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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The Prevent strategy needs a rethink, not a rebrand

A bad policy by any other name is still a bad policy.

Yesterday the Home Affairs Select Committee published its report on radicalization in the UK. While the focus of the coverage has been on its claim that social media companies like Facebook, Twitter and YouTube are “consciously failing” to combat the promotion of terrorism and extremism, it also reported on Prevent. The report rightly engages with criticism of Prevent, acknowledging how it has affected the Muslim community and calling for it to become more transparent:

“The concerns about Prevent amongst the communities most affected by it must be addressed. Otherwise it will continue to be viewed with suspicion by many, and by some as “toxic”… The government must be more transparent about what it is doing on the Prevent strategy, including by publicising its engagement activities, and providing updates on outcomes, through an easily accessible online portal.”

While this acknowledgement is good news, it is hard to see how real change will occur. As I have written previously, as Prevent has become more entrenched in British society, it has also become more secretive. For example, in August 2013, I lodged FOI requests to designated Prevent priority areas, asking for the most up-to-date Prevent funding information, including what projects received funding and details of any project engaging specifically with far-right extremism. I lodged almost identical requests between 2008 and 2009, all of which were successful. All but one of the 2013 requests were denied.

This denial is significant. Before the 2011 review, the Prevent strategy distributed money to help local authorities fight violent extremism and in doing so identified priority areas based solely on demographics. Any local authority with a Muslim population of at least five per cent was automatically given Prevent funding. The 2011 review pledged to end this. It further promised to expand Prevent to include far-right extremism and stop its use in community cohesion projects. Through these FOI requests I was trying to find out whether or not the 2011 pledges had been met. But with the blanket denial of information, I was left in the dark.

It is telling that the report’s concerns with Prevent are not new and have in fact been highlighted in several reports by the same Home Affairs Select Committee, as well as numerous reports by NGOs. But nothing has changed. In fact, the only change proposed by the report is to give Prevent a new name: Engage. But the problem was never the name. Prevent relies on the premise that terrorism and extremism are inherently connected with Islam, and until this is changed, it will continue to be at best counter-productive, and at worst, deeply discriminatory.

In his evidence to the committee, David Anderson, the independent ombudsman of terrorism legislation, has called for an independent review of the Prevent strategy. This would be a start. However, more is required. What is needed is a radical new approach to counter-terrorism and counter-extremism, one that targets all forms of extremism and that does not stigmatise or stereotype those affected.

Such an approach has been pioneered in the Danish town of Aarhus. Faced with increased numbers of youngsters leaving Aarhus for Syria, police officers made it clear that those who had travelled to Syria were welcome to come home, where they would receive help with going back to school, finding a place to live and whatever else was necessary for them to find their way back to Danish society.  Known as the ‘Aarhus model’, this approach focuses on inclusion, mentorship and non-criminalisation. It is the opposite of Prevent, which has from its very start framed British Muslims as a particularly deviant suspect community.

We need to change the narrative of counter-terrorism in the UK, but a narrative is not changed by a new title. Just as a rose by any other name would smell as sweet, a bad policy by any other name is still a bad policy. While the Home Affairs Select Committee concern about Prevent is welcomed, real action is needed. This will involve actually engaging with the Muslim community, listening to their concerns and not dismissing them as misunderstandings. It will require serious investigation of the damages caused by new Prevent statutory duty, something which the report does acknowledge as a concern.  Finally, real action on Prevent in particular, but extremism in general, will require developing a wide-ranging counter-extremism strategy that directly engages with far-right extremism. This has been notably absent from today’s report, even though far-right extremism is on the rise. After all, far-right extremists make up half of all counter-radicalization referrals in Yorkshire, and 30 per cent of the caseload in the east Midlands.

It will also require changing the way we think about those who are radicalized. The Aarhus model proves that such a change is possible. Radicalization is indeed a real problem, one imagines it will be even more so considering the country’s flagship counter-radicalization strategy remains problematic and ineffective. In the end, Prevent may be renamed a thousand times, but unless real effort is put in actually changing the strategy, it will remain toxic. 

Dr Maria Norris works at London School of Economics and Political Science. She tweets as @MariaWNorris.