IPT orders cross-examination of MI5 witness, accepts MI5 waived privilege and makes request for assistance to the IPC

02/08/21

In January 2020, Liberty and Privacy International (the “Claimants”) brought a claim in the Investigatory Powers Tribunal (“IPT”) against the Security Service (“MI5”) and  (Claim No IPT/20/01/CH) in relation to (i) serious defects in two of MI5’s systems, in particular the absence of retention, review and deletion (“RRD”) safeguards to ensure that personal data obtained via bulk warrants and directions were deleted when it was no longer necessary to hold them, (ii) MI5’s failure to disclose (fully and frankly) the absence of such safeguards to the Secretary of State and Judicial Commissioners when applying for warrants and directions that permit MI5 to carry out secret surveillance (and also in previous related litigation), and (iii) the Secretary of State’s failure to investigate these matters when informed of certain “risks”, in the context of deciding whether to issue such warrants. The Claimants seek relief including declarations, destruction of unlawfully held data and the quashing of unlawfully obtained warrants. It has been conceded that, at least to some extent, warrants were issued unlawfully as the Secretary of State was not informed of certain matters. A substantive hearing is set down for at least a week in November 2021.

At a directions hearing on 21 and 27 July 2021, the Investigatory Powers Tribunal (“IPT”) held that a witness from MI5 (referred to in the proceedings as MI5 Witness A) should be cross-examined at the substantive hearing, that MI5 had waived privilege over certain legal advice, and that the IPT would make a request to the Investigatory Powers Commissioner (“IPC”) in relation to potentially relevant documents to the claim.

On the Claimants’ application to cross-examine MI5 Witness A, the IPT considered the principles that apply in proceedings before it. It held, contrary to the Respondents’ submissions, that cross-examination was not “exceptional”, due in part to the unique investigatory functions of the Tribunal. These distinguished it from the Administrative Court. The IPT held that it would be assisted in fact finding by hearing cross-examination of MI5 Witness A. It held, however, that this could occur only in a CLOSED hearing, not in OPEN or in private as the Claimants had sought.

On privilege, the Claimants contended that a certain document containing legal advice (the “Legal Paper”) had been disclosed, through being quoted in a different document that the Secretary of State had produced in previous litigation in the Divisional Court, and accordingly that legal professional privilege over that advice had been waived. They argued alternatively that the Respondents had, in their pleadings in this claim, put in issue the effect of the Legal Paper (and thus waived privilege), by pleading that the MI5 Management Board had received and considered the Legal Paper but its knowledge of the defects was nonetheless “limited”. The IPT accepted the latter argument and held that privilege had been waived.

Finally, the Tribunal decided that it would exercise its statutory powers to make a request for assistance to the IPC. This course had been suggested by Counsel to the Tribunal. The Tribunal considered it relevant that Counsel to the Tribunal had raised concerns about the adequacy of the Respondents’ disclosure and further that, even if the IPC were to respond that he held no further relevant documents, that would itself be a useful reassurance.