Editing GCHQ (section)

==Legal basis==

{{Main|Intelligence Services Act 1994}}

GCHQ's legal basis is established by the [[Intelligence Services Act 1994]] Section 3 as follows:

{{Blockquote|{{unbulleted list|item_style=margin-left:1.5em;text-indent:-1.5em
|(1) There shall continue to be a Government Communications Headquarters under the authority of the Secretary of State; and, subject to subsection (2) below, its functions shall be—{{unbulleted list|item_style=margin-left:1.5em;text-indent:-1.5em
|(a) to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material; and
|(b) to provide advice and assistance about—{{unbulleted list|item_style=margin-left:1.5em;text-indent:-1.5em
|(i) languages, including terminology used for technical matters, and
|(ii) cryptography and other matters relating to the protection of information and other material, to the armed forces of the Crown, to Her Majesty's Government in the United Kingdom or to a Northern Ireland Department or to any other organisation which is determined for the purposes of this section in such manner as may be specified by the Prime Minister.}}}}
|(2) The functions referred to in subsection (1)(a) above shall be exercisable only—{{unbulleted list|item_style=margin-left:1.5em;text-indent:-1.5em
|(a) in the interests of national security, with particular reference to the defence and foreign policies of His Majesty's Government in the United Kingdom; or
|(b) in the interests of the economic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Islands; or
|(c) in support of the prevention or detection of serious crime.}}
|(3) In this Act, the expression "GCHQ" refers to the Government Communications Headquarters and to any unit or part of a unit of the armed forces of the Crown which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in carrying out its functions.<ref name="InTel94"/>}}}}

Activities that involve interception of communications are permitted under the [[Regulation of Investigatory Powers Act 2000]]; this kind of interception can only be carried out after a warrant has been issued by a [[Secretary of State (United Kingdom)|Secretary of State]]. The [[Human Rights Act 1998]] requires the intelligence agencies, including GCHQ, to respect citizens' rights as described in the [[European Convention on Human Rights]].<ref name=GCHQlaw>{{cite web|title=The Law|url=http://www.gchq.gov.uk/how_we_work/running_the_business/oversight/Pages/The-law.aspx|publisher=GCHQ|access-date=17 December 2013|archive-date=13 January 2020|archive-url=https://web.archive.org/web/20200113191839/https://www.gchq.gov.uk/how_we_work/running_the_business/oversight/Pages/The-law.aspx|url-status=dead}}</ref><ref name=refBBC20141205>{{cite news|title=GCHQ does not breach human rights, judges rule|url=https://www.bbc.co.uk/news/uk-30345801|access-date=6 December 2014|publisher=BBC|date=5 December 2014|archive-date=7 March 2021|archive-url=https://web.archive.org/web/20210307231234/https://www.bbc.co.uk/news/uk-30345801|url-status=live}}</ref><ref>{{cite news|title=The Andrew Marr Show Interview: Theresa May, MP Home Secretary|url=http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/2311201402.pdf |archive-url=https://web.archive.org/web/20141211054354/http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/2311201402.pdf |archive-date=2014-12-11 |url-status=live|access-date=6 December 2014|publisher=BBC|date=23 November 2014|quote=Well I guess what he's talking about is the fact that for certain aspects and certain of the more intrusive measures that our security service and police have available to them – i.e. Intercept, intercepting people's telephones and some other intrusive measures – the decision is taken by the Secretary of State, predominantly me. A significant part of my job is looking at these warrants and signing these warrants. I think it's... Some people argue that should be to judges....I think it's very important that actually those decisions are being taken by somebody who is democratically accountable to the public. I think that's an important part of our system. I think it's a strength of our system.}}</ref>

===Oversight===
{{See also|Mass surveillance in the United Kingdom}}

The [[Prime Minister of the United Kingdom|Prime Minister]] nominates cross-party [[Parliament of the United Kingdom|Members of Parliament]] to an [[Intelligence and Security Committee]]. The remit of the Committee includes oversight of intelligence and security activities and reports are made directly to Parliament.<ref name="ISC" /> Its functions were increased under the [[Justice and Security Act 2013]] to provide for further access and investigatory powers.<ref>{{cite web|url=https://www.legislation.gov.uk/ukpga/2013/18/body|title=Justice and Security Act 2013|publisher=Legislation.co.uk|access-date=8 December 2021|archive-date=8 December 2021|archive-url=https://web.archive.org/web/20211208104659/https://www.legislation.gov.uk/ukpga/2013/18/body|url-status=live}}</ref>

