91.
Before the IPT, the Government cited several statutes, which generally
authorise the functions of the UK Intelligence Services.48 Thus, for
example, it cited to s1 of the Security Service Act 1989, which provides,
inter alia, that “[t]he function of [MI5] shall be the protection of national
security” and to s2(2)(a), which articulates the Director-General’s duty to
ensure “that there are arrangements for securing that no information is
obtained by the Service except so far as necessary for the proper discharge
of its functions”. The Government referred to analogous provisions
authorising the functions of MI6 and GCHQ in the Intelligence Services
Act 1994. It also relied on the Counter-Terrorism Act 2008, which sets out,
in similarly general terms, that “[i]nformation obtained by any of the
intelligence services in connection with the exercise of any of its functions
may be used by that service in connection with the exercise of any of its
other functions.”
92.
Apart from these bare statutory authorisations, the Government alluded
to secret internal guidance governing intelligence sharing.
93.
These arrangements remain secret. The Government presented them to
the IPT in a closed hearing, following which it disclosed a “note”.49 The
“note” contains no heading and just a few paragraphs of text, which
appear to summarise some of the arrangements. It is unclear whether the
note is an actual policy, part of a policy, a summary of a policy or a
summary of submissions made by the Government in the closed hearing.
It is also unclear whether the note sets out an approach that the
Government considers binding or is simply a description of desirable
practices. Finally, it is unclear who drafted or adopted the note (and under
what legal authority) or who has the power to amend it. The date on which
the arrangements came into force is unknown. It is equally unknown if the
arrangements have ever been altered or amended.
48
49
First IPT Judgment, para 18(x)-(xi).
Disclosed Note. “Reply Annex” no. 42; see also First IPT Judgment, para 47.
40