IPCO Annual Report 2018
First use of the appeals process
2.9
A single decision was appealed in 2018 when, in November, a JC refused a pair of
applications for warrants from SIS.
2.10
SIS sought two warrants authorising the retention and examination of a particular class
of bulk personal datasets. The authorisations were approved by the Foreign Secretary but
rejected by a JC. The JC was not persuaded that the data sought could appropriately be
obtained under a class authorisation or that the Head of the Agency had given sufficient
consideration to the application.
2.11
The case for appeal can be summarised as:
• the Secretary of State could be satisfied that the Head of SIS had applied his mind to
the provisions of sections 202 and 203 of the IPA so as to have concluded that none of
the section 202 restrictions applied to any of the datasets sought to be retained and
examined;
• the JC’s decision was inconsistent with certain relevant determinations by other JCs; and
• the material in the datasets did not contain protected data and therefore could be held
under a class warrant.
2.12
The IPC reviewed the case, considering the application and the argument set out by the
Foreign and Commonwealth Office (FCO) and SIS. In granting the appeal, the IPC disagreed
with the ‘personal certification role’ that the JC had accorded to the Head of the SIS
at the time the warrants were submitted to the Secretary of State. The IPC concluded
that the section 202 issues were appropriately addressed by the applicant agency in the
two renewed warrant applications. The IPC was also satisfied that there was sufficient
information before the Secretary of State to justify a conclusion that the datasets did not
contain protected data.
Technical capability notices (TCNs), national security notices (NSNs), and
communications data retention notices
2.13
The IPA introduced the power for the Secretary of State to issue notices to communications
service providers and UK companies to assist public bodies and agencies working under
the Act. These provisions consolidated a number of existing arrangements and established
a clear mechanism for authorising this activity. The JCs perform the double lock function,
ensuring that each notice given is necessary and the actions required of the company or
operator is proportionate to the stated aims of the work.
TCNs and NSNs
2.14
The Technology Advisory Panel (TAP) and IPCO’s legal team assisted the JCs in considering
TCNs and NSNs once the provisions had come into force during 2018. Briefings,
covering technical detail and practical processes, were given to the JCs to assist in their
consideration of these applications. The notices covered activity that had been authorised
under the previous provisions and accordingly the TCNs and NSNs sought in 2018 were
designed to bring them within the IPA statutory framework.
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