HERTFORDSHIRE COUNTY COUNCIL
POLICY AND RESOURCES CABINET PANEL
THURSDAY 15 JULY 2010 AT 2PM
REGULATION OF INVESTIGATORY POWERS ACT (RIPA)
Report of the Director of Strategy and Partnerships
[Authors: Guy Pratt, Head of Trading Standards
Tel:01707 292429
Kathryn Pettitt, Chief Legal Officer
Tel: 01992 555527]
Executive Member:David Lloyd (Resources and Economic Wellbeing)
1.Purpose of report
1.1To inform the Policy and Resources Cabinet Panel of the revised Regulation of Investigatory Powers Act (RIPA) legislation and codes of practice which came into force on 6 April 2010; to summarize the new duties and responsibilities this legislation places on local authorities, their officers and Members; and to recommend policies and procedures for decision which meet the responsibilities for elected Members.
1.2To obtain the Panel’s approval of proposed policies on (a) Directed Surveillance and Covert Human Intelligence Sources; and (b) Acquisition and Disclosure of Communications Data from communication service providers
2.Recommendations
The Policy and Resources Cabinet Panel is invited torecommend that:
2.1Cabinet endorses that the senior responsible RIPA officer for the authority is the Chief Legal Officer;
2.2Cabinet endorses the recommendations made under 5.1of this report concerning the procedures for elected Members to annually review the authority’s use of RIPA and annually set the authority’s RIPA policy;
2.3Cabinet endorses the recommendations made under 5.2 of this report concerning the procedures for elected Members to receive internal reports on the authority’s use of RIPA on a quarterly basis;
2.4Cabinet approves the policies on (a) Directed Surveillance and Covert Human Intelligence Sources; and (b) Acquisition and Disclosure of Communications Data from communication service providers attached to this report.
3.Background
3.1A public consultationon RIPA took place from 17 April to 10 July 2009 which invited viewson, amongst other things, all relevant public authorities listed under RIPA; the ranksof officers able to authorise RIPA techniques; and the statutory purposes for whichtechniques can be used.
3.2Of 222 responses received most were broadly supportiveof the Government’s view (and local authorities’ and Hertfordshire County Council’s submission view) that public authorities had a continuing, well-founded need to authorise the carrying-out of directedsurveillance or the conduct or use of covert human intelligence sources under RIPAwhen necessary and proportionate to do so.
3.3The Home Office has consequently published new RIPA Orders and Codes of Practice.
3.4The Regulation of Investigatory Powers (Directed Surveillance and
Covert Human Intelligence Sources) Order 2010 and revised Codes of Practice for covert surveillance/property interference and CHIS have been issued and came into force on 6 April 2010.
4.Legislative requirements
4.1Existing requirements maintained
4.1.1The only grounds for which RIPA authorisations can be given by local authorities is for the purpose of preventing or detecting crime, or of preventing disorder. The exception to this is the Fire and Rescue Service, who can authorise for the purpose of public safety.
4.1.2The authorisation levels when knowledge of confidential information is likely to be acquired, or when a vulnerable individual or juvenile is to be used as a covert human intelligence source (CHIS), is the Head of Paid Service or (in his or her absence) the person acting as the Head of Paid Service.
4.2New requirements for Elected Members
4.2.1Elected Members in a local authority should review the authority's use of RIPA and set the policy at least once a year.
4.2.2Elected Members in a local authority should also consider internal reports on the use of RIPA on at least a quarterly basis, to ensure that it is being used consistently with the council's policy and that the policy remains fit for purpose. They should not, however, be involved in making decisions on specific authorisations.
4.3New requirements for local authorities with respect to Officers
4.3.1The prescribed officers who can sign authorisations have been revised,and are specified in the proposed policies which are attached to this report.
4.3.2It is considered good practice for a senior responsible officer (who should be a member of the corporate leadership team) to be made responsible for RIPA. It is proposed that this will be the Chief Legal Officer for Hertfordshire County Council. This role will ensure:
-the integrity of the process in place within the local authority for the management of CHIS;
-compliance with Part II of the Act and with the Codes;
-oversight of the reporting of errors to the relevant oversight Commissioner and the identification of both the cause(s) of errors and the implementation of processes to minimise repetition of errors;
-engagement with the Office of the Surveillance Commissioner (OSC) inspectors when they conduct their inspections, where applicable; and
-where necessary, oversight of the implementation of post-inspection action plans approved by the relevant oversight Commissioner;
-ensuring that all authorising officers are of an appropriate standard in light of any recommendations in the inspection reports prepared by the OSC.
-where an inspection report highlights concerns about the standards of authorising officers, this individual will be responsible for ensuring the concerns are addressed.
5.Issues on which the Policy and Resources Cabinet Panel and Cabinet need to take a view
5.1Elected Members will be required to annually review the authority’s use of RIPA and annually set the authority’s RIPA policy. In order to meet these requirements it is recommended thatCabinet considers an annual report, enabling a review of the use of RIPA, and the setting of the RIPA Policy (reviewing the existing Policy as appropriate) for the forthcoming year.
5.2Elected Members will need to receive internal reports on the authority’s use of RIPA on at least a quarterly basis. In order to meet these requirements it is recommended that the Policy and Resources Cabinet Panel receives a quarterly report on the use of RIPA, highlighting any deviations from policy and details of any internal and external inspections and audits that have taken place. The Executive Member for Community Safety and Culture will receive the report at the same time.
5.3Attached as Appendices 2 and 3 are proposed policies on (a) Directed Surveillance and Covert Human Intelligence Sources; and (b) Acquisition and Disclosure of Communications Data from communication service providers. These policies stipulate that HCC will follow the current legislation and appropriate Codes of Practice.
