Purpose of Report
1. To inform
the Committee regarding the council’s use of directed
surveillance and covert human intelligence sources during 2022 and
2023 as required by the statutory code of practice in our
enforcement work having proper regard to the principles of
necessity, proportionality and lawfulness. To also seek
approval for revisions to the council’s RIPA policy,
procedures and action plan
Strategic Objectives
2. Managing
and monitoring compliance with RIPA will support openness and
transparency in South Oxfordshire District Council and working in
an open and inclusive way in Vale of White Horse District
Council.
3. Working to
adopted and agreed RIPA policies and procedures will facilitate the
use of covert surveillance as a legitimate and effective tool in
enforcement investigations. It will also help ensure the
lawfulness of such activity, thereby avoiding potentially costly
and harmful legal challenges to our actions.
Background
4. The
councils carry out a number of statutory functions that may require
resort to enforcement action of many different types, and
investigations carried out into breaches or suspected breaches of
the law may lead the councils to take action in the courts,
including criminal prosecutions. Protecting the environment
from harm, particularly from illegal waste disposal (fly-tipping),
fraud, licensing, planning and various aspects of health and safety
are all areas of the councils’ work where the councils and
our residents are concerned to see effective enforcement action
being taken against illegal activity. The ability to take
such effective action may give rise to a need for investigative
work, and the deployment of a range of techniques by the service
teams who are charged with regulatory enforcement. Directed
covert surveillance, and the use of covert human intelligence
source (CHIS) are techniques that the councils may deploy in
investigative work, and RIPA establishes a legislative framework
within which the councils may seek to legitimately undertake such
activity.
5. The
‘law of RIPA’, and the parameters of the legislation,
are set out in a degree of detail in the attached documents,
Regulation of Investigatory Powers Act 2000 Policy and Regulation
of Investigatory Powers Act 2000 Procedures. The policy and
procedures endorsed in 2020 by this committee have been reviewed
and updated in accordance with current guidance and the Committee
is asked to approve the amended updated documents. The detail
that is included in those documents will therefore not be repeated
in the body of this report. It may be helpful however for
councillors to understand that RIPA does not of itself provide
local authorities with powers to undertake covert surveillance that
they otherwise might not have. What RIPA and its associated
guidance does do, is to establish a framework of principles against
which the lawfulness of such surveillance activity might be able to
be judged.
6. The
Regulation of Investigatory Powers Act 2000 (RIPA) came into force
in 2000 and governs the acquisition and disclosure of
communications data and the use of covert surveillance by local
authorities. This is supported by a set of codes of practice
setting out processes and safeguards for a number of investigatory
powers.
7. The
councils can use powers under RIPA to support core functions for
the purpose of prevention and detection of crime where an offence
may be punishable by a custodial sentence of 6 months or more or
are related to the underage sale of alcohol and tobacco. There are
three processes available to local authorities under RIPA,
·
Directed Surveillance,
·
Covert Human Intelligence Sources (CHIS), and
·
the acquisition and disclosure of communications data.
8. RIPA and
Codes of Practice set out the procedures that local authorities
must follow when undertaking surveillance. For example, approval by
Authorised Council Officers for Directed Surveillance / CHIS
applications to show that the proposed use of the powers is
“necessary and proportionate”.
9. The
councils are required to have a Senior Responsible Officer to
maintain oversight of the RIPA arrangements, procedures and
operations. The councils’ Monitoring Officer performs this
function and is responsible for the integrity of the process for
managing the requirements under RIPA.
10. The Investigatory Powers
Commissioner’s Office (IPCO) provides independent oversight
of the use of investigatory powers by public authorities as
outlined in the Investigatory Powers Act 2016 (IPA). In 2019, Part
3 of the IPA was introduced which amended the acquisition of
communications data and overhauled the way these powers are
authorised and overseen. The IPA has introduced the Office for
Communications Data Authorisation (OCDA) which is now responsible
for independently authorising all applications for communications
data. This has removed the requirement for local authorities to
seek judicial approval for communications data. In addition, the
legislation has broadened the range of communications data
available including access to location data.
11. The acquisition of communications
data is undertaken through the National Antifraud Network (NAFN).
They act as the single point of contact for many local authorities
and ensure any application is RIPA/ IPA compliant. It is NAFN that
are audited by the commissioners.
