What Exactly Are The UK Surveillance Laws?

Mar 13, 2015

Written By Billy Sexton, Editor, AllAboutLaw.co.uk

Yesterday, the intelligence and security committee (ISC) published a report recommending that Britain’s laws that govern mass surveillance need a total overhaul to be made more transparent and up to date.

However, the inquiry also found that existing laws are not being broken. So what’s the issue then? Current laws could be deemed to provide agencies with a “a blank cheque to carry out whatever activities they deem necessary”. Uh-oh.

Following Edward Snowden’s leak of intelligence material in June 2013, there were allegations that the Government Communications Headquarters (GCHQ) were side-stepping UK law. The report found that these allegations weren’t true, but it brings into question what statutory laws exist relating to this matter, and how they interact to provide intelligence agencies with their broad range of powers.

The Security Service Act 1989 (SSA) and the Intelligence Services Act 1994 (ISA) provide the statutory basis for the agencies’ activities.

The SSA provides MI5 with the authority to obtain and share information for the protection of national security and the safeguarding of the economy and the prevention and detection of serious crime. However, section 2(2)(a) of the Act rules that information may only be obtained and disclosed for the purpose of criminal proceedings.

Additionally Section 1 of ISA provides the Secret Intelligence Service (aka MI6) with authority to obtain and provide information on the actions and intentions of people living outside the country if they think that the UK’s national security is threatened. Section 3(1)(a) provides the GCHQ with the authority to gather information in the interests of national security.

The beef that people have with these statutory laws is that they use very generic terms. A vague interpretation of ‘national security’ can provide agencies’ with loads of powers. However MI5, said that the SSA narrowed down their responsibilities to protecting the country “from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy”. However, it could be argued that “actions intended to overthrow or undermine” could be applied to a broad range of actions and behaviour.

The agencies’ defend themselves by arguing that everything they do is subject to the overarching requirements of the Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law. Basically, agencies work to protect national security, but they must uphold citizens’ basic human rights whilst doing so. What’s the deal with the right to privacy then? Section 6 of the Human Rights Act states that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”. However, the right to privacy is a qualified right, meaning that there can be circumstances where this right can be interfered with.

Each agency must make sure that they pass a ‘triple’ test the Human Rights Act sets out. Activity carried out by an agency must be legal, necessary and proportional to the matter they’re investigating. Is this not sufficient reassurance to the public and sceptical media?

Well, given that the agencies’ operate in secret, there will always be a bit of suspicion among the public. Additionally, the vagueness surrounding their statutory powers raises eyebrows, as do their supplementary powers in other legislation, which includes:

- the Telecommunications Act 1984

- the Terrorism Act 2000

- the Regulation of Investigatory Powers Act 2000

- the Wireless Telegraphy Act 2006

- the Counter-Terrorism Act 2008

- the Data Retention and Investigatory Powers Act 2014.

These pieces of legislation interact with each other in a variety of ways. The committee found that GCHQ ensure they always meet their human rights obligations by applying the Regulation of Investigatory Powers Act (RIPA) interception safeguards to all their operations. This is because RIPA has been found to be compatible with the European Convention for Human Rights. Sneaky!

This is partly the reason why the committee has called for a single Act of Parliament that deals with how intelligence agencies can access private communications. This article just scratches the surface with how intelligence agencies use the powers handed to them by statutory law, and you can read more (a lot more!) here in the official report.

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