Reprieve and Privacy International launched legal proceedings yesterday after the government refused to reveal the subject matter or contents of a secret Prime Ministerial order governing the activities of the British security services.
It was revealed last year in a separate case brought by Privacy International that the Prime Minister has made three such orders, or “Directions”, which require intrusive and risky covert activity by the UK security services to be overseen by the Intelligence Services Commissioner. Two of these Directions have been made public but the Third Direction remains secret, redacted from public documents.
The two directions that have been published cover the interrogation of detainees held in another country by British personnel and the handling of bulk personal datasets by the intelligence agencies. The Third Direction is thought to cover an area at least as serious and potentially intrusive.
Reprieve and PI are concerned that the conduct overseen under the secret Third Direction may breach the UK’s domestic and international obligations under the Human Rights Act and European Convention on Human Rights if it involves the use of lethal force, harsh interrogation techniques, handing over detainees to a country that uses torture, incommunicado detention without trial, surveillance, blackmail or censorship.
Director of Reprieve, Maya Foa said:
“The British public have a right to know what the security agencies are doing in their name. We know this secret policy hides a large area of covert activity that is at least as serious and intrusive as interrogating detainees overseas and the mass collection of personal data. We also know from bitter experience that without basic transparency, British spooks are liable to cross legal and ethical red lines. The Prime Minister needs to stop hiding behind this secret Third Direction and have the courage and leadership to tell the British public what her government is up to.”
Legal Officer at Privacy International, Millie Graham Wood said:
“It is wrong in principle for there to be an entire area of intelligence activity about which the public knows nothing at all. The risks of such secrecy are obvious given that the Commissioners who are supposed to oversee the activity have previously accepted the intelligence agencies’ interpretation of what is legal without question. We invite the Prime Minister to publish the third direction — redacted, summarised or gisted as appropriate - to ensure there really is full and open oversight of the intelligence agencies.”
The ‘Third Direction’, and the two before it
Basic logic suggests that the ‘Third Direction’, which remains classified, is likely to be more problematic for Theresa May’s surveillance agenda than the first two, which were eventually revealed to the public. However, there is nothing benign about the first two, which intricately navigate the boundaries of the European Convention on Human Rights in regards to bulk surveillance and overseas detention of criminals.
Bulk Personal Datasets (1)
The first direction oversees the acquisition and storage of bulk datasets on individuals. Previously you would have had to obtain a warrant to go digging for information on an individual and this data would need to specifically relate to a possible crime. This information could not be shared between agencies, instead only being permitted for use in ‘proper discharge of their functions’.
This legislation bypasses that by allowing separate agencies to pool data on a specific individual in a central database, very similar to America’s infamous ‘no-fly list’.
It permits information they obtain in connection with one function to be used by the intelligence services in connection with any of their functions and provides that disclosing information to the intelligence services overrides any duty of confidentiality or other restriction on disclosure.
Detention and Interviewing of Detainees Overseas (2)
This second direction reiterates the obligations of UK military personnel in preventing torture happening to intelligence assets held by third parties overseas. It’s a not-particularly-subtle nod to the widespread torture that took place in Iraq and Afghanistan by the US and the US-trained interim Iraqi government.
It stipulates that when there is ‘serious risk of mistreatment of a detainee at the hands of a third party’ it is the duty of military personnel to ‘consult Ministers and provide them with all the details of the particular case’.
Rather feebly, it acknowledges that ‘we cannot remove this risk’ of torture by third party allies completely, and the message is largely that all information should be reported back to Ministers rather than intervening.
See a PDF of additional information on the direction below:
We currently have no idea what this final direction holds, but the government aren’t going to release it without a legal scrap.
Leak of Nations | Human Rights