Investigatory Powers Commissioner ’s Annual Report 2019
16. Warrant Granting
Departments
Overview
16.1
The completion of the transition to the Investigatory Powers Act 2016 (IPA) has changed
our relationship with the warrant granting departments, because the Investigatory Powers
Commissioner’s Office (IPCO) is now involved in the approval chain for most authorisations
reviewed by the Secretary of State, as well as being responsible for retrospective
oversight. Notably, this change has given our Judicial Commissioners (JCs) an insight into
the pre-authorisation challenge function provided by the Secretary of State and through
the warrant granting department (WGD). In many cases, and in the majority of novel
and contentious cases, there is some additional dialogue between the WGD and the
requesting agency to ensure that the requirement outlined is necessary and proportionate.
We have seen that this scrutiny provides granular challenge which allows the WGD to
review whether the proposed action will meet the required operational or intelligence
outcome. This is of particular note for thematic authorisations where, before submitting
an application to the Secretary of State, the WGD will ensure that the scope of the warrant
is the minimum necessary to meet the stated aims. Much of our work at WGDs in the last
year has been in this area.
16.2
The introduction of the new processes brought additional documentation. In our oversight
capacity, we have observed that all WGDs should implement a policy to deal with the
retention and disposal of IPA documentation.
16.3
We conducted one inspection at each department, reviewing casework across the powers
they authorise. At the Home Office and Foreign and Commonwealth Office (FCO), this
meant that we covered interception, equipment interference and bulk powers under the
IPA as well as property interference and overseas powers under the Intelligence Services
Act (ISA). At the Northern Ireland Office (NIO), we inspected interception and equipment
interference and, at the Scottish Government, interception. The differences are due to the
intelligence agencies or law enforcement bodies that use the respective WGDs and the
powers available to them, as well as the fact that the Scottish Government is not involved
in national security authorisations.
Findings
Home Office
16.4
Because of their role overseeing domestic authorisations originating from the National
Crime Agency (NCA), Her Majesty’s Revenue and Customs (HMRC), the Metropolitan Police
Service (MPS) and MI5, the Home Office is the largest WGD and deals with the greatest
volume of applications. This number has only increased under the IPA and our oversight
has examined how well the unit has responded to this increased demand. In 2019 our
inspection focused on the advice given to the Home Secretary in addition to the application
submission. We saw regular challenge from the National Security Unit (NSU), often seeking
117