CHAPTER 12: CIVIL SOCIETY
that the oversight (or warranting) process would benefit from the use of “surveillance
juries”. As the jury is a trusted institution, it was thought possible that it could secure
further public trust (particularly if supported by other oversight bodies and an expert
technical secretariat).
12.83. Broadly, submissions emphasised the need for a proactive rather than reactive
regulator/oversight body, with sufficient resources, sufficient investigatory expertise
and sufficient powers to be able to actively hold public authorities to account.
Moreover, the oversight body must have a public-facing profile to secure public trust
and ensure that public complaints can be considered.
Gaps in oversight
12.84. A number of gaps in the scrutiny and oversight mechanisms were highlighted to me,98
including:
(a)
the use of the wide range of powers to acquire stored communications data
other than by way of RIPA Part I Chapter 2 (for example the use of PACE s9
orders);
(b)
the use of TA s94, which the IOCC has recently been asked by the Prime
Minister to oversee;99
(c)
the implementation of DRIPA 2014 s1 and means of redress for a service
provider who believes that a notice has become disproportionate (and their
request for cancellation has been refused);
(d)
interception of stored communications where a statutory power or production
order is used;
(e)
procedures and requirements for data sharing (which is currently only partly
considered by the ISC and the Information Commissioner);100 and
(f)
errors on the disclosure side, and particularly wrongful disclosures or failure to
disclose by service providers.
12.85. Finally, the statutorily required Northern Ireland Commissioner (RIPA s61) does not
exist.101 Thus, it is submitted that these gaps must be closed (potentially by the use
of a single regulator, as set out above). A related concern is the concern that, at
times, the different scrutiny mechanisms may overlap. While “more” scrutiny might
be seen as better than “less”, this leads to several problems, including inconsistency
of results and confusion as to the correct outcome. Again, it is argued that this could
be achieved by the use of a single regulator.
98
99
100
101
In particular by IOCCO’s submission to the Review.
IOCC Report, March 2015, section 10.
As highlighted by Peter Gill.
As highlighted by Paul Connolly.
237