UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 231-vii

House of commons

oral EVIDENCE

TAKEN BEFORE THE

Home Affairs Committee

Counter-terrorism

Tuesday 11 February 2014

Dr Thomas HEgghammer

Professor Sir David Omand

Sir Anthony May and joanna cavan

Evidence heard in Public Questions 554 - 690

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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 11 February 2014

Members present:

Keith Vaz (Chair)

Ian Austin

Mr James Clappison

Michael Ellis

Paul Flynn

Lorraine Fullbrook

Dr Julian Huppert

Mark Reckless

David Winnick

In the absence of the Chair, Mr Clappison took the Chair

________________

Examination of Witness

Witness: Dr Thomas Hegghammer, Director of Terrorism Research at The Norwegian Defence Research Establishment (FFI), gave evidence

Q554 Chair: I call the Committee to order and refer all those present to the Register of Members’ interests, where the interests of members of this Committee are registered.

Could I welcome, coming to us from Oslo, Dr Thomas Hegghammer, the Director of Terrorism Research at the FFI? Thank you very much for joining us, Dr Hegghammer. This is a further session in the Committee’s long inquiry into counter-terrorism. We are most grateful to you for joining us to share with us some of your extensive experience in this matter.

Let me start with the issue of foreign fighters, which I know is an interest of yours, and the recent report that Abu Suleiman al-Britani-which is a nom de guerre-became the first British citizen to blow up explosives, the first suicide bomber, in Syria. It concerns the prison at Aleppo where, as a result of what he did, a number of prisoners were freed. He has become something of a martyr among the jihadists. We have seen this for the first time in Britain. Is this something that is a common occurrence in Syria now, with foreign fighters going out there to participate in what is going on?

Dr Hegghammer: First of all, thank you very much for having me.

Yes, foreign fighters have been present in the Syrian theatre for a long time. They have been active in combat operations and taking part in suicide operations for some time. They are present in unprecedented numbers. No other conflict in the Muslim world in recent history has attracted the same number that we are now seeing in Syria. The best estimates we have speak of 2,000 Europeans in Syria, which I believe is more than the total number of European foreign fighters in all previous conflict zones combined.

Q555 Chair: If we look at what happened, for example, in Afghanistan and Iraq, you are saying that the figure of 2,000 is a much, much larger figure than in previous conflicts.

Dr Hegghammer: Yes, absolutely. I believe that in no previous conflict, with the possible exception of Afghanistan in the 1980s, have we had more than a couple of hundred or a few hundred Europeans in a given conflict theatre. Now we have 10 times that.

Q556 Chair: Where is Britain on the list in terms of the numbers of jihadists who go out? In previous evidence an estimate has been put to us of about 366 to 400. Is that an accurate figure as far as you are concerned? Are we top of the list, or is it France or Germany?

Dr Hegghammer: I think you are higher on the list in terms of the absolute size of the contingents, but you are a big country, so when you control for the size of the population, you are probably in the middle of the list of European countries. Some of the smaller countries, like Belgium or Denmark, are contributing more per thousand inhabitants than Britain does, but the size of your contingent is substantial and is among the largest in Europe.

Q557 Chair: You have said that one in nine foreign fighters will return to their country of origin to carry out a terrorist attack. That is a very large number. If you look at the figure of 400, that means 40 could come back and be involved in attacks on British citizens on British soil. That is a very serious claim. What do you base your claim on? What kind of activities do you think these British citizens are going to undertake once they return to the United Kingdom.

Dr Hegghammer: I should explain some of the background for that particular estimate. It is based on a study that I did last year, which was published in a political science journal, in which I tried to estimate the number of foreign fighters from the west who had gone out to conflicts around the Muslim world in 1990 and then tried to count the number of people involved in plots in the west who had had foreign fighter experience. I found that on average, across conflicts and across contingents, at most one in nine returned to attack. I stressed in that article that it is probably a high estimate, that the real rate is probably lower-somewhere around the one in 15 or one in 20.

Q558 Chair: But is not the key thing to stop them going in the first place? Do you think that the British security services and the police are doing enough? Because if you put the figure at one in nine, of course it is too late when they come back. Should we have a better system of monitoring who leaves the United Kingdom, rather than the system we have at the moment, which is that there are no exit checks at airports, so we do not really know they have gone?

Dr Hegghammer: The thing about the average that I have put forward is that it is just that: is an average. The challenge is that the return rate-the blow-back rate if you will-varies enormously between conflicts. Some foreign fighter destinations have produced almost no plots in the west, whereas others have produced a substantial number. For example, Afghanistan, or the AfPak region, has a relatively high return rate. In fact, as many as three-quarters of the foreign fighters involved in plots in Europe have their background from AfPak, so the point is we cannot extrapolate this ratio to Syria. The blow-back from Syria could be much, much lower than one in nine; it could also be even higher.

Q559 Chair: Sure, but is enough being done to stop them going in the first place?

Dr Hegghammer: The problem is that there is only so much that the departure country can do in this situation. There are very powerful drivers motivating people to go, not least the conflict itself and the images coming out of it, and then at the receiving end of the trajectory of the foreign fighter, you have the porous borders-the fact that it is very easy to get into Syria because the rebels control the inside of the Turkish border. That is an unusual situation. In most foreign fighter destinations, the borders are controlled, but in this case the rebels control the borders. There is only one police force left to police the Turkish border and it is overwhelmed.

Q560 Chair: That brings me to my final point, which is on Turkey and your statement that transit countries such as Turkey should do their best to police their borders and they should share intelligence on suspected foreign fighters with the departure countries, if we can call them that. This view that we are experiencing what people have called ‘easyJet terrorism’, where people can jump on a flight at Luton and go to Istanbul very easily by the airlines there, and then go from Turkey right to the border of Syria and get in there very easily. Should Turkey be doing much more in sharing information with the United Kingdom and other countries, since Istanbul looks like something of a hub for this kind of transit activity?

Dr Hegghammer: Yes. I do not think it is a controversial statement to say that they should do that; the problem is assessing whether they actually are. I personally do not know enough about the situation on the ground to say whether they are doing everything they can.

There may be a role for external partners here, too, in helping Turkey to police the border. One suggestion would be for external partners to help Turkey build something as simple as a fence along the border. This is what Saudi Arabia did on its border with Iraq at the height of the war in Iraq, around 2004 and 2005, precisely to stop foreign fighters from entering. This is quite a practical, simple solution that the international community can help with.

Then, as I mentioned in that statement, we should do everything we can to promote intelligence co-operation with the Turkish authorities, so that we know who is going in and out and as much as we can about what they do inside.

Chair: Thank you.

Mr Winnick: Recognising the acute and continuing danger of this Islamist terrorism-you know of course of the horrors and atrocities committed in our country, the 7/7 bombings, as well, of course as 9/11 and many others crimes and atrocities carried out by the terrorists-I would like to ask you this question. Some five years ago, a relative of mine in the closing stages of his life, in his 90s, was entertained by the Leader of the House of Lords, following having been given citizenship by Spain for what he contributed in person during the Spanish Civil War, when he put his life on the line because he believed it was necessary, as did others who volunteered to fight fascism before it became fashionable to do so.

