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IPCO Annual Report 2017
the current pressure on public finances, I am concerned that we may have insufficiently
resourced both the inspectorate and our numerically-small legal and policy team. Once we
have a full complement of staff and implementation of the Act is complete, we will then be
able to judge whether the original predictions were awry. The Home Office has agreed that
our staffing levels need to be kept under careful review and may need adjustment.
2.18
Finally on resources, I respectfully endorse the observation of the last Chief Surveillance
Commissioner, Lord Judge, in his 2016 Annual Report that “the pace of [recruitment] is
alarmingly slow”, and to this I add my deep anxiety as to time taken by the vetting and
security clearance process. This is a problem experienced across government but as a result
of the notably slow progress – this regularly takes well in excess of nine months – a significant
number of posts in the office remained vacant throughout 2017 and this bleak picture has
continued to date. Some extremely well-qualified candidates have accepted other positions
because the wait became excessive. This has placed a significant and undue burden on the
staff currently in post, and I can only thank them for their considerable forbearance.
Areas that might benefit from oversight by IPCO
2.19
Based on our early work, it appears that there may be some inconsistencies in where the
double‑lock or my oversight responsibilities currently fall. Intrusive surveillance conducted
by the intelligence services, the MOD and HM Forces, along with CHIS operations, fall outside
the regime of the double lock, albeit they have the potential to be significantly invasive.
2.20
In a similar vein, some areas of Government or local authority activity are either not
explicitly expressed to be within my oversight remit or clearly fall outside it. Some of these
activities will be overseen by IPCO because of the ‘proportionality’ consideration when
Commissioners grant or refuse applications for warrants, but there is no concomitant
express mandate on me to conduct ex post facto oversight. I have set out a few examples
of these potential gaps below:
• The ‘Overseas Security and Justice Assistance’ (OSJA) process. This is the mechanism by
which public authorities assess the Human Rights and other implications of cooperative
relationships with organisations in other countries. This activity seemingly falls, arguably
inconsistently, outside of my mandate.
• Facial recognition. There has been some recent controversy regarding the use of facial
software by police forces. I oversee any conduct that requires surveillance authorisation,
but neither Parliament nor the courts have yet established a framework against which to
judge this particular activity.
• Surveillance activity conducted by Local Authorities in Northern Ireland. Whilst the
Regulation of Investigatory Powers Act 2000 provides for an Investigatory Powers
Commissioner for Northern Ireland, the post remains vacant and the oversight of
Local Authorities is outside of my remit, with the effect that they operate without
any external scrutiny.
2.21
It is entirely a matter for the Prime Minister and the government to decide whether it is in
the public interest for areas such as these to be placed under the double lock or as coming
within IPCO’s oversight. And it is for the government to decide on the framework within
which any such oversight is to be exercised. I simply highlight the argument that there is
currently insufficient regulation of these areas and that this could be resolved through
their designation as part of IPCO’s double‑lock and ex post facto oversight responsibilities.