Protection of Freedoms Bill

Memorandum submitted by the Chief Surveillance Commissioner (PF 37)

Protection of Freedoms Bill

Covert surveillance by local authorities

You have invited me to make a written submission but have not indicated any particular aspect on which my views are sought.

As you know, by virtue of the Police Act 1997 and the Regulation of Investigatory Powers Act 2000 (and its Scottish equivalent), I have oversight of all public authorities, apart from the Security Services, in relation to the carrying-out of all covert surveillance, except intercepts. I have been Chief Surveillance Commissioner for nearly 5 years, during which all public authorities have been inspected more than once and I have read the report after each inspection. In consequence, I have unique knowledge of how all public authorities are performing and I summarise this in my Annual Report to the Prime Minister and the First Minister for Scotland, the most recent of which I sent on 3rd June 2010.

In relation to local authorities, the general picture over recent years has been of improving standards in and diminishing use of directed surveillance: the number of annual authorisations by all public authorities (apart from law enforcement agencies) has fallen from over 12,000 in 2006-07 to about 8,000 in 2009-10: less than half of these are by local authorities and the majority are by government departments. Changes to the Codes of Practice which came into effect in April 2010, requiring a Senior Responsible Officer and the involvement of elected members, have strengthened local authority procedures.

I know that, for 2 or 3 years, there has been media criticism of local authorities in relation to covert surveillance. Much of this has been wrong or ill-informed. For example, I know of no occasion when covert surveillance has been improperly used in relation to dog fouling. Such tactics are unlikely to be necessary or proportionate in relation to a pavement, but dog excrement carries a parasite which can cause blindness in children, so dog fouling in a children’s playground may be a serious matter meriting covert surveillance. In any event, the media criticism relates to a very small number of cases in which covert powers may have been used inappropriately. 50 years as a barrister and judge have taught me that isolated examples of incompetence rarely provide a sound basis for changing procedural structures.

As you will appreciate, I have no agenda nor any axe to grind. How much or how little covert surveillance is carried out and by whom is a matter for political decision, initially by Parliament and then by public authorities. My job is to see that whatever Parliament

permits or requires is carried out in accordance with the legislation and in a way which is human rights compliant.

My understanding of what is proposed in relation to local authorities is that, first, the threshold for covert activity should be raised so that it is only permissible if the suspected offence carries a potential sentence of up to 6 months imprisonment and, secondly, that a magistrate should approve local authority authorisations.

It is not obvious why local authorities should be treated differently from other public authorities within the present scheme and I know of one government department whose practices currently cause me more concern than any local authority. I express no view about raising the threshold. Local authorities are well able to make their case as to the extent to which a higher threshold may or may not inhibit their ability to deal effectively with the various types of un-neighbourly behaviour which cause concern in local communities. It is, perhaps, worth pointing out that categorising as "serious" an offence which might attract 6 months imprisonment contrasts starkly with the Police Act 1997 definition of a serious offence as one which is likely to attract at least a 3 year sentence for an adult.

My concern relates to the involvement of magistrates, which, in my view, is unnecessary and is likely to be ineffective. I believe that adequate consideration has not been given to the following matters:

* although there have been isolated examples of incompetence, no general flaw has been suggested, still less demonstrated, in the present authorisation process for which almost all local authorities have appropriate policies and training programmes in place;

* although it is intended that 30,000 magistrates will be trained, I have reason to believe that no approach to this end has been made to the Judicial Studies Board and I know of no other body which could provide proper training for them; in any event the training budget proposed is £10,000: 33 pence per head seems unlikely to provide effective training particularly as proportionality, necessity and collateral intrusion are not straightforward concepts and will be entirely novel to magistrates;

* although no relevant statistics are kept, I estimate that there are about 2000-2500 local authority authorising officers; training 30,000 magistrates to oversee their decisions does not seem particularly sensible;

* there is an obvious danger that, even if properly trained, magistrates will rubber-stamp proposed authorisations, as occurs, for example, on applications for search warrants and local authority authorising officers are likely to become less fastidious if their authorisations are to be reviewed by magistrates who, inevitably, particularly having regard to the number of people involved, will have far less experience;

* as the OSC will apparently have no supervisory role in relation to magistrates, by what means, if any, will a magistrate’s decision be challengeable by appeal, judicial review or otherwise?;

* inevitably, conflicts of interest will arise when a magistrate is asked to sit on a case in which he or she has authorised surveillance;

* delay will necessarily occur if there is scrutiny by magistrates;

If the members of your Committee would like me to expand or clarify anything I have said, I shall be happy to do so.

April 2011