The Rt Hon Lord Judge Office of Surveillance Commissioners nuiGVIL AND BUTE COUNCIL CHIEF EXECUTIVE'S UNIT 2 4 SEP 2015 Chief Surveillance Commissioner OFFICIAL - SENSITIVE 21 September 2015 OSC INSPECTION - ARGYLL AND BUTE COUNCIL Dear Mrs Loudon, On 11 August 2015, on my behalf, Mr Andrew Mackian, one of my Inspectors, carried out the triennial review of RIPA compliance by your Council. I enclose a copy of the Report, which I endorse. The Report makes troublesome reading . Recommendations made in 2012 , which were accepted by the Governance Officer by letter dated 10 October 2012 have not been implemented. The areas for compliance improvement are carefully set out in paragraph 21 and the training recommendation has been ignored since December 2012. There is no equivocation about the language in paragraph 25. The requirements are "imperative", and it is time they were implemented. The report acknowledges that key members of your staff are well motivated, anxious to meet the necessary standards, and , provided they receive appropriate training, improvements should soon follow. I recognise that your Council does not frequently deploy RIPA powers. The problem nevertheless is that every occasion when it does is subject to the statutory provisions. Non compliance can be reputationaly damaging to the Council and may indeed create problems if and when cases come to Court. I shall assume that the Report, and this letter, are accepted. If my Office can assist please let me know. Mrs Sally Loudon Chief Executive Argyll and Bute Council Kilmony Lochgilphead Argyll PA31 8RT OFFICAL - SENSITIVE Office of Surveillance Commissioners . . OFFICE OF SURVEILLANCE COMMISSIONERS INSPECTION REPORT Argyll and Bute Council 11th August 2015 Surveillance Inspector: Mr Andrew Macki.an. OFFICAL- SENSITIVE DISCLAIMER This report contains the observations and recommendations identified by an individual surveillance inspector, or team of surveillance inspectors, during an inspection of the specified public authority conducted on behalf of the Chief Surveillance Commissioner. The inspection was limited by time and could only sample a small proportion of covert activity in order to make a subjective assessment of compliance. Failure to raise issues in this report should not automatically be construed as endorsement of the unreported practices. The advice and guidance provided by the inspector(s) during the inspection could only reflect the inspectors' subjective opinion and does not constitute an endorsed judicial interpretation of the legislation. Fundamental changes to practices or procedures should not be implemented unless and until the recommendations in this report are endorsed by the Chief Surveillance Commissioner. The report is sent only to the recipient of the Chief Surveillance Commissioner's letter (normally the Chief Officer of the authority inspected). Copies of the report, or extracts -of it, may be distributed at the recipient's discretion but the version received under the covering letter should remain intact as the master version. The Office of Surveillance Commissioners is not a public body listed under the Freedom of Information Act 2000, however, requests for the disclosure of the report, or any part of it, or any distribution of the report beyond the recipients own authority is permissible at the discretion of the Chief Officer of the relevant public authority without the permission of the Chief Surveillance Commissioner. Any references to the report, or extracts from it, must be placed in the correct context. OFFICAL - SENSITIVE Office of Surveillance Commissioners File ref: OSC/INSP/075 The Rt. Hon Lord Judge Chief Surveillance Commissioner Office of Surveillance Commissioners PO Box 29105 London SWlV lZU 14th August 2015 OSC INSPECTION REPORT - ARGYLL AND BUTE COUNCIL INSPECTION DETAILS 1. Date of Inspection The inspection was undertaken on the 11th of August 2015. 2. Inspector Andrew Mackian INTRODUCTION 3. Argyll and Bute Council covers the second largest geographical area of any Scottish local authority." It stretches over 100. miles from Appin in the north to Campbeltown in the south and more than 80 miles from the Isle of Tiree in the west to Helensburgh in the east. The Council covers six towns, 25 inhabited islands and nearly 3,000 miles of coastline. Fish and agriculture remain the main industries within the area. 4. Mrs Sally Loudon, as for the 2012 inspection visit, remains as Chief Executive. All correspondence should be forwarded to Argyll and Bute Council, Kilmory, Lochgilphead, Argyll, PA31 8RT. INSPECTION APPROACH 5. Arrangements for the inspection visit were co-ordinated by Iain Jackson, Governance and Risk Manager, who has delegated responsibilities for Council compliance with the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A). The designated Senior Responsible Officer 1 (SRO) for RIP(S)A compliance is the Director of Customer Services. 