‘Undemocratic, unnecessary, intolerable’… The official verdict on Britain’s state snoopers
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Version 0 of 1. The political theorist David Runciman has a nice way of analysing the controversies that regularly blow up in liberal democracies. He divides them into two categories: scandals and crises. Scandals arise all the time in democracies. They generate much heat but little light. And in the end they pass, like ripples of breeze through a ripe cornfield, having made relatively little impact on the body politic. Crises, in contrast, are rarer, and much more important; not only do they generate much heat, but in the end they lead to serious political change. When the phone-hacking story broke in 2011 many observers thought it was a crisis: all that fuss; closure of the News of the World; journalists in the dock; massive legal cases; Murdoch not only denying control of Sky but apparently on the ropes; David Cameron’s toxic mateyness with Rebekah Brooks, not to mention his employment of Andy Coulson; and then the full panoply of the Leveson inquiry with its associated QCs, all with meters running at public expense. And yet, in the end, it turned out to be just a scandal. Why? Because, despite all the hoopla, nothing substantial changed. So-called self-regulation of the British press continues, only now with go-faster stripes and new branding. And the tabloids continue their disgraceful behaviour because bad behaviour continues to be rewarded by the great British public, which continues to purchase the fruits of unethical behaviour. When, in the summer of 2013, Edward Snowden began his revelations of the shocking scale of the electronic surveillance currently practised by the NSA and its overseas franchises in Britain, Canada, Australia and New Zealand, the big and obvious question was: is this just another scandal; or is it a real crisis? Until this week, I’d have said that it was just another scandal. The revelations caused a lot of fuss in the US, forcing Barack Obama to launch an inquiry. Five male establishment trusties with top security clearance were locked in a room for four months and produced a unanimous report recommending some changes, a few of which have made it into law in the USA Freedom Act. But overall, as I observed last week, not much has changed. In Britain, Snowden’s revelations appeared to have even less effect. Some activists and commentators (including this columnist) screamed blue murder, but most citizens yawned, continued to browse cat videos and check their Facebook newsfeeds. Opinion polling showed that Britons were remarkably unconcerned about GCHQ’s snooping. The Intelligence and Securities Committee – the parliamentary body that, in theory, oversees the spooks, convened a solemn inquiry before issuing a magnificently relaxed report. But it turns out that, in another part of the national security forest, something was stirring. David Anderson QC, the independent reviewer of terrorism legislation, was embarked on an analysis of the investigatory powers legislation that supposedly underpin the activities of the country’s intelligence and security agencies. He delivered his report before the election, but nobody outside the magic circle of those with security clearance knew what was in it. Now we do: Anderson’s report was published on Thursday morning. It’s an impressive and thorough document, which runs to 330 pages plus appendices. His brief was to examine “the effectiveness of existing legislation relating to regulatory powers, and to examine the case for a new or amending law”. His opinion on the existing legislation – which is centred on the Regulation of Investigatory Powers Act (Ripa) is scarifying. “Ripa,” he writes, “obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates. A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.” Since Ripa is the benighted statute that has provided the justification for the claims that everything British spies do is “lawful”, to hear this kind of talk from an independent insider seems almost magical. So too is his insistence that much of what is currently authorised on the nod by officials and politicians must henceforth be authorised by judges. Ditto for his acknowledgement that the “oversight theatre” (my term, not his) that currently passes for democratic accountability must be replaced by a much more muscular and credible institution – an independent surveillance and intelligence commission. If these and other, related, recommendations are accepted by the government, then the UK may, finally, be getting somewhere in getting surveillance back under real democratic control. The key word, of course, is “if”. Anderson has understood that inadequately regulated surveillance represents a crisis for our – indeed any – democracy. But our lawmakers still have the power to downgrade this crisis to a mere scandal. All they have to do is to reject his advice. Will they, for once, have the wisdom to do the right thing? Stay tuned. |