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It’s depressing that parliamentary committees responsible for holding to account such powerful institutions and individuals as the intelligence and security services, the bankers and the police are often either far too soft or far too aggressive.  Some inspire little confidence in their efficacy as watchdogs to ensure that the intelligence and security agencies respect our civil liberties as well as working to protect us.  Others appear to be constrained by no procedural rules governing their powers and objectives, nor by any safeguards to protect those summoned to appear before them to be aggressively interrogated.

After the parliamentary Intelligence and Security Committee (ISC) hearing on 7 November at which the heads of MI5, MI6 and GCHQ testified in public for the first time,  an e-correspondent asked:

Did you watch ‘M’, ‘C’ and the man from GCHQ (he must resent not having a single-letter nom de guerre!) yesterday? I thought it was embarrassingly supine questioning.  And if the MI6 man presents his intelligence material [to ministers and officials] with the same hyperbole as he does when he gives evidence, it must be very difficult to distinguish reality from imagination.

I very much agree.  The committee was deeply unimpressive — conveying the impression, anyway to congenital sceptics, of being in a too-cosy relationship with the official eavesdroppers, sleuths and burglars, too respectful of them to say the softest boo to an elderly goose. Michael White in the following day’s Guardian was spot on when he said that the three top honchos seemed to have summoned the ISC to meet them, not vice versa.  Obviously in an ideal world we should judge people by what they do and say, not by their physical appearance or even by the impression they convey on our television screens.  But what these three powerful officials do and say is almost entirely secret: we have no basis for judging them apart from how they strike us on their rare public appearances.  Did the three men seem roughly like ordinary sensible people, sharing ordinary citizens’ instincts and concerns (and sense of humour)? Did they show evidence of understanding the importance of balancing the demands of national security against the pressing need to protect our fundamental right to freedom from disproportionate state intrusion into our private lives?  Or did they seem dogmatically committed to the principle that security by definition trumps civil liberties whenever and wherever the two collide?  For those who watched the whole hearing last Thursday, those questions answer themselves.

threespooksThe claim that these people are better equipped than the editors of the Guardian and the New York Times to judge (after extensive consultations and redactions) which bits of the various whistle-blowers’ leaked materials can safely be published seems plainly untenable; indeed laughable.

At the ISC hearing none of them was asked, or explained, why their “opponents” (those who threaten our security) were so pleased by the revelation that in order to identify the odd terrorist needle in their gigantic haystack, the intelligence services were obliged to collect such mindless quantities of hay in the form of all your and my emails and telephone calls and other private records, including access to their content.  None of the three was asked or explained why we should consent to trust them not to read our emails and records or transcripts of our phone calls, so long as we hadn’t been communicating with the enemy — a kind of variant of William Hague’s deeply objectionable “If you’ve done nothing wrong, you have nothing to fear” riff.  None was asked or explained whether the security services were evading bans on eavesdropping on their own nationals by swapping data on other nationals, such as Americans, with sister services, such as the NSA, the US equivalent of our GCHQ.  None was asked or confirmed whether our calendars, address books, or medical and bank records are being collected along with our emails and telephone transcripts.  None was asked or explained how we can be confident that the scale of the surveillance they conduct is not just convenient and helpful to them but also (in the words of Human Rights Watch) “necessary, proportionate, and subject to adequate safeguards against abuse”. None was even asked to comment on the cause of the immense leaks that have occurred in recent months — namely the American practice of giving access to colossal quantities of highly classified material to literally hundreds of thousands of soldiers and civilians, including contractors not even in the public service, without a thought for the basic principle of the “need to know”.  None was asked or volunteered to acknowledge that these leaks had revealed deeply disturbing and gaping holes in the whole system, that the scale of surveillance had got out of hand, and that drastic remedial action was self-evidently and urgently required.

It’s true that if I were a terrorist (which I assure you I’m not), I would be rather reassured to discover that in order to identify a dodgy email I had sent or an indiscreet telephone call I had made, the lads and lasses at Cheltenham would have to sift through billions upon billions of communications that they had inexplicably lumbered themselves with, of which 99.99% would be by definition utterly useless to them (although around 50% might come in handy one day to an aspiring blackmailer, I suppose).  Perhaps that’s why the head of the secret intelligence service was so outraged by the Snowden revelations and so sure that al-Qaeda would be “rubbing their hands with glee”.

