Tom Watson’s Triumph? UK Communications Interception, Drone Strikes and the European Convention on Human Rights

Tom Watson MP (Picture Credit: The Telegraph)

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

Last week Tom Watson MP (pictured left), chair of the All-Party Parliamentary Group on Drones (APPG), launched a new front in the work of the Group (founded back in 2012). As a parliamentarian with an uncanny ability to spot human rights issues likely to make the headlines and which will hold extended media attention, the subject of drones (both in terms of the UK’s operation of them and its cooperation with the US) was always likely to grab Watson’s attention. But the reason Watson is so high-profile in his myriad pursuits, from trying to bounce Tony Blair into resigning, to vanquishing Rupert Murdock to needling the Government on its drone policy, is his grasp of the role of a backbench MP.

His impact as a minister may have been limited, and his spell as Deputy Chair of the Labour Party might have ended ignominiously last summer, but as a backbench parliamentarian he has few equals. He knows how to use the power of select committees, castigating Rupert Murdock as a “mafia boss” when the latter appeared before the Culture, Media and Sport Committee. Alongside this grand standing comes the meticulous use of an MP’s privilege to question ministers. The House of Commons’ Questions Book overflows with queries over the minutiae of UK drone policy, systematic probing which aims to build up a picture of UK operations and to identify weaknesses in the Government’s legal and policy justifications. He is also a master of the Trojan-horse question, keeping the issue of drones alive even in tangentially related debates. A couple of weeks ago, in a debate on redundancies in the UK armed forces, he popped up with the following question:

[W]e have deployed military personnel in a US base in Djibouti. Please will he tell me what their role is? Are they involved in the drones programme in Yemen, and will they be affected by this cuts announcement?

Alas, readers, no substantive answer. For the UK Government is seemingly intent on boring Watson and his tenacious APPG into submission, or at least driving the public to disinterest. Questions on “drone strikes” are met by a blizzard of blandishments and technical-sounding acronyms. The UK doesn’t have drones, it operates UAS (Unmanned Aircraft Systems) or RPAS (Remotely Piloted Aircraft Systems) or UAV (Unmanned Air Vehicles), depending on the minister responding.

But Watson appreciates the limits of a parliamentarian’s reach. The APPG is well-resourced and backed by expert groups outside Parliament (declarations of interest show that the legal NGO Reprieve provides regular funding for a researcher to support its activities). Furthermore, in an effort to deflect the claims of political partisanship that invariably accompany any scrutiny work by MPs, Watson’s APPG has turned to commissioning and publishing legal advice on drones. And not simply on drones. With an eye towards the bigger prize, the legal advice sought by the APPG manages to elide the two most pressing security issues of our times; drones and electronic interceptions by UK spy agencies.

The advice, provided by the highly-respected Jemima Stratford QC and her colleague at Brick Court Chambers Tim Johnson, examines a scenario where the UK intercepts information (whether through the contents of an electronic communication or associated “metadata”), permits the United States to access it, and the United States then employs that information as the basis of a lethal drone strike. The barristers explain in their beginning of their advice (at [5]), ‘the authorities must establish that every step in the chain is lawful if they are to be permitted to carry on with these activities’, before making out what seems like a compelling case on which grounds UK law may fall foul of the requirements of Article 8 of the ECHR (the right to private and family life).

Their analysis is at its strongest when it comes to their discussion of various rouses which may be used by GCHQ to enable “mass” interception (ie, interception not permitted by a specific warrant) of contents of electronic communications within the UK (for example, by arguing that it is routed through a US-based internet server). Such efforts to circumvent the legal regime for intelligence gathering under the Regulation of Investigatory Powers Act 2000 are a key plank of the allegations made by Edward Snowden. And it turns out that with advice in hand focussing on this issue Watson is pushing at an open door. Figures who should know better, like Conservative grandee (and former Foreign Secretary) Sir Malcolm Rifkind, who heads up Parliament’s Intelligence and Security Committee, have in recent weeks spectacularly failed to coherently counter allegations over the legality of UK intelligence gathering. In a Channel 4 News interview Rifkind blustered that his committee’s oversight of Government Communication Headquarters (GCHQ) activities had been entirely appropriate as there was lawful authorisation of these activities under RIPA. This approach abjectly fails to deal with the contention in the Stratford/Johnson advice that it is not the existence but the “quality” of the law which is problematic in granting too broad a power to security agencies (see [35]).

Watson must have been laughing at this point, as the security community has so tied itself up in knots over an intervention before the European Court that Rifkind is reduced to repeatedly saying he thinks that the terms of RIPA are sufficient lawful authority. He would be wise to disappear from our TV screens for a while. All of this looks like pointing towards an easy win in Strasbourg, where Big Brother Watch v United Kingdom is pending before the European Court. High-fives for Watson on the way into Court (with a special degree of kudos for finding a way to hitch his APPG’s work on drones to the challenge to RIPA).

But as I noted last summer, the European Court has rarely challenged Security Service judgements over the requirements of national security and has often given considerable leeway, provided a legal framework is in place, on questions of whether interference with privacy interests are “proportionate” (for the classic example of this case law, see Klass v Germany). The claimants will have to establish that abuse of the RIPA framework has occurred or that the framework itself is inadequate constraint upon state surveillance. Even a “win” on the basis that there are not adequate protections surrounding the harvesting of metadata is unlikely to ultimately prevent the Security Services from undertaking this activity. As the Stratford/Johnson advice notes (at [46]):

RIPA is now 13 years old. As discussed above, the statute draws a sharp distinction between content and communications data. That distinction derives (at least to some extent) from the traditional ‘postal’ distinction between the address on the envelope and its contents. However, the significance of that boundary has been eroded by the realities modern internet usage. Communications data now encompasses each individual URL visited, the contents of an individual’s Twitter and Facebook address lists, messages posted on social media websites and numerous other significant elements of an individual’s online private life. Given modern trends in internet use, the binary distinction between contents and communications data has become increasingly artificial.

Precisely because this material is so useful for the work of security agencies across Europe, the European Court is highly unlikely, even if the current RIPA regime is found to be inadequate, to require specific authorisation for every interception of such information (as is required for the contents of communications). Defeat for the UK Government is likely to be embarrassing (and may require enhanced oversight), but in all likelihood GCHQ will be left with sufficient leeway to continue widespread surveillance of metadata.

As for drones, the supposed focus of the Stratford/Johnson advice hardly gets off the ground before running into the brick wall of the Khan case, where just last month the Court of Appeal emphatically refused to get drawn into passing judgment on the illegality of activities of a foreign state (in this case the US). The advice continues to look at the question based on the issue of data transfer ([85] onwards), but with the courts maintaining this stonewalling approach (effectively saying that claimants should pursue a claim against the US directly), it all begins to sound rather hopeful. So much for Government having to make out every step in the chain to win its case, if the courts will not even grant such claims permission to proceed to full judicial review.

Not that this issue necessarily matters. Fear of adverse judgements in the security sphere can have as salutary an effect on Government policy as joyful scenes of victorious claimants. The UK Government seems particularly defensive on issues of drone policy and intelligence sharing, as Professor Michael Clarke of the defence think-tank RUSI noted late last year:

We share information and it’s very hard to say that it is not used to target individuals. There’s a reasonable presumption that sharing information makes us complicit in the US policy…the UK silence [on the UK’s role in the US drone programme] is deafening.

Watson (with a little help from his legal team) appears to have his foes on the run even when the ground he stands on is weak.