Annual usage of investigatory powers
12.The Home
Office Code for Covert Surveillance and Property Interference
recommends that councillors, whilst by law are not permitted to be
involved in making decisions or specific authorisations for the
local authority to use its powers under Part II of the Act, should
review the councils’ use of the legislation at least annually
and provide approval to its policies.
13. The IPCO are required by law to
gather statistical data from public authorities on their use of
investigatory powers under the relevant legislation. Annual returns
are submitted to the IPCO by the end of each January covering the
previous calendar year.
14. For the period 1 January 2022 to 31
December 2022 and for 1 January 2023 to 31
December 2023 the statistical returns for both South
Oxfordshire District Council and Vale of White Horse District
Council was that no applications or authorisations had been made
for either directed surveillance or covert human intelligence
sources. There were no reported incidents of the councils having
misused powers under RIPA during this period.
15. No applications for the disclosure of communications
data were made during the period 1 January 2022 to 31 December
2022 or during the period 1 January 2023 to 31 December 2023.
Inspection outcomes
16. IPCO inspections of local
authorities are normally every three years, and the councils were
last subject to a remote inspection by the IPCO during 2021. As
summarised in the commissioner’s letter of 31 March 2021 to
our Chef Executive, the IPCO noted that both councils are limited
users of the surveillance powers but demonstrated the importance of
maintaining strong policies and procedures in an effort to ensure a
good level of compliance.
17. The 2021 inspection noted that the
actions from the January 2018 review had been discharged and raised
new recommendations which were added to an action plan in May
2021.
Action plan
18. The current action plan updates
actions brought forward from previous years and additional actions
identified since.
Policy changes
19. The RIPA policy and procedures
documents have been reviewed and updated to include items
identified within the 2021 inspection letter and guidance provided
by the IPCO within newsletters.
Financial Implications
20. There are no financial implications
attached to this report.
Legal Implications
21. Each Council has demonstrated
compliance with its statutory obligations under RIPA to the
satisfaction of the Surveillance Commissioner following inspection
in January 2021 and continues to update its policy and provide
training for officers.
22. This report to members complies with
the Code of Practice requirement that members should be updated
annually on RIPA activity and endorse the Policy, including any
changes to it, for the coming year.
Climate and ecological impact implications
23. There are no direct climate or
ecological implications arising from this report.
Equalities implications
24. This report is for information only
and therefore there are no equalities implications.
Risks
25. The Councils are required to comply
with the statutory provisions and guidance governing the RIPA
regime and any recommendation made by the Inspector on behalf of
the Commissioner. Officers need to be aware of the RIPA powers so
that there is no risk of surveillance or CHIS activity being
undertaken without the correct oversight and approvals being in
place. Adherence to a robust RIPA policy and procedures will help
avoid legal challenges to the lawfulness of the councils’
actions which would be likely to be costly and could potentially
cause reputational harm.
Other Implications
26. The councils continue to
operate a system of closed-circuit television (CCTV) across six
market towns in the districts. There are 86 cameras in total,
monitored from a control room within Abingdon Police Station, by
staff employed by the councils. The management, operation and
use of this system is undertaken in accordance with a code of
practice and an operational handbook separate from the policy and
procedures document accompanying this report, it being noted that
CCTV of public place activity generally is considered to be
classed as overt rather than covert activity.
27. In a similar vein, the
presence of cameras which are deployed to detect and prevent the
crime of fly tipping at ‘hotspot locations’ in the
districts is normally accompanied by signage placed nearby,
informing the public that surveillance takes place. This
means that the process of surveillance is not strictly subject to
the requirements of ‘full RIPA’, as the surveillance is
overt. The carrying out of this kind of surveillance activity
however is still subject to a process of assessment based on
principles of necessity and proportionality, and consideration of
rights of privacy.
28. Officers in the waste team use Body
Video cameras on occasion. The management operation and use of such
cameras is undertaken in accordance with documented guidance and
generally falls to be considered as overt rather than covert
activity.
Conclusion
29. The adoption of the updated policy
and procedures documents setting out the way in which the councils
may seek to use covert surveillance as a tool in investigative work
will facilitate effective enforcement work and will help ensure
that the councils operate within the legal rules that regulate such
activity. The committee is therefore asked to endorse the
updated documents attached to this report, Regulation of
Investigatory Powers Act 2000 Policy and Procedures, for adoption
and use within the councils and to authorise the Head of Legal and
Democratic to make further changes to keep the document up to date
as appropriate.
Background Papers
·
RIPA Policy
·
RIPA Procedure
·
RIPA Action Plan
