TWO HUMAN RIGHTS ORGANISATIONS have told a Tribunal that MI5 has continually breached surveillance laws for many years, resulting in the Home Secretary issuing unlawful bulk surveillance warrants.

In a landmark case being heard this week (25-29 July 2022) by the Investigatory Powers Tribunal, Liberty and Privacy International said that MI5, in breach of key legal safeguards, unlawfully held and used individuals’ private data that was gathered by secret surveillance. This included breaches of safeguards around how long MI5 retained data, who had access to data, and how MI5 protected legally privileged material such as private correspondence between lawyers and clients.

Through the course of the case, MI5 has admitted it stored the public’s data when it had no legal right to do so and that it failed to disclose this to the Home Office and oversight bodies.

The details of MI5’s law-breaking extend over a ten-year period, and were first disclosed in 2019 as part of Liberty’s separate legal challenge to the Investigatory Powers Act 2016 (IPA), also known as the Snoopers’ Charter, in which the Government was forced to admit that MI5 had been unlawfully retaining and mishandling the public’s data for years.

As part of that case, the Government disclosed a number of documents to the Court, including correspondence between MI5 and its watchdog, the Investigatory Powers Commissioner’s Office (IPCO), as well as correspondence between MI5 and the Home Office, and reports of inspections carried out by IPCO after they learnt of MI5’s failings. These documents revealed that MI5 itself called its data stores “ungoverned spaces”, and that the Investigatory Powers Commissioner had concluded MI5 had held and handled data in an “undoubted unlawful manner”. Many more documents have now been disclosed in the current case, revealing the scale and seriousness of MI5’s lawlessness.

Although the information on exactly whose data has been mishandled is unavailable, it is likely to include many people who are not suspected of any wrongdoing due to the nature of the broad surveillance powers given to MI5. Under the IPA and other laws, state bodies including MI5 are allowed to collect and store wide-ranging data on any member of the public. Because of MI5’s breaches, this data could have been unlawfully retained and used.

The Tribunal was also told that the Home Office and various Home Secretaries overlooked and failed to investigate MI5’s breaches, despite having information that indicated that MI5 was acting outside of the law. Surveillance warrants have to be approved by the Home Secretary, and can only be approved if the Home Secretary is satisfied legal safeguards around the handling of data are being met. However, Liberty and Privacy International have argued that successive Home Secretaries repeatedly ignored the signs of MI5’s unlawful handling of data, and continued to sign off on surveillance warrants unlawfully despite this.

Liberty and Privacy International have told the Tribunal that MI5 knew about systemic compliance risk as far back as 2010, but did not take steps to understand or fix these issues until many years later. MI5 failed to report its non-compliance, as it should have done, to the Home Office and its regulators, and to disclose it to the Tribunal in relevant litigation, for several years. MI5 also gave false information about its legal compliance to the Home Secretary and IPCO, which led to further surveillance warrants being granted.

Liberty and Privacy International have said that MI5 and the Home Office’s failings violate everybody’s right to privacy and free expression.

Both organisations have called for all surveillance warrants issued unlawfully to be quashed, all unlawfully retained data to be destroyed, and for the Tribunal to declare that the IPA itself is unlawful because it does not work in practice.

Liberty lawyer Megan Goulding said: “We all want to have control over our personal information and data. But MI5’s law-breaking is yet another example of how the dangerous powers granted under the Snoopers’ Charter do not work for the public, and how the Government and security services continually violate our basic rights to privacy and free expression when they spy on us.

“This case shows that our surveillance laws are not fit for purpose. Surveillance safeguards can only protect us if they work in practice, and they don’t. For 10 years MI5 have been knowingly breaking the rules and failing to report it, and the Government has failed to investigate clear red flags. There has been no proper investigation into MI5’s breaches by the Home Office despite having been put on notice by briefings. Instead, the Home Secretary continued to issue unlawful warrants, and MI5 kept information from the authorities about how it mishandled our data.

“Mass surveillance does not make us safer. These powers breach our privacy and undermine core pillars of our democracy. It’s clear that so-called safeguards are totally ineffective in protecting our rights. Today represents a step towards reining in surveillance powers, and we hope the Government will step up and create proper safeguards that protect our privacy rights.”

Privacy International Legal Director Caroline Wilson Palow said: “MI5’s persistent failure to follow the law is inexcusable. For years, they have ignored safeguards put in place to protect us from abuse. These safeguards are a fundamental check on the vast power intelligence agencies can wield over all of us, especially when they engage in mass surveillance.

“When we campaigned against giving the state unprecedented new surveillance powers under the so-called Snooper’s Charter back in 2015, one of our key concerns was that the safeguards against abuse were just not strong enough. And here we are, seven years later, with even the rules that are enshrined in law being ignored in practice. Those rules need a radical overhaul.”

Tom de la Mare QC, Ben Jaffey QC, Daniel Cashman and Gayatri Sarathy of Blackstone Chambers, and David Heaton of Brick Court Chambers, act for Liberty and Privacy International.

* More information on the Investigatory Powers Tribunal here.

* Source: Liberty