One of the leading experts in UK surveillance law was “unfairly” refused security clearance for a senior role overseeing the intelligence services after MI5 raised “serious reservations” over his former associations with privacy campaigning groups.
Eric Kind, a visiting lecturer at Queen Mary University London specialising in criminal justice and surveillance technologies, had been due to become the first head of investigations at surveillance watchdog, the Investigatory Powers Commissioner’s Office (ICPO).
Kind had high-level support from the ICPO and current and former members of the police and intelligence services, including David Anderson, the former independent reviewer of terrorism legislation, for the job.
But the Home Office reversed a decision to give him security clearance after MI5 raised concerns that his work with non-governmental organisations (NGOs) to reform surveillance, meant he was “insufficiently deferential to the sanctity of confidentiality”, it emerged today.
Judges found on 26 March 2021 that the Home Office had failed to reconsider Kind’s application with an open mind, and that the decision not to give security clearance was “effectively prejudged”.
The “whole tenor is of a decision-making process which was designed to appear to tick the boxes”, they said in a 20-page ruling.
Call for independent appeal process
Speaking after the decision, Kind – previously known as Eric King – said he hoped an independent appeals process for those joining oversight bodies would now be put in place.
“Robust independent oversight is essential for democracy and trust in the security and intelligence services. It requires a diversity of perspectives and expertise. That can only be achieved through a fair and impartial vetting process, which the court has found was not provided to me,” he said.
Kind was “insufficiently deferential”
Kind, former director of Don’t Spy On Us – which campaigned for reforms to the UK’s controversial Investigatory Powers Act 2016, known as the “Snoopers’ Charter” – and former deputy director of Privacy International, had been due to become the watchdog’s first head of investigations in 2018.
The Home Office reversed its decision to award Kind developed vetting (DV) security clearance after MI5 wrote to the Ministry of Defence’s vetting unit raising “strong reservations” about his appointment on national security grounds, according to the judgment.
MI5 said it had concerns Kind was “insufficiently deferential to the sanctity of confidentiality and the authority and knowledge of those charged with protecting confidence, and the wider public interest”.
“He had associated, and may still associate, with individuals whose outlook and approach increases the dangers posed by inadvertent disclosure,” said MI5.
Vetting U-turn
Kind’s vetting officer initially recommended that he was given DV security for the job. He wrote that Kind’s background in “civil liberties culture”, his many friends who pursue civil liberties causes against the government, and his extensive knowledge of surveillance law were “precisely the reason he has been employed”.
Kind had given “credible reasons” at the interview why he would not disclose details of his work to others.
Evidence disclosed in the judgment shows that government vetting officers backtracked following MI5’s intervention.
A senior vetting officer told Kind in a phone call that he did not have any concerns about his honesty during the vetting process, but his refusal of security clearance had “a lot to do with previous work and associations”.
Officials decided to take further representation from Kind knowing that they had already decided that they would not reinstate his security clearance, the judges found.
Government officials wrote: “Our decision will not be received well by ICPO as the subject was targeted for the job because of their background.” Their assessment will require “careful handling” as “it is based on information provided by Thames House [MI5] who IPCO is there to oversee”.
Past links Julian Assange and WikiLeaks
Kind, who was vetted for the job by UK Security Vetting, then an agency for the ministry of defence, disclosed in his vetting form that he had previously spent time with members of WikiLeaks, including founder Julian Assange.
He had worked with WikiLeaks on the release of SpyFiles, which disclosed companies unlawfully selling surveillance technologies to repressive countries, and had visited him at the Ecuadorian Embassy.
“I am not sure whether WikiLeaks’ actions are intended to overthrow or undermine Parliamentary democracy by political, industrial or violent means. But I can understand why someone might take that view of them. Certainly, at the time that was not the purpose of spending time with them,” Kind wrote.
“I cut ties with Julian and WikiLeaks due to their extreme views and failure to confront the criminal charges before Julian. I have haven’t [sic] spoken to him or them for a number of years,” he said.
Kind also told vetting officers that the NSA whistleblower, Edward Snowden, had initially “radicalised” him and made him “more aggressive”.
But he said that he now appreciated the picture was more complicated. The intelligence agencies made “a lot of effort to do things right”.
Vetting officers did not ‘maintain an open mind’
Lord Justice Bean and Justice Jay found that they could not accept that a senior vetting officer had maintained an open mind throughout the vetting process.
There was no national security reason why the senior vetting officer should not have spelled out his concerns to Kind so that he could provide a more focused written response.
“He was aware that the security service was setting out serious reservations rather than a metaphorical blackball,” the judges said.
“It was not beyond the bounds of possibility that the claimant, who is an intelligent and articulate individual, could have advanced a compelling case,” they said.
Call for right to challenge vetting decisions
Katy Watts, a lawyer at NGO Liberty, said the case showed there needed to be a new right to appeal vetting decisions for people applying for posts in regulatory bodies.
“After today’s ruling, there needs to be a right to challenge these decisions to prevent the security services from appointing their own supervisors,” he said. “We should be able to challenge government when it gets something wrong, and we should be confident those who spy on us are held to account by independent experts.”
David Anderson QC wrote on Twitter: “As one of his referees, I am pleased to see that [Eric King], ably represented pro bono by Ben Jaffey QC, has won his case against the refusal of security clearance for the job he was offered by @IPCOffice. The government will not appeal.”