Judicial oversight of GCHQ's conduct is exercised by the [[Investigatory Powers Tribunal]].<ref>{{cite web|title=Functions – Key role|url=http://www.ipt-uk.com/section.aspx?pageid=1|publisher=The Investigatory Powers Tribunal|access-date=6 February 2015|url-status=dead|archive-url=https://web.archive.org/web/20150206141009/http://www.ipt-uk.com/section.aspx?pageid=1|archive-date=6 February 2015}}</ref> The UK also has an independent [[Intelligence Services Commissioner]] and Interception of Communications Commissioner, both of whom are former senior judges.<ref>{{cite web|url=http://www.intelligencecommissioners.com/|title=Intelligence Commissioners|access-date=14 December 2013|archive-date=7 January 2014|archive-url=https://web.archive.org/web/20140107042445/http://www.intelligencecommissioners.com/|url-status=dead}}</ref>

The Investigatory Powers Tribunal ruled in December 2014 that GCHQ does not breach the [[European Convention on Human Rights]], and that its activities are compliant with Articles 8 (right to privacy) and 10 (freedom of expression) of the European Convention on Human Rights.<ref name=refBBC20141205 /> However, the Tribunal stated in February 2015 that one particular aspect, the data-sharing arrangement that allowed UK Intelligence services to request data from the US surveillance programmes [[PRISM (surveillance program)|Prism]] and [[Upstream collection|Upstream]], had been in contravention of human rights law prior to this until two paragraphs of additional information, providing details about the procedures and safeguards, were disclosed to the public in December 2014.<ref>{{cite web|title=IPT Ruling on Interception|url=http://www.gchq.gov.uk/press_and_media/news_and_features/Pages/IPT-Ruling-on-Interception-Feb-2014.aspx|publisher=GCHQ|access-date=6 February 2015|url-status=dead|archive-url=https://web.archive.org/web/20150206205536/http://www.gchq.gov.uk/press_and_media/news_and_features/Pages/IPT-Ruling-on-Interception-Feb-2014.aspx|archive-date=6 February 2015}}</ref><ref>{{cite news|title=GCHQ censured over sharing of internet surveillance data with US|url=https://www.bbc.com/news/uk-31164451|access-date=6 February 2015|publisher=BBC|date=6 February 2015|archive-date=7 February 2015|archive-url=https://web.archive.org/web/20150207092353/http://www.bbc.com/news/uk-31164451|url-status=live}}</ref><ref>{{cite news|title=UK-US surveillance regime was unlawful 'for seven years'|url=https://www.theguardian.com/uk-news/2015/feb/06/gchq-mass-internet-surveillance-unlawful-court-nsa|access-date=6 February 2015|work=The Guardian|date=6 February 2015|archive-date=6 February 2015|archive-url=https://web.archive.org/web/20150206115924/http://www.theguardian.com/uk-news/2015/feb/06/gchq-mass-internet-surveillance-unlawful-court-nsa|url-status=live}}</ref>

Furthermore, the IPT ruled that the legislative framework in the United Kingdom does not permit [[mass surveillance]] and that while GCHQ collects and analyses data in bulk, it does not practice mass surveillance.<ref name=refBBC20141205 /><ref>{{cite web|title=IPT rejects assertions of mass surveillance|url=http://www.gchq.gov.uk/press_and_media/news_and_features/Pages/IPT-rejects-assertions-of-mass-surveillance.aspx|publisher=GCHQ|access-date=7 February 2015|date=5 December 2014|archive-url=https://web.archive.org/web/20150206232713/http://www.gchq.gov.uk/press_and_media/news_and_features/Pages/IPT-rejects-assertions-of-mass-surveillance.aspx|archive-date=6 February 2015|url-status=dead}}</ref><ref>{{cite web|title=List of judgments|url=http://www.ipt-uk.com/section.aspx?pageid=8|publisher=Investigatory Powers Tribunal|access-date=7 February 2015|date=5 December 2014|quote=1. A declaration that the regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK which have been obtained by US authorities pursuant to Prism and/or Upstream does not contravene Articles 8 or 10 ECHR. 2. A declaration that the regime in respect of interception under ss8(4), 15 and 16 of the Regulation of investigatory Powers Act 2000 does not contravene Articles 8 or 10 ECHR and does not give rise to unlawful discrimination contrary to Article 14, read together with Articles 8 and/or 10 of the ECHR.|url-status=dead|archive-url=https://web.archive.org/web/20150206211011/http://www.ipt-uk.com/section.aspx?pageid=8|archive-date=6 February 2015}}</ref> This complements independent reports by the Interception of Communications Commissioner,<ref>{{cite web|title=Statement by the Interception of Communications Commissioner's Office (IOCCO) on the publication of the Interception of Communications Commissioner's Report 2014|url=http://www.iocco-uk.info/docs/2015%20Press%20Release%20Final.pdf|access-date=14 March 2015|date=12 March 2015|archive-url=https://web.archive.org/web/20150402112439/http://www.iocco-uk.info/docs/2015%20Press%20Release%20Final.pdf|archive-date=2 April 2015|url-status=dead}}{{cite web|title=Report of the Interception of Communications Commissioner|url=http://www.iocco-uk.info/docs/IOCCO%20Report%20March%202015%20(Web).pdf|access-date=14 March 2015|date=March 2015|archive-url=https://web.archive.org/web/20150321204956/http://www.iocco-uk.info/docs/IOCCO%20Report%20March%202015%20(Web).pdf|archive-date=21 March 2015|url-status=dead}}</ref> and a special report made by the Intelligence and Security Committee of Parliament; although several shortcomings and potential improvements to both oversight and the legislative framework were highlighted.<ref>{{cite web|title=Privacy and Security: A modern and transparent legal framework|url=http://isc.independent.gov.uk/news-archive/12march2015|publisher=Intelligence and Security Committee of Parliament|access-date=14 March 2015|date=12 March 2015|archive-date=16 March 2015|archive-url=https://web.archive.org/web/20150316093647/http://isc.independent.gov.uk/news-archive/12march2015|url-status=dead}}{{cite web|title=UK surveillance 'lacks transparency', ISC report says|url=https://www.bbc.co.uk/news/uk-31845338|publisher=BBC|access-date=14 March 2015|date=12 March 2015|archive-date=8 March 2021|archive-url=https://web.archive.org/web/20210308034530/https://www.bbc.co.uk/news/uk-31845338|url-status=live}}{{cite news|title=Intelligence and security committee report: the key findings|url=https://www.theguardian.com/world/2015/mar/12/intelligence-security-committee-report-key-findings|access-date=14 March 2015|work=The Guardian|date=12 March 2015|archive-date=8 March 2021|archive-url=https://web.archive.org/web/20210308180804/https://www.theguardian.com/world/2015/mar/12/intelligence-security-committee-report-key-findings|url-status=live}}</ref>

