The Home Office has launched a public consultation into aspects of the Regulation of Investigatory Powers Act 2000 (RIPA).
Specifically, the consultation covers “Consolidating Orders”, which are the lists of public authorities to make use of covert investigation under the Act. At a rough count, there are some 53 ‘headline’ public bodies in the list – although I use the term ‘headline’ because some entries in the list actually refer to types of public body which are, in turn, far more numerous. For example, “local authorities” is one of the 53 line items, but that category actually includes 433 public bodies across England, Wales, Scotland and Northern Ireland.
The consultation also covers two Codes of Practice which are to be used to provide further guidance on how the Act is supposed to be used. Presumably this reflects noticeable public concern about episodes such as
– the bugging of MP Sadiq Khan while he was visiting one of his constituents in prison;
– police access to information from the office and home of Damien Green, MP;
– numerous reports of the Act being invoked for dubiously trivial purposes;
and persistent tensions* between, on the one hand, the powers granted under RIPA, and on the other hand, relevant statutory rights on the other – such as those provided by PACE (Police and Criminal Evidence Act 1984), common law, and the European Convention on Human Rights (ECHR) and its national analogues.
If you plan to respond to the consultation, you should probably get down to it soon. The consultation document itself is 121 pages long (not counting, of course, the relevant sections of RIPA itself and any other documents you might want to research and refer to), and responses have to be in by July 10th.
[Oh, and by the way – this is not the same as another planned consultation exercise on the question of how the government will manage the retention of communications data across all commercial carriers and channels of communication.]
*For a fascinating and detailed examination of some of those tensions, I can recommend this report of an appeal case heard in the House of Lords last December. Among other things, it clarifies the difference between the status of a statutory instrument like RIPA and that of a Code of Practice such as the two put forward with the current consultation.
“McDonald [Barry McDonald QC, for the Appellant] pointed out that RIPA came into force on 25 September 2000. The Code of Practice on which the PSNI and Secretary of State’s case were based only came into force two years later, in July 2002. As a Code, it did not require nor receive the attention of both Houses; it was not preceded by a white or green paper; it was not legally binding.
McDonald pointed out that two different codes had been in operation. The first, which provided fewer safeguards around surveillance, was possibly a draft and had been in existence for five years without this fact being noticed by the Surveillance Commissioner. There had been no explanation for this discrepancy or the subsequent introduction of the second, different Code.“
The report also includes the following observation by one of the Law Lords, on lawyer-client privilege in police station premises:
“There was a lengthy debate among the Law Lords as to whether it was more or less serious to have overt surveillance (i.e. someone sitting in on a conversation between client and solicitor) or the possibility of covert surveillance such as happened in Antrim PSNI station. After much probing by the Law Lords, McDonald said that in both cases the same unacceptable end was achieved, in that the right to a private conversation between a solicitor and a client was extinguished and a lawyer could thus not obtain complete instructions from his/her client. However, overt surveillance was easier to address as the fact that it had taken place was obvious to all involved. Covert surveillance was very much more difficult to prove and consequently to challenge effectively. Carswell LJ pointed out that he rather doubted that any solicitor of any merit, using Antrim police station, was unaware of the systematic bugging.“
True as Lord Justice Carswell’s comment might be, it does little to address Mr McDonald’s point. After all, if a solicitor sits down with his client in a police cell and opens the conversation with “as an experienced solicitor in the Province, I have to tell you that any conversation in this room is probably recorded by the police”, it still prevents the client from fully instructing the lawyer, and does nothing to prove whether bugging is taking place or not.