A potentially serious dispute may be looming between senior ministers and Britain’s security and intelligence chiefs.
It is unlikely to be public and government spokespersons will probably deny, if they comment at all, that there is any prospect of such a dispute.
The heads of MI5, MI6, and GCHQ, may have called Ed Snowden, the US contractor who blew the whistle on the way the American National Security Agency and GCHQ, its British partner, indiscriminately intercept personal communications, a traitor.
Simply put, they now accept, not only that they must be more open in explaining what they can do, they must also be subjected to more effective scrutiny.
This was reflected at a recent conference at Ditchley Park on intelligence, privacy, and security. Duncan Campbell, the journalist and former scourge of the spooks, was invited, a move that was itself significant.
He observed: “Despite the collection of current and former CIA, GCHQ and SIS [MI6] officials, counter-terrorism commanders, security managers, and former permanent secretaries present, as well as the former chair of Britain’s Intelligence and Security Committee, I did not hear the phrase ‘capability gap’ mentioned. That sort of rhetoric seemed to be reserved for the political arena. No-one tried to debate whether Snowden was a villain, traitor, or hero.”
In his own note on the conference, Ditchey’s director, Sir John Holmes, a former British ambassador, said: “There was a strong view that oversight could no longer be confined to the collection of intelligence and data. It now had to extend to how these were used...”.
And he added: “We agreed that bulk data collection was not of itself the same as the ‘mass surveillance’ beloved of the media, although it could of course without proper regulation and oversight be misused for that purpose.”
The heads of Britain’s security and intelligence agencies are likely, therefore, to have welcomed the recent report by David Anderson QC, the independent reviewer of terrorism legislation (to accord him his official title).
Anderson says that though the security and intelligence agencies, notably GCHQ, would continue to be able to gather communications data “in bulk” (though with safeguards), intercept warrants targeted at individuals would be authorised by a judge, and not, as now, by a minister.
The question is will those ministers most concerned, all, in varying degrees, eurosceptics - Theresa May, the home secretary, Philip Hammond, the foreign secretary, and Michael Gove, the justice secretary - agree? Or will they reject Anderson’s judicial scrutiny proposal, insisting that intercept warrants should continue to be left up to ministers?
If they get their way, the issue is likely to be subjected to legal challenge, embroiling the European Court of Human Rights in Strasbourg.
The whole question of oversight of the spooks could then get caught up in the EU referendum debate. The eurosceptics would seize on it and use it as another weapon to attack Europe.
The vast majority of the Whitehall, and the security and intelligence establishment, believe that Britain should stay in the EU.
Intelligence chiefs must know that by rejecting Anderson’s proposals, the government would give fresh ammunition to those who have been demanding more accountabilty, and further drag the whole security versus privacy debate into the heart of party politics.
