20
IPCO Annual Report 2018
2.45
The Court did not find a violation of the ECHR in relation to the application and operation
of the UK’s intelligence sharing regime.
2.46
Following the judgment, in October 2018 we received a number of bulk interception
warrants and bulk equipment interference warrants for consideration from GCHQ. In light
of the issues raised by the Big Brother Watch (BBW) judgment, the IPC and his deputy
met HMG on several occasions prior to consideration of the warrants. Their reasons on
approving the warrants required HMG to take steps to address the Court’s judgment by the
date on which it would become final.
2.47
We continued to hold meetings with HMG in order to understand the position being taken
in response to the judgment. A letter signed by both the Foreign Secretary and Home
Secretary was received by the IPC prior to the judgment becoming final on 13 December
2018. This outlined HMG’s planned response to the issues raised by the judgment. In
particular, HMG proposed that where an intelligence service intended to select for
examination secondary data in relation to an individual known to be in the British Islands,
it would be beneficial for the examination to be certified as necessary and proportionate
by the Secretary of State. This was proposed to be achieved on a thematic basis given the
high number of requests that would otherwise be made and the process will be subject to
inspection at GCHQ in 2019.
Assistance to the Investigatory Powers Tribunal (IPT)
2.48
IPCO has a statutory obligation to assist the IPT and does so on a regular basis. During 2018
we assisted the IPT in a number of matters, only a limited amount of which can be made
public. One key case that was resolved in 2018 was Privacy International and (1) Secretary
Of State For Foreign And Commonwealth Affairs (2) Secretary Of State For The Home
Department (3) Government Communications Headquarters (4) Security Service (5) Secret
Intelligence Service IPT/15/110/Ch.
2.49
This case primarily concerned the lawfulness of the acquisition, use and sharing of Bulk
Communications Data (BCD) and Bulk Personal Data (BPD) under the previous statutory
regimes and, to a lesser extent, the overall effectiveness of the oversight in those areas.
This case spanned a number of years with a significant judgment being given in July 2018.
2.50
We supported the Tribunal by answering numerous questions and performing searches
against the databases held by our predecessor organisations, primarily the Office of the
Intelligence Services Commissioner (ISComm).
2.51
The Tribunal, in July, dealing with the matters outstanding from its judgments of 17 October
2016 ([2017] 3 AER 647) and 11 September 2017 ([2018] 2 AER 166) relating to BCD and
BPD concluded unanimously (save in relation to one issue, set out below):
1. that in relation to many directions made prior to October 2016 by the Foreign Secretary to
Communications Service Providers to provide BCD to GCHQ, they were not in accordance
with law;
2. (by a majority) that the regime in respect of sharing of BCD and BPD with foreign agencies
complies with Article 8 of the ECHR;
3. that the regime in respect of sharing BCD and BPD with industry partners complies with
Article 8 ECHR; and