The Independent Reviewer writes …

David Anderson Q.C.

Welcome! I am an independent Q.C. and not part of the government machine. I am tasked with reviewing the operation of the United Kingdom’s anti-terrorism laws. Where I am critical, I recommend change. My reports and recommendations are submitted to ministers and laid before Parliament.

As reviewer I have a very high degree of access both to classified documents and to those most closely involved with defence against terrorism: Read more…

Features

The report of my Bulk Powers Review, which I delivered to the Prime Minister on 7 August, was published to Parliament (in unaltered form, and without redactions or confidential annex) at 11 am today.

Web and print versions of the report are on the gov.uk website, and a PDF copy of the report is here: Bulk Powers Review Рfinal report.  It begins with a 1-page Executive Summary.   The document speaks for itself, and I will not be doing any media around the launch.

I would emphasise the following points:

  • The Review looked only at the operational case for the four powers under review, including whether alternative means could have been as effective in achieving useful results.¬† I was not asked to advise on whether the four Bulk Powers under review were desirable, or should be passed into law, or on the safeguards that should be applied to them.¬†¬†These matters have been the subject of¬†extensive evidence to parliamentary committees (see e.g. this recent summary by the Interception Commissioner’s Office), and¬†are now for¬†Parliament to consider.
  • Three¬†of the¬†powers under review (bulk interception, ¬†bulk acquisition¬†of communications data and bulk personal datasets) are already in use across the range¬†of MI5, MI6 and GCHQ activity, from cyber-defence, counter-terrorism and counter-espionage to child sexual abuse and organised crime.¬† They play an important part in identifying, understanding¬†and averting threats in Great Britain, Northern Ireland and further afield.¬†¬†After close examination of numerous case studies, the Review concluded that other¬†techniques could sometimes (though not always) be used to achieve these objectives: but¬†that they¬†would often be less effective, more dangerous, more resource-intensive, more intrusive or slower.
  • The¬†Report accordingly concludes that there is a proven operational case for the three¬†powers already in use. It also concludes that there is a distinct (though not yet proven) operational case for the fourth power, bulk equipment interference.
  • But the pace of change is breathtaking.¬†¬†If they are to be satisfied that the use of these powers is necessary and proportionate, and that MI5, MI6 and GCHQ have done everything possible to minimise the privacy footprint of their activities,¬†the Government and – in particular – the new Investigatory Powers Commission need to be¬†fully and independently informed¬†about¬†the latest technological developments.¬†¬† The Report makes a single, major, recommendation: that the Investigatory Powers Bill be amended to provide for a¬†Technical Advisory Panel of¬†security-cleared independent academics and industry experts to be appointed by the IPC “to¬†advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability of techniques to use those powers while minimising interference with privacy“.

As the Report concludes:

“This Report has declared the powers under review to have a clear operational purpose.¬† But like an old-fashioned snapshot, it will fade in time.¬† The world is changing with great speed, and new questions will arise about the exercise, utility and intrusiveness of these strong capabilities.¬† If adopted, my recommendation will enable those questions to be answered by a strong oversight body on a properly informed basis.”

The Investigatory Powers Bill of which the bulk powers form part will now continue its progress through Parliament with a committee session in the House of Lords on 5 September.

Scope of the Review

As widely reported, I have been asked to follow up my 2015 report A Question of Trust (AQOT) by conducting a¬†review into the operational case for the four¬† bulk collection powers provided for in Parts 6 and 7 of the Investigatory Powers Bill for the use of MI5, MI6 and GCHQ (“the Agencies”).¬†¬† Those powers relate to bulk interception, bulk acquisition, bulk equipment interference and bulk personal datasets, and are summarised in an Operational Case laid before Parliament on 1 March alongside¬†the Bill.

Conduct of the Review will involve the close scrutiny and interrogation of a volume of very highly classified material.  I will be asking whether the Government has established a robust operational case for the bulk powers it says it needs, and examining whether similar results could have been reached by other, less intrusive, means.  Outside the scope of the Review are issues relating to safeguards and proportionality, many of which I touched on in AQOT.  The question I am asked is more basic than that: are the bulk powers really needed at all?

The Review’s¬†terms of reference require me to report in time¬†for the¬†detailed debate¬†on the powers at committee stage¬†in the House of Lords.

