So which prime minister and foreign secretary were responsible? Given that the Home Office later thought a full-scale parliamentary act was necessary to take similar powers for the police — the communications data bill — just what was the legal basis of GCHQ’s activity?
The GCHQ Tempora program was trialed in 2008. The decision might have been taken as early as 2006, which would put it just within the purview of then-minister of foreign affairs Jack Straw (June 2001 to May 2006). It is more likely to have been other former ministers of foreign affairs: Margaret Beckett (May 2006 to June 2007) or David Miliband (June 2007 to May 2010).
If it was Miliband, this may well explain why the Labour frontbench has been so muted. Though current Labour party leader Ed Miliband has been happy to admit past Labour errors on newspaper magnate Rupert Murdoch and other matters, his appetite for political fratricide may be sated.
And the responsible prime minister? Former British prime minister Tony Blair resigned in June 2007, so either he or former prime minister Gordon Brown could be responsible. Was the Labour Cabinet told? Or was this an extraordinary instance of prime ministerial authority and the UK’s “elective dictatorship?” These questions are of constitutional importance, but none of them has been asked, let alone answered.
If parliament is condemned to behave like the executive’s poodle, people will have to rely on the law. Liberty is taking a case to the Investigatory Powers Tribunal, but GCHQ has boasted to its US counterpart that it has never lost a case before that body and that its compliance regime is substantially more lax than that of the US.
That leaves judicial review. As former director of public prosecutions Lord Macdonald, QC says: “The question is whether the government had proper lawful authority for what they have done. It is potentially a subject for judicial review.”
There is an overwhelming democratic interest in testing whether that decision was ultra vires — outside legal powers voted by parliament.
There is normally a three-month time limit with judicial review, but that should not be an impediment when the powers continue to be used and when the original decision was secret. The Snowden revelations show an executive arm snatching exaggerated powers with no public debate or parliamentary approval. For the sake of citizens’ freedoms, but also Britain’s democracy, this needs to be put right.