Would you see any possible similarity to my distant relative-like so many others like him did and who died in Spain and of course others, like George Orwell, who survived-and what is happening now regarding foreign fighters in Syria? Do you see any similarity at all?

Dr Hegghammer: Yes. The phenomena are related. This is about volunteering for someone else’s war, based on ideas; it is just that these ideas happen to be slightly different and that the people and networks involved also do other things. The difference between the Islamist foreign fighter phenomenon today and a war like the Spanish Civil War is that today there are many cases of people moving on from this foreign fighter activity to international terrorism involving attacks against civilians in western cities. You did not have that at the time. There was not this sort of frequent and smooth transition from guerrilla warfare within the conflict at stake and more transnational terrorist operations. Whatever we think about the moral justification behind the initial involvement in the war, I think the reality that a substantial number of people move on to international terrorism from this activity should merit certain policy measures to prevent just that kind of violence.

Mr Winnick: Thank you. I have no further questions.

Q561 Ian Austin: What proportion of foreign fighters do you think are likely to return to the west from Syria?

Dr Hegghammer: I do not know, is the short answer. As I said, the one-in-nine figure cannot be extrapolated to the case of Syria because it is an average. Specific cases can be much lower or even higher, as we can see in the history of foreign fighter contingents.

The problem of course is that the total number of Europeans in Syria today is so large that even if the ratio of return is very low, we are still talking about a substantial absolute number of plots. I personally think it is extremely unlikely that we will not see at least some plots in Europe involving Syria veterans.

I think there is one crucial factor that determines whether this becomes a low blow-back or a high blow-black destination, and that is the strategy adopted by organisations on the ground in Syria. Foreign fighter destinations produce many more plots if there is a group in the theatre that adopts a strategy of systematically targeting the west. That is what we have had in Afghanistan since the mid-1990s and, to some extent, what we have had in Yemen since 2009. Those two destinations have by far the highest return rate of any foreign fighter destination.

Other destinations that do not have groups with that type of strategy produce much lower return rates. Today in Syria there is no group that has such a strategy, so if this situation continues, I suspect that the blow-back rate will be relatively low, but it could change. The war will go on for a long time and we cannot exclude the possibility that one of the groups or a faction within it might experiment with or adopt a ‘west-first’ targeting strategy.

Q562 Ian Austin: In relation to the answer you gave to my colleague, Mr Winnick, a moment ago, the big difference between the people who went to fight in Spain and the people who are going to fight in Syria is that the people who went to fight in Spain were going to defend a democratic Government and you cannot argue that that is the case in Syria. I would suggest that it is completely wrong to be blind to the motivations and to suggest there is some sort of equivalence. Should not we in the west be much more vigorous about promoting values like democracy, equality, freedom, fairness and tolerance to young people who grow up in the west, in the hope that they might have a greater attachment to those values and the values of the west and therefore not want to go and involve themselves in these sorts of wars abroad?

Dr Hegghammer: It is hard to disagree with that, and I agree completely, but the question is: how exactly do we do that, and what do we do when people resist and reject the value in that message or programme?

Chair: Thank you.

Q563 Dr Huppert: Just to amplify the question from my colleague, do you have any evidence to suggest that when countries implement measures that are seen to be discriminatory-disproportionate stops and searches, what used to be called control orders, things of that sort-it makes it more likely that people will engage in conflict?

Dr Hegghammer: No, I cannot say that we have solid evidence of that. There might be anecdotal evidence or we might make the case for that in certain situations, but the problem is that it is always very difficult to disentangle the effect of particular variables-particular factors like that-from other things that are going on in that society at the same time.

If you study the profiles and backgrounds of people who become militants, you will find some people who will report becoming motivated partly due to harassment or that kind of thing, but you will also find lots of people who do not-who do what they do for other reasons-so we just do not know, is the short answer to that.

Q564 Michael Ellis: Dr Hegghammer, I notice that you said in answer to a question put by one of my colleagues that you thought it would be extremely unlikely-I think those were your words-that we will not see some sort of plots against the UK from these British citizens who have been fighting abroad. Is that correct? Am I characterising what you said correctly?

Dr Hegghammer: Yes. I think I originally said in Europe, but I am willing to extend it to the UK, because in fact you may already have had such a plot, last autumn. The investigation is still ongoing, but there is some indication that it did involve a Syria veteran

Q565 Michael Ellis: So there are some indications that a plot has already occurred, but can I just pinpoint you to the UK as opposed to Europe generally? I think you said earlier in your remarks that the UK is such a large country, with such wide-ranging interests, that it is particularly prone to this. Is the strategy of systematically targeting the west one that you see as a real and present danger to the UK?

Dr Hegghammer: I am saying that right now the organisations fighting in Syria do not have such a strategy. From all that I can see, they are not systematically trying to mount operations in the west. However, if they do so in the future, they will be able to mount serious plots in the west. It is reasonable to think that the UK would be quite high up on their targeting list, given the history of targeting. I would add that even though we do not see such a strategy at the moment, there have been indications or signs in the past six months that are quite worrying.

Q566 Michael Ellis: So are saying that in your view there is a serious danger?

Dr Hegghammer: Yes, I am saying that at the moment we do not see any signs of a concerted effort by the groups on the ground in Syria to target the west, but there have been some indications in the past six months that such a change might happen, and I am saying "might". Those indications include statements and threats by foreign fighters in Syria-including British ones-and reports conveyed by intelligence officials, like James Clapper in the US, that dominant groups in Syria have now established training camps dedicated to the grooming of operatives in the west. We lack details on the precise strategic motivation behind it but it is certainly not-

Q567 Michael Ellis: If they were to strategically focus on the UK, do you feel that they might find it quite easy to launch such an attack? You have talked about developments in the last six months, and my final question to you is: can you put some quantifiable measure, some percentile, on the likelihood of them making such a move?

Dr Hegghammer: I hesitate to quantify this, because it depends on so many variables, not least how long the war lasts. I would say that if the war goes on for another five years, I would expect that a group-or one faction of a group at least-will try to adopt such a strategy at some point.

Michael Ellis: Thank you.

Dr Hegghammer: Can I just add this? On this issue of organised strategies compared with more scattered self-started plots, I think it is a crucial distinction. Right now, there is a lot of focus on the threat from Syria and I think there is a danger of confirmation bias-that small incidents happening in Europe are seen as something strategic and that we over-react on the basis of that.

Chair: Thank you.

Q568 Lorraine Fullbrook: Dr Hegghammer, there are some suggestions that foreign fighters in Syria are fighting a sectarian war rather than a war against the west and are therefore less dangerous than those who travel to Afghanistan and Iraq. Do you think this is a valid distinction or does this cloud the debate?

