Investigatory Powers Commissioner reports on UK use of covert powers

The Investigatory Powers Commissioner, Sir Brian Leveson, has published his Annual Report on the use of covert investigatory powers by public authorities.

The Report provides an overview of the use of investigatory powers by authorised bodies, including UK intelligence agencies, police forces and local councils. It covers activity carried out in 2019 by the Investigatory Powers Commissioner’s Office (IPCO) and the Office for Communications Data Authorisations (OCDA), who both support the Commissioner in carrying out his functions as set out in the Investigatory Powers Act 2016.

IPCO’s team of Inspectors carried out inspections of public authorities throughout the year to ensure investigatory powers were used in accordance with the law. Findings and trends are documented in the Report, alongside details of reported errors.

Sir Brian Leveson, the Investigatory Powers Commissioner, said:

“I am delighted to present what is, in reality, my first Annual Report as Investigatory Powers Commissioner.”

“On the whole, I have been impressed by the high level of compliance with the legislation and Codes of Practice. I am confident that we, both IPCO and OCDA, can continue to provide a high standard of scrutiny and oversight to ensure that the use of covert powers within the UK fully complies with its human rights obligations.”

Some of the key points in the 2019 report include:

• The use of covert human intelligence sources (CHIS) by law enforcement agencies has continued to decrease year on year since 2017, falling from 1,958 approvals in 2018 to 1,866 in  2019. Though CHIS authorisations for wider public authorities (public authorities aside from local councils and law enforcement agencies) have increased from four authorisations in 2018  to 11 authorisations in 2019, our inspections into the use of CHIS by wider public authorities also revealed that whilst many have the authority to use CHIS, they choose not to and opt to  use lessintrusive powers to achieve their means;
• Serious errors have decreased since 2018. Of the 14 serious error investigations reviewed by the Investigatory Powers Commissioner in 2019, the Commissioner determined that serious  harm or prejudice had occurred in four;
• Since commencing operations on 26 March 2019, by the end of 2019 OCDA received 71,610 applications for the use of communications data;
• 2019 saw a continuation in trends regarding law enforcement’s acquisition of communications data. As with IPCO’s findings in 2018, drug-related offences were the most common offence  for which communications data were requested;
• The Investigatory Powers Commissioner is responsible for overseeing MI5’s compliance with its internal policies governing participation in criminality (PIC) by CHIS. In 2019, IPCO’s  Inspectors were content that MI5 policies were correctly followed in every case that was inspected;
• Her Majesty’s Revenue and Customs (HMRC) reported a significant CHIS error in 2019. This was the result of an outdated policy being applied to their interaction with witnesses.  Following an internal review by HMRC and a follow up inspection by IPCO, HMRC is implementing an extensive retraining and re-education programme;
• After a challenge by Privacy International in 2018, the Investigatory Powers Tribunal ruled that GCHQ should review its existing procedures relating to sharing intelligence and bulk  datasets under IPCO’s supervision. To provide oversight that satisfies this judgment, IPCO reviewed the use of bulk data at GCHQ and has now incorporated the sharing of bulk data with  foreign partners into its regular oversight and inspection arrangements;
• Following discussions with non-government organisations, IPCO identified and published, for the first time, a set of statistics in its 2019 Annual Report to illustrate how the Consolidated  Guidance (CG) was used in practice by the Ministry of Defence and UK intelligence agencies;
• Law enforcement agencies’ (LEA) use of property interference, such as where there is a need covertly to interfere with physical property to install a listening device in a person’s house,  has fallen in 2019 from 2018, with some LEAs opting to submit applications for equipment interference (EI) instead. EI, the process by which an individual’s electronic equipment may be  interfered with to obtain information or communications, has been available to LEAs since November 2018; and
• 2019 saw an increase in requests to retain legal professional privilege material. In 2019, 98 requests were submitted and 97 were approved; this is an increase from 77 requests  submitted and 76 approved in 2018.

Both IPCO and OCDA have continued to carry out their core functions throughout Covid-19. Those activities will be detailed in the Investigatory Powers Commissioner’s 2020 Annual Report, due to be published next year.