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Summary

Foreign intelligence gathering in the United Kingdom is regulated by the Intelligence Services Act, the Human Rights Act, and the Regulation of Investigatory Powers Act. These Acts provide for a system of warrants to be obtained to conduct surveillance and intercept communications, provided the surveillance is necessary to complete the statutory functions of the relevant agency.  Issuing warrants in the UK remains an executive, rather than judicial, act.  UK intelligence agencies are subject to parliamentary oversight.

I.  Introduction

The UK has three intelligence and security agencies, which are commonly referred to collectively as the Agencies or the Intelligence Services.  These Agencies consist of the Secret Intelligence Service (SIS), also known as MI6 (“MI” standing for Military Intelligence), the UK’s overseas intelligence agency; the Government Communications Headquarters (GCHQ), the UK’s signals intelligence gathering agency; and the Security Service, also known as MI5, the UK’s domestic intelligence agency.  The Security Service has statutory responsibility to protect the national security of the UK from international threats, including those from terrorism.  It is supported in this role by the SIS and GCHQ, who provide intelligence gathered from overseas.[1]

While these agencies help to collect, gather, and analyze intelligence information, they are not the only parts of the intelligence machinery in the UK.  Additional intelligence is compiled by the Cabinet Office, Defence Intelligence (part of the Ministry of Defence), and the Joint Terrorism Analysis Centre.[2] The National Crime Agency addresses organized crime and economic crime and polices the UK’s borders.[3] All of these agencies must act within the bounds of the law and their operations “must relate to national security, the prevention or detection of serious crime, or the UK’s economic well-being.”[4]

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II.  Legislative Framework

The work of the SIS and GCHQ is undertaken in accordance with the legislative framework of the Human Rights Act,[5] the Regulation of Investigatory Powers Act (RIPA),[6] and the Intelligence Services Act 1994 (the ISA),[7] which placed the SIS and GCHQ on a statutory footing and under the responsibility of the Foreign Secretary. 

The ISA defines the function of the SIS as follows:

    (a)  to obtain and provide information relating to the actions or intentions of persons outside the British Islands; and
    (b)  to perform other tasks relating to the actions or intentions of such persons.[8]

The GCHQ’s role is defined as follows:

    (a)    to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material; and
    (b)   to provide advice and assistance about—(i) languages, including terminology used for technical matters, and (ii) cryptography and other matters relating to the protection of information and other material, to the armed forces of the Crown, to Her Majesty’s Government in the United Kingdom or to a Northern Ireland Department or to any other organisation which is determined for the purposes of this section in such manner as may be specified by the Prime Minister.[9]

These functions may only be exercised in the interests of national security with regard to the defense and foreign policies of the UK, in the interests of the economic well-being of the UK, and in support of the prevention or detection of serious crime.[10]

The ISA provides for a system of warrants that authorize entry on and interference with property or with wireless telegraphy upon application from any of the three Intelligence Services.[11] Due to the important role the Intelligence Services play in safeguarding the UK’s national security, the ISA’s requirements for an authorization are much broader than those for the Acts that cover domestic surveillance. 

Each warrant must be approved by the Secretary of State.[12] The Secretary of State must believe that the conduct is proportionate and necessary to assist the Security Service, SIS, or GCHQ in conducting any of their functions under their respective Acts and that the information sought cannot be obtained by other means.[13] Warrants provided to the SIS and GCHQ for the purposes of preventing or detecting crime may not relate to the British Islands.  The Intelligence Services Act was amended by the Prevention of Terrorism Act 2005, which provides the Intelligence Services authority to obtain a warrant to conduct activities in the UK as well as overseas.  The Security Service also can obtain a warrant to interfere with property or wireless telegraphy if it is acting on behalf of the SIS or GCHQ and the action proposed is to be “undertaken otherwise than in support of the prevention of detection of serious crime.”[14]

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III.  Interception of Communications

The use of covert surveillance, use of covert human intelligence sources,[15] and interception of both communications and communications data in England and Wales is allowed, provided the relevant laws regulating this procedure are adhered to.[16]

There is no single legislative regime that applies to the interception of communications; instead the laws and procedures vary according to the body that is seeking the interception.  The main piece of legislation in this area is the Regulation of Investigatory Powers Act 2000 (RIPA).[17] RIPA serves to augment the ISA, providing for distinct authorization processes for warrants that apply to the interception of communications[18]  

Before the Secretary of State can authorize a warrant to intercept communications, he must believe that the conduct requested by the warrant cannot be obtained by other means, is proportionate and necessary in what it is seeking to achieve, and has as its purpose one of the following: protecting the interests of national security, preventing or detecting serious crime,[20] safeguarding the economic well-being of the UK from the acts or intentions of individuals outside the British Isles, or giving effect to an international mutual assistance agreement whose purpose is equivalent to that of preventing or detecting serious crime.[21] Before signing the warrant, the Secretary of State must also consider whether the warrant is operationally required and if its issuance is proportionate and necessary.[22]

