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The Intelligence Services Act and Regulation of Investigatory Powers Act are broad enough to allow all manner of operations
The powers that allow Britain's intelligence agencies to spy on individuals, including foreign diplomats, were set out in the 1994 Intelligence Services Act (ISA). They were framed in a broad way to allow those involved in espionage to conduct all manner of operations with ministerial authority, and the types of techniques used during the G20 summit four years ago suggest a creativity and technological capability that Ian Fleming could only have dreamed of.
This is captured in section 1 of the ISA, which says the agencies operate "in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty's government in the United Kingdom; or in the interests of the economic wellbeing of the UK; or in the support of the prevention or detection of serious crime".
When it was published, the ISA was treated with a great deal of suspicion by other countries in Europe, who were particularly concerned that the inclusion of the economic wellbeing (EWB) clause could be used to offer British companies intelligence that might give them a competitive advantage over rivals. The precise definition of "national security" is also open to interpretation – because there doesn't seem to be any official definition of what it means. All of which gives Britain's intelligence agencies a large umbrella under which to hide when they are seeking to conduct classic espionage operations.
After GCHQ, MI5 and MI6 were given their remit through the ISA, the Regulation of Investigatory Powers Act (Ripa) gave the agencies more precise tools to gather intelligence through techniques such as targeted interceptions.
Under Ripa, the director general of MI5, the chief of MI6 and the director of GCHQ are among 10 very senior officials who can apply for a warrant to either the foreign or home secretary.
And the grounds on which they can do this are almost identical to those in the ISA – including pursuit of national security and EWB. Papers show that EWB was used to justify spying on Turkish and South African diplomats.
A briefing document prepared by GCHQ which has been seen by the Guardian does not say explicitly that Ripa or Isa authority was granted for the targeting of other diplomats at the full G20 meeting in April 2009, or the subsequent meeting of finance ministers five months later, but it seems inconceivable this was not sought, given the fact that the prime minister of the time, Gordon Brown, appears to have made the summit an important strategic priority. In turn, the document shows GCHQ intended to do all it could to further the prime minister's policies.
"A key focus for the prime minister is the G20 heads of state meeting in London on 2 April," the document explains.
"He is determined to use the meeting to make progress on two objectives. To co-ordinate the global economic recovery to avoid the recession becoming a depression; to agree a way forward on strengthening global economic governance and achieving reform of international financial institutions. The GCHQ intent is to ensure that intelligence relevant to HMG's desired outcomes for its presidency of the G20 reaches customers at the right time and in a form which allows them to make full use of it."
GCHQ's "customers" are ministers and its two sister agencies, MI5 and MI6.
The agencies seem to have pulled out all the stops – and had some help from America's National Security Agency (NSA) too. Mobile phones were targeted and emails intercepted on smartphones.
Though the 1961 Vienna convention "protects" diplomatic communications but does not make clear whether that preclude surveillance, MI6 helped to "set up" fake internet cafes to secure information from diplomats and officials who might have assumed these sites were a sanctuary from state snoopers.
There is no evidence of intervention by the interception of communications commissioner, who is responsible for overseeing the intelligence agencies and the legal framework which surrounds them.
In 2009 1,706 warrants for interceptions were approved by ministers. Sir Paul Kennedy said in his annual report he "continued to be impressed with the quality, dedication and enthusiasm of the personnel carrying out this work.
They possess a detailed understanding of the legislation and are always anxious to ensure that they comply both with the legislation and the appropriate safeguards."
He explained that "where errors had occurred, they are errors of detail or procedure and not of substance", and that as he was a former judge, he hoped the public felt "reassured that their activities are overseen by an independent person who has held high judicial office". The G20 summit is not mentioned at any point on the 22-page summary.