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A Democratic Licence to Operate
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The carrying out of any aspect of the functions of the intelligence services as
directed by the prime minister.38
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The InSeC conducts twice-yearly inspections and ex post facto sampling of authorisations
that have been granted by either the secretary of state or the relevant person within
the requesting organisation.39 The InSeC will examine 16–20 per cent of authorisations,
checking all the paperwork is in order and confirming that the case of necessity (primary
to the case they have to make) and proportionality (concerned with the question of
privacy rather than whether adequate resources are available) have been made. Any
privacy interference must be justified by the information that is sought. The InSeC also
conducts under-the-bonnet inspections to review how warrants are put into operation.
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During visits, the InSeC meets with the officers who wrote the submissions and crossexamines them on their justifications. He or she will sit with them at their desks to look
at exactly what they are doing and how they think about privacy. Training regimes and
training sessions are also inspected. Ethical guidance is examined, and particularly the
avenues that are open to employees who may wish to raise concerns with someone
other than their line manager. Any deliberate avoidance of due procedure would
warrant a criminal investigation; though to date, no InSeC has found any evidence of this
ever occurring.
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In its 2013 annual report, the InSeC considered whether an unlawful warrant or
authorisation could, in theory, be successfully issued.40 Its conclusions were that this
would require considerable ineptitude or conspiracy on a massive scale, involving:
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•
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The applicant (in setting out a case for necessity and proportionality)
The authorising officer (in approving it)
The lawyers (in signing off or turning a blind eye to illegal activity)
Where ministers are involved, the relevant government department warrantry
unit (in presenting the paperwork for signature)
The secretary of state (in signing the warrant)
The civil servants (who support and advise the secretary of state).
Under the Justice and Security Act 2013, provision was made to expand the remit of
the InSeC to include an ability to oversee, at the direction of the prime minister, any
38. Mark Walker, Report of the Intelligence Services Commissioner for 2013 (London: The
Stationery Office, 2014.
39. The Intelligence Services Commissioner (currently Sir Mark Waller) conducts all
inspections personally, rather than being supported by a team of additional inspectors.
Although the InSeC would appreciate greater resourcing, the Commissioner would still
rather conduct all inspections personally than be part of an inspection team (ISR roundtable with the Commissioners, February 2015).
40. Walker, Report of the Intelligence Services Commissioner for 2013 (London: The Stationery
Office, 2014), p. 12.