Protection of Freedoms Bill

Memorandum submitted by the Local Government Group (PF 51)

About the Local Government Group

1. The Local Government Group (LG Group) is made up of six organisations that work together to support, promote and improve local government. The six organisations are:

a. The Local Government Association (LGA)

b. Local Government Regulation

c. Local Government Improvement and Development

d. Local Government Employers

e. Local Government Leadership

f. Local Partnerships

2. The LGA is a cross-party and politically led voluntary membership body. Our 422 member authorities cover every part of England and Wales, and together they represent over 50 million people, spending around £113 billion a year on local services.

About this submission

3. The LG Group is submitting this written evidence to the Public Bill Committee, in conjunction with the Welsh Local Government Association (WLGA), and the Convention of Scottish Local Authorities (COSLA) .

Summary of evidence

4. The LG Group welcomes this opportunity to comment on the content of the Protection of Freedoms Bill, and highlight issues of concern to members of the Public Bill Committee assigned with the task of scrutinising the draft legislation.

5. The Bill covers a broad range of local government activity and will therefore have a significant impact on local authorities and the vital role they play in keeping local communities safe. The LG Group and the WLGA are therefore keen to ensure that the proposals within the Bill achieve the government’s objectives without imposing new burdens on councils or unintentionally restricting councils’ abilities to protect their communities and the individuals living in them. The LG Group also supports the localist principles underlying much of the Bill’s provisions.

6. We are keen to ensure that CCTV regulation does not overburden councils and we believe that the new Code of Practice for surveillance camera systems could be a useful resource if it is genuinely a single source of guidance and good practice. We are concerned however that new data burdens are not placed on councils, and are also concerned at the potential for confusion from having both the Surveillance Camera Commissioner and Information Commissioner regulating CCTV. It is also important to remember that at most councils operate 3.3% of all CCTV in England and Wales (see paragraph 16). In Scotland, CCTV provision is predominantly managed by local authorities.

7. The LG Group believes councils should only use covert surveillance as a last resort, and in a way that ensures public confidence. We do not believe however that councils have used the Regulation of Investigatory Powers Act (RIPA) to snoop. Rather using surveillance is often the only way in which councils can ensure criminals are brought to justice. Whilst the LG Group is not therefore concerned at the provision to have a magistrate sign off the use of RIPA powers, it is important that council officers are able to apply to carry out surveillance as they can do when applying for a warrant, rather than someone who is legally qualified having to make the application.

8. Councils’ powers of entry are used by councils to protect local residents and businesses from harm across a wide range of statutory responsibilities. Local authorities are unable to enter a private residence without a court order or the owners’ permission and only routinely have the power to enter business premises to collect evidence. We feel that any proposed repeals, additional safeguards or a removal of their existing powers of entry could mean that councils were not able to fully protect their communities and perform their enforcement role.

9. We are seeking clarification about the provisions in the Bill restricting wheel clamping and whether this will impact on councils’ ability to clamp drivers parked on council housing estates. We also have concerns about the increase in Criminal Records Bureau fees, and the fact the Bill does not appear to address inconsistencies in the legislation around the publication and re-use of data.

10. The LG Group is also urging Government and Parliament to use the Protection of Freedoms Bill to address a gap in the regulatory framework, to ensure enhanced CRB checks are completed for all taxi and private hire vehicle (PHV) drivers on grounds of public safety, something fully supported by the recognised taxi and PHV trade associations.

CCTV regulation

11. In the LG Group’s view CCTV is an important tool in tackling crime. Use of CCTV evidence by the police is common place in establishing the course of events, identifying suspects and eliminating people from their inquiries, as well as being used in court. There have been a number of high profile cases where CCTV has been instrumental in bringing criminals to justice including in the Jamie Bulger case, the 21st July 2005 bombings in London and the murder of Ben Kinsella. Further instances where CCTV has been used to tackle crime are set out in the appendix.

