74
4.5
A Democratic Licence to Operate
The Act also laid the groundwork for what would become the oversight commissioners,
appointing a ‘person who holds or has held high judicial office’ to oversee the service, as
well as the Investigatory Powers Tribunal (IPT), establishing a tribunal ‘for the purpose
of investigating complaints about the Service’.
The Intelligence Services Act 1994
4.6
The intelligence agencies were not avowed by the UK government until the passing of
the Intelligence Services Act (ISA) 1994, which for the first time acknowledged in law the
existence of both SIS and GCHQ. The Act outlined the role of SIS to ‘obtain and provide
information relating to the actions or intentions of persons outside the British Islands;
and to perform other tasks relating to the actions or intentions of such persons’; the
primary role of GCHQ, meanwhile, was to ‘monitor or interfere with electromagnetic,
acoustic and other emissions … to obtain and provide information derived from or
related to such emissions or equipment and from encrypted material’. These functions
were to be carried out in relation to issues of national security, economic well-being and
to prevent and detect serious crime.
4.7
As with the SSA 1989, the ISA 1994 made provision for the issue of warrants and
authorisations enabling certain actions to be taken by the intelligence agencies in relation
to interference with property (broadly defined) and wireless telegraphy, noting that ‘no
entry on or interference with property or with wireless telegraphy shall be unlawful if it
is authorised by a warrant issued by the Secretary of State’. Under Section 5 of ISA 1994,
SIS and GCHQ may therefore obtain authorisation to carry out equipment interference,
including computer-network exploitation (CNE), in pursuit of their statutory functions
and in specific circumstances. CNE was avowed for the first time by the government in
February 2015 when it published the draft Equipment Interference Code of Practice,
which made clear that equipment may include ‘computers, servers, routers, laptops,
mobile phones and other devices’.3
4.8
The ISA 1994 introduced the role of the Intelligence Services Commissioner (to review the
workings of the two intelligence agencies in addition to the security service) and the IPT
(to deal with complaints). It also established a system of Parliamentary accountability in
the form of the Intelligence and Security Committee, in order to examine the expenditure,
administration and policy of the three SIAs.
The Human Rights Act 1998
4.9
The Human Rights Act (HRA) 1998 was introduced in order to incorporate into UK law
the fundamental rights and freedoms contained in the ECHR. Its effect is that all bodies
carrying out public functions – from local authorities to the police and intelligence
agencies (as well as the bodies that oversee them) – must not interfere with the
3.
David Anderson, A Question of Trust: Report of the Investigatory Powers Review [Anderson
Report] (London: The Stationery Office, 2015), p. 101.