A historic opportunity to change how we spy

This is about more than bugging allied foreign leaders – it’s about public accountability

Donald Macintyre
Thursday 31 October 2013 01:00 GMT
Secrets within these walls: the MI5 headquarters at Millbank by the Thames
Secrets within these walls: the MI5 headquarters at Millbank by the Thames (Rex Features)

Next week’s questioning, by the parliamentary Intelligence and Security Committee, of the heads of MI6, MI5 and GCHQ is important, even historic. It’s the Committee’s first open session, and the first time the intelligence chiefs will appear in public together to discuss their work. Since the hearing follows the latest Edward Snowden revelations, there will be plenty to ask “C” – Sir John Sawers – and his colleagues about.

The public hearing will not cover “ongoing operations”. So will it fill in the gaps in David Cameron’s answers at the EU summit, at which France and Germany expressed “deep concerns” about US National Security Agency activities abroad? (And – in a coded reference to “trust” between “European countries” – concerns about Britain’s own role in international surveillance.)

We know from those responses that Cameron’s own phone had not been bugged. There were also questions he didn’t answer. Did he reassure his EU partners that British intelligence – and GCHQ – “was not part of, nor knew about” the high-profile bugging cases which have come to light? Had his Government seen intelligence gleaned from the Merkel phone-taps?

But this is about more than bugging allied foreign leaders. You need not doubt Cameron’s repeated assertions about the security services’ thwarting of murderous plots against British citizens to realise that the Snowden revelations pose serious issues of public accountability. To take one random example: the broad remit in the 1994 Intelligence Services Act says they also operate in the “the interests of the economic wellbeing of the UK”. How is that applied in the era of high-tech mass surveillance in relation to everyone from trade union officials to captains of industry, here and abroad? Maybe this is a minor point, maybe not. But how would we tell?

In tackling the accountability question, Cameron repeatedly cites the ISC. Founded, to his credit, by John Major in 1994, this was indeed an advance in oversight. But how far it amounts “to proper parliamentary scrutiny”, as Cameron claims, is highly doubtful.

The ISC’s defects to date are clear. In its 2003 post-Iraq-invasion report it ducked the crucial question of whether the intelligence case justified war. But an even more glaring setback was its 2007 enquiry into whether the British had co-operated in the rendition of US detainees. It accepted the then Labour government’s contention—which David Miliband was obliged a year later to retract – that territory had not been used for rendition flights. It also accepted the contention that the UK had not known about the torture of the Ethiopian born Binyam Mohamed – subsequently shown in a 2009 High Court case to have been known about by UK intelligence officers, and in an interrogation “facilitated” by them.

It may not have been the ISC’s fault that 42 relevant documents on rendition were withheld from it. But it was unfortunate that its then chairman, former Labour Foreign Office minister Kim Howells (the convention is that the ISC chair should be from the party in power) confidently insisted that the committee had “never been denied any evidence from the agencies.”

The impression, fair or not, that the ISC had been unduly influenced by the executive, is compounded by the way the committee is appointed, namely by the Prime Minister. Like Cameron, the current ISC chairman, former Foreign Secretary Sir Malcolm Rifkind, has made much of the recent “strengthening” of the ISC’s scrutiny. But only in name will the committee be appointed by Parliament, since its members will first to be nominated by the Prime Minister. He “consults” the Opposition leader but that serves mainly to reinforce a cosy pact between them on intelligence issues. However imperfect, the more powerful US Senate and House intelligence committees are, at the very least, answerable to Congress and not to the administration.

Which somewhat undermines William Hague’s statement earlier this year that Britain enjoys “the strongest systems of checks and balances for secret intelligence anywhere in the world”. And may also explain why documents leaked to The Guardian quote a GCHQ legal adviser as briefing, by contrast, that “We have a light oversight regime compared with the US”, adding that the ISC “have always been exceptionally good at understanding the need to keep our work secret”.

In 2010, the Labour MP Tony Wright’s cross-party committee on Commons reform unanimously recommended that the ISC chairman be elected by secret ballot of all MPs, as most select committee chairmen now are. The proviso is that each candidate would have the prior consent of the PM. This would meet the argument, however theoretical, that MPs might be choosing a chairman who was a security risk. But it would make the chairman truly accountable to the Commons which had elected him, or her.

As the Tory Treasury select committee chairman MP Andrew Tyrie, a fierce campaigner both for parliamentary reform and for successive governments to come clean about rendition, has put it: “The Wright proposal does not involve any risk to national security... Given the collapse of confidence in the ISC after its failure on rendition, a reform of this kind is the minimum required.”

The Wright reform would not magically impose accountability. But it would be a significant if modest step towards “proper parliamentary scrutiny”. Next week’s public ISC hearing will be watched with great interest. But it’s unlikely to provide a satisfactory answer, in respect of the British security services, to the age-old question: “Who will guard the guardians?”

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