Consent – and the mess the EU Data Protection Burghers are going to get themselves into

Last week, on 29 October, the European Commission announced that it had moved to the second phase of an infringement proceeding over the UK to provide its citizens with the full protection of EU rules on privacy and personal data protection when using electronic communications.

Apparently, there is a gap in the law. The Regulation of Investigatory Powers Act 2000 (RIPA) authorises interception of communications not only where the persons concerned have consented to interception but also when the person intercepting the communications has ‘reasonable grounds for believing’ that consent to do so has been given. However, the “EU Data Protection Burghers” have declared that these provisions do not comply with EU rules which define consent as “freely given specific and informed indication of a person’s wishes”.

Unless a satisfactory response is received, the UK may be referred to the European Court of Justice.

What a load of rubbish. When was the last time that the British Government really observed such a narrow definition of “consent”?

I thought I would test this definition by comparing the legislation that has been nodded through Parliament with the commitments made to the electorate in the Labour Party’s last manifesto, published in April 2005, which set out their programme should they win the General Election in May 2005. If we have to live within the confines of our “privacy policies”, then perhaps so ought they.

But a 112 page pocket size booklet is a lot harder to read than most of the privacy policies out there.

What did it say about the Europe and the new Constitutional Treaty? Oh yes - page 84 explains that “It strengthens the voice of national parliaments and governments in EU affairs. It is a good treaty for Britain and for the new Europe. We will put it to the British people in a referendum and campaign whole-heartedly for a “Yes” vote to keep Britain a leading nation in Europe”.

And we all know what happened to that commitment. It was ignored.

Perhaps the Conservatives realised that they didn’t really stand a chance of winning, which is why their manifesto was only 29 pages long. Not much point in issuing a detailed explanation of promises you know you aren’t going to be expected to keep. Their "privacy policy" was much more succinct. At the very bottom of the last page (page 29) they proclaimed that “Within the first day, we will set a date for the referendum on the European Constitution, in which we will campaign for a “no” vote".

And we all know what happened to that commitment. Today, after the leader of the Czech Republic had signed the treaty, the commitment was annulled.

I then decided that there was more to life than looking at political manifestos, and will await the publication of a learned article from a political scientist who has looked more closely at the 135 Acts and some 15,694 Statutory Instruments that have appeared since May 2005. How many of these were anticipated in the Labour Party’s manifesto? And, to what extent has the consent of the British electorate been “fairly obtained” in all of those cases?

But my point is a serious one. Why should these “Burghers” be allowed raise the bar so high in creating a concept of “consent” if they so blissfully ignore similar standards when national politicians seek a mandate to rule us more generally?

If the EU thinks it’s on a winning streak by criticising our RIPA provisions, then it’s going to have its work cut out should it ever be invited to examine some of the other pieces of legislation that Parliament has recently nodded through.