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IPCO Annual Report 2018
15. Warrant Granting
Departments
Overview
15.1
The introduction of the double lock has established a new working relationship with the
departments of state. This moves the Investigatory Powers Commissioner’s Office (IPCO)
from simply conducting retrospective reviews to current scrutiny of the Secretary of State’s
decision making. Notably, this includes insight into the pre-authorisation challenge function
provided by the Secretary of State and through the Warrant Granting Department (WGD).
In many cases, and in the majority of novel and contentious cases, there is some additional
dialogue between the WGD and the requesting agency to ensure that the requirement
outlined is necessary and proportionate. Such scrutiny at this point in the process provides
a granular challenge, whereby the WGD will review whether the proposed action meets
the required operational or intelligence outcome. This is of particular note for thematic
authorisations where, before submitting an application to the Secretary of State, the
WGD will ensure that the scope of the warrant is the minimum necessary to meet the
stated aims.
15.2
We inspect the Ministerial oversight of the use of bulk communications data (BCD) at
the requesting agencies, rather than the WGD. This gives us oversight of the end-to-end
process. In our consideration of the Secretary of State’s role in this process, we consider
the adequacy of documentation presented for authorisation and review and the clarity of
directions provided to the relevant communications provider. For each section 94 direction,
the direction supporting documentation made explicit that the relevant Secretary of State
was giving the direction in person and each was signed. In each case, section 94 directions
specified the communications data (CD) which was the subject of the direction by using
terminology familiar to the communications service providers (CSPs). This methodology will
change in 2019 to accommodate the changes resulting from the introduction of warrantry
for the bulk acquisition of CD.
15.3
Our 2018 inspection of the Home Office’s National Security Unit (NSU) focused on the
scrutiny they provide throughout the lifespan of interception operations. The Home
Secretary may impose conditions for review when approving any authorisation, for
example, where it is judged that there may be an unusually high level of intrusion into the
target’s privacy. However, we noted a number of cases where the requirement for review
was not enforced and MI5 did not provide a relevant update at the designated time. We
support the Home Office’s assertion that these reviews must be received, if requested,
and our Judicial Commissioners (JCs) consider these to be an important condition of
the authorisation.
15.4
We have worked closely with the National Security Unit (NSU) to establish processes to
ensure that applications are progressed swiftly through the system without compromising
the ability for the Senior Official, Secretary of State or JC to have adequate time to consider
or challenge the application in hand. We believe that these processes have been well
implemented.