Wednesday, 16 December 2020

License to kill revealed as spymaster Le Carre dies naturally

On 15 December, the Annual Report of the Investigatory Powers Commissioner 2019 was released. Here are some extraordinary extracts. 8. MI5 CHIS Participation in Criminality (PIC) 8.10 MI5 has an internal policy governing PIC by CHIS which relates to both recruited agents and MI5 officers operating under cover in both the real world and online. The Investigatory Powers Commissioner (IPC) is required by the Prime Minister to oversee MI5 compliance with this policy by virtue of a direction that was first made public in 2018. An earlier iteration of this requirement has become known as “The Third Direction” and was the subject of litigation in the Investigatory Powers Tribunal (IPT) in 2019. The IPT gave its judgment in late December 2019 and found MI5’s policy to be lawful, although permission to appeal this decision has been granted. Directed Surveillance 8.15 We raised a concern with MI5 in 2018 in relation to their review processes for directed surveillance authorisations (DSAs). We found that MI5 did not have an adequate review process in place for this commonly used power, which meant that authorising officers were not properly setting out their considerations of necessity, proportionality and collateral intrusion for continued operations during the period for which a DSA was authorised. We advised MI5 that their informal, often verbal, review processes fell short of the requirements of the Code of Practice (CoP). We also highlighted a lack of specificity on documentation for authorisations that covered a range of powers: MI5’s renewal casework commonly did not justify the continued use of the full range of techniques and cancellation records often lacked detail regarding the activity undertaken and value to the investigation and operation. 8.16 We have challenged MI5’s policy of noting authorising officer comments for surveillance only in exceptional cases. In the vast majority of cases, this means that there is no record of any consideration by the authorising officer. We recommended that it would be more appropriate for a routine notation of considerations to be made in each case. We believe that this would give authorising officers greater ownership of the process and would increase our level of confidence in this process. 8.39 We have observed the positive development of the BOP and note its impact in managing internal compliance. We continue to seek greater clarity regarding the process MI5 uses to carry out initial examinations of new data sets to better understand decisions to classify a dataset as BPD or, for example, as targeted data. We were concerned by one unresolved action on the BOP minutes around resolving discrepancies between allocations of BPD between MI5 and SIS. It is possible, because of the different uses of the data and the different cuts of data being held, that both agencies could hold the same dataset, or versions of it, and that it could lawfully be categorised as bulk by one and targeted data by the other. There is a risk that, if one of the agencies has incorrectly categorised the data holding as targeted then that data would be held without appropriate warrant and might not be subject to appropriate safeguards. We suggested that this question should be resolved as a priority. Confidential material 8.26 We selected and reviewed a number of warrants under which confidential material had been obtained. We were satisfied that MI5 handled any such confidential material carefully and in accordance with the legislation. During 2019, MI5 changed their legal professional privilege (LPP) policy to align it with the requirements of the IPA and to mirror the arrangements of the Secret Intelligence Service (SIS) and the Government Communications Headquarters (GCHQ), which we believe is an appropriate approach. MI5 had previously applied the test of an “exceptional and compelling” case to justify the retention of any LPP material obtained under a warrant. This is a more stringent test than that set out in the IPA, which requires a balance of public interest test to be applied. MI5’s policy was developed before the IPA came into force, hence the inclusion of a different and higher test than the one the IPA actually requires. MI5 has now amended the policy to refer to the balance of public interest test but we do not expect this to make a significant difference to how they are retaining LPP in practice. 9. MI6 9.2 In October 2019, the IPC wrote to the Prime Minister about oversight of SIS’s agent running activities overseas. This activity has a statutory basis under section 1 of the Intelligence Services Act 1994 (ISA). SIS agent running overseas is subject to oversight by the Investigatory Powers Commissioner’s Office (IPCO) only in so far as it involves approvals under section 7 of the ISA. All other overseas agent running is not, and has never been, subject to oversight by IPCO or its predecessors. Further, the obligations under Part 2 of Regulation of Investigatory Powers Act 2000 (RIPA) do not apply to overseas agent running. 9.3 In his letter to the Prime Minister, the IPC acknowledged that the Government may have taken a policy decision that the running of agents overseas requires less detailed and intrusive oversight than those run in the UK. However, the IPC recommended that the Government ought carefully to consider whether this is still the right policy position. We expect to receive a response to the IPC’s letter in 2020 and will reflect this in our 2020 annual report. 9.37 During 2019, SIS were required by the FCO to restrict the length of submission documents. Although there is the option to provide additional and contextual information in an58 Investigatory annex, we have raised the concern that this may lead to a distortion of facts and could prevent SIS from giving a full and balanced case for appropriate ministerial oversight. We have identified one instance where we believe the paperwork submitted to the FCO was misleading in part because of the brevity imposed by the FCO, but in this case the risks were overstated and so there is no concern that any key facts were omitted or that the Secretary of State would not have authorised the case in its full reality. 9.39 We reviewed a section 7 submission relating to a high-risk SIS agent case overseas. SIS identified a risk that the agent may be involved in serious criminality overseas. SIS did not encourage, condone or approve any such criminality on the part of their agent. In their submission, SIS set out that they had secured the agent’s cooperation on terms of full transparency about the activities in which the agent was involved. It included some clear ‘red lines’, setting out conduct that was not authorised and would result in the termination of SIS’s relationship with the agent

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