The UK has forsaken liberty amid a growing surveillance state

Who sanctioned the snatching powers of the secret state? The matter is ripe for judicial review and Britain’s traditions can lead when politicians fail

By Chris Huhne  /  The Guardian

Wed, Oct 23, 2013 - Page 9

The revelations by former US National Security Agency (NSA) contractor Edward Snowden revelations in the Guardian showed the most catastrophic secret accretion of power by the British state in peacetime history, yet the reaction in Britain — the island that invented liberty under the law — has been beyond parody. The three lines of defense of British freedoms — the press, parliament and the law — have so far bent the knee to the secret state.

Newspapers that are meant to defend freedom have argued instead for the investigation of the Guardian, while the House of Commons has proved itself an overblown electoral college from which the executive is selected, rather than an independent legislature with clout to hold ministers to account.

The Government Communications Headquarters (GCHQ — the intelligence agency responsible for providing signals intelligence) has the capacity to scoop up and store the e-mail and voice traffic of the entire population of Britain, regardless of whether they are suspects or have ever committed any crime. GCHQ says it only looks at the suspect messages, but what are its checks? Given its inability to keep its own secrets, how credibly can it promise to keep those of others?

END OF PRIVACY

The invasion of privacy is breathtaking. The defense that you have nothing to fear if you have nothing to hide is as outrageous as it was when made by the totalitarian states. Citizens may — for good or bad reasons — want their activity to be private without in any way being illegal. Privacy matters.

Not only were the British Cabinet and National Security Council, which oversees all issues related to the UK’s security, not told of this program, neither was the committee set up to scrutinize the communications data bill (proposed by the Home Office to take the same police powers that GCHQ already exercised). We know of the Home Office’s disingenuous deception from a pair of former chief whips — the Conservatives’ David Maclean (now Lord Blencathra) and Labour’s Nick Brown. These are not lightweight players and they were shocked.

Where were the watchdogs? After huffing and puffing about how everything was in order, the Commons Intelligence and Security Committee has at last announced an inquiry. We can write its conclusions. It will give GCHQ a clean bill of health and argue for some modest improvements in controls.

HANDPICKED OVERSIGHT

How do I know? Look at the composition of the committee, which is handpicked by the prime minister and only rubberstamped by the Commons. All its MPs are paid-up members of the security establishment. Former British foreign minister Sir Malcolm Rifkind is chairman, even though he had executive responsibility for the agency he is now overseeing when he was minister.

The Home Affairs Select Committee under chairman Keith Vaz has succumbed to pressure from rightwing Conservative Party MPs to investigate not the disastrous state invasion of privacy, but the behavior of the Guardian in bringing it to people’s attention. And the Joint Committee on Human Rights — which includes peers (members of the UK’s system of honors) as well as MPs — has stayed bizarrely silent even though state aggrandizement at the expense of individual freedom falls squarely in its remit.

RESPONSIBILITY

Surely the first question is who signed off this program? I discount the possibility that GCHQ went rogue. Its head at the time, Sir David Pepper, was a bureaucratic stickler. Cabinet Office Permanent Secretary in charge of intelligence Sir David Omand would also have insisted on ministerial sign-off.

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.

LIBERTY’S ROOTS

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.