Surveillance juries would restore public trust, argues Carl Miller.
In the UK, we use a network of different bodies to oversee intelligence. Commissioners, Parliamentarians, ministers and the agencies themselves are all involved at different times, to ensure that the steps that are taken to protect society are proportionate and necessary.
These vital principles – proportionality and necessity – are intended to guarantee public confidence. It is widely recognised, including in Britain’s National Security Strategy , that serious damage to security occurs when the state’s efforts are not accepted or trusted.
Our system of oversight needs not only to ensure surveillance is legitimate, but also credibly assure the public that it is actually and effectively ensuring surveillance is legitimate.
Edward Snowden, an American former technical contractor for the United States National Security Agency and former employee of the Central Intelligence Agency, leaked details of several top-secret US and British government mass surveillance programmes to the press.
These – PRISM in the US and TEMPORA in the UK– have exposed a very serious problem at the heart of this system. The simple fact is that many of the steps taken to protect society that he has revealed have been completely legal, yet do not enjoy this crucial public confidence. This problem is systemic: not one of a few bad apples or over-zealous operatives.
So where has the system gone wrong?
Little public confidence
The problem is not one of technical functionality – how well the system works – but about public trust and confidence. The way we oversee intelligence suffers from a wider problem that we are experiencing as a society: a crisis of institutional legitimacy.
Public trust is something that public bodies in general, including those involved in intelligence oversight, increasingly lack. Ipsos MORI’s 2011 ‘veracity index ’ found that, on average, 61 per cent of the public trust the police, less than half trust civil servants, and just 19 per cent trust government ministers.
Yet since the last major law – the Regulation of Investigatory Powers Act – was passed over a dozen years ago, the oversight of intelligence has been on a long technocratic drift, becoming less a public and more an official concern. At the same time as trust in official bodies declined, the responsibility for holding the security services to account has become more a matter for them.
We need to find new ways of making the public confident that surveillance is properly overseen. So here’s an idea. Let’s have ‘surveillance juries’, involving the public directly in the process.
Juries are consistently shown  as one of the most trusted of all public institutions.
In the justice system, they are essential purely because there are no special qualifying criteria: anyone could be called. The principles that sit at the heart of the surveillance system – proportionality and necessity – are similar to those related to innocence and guilt. They are not technocratic issues, but rather fine balancing acts over which a body representing society should sit in judgment.
There are of course costs and risks to surveillance juries. They would need to be supported by a secretariat, by experts and clerks. They would need to be protected from intimidation and undue influence. The intelligence agencies themselves would need to be protected from unethical jurors.
However, many of these important problems – from jury intimidation to leaking official secrets – are ones we have faced before, and ones we have responses and laws to deal with.
Every generation re-interrogates questions of democracy and the relationship between governors and the governed in the light of their own times and challenges. As this generation does the same it should not shy away from bold, even radical, solutions to the profound problems of trust and confidence that it faces.