I have submitted the following in response to the Home Office consultation entitled: Regulation of Investigatory Powers Act 2000: Consolidating orders and codes of practice. The consultation ran for twelve weeks to the 10th of July 2009.

Should Councils be Allowed To Snoop?

Should councils conduct covert investigations which are regulated under the provisions described in RIPA is a key question which is implicitly raised by the consultation, even though it is not explicitly asked. My view is that generally, serious fraud and other criminality ought be investigated by police officers and not council officers. If such a case is not serious enough to call in the police over, then generally I do not believe the use of covert investigatory powers would be proportional. The following case study, presented in the consultation document, appears to me to be an example of a covert investigation carried out by a local authority which would have been more appropriately carried out by the police:

Birmingham City Council has used service use and subscriber data, as well as directed surveillance, in illegal money lending investigations. In one case, a violent loan shark, Kim Cornfield, lent small amounts of cash, but charged extortionate interest rates, including one of 15,000%. He used threats of violence and physical abuse to enforce payment. He demanded ‘payment in kind’ from women who were not able to repay him. While subject to an injunction, he used his mobile phone to text victims to threaten them with violence if they gave evidence against him. Service use and subscriber data demonstrated that he had sent the text messages received by the victims. Faced with the evidence against him, he pleaded guilty to blackmail and illegal money lending. He was sentenced to two years in prison in February 2006.

Cambridge City Council, my local council, has used covert surveillance to tackle drug dealing, arson and violence. These are further examples of cases where I believe investigations ought not to have been led by the council but by the police. I believe that as a country we would get better value for money if more of the resources directed to local council spying staff were given to the police. I believe that more police officers would do more to make the country safer, fairer and more productive than an army of council snoopers.

There are however many aspects of councils’ work where it would be inappropriate for the police to take the lead, but where covert surveillance is in the public interest. In my view such areas would include environmental health, trading standards and some fraud related to council housing and benefits. The requirement for proportionality in the use of covert techniques, and where possible and practical only using covert techniques as a last resort after other options have been tried are principles I believe ought to be set down at a national level. The judgement of what counts as proportional, and how much work has to be done before covert techniques are considered, ought be made at a local level and following policies set by elected councillors.

Oversight by Elected Councillors

The consultation document explicitly asks the question of: “Should elected councillors be given a role in overseeing the way local authorities use covert investigatory techniques?”. This consultation question implies councillors do not currently have an oversight role; I disagree with that. My local councillors, both at district and county level, have reviewed their council’s usage of RIPA authorised spying in the last year. Councillors are already responsible and accountable for the actions of their councils with respect to all matters, including covert investigations. When I have considered my local council’s use of its spying powers disproportionate and unwarranted (they set up hidden cameras to monitor independent punters) I have been able to write to councillors and speak at council meetings to raise my concerns. At election time I am able to take into account candidates’ performance and policies relating to the use of intrusive surveillance when deciding how to vote.

Councillors do not have an operational role, and do not authorise specific covert operations, they do however set policy. I think this state of affairs ought continue. I would not like to see councillors given any aspect of the authorisation role. I would like to see councillors’ role strengthened. I think councillors ought be regularly reviewing the general classes of cases in which covert investigations are carried out. Councillors ought also approve local guidance to officers on proportionality, including agreeing protocols detailing steps to be taken prior to the consideration of a covert investigation. Before a council uses a particular covert investigation technique for a new purpose I believe that application ought be approved by elected councillors.

Giving local councillors a greater role has the side effect of encouraging better people to stand, and getting more people interested in the electoral process, thereby strengthening democracy and improving society and the country more broadly.

An item for central government to determine is the minimum standards councillors and councils ought be working to. I would suggest that such minimum criteria ought be laid down in law, and should include:

• Annual statistical reporting on the use of RIPA authorised investigations broken down by council department, and general reason for the investigation.
• Annual approval of the purposes for which the council is to use covert investigatory techniques via a vote of at a full council meeting, with each members’ individual vote being recorded. (Urgent additions of new purposes could be done by a delegated committee or executive councillor between reviews.)
• Identification of an executive councillor and/or committee responsible for local democratic oversight of covert investigations within the council.
• Councils should be required to publish their own codes of practice, guidance, procedures etc. with respect to covert investigations. These should make clear what techniques the council uses (or is prepared to use) and in what circumstances. Councils ought also publish their policies for reacting to requests for covert investigations arising from, and authorised by, other bodies. An example would be a police force RIPA authorisation being used to justify a local council operated CCTV system monitoring an individual.

I would also like to suggest councils, or the Office of the Surveillance Commissioners, be required to publish the results of inspections (the report and covering letter). The published reports may have to be redacted before they are made available to the public; but councillors responsible for oversight of RIPA ought have access to the unredacted versions. The Commissioners ought address their reports, not to the Chief Executive as they do now, but to the councillor or committee responsible for oversight.

Any correspondence following the report, such as a reply from the council explaining what actions it has taken, or is going to take, following comments in the inspection report ought also be published.

Office of the Surveillance Commissioners

While I have made my suggestion that inspection reports and associated correspondence ought certainly be made available by local councils, I would like to make that suggestion more broadly too. I would like to see all inspection reports and associated correspondence published routinely by the office of the Surveillance Commissioners; appropriately redacted of course. Just as I am suggesting reports on councils ought be addressed to councillors, reports on police forces ought be addressed to police authority members, and reports on other organisations ought to be addressed to those already charged with their oversight.

