CHAPTER 10: INTELLIGENCE
needs to safeguard its national interests. It is important, therefore to ensure
that there is a clear and transparent legal basis for such sharing, and the
safeguards that apply.
10.41. GCHQ could see benefit in putting serious crime procedures on a par with those for
national security, in particular by having warrants last for six months rather than three.
It was a point generally made that when warrants last for only three months, it is often
necessary to start preparing a renewal application without a full understanding of the
impact of the original warrant.
10.42. GCHQ also expressed a clear intention to be more transparent, wherever possible,
about its capabilities and operations.
Authorisation
10.43. At present, warrants for interception are approved by the Secretary of State. Both
the Home Secretary and the Foreign Secretary are up-to-date with the requirements
placed on the Agencies and the Government’s policy and operational needs. They
are to a large extent also responsible for them. So there is an easy fit between the
Agencies’ work and the responsible ministers’ portfolios. The Home Secretary bears
much the biggest burden among Secretaries of State who approve warrants and she
has regarded this as in keeping with her democratic accountability for the actions of
the Agencies, a position has been endorsed by the recent report of the ISC.28
10.44. The Agencies have made no suggestions to me that the current arrangements for
approval by the Secretary of State should be changed. They recognise that there is
however pressure to do so from a number of other quarters. Were that to happen,
their chief concerns would be to ensure:
(a)
the timeliness of a revised approval process; and
(b)
arrangements to maintain both security, and sufficient background for the work
to be carried out effectively.
Although much of MI5’s work may lead to prosecutions in UK courts or to other activity
wholly and properly independent of the government, that is not true of most foreign
intelligence work. The actions of the Agencies overseas and of the rest of
government are properly and intimately connected. The FCO was keen to emphasise
that preserving national security, to which purpose most of the Agencies’ work is
directed, is a function of the executive branch of government, and was concerned
that the political and diplomatic context of any action they take should continue to be
considered in that context.
10.45. The Agencies are also concerned to maintain their agility, and operational secrecy, in
obtaining communications data from service providers. The recently published
Acquisition Code recognises that there may be circumstances where “ongoing
operations or investigations immediately impacting on national security” mean that
28
ISC Privacy and Security Report, Conclusion GG.
201