===Abuses===

Despite the inherent secrecy around much of GCHQ's work, investigations carried out by the UK government after the Snowden disclosures have admitted various abuses by the security services.  A report by the [[Intelligence and Security Committee]] (ISC) in 2015 revealed that a small number of staff at UK intelligence agencies had been found to misuse their surveillance powers, in one case leading to the dismissal of a member of staff at GCHQ, although there were no laws in place at the time to make these abuses a criminal offence.<ref>{{cite news|title=Handful of UK spies accessed private information inappropriately, ISC says|url=https://www.theguardian.com/world/2015/mar/12/handful-of-uk-spies-accessed-private-information-inappropriately-isc-says|access-date=31 December 2016|work=The Guardian|date=12 March 2015|archive-date=1 January 2017|archive-url=https://web.archive.org/web/20170101003506/https://www.theguardian.com/world/2015/mar/12/handful-of-uk-spies-accessed-private-information-inappropriately-isc-says|url-status=live}}</ref>

Later that year, a ruling by the [[Investigatory Powers Tribunal]] found that GCHQ acted unlawfully in conducting surveillance on two human rights organisations. The closed hearing found the government in breach of its internal surveillance policies in accessing and retaining the communications of the [[Egyptian Initiative for Personal Rights]] and the [[Legal Resources Centre]] in South Africa. This was only the second time in the IPT's history that it had made a positive determination in favour of applicants after a closed session.<ref>{{cite web|title=UK: Unlawful spying on two organisations reinforces need for intelligence services to end mass surveillance|url=https://www.amnesty.org.uk/press-releases/uk-unlawful-spying-two-organisations-reinforces-need-intelligence-services-end-mass|publisher=[[Amnesty International UK]]|access-date=31 December 2016|date=22 June 2015|archive-date=20 January 2017|archive-url=https://web.archive.org/web/20170120172838/https://www.amnesty.org.uk/press-releases/uk-unlawful-spying-two-organisations-reinforces-need-intelligence-services-end-mass|url-status=live}}</ref>

At another IPT case in 2015, GCHQ conceded that "from January 2010, the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has not been in accordance with the law for the purposes of Article 8(2) of the European convention on human rights and was accordingly unlawful".<ref>{{cite web|title=Case No. IPT/13/132-9/H IN THE INVESTIGATORY POWERS TRIBUNAL|url=http://www.ipt-uk.com/docs/Belhadj_order_26Feb15.pdf |archive-url=https://web.archive.org/web/20150426141903/http://www.ipt-uk.com/docs/Belhadj_order_26Feb15.pdf |archive-date=2015-04-26 |url-status=live|publisher=The [[Investigatory Powers Tribunal]]|access-date=31 December 2016|date=26 February 2015}}</ref> This admission was made in connection with a case brought against them by [[Abdelhakim Belhaj]], a Libyan opponent of the former Gaddafi regime, and his wife Fatima Bouchard. The couple accused British ministers and officials of participating in their unlawful abduction, kidnapping and removal to Libya in March 2004, while Gaddafi was still in power.<ref>{{cite news|title=Legal privilege and the conflicting interests of GCHQ and the IPT|url=https://www.theguardian.com/law/2015/mar/16/legal-privilege-conflicting-interests-gchq-ipt-investigatory-powers-tribunal|access-date=31 December 2016|work=The Guardian|date=16 March 2015|archive-date=1 January 2017|archive-url=https://web.archive.org/web/20170101004744/https://www.theguardian.com/law/2015/mar/16/legal-privilege-conflicting-interests-gchq-ipt-investigatory-powers-tribunal|url-status=live}}</ref>