6. The Chief Executive was on leave at the time of the inspection visit. Discussion was not held with the SRO as he had inadvertently not been advised of the 1 As set out in the RIP(S)A Covert Surveillance and Property Interference (CSPI) Code of Practice paragraph 3.27 OFFICIAL requested requirement for such an event, however constructive dialogue took place with the Head of Governance and Law, Charles Reppke. 7. An examination was made of the Council's RIP(S)A policy, training record, Central Record of Authorisations and associated authorisation records. Since the last inspection conducted on the 31st of July 2012, seven authorisations had been granted to conduct Directed Surveillance, with one application being refused for not meeting the statutory requirements of necessity and proportionality. With the exception of one authorisation which related to a benefit fraud investigation, all other authorisations concerned age related test purchase operations. 8. No application had been made to authorise the use of a Covert Human Intelligence Source (CHIS) and no gathering of confidential information was reported. All authorisation records from the time of the last inspection were subject of scrutiny. The findings of the inspection were discussed with the Head of Governance and Law and Governance and Risk Manager. REVIEW OF PROGRESS 9. The 2012 OSC inspection visit of the Council produced three recommendations, for which a commendably detailed action plan was prepared and submitted to the Senior Management Team. The recommendations made, action taken and current outcome is detailed as follows: Recommendation 1 RIP(S)A training should be provided to all key business areas at a suitable opportunity and records maintained of attendees. Such training should be repeated at regular intervals and supplemented by an internal 'health-check' regime to ensure that RIP(S)A is considered and observed throughout the Council. (Revised repeat recommendation). Action External training was provided to key practitioners and Authorising Officers in December 2012. No subsequent training has taken place. An internal ' health check' process has been devised, but not effectively implemented. Recommendation 2 The various compliance matters addressed in this report should be corrected through training, robust quality assurance and feedback. (Re.vised repeat recommendation). Action No identifiable improvement has taken place. Recommendation 3 In terms of CCTV usage in covert operations and as outright owners of the system, Argyll and Bute Council should satisfy itself at regular intervals that the practices set out in the protocol with Strathclyde Police are being adopted, such that a written record exists in the Control Room for any authorised covert use as part of a planned operation by key parties such as the Council, the Police or others. Action Required liaison undertaken, now with Police Scotland. Recommendation OFFICIAL discharged. POLICIES AND PROCEDURES 10. The corporate RIP(S)A Policy and Procedural document is well constructed and provides clear instruction for applicants and Authorising Officers. It would be good practice to record the version of the policy by date in order to confirm the content reflects the latest legislative requirements. Whilst no mention is made of the relevant RIP(S)A Codes of Practice, access to these important documents can be undertaken on the Council's intranet. There was some doubt as to whether the latest OSC Procedures and Guidance document had been received by the Council and internal enquiries are underway. The significant assistance of the document to Public Authorities, the content of which will be referred to when relevant within this report, was emphasised. 11. Although unlikely to be undertaken without specialist training, comprehensive ,instruction is provided on the use and management of a CHIS. 12. It was noted that the current RIP(S)A forms in use are now obsolete, in that reference is made to paragraphs contained within the pre 2014 Codes of Practice. Advice was given that future application/authorisation forms should be drawn down from the Scottish Government website. 13. The introduction of a policy providing guidance on the use of Social Networking Sites (SNS) for investigative purposes should be pursued. Guidance contained within the RIP(S)A CHIS Code of Practice2 and OSC Procedures and Guidance document3 should assist in delivering this requirement. . 