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IPCO Annual Report 2017
12.5
The intelligence agencies and MOD consider sharing intelligence with a wide range of other
countries, irrespective of the closeness of the pre-existing relationship, or even the known
human rights record of the other country. Because of the potential wide application of this
process, there is a complicated system for recording decisions made under the Consolidated
Guidance. However, common sense dictates that the extent of the record depends on the
facts of the case. If the other country has an exemplary record for respecting human rights,
it will not be necessary to log all the instances of intelligence sharing, and this particularly
applies if intelligence is shared regularly with countries that we trust.
12.6
‘Assurances’ are a key element when decisions are made as to whether to share information
with other countries. These are an undertaking by a senior official in a foreign government
or intelligence service, either oral or written, as to the restrictions that will be placed on the
use of the intelligence and how the individual will be treated. These statements of intent are
crucial to the UK’s ability to liaise effectively with other countries in this context and they are
considered alongside any undertakings the country has made internationally, for example as
a signatory of the United Nations Convention Against Torture (UNCAT). The agencies do not
rely on assurances in isolation and they form part of a wider judgement as to the level of risk
to someone who may be, or has been, detained.
12.7
The three intelligence agencies and MOD apply the Guidance in slightly different ways.
Each has developed internal policies to ensure its staff consider the Guidance appropriately
and that they maintain a record of decisions. GCHQ usually focuses on the Guidance
as part of the approval process when passing intelligence to another country. MOD, by
contrast, most often utilises the Guidance when seeking a particular individual’s detention.
We typically focus our oversight at the MOD on areas where the UK military are working
closely with foreign partners. As regards the USA, the close nature of our relationship and
the work both countries have undertaken in recent years to safeguard human rights in this
context have given the MOD – rightly, in our view – a high level of confidence in the joint
assessments about the risk of torture or CIDT.
12.8
SIS and MI5 generally apply the Guidance in similar ways. MI5 work with a range of
other countries and have longstanding relationships with many of them. The particularly
unpredictable nature of counter-terrorism work, however, means that MI5 and SIS
sometimes face the challenge of working with countries that may have a poor or uncertain
record of compliance with human rights obligations. This inevitably calls for a more
thorough assessment. Similarly, SIS has a broad international focus, and works with a range
of other countries. SIS, in particular, will often have a good understanding of the risk in the
country in question, which will contribute to the decision as to whether to proceed.
How IPCO oversees these powers
12.9
In November 2014, the Prime Minister directed the Intelligence Services Commissioner
to oversee the application by the intelligence agencies and the MOD (including the Armed
Forces) of the ‘Consolidated Guidance to Intelligence Officers and Service Personnel on
the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of
Intelligence Relating to Detainees’. In August 2017, the Prime Minister issued a direction that
the Investigatory Powers Commissioner should continue this oversight following the abolition
of the office of the Intelligence Services Commissioner.
12.10
It is important to have in mind that the Consolidated Guidance applies whenever a
member of the armed forces, the staff of the MOD, or a member of the intelligence
agencies: i) interviews a detainee who is in the custody of a foreign state; ii) requests