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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Emmanuel Macron: a populist eruption from the liberal centre

The French presidential candidate has been compared with a young Tony Blair.

The French presidential candidate Emmanuel Macron came to town this week to meet Theresa May and address the London French community, whose votes he was chasing. In our age of extremes, Macron, who is 39, is that rare thing – a populist eruption from the liberal centre. A former merchant banker and economy minister in the failing Hollande Socialiste administration, he represents En Marche! (“Forward!”), which is less a party than a movement. His sudden rise would not have been possible in Britain, which is part of the stability and attraction of the parliamentary system but also its frustration.

Don’t be shy

I met Macron on Tuesday afternoon when he took questions from a small group of journalists at Central Hall Westminster. He is small and dapper, with short hair and a strong, straight nose. Because of the collapse of the Socialistes and the struggles of the discredited conservative contender François Fillon, Macron has emerged as the great hope of liberals and perhaps as the candidate to stop Marine Le Pen seizing the presidency. Unlike the Front National leader, Macron is an unashamed liberal globaliser in the model of Nick Clegg or a younger, less tormented Tony Blair. He is a passionate advocate of the EU and of the eurozone and, as a result, is under attack from the Russian media. He has been accused of leading a double life – his wife, whom he met when she was his schoolteacher, is 20 years older than Macron – and of being unwilling to admit that he is gay, or at least bisexual. His response to the Russian attacks was, he said, “to disclose the manipulation and kill the rumours”.

The far right in France has caricatured Macron as being “globalisation personified”, about which he is relaxed. In conversation, he criticised David Cameron’s referendum campaign. “His message was ‘Yes but . . .’ That is not the answer to ‘No’. I defend Europe and the four freedoms of the EU. If you are shy, you are dead.”

Not all relative

On Sunday, I received a text from one of my cousins. “The Lincoln City manager and his brother, the assistant, are called Cowley,” he wrote. “His father looks a bit like your father. Any relation? They are from Essex.” I am also from Essex, born and brought up in Harlow new town, which turned 70 this year. But I had to disappoint my cousin. My father was an only child, as was his father, so it’s highly unlikely that these Cowley brothers are even distant relations of mine.

Toast of the county

I already knew about the brothers, having been alerted to them by my seven-year-old son, who is a sports data enthusiast. Last season, Danny Cowley and his younger brother, Nicky, were working as teachers in Essex while coaching Braintree Town at weekends. This season, they have led Lincoln to an FA Cup quarter-final against Arsenal, making them the first non-League team to reach the last eight in more than a century. Lincoln are also at the top of the National League (English football’s semi-professional fifth division) and in the quarter-final of the FA Trophy, the premier non-League cup competition. The Cowleys are reported to be subsisting on a diet of toast and Marmite as they rise early each morning obsessively to study videos and analytics and prepare for the next match. They have introduced a new spirit of openness at the previously moribund club: fans watch training sessions and attend press conferences.

It’s nonsense to believe, as some do, that only those who have performed at the highest level have the authority to coach the best. Wenger, Mourinho, Sven-Göran Eriksson, Roy Hodgson, André Villas-Boas: none of them were even remotely successful players. Asked once to explain his accomplishments, Mourinho said: “I’ve had more time to study.” More English coaches – so few of whom are working in the Premier League – would do well to follow his example.

It will be fascinating to see how far the Cowley brothers progress in the game. Whatever happens next, they have reanimated interest in the FA Cup and given the resilient yeomen of Essex a small boost.

Ignore the huckster

Boris Johnson accused Tony Blair of “bare-faced effrontery” for having the temerity last week to deliver an anti-Brexit speech, which itself was an act of bare-faced effrontery. Johnson is a huckster and narcissist whose vanities have been grotesquely indulged for far too long by his cheerleaders and paymasters in the media. (A standard question to Johnson when he was mayor of London: “You do want to be prime minister, don’t you?”) No one should take anything Johnson says remotely seriously. Should the same be said of Blair?

Yes, of course he is the author of his own misfortunes and many will never forgive the former Labour prime minister for the Iraq catastrophe. Yet of all the politicians I have spoken to in recent times, Blair was the most intellectually nimble and the most alert to the defining complexities of the present moment. As he demonstrated in his speech, he also understands better than most why, in an age of intensifying ethnic nationalism, the parties of the left are failing across Europe, none more so than the British Labour Party, which looks as far away from power as it did after the 1931 election.

Journey to the centre

As an energetic and charismatic liberal, Macron has been likened to the young Tony Blair. Can he seize the progressive centre, as Blair did, and destabilise the old binary divisions of left and right? “The anti-European and anti-globalisation extremes are winning elections,” he said, in a veiled reference to Donald Trump and the vote for Brexit. “But we don’t have the same political cycles as the others. It’s time for France to do the opposite.” With that said, he thanked his interlocutors and was hurried off for a meeting with another Essex man, Philip Hammond, pursued not by a bear but by the journalist Robert Peston. 

Jason Cowley is editor of the New Statesman. He has been the editor of Granta, a senior editor at the Observer and a staff writer at the Times.

This article first appeared in the 24 February 2017 issue of the New Statesman, The world after Brexit