The salient point that should have emerged from the ISC hearing, but didn’t, is surely this.  It is utterly unacceptable that any state organ — or any other institution, come to that — should be allowed secretly to collect and store and be able to read the contents of the personal electronic communications of entire national populations.  Knowledge is power, and no conceivable institution should be allowed to possess and potentially to exercise such overwhelming power over a whole population and more.  Sooner or later, if this industrial-scale intrusion is permitted to continue, that colossal power will be abused, and by then it will be too late to stop it.  As far as I could tell, watching the proceedings live, not one of the three witnesses at the ISC hearing, and none of the committee’s members, showed the slightest sign of awareness of that monstrous problem with which the latest revelations confront us.  That is seriously frightening.

Oversight of these power-hungry characters’ activities by a parliamentary committee manifestly unwilling to ask hard questions is clearly of questionable value. Even allowing for the constraints imposed by holding the hearing in public and on television, it’s very difficult to imagine any of the ISC members, hand-picked by the prime minister, seriously challenging the spooks even in their closed and secret sessions. A senior judge also has investigatory and supervisory powers over the three security and intelligence agencies but he or she reports in secret to the prime minister, so we aren’t allowed to know what malpractices the judge may have unearthed and what, if anything, the prime minister is doing about them.  I don’t know how else these largely unaccountable officials can be brought under control, and restrained from stealing and storing everything just because they can, at mind-blowing public expense.  Any independent invigilator, even a suitably sceptical judge, is liable to be immediately co-opted into the cosy magic circle of those who are, or who are encouraged to believe they are, in the know.  The security services charm, intimidate and control those tasked with supervising them by sharing a careful selection of their secrets with them, thus in effect gagging them as well as flattering them.  Somehow, though, these scandalous practices have got to be stopped, or we can say goodbye to some of our most fundamental liberties.  Remember the Stasi!

The basic jobs of the security service, the secret intelligence service and GCHQ are unquestionably vital and indispensable.  There’s no serious doubt that a huge majority of those who work in them are honest and committed, and often brave.  Much (but not all) of what they do obviously has to be kept secret.  But it is now clear that secrecy has come to mask abuse of power on a vast scale.  The Americans and other democracies are taking this seriously and debating possible remedies.  President Obama is trying to overcome NSA resistance to his plan to rein in their ability to harvest Americans’ data without any constraint.  Other democracies are overhauling their oversight systems.  It’s time we in Britain did the same, instead of furiously denouncing Mr Snowden and threatening the Guardian for telling us what we were entitled to know all along.

*   *   *   *   *

At the other end of the scale, power is being abused in a different way.  We need to pay more attention to the growing habit of chairs (and some members) of certain parliamentary select committees — you know the ones I mean — of bullying and humiliating those summoned to appear before them as if conducting the Grand Inquisition, giving their defendants absolutely none of the protections and safeguards, such as the right to be legally represented, demanded by due process and the rule of law – in a word, by justice.  At some of these hearings there are apparently no rules of admissible or inadmissible evidence, no Fifth Amendment right to refuse to answer if the answer might tend to incriminate the accused, no protection from an impartial presiding judge or defence counsel against bullying by the prosecution, no right to receive, before the hearing, full details of the prosecution’s case. The Grand Inquisitor is judge, jury and prosecutor rolled into one: the defendant is on his own.

A hearing like this is not just an aggressive probing interview of the kind we watch on the BBC Newsnight programme or hear on the BBC Today programme. It is much more like a kangaroo court mated with a show trial, and on national television into the bargain: wonderful entertainment, but at a shocking price  Lawyers respect the principle of Equality of Arms in a proper trial, but in these virtual trials by parliamentary committee there’s no such thing.  Justice is not served by such one-sided proceedings and it’s deeply distasteful, however unsavoury some of the victims might be.

Some of our MPs are beginning to act like pit bull terriers and rottweilers.  Others behave like neutered pussy-cats. There really needs to be a middle way.

Brian

Grateful acknowledgements to the Huffington Post for the (slightly doctored) picture, which bears no resemblance to any real persons living or dead.

 

8 comments on Parliamentary inquisitions: either too soft or too harsh

  • Ingrid Davidson says:

    Great post.  I totally agree – very frustrating how poor the questioning is.  About time the power of the Whip appointed Committee of Selection was taken away and Select Committee members elected as the Chairs are.  Your post makes me think of the dismal job done by MPs when they had Rupert Murdoch in front of them. Prepared grandstanding for headlines, which really let us all down and let Murdoch get away with so much.
    I think the Procedure Committee might be doing an inquiry into how Select Committees are functioning.  If I’m recalling that correctly, be great if you gave evidence!

    Brian writes: Thank you for this, Ingrid. I fear that if I were to give evidence as you generously suggest, I would end up in the Tower.