Dr Hegghammer: To some extent it is, because it is related to this point of mine that the groups in the theatre are not actively targeting the west. The jihadi groups in Syria are involved with a strong sectarian dimension in the war and there is a lot more talk about Shi’ites, and their hatred for Shi’ites, than there is talk about the west and their hatred for the west, but we have to bear in mind that, especially in the foreign fighter community and among the transnational jihadis, these opinions can change quickly. It is not very long ago that sectarianism was not much on their minds at all-they would focus more on the western threat. They switched quite quickly in the context of the Syrian war, but I feel that they could equally switch back again, given the right circumstances.

Q569 Lorraine Fullbrook: Ultimately, you think that the foreign fighters in Syria are as dangerous as those who travel to Afghanistan and Iraq?

Dr Hegghammer: I would say at this point they are probably as dangerous as the ones who went to Iraq, but they are not as dangerous as the ones who went to Afghanistan.

I alluded to this earlier, but there is a huge difference between Iraq and Afghanistan. Iraq produced very few plots in the west-the blow-back was very low-while AfPak has had a very high blow-back rate, because it has had an organisation, al-Qaeda central, which has all along had as its main objective all along to carry out attacks in the west.

Q570 Mr Clappison: Dr Hegghammer, a few moments ago you were asked various questions speculating on what may lead somebody to go to fight in Syria. In your view, what it is that drives a young man to go and fight in Syria?

Dr Hegghammer: I have not studied the profiles of outgoing foreign fighters in detail, but my impression is that there is a wide range of motivations. Some of them are idealistic and to some extent laudable: it is about helping fellow Muslims in need and providing humanitarian assistance and other forms of support. There are also people who leave with the more nefarious intention of wanting to help build a very strict, al-Qaeda style, sharia state in Syria. Then again there is another category of motivations that are more proximate, about the social dimension-the search for camaraderie; the joy and excitement of adventure; the pleasure of doing something with your life; making a difference: all that kind of thing.

Q571 Mr Clappison: That is a common feature of people going to conflicts. There needs to be a cause first, though, does there not?

Dr Hegghammer: Excuse me?

Mr Clappison: That is what people do-people join armed forces and all sorts of conflict situations with those sorts of motivations in mind-but there has to be a cause behind them first, does there not? Is that right?

Dr Hegghammer: In many cases it is about a general kind of pre-disposition to this type of activism, then a particular opportunity comes along, in the form of a friend suggesting a trip, or some kind of recruiter coming into their orbit explaining that it can be done in this particular way-that kind of thing. It is a combination of a pre-disposition and an opportunity in the form of some kind of social link or social relation. My impression is that most people go with friends and they get the idea from people in their social networks. There are few people who are completely self-mobilised, entirely based on internet propaganda.

Q572 Mr Clappison: The situation among the rebel groups in Syria has become really rather complex. You have made the distinction between those fighting with local insurgents and those fighting with international terrorist groups. Could you tell us how you would view those who are fighting with the al-Nusra Front or the ISIS?

Dr Hegghammer: Both the al-Nusra Front and the ISIS are very radical Islamist groups who use terrorist tactics within the war theatre, even they do not do operations in the west as yet. Syria specialists-of which I am not one-say that there is a slight difference between the al-Nusra Front and the ISIS, in that the ISIS is a more trans-nationally minded organisation. The al-Nusra Front has more of a Syria-focused agenda. It is reflected in their names. ISIS stands for Islamic States of Iraq and Syria. They pose themselves as an alternative state that will transcend the Iraqi-Syrian border and reject the current international system in that region. The al-Nusra Front does not call itself a state because it wants to build an Islamic state within the current borders of Syria.

Based on that, some assume that the ISIS is the more internationally minded and perhaps the more dangerous from a western perspective. However, the thing is that it is the al-Nusra Front that has the strongest links with al-Qaeda central.

Mr Clappison: I was going to ask you that.

Dr Hegghammer: You may have seen the report last week about the al-Qaeda leader, al Ayman al-Zawahiri, disowning the ISIS saying they are no longer part of the al-Qaeda franchise and saying that the al-Nusra Front is their only partner in Syria. That creates a paradoxical situation in which the al-Nusra Front is characterised as less radical, but it is connected to a very dangerous organisation.

I happen to think that the current situation, in which the al-Nusra Front is in some kind of debt of gratitude to al-Qaeda central-for having condoned it and for having disowned its local rival-means it is not unfeasible that the al-Nusra Front might help or facilitate operations by al-Qaeda central using foreign fighters in Syria, so that when a representative from al-Qaeda central comes along and says, "Can we please use some of your operatives or some of the foreign-fighters for one of our projects?" it will be difficult for them to say no. So even though the ISIS may seem more radical, the al-Nusra Front is the group to watch.

Q573 Mr Clappison: Very briefly, have you seen any evidence of anti-western animus in Syria on the part of the al-Nusra Front-attacks on civilians or journalists or anything like that?

Dr Hegghammer: I don’t follow the in-theatre developments in enough detail to say for certain. I would assume that that has been the case, but it is often difficult to attribute particular developments to particular groups.

Chair: Thank you very much.

Q574 Mr Winnick: You have given evidence today, doctor, obviously because of your deep understanding, the establishment that you run and the evidence that you have given to various organisations in different countries. I wonder if I can put this question to you. It is obviously very difficult to forecast; I am asking frankly if you have any opinion. How long do you think it is likely that Islamic terrorism is going to last? Is it a matter of five, 10, 15 years, or as long as European communism lasted?

Dr Hegghammer: If you had asked me that question two or three years ago, I would have been able to give you a more optimistic answer, but things have happened over the past two or three years that have made me revise that estimate substantially. The Syrian war and other developments suggest to me that we are going to see this phenomenon last for a long time. A very conservative estimate would be 15 to 20 years, and I suspect it will last longer. There is an entire new generation of militants being socialised into violence in Syria. There are more Jihadist groups across the Middle East now than there was right after 9/11. There are more people under arms. Basically this movement does not show very many signs of weakening at this point in time, so I think this will go on for several decades.

Q575 Chair: Thank you. Are you also telling this Committee that the recruitment that you mentioned is going on in the UK through the medium of, for example, the internet? How are they recruiting new people? We understand those who decide on their own to go out to Syria, but they are presumably seduced by a particular ideology. How is this recruitment happening?

Dr Hegghammer: I think it happens through various channels. Of course propaganda on social media and other websites is very important. I think it is not just the propaganda in itself that motivates people. You do not necessarily need the al-Qaeda propaganda to motivate people to go to Syria; some of the regular news reporting of what is happening there will motivate some people to have the view that they are somehow responsible for defending fellow Muslims in need.

Similarly, social media affects recruitment simply by linking people up-Facebook, for example. When someone travels to Syria and posts pictures from there and his friends see those pictures, those friends are more likely to be inspired to go. That is not really propaganda; that is just regular information conveyed through online social media that then moves into recruitment. We should not focus too much on the propaganda products themselves, but more on the platforms from which the kind of information is conveyed.

