Barristers tell Parliament that some GCHQ mass surveillance is illegal

Two barristers have advised a Parliamentary committee that some mass surveillance allegedly undertaken by the UK’s security services is probably illegal. Jemima Stratford QC and Tim Johnston’s advice (PDF) was commissioned by the chair of the All Party Parliamentary Group on Drones. 

You may ask why an Parliamentary group on drones is getting involved in the GCHQ surveillance debate, itself kickstarted by the revelations by Edward Snowden (pictured). The slightly tangential answer is that the committee is concerned about the legality of data being passed to the United States for use in drone strikes.

That is an important issue. But to my mind this advice raises another question, namely why it took a Parliamentary group on drones to commission a public legal advice on mass surveillance, when there is another a Parliamentary committee which should be considering the question in detail: the Intelligence and Security Committee. That committee is currently asking for submissions on data privacy , but things seem to be moving pretty slowly. I have written about serious criticisms of the ISC recently in the context of rendition and torture allegations against the Security Services.

It is to be hoped that the ISC  independent enough to do a proper job, given the importance of the Snowden allegations. If it cannot, then it may be for other committees, including the Joint Committee on Human Rights, to pick up the slack. The JCHR does not appear at present to be looking into the issue.

Getting back to drones, the question of what kind of data the UK’s security services may be passing on to the USA to use in drone strikes is currently before the courts, with the Court of Appeal recently refusing permission for Mr Noor Khan to appeal against a determination of the High Court from early 2013 (our post on the High Court case here). Lord Dyson said “It is only in certain established circumstances that our courts will exceptionally sit in judgment of such acts. There are no such exceptional circumstances here”. 

Meanwhile, the wider issues identified by Snowden’s revelations are being considered urgently by the European Court of Human Rights as a priority case (the case is called Big Brother Watch v United Kingdom).

Stratford and Johnston’s legal opinion is summarised in the Parliamentary Group’s blog and I will reproduce that summary below:

(i) GCHQ is not entitled to intercept ‘internal’ contents data between two British residents under the existing legislative framework of Regulation of Investigatory Powers Act (‘RIPA’);

(ii) GCHQ is entitled to intercept metadata and ‘external’ contents data under RIPA, although this is considered a disproportionate interference with Article 8 (privacy) rights of British citizens;

(iii) the executive has retained a largely unrestrained discretion to permit transfer of UK data to the NSA under RIPA;

(iv) RIPA does not place any restriction on the uses to which intercept material might be put, other than its admissibility in court;

(v) a new UK-US bilateral arrangement governing the transfer, storage and use of UK data is the minimum required to protect British citizens and ensure British data and facilities are not used to support activities which would be unlawful in the UK, including drone strikes against non combatants;

(vi) the government is obliged to investigate and prevent UK agents, visiting forces and visiting agents becoming ‘accidental’ accessories to murder under domestic law, where those responsible know that relevant data or facilities may be used to support US drone strikes, properly regarded as unlawful in the UK;

(vii) RIPA has been overtaken by developments in technology since 2000. The key distinction between ‘contents’ and ‘communications’ data is no longer meaningful, given modern internet usage.

Keen readers may also note there is may be a political dimension to the timing of this advice. As the Drones Group blog points out, the “Advice also lends real weight to amendments proposed to the Defence Reform Bill, Visiting Forces Act and RIPA tabled by four peers from the All Parliamentary Group on Drones which will be moved next week on 3rd February in the Grand Chamber”. 

Interesting times…

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Related posts:

• Read the full advice here
• New Year, new tort of misuse of private information
• David Miranda – Remember his name
• When you wish upon a rendition and torture inquiry