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Investigatory Powers Commissioner’s Annual Report 2019
Interception and Equipment Interference (EI)
11.6
The MOD may apply to the Secretary for Defence to conduct activities in the UK which fall
under the IPA, such as interception and equipment interference (EI). Under section 17(2)
(c) the MOD may apply for a warrant to intercept communications for the purpose of
training and testing in the UK. Similarly, the MOD may apply for a warrant to conduct EI
under section 101(1)(g) for testing, maintaining or developing capabilities and 101(1)(h)
for training. In our 2018 Annual Report we stated that we had discussed the provisions for
thematic warrants in relation to training and testing equipment with the MOD. During 2019
we were able to examine their reliance upon these provisions.
11.7
The MOD has a very thorough and detailed process for internally authorising and tracking
warranted activity. The MOD’s authorisations were completed to a high standard and
all the personnel we spoke to from various branches of the Armed Forces were well
versed in the relevant legislation and had a good grasp of necessity, proportionality and
collateral intrusion.
11.8
The MOD’s internal documentation regarding the retention and deletion of warranted
material is comprehensive but would benefit from greater reference to the Codes of
Practice (CoP). We recommended that the MOD draws up a formal stand-alone safeguards
document for material obtained under warrant and that this should be approved by the
Secretary of State.
Consolidated Guidance
11.9
Overall, we were satisfied that the MOD is assessing risk in line with the Consolidated
Guidance in a detailed and careful manner.
Assessing risk
11.10
In our 2018 report, we noted the requirement for risks to be quantified as either above or
below the “serious risk” threshold set out in the Consolidated Guidance; officers should
not fall back on “unknown risk”. In 2019, we identified a number of the MOD assessments
which recorded the level of risk as “unquantifiable”, or which stated that the risk “cannot
be said to be less than serious”. These are potentially misleading phrases and should
be avoided. We have recommended that the MOD ensures that all future assessments
clearly set out whether the level of risk, having taken all mitigations into account, is above
or below the “serious risk” threshold (or, now that The Principles have come into force,
“real risk”).
11.11
Separately, we identified a number of areas in which the forms used by the MOD to record
assessments made under the Consolidated Guidance could be improved, by ensuring the
questions asked of officers completing the form are as clear and unambiguous as possible.
Unsolicited intelligence
11.12
The Consolidated Guidance requires that, where the MOD receives unsolicited intelligence
that originates from a detainee and where they believe the standards to which that
detainee has been or will be subject to are unacceptable, Ministers must be notified. We
identified two cases where the MOD failed to notify Ministers, only doing so months later
after the initial failure to notify had been spotted. The correspondence we reviewed made