12. The LG Group is not aware of any specific study into the cost effectiveness of CCTV, but there are a number of studies into how useful it is. A Scotland Yard study from 2008 [1] revealed that in 90 murder cases over a one year period CCTV was used in 86 investigations, and helped to solve 65 cases as it either captured the murder on film or tracked the movements of the suspects before or after the attack. The usefulness of CCTV is also supported by research [2] conducted by the Public CCTV Managers Association between January and April 2010 with ten councils which showed that on average over the period of the survey CCTV evidence was used in the investigation of 100 offences per council, and the footage identified the offender or suspect in 59 offences per council. Overall the decision whether to use CCTV is a matter for councils, their partners such as the police and local people to decide if it is the most appropriate measure to reduce crime.

13. There is already a substantial amount of good practice amongst local authorities around the use of CCTV. However, the LG Group believes that the new statutory Code of Practice introduced in the bill for surveillance camera systems could be a useful resource for all authorities if the Code is genuinely a single source of guidance and good practice.

14. It is however, essential that any new data collection burdens on councils are avoided. We are also concerned that some of the issues the Code seeks to address, such as whether it is advisable to move to common technical standards for cameras, have already been considered as part of the work on the 2007 National CCTV Strategy and valuable effort will end up being duplicated.

15. Though there is no bespoke regulatory framework for surveillance cameras, local authority CCTV is already regulated by the Data Protection Act and the Information Commissioner. The Information Commissioner produced a comprehensive code on using CCTV in 2008. The work of the two commissioners will need to be carefully co-ordinated if councils and the police are not to get contradictory rulings on what procedures and guidance they should follow.

16. Council operated CCTV accounts for only a small part of the total number of surveillance cameras in operation in England and Wales. The recent research undertaken by the Association of Chief Police Officers (ACPO) and published at the start of March 2011 estimated there are 1.85 million cameras focused on public spaces. The same study estimates that 33,500 CCTV cameras are operated by local authorities. Even if councils operate the number of cameras organisations like Big Brother Watch assert they do, at the most council operated CCTV accounts for 3.3% of all cameras. The LG Group therefore believes that regulation should be brought in to oversee those CCTV cameras which are used by private sector operators to observe public space.

17. In Scotland, where local authorities manage most CCTV provision, a new National Users' Group on CCTV has been established, to consider best value, outcomes and performance. These Scottish dimensions need to be factored in at a UK level.

Regulation of Investigatory Powers Act (RIPA)

18. The LG Group believes that councils should only be using covert surveillance as a last resort, and in a way that ensures public confidence. We also believe that the majority of councils have used covert surveillance responsibly, and have not used it to snoop. Rather it is sometimes the only way that they can protect public safety and ensure criminals are bought to justice. Any usage is always recorded by the council involved. Councils are already subject to both internal and external oversight, including being inspected by the Surveillance Commissioner and Interception Commissioner’s offices that provide an independent scrutiny role, and report direct to the Prime Minister each year.

19. RIPA provides safeguards to ensure that where councils in England and Wales (Scotland having its own legislation covering this use of surveillance) undertake directed surveillance or use covert human intelligence sources (CHIS), their usage is always recorded and fully transparent. RIPA also provides similar safeguards in England, Wales and Scotland when councils access communications data. Furthermore, RIPA regulates councils in a manner that is compatible with the European Convention of Human Rights and Fundamental Freedoms, which is incorporated into domestic law by the Human Rights Act 1998. Councils cannot intercept communications data, meaning they cannot tap or listen to telephone conversations or read emails or mail.

20. The government has indicated that councils (in England and Wales) will only be able to apply for authority to use surveillance where the offence meets a serious crime definition. The government’s intention is that an offence will have to carry a sentence of 6 months imprisonment or more for it to be defined as a serious crime. This change will mean councils will no longer be able to use surveillance to tackle some issues, such as littering and dog fouling, which have attracted public concern over the last few years. The LG Group understands these concerns and the government’s desire to respond to them, and there are other means by which councils can address these problems.

