so RIPA was passed in July 2000, including detailed provisions on surveillance and covert intelligence sources, the interception of communications, and on acquiring data from telecommunications and other ervice providers.

Section 1 of RIPA provides that wrongful interceptions can be the basis of both criminal and civil legal proceedings. Glenn Mulcaire was convicted under section 1 of RIPA whilst Clive Goodman was convicted for conspiracy to commit an offence under section 1. The civil "tort" under section 1 is now an element of the various civil actions which have led to new information being passed to the police and a new investigation.

This new crime and statutory tort were a direct and under-appreciated consequence of passing the Human Rights Act.

Another provision of RIPA provides a legal basis for police forces to request and acquire data held by telecommunications and other service providers. (This, of course, happened before 2000, but did not really have its own statutory regime.) As I wrote yesterday, there are hundreds of these requests made every day, almost all of which lead to data being passed to the police promptly and silently. Again, the fact that each of these requests have to be documented is an effect of the Human Rights Act, even if in practice the requests are currently treated in a routine and administrative manner.

The mark of a political idiot is to take easy shots at human rights and civil liberties law. However, the incorporation of Article 8 into English law has, through the enactment of RIPA, provided an (albeit imperfect) means for protecting individuals from wrongful interceptions and for providing criminal and civil consequence for unlawful behaviour.

It is now obvious that RIPA and Article 8 are having a beneficial and practical effect in policing and media practice. A casual approach to interferences in another person's privacy is becoming increasingly difficult one for someone with power to adopt. And so, at last, the police and the tabloid media are having to give proper regard to the privacy of the individual.

 

David Allen Green is legal correspondent of the New Statesman and is a practising media and telecommunications lawyer.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Philip Hammond's house gaffe is a reminder of what the Tories lost when David Cameron left

The Chancellor of the Exchequer's blunder confirmed an old fear about the Conservative Party. 

Philip Hammond got into a spot of bother this morning describing the need for a transitional agreement with the European Union by comparing it to moving into a house, saying: "you don't necessarily move all your furniture in on the first day you buy it”.

This immediately surprised a lot of people, because for most people, you do, in fact, move all of your furniture in on the first day you buy a house. Or rent a house, or a flat, or whatever. Most people who buy houses are part of housing chains – that is, they sell their house to raise some of the capital to buy another one, or, if they are first-time buyers, they are moving from the private rented sector into a house or flat of their own.

They don’t, as a rule, have a spare bolthole for “all their furniture” to wait around in. Hammond’s analogy accidentally revealed two things – he is rich, and he owns more than one home. (I say “revealed”. Obviously these are things you can find out by checking the register of members’ interests, but they are, at least, things that are not immediately obvious hearing Hammond speak.)

That spoke to one major and recurring Conservative weakness: that people see them as a party solely for the rich. Focus groups conducted by BritainThinks consistently showed that when people were asked which group of TV families might vote Conservative, the only one that people consistently picked were the “posh couple” from GoggleBox.

David Cameron’s great achievement as Conservative leader was in winning two elections – the first, in 2010, the most successful night for the Conservatives since 1931, with 97 gains overall, the second, their first parliamentary majority for 23 years – despite being a graduate of Eton and Oxford leading a party that most voters fear will only look out for the rich.

He did it by consistently speaking and acting as if he were significantly less well-to-do than he was. Even his supposed 2013 gaffe when asked what the price of bread was – when he revealed that he preferred to use a breadmaker – projected a more down-to-earth image than his background suggested His preferred breadmaker cost a hundred quid and could easily have been found in any upper-middle class home in any part of his country. One of Cameron’s great successes was in presenting himself as an affable upper-middle-class dad to the nation, when he was in fact, well-to-do enough to employ a literal breadmaker had he so chosen.

This is slightly unfair on Philip Hammond who went to a state school in Essex and is by any measure less posh than Cameron. But his gaffe speaks to their big post Cameron problem (and indeed their big pre-Cameron problem) which is that while many conservative ideas are popular, the Conservative Party isn’t. Most of their big politicians are a turn-off, not a turn-on.

And until they can find a genuine replacement for David Cameron, miserable results like 2017 may become the norm, rather than the exception. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.

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