Q576 Chair: I started with Abu Suleiman al-Britani. I want to end with this. The Daily Telegraph report that British Muslims have carried out acts of torture and possible executions in Syria, and they have posted some of this information and footage on the internet, with people being flogged with an iron bar. Is there evidence that British people are involved in such activities? It has been on the internet and we have seen it on Facebook, but do you have evidence to corroborate that?

Dr Hegghammer: Yes, I believe I do. Syria is the most social media-active conflict in history and there is an enormous amount of audio-visual documentation produced by rebels themselves, documenting the things they do, and there is no shortage of proof that foreign fighters are involved in serious acts of violence and so on in Syria.

Chair: Dr Hegghammer, we are most grateful. Thank you very much for joining us from Oslo to give your views to this Committee. We may be writing to you before the end of our inquiry with further questions and we would be most grateful if you could answer them, but we are extremely grateful to you for helping us with our deliberations. Thank you very much indeed.

Examination of Witness

Witness: Professor Sir David Omand, former Head, GCHQ, gave evidence

Q577 Chair: I welcome our next witness, Professor Sir David Omand, GCB and former Head of GCHQ. Thank you very much for coming. I noticed that you were in the previous session, so we might be asking you some questions about what we all saw.

Let me start with a question about Edward Snowden. After the leaks in The Guardian you were quite specific. You seemed to be quite angry over what had happened and you said in a Times interview in October 2013: "The assumption the experts are working on is that all that information, or almost all of it, will now be in the hands of Moscow and Beijing. It’s the most catastrophic loss to British intelligence ever, much worse than Burgess and MacLean in the Fifties". That is a pretty sweeping statement and it goes well beyond what the head of MI5 and the head of MI6 said in evidence.

Professor Sir David Omand: The second part of that statement I certainly stand by. Indeed, what has emerged since I said that bears that out, not only in relation to the United Kingdom, but also in relation to the United States. More has emerged about the security measures taken by Mr Snowden to try to ensure he had control of his material. It is still my assessment that it is unlikely that intelligence services, of the professionalism of both the Chinese and the Russian services, have not found ways of accessing at least some of this material. Even if it was heavily encrypted, over a period of time they would be able to uncover it. That is why in the same statement I describe this as a "slow-motion car crash".

Q578 Chair: It went much further than evidence given by John Sawers and others to our sister Committee.

Professor Sir David Omand: I have no reason to believe that they would disagree with what I said. Do you think-I should not ask you a question, Mr Chairman, but let me put it rhetorically.

Q579 Chair: You can ask me anything. I have no information on this. You were the Head of GCHQ, so you have all the information.

Professor Sir David Omand: Let me ask the question rhetorically of myself: can we think of any other loss of intelligence information on this scale, where what has been revealed already is damaging, but what is potentially able to be revealed, from the totality of the material, really would be devastating? My remark of course was to the loss of the information.

Q580 Chair: I am sure, because the latest leak story suggests that GCHQ had a covert unit that uses a honey trap, trying to get people involved in sexual liaisons, texting anonymous messages to friends and neighbours to discredit targets from hackers. Such activity, if it is happening-and presumably may have happened under you, because there is no indication that this is something that happened last week, so you could well have been in charge of such covert operations-do you not think that Parliament and the people, through legitimate scrutiny, have a right to know that their security services are involved in such activity?

Professor Sir David Omand: Mr Chairman, just to answer your innuendo first, I have no knowledge of such activities, either in my time or subsequently. I suspect that the piece of journalism to which you refer requires some quite close scrutiny to try to work out what it means exactly. On the thrust of the point about Parliament, of course you are absolutely right. That is why we have the Intelligence and Security Committee of Parliament.

Q581 Chair: Yes, but the Intelligence and Security Committee of Parliament is not elected, is it? Until very recently the Intelligence and Security Committee of Parliament, and other methods of scrutinising, have conducted their business in private.

Professor Sir David Omand: I do not wish to intrude on the private grief between two parliamentary Committees, Mr Chairman.

Q582 Chair: I am not asking you to do that.

Professor Sir David Omand: It was Parliament itself that gave greater powers to the ISC.

Q583 Chair: Sir David, sorry, you are very experienced: you were Permanent Secretary; you are the mandarin’s mandarin, if I can put it like that. I am putting to you a question; I do not want you to adjudicate between parliamentary Committees. I am asking you a question. Until recently this has been occurring in secret, has it not? As far as I can remember, when you were Head of GCHQ you did not appear before the Intelligence and Security Committee-because it did not have the powers it does now-and give evidence in open session, did you?

Professor Sir David Omand: Not in open session, nor would that appropriate at all, in my view. These are not matters for open session. That is why in its wisdom Parliament voted the Act to set up an ISC and subsequently give it greater powers, so that it can be given the full facts in private.

Q584 Chair: So did you prefer the architecture that existed at the time you were in charge of GCHQ? Forget about the wisdom of Parliament-of course Parliament is always wise. In terms of the way in which you do your work, do you feel that it is a better system now that the heads of these services appear before the Committee, and do you think that there is scope for extending it further? One of the points made by Alan Rusbridger to this Committee is that because the architecture of scrutiny is so poor, the only option is that journalists have to produce this information so that it is put in the public domain. You are no longer the Head of GCHQ; you are a very distinguished academic and you come here of your own free will. Do you think that we should go that step further, as they have done in the United States of America, where their committees are able to question the heads of their services much more regularly and with a much bigger sense of scrutiny?

Professor Sir David Omand: I am personally more comfortable with the situation we are in now, where the Intelligence and Security Committee has, for example, the right to demand papers rather than to request information without any assurance that they will actually get to see the documents concerned.

The Committee worked well in my day. The issues it was dealing with were perhaps slightly simpler than those of today. I think it was right for Parliament to move on and to grant additional powers, but I would have to say that, in my view, public hearings can only have one purpose: that is so that the public at large, and indeed the rest of Parliament, through the work of the Committee, can see the moral fibre of the people who are running these agencies. It is quite inappropriate for the Committee to attempt to establish, in public sessions, evidence about matters that should not be debated first in public. I think the Committee probably has an undervalued potential role in checking out whether those who run the intelligence agencies-not just the heads of the agencies-share the values, which I hope we all do, about a free and democratic society and have a proper respect for privacy. That is something that the experienced hands on the Intelligence and Security Committee can establish. They can visit the intelligence agencies, they can talk to junior staff and they can get their own sense about whether these are well regulated.

I would not accept that the American oversight system has worked better than ours. I think ours has worked considerably better than theirs. Indeed, there is some anger in American oversight circles that they did not get told everything they should have been told by the Executive about what the National Security Agency was doing.

Q585 Chair: Indeed; so you are telling this Committee that, in your view, an open session with the heads of the services before the Intelligence and Security Committee is to look at the moral fibre of those who are giving evidence.

