-----Original Message-----
From: Chartered Library and Information Professionals
[mailto:[log in to unmask]] On Behalf Of Tim Buckley Owen
Sent: 28 October 2005 10:10
To: [log in to unmask]
Subject: Police and security services have power to scrutinise library
records
CILIP: the Chartered Institute of Library and Information Professionals
7 Ridgmount St, London WC1E 7AE.
Tel: 020 7255 0500
Textphone: 020 7255 0505
Fax: 020 7255 0501
Email: [log in to unmask]
News from CILIP
Friday 28 October 2005
For immediate release (Please copy to online discussion lists)
Police and security services have power to scrutinise library records
Legal advice commissioned by CILIP confirms all library sectors can be
investigated
Police and security services investigating serious crime or terrorism in
England and Wales have the right to seek information on books borrowed
or Internet sites accessed by certain library users, a barrister has
told CILIP: the Chartered Institute of Library and Information
Professionals. They can also mount surveillance operations in libraries
if they believe that national security is at risk, to prevent or detect
crime, or in the interests of public safety.
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, the advice says.
Legal advice on rights of access to confidential information on library
users was requested by CILIP following a number of instances where
police had sought information from CILIP members on library users'
activities. The advice was first presented to CILIP members by the
Institute's President Deborah Shorley at its Annual General Meeting in
London on October 27.
According to the advice, provided to CILIP by public law and human
rights specialist James Eadie, the police could apply for an order
authorising access to library records under the Police and Criminal
Evidence Act 1984 where a serious arrestable offence had been committed,
or under the Terrorism Act 2000, where they believed that the material
was likely to be of substantial value to a terrorist investigation.
Surveillance operations in libraries are also possible, under the
Regulation of Investigatory Powers Act 2000, the advice continues. This
could include monitoring persons' activities or communications,
recording anything monitored with a surveillance device, and engaging in
covert surveillance to obtain private information about a person.
Finally, under the Intelligence Services Act 1994, the Secretary of
State can issue a warrant authorising the security services to take
action to protect national security against threats such as terrorism or
to support the police.
"We live in difficult times which call for difficult decisions about
access to information," Deborah Shorley said. "As librarians and
information professionals we must do all we can to help protect our
society against terrorism. We need to be vigilant, but we must not
overreact. We have a duty of client confidentiality and so we cannot
collude with fishing expeditions by the authorities. We expect our
members to respect the law of the land, and this advice tells us just
where we stand."
"It's important to note that this advice could apply to all library
sectors," added CILIP's Chief Executive Bob McKee. "It's not just
restricted to public libraries."
A summary of the legal opinion appears below and is also available on
the CILIP web site at
www.cilip.org.uk/professionalguidance/rightsofaccess/default.htm.
Personal members of CILIP can access the full text in the member-only
area of CILIP's web site - www.cilip.org.uk - and CILIP is also sending
copies to its members who head public, academic and government
libraries.
The full text of the advice is also available to the media from:
Tim Buckley Owen, Head of Membership, Marketing & Media.
Tel: 020 7255 0652
Email: [log in to unmask]
Notes to Editors
Since this legal advice was requested and received by CILIP, the
Terrorism Bill has received its second reading in the Commons. CILIP
has joined leaders of the other principal representative organisations
of the United Kingdom library community in expressing to Home Secretary
Charles Clarke its serious reservations about the Bill.
CILIP: the Chartered Institute of Library and Information Professionals
is the leading professional body for librarians, information specialists
and knowledge managers. It forms a community of around 35,000 people
engaged in library and information work, of whom around 23,000 are CILIP
Members and around 12,000 are regular customers of CILIP Enterprises.
CILIP members work in all sectors, including business and industry,
science and technology, further and higher education, schools, local and
central government, the health service, the voluntary sector, national
and public libraries. For more information about CILIP, please go to
www.cilip.org.uk.
SUMMARY OF LEGAL ADVICE OF JAMES EADIE IN RELATION TO ACCESS TO
INFORMATION
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
- Ends -
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