16 October 2013
How MPs and peers took on May and spy agencies over 'snoopers' charter'
Anger at failure of Home Office and security services to reveal extent of GCHQ's data harvesting operations
By Alan Travis, home affairs editor
If anybody thought that putting Lord Blencathra, a former minister in Michael Howard's Home Office, in charge of the pre-legislative scrutiny committee of Theresa May's "snoopers' charter" bill would provide a soft touch, then they were sorely mistaken.
They would have done well to pay attention to the peer's first statement as chairman of the joint committee of MPs and peers, in which he pointed out that the draft communications data bill would affect everyone in some way.
"We all email, use websites and mobile phones and this committee wants to ensure the draft bill will ensure a sufficient balance between an individual's privacy and national security. We intend very thoroughly to examine the government's proposals," Blencathra said, launching the five month inquiry in July 2012.
To the surprise of some observers the MPs and peers proceeded to do just that.
The committee was extremely high-powered. It included Lord Armstrong, a former permanent secretary at the Home Office and cabinet secretary, who had famously gone all the way to Australia in a futile attempt to block the publication of the "Spycatcher" memoirs of the former MI5 officer, Peter Wright.
Other members included former Labour ministers who had been responsible for putting the Regulation of Investigatory Powers Act 2000 on the statute book, an eminent QC specialising in human rights cases, former senior Whitehall civil servants and two Liberal Democrats, Julian Huppert and Lord Strasburger, well versed in the new digital politics.
Blencathra is not alone in feeling angered by the failure of the Home Office and the security services to inform them of the extent of GCHQ's personal data harvesting operations in its Tempora programme, while pressing for even more snooping powers: "I sat on the committee and the Home Office misled parliament by concealing that they were already doing what the bill would have permitted," Strasburger said.
The first and perhaps most important clash between the committee and the government came when MI5, MI6 and GCHQ refused point black to engage with the MPs and peers directly: "We asked to see the intelligence service, the security service and GCHQ. Their views on the draft bill would have been helpful to us. The home secretary, in accordance with usual practice, would not permit them to give evidence even in private," the committee revealed in their final report.
"She offered us 'a general briefing on the threat, particularly that from international terrorism, and the security service's role in addressing it, [which] would take place off the parliamentary estate and would be strictly informal and off the record'. We did not see that this would advance our scrutiny of the draft bill, and declined the invitation," they added.
Blencathra now says that it was actually worse than that: "We invited them to give evidence in private to our committee but they refused to do so, like they always refuse to, and sent us a pretty bland paper. Then of course they go and make public statements in other quarters. Just as they refused to give evidence to our committee, I think the then head [of MI5] gave a speech to the City on the need for the bill and wouldn't come to our committee to tell us why," he told the Guardian.
Instead of engaging with the MPs and peers, the security services would only talk to a parallel inquiry by the prime minister-appointed intelligence and security committee (ISC) which endorsed the bill's proposals to track everyone's email, phone and internet use. But even that body said, all be it without any sense of irony, that there had been insufficient consultations about their practical impact and a lack of "coherent communication" about the way communications data was used. The ISC's intervention did nothing to blunt the damning verdict from the MPs and peers that the bill paid too little regard to the privacy of individuals, was uncosted and unworkable, and gave too much power to the home secretary.
That verdict was based on a thorough inquiry. They held 20 meetings over the summer of 2012 and took evidence from 54 witnesses, and visited the Metropolitan police central intelligence unit to see how the police accessed communications data from the phone and internet companies and the offices of phone company Everything Everywhere to see how requests were handled by private companies.
Instead of the security services, the committee had to make do with evidence from Charles Farr, the Home Office's head of the office of security and counter-terrorism, and who has been described as one of Whitehall's most secretive mandarins. He more than any other civil servant has been leading the charge to give the police and security services the powers of mass surveillance.
Before the committee, Farr also confirmed that among the 552,000 requests for communications data each year were requests from local authorities for personal data to use in investigations into benefit fraud, trading standards offences and antisocial behaviour. That undermined May's claim in the Sun that the powers in the bill would only be used to track suspected terrorists, paedophiles and serious criminals.
He also made the case that technology was changing so rapidly that the police and security services can no longer access 25% of what they need because the companies do not store the details of someone's social media use beyond the normal phone and text details already collected for billing purposes. But he declined to give details of the 25% "capability gap" in public, saying it would simply tell criminals how to go about their business undetected. According to the redacted minutes of a subsequent private session, Farr found himself being pressed repeatedly by the former cabinet secretary, Lord Armstrong. He refused to spell out what forms of social media the security services were unable to track, insisting that to do so "would advertise to people to whom we would rather not be advertising the existence of a gap".
At this point Farr would have had the opportunity to outline what data GCHQ and the security services already had access to – including the vast harvesting capacity of Tempora, the programme that holds communications data flowing in and out of Britain in a 30-day buffer. But he made no mention whatsoever of these GCHQ programmes.
Instead, Farr warned that the "capability gap" would widen without legislation and as social media usage rose would "grow to approximately 35%". It was that so-called that "capability gap" that was the cornerstone of the government's case for the new surveillance powers.
Even the scrutiny committee accepted that it meant that there was a case for the legislation – but they argued that that particular bill was too sweeping and went further than it needed to or should.
Their report was important in persuading Nick Clegg to tell Theresa May bluntly that her communications data bill had to go back to the drawing board. It has not yet seen the light of day again - but as May hinted again on Tuersday - reports of its death are likely to prove exaggerated.The securocrat
Since Charles Farr moved from MI6 to become Whitehall's top "securocrat" he has been a driving force behind successive attempts to give the UK's intelligence services wide-ranging powers to monitor and store vast amounts of personal data. Unsurprisingly, as a result he has gained a reputation as the man behind "Big Brother Britain".
The high-flying official was moved from MI6 by the Labour home secretary John Reid in 2007 to head the Home Office's security and counter-terrorism office, the modern face of the UK's domestic counter-terrorism operations. Under Labour, he was central to a proposal to build a mega-database that would have held details of all emails and phone calls. The plan was dropped amid widespread political opposition.
After the election of the coalition, in 2010, Farr was instrumental in championing an alternative proposal, the communications data bill, which would have allowed the intelligence agencies to monitor social media, Skype calls and email communications as well as logging every site visited by internet users in Britain. This time, the data would have been retained by the telephone and software companies.
Farr's day-to-day life in Whitehall is a stark contrast with his early career: after joining MI6 in the 1980s, he served in South Africa and Jordan, and is reported to have come to prominence flying round Afghanistan delivering hundreds of thousands of US dollars in cash to Afghan farmers in an attempt to stop them growing opium.
After being awarded an OBE, he went on to run MI6's counter-terrorism department before moving to Whitehall. Admirers say he has shaken up the government's security machine and overhauled its anti-terror operations.
However, critics say the single-minded approach that served him well fighting the UK's enemies in the field ill- equips him for the complexities of reading Westminster's political runes as a ministerial adviser.
One critic is Keith Vaz, chair of the home affairs select committee. The MP said last year: "He was not popular at MI6, and his secretive manner is not in keeping with the requirements of modern Whitehall."
Last year, Farr was in the running to become permanent secretary for the Home Office. At that time, it emerged he was in a relationship with Fiona Cunningham, the closest adviser to the home secretary, Theresa May. That prompted allegations of a possible conflict of interest. Farr missed out on the job, which went to Mark Sedwill.