In many places around the world, Human Rights Watch exposes abuses of state power and the absence of effective accountability over the agencies of the state – both factors highly relevant to the issue we are discussing here tonight.
Under the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA), the UK is obliged to respect the right to private life and any interference with this right must be “in accordance with the law” and “necessary in a democratic society”. It must also be proportionate and non-discriminatory. It is hard to reconcile these principles and legal duties with what has been revealed by the Guardian about the actions of GCHQ.
I want to focus my brief remarks around three issues:
-The UK government’s response to the revelations made by the Guardian and others
-The key unanswered questions
-And what should happen now
The Government’s Response
In the period immediately after the Guardian first published the details of the Tempora program, the UK government’s line was essentially that there was nothing to explain and nothing to account for. William Hague made a short and unsatisfactory statement to the House of Commons on June 10.
He said that the UK government would not comment on “the detail of intelligence operations” or “confirm or deny any aspect of leaked information”. But he was being asked to comment on the nature, scale and depth of data interception and collection, not to share operational details.
Hague said that that UK intelligence agencies practice and uphold UK laws at all times, even when dealing with information from outside the UK. He also said that the current legal framework that applies to the intelligence agencies – as set out in the Intelligence Services Act of 1994 and the Regulation of Investigatory Powers Act (RIPA) of 2000 - is robust and has not been breached. It is welcome that the Foreign Secretary says that the agencies uphold UK law. But it begs several questions. How would we know if they weren’t? Do we have oversight mechanisms that are actually able to make this assessment? In addition, given the complexity of the drafting in RIPA and the interplay between RIPA and other pieces of relevant legislation, is it clear what is permitted and what is not, what is legal and what is illegal?
Hague went on to commend the strong framework of democratic accountability and oversight governing the agencies. Yet there is a growing body of opinion that questions the efficacy of oversight and favors strengthened mechanisms, above and beyond the recent changes to the powers of the Intelligence and Security Committee. In his statement, Hague paid tribute to the ISC members and its predecessors. But the ISC in the last Parliament wrongly found no evidence of UK involvement in rendition. We shouldn’t forget that it was Human Rights Watch that exposed the UK’s role in rendition to torture in Libya, not the ISC.
But despite the weaknesses in this statement, the broad points made by Hague on June 10 essentially remain the UK government’s position, although the government has adopted a more aggressive tone in recent weeks.
So what are the key unanswered questions?
These have not changed much over the last four months. We should keep asking them. Perhaps parliamentary and public pressure will eventually yield some answers.
Can the government tell us on what scale it has been intercepting and collecting the data of people in the UK and abroad and what is the justification for this, as opposed to more targeted measures against those who would do harm?
Can they tell us how intercepting and collecting communications data from millions of people in the UK is consistent with the UK’s national and international human rights obligations to uphold the right to privacy? Is the assertion of legal compliance wishful thinking or based on actual independent legal opinion?
Can they tell us who knew about the Tempora program? It has been suggested that it was never discussed in the cabinet or by the National Security Council. Following last week’s debate in Westminster Hall, it is also unclear to what extent the ISC was informed or aware of what was going on.
The Tempora program implicates the legitimate privacy interests of millions of people outside the UK who pose no security threat. Can they tell us what is the legal basis and constraints under which GCHQ has intercepted and collected data on the citizens of other countries, and what safeguards protect their privacy? Do they – do we - think that the existing oversight mechanisms really have the necessary independence, rigor and determination to prevent the abuse of surveillance powers?
Lastly, what about the foreign policy implications of these revelations? The UK has been a particularly active member of the Freedom Online Coalition, a group of governments that have made strong public commitments to protect human rights online. But the UK’s credibility on this issue has surely now been gravely undermined?
So what should happen now?
Last week’s debate in Westminster contained many thoughtful speeches and there appears to be declining support for the government’s hard line that no changes to existing practices are needed. We should build on this. There should clearly be a proper inquiry into the operation of the UK security and intelligence services, to ensure that they can do their vital job of tackling terrorism and crime, but in a way that is proportionate, discriminate, subject to clear process, accountable, and consistent with this country’s human rights and legal obligations.
The ISC is taking forward its inquiry. Perhaps in the light of recent developments and stung by criticism, this body will surprise us and play a more effective oversight role. If not, other options may need to be considered. For example, could the Joint Committee on Human Rights be asked to look at the right to privacy issues raised by recent revelations?
It is also essential that the governing coalition parties – and the Labour opposition - should commit to revise the existing legislative framework that surrounds the work of the intelligence and security agencies, committing in their manifestos to make the necessary changes early in the next Parliament.
No-one disputes that the UK government, like other governments, has a duty to protect national security and prevent crime. But there is a difference between taking steps that are necessary and proportionate to achieve these ends and intercepting indiscriminately the communications data of millions of people in the UK and other countries who are under no suspicion whatsoever.
That is the issue of principle here. That is why the UK government’s dismissive response to these revelations is so disappointing. And that is why we should continue to press for a review and revision of the current regulatory framework: to keep us safe, but to safeguard our fundamental liberties, too.