Why we're working to regulate private investigators

The legal profession is probably the largest sector source for instructing investigative services. However, solicitors may not be aware that, other than a voluntary scheme for regulating these services, the industry as a whole remains without any formal mechanism of accountability.

As a service provider, private investigation plays an important role in many parts of society, including legal, corporate and personal cases. The private investigation sector in the United Kingdom has never been licensed in its 200-year history. Investigators can register to the Association of British Investigators (ABI), but this is voluntary.

Concerns have long been expressed about the possible risks connected with unregulated private investigators, prompting discussions about the industry's future.

Unregulated private investigators may work without any training or uniform standards.

This lack of monitoring has generated worries from professional bodies, advocacy groups and policymakers about the possibility of:

• unethical practices
• invasion of privacy
• inadequate personal data protection

Instances of malfeasance and unlawful activity have emphasised the importance of accountability within the sector.

Proponents claim that regulation would help to improve the profession's reputation while also protecting the interests of both clients and the wider public. But what exactly do they mean by "regulation" in this context?

Potential regulatory actions

Unfortunately, many stakeholders have been fixated on the idea that regulation can only mean statutory licensing, as if this will solve all of the sector's problems.

An alternative and more thorough approach should be considered to fix the current gaps.

1. Registration

Putting in place a system that requires private investigators to meet certain criteria, such as background checks, financial probity, good practice, experience, qualifications and reputation.

2. Code of practice

Creating a detailed code of practice for private investigators that outlines ethical standards, client confidentiality and best practices.

3. Training and qualifications

Compulsory training could improve investigators' abilities and expertise in areas such as data protection, surveillance techniques and legal procedures.

4. Complaints and disciplinary processes

Establishing a regulating body to address complaints and impose penalties would be ideal, but is difficult to administer. The ABI boasts a robust regime in the enforcement of its code of ethics and professional standards but admittedly, too many private investigators shy away from such scrutiny.

5. Data protection and privacy laws

The UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 control the gathering, use and storage of personal data, which is the gold standard in private investigation. Regulating private investigators and their handling of personal information with current law would give a solid foundation.

The difficulties of regulating the industry

Implementing any regulation in the private investigation industry will not be easy. One of the most difficult challenges is establishing the right regulatory organisation to regulate the profession.

The Private Security Industry Act 2001 created the Security Industry Authority (SIA), but the SIA may not have the resources or expertise to cope with the challenge.

A quasi-government voluntary scheme, driven by market forces, and independently monitored by an accredited body is essential.

How to balance privacy and investigative needs

Regulation should strike a balance between preserving individuals' privacy rights and allowing for necessary investigation actions.

It’s important that any regulations do not unreasonably impede private investigators' capacity to conduct necessary and authorised investigations.

Clear rules on what constitutes permitted practices – especially in the context of monitoring and data collecting – is critical.

The proposed code of conduct would:

• allow for industry expertise to be utilised but promote self-regulation and best practice
• encourage stakeholder participation
• stimulate innovation  
• enhance public trust

Our proposed code of conduct

The ABI is working with the Information Commissioner’s Office (ICO) in the development of a UK GDPR code of conduct (under Article 40 of the UK GDPR), which will meet the five points above and address other challenges too.

The proposed code of conduct, which will be voluntary, was developed through active involvement with investigators and industry stakeholders such as the Solicitors Regulation Authority (SRA) and, of course, the ICO.

Their involvement helped develop this potential regulation that addresses the profession's specific requirements and concerns while protecting public interest.

Although the code is voluntary, potential incentives to join could include recognition for registering, and access to resources.

We’ve also considered the following points.

• Regulated private investigators can provide vital assistance to the police and other law enforcement organisations, and strong procedures for collaboration between the two could improve investigation efficacy
• Regulation should be backed by public awareness campaigns emphasising the need of engaging regulated private investigators, who can be found through a public registry. Educating the public about the advantages of hiring regulated professionals would encourage informed decision-making
• Once the code of conduct is in place, methods for continual monitoring and assessment will be carried out by a third party – approved by the ICO – to measure goals and find out areas of improvement

However, there are some constraints associated with a voluntary scheme that we’ve considered too.

Some private investigators may choose not to take part, resulting in a more fragmented regulatory landscape.

Furthermore, voluntary compliance may not effectively address concerns about unethical practices or illegal activity inside the sector that will continue to exist outside of the code.

What now for the industry?

Regulating the private investigation sector in the United Kingdom would provide the industry with much-needed oversight, ethical standards and responsibility, advancing it towards the status of a profession.

Using privacy rules as the foundation for a voluntary mechanism to hold unregulated private investigators accountable is a possible strategy.

However, due to the constraints and potential obstacles involved with voluntary schemes, the proposed system will require active support from regulatory agencies in order to succeed.