C.
The UK legal regime on intelligence sharing lacks the required
minimum safeguards
246.
The IPT has already held that the intelligence sharing regime was not
sufficiently foreseeable, prior to December 2015, because aspects of the
regime had not been made public. The arrangements were not therefore in
accordance with the law.
247.
In addition, the regime was also not in accordance with law in substance.
First, it has all the defects of the s8(4) Regime identified above. There is no
provision for prior independent authorisation or any requirement for
individual
reasonable
suspicion.
The
oversight
arrangements
are
inadequate. Second, the regime is governed by a bare statutory power,
drafted
in
general
terms
and
exercised
in
secret.
The
present
arrangements are a fortiori Liberty and therefore inadequate. As in Liberty
there was no Code of Practice. But in Liberty the powers for bulk
interception in IOCA 1985 were set out in publicly accessible legislation in
some detail. In contrast, until recently nothing was in the public domain
about intelligence sharing
248.
The “note” setting out current practice is insufficient.134 It was only
disclosed as a result of this litigation. It is not law. It is unclear whether it
is the actual policy, part of a policy, a summary of a policy or a summary of
submissions made by the Government to the IPT in the closed hearing. It
is also unclear whether it is 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. Further:
134
Reply Annex no. 42; see also First Judgment, para 47.
96