Review in time for it to be considered when Parts 6 and 7 of the Bill reached
committee stage in the House of Lords, now scheduled for early September.
Relevance of “A Question of Trust”
1.25.
AQOT touched on the subject-matter of the Review but, for various reasons, did
not seek to evaluate the operational case or the necessity for the full range of
powers that it is now sought to provide for in law. In summary:
(a) I expressed firm positive views, supported by annexed material, on the utility
of the powers to obtain and retain communications data that appear in
Parts 3 and 4 of the Bill (AQOT 14.14-14.22 and Annexes 10-14). But those
powers form no part of the Review, and in any event my views on them
appear to be largely uncontroversial.35
(b) In relation to ICRs, I noted that I had not been provided with a “sufficiently
compelling operational case”, giving full consideration to alternative means of
achieving the stated purposes. I recommended that no detailed proposal
should be put forward until that exercise had been performed, adding that
there should be no question of progressing proposals for the compulsory
retention of third party data before such time as a compelling operational
case may have been made, which it had not (AQOT 14.33;
Recommendations 15 and 18).36
(c) I expressed the clear view, on the basis of my own scrutiny at GCHQ of
contemporaneous intelligence reports and questioning of desk officers and
analysts who had been concerned with a number of real-life cases presented
to me by the SIAs, that the bulk interception power now provided for in Part
6 Chapter 1 of the Bill had been of utility in fighting terrorism (AQOT 14.45
and Annex 9). But I noted the primacy in this area of the ISC, the
Interception of Communications Commissioner [IOCC] and the Investigatory
Powers Tribunal [IPT], each of which had recently analysed and commented
on regimes for bulk data collection (AQOT 14.39-14.41). Nor did I address
myself to the necessity or proportionality of that power, or analyse whether
the same objectives could have been achieved by less intrusive alternative
methods.
35
36
Indeed the CJEU in Digital Rights Ireland, a judgment critical in other respects of the EU regime
for the retention of communications data in bulk, referred to data retained under the Directive
as “a valuable tool for criminal investigations” which afforded the authorities “additional
opportunities to shed light on serious crime”: Joined Cases C-293/12 and C-594/12,
EU:C:2010:512, Judgment at para 49; see the discussion in AQOT 5.63-5.69.
In accordance with this recommendation, a 26-page operational case for the retention of ICRs
was published alongside the draft Bill in November 2015.
10