UK MPs have been told that, not only is the legal regime governing GCHQ likely to be incompatible with the European Convention on Human Rights, many of the agency’s activities are illegal even by current domestic standards.
Jemima Stratford QC and Tim Johnston were asked to prepare the opinion for the All Party Parliamentary Group (APPG) on Drones. While APPGs have no formal powers within the UK political system some – like the APPG on Extraordinary Rendition – have done important investigatory work in areas where formal oversight has been lacking.
While legislative proposals based on this opinion have already been tabled, its primary importance is likely to be its foreshadowing of issues the European Court of Human Rights (ECtHR) could adjudicate on this year in the case Big Brother Watch v United Kingdom. In the past, the Strasbourg court has played a decisive role in forcing changes to UK surveillance practices and it has never before been asked to consider the legality of mass surveillance.
A full analysis of the document follows below.
What the opinion covers
According to the APPG on Drones website, the impetus for commissioning the opinion was Edward Snowden’s revelation that the NSA has a dedicated unit, the Counter-Terrorism Mission Aligned Cell, for the support of drone strikes. Given the indisputably close collaboration between the NSA and GCHQ, there is a concern that information gathered by British intelligence has led directly to extra-judicial killings.
The legal advice is based on five hypothetical scenarios that are, like the one above, drawn directly from reporting on the Snowden revelations. As such, they serve as an excellent demonstration of the importance of the range and importance of the public policy issues raised to date.
The five scenarios and their related revelations
The first scenario concerns the gathering of bulk data from UK nationals. It supposes that GCHQ has intercepted communications between two individuals located in the UK from an Atlantic undersea cable. The data is specified as bulk electronic data – that is, not targeted surveillance – arising from telephone calls, emails and other internet use. This scenario relates primarily to revelations about the UK’s Tempora operation.
The second scenario posits that GCHQ has subjected the data gathered in the first scenario to analysis, particularly “pattern of life” analysis. This analysis has been performed on the data of identified criminal or terror suspects, but also that of those who are not suspected of any wrongdoing. There are a number of revelations that relate to this kind of analysis and there has been some detailed investigation of the methods used to interrogate the US call records database.
In the third scenario, GCHQ have allowed the NSA to access and retain this data. Thanks to Edward Snowden, we know that the NSA has been allowed to retain increased categories of “incidentally collected” data from UK citizens since 2007.
The fourth scenario suggests the NSA has shared this data with the CIA, making it available for planning drone strikes.
In the fifth senario, data to and from the US is transmitted and received from one of the several US Air Force bases that still operate on British soil. Some of the data transmitted to the US has been obtained overseas in contravention of international law and some of the information received from the US is used to facilitate drone strikes. The involvement of some of these US bases in signals intelligence activity has been a feature of previous investigatory work on surveillance.
While the Regulation of Investigatory Powers Act (RIPA) empowers GCHQ to intercept the content of communications between individuals outside the UK – including communications between an individual inside the UK and one outside of it – the law does not allow interception of the content of communications between individuals located inside the UK.
As a result, Stratford and Johnston found that, whether or not a communication between UK based persons is transfered by undersea cable to the US and back, it is all “internal” communication within the terms of RIPA and to construe otherwise would be “artificial”. The gathering of such internal communication requires a warrant.
Furthermore, while RIPA does authorise the interception of metadata (“communications data”) between two individuals in the UK, this likely represents a disproportionate interference with UK citizens’ right to privacy and family life under Article 8 of the European Convention on Human Rights. In other words, the provisions of RIPA itself constitute a breach of the ECHR.
The indiscriminate interception of data, solely by reference to the request of the executive, is a disproportionate interference with the private life of the individuals concerned. (Stratford and Johnston, paragraph 49)
Data mining and “pattern of life” analysis
The existing legal framework allows GCHQ to conduct pattern of life analysis on the information it retains.
We understand that pattern of life analysis involves the gathering together of a large body of data about a particular individual. In this context it ordinarily refers to communications data: who does the individual communicate with, which websites do they visit, what are their associations and interests? However, it could refer to contents data as well: what do they say to their associates? (paragraph 55)
Based on case law in the ECtHR, Stratford and Johnston found that the existing legal framework on the retention, use of and destruction of data “is inadequate and likely to be unlawful” because it related to mass, rather than targeted surveillance, and that the rules governing the data of those outside the UK “is also probably unlawful.”
RIPA allows the UK to transmit communications data to the US where a senior minister is confident that the receiving country has appropriate means of storing and destroying that data. There is, in other words, a large degree of executive discretion in this area.
