Security Services: Supervision

Lord Strasburger Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Strasburger (LD)]

My Lords, I thank the noble Lord, Lord Soley, for initiating this important debate. Let me start with two tributes. First, I pay tribute to our security services which do an excellent job of keeping us safe. My second tribute goes jointly to the American whistleblower Edward Snowden and to the Guardian, which has published his astonishing revelations. Both have been brave and highly responsible—all but one of the Guardian articles was approved in advance by the Government—and were it not for them, we and the rest of the world would still be in the dark about what the NSA and GCHQ are up to.

This scandal, for that is what it is, is not the fault of GCHQ, which naturally will grab all the tools it can until it is stopped. The blame falls on those in this country and in America who should have been watching over the spies. In the UK, I am talking about the Cabinet in this Government and the previous Government, the National Security Council and the Intelligence and Security Committee. These bodies are supposed to oversee the security services. It is their job to ensure that the British people are not only safe but that their privacy is protected and that intrusions into our private lives are proportionate and justified. In the case of GCHQ’s Project Tempora, they have all failed miserably.

The only way such highly intrusive powers can be granted in a democracy is with the informed consent of the people, via Parliament. Parliament was certainly not informed about Tempora, nor has it given its consent. We parliamentarians knew nothing about the way GCHQ was helping itself to the private data of every citizen until the Guardian exposed it. The Cabinet, the NSC and the ISC have all been asleep at the wheel while GCHQ ran out of control.

The ISC, which has the most intimate access to the security services and should have known what was going on, lacks resources and the skills needed to understand the technologies being used. It has clearly failed to ask the awkward questions it should have been asking. The ISC must be unfit for purpose, even in its recently modified guise, and there are questions about its independence. Parliament should not have had to rely on a whistleblower to reveal Tempora’s massive abuse of power.

Furthermore, the Home Office has deliberately ensured that Parliament is kept in the dark. Last year, I sat on the Select Committee on the draft Communications Data Bill, under the very able chairmanship of my noble friend Lord Blencathra, and listened to Home Office officials repeatedly justify the Bill by adamantly asserting that there was a 25% shortfall in the communications they could collect and that this gap was hampering the fight against terrorism. At no time did they disclose, not even in the two private sessions, that for years GCHQ has been collecting far more data than that Bill would have given it and that there is no shortfall. That deliberate deception of Parliament is an affront to democracy, and those officials should be seriously considering their positions.

So what needs to happen now? First, there needs to be a vigorous public debate about what we are prepared to allow our security services to do and the boundaries of their reach into our private lives. I hope that the outcome would be permission for intrusive and up-to-date powers of interception for the police and security services where there are convincing grounds for suspicion of serious crime. Equally there needs to be a strong prohibition of mass untargeted surveillance of ordinary, innocent citizens. There will be a need for new legislation to replace RIPA, which was full of deliberate loopholes when it was written and is now hopelessly out of date. There needs to be very strong and sceptical oversight which reports directly to Parliament and has the necessary resources and skills and real teeth. Most of all, we need a sea change in the Government’s approach to the trade-off between liberty and control.

The Snowden cat is out of the bag. He has 58,000 secret documents, and so far the Guardian has published excerpts from just 17 of them. There must be much more to come. It will no longer do for the Government to sit Canute-like on the beach while a tsunami of further revelations engulfs their old policy of sticking their fingers in their ears and muttering that they do not discuss security matters. They must stop trying to shoot the messenger by attacking the Guardian. They must also stop pretending that Britain has the best oversight of its security services in the world when that oversight has spectacularly failed to spot and prevent intrusive surveillance of every citizen without Parliament’s knowledge and consent.

Our Government must now engage in the public debate about what spying the people will or will not tolerate—a debate that has been happening for some time in America, from the President down, and also in France and Germany. The status quo is no longer an option. It is time for the Government to engage fully in the debate.

Justice and Security Bill [HL]

Lord Strasburger Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Strasburger]

My Lords, I am in a small but growing minority in this debate in that I am neither a distinguished lawyer nor a member, not even a former member, of the ISC.

When compared with many other countries, it is remarkable how much the British people hold the courts in high regard and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a process that is fair and transparent. By “fair” I mean that the court will give no privileges to either side, even when one side is the state. This principle is known in European jurisprudence as “equality of arms” and is a very British concept. An important aspect of equality of arms is that each side has an opportunity to see the other side’s evidence, to challenge it and test it, and to call evidence of their own to rebut it. The decision that is made after that process has been respected as one that we have good reason to respect.

What does transparency mean in this context? The principle of transparency entails that proceedings should be open to the public unless there is a very good reason why not. The court should make plain the reason for its decision. No matter how high our regard for the judge, it is very hard to trust his or her decision if you do not know how and why it has been reached.

Closed material proceedings are a big departure from the principles of transparency and fairness. The Government are proposing that, in civil cases where they are the defendant and are being accused of wrongdoing, they should be able to stack the proceedings in their favour on what is probably the deciding issue in the case. CMP is not just a secret hearing with the press excluded; the litigants and their lawyer are also locked out. The Government’s lawyer would have a private meeting with the judge who will decide the case and give him or her so-called evidence that their opponent cannot see. I say “so-called evidence” because it will simply be assertions that have not been tested or challenged. It may be mistaken or could even be complete fiction. Even so, the Bill requires the judge to take this highly dubious information into account when reaching a verdict—a very one-sided arrangement that cannot in any way be described as fair.

