to complaints and the conduct of disputes subject to IPT proceedings is
difficult to reconcile with the IPT’s role as a neutral arbiter of legal
complaints against those very agencies. Moreover, the IPT failed to
disclose, in this (or any other) case that a briefing of relevance to the
issues in this case had taken place, that a member of the IPT panel had
attended such briefing, or that a protocol was in place that might mean
relevant material was neither disclosed to the IPT nor reviewed by it.
100.
In light of the contents of the briefing, it would appear that the IPT has
failed to consider whether any material held in bulk by MI5 was initially
intercepted, extracted, filtered, stored or disseminated unlawfully. Each of
these steps constitutes a significant interference with Articles 8 and 10
and gives rise to real risks of unlawful conduct by the Government. The
IPT has not considered the key evidence available to it.
2.
The Intelligence and Security Committee
101.
The Applicants note several important structural and practical limitations
on the ISC’s oversight role with respect to both the Government’s bulk
interception and intelligence sharing activities.
102.
First, the ISC is not a full-time oversight body. It is a parliamentary
committee composed of nine Members of Parliament (“MPs”).
103.
Secondly, the ISC lacks sufficient independence from the Executive. The
Prime Minister has sole power to nominate MPs to the ISC. She also has
power to veto publication of any material by the ISC.54 For these reasons,
the CoE HR Commissioner has expressed “concern that the executive
control of this Committee may be too strong”.55 In addition, the Secretary of
State may veto disclosure of evidence to the ISC.56
Intelligence Services Act 1994, c. 13 (UK).
Memorandum on Surveillance, para 9. Reply Annex No.28.
56 House of Commons Briefing Paper No. 02178 on the Intelligence and Security Committee (2
February 2016) explains that: “The Secretary of State may only veto disclosure of information on
54
55
43