(2) Assessments of the Intelligence Services Commissioner
3.14.
As noted in chapter 2 above, the IsComm has oversight of bulk EI and of BPDs.
Before February 2015, the IsComm also had oversight of GCHQ’s bulk
acquisition under TA 1984 s94
3.15.
The current IsComm has overseen the SIAs’ use of EI since 2011, but until now
his reports on it have been confined to confidential annexes. The first open
report on EI is likely to be published in September 2016. There has been no
assessment of the proposed bulk EI power, if only because the existing law
makes no express provision for it.128
3.16.
As to BPDs, between 2011 and 2014, the IsComm reported on the use of BPDs
in secret annexes (which I have read). Even the fact that the IsComm was
reporting on their use was not publicly known. But reports were produced (and
continue to be produced) in which conscientious consideration was given to the
acquisition, use and retention of BPDs.
3.17.
The conclusions of Sir Peter Gibson (in 2011) and of Sir Mark Waller (in 20122014) were variously supportive of (or, where no view was expressed, consistent
with) the utility of BPD regime and its operation in accordance with the
requirements of necessity and proportionality.
3.18.
In 2015, Sir Mark Waller reported publicly on the use of BPDs for the first time.
He disclosed the existence of internal review bodies which consider the retention
of datasets, and stated that it was his practice to “assess whether the review
bodies have properly applied the test of necessity and proportionality in retaining
and making the data available” and to “inspect how members of the intelligence
services access the data sets .. as well as reviewing how they apply the
necessity and proportionality justifications of intrusion into private information”.129
3.19.
The IsComm asked for explanations of how the datasets selected for close
examination were used, and stated:
“In essence the justification will be that although the particular dataset has
information on individuals of no intelligence interest it will also have important
information on persons who will be or are of intelligence interest and will
128
129
The IsComm has expressed concerns about the over-broad use of “thematic” property warrants
under ISA 1994 s5: Report of the IsComm for 2014, June 2015, pp. 18-19. But those concerns
appear to stem from the narrow terms of s5 rather than from the undesirability in principle of a
warrant that does not identify each of the individuals subject to it. This may be seen from the
fact that no equivalent concerns are expressed in relation to warrants under ISA 1994 s7, which
makes specific reference to thematic or “class” authorisation: pp. 18, 24-26.
Report of the Intelligence Services Commissioner for 2014, June 2015, pp. 34-35.
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