The Review Team

I have been given a free hand to recruit specialist assistance (with top-level security clearance) to help with the Review.  The result is a strong team, with diverse qualities:

  • Cathryn McGahey¬†is leading counsel to the Review.¬† She is a barrister specialising in national security work, immigration law and public inquiries. She was junior counsel to the Bloody Sunday Inquiry from 2000 to 2010 and is currently co-counsel to the Independent Jersey Care Inquiry. She was a special advocate from 2007 to 2016, representing, among others, the only successful appellant in the Operation Pathway Manchester bomb plot case, and Ethiopian nationals whose appeals led the Home Secretary to concede that deportations to Ethiopia could not proceed. Cathryn has worked extensively both for and against government departments.¬†¬†She¬†is skilled in interrogating evidence based on¬†intelligence from the Agencies. She became a QC in 2016.
  • Dr Robert L Nowill is technical adviser to the Review. (as¬†he was previously to AQOT).¬† He was the Director for Cyber and Assurance at BT until 2013.¬† Before 2005, he was the Director of Technology & Engineering at GCHQ, having held a number of other technical and operational roles there previously.¬† His career has also included periods with UK MoD (Defence Procurement Agency and Research Agencies), with the SHAPE Technical Centre in the Netherlands and at Cambridge University Engineering Department.¬† Bob is a Chartered Engineer and Chartered IT Professional, a Fellow of the IET and of the BCS, and a Founder Fellow of the Institute of Information Security Professionals.¬† He currently chairs The Cyber Security Challenge UK Ltd. and works as an independent security consultant.¬†¬†He brings to the Review an understanding of the processes involved in the exercise of the powers under review, and will¬†have the¬†opportunity¬†to test the technical assertions made to us by the Agencies.
  • ¬†Gordon Meldrum QPM is investigatory adviser to the Review.¬† He is one of the UK‚Äôs most experienced former chief police officers in the field of organised crime operations, having spent 30 years leading investigations in Scotland and in London.¬† As a former Director-General of the Scottish Crime and Drug Enforcement Agency and Director of Intelligence at the National Crime Agency, he brings to the Review particular expertise in the use of intelligence (including from the security and intelligence agencies) for the investigation of serious crime in the UK and internationally.¬†¬† Gordon retired from law enforcement in 2015 and now runs his own consultancy business, advising on public protection, serious and organised crime threats, risk mitigation and leadership development.¬† He has the¬†skills and investigatory experience to advise whether¬†the advantages claimed for¬†bulk could have been obtained by other, less intrusive¬†means.

Working methods

The review has already been in preparation for a while.¬† I am grateful for design ideas¬†from the Don’t Spy on Us Coalition, Liberty and Lord Strasburger.¬†¬†The Operational Case will be interrogated, in its open and closed versions, by putting the Agencies to strict proof of its claims, and other avenues will be pursued.¬† We have studied and¬†will learn lessons from the small number of similar reviews that have taken place worldwide, including those conducted in the USA by the¬†Privacy and Civil Liberties Oversight Board¬†and the National Academy of Sciences.¬† We shall be¬†seeking comment from¬†the Agencies on views¬†expressed by¬†the SURVEILLE project, Bill Binney and others.¬† To the extent relevant, we shall also of course be scrutinising the open and closed conclusions of the UK’s own supervisory bodies and courts: the¬†Intelligence and Security Committee of Parliament, the Interception of Communications Commissioner, the Intelligence Services Commissioner and the Investigatory Powers Tribunal.

Multiple bundles of documents have been prepared for the team, at my request and to my order.  I have spoken with officials from each Agency to convey my specific initial requirements, and evidence sessions at each Agency have been scheduled for the team.  I have written to each Agency Chief to underline the importance of the Review and to secure an undertaking of their full and prompt cooperation at appropriate levels of expertise and seniority.

Assistance

A large number of submissions on the subject of bulk were summarised in chapter 12 of AQOT.  Since then, large quantities of further evidence have been submitted to the three parliamentary committees that conducted scrutiny of the draft Bill.  But because of the relatively narrow focus of the Review and the classified nature of the evidence that chiefly matters, I will not be launching an additional general call for submissions.

We will however be talking to experts who, though without access to classified material, may be able to inform our interrogation and scrutiny.  The Review Team is complete, but if you have specialist expertise or experience that you think could usefully assist our task, feel free to contact me: independent.reviewer@brickcourt.co.uk.

I have almost 10 months (and three reports) still to go in post.  But this short article from the May 2016 edition of Counsel, published today:

  • takes a personal look at more than¬†five years spent¬†reviewing the terrorism laws,
  • comments on the transition from QC to Independent Reviewer, and
  • makes some general points about the threat and our response – including in Europe.

One purpose of the article is to encourage potential successors to come forward when the job is advertised Рhopefully within the next couple of months.  The ad will appear in mainstream and legal media, and I will tweet it @terrorwatchdog, or you can register for notification when the Cabinet Office announces the vacancy.

For the past 30 years,¬†Independent Reviewers have been practising QCs.¬†¬†But (though I¬†haven’t seen the job description), I¬†feel sure this will not be a¬†requirement.

The article is based on a speech given at the recent annual dinner of the British Institute of International and Comparative Law.  It is reproduced by kind permission of Lexis Nexis and of Counsel (which circulated it anyway).

