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A Democratic Licence to Operate
The ISC Inquiry
5.6
In July 2013, the ISC issued a statement on the specific media allegations over the
activities of GCHQ, and its subsequent investigation. It noted that ‘While some of the
stories are not surprising, given GCHQ’s publicly acknowledged remit, there is one
very serious allegation amongst them – namely that GCHQ acted illegally by accessing
communications content via the PRISM programme’.2 After investigation, the ISC
concluded that GCHQ had not circumvented UK law.
5.7
The ISC also concluded, however, that there were wider issues of concern. In particular,
it noted that ‘some elements of the legislative framework governing the Agencies’ work
are overly complex, difficult to interpret in relation to certain internet technologies, and
lack transparency’.3 It announced that it would therefore be initiating a full inquiry to
‘consider further whether the current statutory framework governing access to private
communications remains adequate’.4 In October 2013, it confirmed that it would be
broadening its inquiry to also consider the ‘appropriate balance between our individual
right to privacy and our collective right to security’.5
5.8
The ISC published a redacted version of its report in March 2015. As its title (‘Privacy
and Security: A Modern and Transparent Legal Framework’) suggests, the primary focus
of the report was on the ‘opaque’ and ‘unnecessarily complicated’ myriad of legislation
governing the activities of the agencies. Its key recommendation was therefore that ‘the
current legal framework be replaced by a new Act of Parliament governing the intelligence
and security Agencies. This must clearly set out the intrusive powers available to the
Agencies, the purposes for which they may use them, and the authorisation required
before they may do so’.6
5.9
On the issue of the authorisation of warrants, the primary question the Committee
considered was whether ministers or judges should sign warrants for intrusive activity.
Recognising concerns over public trust in politicians, the ISC nevertheless concluded that
‘the most intrusive activities must always be authorised by a Secretary of State’.7 The
basis for this decision was that ministers are able to make a judgement of the diplomatic
and political context and the wider public interest in authorising intrusive powers, in
addition to assessing legal compliance. The Committee also considered it crucial that,
unlike judges, ministers are politically accountable for their decisions.
2.
3.
4.
5.
6.
7.
Intelligence and Security Committee of Parliament (ISC), ‘Statement on GCHQ’s Alleged
Interception of Communications under the US PRISM Programme’, 2013.
ISC, Privacy and Security: A Modern and Transparent Legal Framework (London: The
Stationery Office, 2015), p. 11.
ISC, ‘Statement on GCHQ’s Alleged Interception of Communications’.
ISC, ‘Privacy and Security Inquiry – Call for Evidence’, 11 December 2013.
ISC, Privacy and Security, p. 2.
Ibid., p. 119.