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Investigatory Powers Commissioner’s Annual Report 2019
annex, we have raised the concern that this may lead to a distortion of facts and could
prevent SIS from giving a full and balanced case for appropriate ministerial oversight. We
have identified one instance where we believe the paperwork submitted to the FCO was
misleading in part because of the brevity imposed by the FCO, but in this case the risks
were overstated and so there is no concern that any key facts were omitted or that the
Secretary of State would not have authorised the case in its full reality.
9.38
At one station, SIS briefed us on some online operational activity which related to an
assessed juvenile individual. The documentation we inspected demonstrated that
the case was paused and thoroughly assessed when SIS identified that the individual
might be a juvenile. This case followed SIS’s policies on handling such instances, and
the case for continued engagement with this individual was well set out on the record.
This demonstrates the recognition of the importance of certain sensitive categories of
individuals and how centrally administered training and guidance is effective globally.
9.39
We reviewed a section 7 submission relating to a high-risk SIS agent case overseas. SIS
identified a risk that the agent may be involved in serious criminality overseas. SIS did not
encourage, condone or approve any such criminality on the part of their agent. In their
submission, SIS set out that they had secured the agent’s cooperation on terms of full
transparency about the activities in which the agent was involved. It included some clear
‘red lines’, setting out conduct that was not authorised and would result in the termination
of SIS’s relationship with the agent.
9.40
On renewal, six months after the original submission, SIS set out a number of indicators
that the agent may have been involved in, or have contemplated, the serious criminality
referenced above. We concluded that, on the basis of this new information, SIS’s ‘red lines’
had most likely been breached, but the renewal submission failed to make this clear. Whilst
the submission referred to SIS’s ‘red lines’ provided information about criminality that may
have occurred and noted an increased risk in the case, it did not make expressly clear that
SIS’s ‘red lines’ had probably been crossed. We concluded that the renewal did not provide
a comprehensive overview of available information which we believe would have provided
the Secretary of State with a fuller and more balanced picture. SIS immediately responded
to these concerns by updating the FCO.
9.41
SIS conducts certain activities overseas, such as surveillance activities, with reliance on
class authorisations. These authorisations, approved under section 7, will describe a type
of activity and will not relate to a specific operation. We asked SIS how they ensured that
reliance on those authorisations were properly documented and how they ensured that the
Secretary of State had a clear understanding of the extent to which these authorisations
were relied on. We were satisfied that this issue had been considered carefully by SIS’s legal
team. SIS does not record individual instances of reliance on these authorisations but will
have operational planning documents to record the justification for, and purpose of, those
actions. We understand that the Secretary of State may authorise certain common activities
under the ISA in this way and were satisfied that the regular written and oral briefings
provided by SIS to the Foreign Secretary provide adequate sight of their operational
activities to enable him to make an informed judgement on the ongoing necessity of these
authorisations. We found that SIS’s internal records clearly documented the necessity and
proportionality of conducting operational acts under these authorisations.
Consolidated Guidance
9.42
Overall, we remain impressed by the care and rigour taken by SIS in dealing with cases that
engage the Consolidated Guidance, including in cases overseas posing considerable risks.