Boris Johnson’s government is using the coronavirus pandemic to seize more and more power from parliament and the courts. A former president of the Supreme Court warns that the government is driving Britain down a “very slippery slope” towards “dictatorship” or “tyranny”.
The official opposition seems frightened of being accused of being “soft on security”. Labour leader Sir Keir Starmer has said his party should abstain on a government bill giving agents of the UK’s domestic security service, MI5, legal cover to commit crimes in covert operations.
He has also sacked MPs for opposing a bill protecting British forces abroad from prosecution for war crimes – a bill the former chief of defence staff, Lord Guthrie, has said would “let torturers off the hook”.
Amid this concerning cross-party consensus, the need to make the British security agencies far more accountable and transparent is more urgent than ever, as demonstrated in the UK’s sinister, indeed fatal, dealings with Libya.
Salman Abedi, the Manchester Arena suicide bomber who killed 22 people in May 2017, had come to MI5’s attention at least 18 times and had been seen associating with six MI5 “subjects of interest”, the inquiry into the attack has been told.
For reasons that remain unclear, Abedi did not feature on MI5’s internal “priority indicator” until March 2017 during a “data-washing exercise”. MI5 admitted to a “missed opportunity” when it failed to alert the police or the UK Border Force to question him when he returned from a trip to Libya on 22 May 2017, five days before the attack.
“There is no question of secrecy being used to conceal failure”, MI5’s counsel, Cathryn McGahey QC, has told the inquiry. So what will secrecy conceal? Almost certainly, MI5’s network of informers and how much MI5 (and other intelligence agencies, MI6 and GCHQ) knew about Abedi and his brother Hashem, who was sentenced in August to a minimum of 55 years for his role in the attack.
This is not the only information MI5 is fighting to keep under wraps. Evidence relating to Saleh Ibrahim Mabrouk, a former minister in Muammar Gaddafi’s regime, is being withheld on grounds of “national security”.
Mabrouk is suspected of being heavily involved in the events leading to the killing in 1984 of police officer Yvonne Fletcher, during a demonstration outside the Libyan People’s Bureau in central London. Mabrouk denies being involved.
The evening before Fletcher was shot, GCHQ intercepted two messages, one telling the Libyans in the Bureau to “cover the streets of London with blood”. The messages were not passed on to MI5 or the Metropolitan Police Special Branch until after the shooting.
“The need to make the British security agencies far more accountable and transparent is more urgent than ever.”
A few years earlier, Moussa Koussa, then head of the bureau, was deported for advocating the killing of Libyan dissidents in Britain. In 2004, as Gaddafi’s intelligence chief, Koussa was MI6’s key go-between during its secret abduction of two Libyan dissidents, Hakim Abdel Belhaj and Sami al-Saadi, and their families to Tripoli where they were subsequently tortured.
That covert and unlawful rendition operation came to light only because of documents found in Koussa’s Tripoli office that was destroyed by Nato’s air strikes in 2011. For years, the then foreign secretary, Jack Straw, denied any British involvement in such operations, telling MPs in 2005: “There is simply no truth in the claims that the United Kingdom has been involved in rendition full stop, because we never have been”.
In 2011, when faced with the evidence, Straw said: “No foreign secretary can know all the details of what its intelligence agencies are doing at any one time.” After years in costly court cases demanding gagging orders, and fearing it may be forced by judges to reveal precisely what MI6 was up to and who knew, it was only in 2018 the government finally admitted its role in the Libyan operation and apologised to the Libyan families.
The government has reneged on past promises of an independent judge-led inquiry into Britain’s security and intelligence agencies’ collusion in torture. Court hearings about a judicial review demanded by the Conservative MP, David Davis, and Labour MP and former soldier, Dan Jarvis, over the government’s refusal to hold an inquiry are themselves being held in secret.
The Libyan cases illustrate the pressing need for a fundamental shake-up of the way MI5, MI6, and GCHQ are scrutinised. The British parliament’s Intelligence and Security Committee (ISC), made up of MPs and peers vetted by the prime minister, has in recent reports criticised the agencies for making mistakes and “missed opportunities”.
