The Protection of Freedoms Act 2012 was introduced in November 2012 and placed certain restrictions on the use of directed surveillance and CHIS by local authorities (councils) in England and Wales, and in Northern Ireland (for an excepted or reserved matter within the meaning of Section 4(1) of the Northern Ireland Act 1998).
Councils in Scotland, and all other types of public authority, are unaffected.
It should be noted that the 2012 Act brought in other provisions relating to the acquisition of Communications Data (which apply in all parts of the UK) – further details can be found on the Interception Commissioner’s website, as he is responsible for these aspects.
Under The Protection of Freedoms Act 2012, councils are now required to seek a magistrate’s approval (District Judge [magistrates’ courts] in Northern Ireland) for any directed surveillance or CHIS authorisation before the authorisation can be put into effect.
The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012 additionally created the following restrictions:
- No directed surveillance can be authorised unless the offence to be targeted is punishable by a maximum term of at least six months’ imprisonment, or the offence is one covered by Sections 146, 147, or 147A of the Licensing Act 2003 or Section 7 of the Children and Young Persons Act 1933
- Urgent authorisations lasting 72 hours can no longer be authorised
The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 further requires that:
- If the activities of the CHIS will result in the CHIS obtaining, providing access to, or disclosing matters subject to legal privilege, the council must obtain prior approval from the Surveillance Commissioners before authorising such conduct.