Contact: Val Pitman, ext 6612

1. Introduction

The purpose of this report is to ask the Standards Committee to note the legislative requirements for the use of covert human intelligence sources (`CHIS') or the carrying out of covert surveillance as part of an investigation and/or an enquiry and to endorse the recommendations made in section 6.

2. Background

2.1 The Human Rights Act 1998 (`HRA') came into force in October 2000. It gives effect to the European Convention on Human Rights (`ECHR').

2.2 The HRA makes it unlawful for a public authority i.e. Hampshire County Council (`the Council') to act in a way that is incompatible with a Convention right.

2.3 Under Article 8 of the ECHR everyone has the right to respect for his/her private and family life, his/her home and his/her correspondence. However, it is recognised that there may be circumstances in a democratic society where it may be necessary for the Council to interfere with this right, but only in accordance with the law and only as necessary in the interests of national security, public safety or the economic well-being of the Country, for the prevention of disorder or crime, for the protection of health and morals or for the protection of the rights and freedoms of others.

2.4 A failure to comply with the HRA could result in a civil claim against the Council or it could be raised as a defence in any proceedings brought by the Council.

2.5 To be able to justify any interference with the right to respect for an individual's privacy and to comply with the HRA, the Council will need to demonstrate that any intrusion into an individual's privacy is necessary for the purposes of an investigation.

2.6 Surveillance is often a necessary part of any investigation. Covert surveillance is regulated by the Regulation of Investigatory Powers Act 2000 (`RIPA') as is the use of covert human intelligence sources, e.g. informants.

2.7 An example of the need to authorise covert surveillance would be the use of
surveillance techniques (i.e. a hidden camera) to detect a breach of a planning
condition. An example of the need to authorise a CHIS would be where, in a
workplace situation, a `whistleblower' was asked to maintain contact with
another employee suspected of fraud.

2.8 Where covert surveillance or the use of CHIS is considered appropriate it will
be necessary for it to be authorised before it can commence. There are also
provisions relating to the review, renewal and cancellation of authorisations.

2.9 This applies whether the surveillance or use of CHIS is being undertaken by
Council officers or by an outside agency acting on the Council's behalf.

2.10 Authorising officers, appointed by the Chief Officer from within each
department, will need to satisfy themselves that a defensible case can be made
out for covert surveillance activity and/or the use of CHIS.

2.11 A list of proposed authorising officers is attached as appendix 1. Statutory
rules set out the level of officer required as Assistant Chief
Officer, Officer responsible for the management of an investigation.

2.12 RIPA is supported by numerous Statutory Instruments and by a Code of Practice issued by the Secretary of State. The Code is admissible as evidence in civil and criminal proceedings and a Court or Tribunal must take any relevant provision of the Code into account.

3. The Office of Surveillance Commissioners (`OSC')

3.1 This is a Tribunal Non Departmental Public Body sponsored by the Home Office set up in 1999.

Its key objectives are to :-

· promote an effective and ethical process for the authorisation of covert surveillance in accordance with legislation

· provide public reassurance about the authorisation of covert surveillance

· run its own operations efficiently and effectively.

· The Chief Surveillance Commissioner (Sir Andrew Leggatt) reports to the Prime Minister and Scottish Ministers every year. The Chief Surveillance Commissioner, Commissioners and Assistant Commissioners are appointed by the Prime Minister. Commissioners hold, or have held, high judicial office.

3.2 Surveillance Inspectors assist the Chief Commissioner in overseeing surveillance operations carried out by the police and other public authorities. Inspections take the form of interviews with senior management and operational staff at all levels, assessment of documentation relating to strategies, policies and procedures and detailed analysis on individual operations.

4. Inspection of Hampshire County Council

4.1 The Deputy Surveillance Commissioner, The Honourable Mr. Jeremy Fordham, visited the County Council on the 16 October 2002. He met with Jeff Pattison, Val Pitman, (Data Protection Officer) Nigel Snape (Trading Standards' Manager ) and Roger Lawes (Assistant County Planning Officer). The outcome of the Meeting was that whilst the Trading Standards' Department were considered to have procedures in place that met the requirements of the RIPA, across the Council as a whole, such procedures were lacking.

4 RIPA Policy and Procedure

4.1 The draft Policy and Procedure (appendix 2) have been promulgated to all Council Departments through the Data Protection Coordinators' Group and all Departments are now aware of the need to comply with RIPA and the importance of following the Corporate Policy and Procedure. The detailed procedure notes - guidance to all staff, and the two sets of authorisation forms, have been circulated as background information to Chief Officers prior to this meeting. Members may obtain a copy of the detailed procedure notes direct from Val Pitman.

4.2 The DPO has received advice from the OSC relating to covert surveillance carried out in schools. The OSC recommended that a record of all authorisations (including schools) be held centrally and suggested the authorising officers for schools should be Assistant Chief Education Officers. The DPO considers that Headteachers could come within the category of "officer responsible for the management of an investigation" and should therefore be assistant authorising officers.

4.3 Monitoring of email and internet usage are covered by part I of RIPA 2000 and this part of the Act does not come within the jurisdiction of the OSC. However, it is likely that consideration of infringement of the Human Rights Act 2000, Article 8, will have to be taken into account before authorising requests to monitor email accounts and use of the internet. The release of a new code of practice, governing the monitoring of staff emails, has been delayed to allow the new Information Commissioner time to review it. When the code is published the Council will develop policies and procedures to ensure compliance with part I of RIPA 2000.

4.4 Monitoring of the authorisations approved by the various Council Departments will be undertaken by the Monitoring Officer and the Data Protection Officer and records kept. These records are to be held centrally, with a retention period of 6 years.

5 Training

5.1 Training for authorising officers will be arranged once the policy and procedure have been approved by the Standards Committee

6 Recommendations

The Standards Committee is asked to:-

(i) agree to the adoption by the County Council of the policy and procedure applying to the regulation of Investigatory Powers Act 2000 as referred to in appendix 2 to this report;


(ii) require all Chief Officers to adhere to the authorisation procedures whenever covert surveillance or the use of covert human intelligence sources are contemplated or is carried out;


(iii) to authorise the Head of Corporate and Legal Services and Monitoring Officer to develop and implement a policy and authorisation procedure for the monitoring of staff e-mails and use of the internet, following the publication by the Information Commissioner of a code of practice on the same issue;


(iv) authorise the Head of Corporate and Legal Services and Monitoring Officer to be responsible for auditing and maintaining the centrally held records for all authorisations granted under the Regulation of Investigatory Powers Act 2000;

(v) to agree that the Office of Surveillance Commissioners be informed of the policy and procedures now in place in respect of all requirements under the Regulation of Investigatory Powers Act 2000.