PLC Public Sector reports:
On research findings published by the campaign group, Big Brother Watch (BBW), in relation to the surveillance operations that public authorities have conducted under the Regulation of Investigatory Powers Act 2000 between 2008 and 2011.
Background to RIPA
The Regulation of Investigatory Powers Act (RIPA) was designed to consolidate certain intrusive and covert law enforcement powers, and to ensure that these powers were exercised in a manner compatible with the European Convention on Human Rights. For an overview of the powers, see Practice note, RIPA: Local authorities and the Regulation of Investigatory Powers Act 2000.
Over the years, there have been various media reports on the extent to which local authorities have used these powers inappropriately for purposes that were not envisaged, such as checking up on a parents’ residence or to detect whether individuals are putting out their bins on the wrong collection day. Following a consultation in 2009 on the exercise of the powers and a review of which public authorities could use the powers, consolidating orders outlining the public authorities that could exercise the RIPA powers (and which raised the seniority of the authorising officer in local authorities for some of the powers) were published. However, the coalition government decided that the local authorities’ powers should be constrained further, resulting in the Protection of Freedoms Act 2012 (PFA 2012), which means that, from 1 November 2012:
- Local authorities will be the only type of public authority that are required to obtain the approval of a magistrate for the use of each of the three covert investigatory techniques available to them under RIPA.
- Where local authorities wish to use RIPA to authorise directed surveillance, it must be confined to cases where the offence under investigation carries a custodial sentence of six months or more.
For more information on the implications of the PFA 2012, see Practice note, Protection of Freedoms Act 2012: public sector implications.
The findings of a report into RIPA
In view of these surveillance regime changes and the additional safeguards, the report published by the campaign group (Big Brother Watch (BBW)) is timely and makes interesting reading. A legacy of suspicion: how RIPA has been used by local authorities and public bodies sets out the group’s findings in relation to the surveillance operations that public authorities have conducted under RIPA between 2008 and 2011. So do the report’s findings evidence an abuse of RIPA by local authorities that justify the government’s changes to the surveillance regime?
Based on the responses received to the freedom of information requests that were made, the report confirms that between 2008 and 2011:
- 345 local authorities in Great Britain conducted RIPA surveillance operations in 9,607 cases.
- 16 local authorities used the RIPA powers over 100 times.
- Five local authorities used the RIPA powers over 200 times.
- The number of RIPA uses of more than 100 had increased.
- One local authority used RIPA powers 37 times for suspected intellectual property crimes and 130 times for suspected sales of age-restricted goods to minors, the highest of any local authority.
- 26 local authorities used surveillance powers under RIPA to spy on dog owners to see whose animals were responsible for dog fouling.
- Seven local authorities had used their powers to investigate suspected breaches of the smoking ban.
However, what is apparent from Appendix H of the report is that the powers have been used mainly used to tackle rogue traders, anti-social behaviour, fly tipping, breaches of trading standards, licensing breaches, sale of alcohol to minors and to tackle fraud. It is unlikely that a magistrate would not give approval to a local authority using the RIPA powers to conduct an investigation into these types of offences. As the Local Government Association pointed out in its response to the report, local ratepayers expect councils to tackle issues such as rogue traders and benefit fraudsters operating in their area and it would be harder to do this without these powers. What the BBW figures show is that in fact local authorities are using the power sparingly given that, on average, a local authority uses these powers less than ten times a year and national statistics show that local authority requests for communications data make up only 0.3% of all requests received.
The report’s recommendations
The BBW report makes some interesting recommendations. Although BBW recognises that the PFA 2012 introduces a long overdue need to safeguard against unwarranted local authority surveillance, its view is that local authorities are only the tip of the iceberg and that public authorities, many of which serve no law enforcement function, are able to use the RIPA powers to place members of the public under surveillance. Although many claim to be doing this in relation to specific investigations, BBW’s complaint is that they are denying access to the information which supports this assertion while other public authorities refuse to confirm or disclose any details of how they are using the powers. Therefore, BBW advocates the need for a comprehensive overhaul of RIPA rather than addressing its deficiencies with piecemeal amendments in other pieces of legislation, as BBW considers that this will only exacerbate an already complicated and “dysfunctional legal framework”. BBW’s view is that its report serves two purposes namely that it:
- Highlights the secrecy surrounding how public authorities use RIPA and their determination to avoid scrutiny.
- Offers a benchmark of local authority use so the new system of magistrate approvals can be compared with the number of investigations undertaken before such approval was needed.
Given its criticisms that the legislative framework of surveillance is not offering proper safeguards against abuse or transparency, BBW recommends that:
- Organisations using the powers in RIPA should be required to publish standard information about the nature of surveillance, the offences pursued and the number of convictions secured.
- Judicial authorisation of surveillance should be extended to cover all public authorities.
- Before any further surveillance legislation is considered, there should be a comprehensive review of RIPA and whether a provision for individuals to be notified about RIPA surveillance once an investigation has concluded and charges are not forthcoming should be adopted.
It will be interesting to see what impact the additional safeguards that the government has imposed in the PFA 2012 will have on local authorities’ future use of the powers in RIPA and whether it will take on board BBW’s criticisms of the regime.