Investigatory Powers Tribunal accepts MI5 and Home Secretaries unlawfully issued bulk surveillance warrants

30/01/23

The Investigatory Powers Tribunal (“IPT” or “Tribunal”) today held that both MI5 and the Secretaries of State for the Home Department acted unlawfully over several years in relation to warrants authorising bulk interception and other bulk secret surveillance, accepting the claim by Liberty and Privacy International, two human rights campaigning organisations, to this effect.

The IPT found that, from late 2014, MI5 held large amounts of data unlawfully because at least one of MI5’s systems (referred to as the “Technology Environment” or “TE”) lacked proper retention, review and deletion (“RRD”) safeguards, contrary to statutory requirements. It further held that MI5 failed to disclose to the Home Secretary (who granted bulk warrants and other authorisations to them) that it did not have such safeguards in place, in breach of the duty of full and frank disclosure when seeking a warrant (which the IPT accepted to exist). MI5 further failed to disclose its unlawful mishandling of bulk communications data (“BCD”) in previous litigation, in breach of its duty of candour and cooperation. Bulk warrants issued in these circumstances were unlawful, because the Secretary of State omitted to take a relevant consideration into account (this was conceded but only as to warrants and part of the period). The Respondents’ conduct was found to be unlawful under domestic law, Article 8 of the European Convention on Human Rights and (now retained) EU law.

The Tribunal described MI5’s conduct as entailing “serious failings in compliance with [its] statutory obligations”. It  described MI5’s failure to disclose these failings to the Investigatory Powers Commissioner (or his predecessor) or to the Home Secretary as “a serious misjudgment”.

The IPT further held that, for their part, successive Home Secretaries from December 2016 to April 2019 breached their Tameside duties of investigation, and acted irrationally, in failing properly to investigate MI5’s systems and compliance status when granting warrants. This was because the Home Office (and Home Secretaries) had been told that MI5 had a relevant “longstanding compliance risk”, which ought to have caused them to make proper enquiries. Warrants issued were unlawful on this further basis.

It is notable that, at the trial in July 2022, the Tribunal permitted cross-examination of two witnesses from MI5, in closed session by Counsel to the Tribunal. In addition, the Tribunal’s findings in relation to the conduct of the Home Secretary reject elements of evidence given by Home Office witnesses based on contemporaneous documents.

The IPT has not yet finally determined issues of relief. It has decided that, contrary to the Claimants’ requests, it will not quash bulk warrants issued unlawfully, due to damage to national security. In considering relief, the IPT held that section 31(2A) of the Senior Courts Act 1981, which permits the High Court on a judicial review application to refuse relief where it is highly likely that the outcome for the claimant would not be substantially different, does not apply in claims before the IPT. In doing so it applied previous decisions of the Special Immigration Appeals Commission (“SIAC”) and the Competition Appeal Tribunal to the like effect and did not follow earlier contrary authority from SIAC.

The judgment is here.