    On the selection of Chairs and members of select committees, it was my understanding that the chair and members of the Intelligence and Security Committee, unlike the others, are nominated by the prime minister, obviously to ensure that no trouble-makers or potential leakers and whistle-blowers get onto it. I can’t imagine Cameron (or the agencies) consenting to any change in this, unfortunately.

  • Timothy Weakley says:

    Hints have been dropped, presumably to freeze the public’s flesh and make us all more docile regarding official prying, that various plots in recent years have been quietly thwarted by the security services and not made public.  Why the reticence?  What secrets are at stake?  Presumably the villains arrested, and their backers and abettors, are aware of their failure and therefore likely of the reasons for the failure?  What has happened to these people?  Imprisonment after hearings by secret courts in closed session, or simply “termination with extreme prejudice”?

    Brian writes: Thank you for this, Tim. During the intelligence & security committee hearing one of the agency chiefs did mention that as a result of one of their operations to thwart a plot against our security the perpetrators were now in jail. I suppose that in some cases it may be difficult to prosecute people discovered to be plotting terrorist attacks without disclosing to them and their fellow-terrorists either the methods used by the security services to access their communications or the identities of informers who have provided the information that has enabled the agency concerned to take action against them.

  • David Skinner says:

    Sir Brian
    We can agree that questioning was polite- so it should be, especially if a private session is to follow.
    We are again differing on principle. I also  believe in human rights- especially that of staying alive. Best wishes.
    Cllr David Skinner

  • ObiterJ says:

    Interesting observations.  I have linked to your post via my blog at http://obiterj.blogspot.co.uk/2013/11/newspapers-spooks-naked-man-pcso-and.html.

    Brian writes: Thank you for this link. I enjoyed reading your own post on various legal issues.

  • David Campbell says:

    Malcolm Rifkind’s performance is extraordinarily disappointing. As a young MP he was innovative, witty and light of touch. Age seems to have made him a Blimp. If he continues like this, he’ll look in the mirror one day and see Tony Blair.

    Brian writes: Thank you for this, David. Malcolm Rifkind has always struck me as unusually sharp (in every sense) but it seems that since his experience of high ministerial office he has become increasingly an Establishment figure. I am saddened by the latest revelation that before the recent public hearing of the intelligence & security committee which Sir M Rifkind chairs, the three heads of the intelligence and security agencies were secretly given advance notice of the main questions that the committee members would be asking them. It seems to me a serious error of judgement on Sir Malcolm’s part (and on the part of the three super-spooks) that this was not publicly revealed before the hearing.

  • David Skinner says:

     
    Sir Brian
    I loved the comment about Colonel Blimp. I must obviously be turning into one myself. But I only stayed alive by being very careful over a number of issues.
    I was also a career officer in HM Diplomatic Service , and  served in Lagos, but at a different time to you. I was invited to dinner by Kim Philby in Bahrain, just before he fled to Moscow. Intelligent, courteous and utterly ruthless.
    Your correspondents will probably think me completely beyond the Pale when I add that I am a Conservative Councillor in Coventry, but I think it best never to drop your guard in the hope that our enemies will be kind. They will not. We shall always need strong Intelligence Services. Best wishes.
    David Skinner

    Brian writes: Thank you for this. Of course we need strong intelligence services. But they will always be tempted to overstate the scale and character of any perceived threat to our security, in order to justify their mostly secret powers and to seek to expand them; and they will be tempted to focus exclusively on the need to counter current threats, leaving it to others — parliament, the media, ministers, lobby groups — to worry about the balance between our basic civil liberties and the demands of security. Like many other commentators (including now Lord Ashdown) I believe that that balance has become badly upset and that it has taken the Snowden revelations and the Guardian’s courage in publishing selected parts of them to alert us all to the ways in which the collection of intelligence about all of us has got badly out of control. If we allow our civil rights to be sacrificed to security, the terrorists will have won.

  • Oliver Miles says:

    An example of Rifkind’s sharpness in earlier times. He became a minister of state at the FCO when I was head of the department dealing with the Arab/Israel problem. Since he had asked a few questions in Parliament in the Israeli interest I was a trifle apprehensive, but I needn’t have been. Within a very few days he was asked at some press conference whether he was a Zionist; he replied “I always think that any Jew in Britain who says he is a Zionist invites the next question: why aren’t you in Israel?”

    Brian writes: Thank you for this, Oliver. A very shrewd reply! I certainly don’t underestimate his intelligence and sharpness, but I think he has become a quintessentially Establishment figure ever since his time as Foreign & Commonwealth Secretary. Accordingly I would like to see the Intelligence and Security Committee chaired by a more sceptical and independent-minded figure.

