Local authorities could in future have to apply for authorisation from a magistrate if they are to use powers under the Regulation of Investigatory Powers Act (RIPA), the Home Secretary has proposed.
Publishing a review into counter-terrorism and security powers and legislation, Theresa May also said the government would end the use of the most intrusive RIPA powers used by local authorities to investigate low level offences.
The Home Secretary added that the government was committed to rationalising the legal bases by which communications data can be acquired by public bodies and, as far as possible, to limit that to RIPA.
The review’s principal finding was that in some areas counter-terrorism and security powers were neither proportionate nor necessary. Major recommendations include replacing control orders with a “more targeted and focused regime”, reducing the period of detention without charge from 28 days to 14 and ending the “indiscriminate” use of stop and search powers under s. 44 of the Terrorism Act 2000.
In relation to RIPA, the review said:
- Magistrate’s approval should be required for local authority use of all three RIPA techniques (use of some forms of communications data such as telephone billing information; directed surveillance; and covert human intelligence sources)
- This approval should be in addition to the authorisation needed now from a local authority senior manager (“at least Director level”) and the more general oversight by elected councillors
- Use of RIPA to authorise directed surveillance (covert surveillance on individuals in public places) only “should be confined to cases where the offence under investigation carries a maximum custodial sentence of six months or more”
- This threshold should not be applied to the use of directed surveillance in corroborating investigations of underage sales of alcohol and tobacco
- The threshold should not be applied to the other techiques of using communications data and covert human intelligence sources “because of their limited use and importance in specific types of investigation which do not attract a custodial sentence”.
On the issue of access to communications data, the review recommended that government departments, agencies, regulatory authorities and communications services providers (CSPs) are consulted to establish the range of non-RIPA legislative frameworks by which communications data can in principle be acquired from CSPs, and for what purposes. (This consultation is already under way).
“These legal frameworks should then be streamlined to ensure that as far as possible RIPA is the only mechanism by which communications data can be acquired,” the review said.
The review’s recommendations were “designed to restore British freedoms while enabling the police and security services to continue to protect the public and national security,” the Home Office said.
The Home Office has also published a report by Lord Macdonald of River Glaven, the former Director of Public Prosecutions, who provided independent oversight of the review process.
In the section of his report on RIPA, the peer said there had been a good deal of public and media concern in recent years that local authority activity in the area had been excessive and inadequately policed. Confidence in the use of RIPA was low, he added.
“The review’s conclusion that a magistrate’s approval should be required before a local authority can conduct any activity under RIPA is well evidenced,” Lord Macdonald suggested. “Such a reform would be a proportionate response to public concern and it would provide a necessary degree of reassurance that local authorities’ use of surveillance is at appropriate levels and properly policed.”
He added that the conclusion that the most serious crime test should only apply to the most serious form of surveillance (directed surveillance) was also well evidenced. “Much low level, but important local authority activity, for example in the area of weights and measures and trading standards, would otherwise by seriously compromised. This would hardly be in the public interest,” he argued.
The review was also right to set the serious crime threshold at offences resulting in terms of imprisonment of six months. “This would allow directed surveillance in cases that warranted it, but not in less serious investigations like dog fouling, or checks into where individuals are living for school admissions purposes.”
Lord Macdonald also agreed that the evidence from local authorities supported the review’s concessions that the serious crime threshold should not apply to investigations into underage sales of alcohol and tobacco “because of the importance of covert surveillance to these investigations, which are very much in the public interest”.
On access by public authorities to communications data, Lord Macdonald said the issue rightly raised major public concern and needed to be addressed with real urgency if public confidence were to be maintained.
The peer suggested it was a “very unsatisfactory” situation that while RIPA was the principle framework under which such data can be acquired, there was a wealth of other statutes under which local authorities can also acquire the information. These other statutes contain significantly fewer safeguards than RIPA does, he pointed out.
According to Lord Macdonald, the review was therefore right to recommend that the general legislative framework is streamlined so that RIPA becomes the only mechanism by which communications data can be acquired by local and public bodies.
“This would do much to lessen abuse and to build public confidence that local authority activity in this area is properly policed, proportionate and conducted with an appropriate respect for privacy,” he concluded. “This work should be given high priority by the government.”
Cllr Mehboob Khan, chair of the Local Government Association’s safer and stronger communities board, suggested that councils should only be using covert surveillance as a last resort and any usage should always be recorded and fully transparent.
He added: “Hopefully this announcement will dispel the myth that all councils use RIPA for is to snoop. In certain cases, it is the only way that they can protect public safety and ensure criminals are bought to justice.”
Cllr Khan suggested that the government had “clearly listened” to the LGA’s arguments and recognised that councils tackle serious crimes which often affect the most vulnerable people in the community.
“Without being able to use covert surveillance, councils would have been fighting crime with one hand tied behind their backs,” he argued. “The LG Group lobbied hard to ensure that councils would also be able to continue using RIPA to tackle irresponsible retailers who persist in selling alcohol and tobacco to children, and we are pleased that the government has seen sense.
But Cllr Khan demanded that if in future councils need to seek Magistrates’ authorisation before using RIPA, then assurances are given that the process will be swift and that investigations will not be hindered. “In urgent cases, immediate access to a judge must be granted and all applications must be heard in private to prevent on-going operations from being undermined,” he said.
“Let’s not forget that it is because of surveillance that councils are putting more benefits cheats and loan sharks behind bars, anti-social behaviour rates are down, serious enviro-crime is being tackled and would-be fraudsters are thinking twice about cheating the system.”
Commenting on the review, Theresa May said: “The threat from terrorism remains serious and complex and I have always said that this government’s first priority is to protect public safety and national security.
“But for too long the balance between security and British freedoms has not been the right one. The measures we are announcing today will restore our civil liberties while still allowing the police and security services to protect us.
“They are in keeping with British traditions and our commitment to the rule of law. I also believe they will restore public confidence in counter-terrorism legislation.”