POSTSCRIPT

A¬†full-length version of the piece was delivered as the Graham¬†Turnbull Lecture to the Law Society on 21 April, and has now been published on their website under the title “Terrorism and the Law”.

Reports

The report of my Bulk Powers Review, which I delivered to the Prime Minister on 7 August, was published to Parliament (in unaltered form, and without redactions or confidential annex) at 11 am today.

Web and print versions of the report are on the gov.uk website, and a PDF copy of the report is here: Bulk Powers Review Рfinal report.  It begins with a 1-page Executive Summary.   The document speaks for itself, and I will not be doing any media around the launch.

I would emphasise the following points:

  • The Review looked only at the operational case for the four powers under review, including whether alternative means could have been as effective in achieving useful results.¬† I was not asked to advise on whether the four Bulk Powers under review were desirable, or should be passed into law, or on the safeguards that should be applied to them.¬†¬†These matters have been the subject of¬†extensive evidence to parliamentary committees (see e.g. this recent summary by the Interception Commissioner’s Office), and¬†are now for¬†Parliament to consider.
  • Three¬†of the¬†powers under review (bulk interception, ¬†bulk acquisition¬†of communications data and bulk personal datasets) are already in use across the range¬†of MI5, MI6 and GCHQ activity, from cyber-defence, counter-terrorism and counter-espionage to child sexual abuse and organised crime.¬† They play an important part in identifying, understanding¬†and averting threats in Great Britain, Northern Ireland and further afield.¬†¬†After close examination of numerous case studies, the Review concluded that other¬†techniques could sometimes (though not always) be used to achieve these objectives: but¬†that they¬†would often be less effective, more dangerous, more resource-intensive, more intrusive or slower.
  • The¬†Report accordingly concludes that there is a proven operational case for the three¬†powers already in use. It also concludes that there is a distinct (though not yet proven) operational case for the fourth power, bulk equipment interference.
  • But the pace of change is breathtaking.¬†¬†If they are to be satisfied that the use of these powers is necessary and proportionate, and that MI5, MI6 and GCHQ have done everything possible to minimise the privacy footprint of their activities,¬†the Government and – in particular – the new Investigatory Powers Commission need to be¬†fully and independently informed¬†about¬†the latest technological developments.¬†¬† The Report makes a single, major, recommendation: that the Investigatory Powers Bill be amended to provide for a¬†Technical Advisory Panel of¬†security-cleared independent academics and industry experts to be appointed by the IPC “to¬†advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability of techniques to use those powers while minimising interference with privacy“.

As the Report concludes:

“This Report has declared the powers under review to have a clear operational purpose.¬† But like an old-fashioned snapshot, it will fade in time.¬† The world is changing with great speed, and new questions will arise about the exercise, utility and intrusiveness of these strong capabilities.¬† If adopted, my recommendation will enable those questions to be answered by a strong oversight body on a properly informed basis.”

The Investigatory Powers Bill of which the bulk powers form part will now continue its progress through Parliament with a committee session in the House of Lords on 5 September.

Evidence

A House of Commons Public Bill Committee has been set up in order to give detailed scrutiny to the Investigatory Powers Bill that was unveiled on 1 March 2016 and given its second reading on 15 March.  A good deal of written evidence to that committee was published last week.

I was the first witness to be examined by the Public Bill Committee, on 24 March 2016.¬†¬†A¬† transcript of my 25-minute evidence has been published on the Committee’s website, and¬†most of it is captured on¬†video.

Later on 24 March, I submitted written evidence to the Public Bill Committee in order to¬†expand¬†upon some of the points touched on in my oral evidence and to raise some new points.¬† That written evidence is published here for the first time. Read more…

Speeches

I have almost 10 months (and three reports) still to go in post.  But this short article from the May 2016 edition of Counsel, published today:

  • takes a personal look at more than¬†five years spent¬†reviewing the terrorism laws,
  • comments on the transition from QC to Independent Reviewer, and
  • makes some general points about the threat and our response – including in Europe.

One purpose of the article is to encourage potential successors to come forward when the job is advertised Рhopefully within the next couple of months.  The ad will appear in mainstream and legal media, and I will tweet it @terrorwatchdog, or you can register for notification when the Cabinet Office announces the vacancy.

For the past 30 years,¬†Independent Reviewers have been practising QCs.¬†¬†But (though I¬†haven’t seen the job description), I¬†feel sure this will not be a¬†requirement.

The article is based on a speech given at the recent annual dinner of the British Institute of International and Comparative Law.  It is reproduced by kind permission of Lexis Nexis and of Counsel (which circulated it anyway).

POSTSCRIPT

A¬†full-length version of the piece was delivered as the Graham¬†Turnbull Lecture to the Law Society on 21 April, and has now been published on their website under the title “Terrorism and the Law”.