Sir Brian Leveson publishes report on oversight of covert powers

The Investigatory Powers Commissioner, Sir Brian Leveson, has published his 2021 Annual Report on the use and oversight of covert investigatory powers. 

The report includes an overview of the types of powers used, inspection findings and errors. It outlines work carried out by the Investigatory Powers Commissioner’s Office (IPCO) and the Office for Communications Data Authorisations (OCDA). Both organisations support the functions of the Commissioner.  

The organisations ensure public authorities, including UK intelligence agencies, police forces and local councils, use investigatory powers lawfully and in the public interest.  

Sir Brian Leveson, the Investigatory Powers Commissioner, said: 

“I have seen extremely positive engagement from public authorities throughout 2021, in relation to both our authorisations and inspection work. Authorisations of the use of investigatory powers, either through OCDA or the Judicial Commissioners, continue to provide a fundamental safeguard, ensuring compliance with the relevant legislation and giving reassurance that activities are lawful. 

“Since IPCO began reporting, 2021 was the first year with no serious errors. This is a significant achievement, meaning that for the first time none of the cases investigated caused significant prejudice or harm to a particular individual. 

“It is pleasing to see that our concerns are taken seriously and addressed, and that compliance procedures are now more routinely embedded into standard operational activity. There have, however, been some disappointing findings in a minority of public authorities. As outlined in my report, urgent action is needed to address the concerns identified around non-compliance, inconsistency and vulnerability. I am confident that the organisations in question will implement sufficient remedial work in response to the issues identified.” 

In 2021, most authorisations for the use of investigatory powers were for the purpose of preventing or detecting crime. For communications data authorisations, the most common crime type under the “prevent and detect” statutory purpose related to drugs offences. 

Other key points in the 2021 report include: 

• 450 inspections were conducted in 2021. 
• IPCO identified examples of best practice in many public authorities, including the continued focus on compliance within MI5 and the implementation of its ‘three lines of defence’ model; the increasing use of technology by GCHQ to enhance compliance with Investigatory Powers Act standards; and a novel collaborative approach led by Hampshire County Council, in conjunction with the National Trading Standards and the Federation Against Copyright Theft, to use its powers in relation to unlawful TV streaming.  
• In 2021, the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 came into force. This included a new requirement to notify the Investigatory Powers Commissioner of authorisations for criminal conduct by those who are working undercover. This report includes a first review of the use of the power and indicates where some learning is still required. 
• There continues to be an increase in the authorisations of online operatives. This is targeting a wider range of criminal activity and threats to national security as law enforcement recognises that virtually all forms of organised criminality and extremism will utilise the internet and social media to some extent. 
• As with IPCO’s previous findings, drug-related offences were again the most common crime type under the “prevent and detect” statutory purpose, for which communications data was requested by law enforcement agencies in 2021. 
• Areas of concern highlighted in the report this year relate to undercover operatives in Police Scotland, handling of material by law enforcement, the out of hours warrant process at the Home Office, the authorisation of surveillance techniques at MI5 and the interception of communications in prisons. 

The Commissioner makes it a priority to share information that can be made public, in an effort to enhance transparency and increase understanding of the use of investigatory powers.  

The report shows that, in general, recommendations from IPCO’s inspections have been implemented by public authorities.