English High Court rules GCHQ general warrants require sufficient specificity

Privacy International sought review of a 2016 decision by the Investigatory Powers Tribunal, which did not defend the action. The Secretary of State for Foreign, Commonwealth and Development Affairs and GCHQ appeared as interested parties.

The application was heard in the High Court of Justice (Queen’s Bench Division) by Lord Justice Bean and Mrs Justice Farbey.

Objectively ascertainable

Under the Intelligence Services Act 1994, part of the stated function of GCHQ is to monitor or interfere with electromagnetic, acoustic, and other emissions and any equipment producing such emissions. This function is exercisable only in the interests of national security, the economic well-being of the United Kingdom, and the support of the prevention or detection of serious crime.

The claimants challenged various aspects of the ways GCHQ was believed to make use of computer network exploitation (CNE), among them the use of so-called ‘thematic’ warrants, general warrants covering entire classes of persons, property, or conduct.

The Investigatory Powers Tribunal ruled that such a warrant was lawful if it was as specific as possible in relation to the property to be covered by the warrant, both to enable the Secretary of State to be satisfied as to legality, necessity, and proportionality and to assist those executing the warrant, so that the property to be covered is objectively ascertainable, and that it did not need be defined by reference to named or identified individuals.

This aspect of the Tribunal’s ruling was challenged by the claimants in their application for judicial review. Following the Tribunal’s decision, the Investigatory Powers Act 2016 created a new regime for the authorisation of warrants for certain purposes, but the 1994 Act remained the governing regime in respect of others including interference with goods and computer hacking intended to destroy or manipulate the functioning of electronic systems.

It was submitted for the claimants that the Tribunal had misdirected itself in concluding that a section 5 warrant would be lawful provided that it “adequately described” property which was the target of the warrant. Section 5(2) of the 1994 Act required that property be “specified”, which connoted the identification of particular things.

It was further submitted that in view of the importance of the constitutional principle that there can be no interference with property without clear and specific legal authorisation, the words of an enactment must be unambiguous before the court may interpret Parliament as intending to override rights.

Longstanding aversion

Both Bean LJ and Farbey J contributed to the judgment of the court. Addressing the intention of Parliament in respect of the 1994 Act, they said: “The purpose of the 1994 Act was (among other things) to place the existence and functions of GCHQ on a statutory footing. In doing so, Parliament intended that GCHQ (together with the other Agencies) should continue to protect the United Kingdom’s national security and economic well-being, and play its part in the prevention of serious crime.”

They continued: “The Interested Parties respectively have constitutional responsibility for and expertise in operational matters relating to national security. However, the construction of the provisions of an Act is for the court and for no one else. If the court were to be moved by the view of the Interested Parties on the extent of the powers which they regard as necessary, it would risk departing from what Parliament has said.”

On whether section 5(2) of the Act engaged fundamental rights, they said, providing historical precedent: “In our view it plainly does, because of the longstanding aversion of the common law to general search warrants.”

They continued: “The proper protection of the citizen against terrorist attack is of the greatest importance, and there can be little doubt that technological capabilities operated by the Agencies lie at the very heart of the efforts of the State to safeguard the citizen against terrorist attack. But we do not accept the suggestion in [the interested parties’] argument that for this reason powers conferred on the Secretary of State in statute, such as the power in section 5(2) of the 1994 Act, must be given the widest possible construction.”

Fact-sensitive question

Contrasting the 1994 Act with the 2016 Act which partially replaced it, they said: “The subject matter to which [2016 Act] warrants may relate is set out in great detail in section 101(1). It includes, for example, ‘equipment belonging to, used by or in possession of a group of persons who share a common purpose or who carry on, or may carry on, a particular activity’ or ‘which is being, or may be, used for the purposes of a particular activity or activities of a particular description’. The contrast between these very broad powers and the use of the word ‘specified’ in section 5 of the 1994 Act is striking.”

They continued: “The fact that Parliament left its wording unaltered while using entirely different wording for creating new powers of equipment interference strongly suggests to us a deliberate decision to maintain a distinction between the breadth of the relevant powers. It may be that a later statute cannot generally be used to interpret an earlier one; but we do not consider that this rule applies where the later statute has partly replaced the earlier provision but partly left it in force.”

The judges concluded: “We consider that a warrant which referred to the property of anyone engaged in an activity (for example ‘the mobile phone of any person conspiring to commit acts of terrorism’) would be insufficiently specific to satisfy the requirements of section 5(2). Whether a warrant which refers to the property of anyone suspected of being a member of an organisation, but not named or otherwise identified in the warrant, is sufficiently specific will be a fact-sensitive question, the answer to which will depend on whether a person’s membership of the organisation is objectively ascertainable.”

For these reasons, the High Court quashed the Tribunal’s preliminary ruling on the issue and declared that a warrant under section 5 of the 1994 Act “will be lawful if it is sufficiently specific for the property concerned to be objectively ascertainable on the face of the warrant”.