Professor Sir David Omand: Yes, so that the public can see in the flesh who it is that-

Chair: That they are good people?

Professor Sir David Omand: That they are good people.

Chair: Very moral and upright people?

Professor Sir David Omand: Yes.

Q586 Dr Huppert: Thank you very much, Sir David; it is very good to see you again. Tempting as it is to dwell on US information security and how they managed to lose so much data, I think we probably should not. In 2012 in your book for Demos, #Intelligence, you said: "Democratic legitimacy demands that, where new methods of intelligence gathering and use are to be introduced, they should be on a firm legal basis and rest on parliamentary and public understanding of what is involved". Do you think we have managed to achieve that with the new techniques that are available to use, now that more and more information is online? Has there been parliamentary and public understanding of it?

Professor Sir David Omand: No, and I think over the last few years more could have been done to explain on the one hand the purposes of investing in the new technology in this way; and secondly, some of what is involved. I say "some", because there are limits on how far disclosure should go. I am sure the Committee will have looked at the code of practice for the Regulation of Investigatory Powers Act, which is on the web. Does that give a clear view in common language, plain English, of how it all works? It is better than trying to read the Act itself, which is quite difficult to follow, but I think more could be done.

I have been saying to some of my old colleagues, "Why don’t you rewrite the code of practice, expand it, explain the difference between communications data on the one hand and content on the other?" That would be a service in the direction of your question.

Q587 Dr Huppert: That sounds like a helpful call for openness from the agencies. What more can we do within Parliament to make sure that there is discussion about this, as you have called for?

Professor Sir David Omand: Well-attended debates on these issues when the Intelligence and Security Committee produces its report would help. I do not detect that in the past there has been that much interest in this subject, but perhaps there are many more interesting things for Parliament to be debating. Showing interest I think is a good start.

Q588 Dr Huppert: One last question for now, if I can, Chair. You talked about the distinction between content and communications data. We have discussed this here before. Do you really think it is a robust definition, particularly given the definition under 21(4)(c) for subscriber data, described as communication data so not content, "Any information that is not traffic or user data held or obtained in relation to persons to whom he provides the service, by a person providing that service"? That means that any information held by Facebook about me is subscriber data, if I am communicating.

Professor Sir David Omand: No.

Q589 Dr Huppert: Where in the law does it say it isn’t?

Professor Sir David Omand: I think that is in the next section, which I have to confess is a little obscure. I was the Permanent Secretary in the Home Office when the Bill was put together and then presented. The instructions to parliamentary draftsmen were to make it technology-neutral, because everyone could see that the technology was moving very fast. Parliamentary draftsmen did an excellent job in doing that, but as a result I do not think the ordinary person or Member of Parliament would be able to follow the Act without a lawyer to explain how these different sections interact. The plain truth is that there has been a major public misunderstanding over this-promoted by the media-because the communications data is defined in the Act and the analysts and the intelligence community have to follow the law in the Act.

Q590 Dr Huppert: I cannot find what you say in the next section either. Could you write to us and explain how the information I am concerned about-the subscriber data-is excluded? If you can explain to us, that would be very helpful.

Professor Sir David Omand: Yes; I am conscious again that the Intelligence and Security Committee are also looking at it. Perhaps the Clerks could get together.

Chair: All right. It is possible for two Committees to be interested at the same time; we do not all just do the same thing following each other.

Q591 Paul Flynn: I want to ask about two matters in my time in Parliament, the first of which is the decision to join the war in Iraq in 2003, which the security services and the Intelligence Committee were cheerleaders for and supporters of. We now know that that decision meant the loss of 179 British lives. Those lives were sacrificed in the cause of trying to protect the United Kingdom from attacks from non-existent weapons of mass destruction. Do you think that there has been some improvement now and that the loss of confidence in the Committee and the security services from that event-and another one I will mention in a moment-has been repaired in some way?

Professor Sir David Omand: Time has healed to some extent, but it was a very significant blow to the credibility of the intelligence community and we fully accept that there were significant matters that we got wrong.

I think you mentioned the Security Service in your question. That may have been a reference to the Secret Intelligence Service. I think Dame Manningham-Buller gave evidence to the Chilcot Committee-as I did-pointing out that in our joint Intelligence Committee reports we had indeed made clear that the consequence of intervention in Iraq would be an increase in radicalisation domestically.

Q592 Paul Flynn: You accepted the likely existence of weapons of mass destruction, did you not?

Professor Sir David Omand: Yes.

Paul Flynn: And you were wrong.

Professor Sir David Omand: Yes. Well, we believe we were wrong.

Q593 Paul Flynn: Just another matter, if I can briefly go into it. A similar, but even worse decision-which a Conservative Member asked for an inquiry into yesterday-was that in 2006, there was debate in the House on the wisdom of an incursion into Helmand Province, where at that time only two British soldiers had died in combat. The justification for going in-again, supported by the cheerleaders on the Security Committee-was that we would be there for a maximum of three years, end the growing of heroin, which is now at a record level, and come out in the hope that not a shot would be fired. It was compared in the debate in the Commons as equivalent to the charge of the light brigade. The person who did that understated the situation because the numbers of British casualties-lives that have been lost in Helmand-are three times the numbers lost in the charge of the light brigade. When we look back at the record of the security services and the Intelligence Committee, was this not a terrible mistake to support Government at that time? Should they not have been providing a check on the Government?

Chair: Thank you, Mr Flynn. A brief answer, because we need to move on.

Professor Sir David Omand: We should look forward to the publication of the official history of the Joint Intelligence Committee, which at the moment is being written by one of my colleagues at King’s College. I hope that will be published within a few months, and that will perhaps set the record straight about the overall balance between getting things right and getting things wrong.

Q594 Paul Flynn: Would you answer the question?

Professor Sir David Omand: I had left Government service by then. I do not think I have any way in which I can help.

Q595 Paul Flynn: Has there been an improvement that should increase public trust in the intelligence services after these two calamities?

Professor Sir David Omand: I would simply point to the number of terrorist plots-directly relevant to the inquiry you are engaged in here-which have been frustrated by the activities of the intelligence services, and we are all safer because of it.

Chair: Thank you. Let us move on. We will come back to you later, Mr Flynn; we want to move on to other issues after your questions.

Q596 Mr Clappison: I think we all appreciate the great debt of gratitude for the work that is done by the security services, which we do not see, and some of our constituencies close to London have seen the consequences of what can happen when people travel into London and get blown up on buses just going about their day’s work.

Can I ask you another question on supervision and parliamentary accountability? You said that MPs could perhaps pay more attention to debating reports and so forth. Can I raise with you one area where something does seem to have gone wrong-and which MPs certainly did take an interest in-and that is the question of extraordinary rendition? I remember colleagues asking question after question about extraordinary rendition and being told that there was no UK involvement at all. If you are told that, you have the equivalent of the straight bat play and it is very difficult to take it any further. We then find out that that is not entirely the case. Can you give us your view as to what went wrong with accountability on extraordinary rendition?

