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L S E L AW POLIC Y BR IEF ING SER IE S

Going ‘below the waterline’:


the paradoxical regulation of secret
surveillance in the UK
Bernard Keenan
POLICY BRIEFING 9 2015

Electronic copy available at: http://ssrn.com/abstract=2583806


Going ‘below the waterline’: rule of law and accessible to the
person concerned. Third, the person
the paradoxical regulation of secret affected must be able to foresee the
consequences of the domestic law
surveillance in the UK for him…”

In other words, the Kennedy case


The Investigatory Powers Tribunal recently found that government concerns the quality of the law that
surveillance was unlawful, marking the first time that the secretive authorizes the spying. It must be
court has ever ruled against the UK’s Intelligence Services. Yet the publicly accessible, and the conditions
under which eavesdropping can be
Tribunal also held that the unlawful situation had been remedied by practiced must be foreseeable. The
the Tribunal’s decision; a paradoxical and unprecedented result that claimants successfully argued that
says much about the difficulties of effectively regulating secret activity. neither criterion applies to the sharing
of intercepted material between

O
the US spy agency NSA and their
n 6 Februar y 2015 the 1. Publicity, not privacy UK counterpart GCHQ, therefore
Investigator y Powers such sharing is unlawful. A second
Tr i b u n a l ( I P T ) r u l e d Historically, the common law did ground of challenge concerned the
that until 5 December not recognise a right to privacy in adequacy of the UK’s existing domestic
2014, the UK Intelligence Services’ the UK. No one had a general right framework, RIPA, to communication
prac tice of accessing sur veillance to expect that his or her personal technology in inter net age. That
information obtained by the United information would be respected by ground was rejected by the Tribunal,
States’ spy agenc y, the NSA, was the state under UK law. If officers and is not within the scope of this
unlawful. Significantly, 5 December of the state came to your home to briefing paper.
2014 was the date that the I P T search your papers without a lawful
published an interim decision in the warrant, you had to sue them under The IPT found that there was no
case, and that publication made a trespass, not privacy. Therefore in publicly accessible framework
key difference. the age of telecommunications and governing intelligence-sharing,
the Post Office, where spying could hence any such sharing of intercept
Both sides in the case immediately occur invisibly, without trespass, material between NSA and GCHQ
c l a i m e d v i c t o r y. P r i v a c y I n t e r- no law protected the privacy of was unlawful. However, the judgment
national, a member of the coalition communications. This changed with simultaneously departed from the
of civil liberty organisations that the growing application of human required standards of accessibility and
brought the complaint in the rights under the European Convention foreseeability required by the ECtHR
aftermath of the Edward Snowden on Human Rights (ECHR), now fully in Kennedy. Reasoning that it would
disclosures, celebrated the decision incorporated to domestic law. In the be self-defeating to require secret
as the first time that a British court watershed case of Malone v UK (1985) intelligence services to publish its rules
has ruled against the Intelligence the European Court of Human Rights and policies in detail, the IPT’s test of
Services’ use of their interception (ECtHR) held that police phone tapping whether or not the regime is lawful is
powers. Downing Street and GCHQ, was a violation of article 8 – the right reformulated at paragraph 37 of the
on the other hand, welcomed the to privacy – because there was no law December judgment:
d e c i s i o n ’s c o n f i r m a t i o n t h a t t h e authorising the action. If the state is
UK’s current regime is lawful. To the going to eavesdrop on citizens, it first “(i) there must not be an unfettered
extent that in “one small respect” has to create a framework of legislation discretion for executive action. There
the program had been unlawful, the to authorise and control it. This led must be controls on the arbitrariness
government noted, the problem had to the UK putting its three secret of that action.
already been remedied. Intelligence Services on a statutory
footing (MI5 in 1989, MI6 and GCHQ (ii) the nature of the rules must be
This paper makes three key points. in 1994). The statutes require all their clear and the ambit of them must
First, despite finding illegality on the actions to be ultimately justified by one be in the public domain so far as
part of the government, the IPT’s of three broad headings of national possible, an “adequate indication”
decision has substantially lowered security, economic well-being of given (Malone v UK [1985] 7 EHRR 14
e x i s t i n g h u m a n r i g h t s s t a n d a rd s the UK, or preventing serious crime, at paragraph 67), so that the existence
pertaining to state surveillance. and reviewable by a Parliamentary of interference with privacy may in
Second, the procedures of the IPT committee called the Intelligence and general terms be foreseeable (…)
blur the line between the judiciary Security Committee (ISC).
and the executive, conjoining Consequently, the law must indicate
executive and judicial actions in The key issue in this case was whether the scope of any such discretion
one process. Finally, although the or not an acceptable legal framework conferred on the competent
case nominally pertains to privacy, covers the alleged surveillance practices authorities and the manner of its
the IPT did not expressly find any outlined in Snowden’s disclosures. The exercise with sufficient clarity to give
violation of privacy nor did it ECtHR’s core requirements for such a the individual adequate protection
conduct any rigorous review of the framework were outlined in Kennedy against arbitrary interference.”
actual practices of the Intelligence v UK:
Services. The ultimate question in This test will be met if (paragraph 41):
this case was to decide how much “First, the impugned [surveillance]
information about the internal rules measure must have some basis in “(i) Appropriate rules or arrangements
of a fundamentally secret system of domestic law. Second, the domestic exist and are publicly known and
surveillance must be made public. law must be compatible with the confirmed to exist, with their content

