HUMAN RIGHTS ACT 1998 - Part two
Regulation of investigatory Powers Bill
This Bill is being made under section 19(1)a of HRA98. In terms of who is effected by this bill, the answer is anyone acting with the use of investigation powers. In other words Benefit Inspectors, Trading Standards Officers, Council Tax Inspectors, Housing Officers, Auditors etc.
The Bill deals with the following areas:
This is where I do believe that it effects the DSS very directly because I can see an argument that the "do not redirect" conflicts with the HRA98 and s1(1)a RIP. Clarification would be required.
The HRA while giving protection and rights to everyone takes the view that there has to be circumstances where the state or municipalities will need to breech those rights. There are a number of prescribed circumstances where that will occur. For example where it is in the public's interest to do so (ie Public Disclosure), or the detection and prevention of crime, prosecuting offenders, tax collection (including Council Tax) or National Security. The difference being that we can no long just go off and use our Investigatory powers, there has to be visible accountability.
This is not a concept that should come as a great surprise. More and more policy and law from the current Government is about public accountability. What is now required is that any operation or investigation is authorised. This means that the inspector must ensure that they have authorisation from a senior officer if they wish to undertake certain aspects of an investigation. For Local Authorities I would suggest that the appropriate level should be assistant director level or higher.
Interception of communications & Acquisition and disclosure of communications data
Putting DNR(Do not redirect) to one side, Housing Benefit inspectors are unlikely to be involved in intercepting communications. Auditors and managers on the other hand will occasionally intercept both mail and electronic communications where they suspect staff of sort of mischief. Mischief is the key word here. Interception can only occur if that mischief could be considered criminal. For example: In a recent industrial tribunal case, Kwikfit dismissed two members of staff who engaged in an exchange of amorous emails. Other members of staff, apparently more interested in the love life of their colleagues than in their own work, accessed their work mate's computers and read the emails. Even if this had happened with senior management's supervision it would have been a breech of HRA.
If the matter had been criminal or one of the other acceptable exemptions then in order to access the email then it would have required written approval from the operations manager.
In the case of Auditor it may be appropriate for that to be the Chief Internal Auditor who may be a deputy director, but if not consider a higher position.
Surveillance and covert human intelligence sources
This is the key area for fraud investigators in all fields. Any covert surveillance must be authorised before it takes place. You need to put forward for authorisation the scope of your surveillance, its objectives and its intended suspects.
With benefit fraud cases you may wish to consider surveillance in the following areas
1 - Living Together as Husband And Wife
The surveillance would be solely for the purpose of gathering intelligence in relation to the two named persons co-habiting. Any activity observed in relation to another offence would have to be separately approved. If children were involved in the co-habitation then they too would have to be named on the authorisation.
2 - Non-Residency/Collusive Landlords
Surveillance would be for the purpose of gathering intelligence in relation to all named persons living at a property. Also named would be the Landlord and any of their agents or employees. Any person observed that was not named on the authorisation could still be observed in order to establish their connection to the scope of the investigation. Once a link and the identity of the new target is known it should be added to the authorisation. However, if when observing a new target it becomes apparent that they are not linked to the scope of the investigation then observations should cease immediately.
Surveillance would be for the purpose of gathering intelligence in relation to named persons possibly engaged in undeclared employment. Also named would be employers and their known employees. Observations of work premises are permitted without authorisation as long as the premises are open to the public. As with the example above you will observe person that have not been named on the authorisation. Ad-hoc observations are permitted as long it remains within the scope of the investigation. Once the identity and the relationship to the investigation has been established then they should be included on the authorisation.