21. The one area where meeting a serious crime definition would have posed significant problems for councils would be in using test purchasing to tackle sales of alcohol and tobacco to children. We are pleased therefore that the government has agreed to exempt offences related to sales of alcohol and tobacco to juveniles from having to meet the serious crime threshold.

22. Th e surveillance that is used will ensure that councils are putting more benefits cheats behind bars, anti-social behaviour rates go down and would-be fraudsters will think twice about cheating the system. Surveillance also helps councils to protect people from crimes such as illegal lending by loan sharks, stopping the importation of illegal and dangerous toys that could kill children, crack down on child labour gangs and prevent rotten meat from being sold in markets and endangering public health.

23. While the LG Group does not object to the government’s proposal that councils (in England and Wales) will have to apply to magistrates courts to authorise the use of covert surveillance techniques, we believe the following issues need to be addressed:

- An officer of the council, rather than someone legally qualified, must be able to apply to the court to authorise the activity, as council officers generally can do when applying for warrants . If this is not the case this will impose an additional cost on councils and the officers using covert surveillance already have the expertise and knowledge of the legislation to be able to make the application appropriately;

- There should be an allowance for an immediate response in the case of any urgent issue; and

- Where appropriate applications by councils should be heard in private to prevent on-going operations being undermined by reporting in the media.

24. We assume that the current monitoring requirements placed on councils (in England and Wales) under the Home Office Code of Practice would be discontinued or placed instead upon the Magistrates’ Court.

25. Due to the two pieces of legislation for regulating the use of surveillance in Scotland, which includes RIPA and the Regulation of Investigatory Powers (Scotland) Act (RIPSA), changes in the Bill will only apply to the accessing of communications data in Scotland by councils. This will mean that to access communications data Scottish councils will have to apply for the Sheriff for authority to do so, but will not have to do so to use directed surveillance or CHIS. COSLA believes the creation of a dual system like this is unhelpful and the changes in legislation should not apply in Scotland.

Powers of entry

26. Councils use powers of entry to protect the public across a wide range of statutory activities including child protection, trading standards, environmental health, enviro-crime, housing, licensing, planning, benefit fraud and animal health. Powers of entry are essential in order for councils to carry out their statutory responsibilities and to seek evidence to prosecute offenders, thereby protecting individuals, local communities and businesses from harm.

27. Much of the existing legislation already contains safeguards to ensure that the existing powers of entry are not used inappropriately. For example, where premises are used solely as a private dwelling place, council officers can only enter these domestic premises with the consent of the occupier, or when a warrant to enter has been obtained from a magistrate. Council officers do not currently have, and have never had, a routine power of entry into a premise used solely as a private dwelling place.

28. Local authorities only routinely have the power to enter business premises to collect evidence. Without such a power of entry onto business premises council officers would not be able to carry out their basic day to day functions of protecting the public and their local communities. Officers would also not be able to act in a swift manner where necessary.

29. Powers of entry include for example the ability for an authorised officer of a food authority (or council) under the Food Safety Act 1990, at all reasonable times , to inspect any food intended for human consumption which has been sold or is offered or exposed for sale; or is in the possession of any person for the purpose of sale or of preparation for sale; where, on such an inspection, it appears to the authorised officer that any food fails to comply with food safety requirements. This power of entry is essential to ensure that public health is protected and the public do not suffer from food poisoning.

30. Of those powers proposed for revocation under Schedule 2 of the Bill , the LG Group believes the powers under the Older Cattle (Disposal) (England) Regulations 2005 and those under the Salmonella in Turkey Flocks and Slaughter Pigs (Survey Powers) (England) Regulations 2006, should be retained. Details on these regulations, and comments on others detailed under Schedule 2, can be found in Appendix 4.

31. As and when the Secretary of State considers repealing, revoking or amending any power of entry, local government must be involved in the considerations and consulted adequately to ensure informed decisions are made.

Wheel clamping

32. Councils are not seeking to take on responsibility for running private car parks, or license publicly available private car parks, or for additional powers in relation to clamping. However, we have concerns that the Bill as drafted will prevent councils from clamping vehicles parked on their own housing estates, which on estates close to stations that suffer from commuter parking problems could make enforcement of parking restrictions more difficult.

