How can intelligence agencies get independent advice?
The UK’s “National Cyber [?] Force” has for the first time published detailed information about its work. Peter Sommer noted one problem for intelligence agencies in this (and other) areas:
One reason I thought David (now Lord) Anderson’s A Question of Trust surveillance oversight report was so powerful was he was able to consult a very wide range of expertise. I wonder if there is a way to better institutionalise that in future intelligence oversight ? (Sorry David, I thought the follow-up on bulk surveillance powers, relying more on engagement with the intelligence agencies, was not so good.)
I lost track of the final outcome of one previous failed attempt to bring more independent voices inside this magic circle — the Home Office blocking security clearance for expert Eric Kind, found to be unlawful by the High Court. What Order was finally agreed between the two parties?
The eight-person Technical Advisory Panel created to advise The Investigatory Powers Commissioner’s Office is a welcome advance, but my (limited) interactions with it, and the presence of only one social scientist, suggest a rather narrow technical focus ? The first Investigatory Powers Commissioner came from an unconventional background (as far as it is possible for a senior English judge to do so) but had a rather different perspective on the democratic nature of law from me in our one encounter.
The government’s chief scientific adviser on national security often comes from outside GCHQ’s doughnut, but as a civil servant working very closely with the intelligence agencies (like IPCO and the Investigatory Powers Tribunal) will have to work hard to maintain an independent perspective.
Meanwhile, the Court of Appeal tuts (very) loudly at expert witnesses who presume to advise it outside (very) narrow technical bounds (such as what “interception” means in EncroChat-hacking scenarios) (§68 [2021] EWCA Crim 128). And only security-cleared advocates can take part in the most sensitive legal proceedings relying on classified evidence, so subject to Home Office approval.
Edward Snowden’s massive leak of surveillance documents in 2013 gave civil society a rare opportunity to engage in political debate on surveillance on an almost-equal footing with the governments using those capabilities. This led to much higher quality legislation than usual in the UK’s (still-flawed) Investigatory Powers Act 2016. I hope this period does not prove to be an unusual exception. The securocrats horrified by those leaks and hoping to avoid them ever again should be careful what they wish for.
