Protecting National Security

A History of British Communications Investigation Regulation

Phil Glover

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780815395447
• eBook ISBN: 9781351183840
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This book contends that modern concerns surrounding the UK State's investigation of communications (and, more recently, data), whether at rest or in transit, are in fact nothing new. It evidences how, whether using common law, the Royal Prerogative, or statutes to provide a lawful basis for a state practice traceable to at least 1324, the underlying policy rationale has always been that first publicly articulated in Cromwell's initial Postage Act 1657, namely the protection of British 'national security', broadly construed. It further illustrates how developments in communications technology led to Executive assumptions of relevant investigatory powers, administered in conditions of relative secrecy. In demonstrating the key role played throughout history by communications service providers, the book also charts how the evolution of the UK Intelligence Community, entry into the 'UKUSA' communications intelligence-sharing agreement 1946, and intelligence community advocacy all significantly influenced the era of arguably disingenuous statutory governance of communications investigation between 1984 and 2016.

The book illustrates how the 2013 'Intelligence Shock' triggered by publication of Edward Snowden's unauthorized disclosures impelled a transition from Executive secrecy and statutory disingenuousness to a more consultative, candid Executive and a policy of 'transparent secrecy', now reflected in the Investigatory Powers Act 2016. What the book ultimately demonstrates is that this latest comprehensive statute, whilst welcome for its candour, represents only the latest manifestation of the British state's policy of ensuring protection of national security by granting powers enabling investigative access to communications and data, in transit or at rest, irrespective of location.

Part I

Introductory matters

1 Introductory matters

Introduction

From the outset, precise writing is required to outline what this book seeks to add to the existing academic literature. The area of public law it examines, the ‘regulation of investigatory powers’, has developed a reputation for tortuous conceptual logic, complex technical definitions, and thus significant difficulties in interpretation.

‘Rationalizing’ the IPA 2016

This book is neither a practical guide to the Investigatory Powers Act (IPA) 2016 nor an explanation of its main provisions. Others have studied the Act, its Explanatory Notes, and voluminous derivative Codes of Practice, and published important interpretative analysis.¹

1 See particularly Simon McKay, Blackstone’s Guide to the Investigatory Powers Act 2016 (OUP, 2017).

This book primarily aims to ‘rationalize’ or explain how and why the IPA 2016 came to be structured and drafted as it is by illustrating the key historical events, successive governments’ policies, and efforts at regulation that preceded it. It thus examines the historical administrative and statutory governance of communications and data investigation in the hope that, by setting the IPA 2016 in its proper context of regulating a 700-year state national security practice, it will be demonstrated as nothing more than a logical progression of that practice.

A legitimate question is why research output such as this might be important or necessary, particularly given the significantly increased level of candour and explicit detail in the IPA 2016, as compared with its regulatory predecessors.² The principal reason is that, despite 12 months of parliamentary debate informed by seven parliamentary committee reports containing around 2,400 pages of evidence from technical experts and NGOs,³ the Act as assented to remains controversial. Despite purportedly providing ‘world-leading transparency and privacy protection’,⁴ it has failed to assuage the longstanding concerns of civil libertarian activism as to the ‘scope and magnitude’ of the privacy-intrusive powers it contains.⁵ Despite limited support and significant public apathy,⁶ division remains between the Cabinet, Home and Foreign and Commonwealth Offices, and a well-organised and funded civil libertarian lobby, as to the scope, magnitude, necessity, and proportionality of communications and data investigative powers. The latter’s concerns, while undoubtedly genuinely held, can occasionally be articulated in emotive rhetoric, diverting concentration from what should be an objective assessment of necessity and proportionality around powers ‘critical to law enforcement and the security and intelligence agencies’ ability to counter the threats…[faced]…from terrorism, crime, and state-based threats’.⁷

2 The term ‘candour’ is preferred to the more commonly used ‘transparent’, because although the IPA 2016 outlines the powers available to the state candidly and with immense detail as to how they should be used, the operational consequences of their practical implementation, of necessity, remain largely unknown.

3 David Anderson QC, foreword to McKay, Blackstone’s Guide (n1).

4 Ben Wallace MP, Ministerial Foreword to Home Office, Investigatory Powers Act 2016 Consultation: Codes of Practice (February 2017).

5 Big Brother Watch and Others v The United Kingdom (Applications Numbers 58170/13, 62322/14 and 24960/15) [3]. This legal challenge, referred to the European Court of Human Rights Grand Chamber, which heard the referral on 10 July 2019, was to aspects of the investigatory powers regime that preceded the IPA 2016 (RIPA 2000). However, the powers in question have been included in the IPA 2016. Judgment remains pending as of 30 November 2020.

6 Ewen MacAskill, ‘Extreme Surveillance becomes UK law with barely a whimper’ The Guardian (London, 19 November 2016) <https://www.theguardian.com/world/2016/nov/19/extreme-surveillance-becomes-uk-law-with-barely-a-whimper> accessed 20 September 2019.

