Accountability
I will be discussing a non subject – the accountability of the intelligence services. By accountable we mean the ability to be brought to account, to be answerable for their actions, to be subject to scrutiny and ultimately to have their actions adjudicated upon in a court of law.
I will be looking at the accountability of the British intelligence services in the context of civil liberties and their relationship with the public. For most of their existence the British Intelligence Services, namely MI5, GCHQ and MI6 were not governed by any statutory law. They were established by the use of the Royal Prerogative backed up, in the case of MI5, with an administrative charter, the Maxwell-Fyfe Directive of 1952; and were essentially allowed to do what they liked when they liked with all activities nodded through by supine Home and Foreign Secretaries who were often mesmerised by the words ‘Top secret’.
Ostensibly these agencies activities were secret. In reality what was secret were their activities impinging on civil liberties. The agencies ran huge leak machines to stoke the war against their enemies: Chapman Pincher and Nigel West wrote volumes of books with information fed to them by the intelligence services. Many newspapers and journalists got caught up in a similar way. Thousands of individuals have been monitored over the years: in 1998 it was conceded that MI5 had 290,000 personal files of which 20,000 were active, of which 13,000 covered UK citizens.
In the 1970s and 1980s there were a constant stream of revelations and scandals. In 1985 Cathy Massiter a former MI5 employee revealed that the agency had kept files on Harriet Harman and Patricia Hewitt with the classifications ‘subversive’ and ‘communist sympathiser’.
Over the past decade there have been many structures put in place to ostensibly monitor the intelligence services as well as to give the public the means to seek redress if they feel that they have been unfairly treated. My argument is that all these efforts have been a con; that in fact the intelligence agencies remain as lawless and unaccountable as before despite having been placed on a statutory footing.
Statutory basis
The first piece of legislation to hit the statutory books was in 1989 the Security Service Act which placed MI5 on a statutory footing and provided for the first time some organisational mechanism for the hearing of complaints against MI5 behaviour. This was followed in 1994 by the Intelligence Services Act which did the same for MI6 and GCHQ. The European organisations responsible for the enforcement of the European Convention of Human Rights went weak at the knees and the mere passing of the 1989 Act, although it came after the events in question, was treated as sufficient reason by the Convention organs to take no further action in two cases brought, ironically, by Harriet Harman and Patricia Hewitt, involving alleged surveillance and recording of personal details by MI5.
In fact the Commission decision legitimised the holding of files on people who are undertaking normal democratic activities and regarded as acceptable the surveillance of people engaged in non-violent activity. These two Acts created tribunals and Commissioners who had oversight functions. These sections of the Acts were superseded by The Regulation of Investigatory Powers Act (RIPA) in July 2000. It is worth noting that parts of the intelligence structure remain outside the statutory framework: namely the Defence Intelligence Staff, the Joint Intelligence Committee and the intelligence assessments staff.
The purpose of RIPA was ostensibly to ensure that surveillance methods used by the police and intelligence agencies were compatible with the Human Rights Act; but it in fact further extended the rights of the government to conduct surveillance particularly in the area of the Internet. It also consolidated the various tribunals under the different Acts into one, the Investigatory Powers Tribunal staffed by judges and senior member of the legal profession. Justice, the Human Rights organisation while welcoming this consolidation commented:
‘We remain concerned that the Tribunal is not just a piece of human rights “window dressing” which in practice does not provide an effective remedy for individuals. The failure of the existing surveillance tribunals ever to uphold a complaint demonstrates that this is a serious and legitimate concern.’
In 19 years of operation the tribunal system has never found for a complainant. This statistic must be unprecedented for any public authority.
Yet we know that MI5 is not perfect. During the Gulf War 91 Arabs were either detained or threatened with deportation on national security grounds based on an MI5 list of potential terrorists. The Home Secretary later ordered the release of all 91 after discovering that the list was based on outdated files and erroneous information.
Tribunal
An individual can complain to the Tribunal about the behaviour of the intelligence services as well as bring an action in the Tribunal against them in terms of alleged breach of the Human Rights Act. If the Tribunal finds in favour of the complainant or claimant it will provide a summary of its determination and any findings of fact. It may also order such remedial action as it considers appropriate. This can include ordering the service to end its inquiries, to destroy any records and to pay financial compensation. If the Tribunal does not uphold a claim or complaint, it can only state that no determination has been made in that person’s favour. It is not allowed to disclose whether the alleged conduct has taken place or not. The tribunal received 120 complaints from October 2000 until December 2001 and they upheld none. This followed closely on the experience of the Security Service Tribunal which between 1989 and 1997 received 275 complaints and upheld none.
While legal representation is allowed, there is no legal aid. Furthermore there is just one Home Office official provided to undertake administrative support. While there are provisions to enable oral hearings to be held, I have only managed to trace one such hearing and then the proceedings were not allowed to be reported until The Guardian won a court case allowing them to do so. However much of the tribunal’s work will remain secret. Only procedural issues will be argued in public. Complainants will still have no automatic right to hear or see the evidence or allegations against them from the agency that they are complaining about.
