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The Missing Surveillance Debate: How Mistrust Undermines Our Civil Liberties

30/06/2014 13:09 BST | Updated 30/08/2014 10:59 BST

Last week the Home Secretary once again advanced the argument for granting the intelligence services new powers, reigniting the debate over the proper limits of state surveillance. It's a familiar contest made more important by the legacy of the Snowdon intelligence leaks, and more urgent by recent events Iraq.

Theresa May argues that the threat from ISIS is 'real and deadly', and that the need to ensure the effectiveness of the security services is 'a question of life and death.' Of course, May is hardly the first to worry about this. The proper limits of the intelligence service's powers was being debated before the Great War, when another Conservative Home Secretary, Winston Churchill, introduced the Home Office Warrant system to allow MI5 to more easily read the letters of suspected German spies. The Post Office then made protests familiar to discussions today, saying it was 'very undesirable to shake public confidence in the security of the post'. The debate over privacy and security endures because it is fundamental to a free and safe society, the preservation of which is the highest responsibility of government. The heavy burden shouldered by the Home Secretary should not be underestimated.

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While May might wish to frame the debate as a modernisation of existing intelligence capabilities for the digital age, the consensus among communications experts and civil rights activists is that the powers being proposed would in reality grant sweeping new powers to the state. At the same time, the potential threat that recent ISIS successes in Iraq poses is certainly very real, and former MI6 Director Richard Barrett is of course right that if a large volumes of self-styled Mujahedeen returned to the United Kingdom, it would place a significant burden on an already overstrained intelligence community. This contest has already crystallised into the typical format. Civil liberties groups emphasise the need to restrain growing state powers, the security establishment drives home the threats we face, and the discussion focuses on the legal and technical limits of what the intelligence agencies can and cannot do.

From the perspective of many Britons, these deliberations are largely irrelevant. This is not because of particular ignorance about the subject matter, or a lack of interest. Indeed, 68 per cent of Briton's are concerned by the way the government collects information about them. It is because of something far more dangerous; a growing doubt which undermines the whole premise of the dispute. An increasingly large number of citizens, rightly or wrongly, no longer believe that the law properly restrains the actions of the intelligence services.

Only two fifths of Britons have confidence that the intelligence agencies can be properly held to account by Parliament. This is not the product of a Snowdon-induced mass hysteria. When specifically informed about the oversight mechanisms that regulate the intelligence services, approximately the same proportion have confidence that the intelligence services are fully accountable. What this means is that the majority of Britons do not have confidence that the law - in this particular, yet very important dimension - can act effectively as a guarantee of civil liberties.

If the public think that the law does not fully and meaningfully define how the intelligence services operate, how can a healthy public debate emerge surrounding their legal restriction?

The lack of public trust in our intelligence services is not an easy problem to solve. To a certain extent, distrust comes with the territory of intelligence: secret activities, organisational opacity, undisclosed methods. But we can do better, and we need to. There are a number of potential reforms that could work to increase trust in the intelligence agencies. The power of the Prime Minister to pre-nominate members of the Intelligence and Security Committee (ISC), the principle oversight body, could be removed. The ISC could be granted greater resources and maintain a permanent body of experts from outside of the intelligence community, to increase its credibility. Threat Assessments could be made fact-based, de-politicised and more publicly evidenced, to reduce the potential for abstract warnings of 'danger' being used for political ends. Even Surveillance Juries - normal citizens selected at random, security cleared and then involved in the oversight process directly - might be considered.

Liberal democracies, more than they rely on any one specific piece of legislation, rely on confidence in the law. The idea that our laws protect our rights and punish those who threaten them binds together the body politic, and that body to its government. That those principles might be undermined represents a very serious threat indeed. It would be naive to think that our often under-appreciated intelligence agencies will ever be completely trusted, given the particular characteristics of the tasks they undertake. In fact, it's probably very healthy that some scepticism always exists. But with a meaningful and pragmatic overhaul of oversight, we might just establish enough trust to validate the activities of the intelligence community, and in doing so allow them to successfully adapt to a changing world.