The Human Rights Act affords everyone an expectation of their right to privacy and whilst it may be obvious of an expectation to a right to privacy in a private place, the code of practice is clear that there could also be an expectation of a right to privacy (albeit reduced) in certain public places, including the online space (i.e. internet). RIPA provides a lawful mechanism for the council in certain very specific and controlled circumstances to breach that right.
The Council is committed to working for the overall good of the people of Welwyn Hatfield. Therefore in carrying out its duties the Council may need to conduct appropriate investigations into allegations or concerns brought to its attention. Very occasionally, our investigations will require us to gather information in respect of individuals who may be unaware of what we are doing (through covert surveillance). In conducting our investigations we must draw a fair balance between the public interest and the rights of individuals. In order to achieve that balance, the Council will take into account and comply with the Regulation of Investigatory Powers Act 2000 (RIPA) (as amended) and the Human Rights Act 1998.
The Investigatory Powers Commissioner (IPC) advises the Council and members of the Public about these issues and the IPC will periodically audit and inspect the way in which Local Authorities including the Council work in accordance with the Act. The IPC has taken over from the Office of the Surveillance Commissioner (OSC) who performed a similar role. The Council was last inspected by the IPC in February 2019 and received a favourable report.
The Protection of Freedoms Act 2012 amended RIPA to make local authority authorisations subject to judicial approval. This change means that the Council needs to obtain the agreement of a Magistrate before it can undertake covert surveillance or to renew an authorisation for covert surveillance.
If the Magistrate is satisfied that the statutory tests have been met and that the use of the technique is necessary and proportionate, they will issue an order approving the grant or renewal for the use of the technique described in the application. This means that the Council is no longer able to orally authorise the use of RIPA techniques and all authorisations must be made in writing and require judicial approval. The authorisation cannot commence until this has been obtained and the activity must be carried out in accordance with that authorisation.
The requirement for judicial approval provides an additional safeguard and assurance to the public that the council will only use covert surveillance techniques where it is shown to be necessary and proportionate.