One of the leading experts in UK surveillance law was “unfairly” refused security clearance for a senior role overseeing the intelligence services after MI5 raised “serious reservations” over his former associations with privacy campaigning groups.
Eric Kind, a visiting lecturer at Queen Mary University London specialising in criminal justice and surveillance technologies, had been due to become the first head of investigations at surveillance watchdog, the Investigatory Powers Commissioner’s Office (ICPO).
Kind had high-level support from the ICPO and current and former members of the police and intelligence services, including David Anderson, the former independent reviewer of terrorism legislation, for the job.
But the Home Office reversed a decision to give him security clearance after MI5 raised concerns that his work with non-governmental organisations (NGOs) to reform surveillance, meant he was “insufficiently deferential to the sanctity of confidentiality”, it emerged today.
Judges found on 26 March 2021 that the Home Office had failed to reconsider Kind’s application with an open mind, and that the decision not to give security clearance was “effectively prejudged”.
“The elephant in the room…is that in this case IPCO’s preferred candidate for a senior position was being refused DV security clearance largely because one of the three agencies which IPCO oversees”.
The “whole tenor is of a decision-making process which was designed to appear to tick the boxes”, they said in a 20-page ruling.
Speaking after the decision, Kind – previously known as Eric King – said he hoped an independent appeals process for those joining oversight bodies would now be put in place.
“Robust independent oversight is essential for democracy and trust in the security and intelligence services. It requires a diversity of perspectives and expertise. That can only be achieved through a fair and impartial vetting process, which the court has found was not provided to me,” he said.
Kind was “insufficiently deferential”
Kind, former director of Don’t Spy On Us – which campaigned for reforms to the UK’s controversial Investigatory Powers Act 2016, known as the “Snoopers’ Charter” – and former deputy director of Privacy International, had been due to become the watchdog’s first head of investigations in 2018.
The Home Office reversed its decision to award Kind developed vetting (DV) security clearance after MI5 wrote to the Ministry of Defence’s vetting unit raising “strong reservations” about his appointment on national security grounds, according to the judgment.
MI5 said it had concerns Kind was “insufficiently deferential to the sanctity of confidentiality and the authority and knowledge of those charged with protecting confidence, and the wider public interest”.
“He had associated, and may still associate, with individuals whose outlook and approach increases the dangers posed by inadvertent disclosure,” said MI5.
Kind’s vetting officer initially recommended that he was given DV security for the job. He wrote that Kind’s background in “civil liberties culture”, his many friends who pursue civil liberties causes against the government, and his extensive knowledge of surveillance law were “precisely the reason he has been employed”.
Kind had given “credible reasons” at the interview why he would not disclose details of his work to others.
Evidence disclosed in the judgment shows that government vetting officers backtracked following MI5’s intervention.
A senior vetting officer told Kind in a phone call that he did not have any concerns about his honesty during the vetting process, but his refusal of security clearance had “a lot to do with previous work and associations”.
Officials decided to take further representation from Kind knowing that they had already decided that they would not reinstate his security clearance, the judges found.
Government officials wrote: “Our decision will not be received well by ICPO as the subject was targeted for the job because of their background.” Their assessment will require “careful handling” as “it is based on information provided by Thames House [MI5] who IPCO is there to oversee”.
Past links Julian Assange and WikiLeaks
Kind, who was vetted for the job by UK Security Vetting, then an agency for the ministry of defence, disclosed in his vetting form that he had previously spent time with members of WikiLeaks, including founder Julian Assange.
He had worked with WikiLeaks on the release of SpyFiles, which disclosed companies unlawfully selling surveillance technologies to repressive countries, and had visited him at the Ecuadorian Embassy.
“I am not sure whether WikiLeaks’ actions are intended to overthrow or undermine Parliamentary democracy by political, industrial or violent means. But I can understand why someone might take that view of them. Certainly, at the time that was not the purpose of spending time with them,” Kind wrote.
“I cut ties with Julian and WikiLeaks due to their extreme views and failure to confront the criminal charges before Julian. I have haven’t [sic] spoken to him or them for a number of years,” he said.
Kind also told vetting officers that the NSA whistleblower, Edward Snowden, had initially “radicalised” him and made him “more aggressive”.
But he said that he now appreciated the picture was more complicated. The intelligence agencies made “a lot of effort to do things right”.
