Spying: who’s got your back?

Today’s ruling has hit a nerve at GCHQ, the government’s listening post. The spies insist they don’t engage in mass surveillance, and that they have strict rules governing how they work. That’s not the point: those rules have to be seen to be strict.

And that goes to the heart of a vital (but boring) aspect of the post-Snowden debate: oversight.

Basically it works like this: GCHQ exists to spy on people. But they reassure us by pointing out that they have three bunches of people keeping an eye on what they do (the intelligence and security committee, the surveillance commissioners and the Investigatory Powers Tribunal).

From the beginning there’s been concern over how up-to-snuff this oversight regime is. Sir Malcolm Rifkind, who chairs the ISC, seemed too eager too often to leap to the spies’ defence (not helped by the revelation that when the spy chiefs appeared before his committee they were tipped off about some of the questions in advance).

What about the surveillance commissioners? It turned out that Sir Anthony May, the only one who gives press conferences, has no power to oversee the most contentious GCHQ behaviour (access to foreign spies’ databases). The commissioner who looks after that aspect of spying, Sir Mark Waller, has declined to respond to interview requests.

And today we have the Investigatory Powers Tribunal saying that because there was insufficient scrutiny around the rules under which GCHQ was operating, the agency’s behaviour was illegal. GCHQ may well argue that its rules were correct, but the fact is the rules weren’t transparent enough to be legal.

Fundamentally, the people who are supposed to be protecting our privacy from the spies are mostly former judges and politicians. Transparency doesn’t appear high on their list. This problem of “establishment rules” which has dogged attempts to launch a public inquiry into historic child abuse. I see echoes of the same issue in the surveillance debate.

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