Investigatory Powers Commissioner’s Annual Report 2019
and Targeted Equipment Interference authorised under the IPA. MI5 does not undertake
interception or equipment interference activity under bulk warrants.
8.23
Overall, we are satisfied that MI5 has achieved a high level of compliance with the IPA in
respect to Targeted Interception and Targeted Equipment Interference. The warrants were
necessary for one or more of the purposes set out in the Act and were proportionate to
what they sought to achieve.
Rejected warrants
8.24
A JC rejected one application for the renewal of a combined Targeted Interception and
Targeted Equipment Interference warrant from MI5. The circumstances of the case were
that data could not be obtained at the time of the renewal and had not been obtained
in the previous period but MI5 assessed that their officers might be required urgently
to conduct actions under the warrant if the subject of the warrant was released from
custody. The JC considered that the renewal was driven by considerations of administrative
convenience and was neither necessary nor proportionate. The JC considered that, if the
subject was released, MI5’s operational team and the Home Office warrantry team might
need quickly to apply to put monitoring techniques in place, but that this should not be
prioritised over the subject’s rights to privacy.
Additional reviews imposed by the Secretary of State
8.25
Under the IPA, interception and EI activity is authorised by the Secretary of State and
approved by a JC through the double lock process. In some cases, for instance where
there are concerns about the potential level of collateral intrusion, the Secretary of State
may authorise a warrant but seek an early review of necessity and proportionality by
the requesting agency. MI5 typically informs the Secretary of State of the result of these
reviews in a letter of clarification. Overall, we discovered that in the vast majority of cases
a letter of clarification was completed as requested and that the reviews satisfied the areas
of potential concern. In the small number of cases where this had not happened, there was
a satisfactory explanation for this. We found the reviews to be informative, accurate and
relevant to the requests.
Confidential material
8.26
We selected and reviewed a number of warrants under which confidential material had
been obtained. We were satisfied that MI5 handled any such confidential material carefully
and in accordance with the legislation. During 2019, MI5 changed their legal professional
privilege (LPP) policy to align it with the requirements of the IPA and to mirror the
arrangements of the Secret Intelligence Service (SIS) and the Government Communications
Headquarters (GCHQ), which we believe is an appropriate approach. MI5 had previously
applied the test of an “exceptional and compelling” case to justify the retention of any LPP
material obtained under a warrant. This is a more stringent test than that set out in the IPA,
which requires a balance of public interest test to be applied. MI5’s policy was developed
before the IPA came into force, hence the inclusion of a different and higher test than the
one the IPA actually requires. MI5 has now amended the policy to refer to the balance of
public interest test but we do not expect this to make a significant difference to how they
are retaining LPP in practice.
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