Clarity of the Draft Code of Practice on Covert Surveillance and Property Interference

I believe there is an opportunity to clarify a number of currently ambiguous situations. I note that practitioners can be quick to dismiss some of the following as unambiguous, however having as bodies and individuals have come to contradictory conclusions I would like to suggest clarity with respect to the answers to the following questions:

1. Can overt cameras be used in a covert fashion? eg. If a town centre CCTV system can be used to covertly follow and individual or specific group of individuals and RIPA authorisation be required for that?
2. Ought organisations be permitted or encouraged to use their RIPA authorisation protocols voluntarily ie. when they don’t believe the law requires them to follow them, but they wish to do so to give an added degree of public assurance that the action they are taking is justified and has been properly considered?
3. Is a RIPA authorisation required when a Covert Human Intelligence Source (CHIS) is used to elicit information, but is not involved in collecting or relaying that information or acting as a witness in court? eg. If an individual establishes a relationship with someone and has a conversation with them for the purposes of obtaining information; but that information is recorded or observed by a third party?
4. Ought children used in underage sales investigations ought be considered a CHIS and therefore require RIPA authorisation for their use?
5. When, if ever, does the use of noise level recording apparatus, of the sort used by councils for providing evidence of noise nuisance, require RIPA authorisation? Does it matter if the apparatus records the actual “noise”. which may be music, or conversations etc. ?
6. Does a council officer who uses a camera phone to collect evidence of illegal street trading need RIPA authorisation? Does it matter how surreptitiously the officer uses such a camera phone?
7. The code of practice could usefully provide guidance as to what is considered “private information” with respect to (Section 26(10) of RIPA). eg. Is the fact someone is in a particular location at a particular time (or within a particular time frame) considered private information for example?

National Anti-Fraud Network

I am surprised that the consultation, or draft documents fail to mention the National Anti-Fraud Network’s new centralised spy headquarters for local councils. I attended a disconcerting presentation by a representative from NAFN during which the organisation’s intent to offer a service to councils to offer live traffic, service and subscriber data to councils was revealed. NAFN’s ambition to carry out investigations itsself rather than simply supply a service was also presented. I believe there is a need for a clear structure for the oversight of this new organisation’s activities. I would like to see it inspected in its own right by the Office of the Surveillance Commissioners. Local councillors need to be made aware of what services their councils are buying in from this organisation.

Councillors ought be clear if they are allowing their own council staff to conduct intrusive investigations, or if they are hiring others, be it NAFN or private companies to do it on their behalf.

Correlation Between RIPA Powers and Freedom of Information

There are a number of organisations which are able to deploy covert investigatory techniques yet are not subject to the Freedom of Information Act. I find this state of affairs disconcerting. I would suggest the following, among others, ought become subject to the FOI Act, at least with respect to their investigatory activities :

• National Anti-Fraud Network
• Any companies or individuals performing covert investigations on behalf of organisations able to operate under RIPA
• Contracted out prisons
• Royal Mail

Investigation of those held in Prison and in Detention Centres

I would prefer a greater degree of independence and separation between those being investigated and those authorising covert investigatory techniques for detained individuals. I believe authorisations should come from outside the institution. I am particularly concerned about the fact managers of private prisons, who are not publicly accountable, have the power to make RIPA authorisations. I also oppose the proposed expansion of RIPA to allow authorisation within detention centres. I would suggest that authorisations, if required, ought be sought from other external organisations eg. the law enforcement agencies, or The Home Office etc. If such authorisations could not be obtained that would suggest to me the proposed technique was disproportionate.

Authorising Officers

With respect to the question of what “rank” of officer in a local authority ought authorise RIPA requests I would like to suggest that while the individual ought be appropriately senior, eg. a director or head of department, what is particularly important is that the individuals to whom these powers are delegated have the experience and training needed to carry out the role. I think this is best achieved by limiting the number of authorising officers and ensuring all have regular training and use. ie. if a council has six departments each making two or three requests a year, the heads of each department ought not be the authorising officer but one individual ought take that role for the whole council. I would not support insisting the Chief Executive make all RIPA authorisation decisions on the grounds that they would be likely to have less time to properly review decisions and may be more prone to simply signing off what those who work for them put before them.
The code of practice could recommend a minimum workload of cases for an authorising officer and / or suggest how many there ought to be in typical councils. This same argument to have experienced staff dealing with applications regularly making decisions could be used to back up my suggestion that immigration centre staff ought not have RIPA authorising powers, but should turn to the police or other agencies to make the judgement.

Inconsistent Message from Government

The ex-Home Secretary, in the introduction to the consultation document, has said: “I do not think it is right for RIPA to be used to investigate offences relating to dog-fouling or to see whether people put their bins out a day early”, yet her Government brought in the law requiring RIPA authorisation for the use of spying powers in such cases. The opportunity ought be taken to tackle this kind of apparant inconsistency. I think that dog fouling, particularly of playgrounds and playing fields can be substantive problems that local councils ought, if their elected members wish, try and tackle. That said I think that covert spying would very rarely, if ever, be proportional in such cases and if it was to be it would only be as a last resort; that ought in my view be the tone of central government guidance.

Emergency Service 999 Location and Subscriber Information

I would prefer if no authorisation was required for traffic, service and subscriber data to be obtained by an emergency services control room once 999 has been called. I would be happy for such data to be automatically made available to the emergency services. This would bring the law and guidance inline with what I believe is currently largely the case anyway.

Reducing Police Bureaucracy

The consultation specifically asks about reducing police paperwork. I do not think the RIPA authorisation procedure itsself is unnecessarily complex, long winded and bureaucratic. I suspect if there are any problems they will be of the police’s own making and relate to how they have designed their own internal systems. Guidance ought be given to ensure the police are not seeking, and even obtaining RIPA authorisations where they are unnecessary.

I was reminded of this consultation by an Open Rights Group / NO2ID presentation at OpenTech 2009.