Professor Sir David Omand: I am not in a position to answer that. As I understand it, the police are still conducting inquiries that are relevant to that. I really do not think it is something that I should be commenting on in public.

Q597 Mr Clappison: You can understand the frustrations of parliamentarians when we do ask questions conscientiously and are given the equivalent of a straight bat and it turns out not to be the case?

Professor Sir David Omand: That is a matter where, again, the Intelligence and Security Committee have produced at least two reports, so if parliamentarians have concerns, I would have thought that they would wish to direct them to their colleagues who sit on that-

Q598 Chair: Can I just explain something to you about the way in which Select Committees operate? As a former Permanent Secretary, you ought to know this. When we have witnesses here, it is open to Members of the House to ask witnesses their questions. You are not here to speak on behalf of the Intelligence and Security Committee. Mr Clappison is perfectly in order under the rules of Parliament-which you have said is very wise-to put a question to you. He is asking for your opinion, not the opinion of the Intelligence and Security Committee. We can get that at any time, because we see them every day; he is asking for your opinion. We do not see you every day; you are here as a witness and that is what he is putting to you.

Professor Sir David Omand: I have just given my opinion.

Q599 Chair: Sorry, what was that again, for the record?

Professor Sir David Omand: My opinion is that it would be wise for Members of Parliament who have concerns about matters like that to raise it with the Committee of the House that is already examining these matters.

Chair: Sir David, that is not your opinion. We are asking your opinion on the issue that has been raised by Mr Clappison. As you have said, you have left the Government service. You are supposed to be the Professor of War Studies at King’s College, London, and you have held all these great offices of state. As far as we are concerned, you are an expert, and you know very well when you come before a Select Committee that the members are going to ask you questions. This is not a tea party; this is a Select Committee of the House. We know we can ask Sir Malcolm Rifkind questions, and we know how to read reports; Mr Clappison is asking you a specific question. Would you like to put it again, Mr Clappison-otherwise you will be in contempt, Sir David.

Q600 Mr Clappison: I asked what you thought in your opinion went wrong with accountability on extraordinary rendition, when that was an issue before the House. Did you think that something has gone wrong?

Professor Sir David Omand: I do not think anything went wrong on accountability, except that perhaps we should have moved rather earlier than we did to ensure that new guidance was issued and available to members of the service, but the law on rendition has always been very clear in this country. That was well understood. Given the circumstances of our involvements with the United States, I regard it as a matter of great pride that there were not more issues that arose out of that relationship. In fact, British agencies and armed forces acted with enormous discretion and common sense. That is my view.

Chair: That is a very helpful answer.

Q601 Mr Clappison: Put simply, do you not think there is something wrong with accountability when MPs who ask about it are told, "No, there is no involvement at all in extraordinary rendition and torture" and then it turns out to be the case that there was some involvement? Surely there is something wrong with accountability there.

Professor Sir David Omand: I do not think I can answer that without getting into specifics and specific cases.

Q602 Chair: So you have specific cases to tell the Committee about, which we could take in private?

Professor Sir David Omand: No, but if you do not have specific cases, then I think the whole discussion is moot. If there are some specific cases, and those are public knowledge-

Chair: The best course of action in respect of specific cases is that we write to you privately about that. Shall we do that?

Professor Sir David Omand: Yes.

Q603 Mark Reckless: Sir David, I do not see the need to refer to specific cases. It seems to me that what you are being asked was: is accountability okay or were there any other concerns about it? You say it is fine and there is no reason to have concern. Is it not the case that MPs when posing this question were told there was no involvement and it has since become clear there was some involvement? How is it consistent to say there is no problem with accountability, when MPs were told there is no involvement and it has become clear there is some involvement?

Professor Sir David Omand: If we take the parallel of military operations, we have a system of accountability for the actions of our armed forces. That does not, of itself, guarantee there will never be mistakes made. I think we are talking about different things.

Q604 Mark Reckless: You certainly were in your answer to the question that I and Mr Clappison were asking. MPs put questions about whether there was any involvement from our security services in these matters of extraordinary rendition. Was it not the case they were told "No" and we now know there was some? How can you then say there is no problem about the accountability measures?

Professor Sir David Omand: If you are saying to me, "Was the statement that was made to the parliamentary Committee"-I do not have in front of me exactly what was said at the time-"said in good faith on the information available then?", then I am sure it was.

Q605 Mr Clappison: We were told this on the Floor of the House. We were given answers that had no room for any misunderstanding. We were given absolutely categorical, comprehensive answers that there was no involvement at all. It subsequently turned out to be the case that there was and it has been admitted that there was in specific cases. Can you understand the frustration of parliamentarians who are trying to hold Ministers or the secret services to account and being told something that was not the case?

Professor Sir David Omand: Yes, I can certainly understand that. As I say, I do not think this necessarily bears on the question of accountability.

Chair: That is very helpful.

Q606 Michael Ellis: Sir David, can I just go back to a question that the Chairman put to you some time ago, at the start of your evidence session? In relation to Snowden, is it correct to say, from your very recent directorship of GCHQ, that the Chinese and the Russians, for example, are able to get into heavily protected material that is even under Government protection? In other words, do they have the means and the ability and that-if you cannot answer that question, let me put it this way-they seek to obtain access to even the most heavily protected material? If you answer that question in the affirmative, my question to you is: do you believe that the ability of journalists and individuals like Snowden is such that they are capable of preventing foreign actors with state assistance from obtaining access to their protected documents?

Professor Sir David Omand: I think it is now quite well documented-and I would refer the Committee to the US report, the Mandiant report on Chinese cyber-espionage-that indeed it is possible to attack Government systems, even protected systems. Through a combination of social engineering, obtaining access through guile and then the planting of maligned software, it is indeed possible to do that. Defensive techniques have improved enormously, so it would be possible, with enough effort, to keep secrets secret. What you would not do in those circumstances is employ someone like Edward Snowden, and you would not give them the untrammelled access that apparently his contracting firm gave him. Provided you were sensible about that kind of issue, then yes, I think it is possible to keep secrets secret.

Q607 Michael Ellis: On the issue of oversight, I think most people in the UK would accept that, for obvious reasons, nation states do have to have secrets. Have the unauthorised leaks and the media focus from certain quarters had a negative effect on morale on the hardworking staff-whom I commend-who work in GCHQ on national security matters?

Professor Sir David Omand: Clearly, I can only answer from the outside. My impression is that, yes, it has been a bitter blow, particularly to see years of work being exposed. There are concerns about their reputation. They have been accused of breaking the law-I do not believe they do or have done, but that is a common accusation. They have been accused of going around the back of the law, using the United States as a back door to do things that British law would not allow them to do. I do not believe that is true.

