Investigatory Powers Commissioner’s Annual Report 2019
the Telecommunications Act 1984 (the predecessor regime to what is now Part 6, Chapter 2
of the IPA).
At the hearing in June 2019, the High Court also heard argument of, and considered matters
relating to, failures by MI5 to comply with the handling arrangements for data acquired
under IPA warrants. In chapter 8 of this report, we describe in detail the serious compliance
failings by MI5 in its handling of data obtained under IPA and Regulation of Investigatory
Powers Act 2000 (RIPA) warrants. In particular, we have described:
• the inspections carried out by IPCO to investigate these compliance issues; and
• the IPC’s decision (of 5 April 2019) when he approved the issue of a number of warrants
to MI5, on the basis of the steps that MI5 had, by then, taken to rectify the most
immediately pressing issues relating to the safeguarding of IPA warranted material.
In its judgment of 29 July 2019, the High Court determined the ECHR compatibility of
the IPA against the background of the First Section’s judgment in the BBW case; it being
recognised that the Grand Chamber’s ruling in the BBW case (when that is provided) might
have implications for any appeal from the High Court’s judgment. The High Court rejected
the claim for judicial review concluding that:
• in principle, bulk powers are compatible with the ECHR; and
• the IPA contains sufficient safeguards to avoid the risk of abuse of power and in order to
be in accordance with law.
In the course of its judgment, the High Court considered the MI5 compliance issues, the
actions taken by IPCO, and the view reached by the IPC in relation to MI5 warrants. The
Court declined to rule on whether or not MI5 had complied with the requirements of
the law, concluding that that question was different to that which it had to determine in
the judicial review where the issue was the ECHR compatibility of the legislative scheme.
The High Court noted that these issues as to compliance might be the subject of future
litigation, potentially before the IPT. This transpired later in the year as described below.
Assistance to the Investigatory Powers Tribunal (IPT)
IPCO has a statutory obligation to assist the Investigatory Powers Tribunal (IPT), further to
section 232(1) of the IPA. During the course of 2019 we provided information to the IPT, in
response to requests for assistance, as follows:
c. For the purposes of the “Third Direction” litigation (see below) we provided information
to the IPT in relation to the IPC’s oversight under the Prime Minister’s direction of 22
d. For the purposes of a complaint to the IPT, by an individual in relation to a police force,
the IPT sought assistance in verifying the police force’s assertion that, following searches
carried out by it, it did not hold any relevant information. Our Inspectors attended the
police force’s offices, interviewed staff and reviewed the force’s records before providing a
report to the IPT on their findings.