Through the one-way looking glass they see us, we don't see them

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The Independent Online
"Transparency" is a lovely word. It's a pretty alluring political concept, too. Even in Britain, the last Western society in which official secrecy remains the first principle of state, there is to be more open government. Somewhere down the line, a Freedom of Information Act is on New Labour's agenda.

It can't come too soon, because transparency in this country is more like a one-way mirror. We, the subjects, are getting more transparent all the time. They, the rulers and employers, use technology to know more and more about us and what we do. But they stay dark.

We are coming to resemble the Glass Woman of Dresden, in the German Hygiene Museum, whose innards can be inspected by anyone - you push a button and the appropriate organ lights up and shows you what it is doing. But those rulers still keep their grey suits and navy-blue cardigans on. True, a button gapes open now and then. I am aware, since last week, that the deputy director of MI5 is the Honourable Eliza Manningham-Buller. Not exactly reassuring, given her father's way with civil liberties when Attorney- General in the 1950s - a bit like learning that Stalin's daughter had become Brezhnev's deputy director of the KGB. And not exactly a big deal in terms of information, either.

Anyone who works in a modern office is aware that its computer system is insecure. A decade ago, a personnel manager caught sifting waste-paper bins for disloyal thoughts would have been fired, to a gale of jeers and laughter. Today, a human resources director is expected to use "override access privilege" to keep the staff's private correspondence and memoranda under constant surveillance - and everyone submits. When this paper was launched, eight years ago, a selection of bugging devices was found in the new office, apparently put there by a rival newspaper tycoon. This was treated as a compliment rather than an outrage.

Given this one-way nature of "transparency " - they see us, but we can't see them - what sort of welcome do the proposals for a new police bugging code deserve? Two cheers, certainly. The very fact that they have been so widely circulated for comment, especially to unofficial civil-rights groups, is a big step forward. So is Labour's (belated) recognition that the Police Act, an unpleasant piece of Tory legislation, had civil-rights implications which made amendment urgent.

The central idea is not just to regulate this sort of covert surveillance by law. It is to put it under "independent oversight" - a hierarchy of judge-commissioners who would consider applications by chief constables to bug homes, offices or hotel rooms. The commissioners would also deter the use of listening devices which infringed the confidentiality of doctors, ministers of religion, lawyers or journalists.

But with the "independent oversight" comes a new, distinctly European way of weighing up applica- tions to bug. The old criterion in such matters has been whether it would be "reasonable" in the circumstances to allow an authority to do what it wanted: the great English principle of "Wednesbury Unreasonableness". This principle has been held to govern judicial review of executive decisions for half a century. It derives from a 1948 judgment on whether the city fathers at Wednesbury were or were not reasonable to forbid children to go to the movies on Sundays. Anyway, the new bugging code means that grand old Wednesbury has given way to a new-fangled, continental "Test of Proportionality".

Here, the judge does not have to decide whether the executive must have been as mad as a hatter to make so unreasonable an order. Instead, the commissioner is required to weigh up the quality of the evidence supporting a police application to bug, and then conclude whether the proposed action is proportionate to it. Is this a death-blow to the insular majesty of English law? As a layman, I can't think so. But lawyers are steaming up their spectacles about it.

The new code is worth cheering for these innovations. But it does not apply to all bugging everywhere. Police telephone tapping and vehicle bugging , for example, continue to be regulated by the Interception of Communications Act (1985), which only requires the police to get a warrant from the Home Secretary. There were 1,073 such warrants issued last year, as opposed to 2,350 warrants for the covert bugging by police or customs of homes, offices, hotels and vehicles. Neither does the code apply to MI5, the Security Service, whose operations are now authorised by the 1989 Security Services Act. Since the end of the Cold War, MI5 has pushed ambitiously into "the war against organised crime", and covert listening devices are certainly among its favourite tools. MI5, too, must apply for warrants from the Home Secretary, but figures for such operations are not published.

In other words, the code leaves a lot of state eavesdropping without independent oversight. And it does not cover technologies that allow a microphone to record conversations from outside a room. Using window- panes to transmit sound-waves, for instance, became common practice during the Cold War.

Meanwhile the Germans are also preparing new bugging laws against organised crime. Panels of judges will decide on each application. But German legislators face an extra test that Britain does not have: a written constitution guaranteeing human rights. Article XIII states: "1) The dwelling is inviolable; 2) Searches may only be authorised by a judge or in case of danger by other organs provided for by law..." This means that there will have to be a constitutional amendment before "intrusive surveillance" can become legal. I would be happier if we had our liberties as well barricaded as that.

And, in the end, should we feel entirely cheerful that the police will be able to spy on us with the full blessing of law and statute? Never mind the minor blemishes and loopholes in this draft code. Where is the quid pro quo? If they can see more of us, when do we get to see more of them?

We can welcome this code's attempt to limit arbitrary state action by setting the opinion of lawyers above that of policemen - a sort of ghostly constitutionalism. But too much gratitude would be dangerous. The late EP Thompson wrote that "civil rights will always place obstructions in the way of speedy executive action, and they should do so". That is not a call for better laws. It is a call for more aggressive citizens.

Britain is still a mildly insubordinate society, whose attitude to authority is prurient rather than awestruck. It is also the most cyber-proficient, wired-up society in Europe at the individual level. This is a healthy combination. It ought to mean the emergence of a hacker culture which enjoys spying on its own bureaucracy. It ought to mean a widespread understanding that a "rights-based" democracy in the 21st century requires the conquest of information by the people, for the people, from the state.

This is very specially a British problem. The antique tradition of government here is that authority flows from top to bottom, not the other way round. With that survives the belief that status is defined by secrets, that public information is not a right but a trickle-down privilege.

That is why transparency would mean quiet revolution in this country. When "we" can finally see "them" clearly, they will lose their power. How many readers remember Bob Dylan's whining voice making just that point?

"You're invisible! You got no secrets / to conceal! How does it feel / to be on your own...?"