CHAPTER 13: PRINCIPLES
basis that (as it stated in a footnote) “there should be a clear separation between
intelligence and law enforcement functions”.26
13.37. The idea of consolidating duplicative powers over interception and communications
data powers is a sound and (I have found) an uncontroversial one. My own
recommendations are to the effect that equivalent powers to those in RIPA Part I
should be brought within the same framework or at least made subject to equivalent
conditions.27
13.38. More controversial is the idea that the law in this area should enshrine, for the first
time, a clear separation between intelligence and law enforcement functions. It is true
that such a separation is a feature of the laws of many other countries. Even in the
UK, some statutory powers (notably those contained in ISA 1994 ss 5 and 7) are
reserved to the security and intelligence agencies. The ISC’s recommendation is
therefore a perfectly logical one.
13.39. I do not however echo that recommendation, partly because I believe for the reasons
stated above that RIPA Part I and associated powers require reform across the board,
not just as they concern the security and intelligence agencies, and partly because it
seems to me that to hive off the security and intelligence agencies in the manner
suggested would be a retrograde step.
13.40. The seamless and cooperative working relationship between security and intelligence
agencies and the police is a feature of the UK security landscape that is widely
admired, but rarely successfully imitated, across the world. Part of the secret of that
success is that police and agencies (in particular MI5) interoperate across significant
parts of their work, a process that has accelerated since the London bombings of
2005. So, for example:
(a)
MI5 works closely with counter-terrorism police not only in London but in other
parts of the UK, for example in the four regional police Counter-Terrorism Units
and four Counter-Terrorism Investigation Units across England and Wales and
at major ports and airports.
(b)
There is a similarly close relationship between MI5 and the NCA in the field of
serious and organised crime.
(c)
Police and MI5 each have their own investigative and surveillance teams, which
use the same techniques, will often be interested in the same targets and may
to some extent be used interchangeably.
13.41. Nor should the work of MI5 be distinguished from that of MI6 and GCHQ: it became
evident to me during the course of the Review that they depend ever more on one
another.
13.42. There are still investigatory powers that only the security and intelligence agencies
deploy: notably, bulk data collection and CNE. I have not suggested that this should
26
27
Ibid., fn 289.
Recommendations 6-7 below.
254