I was asked today for my views on John Lanchester’s recent article in The Guardian (www.theguardian.com/world/2013/oct/03/edward-snowden-files-john-lanchester), in which he suggested that the intelligence agencies needed improved oversight and also proposed a digital bill of rights. I thought it an excellent piece, but I would go further, and say Britain needs a full-blown, written Constitution for its citizens.
I know the establishment view is that English Common Law has served us well over the years and needs little change. I disagree. The Common Law was never designed to cope with the multiple threats that face individuals wishing to exercise an active political life today; threats that are present in the real world, not just the digital version.
These present-day threats come predominantly from a range of powerful and largely non-accountable government agencies. Three years ago I wrote a paper for the National Union of Journalists, noting the peculiar circumstance that GCHQ is, like MI6, under the Foreign Office and therefore non-accountable to the Home Office in terms of budget, activities or consequences for UK nationals. I’ll repeat that – the most powerful state agency carrying out digital surveillance for UKgov is not accountable to the Home Office and the British justice system.
We face a situation, as remarked by Guardian correspondent Ellie Mae O’Hagan (A life under surveillance – http://www.guardian.co.uk/commentisfree/2012/nov/01/unhappy-fact-activist-life) and others, where journalists, writers, campaigners and almost anyone who believes in exercising their right to free speech are subjected, if theirs is not the establishment view, to levels of surveillance, harassment and outright intimidation that would be considered criminal were they to undergo due legal process.
I personally believe that Britain’s intelligence agencies are now so powerful, thanks to the failure of every government since WWII to establish a thorough system of oversight, that they have become institutionally corrupt. Their surveillance tools and sophisticated data analysis have leaked out and become available to dubious actors in all sorts of organisations, including the criminal underworld, leaving the lives of those with the will and the determination to dissent exposed to the attentions of the prurient and the pathologically obsessed.
In attempting to circumvent what laws remain on personal privacy, these agencies have also distributed significant powers to external contract operators, many of whom are psychologically unsuited to making objective decisions about a person’s right to a private life. Surveillance has become a monster with a life of its own, one that is out of control.
I also believe that the practice of passing the dirty jobs (i.e. harassing and disrupting the work of left-wing campaigners and organisations) to the intelligence agencies of other nations that are outside the EU, yet able to operate inside Europe, is so widespread that it functions in effect as a criminal brotherhood. Another failure in the system of oversight.
How did we get to this situation? Let us imagine for a moment that you are the head of UK intelligence. You believe in Queen and Country of course, and all things British (even cricket!), that the establishment is always right, and that the Tories are the natural party of government.
But there is this group, presumably left-wing, of activists, who know how to appeal to the public, have the ear of some Parliamentarians and are capable of stirring people up. You’re concerned about these people, so what do you do? I think if I were this kind of person, and the technology being available and simple to deploy, I would subject such a group to surveillance, especially if there were no strong laws that said I should not.
That is exactly the UK’s problem – a lack of strong laws to defend citizens’ basic rights – including the right to privacy. With the surveillance monster ravening out of control, how do we get those strong laws? I see no solution short of the complete break-up, reorganisation and remaking of all of the secret-intelligence agencies under a new and more robust oversight regime. Such a goal will take a strong government, one that is proof against sophisticated manipulation from within. It may be a goal that is out of reach, but if so, then it is an awful indictment of our present ideas about democracy.
Part of that reorganisation should be a new, written Constitution – one that puts the emphasis on personal privacy rather than state paranoia. Journalist Glenn Greenwald commented in a recent interview on BBC2’s Newsnight programme that the Snowden material could be published in the US because of that country’s strongly-embedded right of free speech. Publishing in the UK, he said, was more problematic because no such protection exists.
Right now, the Americans are clearly thinking of shifting the balance toward greater respect for civil liberties and more openness on the part of the intelligence agencies in how they carry out their work. It is time that certain governments in Europe, especially those that lack constitutional law concerning individual civil liberties, started thinking the same way.
© Philip Hunt, 2013.