If they are subject to those kinds of accusations-including, I may say, by Members of your House-this is inevitably not going to be good for morale. It is not good, too, for families, and one has to have regard for the fact that these are ordinary fellow citizens. They go home; they talk to their families; they are part of social groups. That cannot be comfortable. In terms of recruiting, would parents advise a young person to join an organisation that is routinely accused of mass surveillance, which they are not engaged in?

On the other hand, the upside is that I think they are a very well-led organisation. All the managers I have met, long since my time, are extremely capable, very intelligent and very sympathetic individuals, so I am reasonably optimistic that they will ride this out.

Q608 Michael Ellis: My final point on this issue to you is this. From your knowledge of the matter and of GCHQ, do you believe that there will be serious cost implications to the public purse in the unauthorised leaking of information that in some cases has been worked on for years by paid staff of GCHQ? These are projects that have cost perhaps millions to work on, staff who have been rostered to work on projects for years and their salaries. Do you think there has been a cost effect that will be very expensive to the public purse of these issues?

Professor Sir David Omand: I think there will be a cost effect. I would find it quite hard to know exactly how you would calculate it. The technologies keep moving, so you are continually reinvesting. What I think is more concerning is a loss of intelligence, at least for a period of some years. There will be less information, less knowledge on which to base decisions, whether these are military, political, law enforcement decisions, or decisions relating to the campaign that is the subject of this inquiry. All of that has a very heavy cost to the public, but I find it quite difficult to know how to put a price on it.

Q609 Lorraine Fullbrook: Sir David, can I ask what you think of the offer of Huawei, the Chinese mobile telecommunication company, to put mobile communications free of charge in the London Underground?

Professor Sir David Omand: It is not a matter I have given any thought to. I am out of touch.

Lorraine Fullbrook: Really?

Professor Sir David Omand: I am out of touch with the current debate over Huawei. I was involved during my time at looking at how far that company should be allowed to sell products into the critical infrastructure, and steps were taken to ensure that we are not wholly dependent on it.

Lorraine Fullbrook: That is really my question.

Professor Sir David Omand: I cannot specifically comment on any of the arrangements made for London Underground. I simply do not know.

Q610 Lorraine Fullbrook: Or any infrastructure, then, that this company is offering free of charge in the UK’s mobile telecommunications infrastructure. Do you think that is a good thing or a bad thing?

Professor Sir David Omand: Under the right conditions and the right kind of technical supervision, perhaps it could be made to work. I cannot give you a judgment; it would need a very careful risk analysis before I would say, "Yes, that is obviously a good thing," but I would not rule it out just because they are a Chinese company. They have a world brand to protect and nothing would demolish that faster than being caught planting some Trojan virus in a key communication system. There are two sides to the argument that would need to be balanced, and I am not in a position to make that balance.

Chair: This is not an episode of Sherlock Holmes, is it?

Q611 Mr Winnick: Sir David, we all know of the ongoing threat to the security of our country from the terrorists-7/7 of course and all that has happened since abroad, and in Kenya very recently. Following on from what Mr Clappison said about the Intelligence and Security Committee and what happened, did it come as a surprise to you that the Master of the Rolls at the time, Lord Neuberger, said this in a ruling in a case: "Some security service officials appear to have a dubious record when it comes to human rights and coercive techniques"? Did that come as a surprise to you?

Professor Sir David Omand: Yes. Frankly, at the time when I read it, I did not see the basis on which that remark was made.

Q612 Mr Winnick: I am surprised that you should say that, because a year earlier when the same case-Binyam Mohamed-came before an American court, descriptions were given of the tortures that he was subjected to. His genitals were mutilated. He was deprived of sleep and food and he was suddenly transported from one foreign prison to another. No one has suggested that British security officials were participants in the torture. I have heard no such allegation, but I have heard-hence Lord Neuberger’s comments-that there was complicity. Should the Intelligence and Security Committee not have been aware of what was happening? At the time, there was absolutely no report from that Committee of such matters.

Professor Sir David Omand: If I might just ask for clarification, do you mean aware at the time of the activity or aware, because I take this-

Q613 Mr Winnick: We are told that the Intelligence and Security Committee is briefed by security officials. I could well understand they are not going to necessarily tell the Committee about such occurrences. If they were complicit, obviously one would not expect them to do so, but should the Intelligence and Security Committee not have probed and investigated, because there were allegations that were around before the court case?

Professor Sir David Omand: I simply do not know whether they probed or not. If they did, it would have been in private and I simply would not know.

Q614 Mr Winnick: You say you were surprised by Lord Neuberger’s comments. Does that mean that you worked on the assumption that no security service person-MI5, MI6, GCHQ-would have ever, under any circumstances since the end of the Second World War, been complicit in torture?

Professor Sir David Omand: I certainly cannot say that, nor about the armed services. The Public Record Office from our colonial past has some disturbing stories. If we are talking about the period after Parliament decided to put the agencies on a statutory footing, then I would be very confident that that is the case.

Q615 Mr Winnick: Just a last question if I may, Chair. If these allegations are correct-and Lord Neuberger would hardly have made those comments unless he had every reason and justification for doing so, however much you disagree or were surprised by his comments-what lessons should be learned? Apart from the fact there should not be complicity and torture, what lessons should the political masters take from that?

Professor Sir David Omand: There are a number of lessons that one must take from that. One is about the education and training of those who serve our country in those services, to ensure that they are under no misapprehension at all about what is expected of them. I believe that is done, but could more be done? It is a question that could be asked. I think we should look very hard at whether the boundary, the grey area, over what you call complicity is the fact of having a liaison between our service and a foreign service overseas, which may be in a region that is vital for our security, but whose conduct as an agency falls far short than we would insist upon. Should we not have such relations? If we do have such relations, which are very much in our security interest, what are the ground rules, and are we all clear enough about what those ground rules are?

In response to Mr Clappison, I think I did say that perhaps we should have moved rather earlier after 9/11 to make doubly certain that the instructions and the rules were clear. Eventually they were written up and issued. Would it have helped the personnel on the ground in a very far-flung, remote place, faced with working with people whose behaviours would have fallen short of our standards? It might have done, but in the end there is human judgment here, and individuals-particularly if they are out on their own somewhere-are going to have to make judgments.

Q616 Mr Winnick: You question the word "complicity", but surely the judgment should be absolutely clear that British Security Service personnel under no circumstances will be a party in any sense whatsoever to torture, however dubious some of those regimes are. Do you accept Have you said that or not?

Professor Sir David Omand: With respect, I think you have to define what "Be a party to" is. If the United Kingdom Government has a liaison relationship with country x, which is believed to, if not torture, then at least treat suspects inhumanely, should we break off relationships with that country? If we do have such relationships with that country, how do we manage that? If information from that country arrives with us that bears directly on the security of our citizens, do we refuse to read it? These are real issues. It is not as simple as-

Q617 Chair: Thank you. That is very helpful. We do need to move on; we can come back to this later if there is time. Can I just say to colleagues, we have two more witnesses after Sir David, so could I ask everyone to put brief questions? Sir David, you are an old hand at this, so brief answers, please.

