Sunday 27 January 2008

HUMAN RIGHTS CHALLENGE TO RIPA?

Outlaw.com has a mildly speculative piece about the possibility that the recently introduced provision (under the Regulation of Investigatory Powers Act) to force the handover of encryption keys could be challenged under the Human Rights Act.

Insofar as this is accurate, it is both very welcome and potentially very far-reaching. It infers that, intriguingly, a whole raft of anti-privacy-related legislation (varying from the security regimes at airports, through ContactPoint, all the way up to ID cards) could be subject to the same sort of risk. Indeed, if any such action were ever to be tested in the Courts, it could even have ramifications for the current inadequacies of the requirement of Ministers to make Section 19 declarations under the terms of the Human Rights Act on the face of all Bills presented to Parliament.

However, as the piece makes plain, the current law has been drafted so that, in essence, the State can both 'have its cake and eat it'. As it points out the difficulty is that the 'European' equivalent to a 5th amendment right is not absolute but will rely upon the interpretation of the courts in the circumstances of the case - an elegant solution for the State but, I venture to suggest, not one that works particularly well in the interests of the citizen.

Nevertheless the article does raise two specific issues in my mind. First there is the issue as to whether the appropriate safeguards - level of authorisation, &c - are sufficiently well-defined in statute and are adequately transparent and accountable. I question that. Second, as William Malcolm observes in the article: "The whole purpose of the Regulation of Investigatory Powers framework is to place on a statutory footing, on a transparent footing, the way in which law enforcement agencies and national security agencies access these materials". In other words, its purpose is to deliver legal certainty. But, on the basis that the current policy may be challengeable in the courts and that the outcome of any such challenge would be dependent upon how the relevant court interpreted the circumstances of the case and theavailable evidence, that certainty simply does not exist.

Not for the first time, the policy-makers and legislators seem to have managed to make a pig's ear out of a silk purse!!! Still, we shall see.

No comments: