MR JUSTICE BURTON
Approved Judgment
safeguards contained in the Regulation of Investigatory
Powers Act 2000.
Next Steps
6. Although we have concluded that GCHQ has not
circumvented or attempted to circumvent UK law, it is proper
to consider further whether the current statutory framework
governing access to private communications remains adequate.
7. In some areas the legislation is expressed in general terms
and more detailed policies and procedures have, rightly, been
put in place around this work by GCHQ in order to ensure
compliance with their statutory obligations under the Human
Rights Act 1998. We are therefore examining the complex
interaction between the Intelligence Services Act, the Human
Rights Act and the Regulation of Investigatory Powers Act, and
the policies and procedures that underpin them, further. We
note that the Interception of Communications Commissioner is
also considering this issue.”
24.
Secondly, the Respondents rely upon the important additional oversight afforded by
the Interception of Communications Commissioner (“the Commissioner”), presently
Sir Anthony May, formerly a Lord Justice of Appeal and President of the Queen’s
Bench Division, (although recently temporarily replaced during his indisposition by
his predecessor Sir Paul Kennedy, also a former Lord Justice of Appeal and
President of the Queen’s Bench Division), appointed (for relevant purposes) under
s.57(1) of RIPA, independent from Government and the Intelligence Services. He
too has a staff to assist him with his functions, which include a constant review of
the Intelligence Services, and he is under a duty by s.58(4) to make an annual report
to the Prime Minister regarding the carrying out of his functions, which must be laid
before Parliament. In his latest report (the 2013 Annual Report laid before
Parliament on 8 April 2014), (“the Commissioner’s Report”) he included a section
headed:
“8. Do British intelligence agencies receive from US agencies
intercept material about British citizens which could not
lawfully be acquired by intercept in the UK and vice versa and
thereby circumvent domestic oversight regimes?”
He set out his views (at paragraph 6.8.1-5) by reference to the assumption, which
has also been made for the purposes of the case before us (paragraph 15(i) above)
that the intercept material in question has been lawfully acquired by the United
States Agencies. In the light of his own investigations, as there referred to, he
answered his question in the negative. He concluded as follows:
“6.8.6 . . . information lawfully obtained by interception abroad
is not necessarily available by interception to an interception
agency here. In many cases it will not be available. If it is to be