Today, the editor of the Guardian gives evidence to the Home Affairs select committee, as part of the committee’s work on counter terrorism.
Perhaps that might give the committee to question why Parliament learned of much of GCHQ’s activity from the newspaper, rather than from Ministers. Indeed, it seems on current evidence that will remain the case – as the Lords found on the 20th November, when they were told they could not even be informed which law authorised Project Tempora.
Lord Richard: My Lords, of course the Minister cannot go into details on these very sensitive matters. We all accept that. However, for the life of me, I do not see why she cannot answer a straightforward Question about which Minister authorised the project and why the existence of the project was not disclosed to the Joint Committee on the Draft Communications Data Bill. These are not sensitive issues. They are pure matters of fact, surely capable of being answered.
Baroness Warsi: It is interesting that the noble Lord interprets it in that way but I think he would also accept that it would be inappropriate for me to comment on intelligence matters, which includes any comments on the project.
We have been repeatedly assured that it would be unacceptable for a central database of communications to be built – both by those in Government and those seeking to be.
Then Home Secretary Jacqui Smith in 2008 said: “There are no plans for an enormous database which will contain the content of your emails, the texts that you send or the chats you have on the phone or online.”
This was reaffirmed in a foreword to a consultation on Communications data in 2009:
“I also know that the balance between privacy and security is a delicate one, which is why this consultation explicitly rules out the option of setting up a single store of information for use in relation to communications data.”
Such a database was also ruled out by the Conservatives,with then Shadow home secretary Dominic Grieve, saying: “Putting all this data into the hands of the government will threaten our security, not make it better.” Liberal Democrats home affairs spokesman Chris Huhne said the database would be “an Orwellian step too far”.
The Guardian has exposed that what GCHQ has been doing is exactly what Parliament has, with cross-party unity, said it should not. Namely, create a single database of data. Tempora extracts and processes data from fibre optic cable communications, storing content for three days and metadata (communications data) is kept for 30 days. By last year GCHQ was handling 600m “telephone events” each day, had tapped more than 200 fibre-optic cables and was able to process data from at least 46 of them at a time.
Such a disclosure, exposing a failure of Parliamentary oversight and of agencies acting against the wishes of democratically elected MPs is absolutely in the public interest.
It is not surprising that this has been greeted by criticism. Such a response is not new, nor is the Whitehall backlash against those who publish information about the intelligence services. In 1979, the New Statesman published an article disclosing the existence of GCHQ, and the journalists were prosecuted under the Official Secrets Act in what became known as the ABC trial.
Following the collapse of the ABC trial, in an editorial entitled ‘Interests of the State’ in 1978, the Spectator wrote:
“Why then were the prosecutions brought? Perhaps it IS unfair to speculate either about the motives of the Attorney General and the Director of Public Prosecutions, but it seems reasonable to conclude that ABC’ were prosecuted pour encourager les autres. This s the traditional use, or part of it, of the Act. Some People have, of course, been prosecuted under the Act for activities which could fairly be described as espionage, or treason. Others have merely offended the authorities, and have had the book thrown at them. There is a long and dishonourable tradition of prosecuting persons who are plainly not spies or traitors, though they may be irritating political dissidents.”
On the Official Secrets Act, the magazine had this to say:
“Not only are its catch-all provisions a real inhibition on the freedom of the Press, but the whole operation of the Act, with countless thousands of public servants, many of them entirely obscure, obliged to sign the Act, and with almost all official documents being technically unauthorised, is a living denial of open government…… The present system of guarding those interests and protecting those secrets is ludicrous and ineffectual.”
Or take the case of The Daily Express, up against then PM Harold Wilson, was accused of breaching national security in an article by Chapman Pincher, which disclosed that cables were being shown to the security services. Then, the Express editor decided that the general argument about national security was not convincing, and published.
We turn again to the Spectator in 1967, during the episode:
“The D Notice system—the ‘D’ is an abbreviation for `Defence’—derives in essence from the Official Secrets Acts of 1911 and 1920. These Acts are arguably the most restrictive and repressive measures of this character in the entire Western world. As a former Secretary to the Cabinet remarked, hardly concealing a note of triumph, they make the disclosure, for what- ever purpose, of any unauthorised official in- formation, however obtained, a criminal offence. Nor are governments averse to widen- ing their scope and using them for purposes for which they were never intended, as the Con- servative government so disreputably demon- strated in the case of the Wethersfield nuclear disarmers. If the Acts were applied in their full authoritarian rigour almost no information of any value could ever be published in this country at all.
“The system, however, tends to work in favour of authority—and also in favour of the less enterprising newspapers.”
The D-Notice system is still with us, and was a part of the Guardian’s Snowden reporting.
The list of incidents where the media have embarrassed Government and the security services will continue to grow, whether exposing a dodgy dossier, unlawful rendition, incompetence or wrongdoing. The cry of national security will not.
Today we have an opportunity to hear just how free the press is to hold our security services to account. That is something that should be of paramount interest to us all, journalists or not.