KENNEDY v. THE UNITED KINGDOM JUDGMENT
17
“31. In addressing the safeguards contained within section 15 of RIPA, GCHQ
developed a new set of internal compliance documentation for staff, together with an
extensive training programme that covered staff responsibilities under both RIPA and
the Human Rights Act. This compliance documentation was submitted to the Foreign
Secretary who was satisfied that it described and governed the arrangements required
under section 15. I have also been told it also constituted the written record of the
arrangements required to be put in place by the Director, GCHQ, under section 4(2)(a)
of the Intelligence Services Act 1994 (to ensure that no information is obtained or
disclosed by GCHQ except so far as is necessary for its statutory functions). In
discharging my functions under section 57(1)(d), I examined the documentation and
the processes which underpin it and satisfied myself that adequate arrangements
existed for the discharge of the Foreign Secretary's duties under section 15 of RIPA.
Of course, GCHQ recognises that its compliance processes must evolve over time,
particularly as they become more familiar with the intricacies of the new legislation
and develop new working practices, and that the process of staff education remains a
continuing one. To this end, GCHQ has developed further training programmes and is
issuing revised compliance documentation as part of the ongoing process (see also ...
paragraph 56 under Safeguards).
32. In advance of the coming into force of RIPA, GCHQ approached me as to the
warrants it would seek after that date and provided a detailed analysis as to how those
warrants would be structured – this was helpful as it gave me an insight into how
GCHQ saw the workings of RIPA/Human Rights Act and permitted me to comment
in advance. Since the commencement of RIPA, in reviewing warrants I have looked
carefully at the factors to be considered by the Secretary of State when determining
whether to issue an interception warrant, and especially the new requirement to
consider 'proportionality' under section [5(2)(b)] of RIPA.”
67. Again, he commented on the diligence of the authorities in carrying
out their duties under the Act:
“56. Sections 15 and 16 of RIPA lay a duty on the Secretary of State to ensure that
arrangements are in force as safeguards in relation to dissemination, disclosure,
copying, storage, and destruction etc., of intercepted material. These sections require
careful and detailed safeguards to be drafted by each of the agencies referred to earlier
in this Report and for those safeguards to be approved by the Secretary of State. This
had been done. I have been impressed by the care with which these documents have
been drawn up, reviewed and updated in the light of technical and administrative
developments. Those involved in the interception process are aware of the invasive
nature of this technique, and care is taken to ensure that intrusions of privacy are kept
to the minimum. There is another incentive to agencies to ensure that these documents
remain effective in that the value of interception would be greatly diminished as a
covert intelligence tool should its existence and methodology become too widely
known. The sections 15 and 16 requirements are very important. I am satisfied that the
agencies are operating effectively within their safeguards.”
68. The Commissioner's 2002 report noted:
“18. ... As I mentioned in my last Report I have been impressed by the care with
which [the safeguard] documents have been drawn up. My advice and approval was
sought for the documents and I am approached to agree amendments to the safeguards
when they are updated in light of technical and administrative developments.”
69. This was repeated in paragraph 16 of his 2004 report.