David Davis writes for the Sunday Times about the lack of transparency and oversight of the security services


As published in the Sunday Times:
The one thing our rampant spooks won’t find is our trust

It is rare for the Investigatory Powers Tribunal to find against the security services. Despite being set up in 2000 and hearing hundreds of complaints, it upheld one for the first time in February. So it was highly significant when it found against GCHQ again two weeks ago.

The tribunal was considering the complaints of a number of civil liberties groups and human rights organisations, including Amnesty International. It found that the communications of two of the claimants, the Egyptian Initiative for Personal Rights and the Legal Resources Centre in South Africa, had been intercepted by GCHQ and unlawfully retained beyond the permitted period. This was spun by the government as a procedural infraction against two minor organisations — an oversight, rather than anything more malicious — and, as such, there was little coverage or public interest.

But the story does not stop there. Late last Wednesday night, the tribunal sent a short email to correct its original judgment. It was not the Egyptian Initiative for Personal Rights that had its communications unlawfully retained. It was Amnesty International. Without this correction, Amnesty would not even have known its communications were being intercepted, let alone unlawfully retained.

Because of the secrecy surrounding the tribunal’s work, there are few details in its judgments. This exemplifies the problem with secret courts where only one side gets to examine the evidence. When the other side cannot see the evidence, or even the full reasoning behind the judgment, there is no opportunity to challenge the veracity of the court’s decision.

The government always responds to inquiries in this area with the standard line that it does not comment on intelligence matters. I have asked several such questions of the government, and have always received the same response. Indeed, I have submitted a number recently, asking which statute is used to authorise surveillance in instances where the courts have confirmed it occurred.

There is a serious problem with the accountability of the security services to parliament if they won’t even state under which statute they are authorised to act. How can we hold them to account, or even attempt to do so, if even this basic information is withheld? What possible security justification can be proposed to warrant such evasion?

This situation is unlikely to change soon; the government is dragging its heels over, and may decide to oppose, the recent recommendations from the independent reviewer of terrorism legislation to place the warrant authorisation system of surveillance under judicial, rather than ministerial, oversight.

The Amnesty revelation is not the first time the agencies have been caught out recently. In February the tribunal decided that the regime governing the sharing of mass personal intelligence between America’s National Security Agency and GCHQ had been unlawful for seven years. Later that month the government admitted the regime under which UK intelligence agencies monitored conversations between lawyers and their clients, in breach of the longstanding principle of professional legal privilege, was unlawful. And it was revealed last year that the police were using surveillance powers to identify journalists’ sources.

How can people expect a fair trial when privileged communications with their lawyers are intercepted by the government? How can journalists hold the government to account when the identities of their confidential sources are stolen from them? And how can organisations such as Liberty and Amnesty expect people to come to them for help if they know the security services are listening?

When excessive surveillance is undermining justice and the freedom of the press, it is time for the government to rethink its approach. There are situations where privacy, especially privacy from the government, is vital for the rule of law and functioning of modern society. Our intelligence agencies’ mass surveillance programmes indiscriminately trample on this privacy.

This is all part of larger concerns about the oversight and accountability of our agencies’ surveillance capabilities. As the most recent tribunal judgment showed, the agencies can collect vast reams of communications without our knowledge and it will be considered “lawful”. Authorisation is granted by a minister, with numerous warrants a day requiring attention; the home secretary recently admitted that this constituted a significant part of her workload, surely an inefficient use of her time.

If the government insists on extending our agencies’ surveillance powers and resurrecting the snooper’s charter then first it has questions to answer. The first is what could possibly be the security justification for snooping on respected human rights groups?