Home Office Consultation Paper on the Regulation of Investigatory Powers Act 2000

BOROUGH OF POOLE

COUNCIL EFFICIENCY AND EFFECTIVENESS OVERVIEW AND SCRUTINY COMMITTEE

2ND JULY 2009

HOME OFFICE CONSULTATION PAPER ON THE REGULATION OF INVESTIGATORY POWERS ACT 2000: REPORT OF THE HEAD OF LEGAL AND DEMOCRATIC SERVICES

1.0 PURPOSE OF REPORT

1.1 The Government recently published, through the Home Office, a consultation paper into the consolidating orders and codes of practice issued under the Regulation of Investigatory Powers Act 2000 (RIPA). Essentially, the consultation paper asks whether any additional safeguards should be built into the RIPA process, particularly in regard to Local Authorities. This Report deals with the consultation paper and asks whether Members wish to make any response.

2.0 RECOMMENDATIONS

2.1 Members are recommended to consider the information in this Report and indicate what, if any, response should be recommended to the Portfolio Holder for Resources in relation to this consultation paper.

3.0 BACKGROUND

3.1 The Regulation of Investigatory Powers Act 2000 regulates the use of a wide range of covert investigatory techniques that are available to central Government agencies, the Police, and other public authorities, including Local Authorities. Not all methods and techniques are available to all agencies, but as Members will be aware, Local Authorities have the power to undertake surveillance in certain circumstances for the prevention and detection of crime.

3.2 As Members will also be aware, the use of surveillance by Local Authorities and in the wider sense in society at large, has been the subject of widespread comment in the last couple of years. The Borough of Poole has been involved in some of that publicity as a result of certain surveillance undertaken in relation to school admissions.

3.3 The relevant Overview and Scrutiny Committee and Cabinet agreed that surveillance would no longer be used in school admission cases. However, the Local Authority still has the powers to undertake surveillance and these exercises are carried out from time to time when considered appropriate. 3.4 As the consultation paper makes clear, for many years public authorities have used a wide range of covert investigatory techniques. Until the introduction of the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000, most of these techniques were available for use free from statutory control. RIPA addressed this situation. It is not anti- terrorism legislation, and it did not create any covert powers. It did not give public authorities access to covert investigatory techniques for the first time, rather, it created a regulatory framework to govern the way public authorities used these techniques. It also provides a protection against claims of interference with individuals human rights when used appropriately.

3.5 The Borough of Poole is committed to using surveillance in a reasonable and proportionate manner. Although media coverage has tended to sensationalise the use of RIPA by Local Authorities, the Borough of Poole is on balance a low user of these techniques and its authorisation processes have been noted by the inspection regime as appropriate.

3.6 In the light of recent public concerns, however, the Government is particularly interested in proposals concerning the way Local Authorities use techniques under RIPA. The Government is clear that techniques authorised under RIPA should not be used for trivial purposes, such as investigating dog fouling offences. In order to ensure Local Authorities only use techniques under RIPA when it is appropriate to do so, the Government is proposing raising the rank at which RIPA authorisations can be granted within Local Authorities to Senior Executives. It is also considering creating a role for elected Councillors in overseeing the way in which Local Authorities use RIPA techniques. Members’ attention is drawn to the papers attached to this Report which are an extract from the consultation paper setting out the introductory question and answer section which should be of assistance in considering this matter. The next section of this Report considers the questions posed by the consultation exercise and offers some commentary.

3.7 Consultation Questions

Question 1

Taking into account the reasons for requiring the use of covert investigatory techniques under RIPA set out for each public authority, should any of them nevertheless be removed from the RIPA framework?

Although the Borough of Poole makes quite limited use of RIPA (on average fewer than 10 applications per year) it is considered that covert investigations are a necessary tool for Local Authority enforcement work and some significant cases would not be able to be tackled in an effective manner if RIPA protections were not available. The consultation paper particularly highlights the work that Local Authorities do in connection with Trading Standards investigations, some of which can be of high value and involve a significant degree of criminality. The Council does not have a strong view about other public authorities who may or may not be involved in the RIPA framework, but LACORS and the LGA still believe that used appropriately, RIPA is an important factor in Local Authority enforcement and investigation work.

Question 2

If any public authority should be removed from the RIPA framework, what, if any, alternative tools should they be given to enable them to do their jobs?

