GCHQ Surveillance Likely Illegal, Says Leading UK Barrister

In yesterday morning’s News Roundup, I noted that a leading lawyer in the UK has submitted legal advice to a parliamentary group concluding that mass surveillance programs conducted by the British intelligence agency, the GCHQ, are likely illegal (see The Guardian’s report here). The All Party Parliamentary (APPG) on Drones, an informal parliamentary group with members drawn from all parties, asked Jemima Stratford QC to provide expert evidence on the legality of the alleged GCHQ surveillance. [As an aside: Queen’s Counsel (or QCs) are senior, eminent barristers at the very top of their profession, generally regarded as exceptional experts in their respective fields. Stratford’s expertise includes public law and human rights.] The request, which may seem odd coming from a group focused on drones, was triggered by reports that the GCHQ’s interception of data under its surveillance programs was possibly being used by the CIA in conducting drone operations.

Although this may appear to be only a small step, it is an important development for moving the political dial. The fact of the parliamentary group’s request and the conclusions reached in the Advice are likely to help garner additional support for reform–including greater oversight of the UK’s intelligence agencies and potential disruption of ties between the UK and US intelligence communities. In particular, as evidence commissioned by an APPG, it is likely to help achieve greater cross-party support on the issue. The legal advice comes while Parliament’s Intelligence and Security Committee (ISC) is still investigating the fallout from the Snowden leaks. The ISC, however, is moving slowly. It was only in mid-December that the ISC decided to broaden its original inquiry to include “the appropriate balance between our individual right to privacy and our collective right to security.” Additionally, the ISC has been criticized for a number of shortcomings in the context of surveillance oversight and in relation to reviewing UK complicity in the CIA’s rendition and torture programs. While the ISC inquiry continues at its slow pace, Stratford’s conclusions, as an expert in the field, usefully highlights the legal problems with the status quo, and thus helps make a case for urgent reform in those areas.   

Stratford’s summary of her conclusions is reproduced below:

a. Under the Regulation of Investigatory Powers Act 2000 (‘RIPA’), GCHQ is not entitled to intercept mass ‘internal’ contents data: the contents of emails or phone calls between two individuals located in the British Islands. GCHQ is entitled to intercept bulk ‘external’ contents data: the contents of communications between the British Islands and elsewhere. GCHQ is also entitled to intercept bulk communications data (sometimes termed ‘metadata’). The interception of that bulk data, although lawful for the purposes of RIPA, is a disproportionate interference with the Article 8 rights of UK citizens [under the European Convention on Human Rights].

b. GCHQ is entitled to submit the mass data that they collect to pattern of life analysis, under the statutory framework. We consider that the current framework for the retention, use and destruction of communications data is inadequate and likely to be unlawful. The RIPA framework concerning external contents data is also probably unlawful;

c. GCHQ is entitled to transfer bulk data to the NSA, under RIPA, where the Secretary of State is satisfied that the mechanisms for storing and destroying that data in the receiver country are suitable. A transfer of intercept data is a fresh interference with the individual’s Article 8 rights. We consider that the statutory framework provides insufficient protections to the individuals concerned. The government could at least ameliorate that situation by agreeing and publishing a Memorandum of Understanding or other bilateral agreement on data transfer specifying how the data should be stored, when they should be destroyed, and the purposes for which the data may be used under UK law;

d. If the UK government knows that it is transferring data that may be used for drone strikes against non-combatants (for example in Yemen or Pakistan), that transfer is probably unlawful. An individual involved in passing that information is likely to be an accessory to murder. It is well arguable, on a variety of different bases, that the government is obliged to take reasonable steps to investigate that possibility. However, it may be that the current legislative framework imposes no obligation on the UK government to investigate or prevent its agents from becoming accessories to murder in this manner. If that is the case, we consider that outcome to be contrary to the principles of public policy and good governance;

e. The UK government is entitled to press charges against US servicemen operating from NATO bases on UK soil. If data that have been unlawfully obtained or used (for the purposes of British law) are transferred via a UK NATO base, the UK government may prosecute any US serviceman involved in that transfer. It appears, in practical terms, that the UK government may not always know what takes place on RAF bases controlled by NATO forces. As a result, that power to prosecute may be theoretical.

 

About the Author(s)

Ruchi Parekh

Former Associate Editor at Just Security Follow her on Twitter (@RParekh88).