Agenda item

To consult Members on the development of a Regulation of Investigatory Powers Act 2000 – Partnership Policy; for the South and East Lincolnshire Councils Partnership (report of the Assistant Director - Regulatory and Senior Responsible Officer (SRO) for RIPA enclosed).

Consideration was given to the report of the Assistant Director Regulatory and Senior Responsible Officer (SRO) for RIPA to consult members on the development of a Regulation of Investigatory Powers Act 2000 – Partnership Policy; for the South and East Lincolnshire Councils Partnership.

The report was introduced by the Assistant Director – Regulatory and Senior Responsible Officer (SRO) for RIPA and the following verbal introduction was provided to assist members with consideration of the item:

The Regulation of Investigatory Powers Act (RIPA) governed all public authorities in their use of covert, directed surveillance and how this tool could be used to gather evidence in the pursuit of legal proceedings. RIPA allowed a local authority to conduct the following covert, investigative activities:

·       Directed surveillance of an individual or individuals without their knowledge for a specific purpose;

·       Use of a Covert Human Intelligence Source (informant / undercover officer); and

·       To access personal communications and data such as mobile phone records, social media accounts, work IT networks and correspondence.

RIPA provided the regulatory framework which enabled local authorities to undertake lawful surveillance whilst ensuring that the rights of citizens to respect for a private family life, home and correspondence, enshrined by the European Convention on Human Rights and the Human Rights Act 1998, were protected.

Proposed surveillance activities were required to comply with the policy and could only take place following assessment that it was lawful, necessary, proportionate, and non-discriminatory.

Approval to conduct directed surveillance must have been obtained from the Magistrates Court following the initial, mandatory internal assessment of the proposed activity by an authorised officer of the Council with designated responsibilities and training to do so under the RIPA Policy.

The Investigatory Powers Commissioner’s Office (IPCO) was the regulatory body that provided oversight of public bodies in their use of RIPA. IPCO would undertake audits to evaluate compliance every three years with the onus being on the Council to demonstrate that its policy, procedures and working arrangements were compliant with RIPA and Home Office guidance.

In a recent self-assessment of the council’s RIPA operational arrangements prepared by officers and submitted to IPCO, the current working arrangements and proposals to move towards a Partnership approach to Policy and operational arrangements, were endorsed by the Commissioner.

RIPA required that a public authority appointed a SRO for the provision of professional oversight and direction to all RIPA related activity. This role would continue to be designated to the Assistant Director Regulatory under shared RIPA arrangements.

Home Office Guidance required that the SRO report RIPA related activity to elected members at least once per year and consult with members on policy changes. The report being considered at the current meeting sought to fulfil the latter of the two requirements with the former being discharged through Audit and Governance Committee.

Appendix B consisted of the following:

• The Partnership RIPA Policy document; and
• The IPCO letter which demonstrated that the Regulator was satisfied with the partnership approach to, and implementation plans of, the RIPA Policy.

Members considered the report and made the following comments:

• Members asked whether the partnership had more than one authorised officer for RIPA.
  • The Assistant Director – Regulatory stated that upon implementation of the new RIPA Policy:
    • Four RIPA authorised officers would be in place for the partnership, of which two would be based at South Holland; and
    • The partnership would have two non-RIPA authorised officers. 

• Members asked for an example of a non-RIPA related surveillance activity.
  • The Assistant Director – Regulatory responded that:
    • Certain conditions/benchmarks needed to met in order for RIPA to apply - this included a minimum sanction of a six month custodial sentence for the offence of which evidence was being sought.  Where authorisation was technically not required for surveillance of ‘lesser’ offences, the non-RIPA process could be followed to ensure that civil liberties were upheld and human rights protected.

• Members referred to the widespread use of CCTV and requested clarity regarding the circumstances upon which RIPA would apply.
  • The Assistant Director – Regulatory responded that:
    • In general, public and visible CCTV usage did not require RIPA;
    • RIPA applied when CCTV cameras were focussed on a specific locality, such as a house, where personal information could be compromised. In such cases:
      • Although this type of surveillance was carried out at the CCTV Control Room, the application for RIPA authorisation would be made by the Police and they would undertake the surveillance; and
      • The role of the CCTV Operator would be to ensure that RIPA authority was obtained and held securely.  

• Members asked for examples of RIPA surveillance activity.
  • The Assistant Director – Regulatory responded that the offence of fly-tipping met the custodial sentence benchmark of six months or more and therefore RIPA would apply where a fly-tipping ‘hot-spot’ was to be covertly surveilled; and
  • Overt surveillance, where CCTV was utilised as a deterrent, did not require RIPA authorisation, and these were currently utilised in a Spalding street and at Sainsburys.

• Members referred to the use of overt cameras as a deterrent to anti-sociable behaviour, and asked whether these could operate over a much larger area.
  • The Assistant Director – Regulatory responded that non-RIPA overt operations needed to be targeted and focussed in order to avoid ‘collateral intrusion’ where information was obtained by accident. In such cases, data was managed in order to avoid any breach of human rights.

• Members asked whether responsibility for RIPA authorisation and surveillance installation fell to the Council or holders of the Enviro-Crime contract, Kingdom.
  • The Assistant Director – Regulatory responded that:
    • Compliance remained the responsibility of the council and this could not be discharged to a third party;
    • Any operations carried out by a contractor were on behalf of the council; and
    • The council held the responsibility for prosecution decisions and ensuing court costs.
• Members asked for clarity regarding the three-month period of RIPA authorisations.
  • The Assistant Director – Regulatory responded that whilst, in theory, an authorisation could be active for an extended period, Home Office guidance stipulated that re-evaluation was undertaken at least every three months to ensure that the benchmark was still achieved. An ongoing cycle of re-evaluation, determined on a case-by-case basis, could take place.

• Members asked how RIPA worked alongside GDPR in terms of privacy and captured footage.
  • The Assistant Director – Regulatory responded that:
    • Local authorities had responsibilities under both RIPA and GDPR;
    • Where data of a private nature was captured, this was handled and processed according to GDPR requirements; and
    • The protection of private information was intrinsic to the RIPA Policy.

AGREED:

Following consideration of the RIPA 2000 Partnership Policy by the Policy Development Panel:

a)    That the comments of the Panel be noted; and

b)    That the Panel recommended the policy to Cabinet for adoption.