In recent weeks reports reviewing RIPA by the Independent Reviewer of Terrorism and the Royal United Services Institute have been published. Both reports emphasised the need for clearer law and stronger oversight.
Some may presume that their recommendations persuade the Government to replace the Regulation of Investigatory Powers Act (RIPA), its amendments and related legislation, with something entirely new. That presumption may prove accurate.
However, I believe that any replacement is unlikely to substantially adjust the basic tenet of RIPA which is founded on Human Rights legislation. In particular, it is likely to retain the basic principles of necessity and proportionality along with the requirement for public authorities to produce a verifiable and contemporaneous audit of decisions and actions.
Whether or not local authorities in United Kingdom will be enabled by similar discretionary power remains to be seen. But if the effect of the Protection of Freedoms Act is illustrative, taking away the protection of law does not necessarily prevent covert surveillance conducted intentionally or accidentally. It merely removes protection from liability … neither public authorities nor citizens are properly protected.
Unless, as is the case with an interception, forms of covert surveillance are made unlawful without a warrant or authorisation, it is likely that investigatory powers will remain discretionary. Discretion – even if later approved by a designated official external to the relevant investigating authority – attracts misuse by officials if not official misuse.
The demand for better oversight is a key recommendation in both reports and there is an increasing expectation that the public is better informed regarding the potential for or actual abuse of discretionary powers.
Suffice to say that the Office of Surveillance Commissioners, or a body with similar or enhanced responsibility, will remain. Inspection is likely to be a key method to assess compliance and performance.
Impressing an inspector – and thus providing a mechanism to protect reputation and improve trust – should remain a concern to all those who are enabled to conduct surveillance covertly.
In my new E Book “How To Impress An OSC Inspector”, I provide my personal insights regarding how a local authority might best approach an OSC inspection. The information in the book remains relevant regardless of future change to legislation. It is directed at local authorities but is relevant to other public authorities.
You can download the E Book here.
I would be interested in your views. Please feel free to comment (below) or directly by email.
Sam Lincoln was formerly Chief Surveillance Inspector with the Office of Surveillance Commissioners for seven years.
STOP PRESS… STOP PRESS… STOP PRESS… STOP PRESS…
ONLINE RIPA TRAINING
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Act Now has revised its RIPA Policy and Procedures Toolkit gives you a standard policy as well as forms (with detailed notes to assist completion) for authorising RIPA and non-RIPA surveillance. Now is the time to consider refresher training for RIPA investigators and authorisers. We have a full program of RIPA Courses and can also deliver these at your premises, tailored to the audience.
