The Surveillance Commissioner’s fifth (RIPA) contains some interesting insights on into his views on the government’s plans to revise RIPA, in particular on the changes that will affect the surveillance powers conferred on local authorities in England and Wales. The provisions of RIPA, originally designed to intercept communications from terrorists and organised criminals, have been used by local authorities to investigate potentially fraudulent school applications and by welfare agencies to catch benefit cheats.
Following its review of counter-terrorism and security powers, the government decided that the use of directed surveillance powers by local authorities should be subject to a magistrates’ approval mechanism and proposed various procedural changes in the Protection of Freedoms Bill (Bill). However, the Commissioner’s report warns that these proposals will impose costs and reduce accountability. In addition to this warning, his report identifies the following issues that will be of interest to local authorities.
- He is satisfied, from the investigations that have been carried out, that public authorities are complying with RIPA in their use of the powers.
- He does not understand why local authorities should be required to seek magistrates’ approval for their covert surveillance given his “broad satisfaction” that local authorities are exercising their powers properly. In relation to the Bill’s proposals, he sees no reason why local authorities should be treated differently from other public authorities. Indeed, his report warns that raising the threshold at which local authorities can make use of RIPA will reduce his ability to assure Parliament that surveillance is being managed appropriately.
- Statistics for covert surveillance show that local authorities are using the powers sparingly with over half of them granting five or fewer authorisations for direct surveillance and 16% of local authorities granting none at all.
- Local authorities’ use of covert human intelligence sources (that is, undercover investigators) is equally sparing. In the period covered by the annual report, 86% of local authorities had not hired detectives and 97% of local authorities only made use of such resources five times or less.
- The Commissioner repeats his previous criticisms of the use of template wording in authorisation forms that makes it difficult for an authorising officer to assess proportionality. His investigations reveal a tendency to confuse the role of the applicant (who provides the intelligence underpinning the investigation and requests specific methods and equipment) and the role of the authorising officer (who decides whether the application meets the test of necessity and proportionality). He intends to publish guidance shortly, which will emphasise the importance of ensuring the methods of investigation and the proposed plan of action are clearly set out. It is not enough for an application to state that the particular activity is necessary and proportionate. Authorising officers must apply their minds to the relevant criteria of the case rather than simply repeating or endorsing the application.
- Police authorities have powers in the Police and Crime Act 2010 to collaborate on covert surveillance. Although some local authorities are engaging in joint ventures, the Commissioner considers there is a difference between covert surveillance legislation and other local government legislation that enables one local authority to delegate its powers to another. He is therefore seeking clarification from the Home Office on whether there is a difference between shared services and joint ventures in the context of covert surveillance collaborations.
- Local authorities may legitimately delegate some powers to private companies (such as housing authorities and arms-length management organisations) which are not designated as a public authorities by RIPA. However, in these circumstances, the Commissioner considers that local authorities should make this fact clear in the authorisations and that private companies must be bound by the terms of the authorisation.
The overwhelming thrust of the Commissioner’s report is that he is satisfied that any criticisms he makes in the report are not the result of deliberate malpractice. Given the Commissioner’s opposition to the Bill’s requirement that local authorities seek prior approval for covert surveillance from magistrates, which he gave in writing at the Committee stage, it will be interesting to see whether his expressed views are reflected in the final version of the Bill. Although privacy campaign groups have called for local authorities to lose their powers of intrusion under RIPA, the Commissioner’s report suggests that the Bill’s proposals to rein in their powers may not be necessary.