IPCO Annual Report 2018
10. Consolidated Guidance
Overview
10.1
In accordance with a direction from the Prime Minister made under Section 230 of the IPA
on 22 August 2017, we inspected the UK Intelligence Community (UKIC) and the Ministry
of Defence (MOD) to examine their compliance with the requirements of the Consolidated
Guidance. Many decisions engaging the Consolidated Guidance cut across the work of
more than one organisation and accordingly our findings are presented thematically in
this section.
10.2
The Secret Intelligence Service (SIS) and the Government Communications Headquarters
(GCHQ) often use section 7 of the Intelligence Services Act (ISA) to authorise activities
overseas which will involve continued consideration of the risk of torture or cruel,
inhumane or degrading treatment (CIDT). The existence of a section 7 authorisation does
not remove the obligation for officers to apply the Consolidated Guidance and to continue
to inform senior officers and/or Ministers, as appropriate, in the event of changes to the
risk assessment as an operation is progressed. It should not be necessary to state that
section 7 authorisations cannot be used to authorise internationally unlawful acts.
10.3
In 2017, we stated our intention to obtain statistics in relation to the use of assurances by
the intelligence agencies and the MOD. This intention was expressed in IPCO’s evidence
to the Intelligence and Security Committee (ISC) inquiry into detainee mistreatment and
rendition. We have worked with UKIC to understand how they use assurances and how
the credibility of specific assurances is assessed and continually monitored. It is clear that
assurances are sought both verbally and in writing and, on reflection, we judge that the
way that assurances are obtained and relied upon renders this a pure statistic of limited
value. In our view, having written assurances in place cannot be considered to be a single
factor enabling UKIC officers to pursue a course of action where the Consolidated Guidance
is engaged. We have not, therefore, collected figures for assurances in 2018. This is not
to under-estimate the importance of assurances when assessing risk and we cover this in
more detail below.
Findings
10.4
Overall, we are satisfied that UKIC and the MOD consistently ensure that decisions taken
which engage the Consolidated Guidance are subject to detailed and careful scrutiny. This
is especially the case in complex counter-terrorism cases, which sometimes involve both
serious human rights risks and imminent threat to life. In many cases put before Ministers,
bespoke and detailed legal advice was included, setting out the legal basis for the proposed
course of action under domestic and international law.
10.5
UKIC and the MOD all have robust processes for ensuring decisions which engage the
Consolidated Guidance are brought to the attention of policy and legal experts for review,
even in what they might consider to be fairly routine cases. However, each agency does this
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