BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
8. Annual report of the Intelligence Services Commissioner for 2016
181. The Intelligence Services Commissioner, in his report on
compliance with the “Consolidated Guidance to Intelligence Officers and
Service Personnel on the Detention and Interviewing of Detainees Overseas,
and on the Passing and Receipt of Intelligence Relating to Detainees”,
observed that
“In the course of their work, each of the agencies works closely with foreign liaison
partners. This involves routine intelligence sharing and at times collaborative
operations. I am satisfied that the agencies are sensitive to the implications of working
with partners acting under different legal systems and note that [the United Kingdom
Intelligence Community] working overseas are careful to apply the principles of UK
law as far as possible.
...
GCHQ works closely with liaison partners and is involved in regular intelligence
sharing and at times collaborative work. This is a complex area for both GCHQ and
SIS, where agency staff work with partners who are applying different and sometimes
incompatible legal frameworks. I have been impressed by the efforts of GCHQ’s staff
to gain assurances from partners, particularly with regard to the consolidated
guidance. I have recommended that GCHQ should consider making reference in
relevant submissions to the fact of local laws which will affect any partner’s activity.
I was satisfied that GCHQ is applying the principles of the consolidated guidance
sensitively, and am pleased that changes made to the training for 24/7 staff are raising
the already high standard of the referrals process. I noted that on occasion GCHQ
officers updated the consolidated guidance log after the fact to clarify judgements or
details. While it is important to represent the fullest available facts, I recommended
that GCHQ should set out points of clarification in addition to and not amendment to
the original log entry. GCHQ subsequently confirmed that this has been implemented.
...
The Foreign Secretary is also responsible for providing ministerial oversight on
occasions where the consolidated guidance has been engaged and the agencies intend
to proceed, either with intelligence sharing or a live operation. I have recommended
that the [Foreign and Commonwealth Office] should obtain a copy of any assurances
that SIS have obtained from a liaison partner. I would advise that these should be
made available for the Foreign Secretary to scrutinise while considering any
consolidated guidance-related submissions.”
182. Oversight of compliance with the Consolidated Guidance now falls
under the remit of the new Investigatory Powers Commissioner. The
Guidance is currently being reviewed since the Intelligence Services
Commissioner, in his 2015 report, indicated that while he did “not think that
the Consolidated Guidance was fundamentally defective or not fit for
purpose”, he nevertheless expressed the view that it had been “in operation
in its current form for some years and that there was room for
improvement”.
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