Rights of access to confidential information
Summary version
In 2005 CILIP commissioned the Barrister, James Eadie, to provide a legal opinion on the rights of the police and other security agencies to demand access to the confidential client records held by libraries. James Eadie is a specialist in public law and human rights and is a member of the Blackstone Chambers. The legal opinion was commissioned on the advice of CILIP's Ethics Panel, which was aware of some cases where librarians had been faced by demands from the police for access to their library client records. It was evident that, with the passing of recent laws relating to terrorism, nobody on the Panel felt confident of the current law relating to rights of access to such information by the police.
The legal opinion addresses the issues under the law in England and Wales only. It is available in a summary version (below) and a full version.
1. This summary sets out the key elements of a more detailed advice given to CILIP in an Advice dated 27 September 2005 concerning the rights of the police and other security and intelligence services to demand access to confidential client information. The advice related to the law of England and Wales only.
2. The police have powers to apply to a court (currently a circuit judge) for production and removal of, or access to, material held by private persons. The relevant powers are contained in Part II of the Police and Criminal Evidence Act 1984 (PACE). The court has a discretion to make an order if five conditions are made out:
2.1. a serious arrestable offence has been committed;
2.2. the material is likely to be of substantial value (whether by itself or together with other material) to the investigation;
2.3. the material is likely to be relevant evidence;
2.4. other methods of obtaining the material have been tried and failed (or appear to be bound to fail);
2.5. ordering access is in the public interest having regard to the benefit likely to accrue to the investigation and to the circumstances in which the person in possession holds the information.
Of these, the critical condition is likely to be whether or not the material is likely to be of substantial value to the investigation.
3. A similar power in the court on the application of the police is contained in the Terrorism Act 2000. The critical condition in this context requires it to be shown that there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation. The powers of the court are wider than under PACE and include a power to require a person to state to the best of his knowledge and belief the location of the material applied for.
4. The powers to access information are not limited to the courts. The Regulation of Investigatory Powers Act 2000 (RIPA) makes detailed provision for lawful surveillance. The scheme of Part II of RIPA is to render lawful surveillance of the kind set out above if it is subject to an authorisation under Part II and that authorisation is complied with (section 27(1)). If that is the case, no civil liability attaches for any conduct which is incidental to any conduct so authorised.
5. Of most potential relevance to members of CILIP are the provisions dealing with “directed surveillance”. The regime in summary is as follows:
5.1. Certain persons are designated as having power to grant authorisations for carrying out directed surveillance. They include senior police officers (superintendent and above) and members of the security services.
5.2. The test to be applied by the person authorising is whether he “believes” that the authorisation is necessary in the interests of national security, for the purpose of preventing or detecting crime, in the interests of public safety and that the authorised surveillance is proportionate.
5.3. This is accordingly a self-authorising regime involving the body that will operate the surveillance authorising itself without the need to go to an outside body (Secretary of State or court) for that purpose. The inherent safeguards, such as they are, are provided by the facts that
5.3.1. the authoriser needs to be a senior member of the police or security services;
5.3.2. Part IV of RIPA establishes an Intelligence Service Commissioner and Surveillance Commissioners including a Chief Surveillance Commissioner. They are holders of high judicial office. They have the function of keeping under review the exercise of the powers under Part II by the Security Services and others. They report to the Prime Minister at least annually, who then (subject to redaction/omissions justified on specified grounds such as national security) lays the reports before Parliament. Those who exercise the Part II powers are obliged to co-operate and provide information to the Commissioners.
5.4. RIPA also sets up a Tribunal, exercising judicially reviewing powers, to deal with complaints about the exercise of powers under RIPA – including, notably, complaints under the HRA.
6. Finally there are powers conferred on the Secretary of State under the Intelligence Services Act 1994 (ISA). Section 5 of the ISA empowers the Secretary of State to issue a warrant authorising the Security Service (MI 5), the Secret Intelligence Service (MI 6) or GCHQ to take “such action as is specified in the warrant in respect of any property so specified”. The Secret Intelligence Service and GCHQ are not relevant in context because in their cases the power cannot be exercised in relation to property in the British Islands.
7. The Secretary of State’s power arises if three conditions are met:
7.1. The Secretary of State thinks it necessary of the action to be taken for the purpose of assisting the carrying out of the statutory functions of the Security Service. These functions are set out in section 1 of the Security Service Act 1989 and include the protection of national security (in particular against threats of terrorism) and acting in support of the various police forces and police agencies. However, if the property in question is in the British Islands, there is a restriction. The conduct under investigation must constitute in effect a serious offence (involving the use of violence or for which a person could expect to be imprisoned for three years or more).
7.2. The Secretary of State is satisfied that the taking of the action is proportionate to what the action seeks to achieve. In this respect, section 2A of the ISA specifically requires consideration to be given to whether what is thought necessary to achieve by the warrant could reasonably be achieved by other means.
7.3. The Secretary of State is satisfied that satisfactory arrangements are in place for controlling the disclosure of the information obtained (essentially for the purposes of an ongoing investigation or proceedings).
8. Each of the relevant pieces of legislation includes tests in effect requiring account to be taken of human rights considerations.
9. Accordingly, there are a wide range of powers exercisable by the courts on the application of the police, by the police themselves, by the security services and by the Secretary of State at the behest of the security services. In some circumstances, those powers may overlap – allowing the authorities to choose the least onerous (for them) route for accessing otherwise private information.
10. These powers apply, if the conditions are satisfied, across library sectors; although the nature of the information in question (in particular the degree to which it is sensitive or private) may affect the issue whether or not the conditions are satisfied. Although the position is not clear cut, the powers are probably broad enough to permit the agencies concerned to insist on the installation of spyware in an appropriate case.
James Eadie
Blackstone Chambers,
London
Acting on instructions from Bates Wells, solicitors
Updated: 03 December 2008