CHAPTER 6: POWERS AND SAFEGUARDS
Data to the UK
6.89.
Prior to the recent Liberty IPT Case, there was limited concrete information in the
public domain concerning the safeguards that were applied to the receipt, in the UK,
of data from overseas governments. Neither RIPA nor the Codes of Practice deal with
this question at all. There are general constraints on the actions of the security and
intelligence agencies. As MI5 argued before the IPT, it is only entitled to obtain
information “so far as necessary for the proper discharge of its functions.”93 Other
similar constraints arise out of ISA 1994 ss1-4, DPA 1998 s4, HRA 1998 s6 and the
Counter-Terrorism Act 2008 s19.94
6.90.
The ISC reported in 2013 that “in each case where GCHQ sought information from the
US, a warrant for interception, signed by a Minister, was already in place, in
accordance with the legal safeguards contained in [RIPA]”.95 In the course of the
Liberty IPT Case, the security and intelligence agencies disclosed that data might, at
least in theory, be obtained in another scenario. Data may either be sought from
overseas governments when:
6.91.
93
94
95
96
97
98
99
100
(a)
an interception warrant had been granted authorising the interception of those
communications but they could not be obtained under that warrant and it would
be necessary and proportionate to obtain those communications;96 or
(b)
making the request does not “amount to a deliberate circumvention of RIPA”.
For example, in circumstances where it is not technically feasible to obtain that
material under RIPA, and it is necessary and proportionate to gain access to it.
A request of that kind should be personally considered by the Secretary of
State.97 The security and intelligence agencies confirmed that this would only
take place “in exceptional circumstances, and has not occurred as at the date
of this statement”.98
The IPT concluded that, prior to that disclosure, the regime that governed the receipt
of private communications from the US Government (obtained by the US Government
via UPSTREAM and PRISM) had not been “in accordance with the law”.99 That
framework had not been sufficiently foreseeable and had not satisfied the standard
required by the Article 8(2) case law in the national security context.100 However, the
IPT also held that, following the disclosures made in the course of the hearing, the
security and intelligence agencies had placed the current arrangements on a
sufficiently clear footing and the requirements of Articles 8 and 10 were now satisfied.
That latter conclusion is subject to challenge in the ECtHR.
SSA 1989 s2(2)(a).
Liberty IPT Case, judgment of 5 December 2014, paras 18-19.
Statement on GCHQ’s alleged interception under PRISM, (July 2013), para 5.
Such a warrant being either: i) a s8(1) warrant; ii) a s8(4) warrant and a certificate and a s16(3)
modification (for those within the British Islands); or iii) a s8(4) warrant with a certificate.
Liberty IPT Case, judgment of 5 December 2014, para 47.
Ibid., para 48(1).
Liberty IPT Case, judgment of 6 February 2015, para 23.
I address this decision and the principles governing this area of law in more detail at 5.19-5.20 and 5.35
above.
117