On paper the Tribunal has some power but given the make-up of the Tribunal it is unlikely that these powers would be robustly exercised. All organisations holding powers under RIPA are required by section 68(6) of the Act to provide all information requested by the Tribunal. Further to this the Tribunal can demand clarification or explanation of any information provided, order an individual to give evidence in person, inspect an organisation’s files, or take any other action it sees fit. RIPA stipulates that all organisations and individuals concerned must provide the Tribunal with such assistance as it requires.
There is no access to the High Court to test the legality of the Tribunal decisions. However if the complainant would like to take his/her Human Rights claim further, s/he can appeal directly to the European Court of European Rights in Strasbourg. S/he will need to prove that s/he had taken up all the legal avenues open to him/her within the UK before they will consider the case. As yet this has not happened.
Commissioners
In addition to the Tribunal, RIPA also rationalised the roles of the Commissioners who review the operation of the various activities authorised by the Act. The position of Intelligence Services Commissioner is currently held by Lord Justice Simon Brown. He is responsible for reviewing and reporting upon the issue and authorisation by the relevant minister of warrants for operations by the Agencies for example warrants for entry or interference with property. He also reviews the use of intrusive and covert human surveillance by the security services. The Interception Commissioner reviews the issue and authorisation of warrants to intercept mail and telecommunications by the intelligence agencies and law enforcement organisations.
The Commissioners report annually to the Prime Minister on their work and their reports are in turn laid before Parliament. A confidential annex that contains operational details is not published. The confidential annex to the Report of the Intelligence Services Commissioner also contains details of the number of warrants and authorisations issued. The Commissioner offered the lame excuse that disclosure ‘would, I believe, assist the operation of those hostile to the state if they were able to estimate even approximately the extent of the work of the Security Service, SIS and GCHQ in fulfilling their functions.’
What utter rubbish! You can just envisage Osamah Bin Laden sitting there saying, ‘Wow the number of warrants have gone up.’ No: the purpose is to hide from the public the extent to which surveillance takes place.
Unfortunately it is the view of some legal commentators that having regard to a Strasbourg decision under previous legislation that these review and complaints procedures satisfy the European Convention on Human Rights. On the procedural side the various commissioners have never found anything substantially deficient although the Interception of Communications Commissioner did in 2002 say that a significant number of errors and breaches were reported, namely 39.
Parliamentary Scrutiny
In a democracy no area of state activity should be above scrutiny by Parliament. Parliamentary oversight provides democratic accountability and allows the worse cases of abuse to be aired under parliamentary privilege. Historically there had been little parliamentary scrutiny of the activities of the intelligence agencies. Ministers had routinely refused to answer parliamentary questions concerning the agencies or national security. The work of the agencies had received no attention of the various parliamentary select committees.
The 1994 Intelligence Services Act created for all three agencies a statutory committee of nine parliamentarians drawn from both the Commons and House of Lords called the Intelligence and Security Committee. Its members are appointed by the Prime Minister in consultation with the Leader of the Opposition. Unlike other parliamentary select committees, the committee reports directly to the Prime Minister and, subject to editing, its reports are subsequently laid in Parliament.
The ambit of the committee’s role is tightly confined to ‘examine the expenditure, administration and policy’ of the three services. They preserve an exclusion zone around security and intelligence operations yet it is precisely these operations which are likely to affect civil liberties. Even within its ambit there are limits to the committee’s information-gathering powers: it may ‘request’ information but it does not have the power to demand particular documents, even those referring to the policy, administration or expenditure of the agencies.
The Committee does not have access to the full rather than the edited published version of the Commissioners’ reports. With one notable exception the committee has been stuffed with loyalist place men and women. The committee has never taken up the wide range of issues raised by former intelligence operatives such as David Shayler and Richard Tomlinson, seemingly on the basis that it does not want to encourage whistleblowers, when it is precisely these whistle-blowers who have done the most to expose wrongdoing. Its published reports are heavily censored.
The report into ‘The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq’ was a model in understatement although it showed more nerve than usual. Evidence was taken from NGOs such as Amnesty and Human Rights Watch and in addition it covered the activities of the Defence Intelligence Staff. The report essentially blamed the lack of training by British intelligence personnel in the Geneva Conventions for any tacit acceptance of American contravention of the rules. It did highlight the fact that where the UK had reported torture and mistreatment of detainees to the US authorities, these reports were not rigourously followed up. The Committee has yet to investigate reports about British complicity in ‘rendition’ whereby alleged terrorists are sent against their will to countries where torture is routinely practised.
Data protection and freedom of information
Where ostensible rights to obtain information, such as the Data Protection Act and the Freedom of Information Act, have been given to the public, the intelligence agencies have been specifically excluded from their ambit. Furthermore there are wide exemptions available to withhold information on the dubious grounds of ‘National Security’. In order for organisations to be made accountable there has to be information made available so that one can judge their activities. This is not the case in the United Kingdom.