Vetting officers did not ‘maintain an open mind’
A deputy head of vetting at the Home Office said in a witness statement that MI5’s letter had included a suggestion that there should be a further interview with Kind to explore further issues.
These included concerns that Kind “had not accepted that his past involvement in disclosures of sensitive and confidential information was wrong and had damaged national security”.
It was not "clear whether he had changed his attitude since 2013,” and his “principles and beliefs might not always be subordinated to his required loyalty to IPCO”.
Lord Justice Bean and Justice Jay found that they could not accept that the officer had maintained an open mind throughout the vetting process.
There was no national security reason why the senior vetting officer should not have spelled out his concerns to Kind so that he could provide a more focused written response.
“He was aware that the security service was setting out serious reservations rather than a metaphorical blackball,” the judges said.
“It was not beyond the bounds of possibility that the claimant, who is an intelligent and articulate individual, could have advanced a compelling case,” they said.
Call for right to challenge vetting decisions
Katy Watts, a lawyer at NGO Liberty which backed Kind his case against the Home Office, said the case showed there needed to be a new right to appeal vetting decisions for people applying for posts in regulatory bodies.
“After today’s ruling, there needs to be a right to challenge these decisions to prevent the security services from appointing their own supervisors,” she said. “We should be able to challenge government when it gets something wrong, and we should be confident those who spy on us are held to account by independent experts.”
David Anderson QC wrote on Twitter: “As one of his referees, I am pleased to see that [Eric King], ably represented pro bono by Ben Jaffey QC, has won his case against the refusal of security clearance for the job he was offered by @IPCOffice. The government will not appeal.”
How MI5 manoeuvred against a privacy campaigner becoming surveillance regulator
June 2015: David Anderson publishes A question of trust, which recommended a single body to oversee surveillance activities conducted by the intelligence services. He recommends employing staff from a wide range of backgrounds including academia and non-governmental organisations.
March 2017: Lord Justice Fulford is appointed as the first investigatory powers commissioner. He meets with Eric Kind, former deputy director at Privacy International, and invites him to apply for a senior role at the Investigatory Powers Commissioner’s Office (ICPO).
30 November 2017: The ICPO offers Eric Kind the new role of head of investigations, overseeing the investigatory work of ICPO into the security and intelligence services. The offer was subject to him passing “developed vetting (DV)” security clearance.
12 February 2018: Kind completes a vetting form disclosing information about his use of the internet, social media and personal associations. Kind disclosed that he has spent time with WikiLeaks and Julian Assange, but had subsequently severed connections.
19 June 2018: Kind attends a vetting interview at the Foreign and Commonwealth Office. He disclosed that the Snowden revelations had radicialised him and made him more aggressive, but that he now thought the intelligence agencies involved had made “a lot of effort to do things right”.
21 June 2019: Kind’s vetting officer recommends he is given DV security clearance. Kind’s background as a person who is steeped in civil liberties culture, and who has many friends who pursue civil liberties causes against the government, and his extensive knowledge of surveillance law “is precisely the reason he has been employed”. Kind had given “credible reasons” at his interview why he would not disclose details of his work to others.
18 September 2018: The Security Service, MI5, writes to the UK Security Vetting agency expressing “strong reservations” on national security grounds to Kind being given DV security clearance.
24 September 2018: Kind is told he has been refused DV security clearance on the grounds of national security.
28 September 2018: An official tells Kind in a phonecall that his refusal of security clearance had “a lot to do with previous work and associations”.
2 October 2018: Senior vetting officers recommend that they take further representations from Kind but with a view to ultimately refusing him security clearance.
5 October 2018: Kind confirms that he would like to submit representations to assist the reconsideration of his vetting status.
6 October 2018: Vetting officers propose to agree their questions with MI5 before making a decision. One officer wrote: “I anticipate that they will not change their overall assessment” but that seeking their expert opinion shows that they were seeking a holistic and rounded view “before taking a decision ourselves”.
10 October 2018: Kind gives a seven-page statement, providing specific examples where he had access to UK national security secrets but had not breached confidentiality.
23-31 October 2018: Vetting officers hold interviews with Kind’s referees.
28 November 2018: The secretary of state for the Home Office, Sajid Javid, refuses Kind security clearance and he is unable to take up his post.
28 February 2019: Kind files for a judicial review.
Read more about the case
- The Home Office refuses academic and privacy campaigner Eric King security clearance for a senior role at the intelligence services watchdog, despite high-level backing from officials.