Shortly after Lord Macdonald, the former director of public prosecutions, condemned the way the new head of MI5 had dismissed calls for greater scrutiny several senior figures involved in the scrutiny of the draft communications data bill have said that Britain’s spy agencies may be operating outside the law in the mass internet surveillance programmes uncovered by Edward Snowden.
Lord Strasburger, a Liberal Democrat member of the joint committee, has also said: “You have to wonder why, even in the secret sessions, none of the witnesses mentioned Project Tempora … It was highly relevant to our work and I believe that deliberate failure to reveal it amounts to misleading parliament.”
The chairman of the Joint Committee on the draft Communications Data Bill, Lord Blencathra, has said that he is concerned and annoyed that the committee was never told about GCHQ’s mass surveillance capabilities. He said: “The committee was not made aware at all of anything relating to Prism or Tempora, or even given any hint. We had a joint memo from MI5, MI6, GCHQ setting out why in their view the bill was essential, the usual stuff you get on terrorists, paedophiles, organised crime. But there was no hint whatsoever they were engaged in [these] programmes. I certainly feel we were given less information than the committee should have had. I am not suggesting we were deceived or misled but someone or some people were very economical with the actuality. I think we would have regarded this as highly, highly relevant. I personally am annoyed we were not given this information.”
For such senior parliamentarians to question if the oversight committee for legislation was not given the full facts – even in closed session – is a remarkable and troubling development.
These concerns have also been raised by Nick Brown MP, a former Labour cabinet minister and a member of the Joint Committee, who has warned that GCHQ and other agencies appear to be undertaking mass surveillance without parliament’s consent. Mr Brown has said that there are “uncanny” similarities between the GCHQ surveillance programmes exposed by Edward Snowden and the proposals in the draft Bill. He said this “looks very much like this is what is happening anyway, with or without parliament’s consent”.
Lord Blencathra is absolutely right to feel “angry” about the lack of “actualities” that was presented to the committee. It was almost a year ago that the Home office made repeated statements about how their capability to collect intelligence from the internet was flawed, and how the draft communications data bill was absolutely necessary to protect UK citizens. National security – largely the remit of GCHQ, MI5 and MI6 – was cited as the reasoning for the legislation, yet it appears GCHQ was able to access far more data than the bill provided for.
Indeed, the draft bill included provision that “nothing in this Part authorises any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system.” It would appear Temprora does involve such interception.
Lord Blencathra has also described his “deep unease” about programmes that allow the security services to examine the internet activities of British citizens without the consent of parliament. He also commented that the public have a right to know that their internet data might be “lifted” and shared with US intelligence services – and that MPs should either vote to approve surveillance programmes of put a stop to them: “I do not want our national security apparatus operating in what seems to me to be outside the law or on the very edge of the law. Or if it is just within the law, certainly without parliament knowing. Many of us are happy to have certain information collected by the state but, by God, we’ve a right to know the parameters under which they are operating.”
Lord Blencathra also dismissed the view of Sir David Omand, the former head of GCHQ, who said the leaks were the most “catastrophic loss to British intelligence ever”, describing the comments as “utter rubbish”. This echoes the views of Nigel Inkster, former deputy chief of MI6, who said “I sense that those most interested in the activities of the NSA and GCHQ have not been told very much they didn’t know already or could have inferred.”
These are just the latest of a growing number of senior figures calling for greater scrutiny of the scrutiny and intelligence agencies; a call that we and several other organisations have taken to the Prime Minister. Nick Clegg has said that there is a “totally legitimate debate” to be had regarding new technologies deployed by GCHQ and other intelligence agencies. Perhaps, we may be getting to a point where we can have real, informed debate in this country about how our agencies operate.
In the US, the director of the National Security Agency, Gen. Keith B. Alexander, said: “Given where we are and all the issues that are on the table, I do feel it’s important to have a public, transparent discussion on cyber so that the American people know what’s going on, and in order to have that, they need to understand the truth about what’s going on.”
Accordingly, the NSA has now declassified legal opinions, is publishing even more data about what it does and there are now three separate proposed pieces of legislation in the US and a Presidential review, not to mention the series of public hearings Congress has held with senior figures from the NSA, FBI and others.
None of this endagers national security. It is possible to have a debate about the scale of surveillance without compromising technical details of capability.
If Parliament was misled – or at the very least not given the full picture of what current legislation is being interpreted as permitting – then those responsible must be held to account. More importantly, Parliament must not abdicate itself of responsibility for ensuring we have a legal framework that is fit for purpose and that mechanisms exist to ensure legislation is adhered to.