The following is an extract from an earlier post by Harriet Wistrich, solicitor for this case, in which she explained the original Tugendhat judgement.

When deciding how to plead the women’s claims, we were aware of the risk that the police could argue that the Human Rights Act claims could only be heard in the Investigatory Powers Tribunal. However, we considered that there was a powerful argument as to why in this particular case that would not be appropriate.

Central to our submissions was an argument concerning an analysis of RIPA (the Regulation of Investigatory Powers Act 2000) and our interpretation of what the legislators intended. RIPA is, as Justice Tugendhat acknowledged, “a long and complicated statute”.

We argued that if you look at the legislation as a whole, it is clear that the forming of sexual relationships by undercover officers could never have been contemplated by Parliament as conduct that could be authorised within the regime they created. That is because there is a clear hierarchy within RIPA about what are regarded as the most serious and intrusive forms of conduct; that conduct requires a higher level of authority in order for it to be authorised.
Parliament decided that if the police want to tap somebody’s phone, this conduct has to be authorised by a Secretary of State.

On the other hand, Parliament decided that the activities of a CHIS (Covert Human Intelligence Source – which includes undercover police officers) only requires authorization by somebody of Superintendent level. Parliament furthermore decided that such authorisations only need to be reviewed annually.

We argued that if Parliament had contemplated the idea that authorisations of CHIS activity could include forming sexual relationships with targets, then this would have been explicitly provided for. Clearly such conduct is more intrusive than telephone tapping, involving very serious interference with the right to private life and the right to bodily integrity.
So if Parliament had contemplated such relationships being covered by RIPA it is likely that it would have required authorisation by – at the very least – a Secretary of State, rather than a police Superintendent.

Given the seriousness of the interference with fundamental rights occasioned by the use of such relationships, we argued that the principle of legality requires the statute to be interpreted as excluding the use of sexual relationships. Sexual relationships are not expressly provided for, nor can it be said that the statute refers to them by necessary implication.

This is an extract from a longer explanation by campaign solicitor Harriet Wistrich, ‘Explaining the judgment over secret tribunal’.

Why the Human Rights claims should not go to secret court – legal points
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