Who watches the watchmen?: the case for surveillance juries

On Monday the shadow home secretary Yvette Cooper gave a speech at demos.

Carl Miller is the research director for the Centre for the Analysis of Social Media (CASM)

On Monday the shadow home secretary Yvette Cooper gave a speech at demos.

Its main point was to sketch out a One Nation Labour approach to getting the right balance of security and liberty, especially in a digital society that is – in both the liberties it enjoys and the threats to security that it faces – in the convulsions of fairly radical change.

The speech was an early step towards Labour laying out its Home Affairs stall for the 2015 election. The basic point in principle was that both stronger powers and stronger checks and balances for those powers are needed.

It is only through this delicate balancing act of law and practice that both liberty and security can be made to support each other rather than (as is usual) being mutually exclusive opposites.

So what would strengthen the checks and balances that we have?

People – campaigners and commentators – point to various specific ways of strengthening oversight. They want an end to agencies being able to sign-off warrants themselves. They want judicial oversight rather than ministers, and they don’t want Parliamentary oversight – the Intelligence and Security Committee – to be appointed by the prime minister and to be answerable to the prime minister.

They also agree with Yvette’s proposal in her speech to do something about the current strange set up where we have three commissioners: one for surveillance, one for intelligence and one for intercept (which is in practice both intelligence and surveillance).

The problem is more serious than this, and going forward Labour must consider bolder, more radical solutions.

The simple fact is that some of the biggest intelligence scandals of modern history – those leaked by Edward Snowden, for example – were completed legal. Whilst legal, I think it is safe to say there been a groundswell of public concern, and many unanswered questions as to how very broad trawling of undersea fibre optics was proportionate or necessary.

The problem of oversight that Snowden exposed was not one of technical functionality – how well the system works – but about public trust and confidence.

Everyone agrees – including Britain’s National Security Strategy – that public confidence in intelligence work is vital to safeguard both liberty and indeed security itself. Serious and recognised damage to security occurs when the state’s efforts are not accepted or trusted.

It is not enough for surveillance to be overseen, but for it to be seen to be overseen.

The current way we oversee intelligence suffers from a wider problem that we are experiencing as a society: a crisis of institutional confidence. Public trust is something that the bodies currently involved in intelligence oversight – MPs, judges, ministers, civil servants – increasingly have less of.

Ipsos MORI’s 2011 ‘veracity index’ found that, on average, 61 per cent trust the police, less than half trust Civil Servants, and just 19 per cent trust government ministers.

Whilst the oversight of intelligence has been on a technocratic drift, becoming less a public and more an official concern, these very same officials have lost the confidence of the public in handling these problems on their behalf.

The question of really strengthening oversight at a time of tanking institutional trust is to find new structures capable of commanding public confidence.

So an idea: Surveillance Juries – involving the public directly in the process.

Juries are consistently shown as one of the most trusted of all public institutions. Juries are considered essential purely because there are no special criteria to be called: it could be anyone. Supported by a judge, by experts and clerks, these non-experts nonetheless sit at the heart of process – representing the judgment of society through the very fact that they are randomly drawn from it.

At the heart of the system of surveillance oversight – enshrined in its most important law, the Regulation of Investigatory Powers Act – are a pair of essential judgments. They are: “are the steps being taken to protect society, which invade privacy, necessity and proportionate?”.

This judgment call is not a technocratic issue – it stems from our fundamental moral instincts. Genuine oversight of whether the intelligence agencies and police are making calls that reasonably chime with the public should be made by a Jury representing the judgment of society through the very fact that they are randomly drawn from it.

There are of course costs and risks to Surveillance Juries, and even more answered questions. Jurors would need to be compensated and supported. There would need to be ways of stopping state secrets leaking out, of protecting jurors from intimidation, and protecting the intelligence services from unethical jurors.

However many of these important problems are ones we have faced before, and that we have responses and laws to deal with.

Yvette Cooper concluded: “part of the debate each generation needs to have about how to make sure we respect both liberty and security and the relationship between them”.

Labour has an opportunity to make this debate wider, and far bolder, than it has ever been before.

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