7 HM Government, Transparency Report 2018: Disruptive and Investigatory Powers (Cm 9609, 2018) 34.

It is therefore hoped that this work might assist in some way in bridging the current divide, by providing readers with enough relevant historical material, infused with evidence of government policy in this area, to allow a more informed, rational, and objective view of communications and data-investigative powers.

Principal thesis

The history-focused research undertaken for this book sought to test the following thesis statement.

The IPA 2016 represents the most recent cohesive candid statutory restatement of formerly secretive British state powers, assumed or granted in the interests of national security (broadly construed), aimed at enabling the capability to lawfully access communications and data at rest or in transit wherever located.⁸

8 Emphasis added – interpretations of ‘national security’, ‘covert’, and ‘access’ are defined later in the chapter.

Another way of putting this is that this book proceeds on the premise that in creating the IPA 2016, the legislature has aspired to ‘cover the field’ as regards investigative access to data (including communications) by the state. Consequently, the core question for which an answer is sought herein is whether the IPA 2016, as structured and drafted, can be rationalized by a critical examination of the known history of clandestine communications and data investigation and state regulation thereof. Put another way, and phrased as a question, can history-based research demonstrate that the approach to regulation of investigatory powers within the IPA 2016 is a rational and logical development in state power in response to significant historical events, developments in communications technology, and the needs of the UK Intelligence Community (UKIC)?

National Security (broadly construed) means construing national security (still undefined in UK law) as including protection of the economic wellbeing of the UK and the prevention and detection of serious crime.

Supporting acknowledgements

In order to test the statement in a coherent way and thus ‘rationalize’ the IPA 2016 as a logical and coherent progression in governance, the following underlying influences require acknowledgement.

The place of secrecy

The doctoral research underpinning this work commenced in 2012.⁹ The brief involved critically examining the history of ‘investigatory powers’ that related to accessing communications. It was thought that this would entail an examination of how the law would be traceable back from the Regulation of Investigatory Powers Act (RIPA) 2000, the human rights-compliant statute governing access to communications, communications data as then defined, and data subject to encryption. RIPA 2000 appeared to cover the field of investigative access to communications and data.¹⁰ There was the statute itself, and substantial Explanatory Notes and Codes of Practice for each of the powers regulated. There was also a very useful practitioner’s guide.¹¹ In an area of public law regulating covert investigations, it appeared that any requirement for reform had been addressed by the enactment of RIPA 2000. As such, the research plan moved to examining where it all started. This proved more difficult. The role of secrecy in the history of communications-related investigatory powers rapidly became apparent. This book will illustrate that official policies involving secrecy and ‘need to know’ have influenced this area of law since at least 1324. Such policies are not unique to the UK, however. States that were considered even more ‘privacy-centric’, including what was then the Federal Republic of Germany, were practising ‘secret measures of State surveillance’.¹² The very fact that Europe’s supreme human rights court referred to communications surveillance in this way evidences the then-prevailing residual Cold War culture. As regards the UK, Christopher Andrew described intelligence matters (including communications investigation) as:

9 For a useful overview of the UK Civil Service relevance to the early culture in the UKIC, see generally David Vincent, The Culture of Secrecy: Britain 1832–1998 (Clarendon Publishing 1999).

10 Part II of RIPA regulates covert surveillance and remains in force. As it does not involve dire ctly accessing data or communications, it is not covered in this book.

11 Simon McKay, Covert Policing (OUP 2011).

12 A term first coined by the ECtHR in Klass and Others v Federal Republic of Germany (1979–1980) 2 EHRR 214, emphasis added.

The [l]ast taboo of British politics…protected from public gaze and parliamentary scrutiny by a bipartisan consensus built around two dubious constitutional principles…the first…that intelligence was wholly undiscussable [sic] in public – even in Parliament…and the second…that Parliament must entirely abdicate its powers in this field to the executive.¹³

13 Christopher Andrew, The Defence of the Realm: The Authorized History of MI5 (Penguin 2010) 753.

This aligns with Vincent’s observation that the principal concern of successive UK governments, no matter their political persuasion, was the upholding of their contribution to a ‘culture of secrecy’ in respect of national security matters.¹⁴ This includes the scope and extent of communications investigation through techniques including interception. Even prior to the period covered by Vincent, government secrecy in matters of national security surveillance had evolved from the Bond Association. This document was created by Francis Walsingham, Secretary of State to Queen Elizabeth I, and William Cecil, consequently establishing the infamous ‘spy ring’ that focused principally on gathering intelligence from a sizeable number of international and domestic informants. The primary ground for doing so was seeking to protect the Protestant British throne from t...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Contents
• Table of cases
• Table of abbreviations
• Acknowledgements
• PART I Introductory matters
• Part II Secretive communications investigation governance 1324?–1984
• Part III Disingenuous statutory governance: 1984–2015
• Part IV Candid statutory governance: 2016–?
• Index