The Home Affairs Committee (HAC) has now published its report on the Regulation of Investigatory Powers Act 2000 (RIPA). The chairman of the committee, Keith Vaz, has announced that:
“RIPA is not fit for purpose. We were astonished that law enforcement agencies failed to routinely record the professions of individuals who have had their communications data accessed under the legislation. Using RIPA to access telephone records of journalists is wrong and this practice must cease. ”
RIPA allows public authorities, such as the police, to secretly request telephone providers to make available one’s telecommunications data. This data shows from where, to whom and for how long calls were made. The HAC report revealed that last year there were 514,608 requests for such data made under RIPA.
RIPA effectively allows the police to bypass the protections accorded to journalistic privilege in the Police and Criminal Evidence Act 1984 (PACE) which oblige the police to apply to the court for a warrant to obtain journalistic material.
The HAC report follows on from the police’s controversial use of RIPA in several high profile investigations, such as that of Andrew Mitchell and Chris Huhne. In the Andrew Mitchell scandal, the Metropolitan Police had used RIPA to obtain the telephone records of the Sun’s political editor, Mr Newton Dunn, to identify which officer had leaked the “Plebgate” story. A few months later, Kent Police obtained the telephone records of a reporter at the Mail on Sunday so as to identify who had leaked information relating to the Huhne speeding ticket investigation.
The HAC‘s report is an attempt by the government to address the growing and increasingly visible police misuse of RIPA for the obtaining of privileged information. Worryingly, the report has concluded that
“The recording of information under RIPA is totally insufficient, and the whole process appears secretive and disorganised with information being destroyed afterwards. Whereas we acknowledge the operational need for secrecy both during investigations and afterwards (so that investigative techniques more broadly are not disclosed), we are concerned that the level of secrecy surrounding the use of RIPA allows investigating authorities to engage in acts which would be unacceptable in a democracy, with inadequate oversight”
The concern amongst journalists that RIPA may be deterring whistleblowers from coming forward has been echoed by Keith Vaz. This is understandable considering how little oversight and awareness there appears to be of RIPA requests made.
The oversight function lies with the Interception of Communications Commissioner’s Office (IOCCO) which apparently consists of only 12 members of staff. The Interception of Communications Commissioner, Rt Hon Sir Paul Kennedy has told the HAC that in the smaller public authorities, such as local government, IOCCO Inspectors examined all the applications submitted in the period under consideration, whereas only 10 % of the applications made by the police forces and law enforcement agency inspections were individually scrutinized in 2013.
Despite the clear lack of oversight and the alarming findings in the report, it is questionable how much (or little) will actually be done by the government to address such concerns. The report states that
“the Home Office should hold a full public consultation on an amended RIPA Code of Practice, and any updated advice should contain special provisions for dealing with privileged information, such as journalistic material and material subject to legal privilege” and rather lightly concludes “we recommend that the Home Office use the current review of the RIPA Code to ensure that law enforcement agencies use their RIPA powers properly”
Unsurprisingly, this conclusion had already been reached several months ago at the time of Theresa May’s announcement that a draft RIPA code would be published this autumn and subject to a full public consultation. With under a month to go until the start of New Year, it looks like the Home Office has a lot of work left on its plate.
Eurydice Cote is a trainee solicitor at Kingsley Napley.
This post originally appeared on the Kingsley Napley blog and is reproduced with permission and thanks.