Ian Leigh, Professor of Law at the Human Rights Centre in the University for Durham, has stated:
‘There are several reasons why a presumption of openness should operate even though it may be rebuttable where national security is involved. The public have a right to know what is done by officials acting in its name, under powers given for the public good and ultimately at public expense. Conversely, security and intelligence agencies, unlike individuals have no private rights of their own. Transparency also assists in the exposure of illegality, wrongdoing and corruption by public authorities.’
It is important that the intelligence agencies are not exempt on a wholesale level from the provisions of the Freedom of Information Legislation but rather that they be subject to the normal exemptions which apply to other public authorities. This would allow for monitoring and scrutiny in the normal way by the Information Commissioner. This has not been the approach of the British Government.
Starting with the Data Protection Act in 1984, the British Government in effect exempted the intelligence agencies from the provisions of the Act insofar as it related to their surveillance activities and this was subsequently extended to the Freedom of Information Act. If a person should apply to the security and intelligence agencies for their files under the Data Protection Act they can refuse access on grounds of national security. A ministerial certificate would be issued as conclusive proof that the exemption is required. The issue of the certificate is appealable to the Information Tribunal (National Security Panel). In terms of the FOIA the intelligence agencies are not defined as public bodies and so they are not covered by its provisions. The effect is that one cannot apply to them for files under FOIA. Moreover, should these intelligence agencies provide information to other bodies which are covered by the Act for example the Police Service then the later can apply a Section 23 exemption and refuse to provide the information. This is done using a kafkaesque use of the English language which neither confirms or denies the existence of the information.
Not only are the intelligence agencies plus information supplied by them to others not covered by the Freedom of Information Act, there is also an exemption for safeguarding National Security. Of course there is no definition of national security, so it is open to the government to use the widest definition possible. A ministerial certificate can be issued in support of the use of the national security exemption and this is appealable to the Information Commissioner in certain instances and in other circumstances to the Information Tribunal.
My case
I have had personal experience of the denial of information and the lack of accountability of the intelligence services. In the early 1980s I co-authored a book, British Intelligence and Covert Action, which named approximately 100 MI6 operatives. At the time I held refugee status and a battle ensued with the British Government who did not wish to grant me indefinite leave to remain, ultimately they wished me to leave the country. It was a long and bitter fight but in 1992 I was granted indefinite leave to remain.
After an amended Data Protection Act came in force allowing access to manual files I applied to the Home Office in 2001 to see my immigration papers. After a year of prevarication a document was made available to me which comprised extracts from various memos and letters. The documents had obviously been heavily censored to remove all references to intelligence agencies, informants etc., but there was one intriguing reference which went as follows: Extract from note by official dated 7 January 1987:
‘The latter [immigration control decision] was intended by Ministers to produce a real effect: to harass Bloch so that he could never be certain that his stay here was totally guaranteed.’
I recollected many other acts of harassment and decided to seek further clarification and information. I requested a review of the decision to withhold the vast amount of data which obviously had not been released. The review came back negative saying that they had released all the documentation that I was entitled to. No reasons were given and no exemptions were cited. After that I approached the Information Commissioner for an assessment under the Act as to whether the Home Office had breached the Act. Initially this assessment was declined; but after it had been pointed out to the Information Commissioner the importance of an independent check as to whether the information which had not been disclosed actually fell within the exemptions of the Act, the Commissioner served an Information Notice on the Home Secretary requiring him either to provide the Commissioner with copies of the information which had been withheld or alternatively to allow the Commissioner to inspect the information.
At this point Mr Blunkett, the then Home Secretary, slapped a Section 28 certificate on the Information Commissioner denying them access to my files on the grounds of safeguarding national security. The Information Commissioner has subsequently appealed the decision to the Information Tribunal and I still await the decision.
Conclusions
As I have shown a truly unsatisfactory situation exists. Checks and balances which are regarded as a normal requirement in a democratic society vanish totally when it comes to the work and operations of the intelligence and security agencies; and yet it is precisely in these areas where abuse is most likely to occur. What should be done? It is my belief that civil liberty activists should not merely be opposing new repressive legislation but should be actively campaigning for the extensions of liberties and the creation of real accountability so that abuses and violations of civil liberties can not only be exposed but can be avoided. I believe that as regards the current situation we should campaign for the following:
- The Intelligence and Security Committee should be replaced by a Parliamentary Select Committee which has the powers to examine and comment on security operations. Membership should comprise not merely the grandees of the political establishment but also members of the ‘awkward squad’. The committee should aggressively pursue its brief including interviewing whistleblowers and campaigning organisations.
- The intelligence services should be included within the ambit of the Data Protection Act as well as the Freedom of Information Act.
- An effective complaints mechanism needs to be put in place. At the very least the Tribunal should hold its hearings as per a court of law with appeals allowed to the High Court.
- The cold war is now over. All the files gathered on the ‘state’s enemies’ during this period should be opened for scrutiny. If Romania and some of the other Eastern European can do this there can be no conceivable reason for not doing so other than that the extent of surveillance, spying and the use of informants would shock the public.
- We should monitor, research and resist the increasing internationalisation and europeanisation of internal security. The European institutions have established several organisations – Europol – where information is shared. Until it is shown that these organisations are accountable they should be opposed.