33. Clause 54 of the Bill seeks to make it an offence to immobilise, move or restrict the movement of a vehicle "without lawful authority" on public or private land. Councils will, in our view, retain the ability to clamp vehicles on the public highway or in their own car parks due to existing legal powers which confer lawful authority on them to do so.

34. We are concerned though that councils will not be able to clamp vehicles parked on private land, in particular on their own housing estates. Currently councils can clamp drivers parked on council housing estates as the drivers are assumed to have agreed to being clamped when they park there. The Bill though states that this agreement can no longer be assumed. This would suggest councils could no longer clamp or tow away any vehicle parked on a housing estate or private land. From the explanatory notes to the Bill it appears the only way a vehicle parked on a housing estate could have its movement restricted would be by the use of a barrier to block the vehicle from leaving. The actual wording of Clause 54 (3) suggests however that it would be lawful to clamp a vehicle on private property where a barrier is present. It would be helpful if the government could clarify how they envisage Clause 54 operating in practice.

35. If councils are to be prohibited from clamping vehicles on their own housing estates then the LG Group would like to see the regulations the Secretary of State can make under clause 55 to include provision for councils to remove and dispose of illegally, obstructively and dangerously parked vehicles on their own housing estates. An alternative would be to allow effective enforcement of parking charges. However it is not clear whether the provisions in Clause 56 and Schedule 4 would allow councils to recover unpaid parking fees without having to go through the costly and time consuming process of the small claims court. Again government clarification of how they see these provisions working would be helpful.

Release and publication of datasets held by public authorities

36. The LG Group supports the principle of greater transparency in the public sector, but does not believe that this should place an additional burden on local government. We also believe that a clear legislative framework around the publishing of data is needed.

37. There are already inconsistencies in the law on publishing data such as whether transparency is more important than being able to charge for information, and also inconsistencies between national and European regulations. The provisions in the Bill will not, in our view, resolve these inconsistencies and we understand a number of government departments and non-departmental public bodies have similar concerns. We are of the view that the government needs to start discussing with all interested parties how the Bill can address these inconsistencies, and simplify legislation in this area, rather than add to its complexity.

Vetting and Barring Scheme / Criminal Records Bureau

38. The Group believes the Government’s proposals to be broadly helpful. Although they potentially increase the risk by reducing the amount of vetting, we believe it to be a positive move if this means everyone is more individually vigilant rather than relying on vetting.

39. The LG Group believes the administration of criminal records could certainly be made more straightforward, efficient and cost-effective. We agree that matters could be simplified and made more efficient with one comprehensive system and hope that this is the result of the draft legislation proposed.

40. It is concerning in the current economic climate that the merging of the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) to form a streamlined new body is being funded by an increase in CRB applications – for instance enhanced check applications will from 6 April 2011 increase from £36 to £44, an increase of 22%. This represents further financial pressure on already stretched council budgets.

Enhanced Criminal Record Bureau checks for taxi and PHV drivers

41. Despite the increase in cost detailed above, the LG Group would like to see the Protection of Freedoms Bill used to address a gap in the regulatory framework, to ensure enhanced CRB checks are completed for all taxi and private hire vehicle (PHV) drivers.

42. The CRB recently notified councils that Enhanced CRB disclosure should only be required for drivers who transport children and vulnerable adults as part of a contract to or from schools or hospitals (which constitutes ‘regulated activity’). The Group believes that Enhanced CRB disclosure for all taxi and PHV drivers is essential on grounds of public safety.

43. Enhanced CRB disclosure contains additional information to criminal convictions which is important in determining whether an applicant can be considered ‘fit and proper’ to transport vulnerable persons. This includes information on alleged serious sexual assaults, rapes, terrorist activities, kidnapping, organised crime and drug dealing. Often there are instances where an individual has not been convicted of an offence but there are multiple accusations which are of sufficient concern to investigate further. There are often drivers on bail or facing charges related to offences that they have not notified councils about. Without this information which is presented as part of Enhanced CRB disclosure, the local council would not find out about the subsequent convictions until the standard CRB is renewed (potentially 3 years).

