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Over the course of four days at the end of July, three barristers from Blackstone Chambers and a small army of solicitors represented Privacy International in a case against the intelligence services at the Investigatory Powers Tribunal.
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Privacy International claims the intelligence agencies – MI5, GCHQ, the Secret Intelligence Service, as well as the home secretary and the foreign secretary – have been using loopholes to indulge in limitless snooping on the citizens of the UK, and possibly everywhere else.
The Investigatory Powers Tribunal (IPT) is the most secretive court in the land. It pronounces upon matters of national security and the treatment of people under anti-terrorism legislation. It is the only avenue available for anyone wishing to make a complaint about the behaviour of the intelligence services and government surveillance.
The surreal world of the UK’s most secretive court
Yet it manages to combine the deadly serious with the surreal. The final day’s session began with a short judgement delivered by the vice-president of the tribunal, John Mitting, in an unrelated case.
The judgement, delivered to an almost empty court, revealed a degree of ineptitude by a pair of Islamist schemers – EF and EB – that might be comical, were it not so scary.
They wanted to buy a live firearm, but they agreed that, as it only cost “a grand”, it probably wasn’t going to be any good. In fact, it might not fire at all. “Better than nothing,” they said, before deciding that the safest place to hide it would be in one of their own homes.
A probe inserted in EF’s car recorded the following exchange:
EF: “Do you understand? Making contact? So basically update me at every stage and just say ‘yeah the sausage is nice’, erm, ‘there’s enough sauce in it’.”
EB: “What’s the sausage?”
EF: “Bullets. If there’s not enough sauce in it, you will have to make that decision if we’re gonna take it or not. [Unclear] If it’s less than five [?] it’s not worth it bruv. Understand? I mean that, big time.”
The rather odd tone of the day was set, however, and segued neatly into Yes Minister. Perhaps it is no surprise that much of the press coverage of this hearing has been taken from the documents that Privacy International has shared on its website.
James Eadie QC, representing the government and the intelligence agencies, is clearly an outstanding lawyer – and probably a very nice man – but it was certainly not in his interest to make his remarks quotable by reporters or, indeed, intelligible at all. At least, not to anyone without full access to the legal bundles and, ideally, a degree in law, if not jurisprudence.
In contrast, the ebullient Thomas de la Mare QC, representing Privacy International, and great-grandson of the poet Walter de la Mare, had made a grand impression on the assembly. So comprehensive was his schoolboy, as well as legal, Latin that, on the opening of the third day, the president of the IPT, Michael Burton, strode to his seat and addressed the court with a cheery “Salvete”.
How the intelligence agencies avoided oversight
Privacy International’s core argument is that the intelligence agencies have neatly avoided the safeguards and oversight mechanisms required by the Regulation of Investigatory Powers Act (Ripa) 2000.
They have done this through the long-undisclosed and, some would say, ungentlemanly reliance on section 94 of the Telecommunications Act (appropriately, de la Mare observed) of 1984. The act has enabled them to gather, store and access “bulk personal datasets” containing private data about citizens, including financial information.
Section 94 allows gives the intelligence agencies snooping rights authorised by a secretary of state, just so long as they act in the interests of national security. Once they have the information, said Eadie, they can use it for many other purposes, but they have to have got it fair and square. No cheating.
It would, indeed, be possible for MI5 to get a surveillance access sign-off from foreign secretary Boris Johnson, for instance, in the interest of national security, but not in the interest of the nation’s economic wellbeing. That might sound like a joke, but, amazingly, it’s not.
Eadie’s high-altitude cruise through the government’s arguments was a combination of bundle-hopping and a mode of speech that was reminiscent of Humphrey Appleby at his best. One of Privacy International’s people – a lawyer – tweeted to that effect, which was both reassuring and disturbing.
Focusing on the notion of “bulk” collection completely misses the whole point, said Mitting, with some feeling. Eadie, in full agreement, pointed out that the sheer volume of the data collected effectively anonymises anything interesting that might be located within it, by making it difficult to find.
Exactly so, suggested Richard McLaughlin, another of the judges. “Every time this is interrogated,” he said, “there is more and more information about fewer and fewer subjects … you have more and more about less and less.”
What about the rights of ordinary people?
A plaintive note came from Susan O’Brien QC, the only female judge on the tribunal panel. O’Brien recently resigned from the post of chair of the Scottish Child Abuse inquiry, alleging governmental interference.
Listening to de la Mare outline the proportionality test inherent in Ripa, she suddenly interjected: “There’s never a thought for the rights of the citizen in any of this, is there?”
Burton voiced a long-standing worry of campaigners. What about the Stasi in Germany, he asked, and the abuse of arbitrary powers? Citizens’ personal data acquired now might be abused by a sinister regime in the future. Bill Binney, the NSA whistleblower, has been particularly vociferous on this issue, in the US.
“Foreseeability is designed to ensure sufficient visibility of those things that control the exercise of power by the executive,” said Eadie. It is built into much of the legislation, including the Telecommunications Act of 1984.
But Burton said there had been no external oversight at all of the agencies’ work with bulk personal datasets until 2010, and even that oversight had not been audited.
Was Eadie suggesting that the agencies had a better record on the foreseeability than on the use of safeguards, because, from then on, the public at least thought that adequate protection was in place?
“No,” said Eadie, “that would make an impertinent submission.”
After this surreal circus, the court pronounced that judgement should be delivered before 1 December 2016, by which time the results of an another court hearing on surveillance legislation, on 16 December, would make the tribunal findings purely academic.
“They’re just leaving it until it’s irrelevant,” said one of the lawyers after the case.
Read more about the Investigatory Powers Bill
- The idea of a snoopers’ charter is ridiculous in the light of current and planned checks and balances around access to communications data, says William Hague.
- The government should delay the Investigatory Powers Bill to allow time for proper scrutiny following the political chaos that has engulfed Britain after the Brexit vote.
- What is at stake with the Investigatory Powers Bill, which is the first attempt in 500 years to bring the surveillance activities of the state under rule of law instead of “the prerogative of the crown”.
- Millions of UK citizens remain in the dark about the reach and scope of the Investigatory Powers Bill, or the so-called Snoopers’ Charter, says Broadband Genie.