PLC Public Sector reports:
Recently, there has been much discussion about the use of the surveillance powers contained in the Regulation of Investigatory Powers Act 2000 (RIPA) by local authorities.
The most recent outcry follows the release by the Liberal Democrats of figures claiming that local authorities had used the surveillance powers at least 10,000 times in the last 5 years. They claim that this level of use is far too high and also that those authorising the use are not senior enough.
In this post, PLC Public Sector looks at the scope of these powers and considers what the future may hold for local authority surveillance.
The background
RIPA came into force in 2000 to regulate the use of investigatory powers by public authorities. These powers include:
- intercepting communications;
- the use of surveillance; and
- accessing encrypted data.
The most intrusive of these powers (such as intercepting communications and “intrusive surveillance”) are only available to a limited number of authorities. However, those designated as less intrusive are available to more than 700 public authorities, including local authorities.
It is the use of one of these powers, “directed surveillance”, by local authorities to investigate activities such as suspected:
- littering or leaving bins out to be collected for too long;
- dog fouling; and
- abuses of the schools application system;
that has been habitually criticised in recent years.
The power
RIPA defines “directed surveillance” as surveillance that takes place in a public place but is likely to result in private information about a person being obtained. Section 27 of RIPA states that directed surveillance will be lawful provided that it is authorised in accordance with the requirements of section 28 RIPA.
The control
Section 28 of RIPA sets out who may authorise directed surveillance and what they must take into account when considering whether to authorise any proposed course of action. In the case of local authorities, the surveillance should be authorised by an “Assistant Chief Officer, Assistant Head of Service, Service Manager or equivalent”. They should only authorise surveillance if it is proportionate and for the purpose of preventing or detecting crime or of preventing disorder.
The future
Some local authorities will claim that any list of issues that give rise to the most complaints from the public will invariably feature, for example, dog fouling near the top. Given the existence of this power, why shouldn’t they use it to address something that is clearly of concern to their constituents?
While it is easy to sympathise with the plight of local authorities in trying to address issues such as these, this is a dangerous standpoint to take. The Government has acknowledged that RIPA has been put to good effect by local authorities to clamp down on rogue traders, benefit fraudsters and other criminal activity. However, guidance also makes it clear that the Government considers the use of RIPA for trivial matters such as dog fouling or putting refuse bins out a day early is not proportionate.
In light of the controversy about local authority use of the RIPA powers, the Government has also indicated that it intends to consult on the list of public authorities able to use techniques regulated in RIPA. This consultation will take place against a backdrop of Conservative and Liberal Democrat calls for the powers:
- only to apply to “serious” offences; and
- require a magistrates warrant prior to use.
If a few local authorities continue to use these powers when they are not proportionate, they are endangering the power of others to use them at all. Local authorities should:
- review their use of the RIPA powers – the LGA has previously suggested that this be an annual task carried out by a scrutiny committee;
- make sure they are only using them when it is proportionate – this should take into account the gravity of the “offence” and the liklihood of the surveillance leading to formal action (the Liberal Democrat party survey claimed that only 9% of authorisations had led to formal action); and
- ensure that the authorisation process is recorded and auditable.
Local authorities must also ensure that the use of the powers is signed off at a senior level. The Liberal Democrat party survey suggests that in many cases this was not happening, with 21% of these staff authorising action under RIPA being below senior management grade. If this is the case, not only will it lead to further public outcry (and a likely reduction in the powers of local authorities), but it could also mean that any surveillance undertaken is unlawful.