RIPA: Practical implications of the Protection of Freedoms Bill
Councils will need to start considering how they use surveillance powers to tackle fraud, fly-tipping and other serious crimes, writes Councillor Mehboob Khan.
The Protection of Freedoms Bill, which passed the final Report Stage in Parliament on 31 January, sets out a number of changes to RIPA, the legislation covering powers of surveillance.
One way in which Government proposes to provide independent scrutiny is a proposal that councils have to apply to magistrate’s courts to authorise the use of covert surveillance techniques. It is this measure that means councils will have to start planning ahead.
The changes proposed by the government mean councils will no longer be able to use surveillance to tackle some issues, such as littering and dog fouling, which have attracted public concern over the last few years. I understand these concerns and the government’s desire to respond to them, and there are of course other means councils can use to address these problems.
RIPA
Sometimes the use of surveillance is the only way councils can protect public safety and ensure criminals are bought to justice. This surveillance ensures that councils are putting more benefits cheats behind bars, anti-social behaviour rates are down and would-be fraudsters have cause to think twice about cheating the system. It also helps councils to protect people from crimes such as illegal lending by loan sharks, stopping the importation of illegal and dangerous toys that could kill children, crack down on child labour gangs and prevent rotten meat from being sold in markets.
RIPA provides safeguards to ensure that where councils undertake directed surveillance, use covert human intelligence sources (CHIS) or access communications data, their usage is always recorded and fully transparent. Furthermore, RIPA regulates councils in a manner that is compatible with the European Convention of Human Rights and Fundamental Freedoms, which is incorporated into domestic law by the Human Rights Act 1998.
I believe councils should only be using covert surveillance as a last resort, where it is necessary and proportionate to do so for the purpose of preventing or detecting crime or preventing disorder. Any usage is always recorded by the council involved. Councils are already subject to both internal and external oversight, including being inspected by the Surveillance and Interception Commissioners’ offices that provide an independent scrutiny role, and report direct to the Prime Minister each year.
Standing Orders and Constitutions
As Chair of the LGA’s Safer and Stronger Communities Board, I welcome the fact that government has listened to our lobbying, on behalf of members, to ensure that it is an officer of the council, rather than someone legally qualified such as a solicitor, who can apply to the court to authorise surveillance. We have also ensured that the powers can be used for any crime which attracts a minimum sentence of six months. This brings RIPA into line with procedures generally used when applying for warrants, while ensuring that it can be used for a comprehensive range of crimes.
The LGA has conducted talks with both the Magistrates Association and the Home Office and agreed that a light-touch approach to this is the best way forward. It also maximises efficient use of resources, by allowing legal professionals to focus on more complex issues.
It is of course down to individual councils to determine who the most appropriate representative is, but I would strongly encourage councils to assess the risk of the activity and opt for delegating to a frontline worker rather than a legal representative. RIPA often requires a rapid application and detailed working knowledge of the specifics of the case. The frontline worker will be best placed to answer questions on these matters and will be able to provide the most compelling argument for the use of surveillance powers.
However, this does mean that councils will need to examine those documents – whether Standing Order, Constitution or Executive Decision – that provide powers of delegations to specific job titles or even named individuals to ensure that the right people are authorised to represent the council before the magistrate. Those councils who need to amend these orders should start the process now, before the Act commences; currently planned for mid-May.
New Processes
Under the proposals, councils will have to apply to the Magistrate’s Court or Sherriff (in Scotland) before RIPA can be used to access:
- communications data (in the UK) or
- authorise directed surveillance or
- a Covert Human Intelligence Source (CHIS) (in England, Wales and Northern Ireland).
The Court will assess the application against the relevant sections of RIPA, and if it agrees, grant an order authorising the action.
There is also a proposal within the Bill that subordinate legislation may be introduced. The Government has indicated that for directed surveillance and use of a CHIS (definition below), this will require that an additional ‘serious crime’ definition must be met. Such activities will only be authorised if the offences have a statutory penalty of six months' imprisonment or more. The LGA has worked with the Government on these proposals to ensure that statutory penalty was reduced to six months' imprisonment, rather than three years and that there will be certain exceptions in relation to the illegal sales of alcohol and tobacco to juveniles, where there is only a maximum fine rather than any imprisonment on conviction.
There is also an important distinction to be made on the definition of serious crime particularly from an enviro-crime angle. For example, fly tipping is a serious crime, littering such as the act of dropping a crisp packet is not.
Definitions
Interception of communications data: this is where the content of letters/emails can be read. Councils CANNOT intercept communications data. They CANNOT tap or listen to telephone conversations or read emails or mail.
Acquisition of communications data: councils can make requests of communications data providers (e.g. O2, BT etc) for subscriber information (i.e. details of who owns a phone number or email address etc) and billing information (i.e. details of phone numbers or emails contacted).
Directed surveillance: this is a type of covert surveillance through which public authorities follow an individual in public and record their movements. Directed surveillance can be lawfully undertaken to obtain private information about a person if public authorities reasonably suspect that a person has committed, or intends to commit, a crime. A council may only authorise directed surveillance to prevent and detect crime or prevent disorder. For most test purchasing (where no private information is obtained e.g. in a retail store) no authorisation is required.
Covert Human Intelligence Sources (CHIS): this may be used by a council where a person establishes or maintains a covert relationship for the purpose of obtaining information. Councils can use CHIS to effectively establish relationships in such scenarios as illegal money lending, counterfeit goods etc.
Councillor Mehboob Khan is the Leader of Kirklees Council, West Yorkshire and Chair of the Local Government Association’s Safer and Stronger Communities Board. He is also a member of the LGA Executive and a board member of the Standards for England.
