RIPA and the ECHR’s prohibition of discrimination on the basis of nationality

Article 14 of the ECHR prohibits discriminating against people in regard to their enjoyment of the rights and freedoms provided by the Convention “on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, birth or other status.” As explained in our post, “RIPA’s protections against reading of communications,” s.16(2) of RIPA prohibits factors referring to a person known to be residing in the UK from being used to select his or her communications for examination. The Complainants alleged that since people of UK nationality are more likely than others to be in the UK, 16(2) violates Article 14 of the ECHR by indirectly discriminating against people on the basis of national origin.

In ruling that Article 14 was not violated, the IPT reasoned that the ECHR requires a “very weighty” justification for direct discrimination on the basis of national origin. By contrast, indirect discrimination need only have a “rational justification.”  Judgment of December 5, 2014, para. 144 (citation omitted). To find that any indirect national origin discrimination resulting from 16 (2) was rationally justified, the IPT relied on the stringency of the requirement in s.16(3) of RIPA for circumventing 16(2)’s prohibition of targeting. Under 16(3), the Secretary of State must certify that examining the particular person’s communications is necessary for national security, the detection or prevention of serious crime, or the economic wellbeing of the UK.

The IPT reasoned that if 16(2)’s distinction between people within and outside the UK were eliminated, a 16(3) certificate would be required whenever communications intercepted under 8(4) were selected for examination. Since “it is harder to investigate terrorism and crime abroad, [it would be] difficult if not impossible to provide a case for a certificate under s. 16(3) in every case.” Id. at 147, 148. Invoking, but not disclosing, figures provided to it in the closed hearing, the IPT further found that “[t]he numbers of those involved if s.16(3) certificates were extended to those abroad would inevitably be very substantial.” Id. Hence, since eliminating 16(2)’s geographical distinction “would radically undermine the efficacy of the s.8(4) regime,” any indirect discrimination that the distinction caused was rationally justified. Id.

Having found that the 8(4) regime complied with Articles 8, 10, and 14 of the ECHR, the IPT concluded that if it exists, the Tempora Program is lawful.

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