After growing pressure from a few journalists, backbench MPs and lawyers, it found that in more than 200 cases, the intelligence agencies had colluded in “counter-terror” operations involving the mistreatment of suspects. However, new guidance to security and intelligence officers (and military personnel) contains loopholes allowing them to continue to collude in torture.
The ISC was prevented by Theresa May, then prime minister, from questioning MI6 officers with first-hand knowledge of rendition operations, including those involving Libyans. May’s successor, Boris Johnson, suppressed an ISC report on Russia’s attempts to disrupt British politics, including the Brexit referendum, until after the 2019 election.
When the report was finally published in July, it revealed that Britain’s security and intelligence agencies failed to conduct any serious investigation into the attempts. The government “had not seen or sought evidence of successful interference in UK democratic processes”, it said.
The report showed how slow the Whitehall establishment has been to focus on genuine (and not so new) security and intelligence threats, notably hacking and cyber attacks, and how reluctant it is to beef up the existing feeble machinery that is supposed to scrutinise those responsible for protecting us from those threats.
Threats to personal privacy
The failure to call Britain’s security and intelligence agencies – and the police and the UK Border Force – effectively to account is all the more dangerous at a time of unprecedented threats to personal privacy as these agencies, in their seemingly endless appetite for data mining, invest in computer systems that can gather and store more and more information on individuals.
Files revealed by US whistle-blower Edward Snowden in 2013 show that the UK’s largest intelligence agency GCHQ had been secretly intercepting, processing and storing data concerning millions of people’s private communications, including people of no intelligence interest. In September 2018, the European Court of Human Rights ruled that UK laws enabling mass surveillance were unlawful, violating rights to privacy and freedom of expression.
The Snowden files demonstrate the difficulty MPs, let alone the public, have in knowing what the security and intelligence agencies are up to while law-makers in parliament are simply not capable of keeping up with the technology.
MI5, meanwhile, is being given more powers – the authority in law to allow its agents and informants to commit serious crimes. The Coronavirus Act gives the government sweeping new powers to strike at human rights and civil liberties. And this at a time when the distinction between war and peace and between open debate and covert subversion is being increasingly blurred
“The Ministry of Defence has said even “investigative journalists” should be considered as “threats”.”
Seeking new roles for the armed forces, General Sir Nicholas Carter, chief of the defence staff, says the military should get increasingly involved in information warfare, or counter propaganda as he puts it. The military is being encouraged to intervene more and more in civil society.
There is no such thing, of course, as complete security, even in totalitarian autocracies. GCHQ chiefs have complained about a growing difficulty in finding a needle in a haystack. Yet in their seemingly endless search for information, widening their list of targets, building up huge data banks, the security and intelligence agencies are their own worst enemy. They are building even more haystacks.
MI5 has admitted it wrongfully gathered and stored data on individuals, gaining interception warrants on the basis of false information. Earlier this year, a senior judge ordered MI5 not to delete huge data banks of personal information pending a trial over the legality of its surveillance operations. MI5 wants the trial to be heard in secret.
Meanwhile, the Ministry of Defence has said even “investigative journalists” should be considered as “threats” to the government’s information “security”.
What are the alternatives?
A range of measures is needed to subject the security and intelligence agencies to genuine accountability, such as these 15 proposals.
First is the need for a much-strengthened Intelligence and Security Committee with members freely chosen by MPs and peers, not vetted, as now, by the prime minister of the day. Its meetings should be held in public, not as now in private, though exceptions could be made to protect lives which might be at risk and to protect “live” operations. The ISC should also have the power to subpoena witnesses.
An independent body made up of “citizens’ groups” to scrutinise the security and intelligence agencies, is also needed to meet separately and jointly with the ISC. Such a proposal was first suggested, not by some thinktank on the political margins, but by Sir Richard Dearlove, the head of MI6 at the time his agency drew up the discredited dossier on Saddam Hussein’s weapons programme used to justify the invasion of Iraq. Similar proposals have been made by anonymous former intelligence chiefs.
