Britain trusts its spies too much – even when they’re threatening our freedom

It is deeply worrying that the Government could soon have the legal right to spy on the private activities of all law-abiding citizens

Agreat many Britons – especially those stuck in Sharm el-Sheikh, with good reason to believe they have narrowly escaped a terrorist bomb – probably see privacy as a minor concern at this point. Why on earth, at such a dangerous time, should we worry about mass surveillance of the electronic communications of law-abiding people? Surely if you have nothing shameful to conceal, there should be no objection to the authorities monitoring your communications – especially if that accumulation of data might help the security forces to detect the planning of a lethal attack. That’s how the argument goes, isn’t it?

In one respect, this insouciance is oddly out of character: in my experience, the British are very private and secretive people – sometimes gratuitously so, seeming positively to relish keeping things to themselves that would be better aired in the open. But in another sense, this is part of a familiar national complacency that would be shocking to the citizens of many other countries whose recent histories have been marked by episodes of tyranny and repression.

However much casual contempt the British may express for their politicians, they do largely see them as basically civilised, benign characters who will not resort to brutality or deliberate criminal deception. This assumption applies even to the security forces whose secrecy and general invisibility are accepted as part of a sophisticated global game. The George Smiley types on our side may be cynical and ruthless, but they are not essentially malign. So when the Government says the spies need to access all your personal contacts and private digital activity in order to protect you and your family… Perhaps the word private is part of the problem. We associate it almost inevitably with sexual or financial scandal. The notion has become fatally associated with having something to hide. So let’s stop talking about privacy. The mass surveillance programme the Government proposes threatens principles that are much more fundamental to liberty than the exposure of tawdry personal details. At stake, first, is the presumption of innocence: if this means anything, it must be that no one should be investigated or have his activities scrutinised by the state without what the Americans call “probable cause” – that is, without a legally justifiable reason for believing him to be guilty of a chargeable offence.

The Fourth Amendment to the US Constitution guarantees this: no one should be subjected to “unreasonable searches or seizures” without “probable cause”. This is why there was such a public uproar in America when the mass surveillance programme by the National Security Agency (NSA) was exposed. But Britain’s unwritten constitution has historically made the same assumption: that no one should be prey to investigation of his day-to-day activities without the due process that law-enforcement agencies are required to follow. And further, such processes should be applied to individual cases, not on an indiscriminate basis to great cohorts of the population (let alone the whole of it). This rule is fundamental to a free society. Without it, there can be no limit to the harassment, interrogation or persecution of a citizen on no good grounds at all – or worse, on the basis of political prejudice.

Then there is the matter of “free association”, another basic right of a free people. To say that you are still at liberty to communicate with, or to contact, or to exchange information with anyone you please (provided it is not for illegal purposes), even though the state will be observing and recording all of those innocent communications and contacts and exchanges, is patently absurd.

This is not freedom as we know it. Having your every action watched and examined for suspect intentions – which is what the proposed surveillance must involve if it is to have any point – is a normal expectation only for dangerous criminal suspects. For the state to follow the patterns of contact and inter-relationships of everyone in the population is an enormous leap towards… what? Does totalitarianism seem too far-fetched? I am not suggesting this particular government – or this present generation of politicians – has dictatorial ambitions. But they are proposing to create a law whose effect will set a historic peacetime precedent.

It is true that the draft Investigatory Powers Bill includes a sunset clause so it may not be renewed if the present need is seen to have passed. But even in the unlikely circumstance that the terror threat has passed by the end of 2016 and the Act is allowed to expire, There will no longer be an automatic, unassailable assumption that British governments should not have the power to spy on the private activities of law-abiding citizens. That will represent a change in the balance of power between the individual and the state of quite staggering proportions.

Much is being made by some critics of the Bill that such an amassing of data under the centralised control of a government agency is itself a danger: the information, so conveniently gathered up, might “fall into the wrong hands”. Cybercrime and hackers, identity theft and anarchic digital troublemakers are all features of everyday life now. Why provide them with a single source of information on everyone in the country? But, in truth, this super-data will already be in the wrong hands: the state is only as benevolent and trustworthy as the people who happen to hold power at a given moment, even in a democracy. When a new mechanism of overweening invasive authority is created, it becomes available, by definition, to anyone who manages to succeed to office.

The Home Secretary is offering a “double-lock” to disarm this objection. In order to procure a warrant to examine the details of your private communications when they arouse the suspicions of the security services, the Secretary of State, an elected politician, will have to seek permission from a “judicial commissioner”, who will usually be a retired judge. (Except when there are circumstances so urgent that there isn’t time to call in the judge.) In the US, there is a similar arrangement: the NSA must ask the permission of specially constituted Foreign Intelligence Surveillance Act courts for a warrant to examine the contents of communications. In fact, these courts hardly ever refuse such requests. So make no mistake: it will almost certainly be the government of the day that will have the power to oversee this data and decide whether any of it merits closer investigation.

Of course I understand that we are up against a peculiarly – perhaps unprecedentedly – nihilistic enemy whose motives and methods are almost beyond rational understanding. Because of this bizarre and utterly deranged campaign of indiscriminate violence, it may be necessary to take steps that break with the historic tradition of this very stable country. To protect life must be the priority.

But how far are we prepared to go? Perhaps there should be a metal detector and a body-scanner on every street corner, to ensure that no one with an explosive device can pass undetected, or hidden microphones in every public place. The Bill claims to guarantee “transparency” – but what does that really mean? That you have a right to know that you are being watched but no right to protest or to put limits on it? What sort of life is it that would be protected in the end?

After Theresa May’s presentation of the Bill in the Commons, the shadow home secretary, Andy Burnham, expressed his support in these words: “Parliament cannot sit on its hands and leave blind spots where the authorities cannot see.” Is this what we want? A society where there is no corner – no “blind spot” – where the authorities cannot see?