Proportionality

I was not very surprised to see a report in Friday’s Telegraph that Poole Borough Council had used powers in the Regulation of Investigatory Powers Act 2000 to establish whether parents of a three-year-old child who had applied to an oversubscribed school had given a false address. The article states “The Act was pushed through by the Government in 2000 to allow police and other security agencies to carry out surveillance on serious organised crime and terrorists.” I doubt that this was the only motive. Section 29(3) of RIPA[1] provides for authorisations on no fewer than seven grounds, national security being only one:

“ (3) An authorisation is necessary on grounds falling within this subsection if it is necessary—
(a) in the interests of national security;
(b) for the purpose of preventing or detecting crime or of preventing disorder;
(c) in the interests of the economic well-being of the United Kingdom;
(d) in the interests of public safety;
(e) for the purpose of protecting public health;
(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.”

Moreover, sub-section (b) refers to crime only, not for example to crimes punishable by any particular sentence. So on the face of the wording of the Act, any crime could potentially justify RIPA surveillance. However, the Explanatory Notes[2] to RIPA indicate:
“194. Section 28 and 29 provide that authorisations cannot be granted unless specific criteria are satisfied, namely, that the person granting the authorisation believes that:
the authorisation is necessary on specific grounds; and
the authorised activity is proportionate to what is sought to be achieved by it.”

The mention of proportionality is a reference to Section 28(2)(b). The pressure group Liberty has according to the article described the operation as disproportionate. However proportionality is a difficult concept here. The council is reported as having claimed that lying on a school application amounted to fraud. Perhaps the safeguard in Section 28(2)(b) only means that the activity must not be disproportionate with respect to the operation carried out, and offers no yardstick for judging the purpose of the operation itself? At any event, it is certainly a bad thing if people lie to get their children into any school. That fact does not to my mind mean that one can look with satisfaction on the use of covert surveillance for this purpose. Would it be impertinent to suggest that Poole Borough Council’s resources and energies would be more usefully employed in raising standards in its less popular schools rather than in policing the barriers to entry for its more popular ones?

[1] Crown Copyright 2000: source http://www.opsi.gov.uk/acts/acts2000/ukpga_20000023_en_1
[2] Crown Copyright 2000: source http://www.opsi.gov.uk/acts/acts2000/en/ukpgaen_20000023_en_1.htm