Investigatory Powers Commissioner’s Annual Report 2019
Assessing risk
9.43
In our 2018 report, we welcomed UKIC’s decision to set up a central team to draft objective
summaries of liaison partners’ human rights compliance statuses to inform decisions under
the Consolidated Guidance. The central team made good progress in 2018 in producing
assessments for some of the more challenging priority countries, drawing on classified
as well as open source material. The UKIC central team is also beginning a new project to
review assurances provided by foreign liaison services. The project will collate details of
assurances received, alongside the liaisons’ “track record” in complying with them. This has
real potential value to officers making decisions that engage the Consolidated Guidance,
given the importance which is often placed on assurances as a risk mitigation.
9.44
However, we remained concerned that these important assessments might not always
be taken fully into account by those making decisions which engage the Consolidated
Guidance. In response, SIS has now introduced a policy to make it mandatory to take
the central team’s assessments into account, where these are available. We have also
recommended that UKIC explore ways to make their conclusions available to SO15 (the
Metropolitan Police Service’s counter terrorism unit) and the National Crime Agency
(NCA), who from January 2020 will be subject to The Principles (formally known as The
Principles relating to the detention and interviewing of detainees overseas and the passing
and receipt of intelligence relating to detainees – published on 18 July 2019, replacing
the existing Consolidated Guidance from January 2020). Finally, we have recommended
that the officer responsible for giving the final sign off to the content of the central team’s
reports should be from outside the relevant operational line management chain, to ensure
that the assessments are demonstrably independent
9.45
We reviewed one case in 2019 where another department did not agree with SIS’s
assessment of the legal risks associated with a course of action that engaged the
Consolidated Guidance. The Ministerial submission did not make any reference to this
difference of view and, to this extent, was misleading. We have recommended that
SIS ensure that any dissenting views – whether within SIS or between SIS and other
departments – are clearly set out in submissions in future.
Assurances and caveats
9.46
As we have noted in previous reports, assurances are an important mitigation which can
be relied upon by HMG to prevent mistreatment at the hands of a liaison service. They are
typically sought from a senior figure who can guarantee that an individual will be detained
in a specific, compliant facility and that officers will not engage in unacceptable behaviour.
9.47
In our 2018 report, we noted a recommendation that SIS highlights, in Ministerial
submissions, any cases where they judge assurances provided by foreign liaison to be
particularly fragile. In 2019, we reviewed a number of high-risk cases where this was the
case and were satisfied that SIS presented the risks associated with the proposed course of
action in a clear and objective manner.
9.48
Caveats are often attached to intelligence passed in writing to a liaison partner setting
out how the intelligence is to be used. Typically, the caveat would instruct that no action
should take place on the basis of the intelligence without first consulting the UK. We have
previously recommended that caveats should be clear and concise, and translated into
the local language wherever possible. SIS has informed us that this requirement has been
incorporated into relevant training courses and will appear in guidance to accompany The
Principles in 2020.
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