This body should include non-government organisations and experts in information and surveillance technology acting in a personal capacity. The expertise of technology-aware individuals will be needed to ensure, not least, that the giant tech companies are not abusing their own powers and are not making unacceptable secret deals with government agencies.
Into the mix needs to be established a committee of outsiders, including academics and journalists, and representatives of the agencies, to anticipate future threats. The security agencies need to primarily focus on the major security threats to the public, which must now include health pandemics such as coronavirus and climate change — issues the intelligence agencies have hitherto neglected.
This body could meet in private but is sorely needed given the agencies’ appalling record in independent analysis and failure to foresee major events including the collapse of the Soviet Union, the fall of the Shah of Iran, the Argentinian invasion of the Falklands, Russia’s annexation of Crimea and the development of cyber “warfare”.
The appointments of former security and intelligence agency staff to lucrative positions in arms corporations and other private sector jobs when they leave service must be much more tightly regulated, and made more transparent, to reduce conflicts of interest and private profiteering.
Firm curbs need to be placed on intelligence agencies’ surveillance activities. The issuing of warrants to the intelligence agencies to intercept communications should only be allowed after scrutiny by a judge. In cases of extreme urgency, judges should be notified immediately after an operational decision taken by the agencies.
Whistle-blowers in the intelligence agencies concerned about what their colleagues or superiors are up to should have access to a confidential “hotline” with the Investigatory Powers Tribunal, the body which considers complaints against the security services.
The provision of information to the public must be transformed. There needs to be an end to the blanket exclusion of the security and intelligence agencies from the provisions of the Freedom of Information Act.
The UK intelligence services are among the least democratically scrutinised in the world: in the US, for example, the CIA and special forces are subject to freedom of information requests and similar arrangements prevail in the UK’s other key intelligence allies, Canada and New Zealand.
UK governments’ blanket refusal to even comment on “intelligence matters” must be transformed for the 21st century. Ministers should no longer be able to simply dismiss all questions in parliament or from journalists about the activities of the intelligence agencies or special forces, such as the army’s Special Air Service (SAS).
Britain’s highly secret and controversial use of drones to undertake military strikes, which are often triggered by vague or faulty intelligence, must also be subjected to much more scrutiny by parliament.
The security services may need to provide anonymity to their personnel while in service, but veterans should be able to talk about their work after they leave. Currently, only authorised narratives are allowed to be put into the public domain after service, which protects the security services, not the public.
Britain’s intelligence services are subject to the Data Protection Act 2018 and the Environmental Information Regulations but it is not clear even how to send information requests under this legislation to MI5 or MI6. These agencies should have public-facing information officers able to process requests and a media office that can field queries from journalists and others.
MI6 must end its self-imposed ban on the release of files to the National Archives, and Section 3 (4) of the Public Records Act that allows government departments and agencies to withhold documents “for administrative purposes” or “for any other special reason” must be repealed.
There is a long and unacceptable history of the government “losing” or destroying historic diplomatic files that should lawfully be made public. Membership of the National Archives Advisory Council, which plays a key role in deciding which documents are released to the public, should be subject to an open appointments process and include independent researchers and journalists. The current council includes former spies and government officials, Declassified recently revealed.
The sections of the 2013 Justice and Security Act allowing judges to set up secret courts in the absence of a lawyer representing those complaining against the actions of the security and intelligence agencies must be repealed. Court hearings should be heard in secret only to protect lives and current operations and lawyers representing defendants should always be present.
Finally, the definition of “terrorism” and “national security”, which is increasingly loosely and broadly defined in a growing number of laws which risk further curbing civil liberties, should be tightened and made more specific. For example, section 1.1 of the 2000 Terrorism Act which defines terrorism as the use or threat of action “designed to infuence the government” must be repealed.