equipment interference in bulk, one of the powers under review. I am told that to
date, GCHQ has carried out only EI operations for which it has been possible to
provide sufficient description of the operational plan and associated safeguards
to ensure that the Secretary of State could understand the precise level of
intrusiveness in detail, and thus be able to conclude that all of the proposed
activity was necessary and proportionate. Such operations would have been
authorised under a targeted EI warrant under the IP Bill.25
1.20.
The Bill stands not only for transparency but for the introduction of significant
new safeguards. These include, among many others:
(a) the principle that warrants should enter into force only after approval by a
judge; and
(b) the creation of a powerful new regulatory and supervisory body, headed by
the Investigatory Powers Commissioner, which I will refer to as the
Investigatory Powers Commission [IPC];26 and
(c) additional protections for the communications of certain sensitive professions
and groups such as lawyers, journalists and MPs.
The principal safeguards applicable to the powers under review are summarised
at 2.25-2.26, 2.43, 2.66-2.67 and 2.82-2.86 below. It remains to be seen
whether further safeguards will be needed in relation to certain capabilities (e.g.
for accessing communications data) as a consequence of EU law.27
1.21.
25
26
27
The Bill does not cover other forms of surveillance activity (e.g. use of directed
surveillance, intrusive surveillance, property interference, covert human
This is consistent with the reference in the 2016 ISC Report to bulk EI being required for
“future-proofing” (paras 15-16), and to the hypothetical nature of the case studies both in the
Operational Case and as presented to us.
An SNP amendment that would have formally created an Investigatory Powers Commission
was rejected in the House of Commons by 281-64 (Hansard HC 6 June 2016, vol 611 cols 899902, 929-931). But the Government itself anticipated when launching the draft Bill that the new
oversight body “will be called the Investigatory Powers Commission” (Factsheet – Investigatory
Powers Commission, November 2015), and it may be a useful precedent that the Interception
of Communications Commissioner’s office has become known as IOCCO, to reflect the fact that
many of its functions are discharged not personally by the Commissioner but by its permanent
staff, including its skilled inspectorate.
See Case C-698/15 Secretary of State for the Home Department v Tom Watson and others
ECLI:EU:C:2016:572, Opinion of the Advocate General, 19 July 2016, paras 216-245. That
Opinion concerned the DRIPA 2014 powers, now in Parts 3 and 4 of the Bill: the principal
safeguards pressed by the Advocate General, including prior independent approval and a ban
on use for the investigation of ordinary (non-serious) crime, already exist in relation to the
powers under review. See further 2.28 below.
8