Jemima Stratford QC’s Advice

Chair of the APPG on Drones Tom Watson has obtained an expert Advice from Jemima Stratford QC on the legality of the reported ongoing GCHQ practice of intercepting ‘internal’ and ‘external’ data in the UK, and the potential availability of that data for use in lethal targeting by the CIA. The trigger for seeking the Advice, with a view to sharing it with APPG members, was reported CIA reliance on NSA surveillance to inform the CIA-operated drone program. It is widely known that GCHQ share data with (and permit interception by) the NSA. The Advice is written on the basis of 5 hypothetical scenarios, based on the newspaper reports of investigative journalists. It provides a detailed review of those scenarios. In summary, the striking conclusions are:

(i) GCHQ is not entitled to intercept mass ‘internal’ contents data between two British residents under the existing legislative framework of Regulation of Investigatory Powers Act (‘RIPA’) in the opinion of the writers;

(ii) RIPA authorises GCHQ to intercept metadata and ‘external’ contents data under RIPA, although this is very probably an unlawful interference of Article 8 (privacy) rights of those affected;

(iii) the executive has retained a largely unrestrained discretion to permit transfer of UK data to the NSA under RIPA;

(iv) RIPA places limited restrictions on the uses to which intercept material might be put, other than its admissibility in court;

(v) a new UK-US bilateral arrangement governing the transfer, storage and use of UK data is the minimum required to protect British citizens and ensure British data and facilities are not used to support activities which would be unlawful in the UK, including drone strikes against non combatants;

(vi) the government is obliged to investigate and prevent UK agents, visiting forces and visiting agents becoming ‘accidental’ accessories to murder under domestic law, where those responsible know that relevant data or facilities may be used to support US drone strikes, properly regarded as unlawful in the UK;

(vii) RIPA has been overtaken by developments in technology since 2000. The key distinction between ‘contents’ and ‘communications’ data is no longer meaningful, given modern internet usage.

The Advice also lends real weight to amendments proposed to the Defence Reform Bill, Visiting Forces Act and RIPA tabled by four peers from the All Parliamentary Group on Drones which will be moved next week on 3rd February in the Grand Chamber. Jemima Stratford QC, advising with Tim Johnston, ends up concluding that the probing amendments might go some way to ensuring that Ministers are informed about data passing through the UK, as well as interception taking place in the UK. This would, in turn, assist the government monitor compliance with UK law, and make informed decisions about the need for an updated multilateral agreement between NATO partners. Chair Tom Watson yesterday submitted the Advice to the Intelligence and Security Committee to contribute towards their ongoing inquiry. It makes an interesting read.