Intelligence and Security Services

Debate between Lord Watson of Wyre Forest and Martin Horwood

Thursday 31st October 2013 Westminster Hall

[Mr Tom Watson (West Bromwich East) (Lab)]

Information can be the most powerful thing in the world. It has changed everything more quickly and universally than ever before. The internet is all about information. The power of the internet is the power of information. Data can do almost anything. That is why it is so important that they do not end up in the wrong hands, and so important that our data, which we as individuals own, and which are our stake in the data galaxy, just as our vote is our stake in our democracy, are not unnecessarily taken without our consent.

I ask colleagues to remember in the rest of this debate that an individual’s data are just like his or her vote: almost insignificant by itself, privately expressed; but massively powerful when aggregated. We should no more unnecessarily tamper with our citizens’ data than we should impede their ability to vote. The capacity to deduce human behaviour and activity in the modern world of big data is impacting on our daily lives, from insurance premiums and health prevention through to online advertising and traffic management. Corporations are crunching data to learn about the way we live our lives.

At the heart of this cross-party debate today is GCHQ’s own big data programme—Tempora—and its impact on our citizens’ fundamental rights. It is a new and profoundly challenging issue for policy makers. We have to answer questions about the nature, scale and depth of surveillance that should be tolerated in our democracy. My concern about this area of public policy in the UK is that the question has not yet been put. We have avoided discussing this matter in all but whispered tones, while the legislatures of the US, Brazil and Europe have been rocked by the Snowden revelations. Yet in the UK, the main parties have paid scant attention to the issue.

The problem is this: the GCHQ Tempora programme has been mining our internet communications data without public knowledge on a colossal scale. There has been little public and parliamentary debate about whether that conforms to article 8 of the European convention on human rights, which protects the right to private and family life and correspondence. Nor has there been sufficient public or parliamentary debate on whether RIPA legally permits the mass collection of our citizens’ internet data.

[Martin Horwood]

Will the hon. Gentleman give way?

[Mr Watson]

I can’t. I have no time.

Nor has there been sufficient public or parliamentary debate on whether Tempora is authorised by any other pieces of legislation. In fact, we only know of the existence of the Tempora programme because of the actions of Edward Snowden and The Guardian newspaper. I think that they have acted courageously in the public interest to uncover and reveal a secret Government programme that has gained access to the private communications of millions of individuals without their knowledge. A brave whistleblower and a courageous newspaper have enabled us only now to start to have a full and proper debate about whether such surveillance is proportionate and, indeed, legal under our existing legislation, treaties and agreements. That is the secret state laid bare: the Government acting without the knowledge or permission of their citizens, which is a flagrant breach of individuals’ moral and, probably, legal rights, for what they believe is the common good. Just like when they take away the votes of the misguided, the common good is not a defence. Our basic rights as individuals have to be sacrosanct.

Let us be clear. If the Minister is telling us that the law permits such fundamental abuse of liberty, the law is wrong and must be changed. I suspect that he may point to section 16 of RIPA to suggest that the Tempora programme is legal. Interpreting that section requires the unravelling of a triple-nested inversion of meanings across six cross-referenced subsections linked to a dozen other cross-linked definitions, which are all dependent on a highly ambiguous “notwithstanding.” The section is probably the single most confusing and complex drafting ever put on the statute book, and I have heard that a former GCHQ director said it was drafted in that way intentionally; it is what a computer programme would call “spaghetti code.” There is not a snowball’s chance on a hot day in Strasbourg that the section would pass the tests of foreseeability and quality of law required by the European convention on human rights. The UK already lost a critical test of the case on those grounds in 2008. One thing is abundantly clear: they are not extra safeguards, as is falsely claimed in the section heading; they are intended to allow GCHQ to trawl inside the UK, as Lord Lucas observed in another place on 12 July 2000.

This week we saw a major shift in the policy of the United States when the chair of the Senate intelligence committee, Dianne Feinstein, criticised the National Security Agency’s monitoring of the calls of world leaders. She said:

“With respect to NSA collection of intelligence on leaders of US allies—including France, Spain, Mexico…—let me state unequivocally: I am totally opposed.”

I am sure that the Prime Minister will be relieved that his phone is not the subject of surveillance by an ally, but is the Deputy Prime Minister exempt from surveillance? Will the Minister or Members who have put their necks on the block by taking part in this debate be exempt? What about their researchers or families? The assurance is not good enough for me.

We know that the “five eyes” co-operate closely and that UK data are available to the USA. Can the Minister give us any reassurance today that UK phone records are not routinely handed en masse by companies to GCHQ and, by implication, to the NSA? We know that basic internet logs are also held by Virgin, Sky, BT, TalkTalk and other internet service providers. Will the Government reassure us that those data are not routinely handed over in bulk to British intelligence and the NSA?

Parliament has a right to know what records are handed over and why. Yesterday, The Washington Post claimed that the NSA and GCHQ were tapping into the fibre-optic cables used to supply the data centres of Google and Yahoo! To achieve that, the telecoms companies that provide infrastructure to those organisations had to have knowledge of, and probably collaborated with, the procedure. Was any member of the UK Government aware of that facility?

To make it clear, The Washington Post is saying that telecoms companies have been illicitly aiding the security services to tap into data being processed by internet companies with which they have a commercial relationship. Those telecoms companies, which are the backbone of this wonderful thing called the internet that has allowed two decades of free expression and creativity to explode into the lives of our citizens, have been operating in the shadows to allow our security services to tap all of it.

The security services have clearly made the trade-off that the intelligence obtained is worth the invasion of privacy. They are judged on the quality of the intelligence they obtain and little else. Of course they are going to make that trade-off 100% of the time. I want to know whether the telecoms companies have voluntarily entered into that agreement, or whether they have been obliged to do so under UK or US law.

Before I conclude, I draw the Minister’s attention to a submission to the Select Committee on Defence—I draw hon. Members’ attention to my entry in the register—by the all-party group on drones, which I chair. The submission examines the idea of citizenship stripping in detail. The Bureau of Investigative Journalism has highlighted the uneasy relationship between the deprivation of citizenship, intelligence sharing with the US and the targeting of former British citizens in drone strikes in Somalia.

The concern is that citizenship may remove one obstacle to information sharing for the purposes of targeting British people. In particular, one former UK citizen, Berjawi, was targeted immediately following a telephone call to his wife in London, who had just given birth and was recovering in hospital. Perhaps unsurprisingly, the family allege that Berjawi and his wife’s mobile telephones were tapped and location data were shared with the CIA to target him.

David Omand, the ex-head of GCHQ, in his submission to the Select Committee on Home Affairs wrote about the likely intensification of tension between nations that unilaterally defend their interests with military means, including targeted killings, and those that seek collective security under international human rights law. He mentioned the “ethically ambiguous” position of the British public because they had benefited from the US drone programme, even though it would not be permitted in the UK. That cannot be right. The British public would surely be alarmed to hear that data collected in the UK might end up being used to implement the US targeted killing programme described as a “war crime” by Amnesty International.

I have other questions, but I must wrap up now.