Nick Pickles: Today's letter from May and Clarke offers no details or justification for new surveillance and closed-court powers

Nick Pickles is Director of civil liberties campaign group Big Brother Watch. Here he responds to Theresa May and Ken Clarke's letter to MPs regarding new surveillance powers and closed-door courts. Follow Nick on Twitter.

Four days after the Sunday Times broke news of Government plans to increase the surveillance directed at every person in the country, and following a scathing report from a Parliamentary Committee on their plans for extending closed-door court processes, the Home Secretary and Justice Secretary have written to MPs to address their concerns. Let me be clear – I absolutely support the Prime Minister in his belief that the primary role of Government is to protect its citizens. I also share his belief in ensuring proper legal safeguards on powers given to the state.

The reason I have opposed both the Communications Capability Programme and the Justice and Security Green paper is that I believe they will not make the public safer, yet will trample over legal rights enshrined in law since the days of Magna Carta. It is not for innocent people to justify why the state should not spy on them. It’s worth noting that most of the PR-disaster on both these policies has been self-inflicted. The reason there has been so much press uncertainty is that so little detail has been offered by the Home Office on the communications scheme. MPs in Parliament have been stonewalled for months with a line of ‘we will legislate as soon as parliamentary time allows’, and this continues to be the line given. Ministers haven’t even been able to say if a bill will be in the Queen’s speech, nor offered any attempt to define the ‘communications data’ they are seeking to log.

It took nearly 48 hours for any Minister to appear to defend the policy, and in doing so offered no substantive detail on what is being proposed. Equally, the Joint Committee on Human Rights noted in its report on Ken Clarke’s Justice and Security Green paper that the only people they could find in support of the policy were ministers. The former Director of Public Prosecutions, Lord Macdonald, was among many legal and terrorism experts questioning the plans.

Let me also ask a simple question – if this is so essential, why has it not been put in place before the Olympics? If Parliamentary time was the issue, perhaps we should have waited with the Health and Social Care Bill and fixed this problem first?

Today’s letter continues the mistakes of the past week. It offers no details to allay legitimate fears of spiralling surveillance, nor justification for the plans. After the Home Secretary’s Brass Eye-esque intervention in Tuesday’s Sun, the substance of both policies has been absent from debate, with assertions falling into the same kind of tactics seen around ID Cards and 90 day detention. Let me address a few specific points. Firstly the claim that no new capability is being proposed. This is entirely false. Home Office statements have confirmed plans include GCHQ ‘black boxes’ being installed onto networks and that data will be accessible in real time. The letter mentions neither of these points.  

Secondly, the letter totally ignores perfectly legitimate questions about feasibility. Security and data protection experts have voiced concerns about just how the data will be used, which goes to the heart of the Government’s failing – depending which day of the week it has been, the argument is either that this is essential to prevent crime, or essential to solve them after it has happened.  The letter also fails to address concerns that the monitoring could introduce new security vulnerabilities to the internet, offering both criminals and foreign governments opportunities to gather data that do not currently exist.

Indeed, I do not feel I am being disingenuous when I say that the public sector’s track record with large-scale IT projects hardly inspires confidence. Furthermore, in claiming no ‘content’ will be read, the letter fails to acknowledge that this may be technically impossible where messages are encrypted or sent securely. The letter also ignores the question of how much communications data will be driven underground, into the ‘dark’ web or routed through services like Tor. In the 7/7 inquest for example, the Coroner found how more surveillance data would not have been useful as the terrorists used pre-paid phones and switched them regularly.

Given the current economic climate, the letter also fails to address questions about the burden this will place on businesses. If ISPs are to store a huge amount of data, who will pay for this? At a time when Government is calling for investment in high-speed fibre optic broadband, the risk is this policy will lead to a situation where the greater the capacity for data, the greater the storage cost – so why will they invest in greater capacity? The letter also fails to discuss jurisdictional issues – how will these plans work if data is held abroad, or non-web based services are used (for example, satellite broadband, which is a real solution to rural broadband access.)

Turning to the Justice and Security Green Paper, the letter points out that this will only apply in a ‘very small number of civil cases.’ I welcome this assurance – but why was it not included in the Green Paper? Much of the concern about the proposals is that, as drafted, they would cover any civil case, including inquests and other cases not concerning national security. The letter also fails to acknowledge why in the Guantanamo cases, the existing legal tools were not exhausted – and in doing so seeks to gloss over serious questions of culpability that would under these proposals be hidden.

The letter also fails to recognise how we were able to conduct hearings into issues involving the intelligence agencies, from Jean Charles de Menezes to 7/7 and Bloody Sunday, without requiring such a law. Finally, there is absolutely no mention of the fundamental issue I have with the Green Paper – that it proposes putting the decision to withhold evidence in the hands of a Minister, not a judge.

We do need to protect national security. We do need to ensure that Government agencies have the ability to do their jobs. All I ask is that those working on behalf of the state are accountable for their actions and that before introducing policies we ensure that they are both feasible and do not carry grave unintended consequences.

The past week’s communications meltdown was entirely avoidable. I genuinely wish I was not having to write yet another article highlighting the on-going flaws in arguments being offered. After nearly five days of near universal criticism, it is utterly remarkable that the lines to take have barely changed and do not engage any of the arguments put forward by MPs of all parties. 

My door is always open to Ministers, those developing policy, and indeed any concerned person, to support the development of policies that will genuinely improve public safety. All I ask is you bring evidence to support your arguments.