The National Crime Agency (NCA) has been launched today by the Home Office with announcements that it will have access to some of the most high tech surveillance tools available but will also promote an environment of transparency and openness. Yet, with an exemption from the Freedom of Act and being regulated by outdated legislation, how accountable will the Agency be?
The NCA has billed itself as being more open and transparent than its predecessors, yet it won’t be subject to the Freedom of Information Act (FOI) on the basis that this would “jeopardise its operational effectiveness and ultimately result in lower levels of protection for the public.” Considering the Agency will have highly intrusive surveillance techniques at its disposal, it is remarkable that it is allowed to be able to use them behind a cloak of secrecy. FOI would not prevent intelligence sharing, protecting sources of information or expose police tactics and technology. Indeed, every police force in the country and the Association of Chief Police Officers all manage to operate with FOI applying to them.
With this in mind efficient, independent oversight of the NCA will be incredibly important. The job will fall on Her Majesty’s Inspectorate of Constabulary and the Office of Surveillance Commissioners. Yet there are already concerns that the Interception of Communications Commissioner, who already oversees approximately 550,000 communications requests a year, has minimal oversight due to only having a ten person team. It is essential that full access and all the resources required in order for oversight of this large and powerful Agency to occur.
We have also warned that the legislation regulating the way in which surveillance technology is used is also greatly outdated. The NCA has bragged that it will use an array of high-tech digital tools, including facial recognition CCTV cameras yet there has been little detail included in the plans. It is therefore unclear whether the technology will be used on a case by case basis and removed when investigation are over, or whether we can look forward to having a network of fixed facial recognition cameras placed across the country. The Surveillance Camera Commissioner has warned about the risks of using this sort of technology, indicating that it may be in breach of Article 8 of the Human Rights Act, the right to a private and family life, and poor regulation may lead to “a huge public backlash”.
The NCA will also have its own capability to intercept communications and will work closely with GCHQ. Our concerns regarding the NCA’s capability to intercept communications echoes the concerns that we have raised in taking legal action against GCHQ. The Regulation of Investigatory Powers Act 2000, the primary legislation which will allow the NCA to carry out interception of communications, was created when barely anyone had broadband access and Parliament certainly did not envisage or intend for the law to permit scooping up details of every communication we send, including content.
The creation of the NCA reminds us of the integral need to update the UK’s surveillance legislation and methods of oversight. Without safeguards in place and proper, transparent accountability, the public cannot have confidence in the new Agency.