44. The recent cases of John Worboys, Derrick Bird and Christopher Halliwell highlight the position of trust a taxi and PHV driver has, as well as the vulnerability of many passengers. The recognised taxi and PHV trade associations are fully supportive of Enhanced CRB disclosure for all drivers. The LG Group therefore urges Government to legislate to allow councils to request Enhanced CRB disclosure from all taxi and PHV drivers.

45. Relevant case studies have been included in Appendix 3.

END OF SUBMISSION

Appendix 1: CCTV case studies

When the LG Group gave oral evidence to the Protection of Freedoms Bill Committee on Thursday 24th March 2011, the Chairman requested that the Group include evidence within our written submission of the positive use and effects of CCTV. As a result, please find below a selection of recent examples covered by the media highlighting multiple instances of CCTV being used successfully [3] to protect the public.

March 2011

CCTV footage of violence in Taunton

http://www.somersetcountygazette.co.uk/news/8909499.David_Black_jailed___CCTV_footage_of_violence_in_Taunton/

Attack Caught On Camera - SKDC CCTV team assist police

http://www.southkesteven.gov.uk/index.aspx?articleid=3322&formid=10

Police officer convicted of assaulting teenager

http://www.bbc.co.uk/news/uk-england-london-12789689

February 2011

Gang of teenagers caught on CCTV tormenting Frodsham pensioners,

http://www.chesterchronicle.co.uk/chester-news/featured-stories/2011/02/17/gang-of-teenagers-caught-on-cctv-tormenting-frodsham-pensioners-59067-28183950/

Man who pushed bin on Hampshire railway line is jailed

http://www.bbc.co.uk/news/uk-england-hampshire-12512246

CCTV catches Mersey bus drivers using mobile phones at wheel, skipping stops and running red lights
http://www.liverpoolecho.co.uk/liverpool-news/local-news/2011/02/23/cctv-catches-mersey-bus-drivers-using-mobile-phones-at-wheel-skipping-stops-and-running-red-lights-100252-28217249/

January 2011

Arrest after CCTV of bike thrown on live rail

http://www.bbc.co.uk/news/uk-england-hampshire-12186236

Four sentenced for Pontarddulais silver band thefts

http://www.bbc.co.uk/news/uk-12249568

2010

CCTV assists hundreds of incidents in Gravesend town centre

http://www.gravesendreporter.co.uk/news/cctv_assists_hundreds_of_incidents_in_gravesend_town_centre_1_764847

Graffiti taggers made to pay for their crime

http://www.thanet.gov.uk/news/latest_press_releases/taggers_caught_on_cctv.aspx

CCTV 'helps solve six crimes a day'

http://www.thisislondon.co.uk/standard/article-23910070-cctv-helps-solve-six-crimes-a-day.do

Appendix 2: Case studies on enhanced CRB checks for taxi and PHV drivers

Please note, details such as the local authorities, dates, names of drivers etc are not included in these examples as such information is confidential, and therefore the records are destroyed by the authority. Further examples can be supplied upon request.

EXAMPLE 1

One applicant’s Enhanced CRB Disclosure came back with minor convictions and information from the local Police. That information showed that he had been arrested for "grooming" a 14 year old girl with learning difficulties over a 2 year period. He had sent her nude photographs of himself and when the Police interrogated his laptop computer they found 1 image of a child (cat.1) and 4 images of children (cat.4). It was also found that he regularly trawled child pornography websites. This matter never went to court but was instrumental in the council refusing to license him.

EXAMPLE 2

A driver received a caution for taking an elderly customer to an ATM for two years and stealing a total of £5000 from her over that prolonged period. Because of the CPS directive to reduce the burden on the courts this was dealt with by way of caution by the police and this information was never disclosed to the council by the driver. It was flagged up on the Enhanced CRB with further background information added by the Chief Officer of Police. Based on this information the council revoked the licence.

