By The Rt Hon Sir Mark Waller.
Foreword
My Appointment
I was appointed by the Prime Minister to the post of Intelligence Services Commissioner on 1 January 2011 under section 59 of the Regulation of Investigatory Powers Act 2000 (RIPA). Under section 59 of RIPA the Prime Minister appoints an Intelligence Services Commissioner who must be a person who holds or has held high judicial office within the meaning of the Constitutional Reform Act 2005.
My appointment is for three years and I am required by section 60(2) of RIPA to report ‘as soon as practicable after the end of each calendar year’ with respect to the carrying out of my functions. This is therefore my second report and covers the period 1st January to 31st December 2012.
My Legislative Responsibility
My legislative responsibility is to keep under review the issue of warrants by the Secretary of State authorising intrusive surveillance and interference with property and other authorisations (such as for covert human intelligence source) which designated officials can grant, in order to ensure that these were issued on a proper basis. My role is set out in full later in my report but I would like to emphasise that my role is tightly outlined in RIPA and I do not have blanket oversight of all the activities of the intelligence services. At the same time, I feel a responsibility not only to check the paperwork but to delve beyond this into how the activity specified in the warrant or authorisation is put into practice during operational activity. I also undertake some extra-statutory oversight which I, or my predecessors, agreed to take on. These extra-statutory roles could soon be placed on a statutory footing when the Justice and Security Act 2013 comes into force.
My First Year
During my first year in post I attempted to provide greater openness whilst still maintaining the secrecy necessary in the interest of national security. This involves achieving a fine balance because my inclination is towards greater openness but I recognise that revealing some information would not be in the best interest of the UK and its citizens.
My objectives in my Second Year
During my second year my objectives have been firstly for greater focus on the way in which authorisations have been carried out and secondly on ensuring that the issue of privacy is given specific consideration as a separate issue within the concept of proportionality.
During each of my visits I have discussed privacy as a separate matter and looked at ways to highlight this in the applications for warrants and authorisation. Intelligence gathering is often intrusive and this intrusion into privacy must be outweighed by the intelligence which is sought to be achieved.
Government Communications Headquarters (gCHQ)
This report is being finalised at a time of considerable media comment about the legality of GCHQ’s activities. The Intelligence and Security Committee are, quite properly, investigating and it is for them to comment further if they wish to do so.
In so far as matters related to my area of oversight, which is the only area where it is appropriate for me to comment, I have discussed matters fully with senior officials within GCHQ and I am satisfied that they are not circumventing the legal framework under which they operate.
Olympics
The Olympic and Paralympic Games were a significant event during the summer of 2012. The intelligence services discussed with me their security preparations to help ensure the safety and security of the Games. They were not only involved in advising on the physical design and security of the sites, but also in the accreditation of those working at the venues.
As you will observe from the dates of my inspections, I made sure to steer clear of this busy period to allow for greater operational efficiency but I remained on hand if the agencies wished to discuss anything with me.“The Olympics dominate much of our thinking in the security world at present.” Sir Jonathan evans, MI5
Discovery of an error
As I explained in my previous report the likelihood of finding errors on my inspections is low because the intelligence services have been very open with me in self reporting and because each warrant or authorisation passes through a number of hands before it is
signed. Unfortunately I must report that this year I did discover an error. Errors can and do occur during fast-paced and complex investigations but this was a simple administrative oversight.
I stress that no unlawful activity occurred but I still viewed this as extremely serious because it was missed by so many people. I have set out as much detail as I am able later in my report.
I believe that the intelligence services have a strong culture of reporting errors and officers are willing to hold their hands up and admit possible errors. I encourage this and believe that officers should not be nervous about reporting errors.
Challenging the Intelligence Services
On my inspections and other visits I have sought to probe as if I was someone who had no confidence in the intelligence services and who was willing to believe the worst. Members of the intelligence services at all levels gave up a lot of their time providing answers to my questions and providing me with assurances and documents to support whenever I requested it.
The staff I have met are conscientious and professional and there is an audit trail through a number of people in relation to everything they do. I remain convinced that, because of the layers of checks, assurances and oversight, it would take an enormous
conspiracy at all levels to undertake unlawful activity.
Overall I have been impressed with the care taken to ensure compliance with the legislative framework and with the levels of internal governance and supervision once a warrant or authorisation is signed. Staff have been very open with me and showed full and frank examples of peer review, supervision and internal oversight to ensure that operational activity is necessary and proportionate and that risks have been addressed.
openness
I will continue to question the necessity for secrecy and push for greater openness so that the public can be reassured that the necessary secrecy is in the best interest of the UK.
My Statutory Functions
In my previous report I attempted to set out the structure of my oversight visits and the legal tests and principles applied. I do not intend to repeat that here but I have attached as an appendix a summary of:
• the statutory objectives of the intelligence services
• the types of warrants and authorisations
It is worth highlighting again that my role is essentially that of a retrospective auditor of authorisations. I enjoy a constructive relationship with the agencies I oversee and I have given my advice freely and without prejudice when asked. However it is also important to clarify that I am not the legal adviser of the intelligence services, who have their own legal advisers.I deal with matters under the following headings:
• My statutory and extra-statutory functions upon which I accepted the role as Intelligence
Services Commissioner. Where my predecessors have been asked, and agreed, to perform extra-statutory functions I have continued to provide such oversight on an extra-statutory basis
• The Method of my review
• The discharge of my functions and an assessment of my statutory and extra statutory visits
• Consolidated Guidance to Intelligence Officers and Service Personnel on Detention and Interviewing of Detainees, and on the Passing and Receipt of Intelligence Relating to Detainees
• Errors reported to me
• International Intelligence Review Agency Conference
• The Intelligence and Security Committee
• A success story
• Statistics
• Conclusion2012 Annual Report | Intelligence Services Commissioner
My role is essentially to keep under review the exercise by the Secretaries of State of their powers to issue warrants and authorisations to enable the intelligence services to carry out their functions. It is also to keep under review the exercise and performance of the powers and duties imposed on the intelligence services and MOD/Armed Services personnel in relation to covert activities which are the subject of an internal authorisation procedure. These powers (Figure 1 & 2) are set out in the Regulation of Investigatory….
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