CHAPTER 6: POWERS AND SAFEGUARDS
6.32.
The exercise of ISA 1994 ss5 and 7 powers is not subject to review by the IOCC but
rather by the ISCommr, whose latest two annual reports set out the total number of
warrants obtained by the security and intelligence agencies and the Ministry of
Defence [MoD] (1,887 in 2013). It is not clear how many of those warrants were s5
warrants.
6.33.
As to the relationship between CNE, carried out under ISA 1994 and interception
under RIPA, the Draft Equipment Interference Code provides that if MI6 or GCHQ
wishes to interfere with equipment that is overseas but the subject of the operation is
known to be in the British Islands:
“consideration should be given as to whether a section 8(1) interception warrant
or a section 16(3) certification (in relation to one or more extant section 8(4)
warrants) under the 2000 Act should be obtained.”
It does not elaborate on what factors should be taken into account in the course of that
“consideration.”
RIPA powers
RIPA interception
6.34.
The primary statute, pursuant to which telecommunications can be intercepted or
communications data obtained, is RIPA. As set out above, RIPA sets out different
mechanisms for the authorisation of interception and acquisition of communications
data.
6.35.
RIPA s71 requires the Secretary of State to publish guidance concerning the use and
exercise of RIPA powers. Currently, this includes the Interception Code, the new
Acquisition Code and the Retention of Communications Data Code of Practice
[Retention Code], laid before Parliament in March 2015.38 Furthermore, the Home
Office is consulting on a Draft Equipment Interference Code, which will regulate a
specific area within the existing Covert Surveillance and Property Interference Code.
The Home Office is also consulting on a Draft Interception Code.
6.36.
The primary means by which an interception may be authorised under RIPA is via a
warrant, issued under s5 and signed by a Secretary of State or Scottish Minister in
person. The Secretary of State must believe that the warrant is necessary on grounds
of national security, preventing or detecting serious crime, safeguarding the economic
well-being of the UK or for the purpose of giving effect to an international agreement.39
6.37.
The Secretary of State must also believe it is necessary and proportionate to the
objective sought. That dual requirement of necessity and proportionality is a direct
38
39
As well as a Covert Surveillance and Covert Human Intelligence sources Code of Practice, not directly
relevant to this Review.
RIPA s5(3).
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