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.)

Getty Images.
Show Hide image

Why Theresa May can't end speculation of an early general election

Both Conservative and Labour MPs regard a contest next year as the solution to their problems. 

One of Theresa May’s first acts as a Conservative leadership candidate was to rule out an early general election. After a tumultuous 2015 contest and the EU referendum, her view was that the country required a period of stability (a view shared by voters). Many newly-elected Tory MPs, fearful of a Brexit-inspired Ukip or Liberal Democrat surge, supported her on this condition.

After entering Downing Street, May reaffirmed her stance. “The Prime Minister could not have been clearer,” a senior source told me. “There won’t be an early election.” Maintaining this pledge is an important part of May’s straight-talking image.

But though No.10 has wisely avoided publicly contemplating an election (unlike Gordon Brown), the question refuses to die. The Conservatives have a majority of just 12 - the smallest of any single-party government since 1974 - and, as David Cameron found, legislative defeats almost inevitably follow. May’s vow to lift the ban on new grammar schools looks to many like an unachievable task. Former education secretary Nicky Morgan and former business minister Anna Soubry are among the Tories leading the charge against the measure (which did not feature in the 2015 Conservative manifesto).  

To this problem, an early election appears to be the solution. The Tories retain a substantial opinion poll lead over Labour, the most divided opposition in recent history. An election victory would give May the mandate for new policies that she presently lacks.

“I don’t believe Theresa May wishes to hold an early election which there is evidence that the country doesn’t want and which, given the current state of the Labour Party, might be seen as opportunistic,” Nigel Lawson told today’s Times“If, however, the government were to find that it couldn’t get its legislation through the House of Commons, then a wholly new situation would arise.”

It is not only Conservatives who are keeping the possibility of an early election alive. Many Labour MPs are pleading for one in the belief that it would end Jeremy Corbyn’s leadership. An early contest would also pre-empt the boundary changes planned in 2018, which are forecast to cost the party 23 seats.

For Corbyn, the possibility of an election is a vital means of disciplining MPs. Allies also hope that the failed revolt against his leadership, which Labour members blame for the party’s unpopularity, would allow him to remain leader even if defeated.

Unlike her predecessors, May faces the obstacle of the Fixed-Term Parliaments Act (under which the next election will be on 7 May 2020). Yet it is not an insurmountable one. The legislation can be suspended with the backing of two-thirds of MPs, or through a vote of no confidence in the government. Alternatively, the act could simply be repealed or amended. Labour and the Liberal Democrats, who have demanded an early election, would struggle to resist May if she called their bluff.

To many, it simply looks like an offer too good to refuse. Which is why, however hard May swats this fly, it will keep coming back. 

George Eaton is political editor of the New Statesman.