Stuart Weir & Andrew Blick (Cambridge & London, Democratic Audit): Jon Bright picks out below the sheer volume of surveillance in the UK from the report of the new Interception of Communications Commissioner, Paul Kennedy, who seems to have gone native remarkably fast. Intrusion of privacy on this scale is claimed to be justified on the grounds that it protects us all from terrorism and other serious crime. But none of the information obtained in this way can be used as evidence in a court of law.
This ban on intercept evidence is almost unique in the world, and an anomaly ripe for reform. While there are genuine technical issues to be addressed, the weight of the resistance comes almost wholly from within the intelligence community, who have long made the arguments against reform that Kennedy parrots. Their objections seem to be founded on a cultural disposition towards secrecy; and a desire not to share the information they possess or subject their activities to the requirements of legal procedure. Kennedy's predecessor, Swinton Thomas, also appointed himself as a spokesman for the intelligence services, albeit more offensively. But both are unreasonably scathing about those who argue that this evidence could do much to bring serious criminals (especially) and terrorists to justice, and reduce the demand for ever longer terms of pre-trial detention. Given that the chief protagonist for reform is Lord Lloyd, who speaks from direct experience (he produced a major report on terrorism legislation for the government in the 1990s) their contempt seems quite unjustified.
While the current ban remains in place there is a strong possibility both that criminals are not being prosecuted, and that innocent people are being detained through such means as immigration law without having an opportunity to challenge the evidence against them. The right of the general public to protection is being compromised; and suspects are being denied the basic requirement of knowing what is the case of their accusers, and being able to examine it. Paul Kennedy's report simply puts one side of the argument at a time when a privy council inquiry report on the issue is to be published shortly. It is the side of the argument that has always prevailed with government, but perhaps the vehemence of his hostility to change reflects greater concern among Britain's spooks. He says that nearly "everyone to whom I have spoken" in his visits agrees that the possible benefits of lifting the ban on intercept do not outweigh the potential difficulties.
But does he really speak for the intelligence and law enforcement community as a whole? Our information at Democratic Audit is that the real block on reform has come from GCHQ, with other agencies and law enforcement bodies less hostile to change. Whatever, the final judgment does not rest with the intelligence community and their various spokespersons, but with ministers who must give proper weight to the near unanimous view of the senior legal, criminal justice and human rights communities that the ban should be lifted.