EXAMPLE 3

An individual was arrested as part of a group rape of a young girl in a vehicle. Despite a used condom with his DNA profile being found at the scene, he was discharged on grounds of insufficient ID evidence. This information was highlighted as part of Enhanced Disclosure and warranted enough concern by the council to refuse the licence.

EXAMPLE 4

A driver had been arrested on suspicion of rape, but no further action was taken by the police. The Chief of Police disclosed in the additional information on the CRB check that in the course of the criminal investigation the licensee had admitted to sexual contact in his vehicle with a female drunk passenger who was travelling alone. Whilst this was not proven through criminal prosecution to be rape, the Council's Regulatory Committee considered the conduct not to be appropriate for a fit and proper licensee, and his licence was revoked.

EXAMPLE 5

A driver was refused on intelligence provided by Police that showed he had acted inappropriately on 3 occasions in an 18 months period when acting as a PH driver in another council area. On these occasions he put a lone female in the front passenger seat and then found an excuse to lean across her and touch her indecently. He was arrested each time although never convicted. However the licensing authority felt that he had shown a pattern of behaviour that could put lone females at risk.

Another example was where the authority received intelligence that a potential driver was being investigated for a series of indecent assaults and rape on girls where he acted as a photographer for a model agency took them back to his "studio" and indecently assaulted them or raped one on one occasion. The licensing authority refused him a licence on that basis and later that year he was in fact convicted of rape.

EXAMPLE 6

We had a taxi driver that assaulted a lone female on the way home. After a long investigation the prosecution was eventually dropped by the CPS due to insufficient evidence. The driver therefore appeared before our Licensing Committee and the Police were in attendance to give evidence on a number of other incidents, again where the victims had refused to make statements. In addition this particular driver had received a previous warning for inappropriate conversations with female passengers. Taking all of this information into account the Licensing Committee revoked the licence.

The driver then applied for a taxi licence at a nearby council and again at (at least) a further two other local authorities. Fortunately the additional information supplied by the Police on the Enhanced CRB resulted in this being flagged up to respective licensing authorities. Eventually the man settled in one area and appealed to both the Magistrates and Crown Court in order to get a licence. Both the Police and the local licensing authority attended the latter and again it was refused.

Appendix 3: LG Group analysis of Schedule 2

When the LG group gave oral evidence to the protection of freedoms bill committee on Thursday 24th march 2011, the chairman requested that the group include analysis in our written evidence of schedule 2 of the protection of freedoms bill on ‘Repeals etc. of Powers of Entry’. Only regulations the Group feels are of relevance to local government, or those the Committee referenced at the evidence session, are commented on below.

Older Cattle (Disposal) (England) Regulations 2005 (S.I. 2005/3522S.I. 2005/3522)

This is an important piece of legislation to protect the food chain and human health in relation to BSE ('mad cow disease'). Councils often take enforcement action and prosecutions in relation to this legislation, to help ensure older cattle which present more of a BSE risk do not enter the food chain, and so the LG Group believes the powers of entry in relation to its enforcement need to be retained.

Gas Appliances (Safety) Regulations 1995 (S.I. 1995/1629S.I. 1995/1629)

The LG Group does not believe that revoking the power of entry under these regulations would affect the powers of trading standards officers to enter known or suspected manufacturing premises.

Environment Act 1995

The powers to be revoked in regard to this piece of legislation relate to domestic waste and are not therefore for the LG Group to comment on.

Salmonella in Turkey Flocks and Slaughter Pigs (Survey Powers) (England) Regulations 2006 25 (S.I. 2006/2821S.I. 2006/2821)

The LG Group wishes to highlight a potential implication of revoking these regulations – without the powers of entry given to local government by these statutory instruments, local authorities will not be able to complete salmonella-related surveys as requested by the European Union. Government must be aware therefore that by revoking this power, local government will not be able to comply with European legislation.

April 2011