6.Use of RIPA and recent inspection by the Interception of Communications Commissioner’s Office
6.1 In the year 2009/2010 Hertfordshire County Council’s use of RIPA for surveillance purposes was as follows:
(a)Directed Surveillance
The number of directed surveillance authorisations granted during the year was 31,and the number in force at the end of the year was 3.
(b)CHIS
The number of CHIS recruited during the year was 0 (zero), the number who ceased to be used during the year was 0 (zero) and the number of active CHIS at the end of the year was 0 (zero).
(c)Breach in procedures
The number of breaches, particularly unauthorised surveillance activity, of RIPA/RIP(S)A 2000, identified under each category of authorisation (Directed Surveillance and CHIS) were all 0 (zero).
6.2In the calendar year 2009, Hertfordshire County Council’s use of RIPA for obtaining communications data was as follows:
(a)Authorisations given – 35
(b)Requests for authorisation rejected - 2
6.3An inspection by the Interception of Communications Commissioner’s Office was undertaken in March 2010 in respect of the use of RIPA for communications data. The report found that generally there was agood standard of application being produced, but it was recommended that it is important for Authorising Officers to ensure that each application stands on its own, and sufficient information be included to enable the Designated Person to make a decision whether the request is necessary and proportionate. The inspector was satisfied that the Designated Person (Head of Trading Standards) was discharging his statutory duties responsibly, and found no evidence that the Council’s powers under RIPA would ever be used to investigate trivial offences.
7.Financial Implications
The costs of implementing the new RIPA procedures will be met from existing budgets.
Appendix 1
The use of RIPA in local authorities
The Regulation of Investigatory Powers legislation does not impose a requirement on local authorities to seek or obtain an authorisation where one is available. Nevertheless,where there is an interference by a local authority with the right torespect for private and family life guaranteed under Article 8 of theEuropean Convention on Human Rights, and where there is no othersource of lawful authority, the consequence of not obtaining anauthorisation under the 2000 Act may be that the action is unlawfulby virtue of section 6 of the Human Rights Act 1998.
The Home Office has strongly recommended that local authorities seekan authorisation where the surveillance is likely to interfere with aperson’s Article 8 rights to privacy by obtaining private informationabout that person, whether or not that person is the subject of the investigation or operation. Obtaining an authorisation ensures thatthe action is carried out in accordance with law and subject tostringent safeguards against abuse.
Hertfordshire County Council has therefore previously put into place a detailed RIPA policy (available on Connect) and officers already authorise RIPA activity. Additionally Hertfordshire County Council’s RIPA activity has been inspected on a number of occasions by the Office of Surveillance Commissioner and The Interception of CommunicationsCommissioner.
Hertfordshire County Council currently has (and will maintain) the ability to authorise ‘directed surveillance’, ‘CHIS’ and ‘Communications data’.
Directed surveillance authorisations under Part II of RIPA may be granted in relationto covert surveillance undertaken in relation to a specific investigation or operationwhich is likely to result in the obtaining of private information about a person, andwhich is other than an immediate response to events or circumstances the nature of
which is such that it would not be reasonably practicable for an authorisation to be sought for the carrying out of the surveillance.
Directed surveillance issurveillance which is covert but not intrusive i.e. it excludes surveillance of places ordinarily used for legal consultation, at a time when they are being used forsuch consultations, and excludes surveillance of anythingtaking place on any residential premises or in any private vehicle (and that involves the
presence of an individual on the premises or in the vehicle or is carried out by meansof a surveillance device which is either on the premises or in the vehicle, or providesinformation of the same quality and detail as might be expected to be obtained from adevice actually present on the premises or in the vehicle).
RIPA also governs authorisations for communications data and the conduct or use of covert humanintelligence sources (e.g. Police informants). A local authority may task a person to be a covert humanintelligence source to develop a relationship with another person in order covertly toobtain, provide access to or disclose information.
Local Authorities
353 local authorities in England and 22 in Wales are able to use directed surveillance andcovert human intelligence sources in order to prevent or detect crime or disorder inconnection with their statutory functions. Many of these functions are their soleresponsibility.
Examples of investigations where covert techniques enable local authorities to gatherevidence and offer evidence in legal proceedings include:
- trading standards (e.g. action against loan sharks and rogue traders, car fraud, consumerscams, deceptive advertising, counterfeit goods, unsafe toys and electrical goods);
- enforcement of anti-social behaviour orders and legislation relating to unlawful childlabour;
- housing/planning (e.g. intervening to stop and take remedial action against unregulatedand unsafe building, breaches of preservation orders, cases of landlord harassment);
- benefits fraud (e.g. housing benefits, investigating ‘living together’ and ‘workingwhilst in receipt of benefit’ allegations, council tax evasion);
- environment protection (e.g. action to stop large-scale waste dumping, the sale of unfitfood and illegal ‘raves’).
- takingenforcement action in support of explosive and petroleum regulations
- investigationsagainst deliberate fire setting.
Additionally the advantages of being able to use communications data to help criminal investigation especially in trade and consumer scams is becoming more important with the growth of the internet and distance selling. Many transactions are now done without buyer and seller coming into contact and often the only way of linking offenders to these transactions is by communications data obtained using RIPA authorisations. Communications data is also used in connection with taking enforcement action in support of deliberate fire setting to help piece together the sequence of events, progressing accident investigations (for instance where fire fighters are injured at the scene of a fire) and detecting inappropriate calls.
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100715 Policy & Resources Cabinet Panel
Item 6 – Regulation of Investigatory Powers