CHAPTER 6: POWERS AND SAFEGUARDS
6.8.
(a)
Certain public authorities (including local authorities) are entitled only to request
service use information and subscriber information.13
(b)
Even bodies which are entitled to all three categories may be bound by different
authorisation requirements: for example, a designated police inspector may
request subscriber information, whereas a request for service use data and
traffic data must be authorised by a superintendent.14
The categorisation has been criticised as obscure and unsatisfactory: I return to the
point at 14.12 and Recommendation 12 below.
Powers outside RIPA
6.9.
The current statutory framework governing investigatory powers has developed in a
piecemeal fashion. The critical piece of legislation is RIPA. However, it is convenient
first to introduce a number of other parallel statutes that authorise interception and the
acquisition of communications data, but without (as a rule) the same degree of
attention, analysis and oversight that is given to RIPA. RIPA itself makes clear that it
does not supplant those other frameworks.15 The Government expressed its intention
some time ago to streamline the various statutory mechanisms via which data may be
obtained.16
Non-RIPA interception
6.10.
Apart from RIPA, WTA 2006 is the key statute allowing for the interception of
communications.17
6.11.
Sections 48 and 49 grant the Secretary of State and the Commissioners of Revenue
and Customs a very broad power to authorise the interception of wireless or other
communications. Interception must be necessary for a series of statutory purposes,
including prevention of crime and disorder or the interests of national security. It must
also be proportionate to the objective sought. The authority to intercept may be
granted to any persons that the designated authority considers appropriate and for
such time as the designated authority considers appropriate. The warrant must be
issued by hand. The ISC reports that the Foreign Secretary has issued a single
authorisation covering all of GCHQ’s activities under the WTA 2006.18
6.12.
The relationship between WTA 2006 and RIPA is somewhat opaque. There is no
operational distinction between the two statutes. RIPA grants the power to interfere
13
14
15
16
17
18
The Regulation of Investigatory Powers (Communications Data) Order 2010 (SI 480/2010).
Ibid. Schedule 1.
See for example s1(5)(c) which provides that interception in relation to stored communications has “lawful
authority” if undertaken under “any statutory power.” See also s80 which provides that nothing in RIPA
should be construed as making it unlawful to engage in any conduct that “would not be unlawful apart
from this Act.”
Home Office Review of Counter-Terrorism Powers, (CM 8004) (January 2011), p. 29.
In addition, the interception of prisoners’ communications takes place under a series of Prison Service
Instructions (see s7 of the 2013 Annual Report of IOCCO). RIPA s4(4) provides that conduct that takes
place in a prison is authorised by RIPA if it is conduct in exercise of any power conferred by or under any
rules made under the Prison Act 1952 s47, the Prisons (Scotland) Act 1989 s39 or the Prison Act
(Northern Ireland) 1953 (prison rules) s13.
ISC Privacy and Security Report, para 177.
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