  • Charlie says:

    Surely part of the problem is the lack of experience in international affairs, especially a knowledge of foreign languages and history. The days when there MPs who had served in commando/special forces during WW2 or in any of the conflicts since then are long gone.  There are few if any MPs who have worked for years overseas , for example, in oil exploration/production in the Gulf .  Consequently most MPs do not understand the complexity and the historical background to conflicts .  It would be like MPs being asked to question the Chief Engineer for Rolls Royce on the latest developments in jet turbines. It would take the Chief engineer 30 minutes to explain how jet engine works. 
    I doubt very much that there has never been a conflict which was not predicted by at least one person. The problem is that a prediction of conflict means someone has to take a decision to prevent it occurring and most MPs and Civil Servants do not want to look foolish and risk their careers.  
    The reason why we are so reliant on GCHQ is because we do not have enough people who understand what is happening in the backstreets of the World where trouble is  often brewing.  There were many families in the colonial services, Indian Army, trading companies, missionaries, shipping companies, construction and mining companies who had spent decades working overseas and may have been the second , third or even fourth generation to do so. People spoke the languages, knew the history, culture and religion of other countries and had great respect and enthusiasm to learn.  
    Until 20-30 years ago there were plenty of Britons who had this sort of experience and even if they were not MPs or civil servants they tell them where they were going wrong. |I doubt whether there is any MP who can think ” I know J Smith he spent 30 years building oil plants in N Africa and he speaks fluent Arabic , I will go ask him about Libya”. This could be altered for Argentina, Hong Kong, Jugoslavia and any other country where conflict has occurred in the last 70 years.   If looks at SOE personnel , many such as Szarbo, Brooks, Wake  and Yeo-Thomas had foreign parents and/or lived overseas.
    As they say ” An MP is the collective wisdom of their constituency !”. An FCO  member once explained to me that the first part of his briefing of the Minister was to show on an atlas where the country was situated! If one combines ignorance of an MP with an Ego wishing to play to the gallery and party politics: no wonder there is no  effective scrutiny of the ISC.
    I once mentioned to an engineer the problems I have had briefing an MP on a technical issue. I said it was very difficult to take someone from O Level Science ( they may not even had physics or chemistry) to postgraduate science in 20 minutes. It was just possible if they had good science A Levels .  Ah yes my colleague replied ” The problem is that MPs have an attention of 10 minutes so they have forgotten the first 10 minutes of your briefing”.
    We need intelligence services who know what is happening in the World and are good at predicting likely events otherwise we might as well employ Mystic Meg. Oil and mining companies employ staff to find oil fields and ore deposits and they are judged on results- not stating the blindingly obvious. We do not have MPs who based on personnel experience or that of friends  can ask ” Why did you not predict X , there were rumblings 10 years ago when I worked in that country? You do not need to tap the telephones of everyone, So and So has been stirring up trouble for 10 years. 10 years ago So and So had two followers , both idiots, but know he has 100s and is a problem.”

    Brian writes: Thank you again. Two observations on your interesting comment.
    First, the combined resources of our diplomatic service, in UK embassies and high commissions and consulates all over the world, and of the Foreign & Commonwealth Office (FCO) at home, including the thousands of local citizens working for our overseas posts, represent exactly the knowledge, insights and understanding of overseas countries and the ability to put oneself in their shoes in gauging how they will respond to events, pressure and persuasion, that you describe. Whether our ministers of either party make optimum use of that resource, fully interrogating and absorbing it before making foreign policy decisions, is questionable. I’m sure that sometimes they do. I suspect that sometimes they don’t.
    Secondly, however much an expert knows about a country or countries, their history, language and culture, their international relations, all the varied factors affecting the dynamics of the area, the dominant personalities and the ordinary people — however extensive this indispensable expertise, it remains absolutely impossible to predict the future and less than ever possible to manage it. During my years in both the Colonial Office (not the Colonial Service) in London and the FCO in London and in diplomatic posts overseas, I have read countless learned and insightful papers, often written by brilliant analysts, trying to assess future prospects in this or that geographical area or subject, all totally persuasive when they are first written and read. Almost all of them turn out to be more or less wrong because their underlying premisses are falsified sooner or later by events that no-one, however brilliant and well informed, could possibly have predicted. In foreign policy and international affairs, master plans for the future are rarely worth the hard disk space they occupy. This is why 85% or more of poreign policy is necessarily reactive — rushed and sometimes ill-considered responses to unpredicted, unforeseen and unforeseeable events.
    It’s useless to look for persons or events to blame for this failure to predict or manage the future. It’s the way life is.

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