The Intelligence Services Commissioner's Oversight Is Weak and Unaccountable

The Intelligence Services Commissioner has released his annual report (pdf) which highlights a high number of times individuals’ privacy was breached due to a series of errors. However, with only 17% of warrants being checked by the Commissioner, serious questions have also been raised about how thorough his investigations can actually be.

It is not unfair to suggest that at present the oversight by the Commissioner is weak and his accountability to Parliament and the public is almost none existent.  A part time Commissioner with only one member of staff cannot reasonably provide adequate oversight of the use of intrusive surveillance powers. As the Home Affairs Select Committee (HASC) recently pointed out, the Commissioner should be aiming to check at least 50% of warrants if the investigations are to be thorough.

It is clear that the Government must urgently address the fact that the Commissioner clearly does not have enough resources to thoroughly carry out his investigations into the intelligence and security services.

The key findings from the report are:

• Of the 1887 warrants and authorizations the Commissioner inspected only 318. This is equivalent to just 16.8%.
• There were 418 instances where “consideration had to be given as to whether there was a serious risk of an individual being subject to unacceptable conduct either because they were in the detention of a liaison service, or if intelligence was supplied to solicit detention and they were then detained.”
• Over the inspections there were 33 errors reported, up from 24 in 2011
• Sir Mark investigated 19 mistakes made by MI5, of which 11 occurred because the correct paperwork had not been obtained, whilst 6 were classified in the report as “procedural errors”.
• There were 10 mistakes made by MI6, all of which resulted in “intrusions into privacy to some degree”, however Sir Mark believes they were not deliberate.
• There were 3 mistakes made by GCHQ, 2 of which were “procedural errors” and one of which was an “inputting mistake”.
• The Home Office made an error in processing an MI5 warrant by writing the date of 2012, when it should have been 2013
• The Ministry of Defence made 2 errors

The Commissioner’s report is an improvement from last years, highlighting that it is possible to be more transparent about how surveillance powers are used and when errors occur. Yet there is much more that can and should be done to reassure the public that surveillance powers are not being misused.

For example, when HASC recently asked the Commissioner what percentage of consolidated guidance or disciplinary cases he examined, he was unable to tell the Committee.  The Commissioner agreed to inform the Committee of the information in writing, however he subsequently refused to do so and instead told the Committee he would ‘try’ and publish the findings in his annual report. In the annual report, however, Sir Mark states:

“I said I would try to provide the figure in this report. However, without the benefit of full context, which I cannot give in an open report, to provide such detail could be both inaccurate and misleading. Therefore I do not believe it is in the public interest to do so at this time. However, I have given details in my confidential annex.”

Refusing to publish such a simple statistic is, in itself, unacceptable. We therefore call on the Government to take urgent steps to make the Commissioner’s role a full time position and to ensure that his office is properly resourced.