14. What is of particular emphasis is the requirement by the Council to put into practice the quality assurance procedures set out within the Action Plan to meet the 2012 (repeated) OSC inspection recommendations. RELATED TRAINING 15. A record has been maintained of staff members trained in 2012 which is good practice. Although likely to make limited use of RIP(S)A powers, the Council as a Public Authority must maintain a competent standard of compliance should $UCh use be made. An internal training programme is required which should be pursued by the Head of Go~ernance and Law. 16. Five positions have been identified as Authorising Officer posts. Although the Council has responsibility for a significant geographical area, a reduction to a single Authorising Officer and deputy could be a consideration, leading to the building of expertise in the role. Awareness training for the Chief Executive in relation to the specific RIP(S)A responsibilities of the role should be considered. 2 3 See RIP(S)A CHIS Code of Practice paragraph 4.30 See OSC Procedures and Guidance note 288 OFFICIAL SIGNIFICANT ISSUES 17. Central Record of Authorisations This is maintained in spreadsheet format and is compliant with the Code(s) of Practice, save for the requirement to record whether the authorisation was granted · by an individual directly involved in the investigation. 4 18. Directed Surveillance The single authorisation relating to benefit fraud had been well constructed both in terms of application and authorisation and the authorised activity was considered to be both necessary and proportionate. This was a joint investigation with the Department for Works and Pensions. Attention was drawn to the guidance on collaborative working contained within the Code of Practice 5 and the caution to be exercised with regard to duplicate authorisations. It is also important that practitioners are clearly briefed on the parameters of the authorised covert activity. 6 19. The remaining authorisations since 2012 exclusively concerned under age sales operations. The requirement for a Directed Surveillance to support such activity was again subject of discussion, as it was at the time of the 2012 inspection visit. Each application made it clear that no video or sound recording equipment was being used and that Council officers would remain outside of the premises, thus not being likely to gather private information. 20. The judgement that an authorisation is required for such operations remains the prerogative of the Authorising Officer, but is at odds with the Council's own policy (paragraph 2.S(a)). The guidance within the RIP(S)A CHIS Code of Practice should be considered7 along with that within the OSC Procedures and Guidance. 8 21. The authorisations granted for this activity thus far, evidenced many of the compliance failings noted in the 2012 inspection findings i.e. incorrect effective authorisation periods, template entries for both applications and authorisations and blanket authorisations covering multiple premises without a clear supporting intelligence case to evidence necessity. It is acknowledged that the refusal ·by an Authorising Officer of an application exhibiting these failings had taken place. 22. Whilst it is entirely justifiable for the Council to ensure that the sales of tobacco and other potential harmful substances are strictly enforced, if the decision is made that each operation meets the definition of Directed Surveillance then the guidance within the OSC Procedures and Guidance should be considered when more than one establishment is to be visited. 9 4 See RIP(S)A CSPI Code of Practice paragraph 8.1 RIP(S)A CSPI Code of Practice paragraph 3.17 6 See OSC Procedures and Guidance note 122 7 See RIP(S)A CHIS Code of Practice paragraph 2.13 example 1 8 See OSC Procedures and Guidance note 243 9 See OSC Procedures and Guidance note 244 5 See OFFICIAL CONCLUSIONS 23. Argyll and Bute Council has met the recommendations of the 2012 OSC inspection report, however the action has not been sustained in terms of training and effective oversight leading to a situation where the same compliance failings have been identified by this latest inspection visit. 24. This is a somewhat frustrating conclusion to report upon as there is a clear and conscientious desire by key staff within the Council to maintain the required legislative compliance standards, whilst balancing competing demands. 25. There is now an imperative requirement for the Senior Responsible Officer to discharge the responsibilities of the role as set out in paragraph 5 .1 of the Council' s corporate RIP(S)A policy and paragraphs 3.27-3.28 of the RIP(S)A CSPI Code of Practice. 26. The arrangements made for the inspection visit were greatly appreciated as was the positive engagement of the Governance and Risk Manager. RECOMMENDATIONS 27. Recommendation 1 Internal refresher training introduced and effective implementation of quality assurance procedilres. Recommendation 2 Policy introduced for the use of SNS facilities for investigative purposes. ANDREW MACKIAN Surveillance Inspector