UK government forced to delay new surveillance powers

- government withdraws order to extend powers to 1,039 public authorities

- Chief Surveillance Commissioner admits: "I clearly cannot carry out any meaningful oversight of so many bodies without assistance"



The UK government has had to delay the adoption of a statutory Order - under the Regulation of Investigatory Powers Act 2000 - authorising thousands of national and local officials to require communications data held on an individual, group or organisation to be handed over by communications providers. The Order has to be agreed by both the House of Commons and the House of Lords, although this is normally a formality (an Order implements a power granted under legislation already adopted). Although the bodies listed in the Order number only twenty-four the total number of public authorities who would have been allowed to issue self-authorising notices totals 1,039.

The government planned to push the Order through on Tuesday 18 June but, due to opposition by civil liberties groups, it was re-scheduled until Monday 24 June and now today (18 June) the Home Office announced that the measure is to be put off until "the next session" of parliament (which means the autumn) to allow for "consultations".

The Order on communications data

The government's attempt to extend the implementation of RIPA by bringing into force, through an Order, Section 22 covering authorisation to obtain communications data ran into strong civil liberties opposition when the list of public authorities who would be given this power was published.

Communications data includes: name and address, service usage details, details of who you have been calling, details of who has called, mobile phone location info, source and destination of email, usage of web sites (but not pages within such sites).

The current list of bodies allowed to serve RIP s22 notices is: Police (all the forces, MOD police, NCS, NCIS) Secret Intelligence Agencies (MI5, MI6, GCHQ), Customs and Excise and Inland Revenue.

The proposed Order (Draft Statutory Instrument 2002 No) was intended to extend this list and to come into force on 1st August 2002. The Orders read:

SCHEDULE
Article 2

ADDITIONAL RELEVANT PUBLIC AUTHORITIES FOR THE PURPOSES OF SECTION
25(1) OF THE REGULATION OF INVESTIGATORY POWERS ACT 2000

Government departments
1. The Department for Environment, Food and Rural Affairs.
2. The Department of Health.
3. The Home Office.
4. The Department of Trade and Industry.
5. The Department for Transport, Local Government and the Regions.
6. The Department for Work and Pensions.
7. The Department of Enterprise, Trade and Investment for Northern Ireland.

Local authorities

8. Any local authority within the meaning of section 1 of the Local Government Act 1999.
9. Any fire authority as defined in the Local Government (Best Value) Performance Indicators Order 2000.
10. A council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.
11. A district council within the meaning of the Local Government Act (Northern Ireland) 1972.

NHS bodies in Scotland and Northern Ireland

12. The Common Services Agency of the Scottish Health Service.
13. The Northern Ireland Central Services Agency for the Health and Social Services.

Other bodies

14. The Environment Agency.
15. The Financial Services Authority.
16. The Food Standards Agency.
17. The Health and Safety Executive.
18. The Information Commissioner.
19. The Office of Fair Trading.
20. The Postal Services Commission.
21. The Scottish Drug Enforcement Agency.
22. The Scottish Environment Protection Agency.
23. The United Kingdom Atomic Energy Authority Constabulary.
24. A Universal Service Provider within the meaning of the Postal Services Act 2000.

RIPA 2000 allows for authorisations (as distinct from warrants for telephone-tapping) and the serving of notices by "a person designated" include the following grounds:

a) "in the interests of national security"
b) "for the purpose of preventing or detecting crime or of preventing disorder"
c) "in the interests of public safety"

The test here is very, very broad and is simply defined as "crime", however minor, and "disorder". A "designated" person in a public authorities can issue an "authorisation" requiring communications data from a provider without any judicial procedure or review.

The different Commissioners

The Order now put on hold by the government would have placed major demands on the Interception of Communications Commissioner who would be expected to monitor and keep under review self-authorised notices issued by 1,039 public authorities and potentially thousands of officials for access to communication data. This is in addition duties laid to review the issuing of warrants to tap and surveil telecommunications and of mail-opening.

The two other Commissioners whose work is affected by RIPA 2000 are the Intelligence Services Commissioner and the Chief Surveillance Commissioner.

The annual report of the Chief Surveillance Commissioner

Sir Andrew Leggatt, the Chief Surveillance Commissioner, admits in his latest annual report (published in January 2002, Cm 5360) that he does not even have the staff to carry out his functions. Under the Regulation of Investigatory Powers Act 2000 (known as "RIPA") the Commissioner is responsible for:

"all covert surveillance carried out by all public authorities in the United Kingdom"

except for the interception of communications (telecommunications and post) and the intelligences service.

The Commissioner is responsible for the following areas of surveillance:

i) entry or interference with property without the consent of the owner under Part III of the 1997 Police Act. Between 1 April 2000 and 31 March 2001 a total of 2,565 "authorisations" were given by "chief officers of the law enforcement agencies" in the UK. Of these 365 required the prior approval of the Surveillance Commissioner for "sensitive operations" such as hotel bedrooms (76), legally privileged material (4) and "dwellings" (234) - the Commissioner "quashed" six of these 365 authorisations.

ii) intrusive surveillance, directed surveillance and "covert human intelligence sources" (CHIS, agents, informants and undercover officers) under Part II of RIPA 2000. "Intrusive" surveillance involves the placing of surveillance devices or officers inside a residential premises or private vehicle. "Directed surveillance" is surveillance which is not "intrusive" such as a surveillance device directed at a house from outside.

iii) arrangements for "protecting encrypution keys".

Although "public authorities" have to keep a record of all directed surveillance and of undercover agents the Commissioner's report contains no figures - which strongly suggests (see below) that he has no idea of the extent of their use.

Figures are given for "instrusive surveillance" and there were 310 authorisations in the UK between 25 September 2000 and 31 March 2001 (seven months). None were "quashed" by the Commissioner.

A system out of control

What is extraordinary about the Surveillance Commissioner's report, which was published in January 2002, is that he openly admits that with present staffing levels he is only able to keep under review the traditional law enforcement agencies (police, customs, National Criminal Intelligence Service). However, his report says:

"There are about 950 public authorities (including local authorities and health trusts) which are entitled to conduct covert surveillance under the provisions of the 2000 Act, and the performance of which I must keep under review. I clearly cannot carry out meaningful oversight of so many bodies without assistance" (para 2.4).

The current staff of the Surveillance Commissioner's office is just 22.

The enormity of the problem is emphasised by the Commissioner:

"the full extent of the surveillance work carried out by these other public authorities cannot be known without more detailed information than is so far available"

In short, the Commissioner does not know what is going on - the Act requires public authorities to keep records but not it appears to inform the Surveillance Commissioner.

Tony Bunyan, Statewatch editor, comments:

"The government was attempting to introduce yet another sweeping new power without there being any chance whatsoever of its use being properly monitored. And this at a time when the Surveillance Commissioner does not have the resources to monitor the use of instrusive and "discrete" surveillance and the use of undercover agents and informants by over 1,000 public authorities.

The fact that on this occasion the government has been forced to put off this measure until the autumn should not distract attention from the overall direction they, and other EU governments, are going. Democratic standards and rights for citizens, asylum-seekers and refugees, protestors and dissenters are being removed or suspended across Europe."

See the Statewatch Observatory on surveillance: S.O.S.Europe



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