Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 23
the assessment or collection of government charges. The ability of the Secretary of State to expand
the grounds also contrasts with the prescriptive nature of Article 8 (2).
The remaining forms of surveillance are intrusive surveillance 35 , directed surveillance 36 , and covert
human intelligence 37 . Directed surveillance and covert human intelligence sources are authorised
internally on a similar basis as access to communications data. This list of permissible purposes is
also similar. The authorisation of intrusive surveillance is permitted to the same limited number of
purposes as required for the interception of communications 38 . The list of those who can provide
authorisation is similarly limited to the Secretary of State and a small number of others, such as a
chief police officer. The Surveillance Commissioner (who provides oversight of the use of directed,
intrusive and covert human intelligence by agencies other than the intelligence services, MoD and
the military) must also authorise any non-urgent request.
The bodies who can apply for the different types of order are set out in ‘RIPA orders’ made through
secondary legislation. As a rule, the more intrusive the level of surveillance, the fewer the bodies who
have authorisation under a RIPA order. The least intrusive surveillance power, access to
communications data, is authorised by the widest range of public bodies.
It was hoped that the introduction of RIPA would be an opportunity not only to address new
technologies and practices but also to bring the legislation into line with modern thinking about the
protection the law must give to citizens’ rights in this sensitive area. Whilst the resulting Act
represents an improvement on the previous law in a number of respects – particularly in taking a
more open, rights-conscious approach to surveillance – it can nevertheless at the same time be
seen as more insidious. As the legal academic Helen Fenwick commented at the time “…the
scheme is riddled with avenues to the broadening of such power, to be explored by the executive
outside the full Parliamentary process…The RIPA pays lip-service to proportionality whilst largely
emasculating methods of scrutinising it. It is apparent that a statutory scheme which hides the
operations it empowers largely from scrutiny, and which, for the most part, places power in the
hands of the executive, while shrouding the citizens’ complaints mechanisms in secrecy, fails to
reflect those democratic values” 39 .
It is clear that much will depend on the way in which the different agencies – from the police and the
security services to local authorities and others with a law enforcement role – exercise the powers of
RIPA in practice. Although as yet there is no independent research on its workings 40 , the provisions
of RIPA fall some way short of a sufficient assurance that the fundamental principles of Article 8 will
be observed. In broad terms this is due to the sheer complexity of the legislation. The Court of Appeal
has called it “a particularly puzzling statute” 41 and Lord Bingham in a House of Lords case described
35
Such as the use of a surveillance device planted in a property or car.
36
Such as the bugging of a public place or the use of external telegraphic or listening devices directed into
a property.
37
Such as informants and undercover officers.
38
That is the interests of national security, the detection and prevention of serious crime and the economic
wellbeing of the country.
39
Civil rights: New Labour, Freedom and the Human Rights Act Dorchester: Longman (2000) p.415.
40
Following a request by the Home Office, the Association of Chief Police Officers (ACPO) submitted a review in
May 2005 which considers issues of process, governance and bureaucracy but this has yet to be published.
41
W, R v [2003] EWCA Crim 1632 (12 June 200s) para.98.