RIPA provides for the lawful acquisition and disclosure of communications data in specified circumstances.  Communications data does not include the content of a communication but the information that relates to the use of a communications service; thus the requirements to obtain an authorization are less stringent and the list of individuals who can request an authorization is less restrictive.   An authorization to obtain communications data can only be obtained if necessary in the interests of national security or the economic well being of the UK; for the purposes of preventing or detecting crime or preventing disorder; in the interests of public safety; for assessing or collecting a tax, duty, levy or other imposition; or for protecting public health or, in an emergency, preventing death, injury, or damage to an individual’s physical or mental health, or mitigating such damage.[23]

The range of officials who can authorize the interception of communications data is much broader than in other areas of surveillance, and such authorization can be granted by a senior official in the relevant public authority.[24]

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IV.  Oversight

The Intelligence Agencies are also subject to parliamentary oversight in the form of the Intelligence and Security Committee, which operates within the “ring of secrecy” to examine the expenditure, administration, and policy of all the Intelligence Agencies.[25] RIPA further requires that the Prime Minister appoint an Intelligence Services Commissioner to review how the Secretary of State issues warrants for both surveillance and interference with property by the Intelligence Services, as well as how the Secretary of State exercises and performs the powers and duties granted by RIPA in relation to the Intelligence Services, although the power to review warrants by this Commissioner is retrospective.[26]

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Prepared by Clare Feikert-Ahalt
Senior Foreign Law Specialist
December 2014
 


[1] Intelligence and Security Committee, Report into the London Terrorist Attacks on 7 July 2005, 2006, Cm. 6785.

[3] About the NCA, National Crime Agency, http://www.nationalcrimeagency.gov.uk/ (last visited Dec. 3, 2014).

[4] National Intelligence Machinery, supra note 2, at 2.

[6] Regulation of Investigatory Powers Act 2000, c. 23, http://www.legislation.gov.uk/ukpga/ 2000/23/contents

[7] Intelligence Services Act 1994, c. 13, http://www.legislation.gov.uk/ukpga/1994/13/contents.

[8] Id. § 1(1).

[9] Id. § 3(1).

[10] Id. § 1(2).

[11] Id. § 5.

[12] The Secretary of State may also issue warrants to enable the SIS or GCHQ to conduct actions outside the UK.  These are known as section 7 warrants, and their purpose is to help protect officers and agents from these agencies from prosecution in the UK.  Rt. Hon. Sir Mark Waller, Intelligence Services Commission, Report of the Intelligence Services Commissioner for 2013, H.C. 302, at 57, https://www.gov.uk/government/uploads/ system/uploads/attachment_data/file/324152/Intelligence_Services_Commissioner_
Accessible__2_.pdf
.

[13] Intelligence Services Act 1994, c. 13, § 5, http://www.legislation.gov.uk/ukpga/1994/13/section/5.

[14] Id. § 5(4), (5).

[15] Directed surveillance may be authorized by a designated person within each of the intelligence services provided that it is necessary to fulfill the agency’s statutory functions, is undertaken for the purpose of a specific investigation, is proportionate, and cannot be achieved through other means.  Regulation of Investigatory Powers Act 2000, c. 23, § 28, http://www.legislation.gov.uk/ukpga/2000/23/section/28.

[16] RIPA provides that unlawfully intercepting communications is an offense punishable by up to two years’ imprisonment and/or a fine.  Id. § 1, http://www.legislation.gov.uk/ukpga/2000/23/section/1

[17] Id

[18] “Communication” is defined broadly in section 81 of RIPA, id., http://www.legislation.gov.uk/ukpga/2000/23/ section/81.

[19] Communications data includes subscriber data, use data, and traffic data.  Secretary of State for the Home Department, Draft Communications Data Bill, 2012, Cm. 8359, ¶ 10, http://www.official-documents. gov.uk/document/cm83/8359/8359.pdf.

[20] Detecting crime is interpreted in RIPA as “(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and (b) the apprehension of the person by whom any crime was committed.”  Regulation of Investigatory Powers Act 2000, c. 23, § 81(5), http://www.legislation.gov. uk/ukpga/2000/23/section/81.

[21] Id. § 5.

[22] Id.

[24] Id. § 22; 2 Current Law Statutes 2000 (Christine Beesley et al. eds., 2000).

[25] The role of the ISC has recently been amended and clarified by the Justice and Security Act 2013, c. 18, http://www.legislation.gov.uk/ukpga/2013/18/contents/enacted.

[26] Regulation of Investigatory Powers Act 2000, c. 23, § 59(1)–(2), http://www.legislation.gov.uk/ukpga/2000/ 23/section/59.

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Last Updated: 06/09/2015