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Secret court asked to quash ten years of MI5 surveillance warrants following systemic breaches

The culture at MI5 was to prioritise missions over the rest, including compliance with safeguards made to protect the general public, the UKs most secret court heard yesterday

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  • Bill Goodwin and Tommy Greene

Published: 27 Jul 2022 0: 21

Warrants for bulk surveillance of UK citizens have, for greater than a decade, been obtained illegally and really should be quashed, a tribunal has heard.

Human rights organisations Liberty and Privacy International would like by way of a joint claim to nullify the MI5 data capture warrants signed off by way of a group of home secretaries.

The warrants, which allowed MI5 to intercept vast levels of private and sensitive information, have been obtained due to material non-disclosures, in accordance with Tom De La Mare QC, acting for both human rights groups.

The Investigatory Powers Tribunal, the UKs most secret court, heard that MI5 had unlawfully gathered vast levels of information that could have extended to an incredible number of citizens, including lawyers and journalists.

De La Mare told the tribunal that the warrants should therefore be quashed, since full and frank disclosure which there have been a conscious failure to activate within MI5 could have revealed they were unlawful.

The tribunal heard that not acting to quash the warrants would reward systemic wrongdoing among intelligence agencies.

Leaving the warrants set up could have wide remedial consequences, said De La Mare, preventing many future claims from being brought against those in charge of the alleged overreach and data retention failures since 2010.

MI5s data handling systems have been around in a parlous state during this time period, the tribunal heard, with one technical environment used to store intercept material referred to as comparable to the Wild West, within an internal MI5 document.

Culture of systemic non-compliance

The tribunal was told that systemic breaches in the obtaining, storage and retention of the publics data were embedded and widespread practices within MI5.

This, Liberty and Privacy Internationals legal representatives argued, was because of group of deep-rooted cultural factors baked in to the organisation.

The culture at MI5 was to prioritise missions over the rest, based on the transcript of an interior interview submitted to the court.

Staff are hugely motivated. The task could be that the mission is prioritised over the rest. Compliance can frequently be at conflict sometimes. The organisation is more used to considering security issues which trumping the mission. Compliance isn’t yet observed in exactly the same way in the organisation, the document reads.

In a single case, when an MI5 team raised a compliance issue, those near the top of any office were clear that it needed fixing immediately, the transcript read. Possibly the priority [of compliance] isn’t understood at the low levels where in fact the mission sometimes appears as the priority.

It really is still [MI5s] case that there’s been no breach of full and frank disclosures. Theres no evidence they understand or hold any insight to their legal liabilities
Ben Jaffey QC

In accordance with Ben Jaffey QC, there is an extremely strong desire in MI5 to accomplish everything they might to withhold information from oversight bodies and from the court process.

He said there is a high degree of understanding of the breaches along with other failures within MI5.

It really is still the respondents case that there’s been no breach of full and frank disclosures, he told the court. Theres no evidence they understand or hold any insight to their legal liabilities.

However, the court heard that widespread breaches have been noted within MI5 as recently as 2022. De La Mare pointed to internal communications dated earlier this season, which indicated that such problems were still systemic within the agency.

The Security Service reported its failure to stick to safeguards to the Investigatory Powers Commissioner in June 2020, after discovering that it had retained authorised information in the technical environment when there have been no more any grounds to help keep it.

We therefore assess that case could be symptomatic of a far more systemic issue, that there surely is apt to be further warranted or authorised material that is stored in [the technical environment] for longer than is essential and proportionate, MI5 wrote in its are accountable to the regulator.

The failure to enforce the required safeguards will probably have led to the occurrence of further breaches, it added.

The landmark case brought by Liberty and Privacy International seeks to challenge the sweeping powers granted to intelligence services bodies by the 2016 Investigatory Powers Act (or Snoopers Charter).

The entire extent of data interceptions isn’t known, but is thought to cover an incredible number of citizens communications including sensitive material distributed to journalists and confidential, privileged legal correspondence.

Heads would roll

Heads would roll if similar failures had occurred in a police, De La Mare told the tribunal. Or, if thered been a cover-up [of similar scale and seriousness] at a company like Google, there will be huge fines.

If some of this happened in a criminal context, in the seeking of criminal warrants by the policethered be considered a tsunami of judicial reviews and of civil cases.

De La Mare argued that the weighty responsibilities of national security concerns had led MI5 to disregard its legal responsibilities within an apparently consequence-free manner.

The organisation, once it became alert to the legal breaches, didn’t notify its oversight body, the Investigatory Powers Commissioners Office (IPCO) and the Investigatory Powers Tribunal (IPT), along with wanting to play down the gravity of the breaches by recasting them in euphemistic language.

De La Mare said, however, these are matters of the gravest importance.

He told the tribunal that there is conscious non-disclosure of the legal non-compliance at the best degrees of MI5 from at the very least 2018 onwards, or even earlier. Among the consequences of such practices was that MI5 could have misled the Secretary of State and Parliament, he added, once the Investigatory Powers Act bill had been debated by lawmakers.

At the start of 2018, MI5 highlighted shortfalls in its procedures for retaining, deleting and destroying confidential material, particularly associated with lawyer privilege, in accordance with internal Security Service documents.

De La Mare spoke of conscious data breaches for greater than a year and a halfconcerning data of the ilk and sensitivity. Rather than an individual has yet been disciplined.

He added: This catalogue of failings, in virtually any other section of public service, would result in huge fines.

Discrete section of operations

Legal representatives acting for hawaii bodies argued that the issues highlighted with MI5s electronic surveillance operations weren’t as critical or as deeply embedded within the organisation as have been suggested to the court.

Acting for the federal government and for MI5, James Eadie QC told the tribunal that the problems in mind related and then discrete regions of MI5 operations and that the claims of a non-compliance culture at the agency were contradicted by evidence submitted to the tribunal.

The issues were, needless to say, serious, but relate with a discrete section of MI5s operations, he said, discussing the technical environment in MI5, a location that has been found never to be compliant with required data safeguards.

Eadie told the tribunal that no evidence submitted to the court suggested that highly confidential information have been vulnerable to contact with hostile actors, arguing the outer perimeter was safe.

Citing an assessment undertaken by Sir Martin Donnelly, a former permanent secretary, and views expressed by the IPCO regulator, he also said: The assertions of cultural non-compliance run directly unlike the opinions of other people who have considered these precise issues.

Eadie, however, conceded there have been unlawful practice in MI5s data handling practices. There have been, he said, therefore obvious remediation conditions that would have to be grappled with.

The tribunal had heard through the first day of evidence submissions that home secretaries had simply taken MI5 at its word when approving data capture warrants. Successive secretaries of state at the house Office also didn’t investigate MI5 even with that they had received indications the intelligence agency was acting outside the law.

Eadie said of the house secretarys role: Needless to say the secretary of state cant completely abandon her responsibility and just depend on MI5 oversightbut the main point is that the secretary of state is eligible for depend on the expertise and mastery of MI5.

All of those other case will undoubtedly be heard during three days of secret closed hearings, that may consider further legal arguments and testimony from unidentified witnesses.

The case continues.

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