(d) The bulk acquisition capability which MI5 and GCHQ had under s. 94 TA
1984 was not publicly avowed until November 2015: so though I had been
fully briefed on it, it was (in accordance with AQOT 1.24) not mentioned in
AQOT. I said on the day of the avowal that the SIAs considered the power to
be useful but that their claims were yet to be scrutinised by the IOCC and the
IPT. I added that “it is absolutely right that they should have to defend that
power in the public space where people evaluate the claims they make and
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evaluate the risks as well as the benefits."
(e) The remit of AQOT was limited to communications data and interception
(AQOT 1.11), so two of the four powers under review – bulk EI (Part 6
Chapter 3 of the Bill) and BPDs (Part 7 of the Bill) – fell outside its scope and
were only referred to in passing.38
1.26.
The extent to which I had and had not expressed views on the operational case
for the powers in the Bill was set out in my written evidence to the Joint Bill
Committee of January 2016, in which I endorsed evidence already given to that
Committee on behalf of Open Rights Group and Privacy International to the
effect that the Government:
“should do more to make an operational case for the bulk powers that it seeks
to preserve … not only in the secret environment of ISC and [Investigatory
Powers Tribunal] closed hearings but, to the maximum extent possible, to
Parliament and the public”.39
As I pointed out, such an approach would be in keeping with my previous advice
that public authorities (including the SIAs) should “consider how they can better
inform Parliament and the public about why they need their powers, how they
interpret those powers, the broad ways in which those powers are used and why
any additional capabilities may be required”, and that they should contribute to
any consultations on the new law “so as to ensure that policy-making is informed
by the best evidence”.40
1.27.
37
38
39
40
In summary, I have previously expressed an evidence-based view on the utility
of bulk interception, one of the four powers under review, but did so without the
expert assistance that has been made available to this Review. As I said at the
outset of the Review, I have approached my task on the basis that I am “not too
https://terrorismlegislationreviewer.independent.gov.uk/the-big-reveal/#more-2496.
Though I noted (again uncontroversially) that when material within databases is aggregated, it
becomes a powerful tool in the hands of investigators: AQOT 8.28.
Supplementary evidence of David Anderson Q.C. to the Joint Draft Bill Committee, IPB 0152, 7
January 2016, paras 4-11: http://www.parliament.uk/documents/joint-committees/draftinvestigatory-powers-bill/written-evidence-draft-investigatory-powers-committee.pdf.
AQOT, Recommendation 122.
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