The report on privacy and security just published by the UK parliament’s Intelligence and Security Committee has drawn mixed reviews. Shami Chakrabarti, leader of human rights group Liberty, was the notable critic, labelling the committee “clueless and ineffective”.
Whatever the views on the details, its findings indicate an unprecedented shift in British thinking on intelligence services.
It has been widely noted that the report insists intelligence services do not seek to circumvent British law in their surveillance work. It suggests GCHQ applies rigorous filtering criteria to the data it seeks out and collects, despite claims that it carries out mass and indiscriminate surveillance on ordinary citizens.
But what has been overlooked is the section of the report that looks to the future. The committee argues the current legal framework for intelligence services is “unnecessarily complicated” and lacks transparency as a result.
They say existing legislation should therefore be replaced with a single act of parliament that would consolidate all regulation of the intrusive capabilities of British intelligence, and ensure tight oversight protocols in line with public disclosure. This amounts to a dramatic shift in thinking.
A history of turning a blind eye
Legislation on British intelligence is still in its adolescence. The intelligence services have spent the majority of their operating lives in a state of official denial, with no laws even acknowledging their existence, let alone govern their activities.
That only changed in 1989, with the Security Services Act – the first law to officially acknowledge security service MI5. In 1994, the Intelligence Services Act was brought in, acknowledging the secret intelligence service MI6 and GCHQ. This was the first time that British intelligence was placed on a statutory footing.
Both acts have attracted criticism ever since. They were seen as adding further protection to the services rather than imposing true transparency on them. Today, the consequences of that lack of transparency are being clearly felt and trust is at a low.
The revelations made by Edward Snowden about the work of British and US agencies gave rise to suspicions of mass and unrestricted surveillance of the digital activities of ordinary people. For almost two years, the intelligence services have been on the defensive against accusations that they can snoop on any communications should they so wish.
This fear is not without merit, as British intelligence is also afforded significant statutory exemptions that provide considerable protection from prying eyes. Most notably, they have a blanket exemption from the rules set out in the 1958 Public Records Act, the Data Protection Act, which controls how people’s information is used by others, and the Freedom of Information Act, which provides citizen’s with access to information about public bodies.
The idea has always been to exclude intelligence activities from the law as much as possible. Where they do come under a statute, the aim is to provide enough flexibility to allow the agencies to discharge their duties.
In from the cold
The legislation being proposed for discussion in the next parliament would be a shift away from the traditional approach and towards a more American style. Legislation would impose stringent and publicly clear parameters on the activities of these largely secretive organisations and an unprecedented level of public transparency.
While the new legislation does not yet even exist in draft form, several things are known about what it may entail. The parliamentary committee recommends listing the intrusive capabilities that are open to the intelligence services. This would, for the first time, create a public list detailing what the intelligence services actually do.
It is also intended that the use of these measures is more tightly regulated by linking each to statutory provisions such as human rights and data protection. The intelligence services would face time restrictions on intrusive monitoring and the period within which they can hold on to data.
While this would bring greater oversight though, consideration must be paid to the idea that intelligence instruments will be blunted. By creating a list of capabilities, the intelligence services will, quite literally, advertise its capabilities to its targets, who can then work to avoid detection accordingly. It is yet to be seen whether our intelligence services can remain as effective as they are in a world where they are forced to tell their enemies exactly what they are capable of.
Of course, this is assuming that the committee’s recommendations are followed, and that whatever draft legislation is produced is actually passed through parliament. While the intelligence services themselves are in no position to resist the proposed changes – they simply operate within the legal architecture created for them – the British government now faces a genuine dilemma over whether or not to make intelligence more transparent.
Sweeping changes along these lines would thrust the intelligence services into the public eye like never before and radically alter the way they discharge their duties. What will remain, though, is the tricky balance that is ever present for an intelligence service in a democratic society. That balance is remaining operationally effective against the threats to the nation while also being accountable and maintaining public trust.