2 Electronic copy available at: http://ssrn.com/abstract=2583806


sufficiently signposted, such as to give indicative of their quality and efficacy. process, behind closed doors, it righted
an adequate indication of it… The disclosure is surprisingly thin, given the wrong.
the weight attached to it by the IPT. In
(ii) They are subject to proper fact, it closely mirrors the government’s 3. No actual violation of
oversight.” earlier legal submissions on the point, privacy was found
i.e. that GCHQ treats all intelligence
Applying this test, the IPT then data received from foreign agencies as To c o n c l u d e , i t i s i m p o r t a n t t o
looked in closed hearings for secret if it were obtained under the domestic again emphasise that insofar as
“arrangements” that can be made legal framework, the Regulation of the gover nment’s activities were
“publicly known to exist” and their Investigatory Powers Act 2000 (RIPA). ruled unlawful, that concerned the
content “sufficiently signposted”. The By framing this as a factual account publication of their secret internal
system is already subjected to “proper of what does happen in practice, arrangements. This does not mean
oversight” by the ISC, the Interception rather than legal submissions as to that the government was engaged in
of Communication Commissioner’s what would happen in principle, the the worst implications of Snowden’s
Office (IOCCO), and of course the IPT. government enabled the IPT to view the disclosures, such as unlimited mass
Overall, this is a much lower standard disclosure as new information, newly surveillance, snooping on all of the
of publicity than that which the ECtHR admitted to the public domain via the population, and building a huge
called for in Kennedy v UK. mechanism of the IPT’s own written database of all of our personal details.
judgment. The performative power of In fact the IPT was at pains to say the
Because the legislation that created the the disclosure was thus determinative of opposite is the case: that surveillance
IPT contains an ouster clause preventing the case. The conclusion on intelligence powers are used only against those who
any party from appealing the case sharing is that these “arrangements would threaten the security of the UK
domestically, the claimants have taken below the waterline” afford adequate in some respect. However, the definition
the case directly to the ECtHR. If the protection from abuse, and that they of such a threat rests with the executive,
IPT’s new standard is upheld there, then are now made sufficiently clear to the acting on secret intelligence advice, and
in the long run the government’s victory public in summary form such that there is not subject to judicial review.
extends far beyond this case. European is no longer any violation of human
g o v e r n m e n t s e n g a g e d i n s e c re t rights law. Meanwhile, while we await the hearing
surveillance for the purposes of national of the case before the ECtHR, a new
security would need only to give vague The Tribunal did not finally determine government programme of publicising
confirmation that there are secret the matter in December, instead inviting summaries of secret arrangements is
“arrangements” in place, “signposting” the parties to make sub-missions as already well under way. Government
the gist of what those arrangements to the effect of its initial findings. The lawyers have made a concession
mean. The public is left to trust that ultimate question then was whether or in the on-going Belhaj case before
the arrangements are effective, relying not this meant that the position prior the IPT, conceding that they should
on oversight bodies such as the ISC, to the 5 December 2014 judgment have published “arrangements” that
IOCCO, and indeed the IPT itself to was unlawful. The second part of the ensure intercepted material between
provide second-order confirmation judgment, given on 6 February 2015, lawyers and clients litigating against
that the arrangements are real, are found that intelligence sharing had the government is not passed to the
being applied, and that normal life can previously been unlawful but is now gover nment legal teams fighting
continue. This is a legal negotiation over lawful thanks to the publication of the the case – a fundamental feature of
the limits of open government, and it is December judgment. Put like this, the Legal Professional Privilege necessary
thus a constitutionally significant issue. result appears paradoxical: an unlawful for a fair trial. It seems that no such
situation was rendered lawful by the formal arrangements existed, but the
2. The IPT blurs the very process in which its legality was government denies that any previous
separation of powers challenged. Of course, it was not the trial has ever been contaminated. The
fact of the challenge that made the government is also rushing through new
The IPT dealt with this case in both open difference, but rather the disclosure policies to protect journalistic sources,
and closed, i.e. secret, hearings. During that was published in the decision. aware that the media in particular have
closed session, the IPT looked in detail Nonetheless, the surprising function of a strong interest in these events. But the
at the secret internal arrangements the IPT in this case was simultaneously ultimate problem of trying to balance
concerned with intelligence sharing. This to provide both the review and the secrecy and accountability always makes
led to further disclosure of a summary remedy in law. This bears comparison legality itself dependent on some degree
of secret internal “arrangements”, to the most formalistic conception of public trust in authority, while at the
recorded at paragraph 47 of the of legality, whereby all that matters same time undermining the open basis
December judgment. The “disclosure” normatively is that there is some law in on which that trust should rest. These
appears to take the form of written place. It also marks a new dimension of are fundamentally political matters
representations by the government’s the IPT’s inquisitorial status: it not only that concern the very security of a
legal team. It is not a separate published enquires, it also bridges the secret realm democratic society. Strasbourg’s decision
document. It does not take the form to the public realm. will be watched with great interest
of a witness statement, unlike other around the world.
government evidence in the case. In so doing, the constitutional
Undated, it gives no indication as to separation of powers between the Bernard Keenan
when these policies were made, how executive and the judiciary is blurred. (Department of Law,
they are enforced, what training is The executive was acting unlawfully but London School of Economics
provided to staff, or anything at all through collaboration with the judicial and Political Science)

LONDON FEBRUARY 2015

Electronic copy available at: http://ssrn.com/abstract=2583806 3


BERNARD KEENAN
Bernard Keenan is a PhD
candidate at the London
School of Economics, where
he obtained his LL.M in
2008. He researches the use
of classified material in legal
proceedings in the UK. Before
beginning his PhD in 2013,
he worked as an immigration
lawyer for five years,
qualifying as a solicitor.

Department of Law
The London School of Economics
and Political Science
Houghton Street
London WC2A 2AE

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