On 25 May 2021, the European Court of Human Rights (ECHR) ruled that the GCHQ is guilty of violating data privacy rules through their bulk interception of communications, and does not provide sufficient protections for confidential journalistic material because it gathers communications in bulk.<ref>{{Cite web|date=25 May 2021|title=EU Human Rights Court Finds UK's Intelligence Agency GCHQ Guilty of Violating Privacy Laws {{!}} 25 May 2021|url=https://dailynewsbrief.com/2021/05/25/eu-human-rights-court-finds-uks-intelligence-agency-gchq-guilty-of-violating-privacy-laws/|access-date=25 May 2021|website=The Daily NewsBrief|language=en-US|archive-date=25 May 2021|archive-url=https://web.archive.org/web/20210525222626/https://dailynewsbrief.com/2021/05/25/eu-human-rights-court-finds-uks-intelligence-agency-gchq-guilty-of-violating-privacy-laws/|url-status=live}}</ref>

====Surveillance of parliamentarians====
In 2015 there was a complaint by [[Green Party of England and Wales|Green Party]] MP [[Caroline Lucas]] that British intelligence services, including GCHQ, had been spying on MPs allegedly "in defiance of laws prohibiting it."<ref>{{cite news|title=British intelligence service spying on MPs in defiance of laws prohibiting it|url=https://www.independent.co.uk/news/uk/politics/british-intelligence-service-spying-on-mps-in-defiance-of-laws-prohibiting-it-10411996.html|access-date=31 December 2016|work=The Independent|date=23 July 2015|archive-date=1 January 2017|archive-url=https://web.archive.org/web/20170101005409/http://www.independent.co.uk/news/uk/politics/british-intelligence-service-spying-on-mps-in-defiance-of-laws-prohibiting-it-10411996.html|url-status=live}}</ref>

Then-[[Home Secretary]], [[Theresa May]], had told Parliament in 2014 that:
{{blockquote|Obviously, the [[Wilson Doctrine]] applies to parliamentarians. It does not absolutely exclude the use of these powers against parliamentarians, but it sets certain requirements for those powers to be used in relation to a parliamentarian. It is not the case that parliamentarians are excluded and nobody else in the country is, but there is a certain set of rules and protocols that have to be met if there is a requirement to use any of these powers against a parliamentarian.<ref>{{cite web|title=Daily Hansard – Debate, 15 July 2014 : Column 697|url=https://publications.parliament.uk/pa/cm201415/cmhansrd/cm140715/debtext/140715-0002.htm#14071547001384|publisher=[[Parliament of the United Kingdom]]|access-date=31 December 2016|date=15 July 2014|archive-date=25 October 2016|archive-url=https://web.archive.org/web/20161025201820/http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140715/debtext/140715-0002.htm#14071547001384|url-status=live}}</ref>}}

The [[Investigatory Powers Tribunal]] investigated the complaint, and ruled that contrary to the allegation, there was no law that gave the communications of Parliament any special protection.<ref name=HuffPo>{{cite news|url=http://www.huffingtonpost.co.uk/2015/10/14/gchq-can-monitor-communic_n_8292390.html|title=GCHQ Can Monitor Communications Of MPs And Peers Rules Tribunal|newspaper=Huffington Post|author=Thomas Tamblyn|date=14 October 2015|access-date=24 January 2018|archive-date=25 January 2018|archive-url=https://web.archive.org/web/20180125015857/http://www.huffingtonpost.co.uk/2015/10/14/gchq-can-monitor-communic_n_8292390.html|url-status=live}}</ref> The Wilson Doctrine merely acts as a [[political convention]].<ref>{{cite web|url=http://www.ipt-uk.com/docs/Caroline_Lucas_JUDGMENT.pdf |archive-url=https://web.archive.org/web/20160317124014/http://www.ipt-uk.com/docs/Caroline_Lucas_JUDGMENT.pdf |archive-date=2016-03-17 |url-status=live|title=Approved Judgment|publisher=Investigatory Powers Tribunal|access-date=24 January 2018}}</ref>