What led to the creation of CMPs in the first place? They were introduced for Special Immigration Appeals Commission hearings involving foreigners for whom a national security deportation was being considered. Previously such appeals were held in total secrecy and, by comparison, CMPs were a bit less bad. We are now being invited to extend CMPs from this highly specialised application to civil cases, where the Government are the defendant and are being accused of wrongdoing.

However, that is not the end of this mission creep. Buried in the Bill, in Clause 11(2), is the power for the Secretary of State to amend the definition of “relevant civil proceedings” by statutory order, into who knows what areas of our justice system.

Of course, we have a good idea of how far the Government would really like to go in extending the scope of CMPs. The Green Paper sought to apply CMPs to all civil proceedings involving the Executive. Secret and unfair hearings, therefore, could have been invoked by a hospital trust fighting a medical negligence claim, or a local authority defending itself against a claim for maladministration. For now, the Lord Chancellor has rowed back on that ambition in the face of a mountain of protest, but he has shown us the ominous and dangerous road that he wants to take us down.

What of the safeguards that the Government have trumpeted? We are told that the case judge will decide whether CMPs will be invoked, not the Minister. However, there is a disconnect between what the Government are saying on this and what is actually on the Bill. According to the Bill at present, judges will have their hands tied, with no discretion to consider the competing interests of disclosure in the interests of justice and national security. This, therefore, will effectively be a ministerial decision, with no effective judicial oversight.

What, then, is the problem that this Bill seeks to solve? The current system of PII certificates works well. It allows a balance to be struck between the requirements of justice and national security. If a Minister believes that disclosure could harm the public interest, he or she signs a certificate to that effect. The court then considers the issue, and the judge has a number of ways to handle the information in question. He can withhold it, release it, redact it before he releases it, protect the identity of the witness, and he has a number of other nuanced solutions. The PII system works well, and the Government have failed to bring forward a single example of where the PII system has led to a disclosure that has been damaging to our national security.

In fact, the Bill requires a Minister to “consider” the PII route before applying for a CMP, but the wording of this provision is so weak and easy to evade that, in effect, Ministers can and will demand CMPs without giving any serious consideration to the much fairer PII route. If this Bill is to proceed, before the Minister can ask for a CMP he should have to demonstrate to the court that for some reason a PII certificate will not do the job.

What do others think of this Bill? The House could do worse than listen to the views of the special advocates, specially vetted lawyers who are appointed to serve the court in CMPs. If anyone knows about the grimy details of this part of the justice system, they do. In a memorandum signed by 50 special advisers—which is basically all of them—they say that,

“CMPs are inherently unfair and contrary to the common law tradition … the Government would have to show the most compelling reasons to justify their introduction … no such reasons have been advanced … in our view, none exist”.

There you have it from the horse’s mouth. No reason has been advanced and none exists for making part of our civil justice system inherently unfair. That is the opinion of the specialist lawyers with deep knowledge of this type of proceedings and with no axe to grind at all.

What, then, is behind this solution without a problem? Over the past few months we have been offered a series of spurious justifications for this draconian Bill, all of them without any evidence to support them that stands up to scrutiny. I put it to the House that this Bill has nothing to do with protecting national security or preventing the CIA from withholding intelligence from our agencies because they do not trust our courts, or with saving the Government from having to settle civil cases for large sums because they cannot use sensitive data to defend themselves. All these reasons and others have been advanced at various times with little or no evidence to support them.

I put it to noble Lords that the real problem that this Bill is designed to solve is the justified embarrassment that the security agencies suffered when a recent civil case exposed their involvement in rendition and torture. In that case, the previous Government sought to conceal from the courts seven paragraphs that admitted what the Americans did to the litigant while he was in their custody.

The judge’s view was that:

“Of itself, the treatment to which”,

the litigant,

“was subjected could never properly be described in a democracy as ‘a secret’ or an ‘intelligence secret’ or a ‘summary of classified intelligence’”.

This Bill might have prevented the exposure of this wrongdoing and it may do so in the future if we pass it without major amendments.

[Lord Lester of Herne Hill]

I am sorry to interrupt my noble friend but that is not quite right. The previous Government attempted to provide that information to the United States Military Commissions, but were thwarted from doing so by the American intelligence authorities. What the British Government sought to do was entirely honourable and they did not seek to conceal it from our own court. I thought I should just place that on the record.

[Lord Strasburger]

I thank my noble friend for that. The Lord Chancellor has indulged in plenty of comforting rhetoric in an attempt to assuage the serious concerns that many people wiser than I have about this Bill. The problem is that there is a yawning chasm between his words and those in the Bill. For example, he assures us that the judge will decide whether CMP will be used but the Bill as currently worded makes clear that the judge’s hands will be tied and will have little option but to grant the Minister’s request for CMP, even if he or she believes that the case could best be tried using PII rules. The judge will not be able to adjudicate between the competing arguments of justice and national security.

As it currently stands, this Bill is a toolkit for cover-ups. As such it is a threat to our democracy and we have a lot of work to do to fix its serious shortcomings. I hope that my noble and learned friend the Minister will listen to the strong misgivings about this Bill around the House, among civil liberties campaigners and, particularly, the special advocates who have a much more balanced and independent view of these matters than the politicians and the security agencies.

I will listen carefully to the Minister’s response today and in Committee. I hope that he is able to give me comfort to support a much-improved version of the Bill in the future but there is a long way to go.