As the consultation paper makes clear, RIPA provides a protective framework within which certain enforcement and investigatory work can be undertaken. If Local Authorities were removed from the ambit of RIPA, then they would still be able to undertake covert investigatory work (unless the Government specifically legislated to prevent this), but they would not have the protection given by RIPA against claims under the Human Rights Act. Parliament has sought to endow local Government with a wide range of significant enforcement powers under a wide range of legislation over the years, and in order to effectively discharge these powers in the most serious cases, the protection given by RIPA should continue to be extended to Local Authorities.

Question 3

What more should we do to reduce bureaucracy for the Police so that they can use RIPA more easily to protect the public against criminals.?

It is not really the place of the Council in responding to this consultation paper to comment on Police matters. There does appear to be a clear bias in the consultation paper against Local Authorities and, interestingly, in favour of the Police in this case. Whilst the Police obviously have a key role in preventing and detecting crime, so long as surveillance is used appropriately and proportionately by Local Authorities, there should be no real difference in the regimes in place, unless the Government is going to legislate to take such powers away from Local Authorities entirely. The Civil Liberties issues raised as a result of sensible use of RIPA by Local Authorities are surely no different to those in relation to the Police.

Question 4

Should the rank at which Local Authorities authorise the use of covert investigatory techniques be raised to Senior Executive?

The current level of authorisation is Service Unit Head and above. There would appear to be no particular objection to raising the level of authorisations, for instance to Strategic Director/Chief Executive only, but these Officers would need to be appropriately trained and would be likely to rely upon the advice of practitioners in the field in any case. It is suggested that there will be no real objection to this if it ensured greater public confidence in the system. However, press coverage to suggest that junior or ‘middle ranking’ Officers have been authorising surveillance in Local Authorities is, frankly, misleading.

Question 5

Should elected Councillors be given a role in overseeing the way Local Authorities use covert investigatory techniques?

This is an interesting question, and the Use of Surveillance Working Party established by Cabinet will be looking at this in due course. There are a number of pros and cons. Benefits might include greater public confidence that there is ‘independent’ oversight of the actions of Officers, and cons include potential difficulties for Members if they get involved in enforcement decisions, potential prejudicial interests and becoming embroiled in controversial/operational decision making. In line with the normal way we operate, Councillors would set the framework and policies with regard to enforcement, but individual decisions would be made by Officers to avoid any suggestions of undue influence on the part of Members and to ensure that decisions are taken by people who are fully trained in the field. The Council has already, however, put in place a system of regular reporting of such decisions to Management Team and to Cabinet to ensure greater transparency.

Question 6

Are the Government’s other proposed changes in the consolidating orders appropriate?

The other changes to the codes of practice are largely to reflect recent legal and operational developments. The revised codes are intended to provide greater clarity on when certain techniques should or should not be used, including by Local Authorities, and they will:

 ensure that the tests of necessity and proportionality are better understood and applied lawfully  require constituents’ communications with MPs on constituency business to be treated in the same way as other confidential material  reduce bureaucracy for the Police and other public authorities by providing greater clarity on when authorisations are not needed.

It is suggested that the Council would support anything which gives greater clarity in connection with issues surrounding RIPA. The Council has found itself at the centre of debate surrounding the appropriate use of surveillance and it is keen to ensure that the work we do accurately reflects public opinion, but also the need for robust enforcement work to be undertaken.

4.0 LEGAL IMPLICATIONS

4.1 There are no direct legal implications. Any consequential changes to the RIPA regime will be accommodated by the Council in its processes. 5.0 FINANCIAL IMPLICATIONS

5.1 There are none arising from this Report.

6.0 EQUALITY IMPLICATIONS

6.1 There are none arising from this Report.

7.0 RISK MANAGEMENT IMPLICATIONS

7.1 The Council needs to maintain a sound process for the granting and recording of authorisations to ensure that it adheres to legal requirements. The Council is regularly inspected by the Surveillance Commissioners and any recommendations are acted upon.

8.0 CONCLUSIONS

8.1 Comments on the consultation paper are requested by the 11th July 2009. It is suggested that in order to meet this deadline a response be made by the Portfolio Holder for Resources on behalf of Cabinet, taking into account the comments made by the Council’s Efficiency and Effectiveness Overview and Scrutiny Committee on the 2nd July 2009.

T M Martin, LL.B Solicitor Head of Legal and Democratic Services

22nd July 2009