Neither our security nor our freedoms should be the subject of partisan politics. I think we all agree that the burden of responsibility on our intelligence agencies to keep us safe is heavy, and we pay tribute to them.
I had the privilege of working with the agencies, including GCHQ, during my six years at the Foreign Office, and I know first hand that their work is vital. In his recent speech, the MI5 director general, Andrew Parker, set out the current security challenges that Britain faces, and I pay tribute to the officers who, out of the limelight, work unstintingly to protect us from those dangers.
I also pay tribute to Parker for an under-reported aspect of his speech. While discussing trying to reduce the terrorist threat, he observed: "In a free society 'zero' is of course impossible to achieve ... A strong record of success risks creating an expectation of guaranteed prevention. There can be no such guarantee."
As an MP and a citizen, I recognise that bitter truth. We in the House of Commons have a duty to ensure that the public grasp it, too.
Similarly, any democratic government must be accountable to their citizens, particularly if they impinge on their citizens' freedoms in the necessary pursuit of security. In recent years, UK surveillance of its citizens has increased exponentially, and the legal basis has sometimes, and now regularly, appeared strained at best. Oversight is frayed and legitimate debate is at risk of being drowned out by frankly untested assertions of national security.
In June, the Guardian published revelations by US National Security Agency whistleblower Edward Snowden that GCHQ was clandestinely tapping transatlantic fibre-optic cables, giving almost unfettered access to people's phone call records, emails, Facebook entries and the like. The legal basis for Operation Tempora looks thin at best, and parliament certainly had no idea of the scale of the use of those powers.
We also learned that Britain receives data from the US Prism surveillance programme, which appears to allow GCHQ to dilute – not circumvent entirely, but dilute – the safeguards that would apply if the same agencies were to gather the information themselves.
In this month's speech, the MI5 director-general also lambasted the Guardian for handing terrorists a "gift" – he used a potent word. More recently, ministers have claimed that the disclosures have put lives at risk. I want to take that seriously, because Parker claimed that making public "the reach and limits of GCHQ techniques" breaches national security. To be clear about what was being discussed, the newspaper was not disclosing interception techniques – the technical aspect – or revelations of sources or operatives, which would clearly be a major source of concern, but simply revealing our intelligence reach. I Parker's assertion that was made difficult to take at face value. The contention may be true, but it cannot be taken on mere assertion.
Any serious terrorist groups assume that their phones, emails and internet use will be monitored. That is no secret, and learning that western spies drain the swamp of their own citizens' data in the process does not aid terrorists in any tangible way. If national security had been materially breached, why has no one at the Guardian been charged or even arrested since the destruction of computers watched by GCHQ technicians at its offices back in July? Why was David Miranda not arrested and bailed, following his detention for several hours at Heathrow, in August? Either UK law enforcement is surprisingly slow – given the assertions – or national security is being used as a fig leaf to muzzle disclosures that are just plain embarrassing.
I accept, by the way, the disclosure that 850,000 NSA employees and private contractors can access data from Project Tempora represents a security concern, but of course that vulnerability is entirely of the government's own making.
I am prepared to be proven wrong about all that, but ministers and intelligence chiefs need to understand that the bald assertion of national security cannot be used to guillotine all debate. We are here to correct that understanding. Without revealing details that would prejudice the work of the security services, we need a coherent explanation of the damage to national security, not only vague and opaque assertions.
From reports in the Guardian, we also know that the government are concerned about the legality of the powers that they are using – fears that public debate might lead to litigation, fears about legal challenge under the Human Rights Act. Those are legitimate concerns. I recall similar ones from my own experience of working with the agencies as a Foreign Office lawyer. Those, however, are altogether more nuanced concerns than the shrill and unsubstantiated suggestion that we have somehow lost track of terrorist plotters as a result of the revelations.
The issues need to be debated in parliament, not stifled by the blanket assertion of national security. Scrutiny is vital. In the US, the Democrat chair of the senate intelligence committee, Dianne Feinstein, has called for a total review of NSA surveillance: "Congress needs to know exactly what our intelligence community is doing."
This week, on a bipartisan basis, a USA Freedom Act was proposed in Congress, with support from more than 80 Congressmen – including, no less, the architect of the US Patriot Act, Republican Jim Sensenbrenner. The act would block collection of bulk data on American citizens, insert judicial oversight – something missing in this country – and increase transparency and reporting on the part of companies and government. If that is good enough for the Americans, why here in Britain would we settle for anything less? Congress and the public in America have woken up to the scale of unfettered surveillance, and it is time that we in the House of Commons did the same.
What do we need to do next? First, we need a proper account to parliament of the exercise of existing surveillance powers. Why and where are they deemed inadequate? Will the minister, when he has the opportunity to speak, confirm that no MPs have been subjected to such surveillance, given that the House of Commons has not been informed of any change to the Wilson doctrine? Will ministers clarify the extent to which GCHQ was involved in what has recently been reported about the NSA tapping Google and Yahoo! communications, without consent or any observation of the authorisation procedures agreed with those companies?
Secondly, if there are shortcomings – we need to be alive to those, on both sides of the debate– we need a clearer explanation of their impact on national security. Successive governments have been remiss in proposing such broad data communications legislation, beyond the imperatives of national security or of access by police and the intelligence agencies, as most people and most members of the House of Commons accept. That has undermined parliamentary and public support for the more forensic task of plugging any holes in our intelligence capabilities.
Thirdly, we need to consider any exposure of our agencies to "fishing expedition" legal challenges – I understand that concern. GCHQ has cited the Human Rights Act, a concern that I suspect stems from the expansion in the right to privacy under article 8 of the convention. If there is broader concern about the act, that must feed into the debate about its future.
Finally, I am not convinced that the intelligence and security committee (ISC) is able to provide the oversight that we need. I say that without casting any aspersion on current or former members, least of all its formidable chair, Malcom Rifkind. I do not believe, however, that the ISC has the tools or the independence to do the job properly. It is billed as a creature of parliament, but through its appointment and accountability, and under the statutory regime, it is ultimately and really beholden to the executive. It needs to develop into more of a committee of the House of Commons, tailored in a bespoke way, but acquiring more of the powers and independence of normal select committees, if it is to deliver the kind of oversight capable of commanding public confidence.
Above all, we must take this debate forward, away from the polarised and untested assertions on either side, and place the work of those who would protect us on a firmer footing. Karl Popper said: "We must plan for freedom, and not only for security, if for no other reason than only freedom can make security more secure."
We need to pursue our security in a way that respects our freedoms, limits incursions to genuine cases of national security and does so under a regime that commands the rule of law. Failing to do that would be the real gift to the terrorists – a victory for everything that they believe in and a blow against everything we stand for.
