Tuesday 26 January 2010

RIPA – A tale of an unnecessary squabble between Government Departments

Travelling to work today, I reflected on the lengths to which the Prime Minister had sought to impose his authority on a recent dispute between two political parties in Northern Ireland. He cleared his diary and tried to settle matters by personally intervening in the affair.

It’s a shame he can’t be bothered to find the time to intervene in a dispute that is currently brewing between two of his cabinet colleagues over the extent to which all public authorities should be regulated when they access communications data.

What do I mean?

Well, in a little-noticed Parliamentary move, those awfully clever bods at the Home Office have tabled a draft Statutory Instrument which, because no-one takes much notice of such things, will come into force on 6th April. For those who want to look it up, it’s called the Regulation of Investigatory Powers (Communications Data) Order 2010.

The purpose of this SI is to consolidate a crop of SIs which currently exist, which set out various public authorities can demand post or communications information from providers, in accordance with the provisions of the mighty Regulation of Investigatory Powers Act (RIPA). The expectation is that if the authority follows the procedure in the SI, then they should also be complying with the provisions of the Human Rights Act.

When the Home Office first mooted this proposal, back in March 2009, operators liked the idea as a way of setting out, in one document, just who could do what. There are lots of public authorities that access communications data, but that is because they all have their own investigatory functions. It’s not just the police who root out the bad boys. Loan sharks, fly tippers, dodgy dealers are generally investigated by people working for local authorities. The explanatory notes to the SI very helpfully list some 42 different types of public authorities, and it provides examples of just why they need communications data to carry out their work. It's very compelling evidence.

These investigators hail from a wide range of Agencies and Government Departments, including investigators from the Department of Agriculture & Rural Development, the Department for Business, Innovation & Skills, the Department of Enterprise, Trade & Investment, the Department for Environment, Food and Rural Affairs, Department of Health, the Department for Transport, the Home Office, the Ministry of Defence, and the Ministry of Justice.

But – and this is a big but – investigators from one Government Department have refused to play ball. For reasons of their own, they’ve formed the view that they don’t need to subject themselves to the sort of regulation and oversight that comes with RIPA. Who are these miscreants? Step forward the bunch from the Department for Work and Pensions.

DWP's investigators have been told to exercise powers under Section 109B of the Social Security Administration Act 1992 (as amended by the Social Security Fraud Act 2001) to require information from “any person”, including providers. They’ve been told to boycott the RIPA regime.

It’s quite hard to work out just why Yvette Cooper, the current Secretary of State for Work & Pensions, has refused to join the rest of her Cabinet colleagues in allowing her Department to participate in a central scheme. It’s not as though she hasn’t had second-hand experience of RIPA. After all, her husband, Ed Balls was the Economic Secretary to the Treasury between May 2006 and June 2007, and should have been aware that both the Financial Services Authority and HM Revenue & Customs had happily operated under the RIPA regime. Ed was then (and still is) appointed Secretary of State for Children, Schools & Families, and in that capacity he ought to be aware that the Child Maintenance and Enforcement Commission has also happily operated within the RIPA regime.

So, if it’s good enough for Ed, why isn’t it good enough for Yvette?

When providers commented on the Home Office’s proposals last year, some of them hoped that, at last, the Department of Work and Pensions might be forced to end its RIPA boycott. Providers pointed out that, as a consequence of the DPW’s boycott of the RIPA regime:

• They had not had an opportunity to provide any initial or refresher training to competent DWP investigators on the range of information that is available from providers, or to advise how maximum value can be derived from their records (unlike the training currently given to potential and accredited Single Point of Contact (“SPOC”) Officers).
• They found it hard to check the authenticity of all DWP investigators, (the Home Office has a RIPA website which has an up-to-date list of accredited SPOC Officers).
• They had not provided any statistics to the DWP to enable them to confirm that all of the requests received had actually been sent from DWP investigators.
• They had not been involved in any of the oversight mechanisms that the DWP might have put in place to mirror the oversight functions of the Interception of Communications Commissioner (whose annual visits to providers were greatly appreciated, as providers could brief him on trends which had been detected). Providers were not even sure whether an equivalent oversight function exists within the DWP.
• Providers were not able to recover any costs that were incurred in dealing with these requests.
• Providers were also not sure how many other Authorities would follow the DWP’s example and remove themselves from the RIPA regime should they also elect to exercise any concurrent powers that may be conferred on their investigators to acquire “any information” in the future.

What’s wrong with “joined-up Government” and a requirement for all Government Departments to follow common standards - through the RIPA regime?

If I were the Prime Minister, I would stop this unsightly squabble between the Home Office & the DWP by requiring Yvette Cooper to stay behind after the next Cabinet meeting and make her write on Alan Johnson's whiteboard “I must let the Interception of Communications Commissioner oversee all public authorities who access communications data, including my Department of Work and Pensions” 100 times.