Stratford and Johnston considered that represented a fresh breach of UK citizens’ Article 8 rights and that the legislation does not offer adequate protections. They suggest that specific bilateral agreements could “ameliorate” the situation.
Use of bulk intercept data in drone strikes
In one of the strongest findings in the document, Stratford and Johnston find that the transfer of data that the UK government knows is to be used in the preparation of drone strikes against non-combatants is “probably unlawful” and that “An individual involved in passing that information is likely to be an accessory to murder.”
Stratford and Johnston note that UK courts have very recently declined to adjudicate the legality of US drone strikes (in R (Khan) v Secretary of State for the Foreign and Commonwealth Office) but it would be illegal for the UK to conduct such actions itself
The United Kingdom government does not and could not lawfully carry out drone strikes outside Afghanistan, such as those carried out by the US government in Yemen and Pakistan. (para 93).
They express concern that the current legal framework may not place any obligation on the UK government to investigate or prevent agents of the state becoming an accessory to illegal actions. “In that case, we consider that outcome to be contrary to the principles of public policy and good governance.”
Accountability of US bases
Stratford and Johnston hold that, under the terms of 1951 NATO Status of Forces Agreement and the 1952 Visiting Forces Act, the UK government has the power to prosecute US service personnel for violations of the law that take place on UK soil. However:
It appears, in practical terms, that the UK government may not always know what takes place on RAF bases controlled by NATO forces. As a result, that power to prosecute may be theoretical. (paragraph 7)
Four members of the APPG on Drones have tabled a set of amendments in the House of Lords, with the intention of improving oversight of US military bases on UK soil. These are due to be debated on 3 February.
Furthermore, on 29 January, Tom Watson MP – the chair of the APPG on Drones – published the text of a letter he had sent to Douglas Alexander MP, the shadow Foreign Secretary, asking for the Labour Party to take a tougher line on UK surveillance practices. The letter also notes that a copy of the report has been sent to Sir Macolm Rifkind MP, chair of the Intelligence and Security Committee (ISC).
The ISC is the only Parliamentary committee empowered to investigate matters involving the intelligence agencies. An attempt in late 2013 by the Home Affairs Select Committee to question representatives of the security services was blocked by the UK Prime Minister and the Home Secretary Theresa May. Unlike other Parliamentary committees, ISC members are appointed by the executive rather than elected by other MPs. The ability of the ISC to provide effective oversight of the UK intelligence services has frequently come into question. Indeed, the historic weakness of the UK’s oversight regime and GCHQ attempts to evade scrutiny are themselves a prominent subject in the Snowden revelations to date.
The primary impact of the Stratford and Johnston legal opinion may well be that it forshadows the issues in forthcoming legal action in UK and international tribunals. As the document itself notes, the legal questions considered by Stratford and Johnston are similar to, but narrower than, those cited in challenges to UK government practice launched in the Investigatory Powers Tribunal (IPT) and the European Court of Human Rights itself. The former is a closed tribunal that is based in the Home Office, has never found against the security services and whose decisions are subject to no domestic route of appeal.
It is testament to the UK’s historically poor regulation of its intelligence agencies that citizens have had to rely on the ECtHR in Strasbourg to ensure that these organisations are made subject to the law, even in theory. It was not until 1989, when the UK government was about to lose the case Hewitt and Harman v United Kingdom that it decided to pass the Security Service Act, which first put the domestic security service MI5 on a statutory footing. MI6 and GCHQ were first provided for in law even later than this, in the 1994 Intelligence Services Act.
Indeed, the impetus for RIPA itself was largely to bring UK surveillance legislation into line with the ECHR, which was incorporated into UK law when the Human Rights Act came into force in 2000. Another ECtHR case, Liberty & Others v United Kingdom, found in 2009 that the pre-RIPA framework was inadequate to prevent breaches of UK citizens’ Article 8 rights. It is therefore potentially significant that the Strasbourg court has decided to fast-track the complaint against the UK govenment based on Snowden’s revelations brought by Big Brother Watch, the Open Rights Group and Constanze Kurtz in October 2013 (Big Brother Watch v United Kingdom). The Court has never before been asked to rule on mass surveillance and, while it has still to decide formally whether to admit the case, it is possible that a judgment may be issued before the end of 2014.
Meanwhile, a first post-Snowden legal challenge to GCHQ activity wase heard by the IPT on 30 January. It concerns the possible violation of legal privilege in relation to the case of Abdel Hakim Belhaj and Fatima Boudchar, whom the UK helped render to Libya in 2004. Lawyers for the UK security services gave assurances that any communications beween the plaintiffs and their lawyers would not be read but did not confirm whether interception had taken place or if any intercepted materials had been read in the past.