Let me just turn back to the evidence of Thomas Hegghammer and a statement you made in 2010 that al-Qaeda was "on the wane"-I think you said-or the influence of al-Qaeda was waning, and that we must not give it any more impetus. Do you think that the Syrian conflict has done exactly that?

Professor Sir David Omand: I am afraid I do, yes.

Q618 Chair: Are you concerned and worried about the number of jihadists who are leaving our country, going to Syria, and then returning, possibly, to be involved in activities that put the lives of our people at risk?

Professor Sir David Omand: Yes, I am concerned. I am also concerned not just about numbers, but about an aspect that did not come out in the earlier evidence taking, which is the battle-hardened nature of the individual who returns. If you see any of the videos of the conflict-young men with an AK47, untrained, simply spraying bullets around-and you compare that to the terrorists who took over the Westgate shopping mall, who were trained and hardened, and who husbanded their ammunition, going from place to place not killing randomly, but very selectively, my concern is-

Q619 Chair: Yes, so your concern is the unprofessionalism. You contrasted two sorts of terrorists: the professional terrorist-the one who had been trained carefully to select victims-and perhaps the unprofessional terrorist, who is going from the United Kingdom, having seen this on the internet, looked at it on Facebook, and ending up on the border between Turkey and Syria-

Professor Sir David Omand-ending up as the professional. In other words, the fighter goes out there as perhaps a rather naive young man, but is battle-hardened by a few months of intensive combat, picks up all the training skills and comes back a very much more dangerous individual. That is not to predict that all of those who come back will be in that category.

Chair: Of course. We understand that.

Professor Sir David Omand: But it would only take a very small number to cause a real problem.

Q620 Chair: I know that things have changed since you have headed GCHQ and since you have been the Permanent Secretary, but the fact remains that the best way to stop this happening is to stop them leaving in the first place. Do you think we have got it right? Are we stopping enough of them leaving? Of course, we have read about particular stories of people being arrested even at the airport before they board planes to go to Turkey, for example. Are we doing enough to stop them leaving, to stop them becoming battle-hardened terrorists?

Professor Sir David Omand: I can only estimate. I think probably we are. Bearing in mind that some of those who travel are travelling to other destinations in order to finally make their way to Syria, it may not be evident to the authorities what their ultimate destination is. Some are travelling for humanitarian purposes, and there is a balance in the law here that has to be achieved.

Q621 Chair: We do not want individual cases from you, but having headed GCHQ-you are the only live witness we have, so to speak, who can tell us about the way in which the security services operate-would you know who these people are before they board that plane, or would you know who they were only when they got back? In other words, would they be under surveillance? Would a proportion of them be under surveillance?

Professor Sir David Omand: A proportion of them certainly would, because they would already have been picked up by the police and by the intelligence services as people holding a particularly violent, extremist view. They would therefore be under some form of surveillance or, at least, were they to leave the country that would then potentially flag it.

Chair: We understand.

Professor Sir David Omand: That could only be a proportion.

Q622 Chair: We know this is only a guess-because things have changed and you are only giving us a guess today-but of the 400 or so who we know have left our country, is there any way you can help this Committee?

Professor Sir David Omand: I could not even begin to hazard a guess, because I do not know.

Q623 Chair: Would it be less than 10?

Professor Sir David Omand: I simply do not know.

Chair: You would not know. Thank you very much.

Q624 Mark Reckless: Sir David, you have spoken before about the importance of capacity building in troubled states without relying just on military intervention. To what extent would you say that the FCO’s justice and human rights programme has that succeeded in doing that?

Professor Sir David Omand: This is a work in progress and results take quite a long time, but if we were to look at, say, Indonesia as a country-where both ourselves, the Australians and the United States have put great effort in to try to build the capacity of the Indonesian authorities to deal with violent jihadism-they have been really quite successful. It can be done, but it must be slow, patient work. Building a judicial system that carries respect, building a police service that does not torture-these are all things that may take a lot of effort to achieve. Corruption perhaps must be one of the most difficult to tackle, because it is so endemic in a number of countries, but if we do not reach out and try to help then we are missing a part of the overall strategy.

Q625 Mark Reckless: British policing generally has a high reputation overseas. In terms of what you saw of this capacity building and the systems, particularly on the policing side overseas, did you feel that the set of financial incentives for our police forces, or for individuals involved, was sufficient to bring forth the secondments and allocations of police to international duties and supporting this type of programme?

Professor Sir David Omand: No.

Q626 Mark Reckless: What should be done to improve them?

Professor Sir David Omand: A lot of effort over the years has been put in to try to find different mechanisms, but it is the case that if the Government so decides to deploy the armed forces, they will organise themselves and deploy in an orderly fashion. If you want to deploy a couple of dozen police officers in order to bolster the local effort, it is up to the individual chief constables. There are mechanisms to try to get volunteers; it is going to take quite a long time. It is much easier to mobilise the armed forces than the essential civil support that is needed. That is also true of the fire service, although the fire service in a different context has done a great deal overseas. It is true in, for example, prosecution, with prosecutors; it is true with judicial co-operation.

Given that we would always be talking about volunteers here, it is a little difficult to see how you could have a system that would guarantee you would be able to deliver. Some action has been taken at a European level. There are a number of countries that have been introducing people. I think it is very helpful for us to work with European partners on trying to do this. Police support is essential.

Q627 Dr Huppert: Sir David, in your book in 2010, you outlined six principles for intelligence, and other people have articulated other sets of principles. How do your six compare to the five Reform Government Surveillance principles from the big tech companies in the US, or the 13 International Principles on the Application of Human Rights Communication Surveillance? Have you done a comparison between those?

Professor Sir David Omand: I have not done a detailed comparison. I drew my principles essentially from the just war tradition, on the grounds that all intrusive intelligence activity carries moral hazard, and it has taken us centuries to evolve a set of principles for trying to tame the worst excesses of conflict-principles like proportionality, necessity and right authority. It strikes me that these principles do apply to intelligence activity, which carries moral hazard, either because it involves human intelligence, with all the risks to individuals and their families, or because it involves intruding into people’s privacy. Secret intelligence, in my book, is information that other people do not want you to have, so by definition you have to overcome their will. Therefore, by definition, there is always going to be some moral hazard involved in intelligence gathering. How do we tame this? Applying these time-honoured principles, such as proportionality and necessity, is one way of trying to do that.

Q628 Dr Huppert: If you do have a chance to have a look at the others, I would be interested in your comments on them and how realistic it would be to apply other sets as well. One of the six points is about proportionality. Point six says: "Recourse to secret intelligence sources must be a last resort". I think that is quite an interesting approach. I had a look through the various codes of practice from the Home Office. I cannot see anything that uses those words or anything I have spotted that is similar enough.

Professor Sir David Omand: I think there is a reference in one of the codes of practice on interception-you should look to see if you can find out the information without having to get a warrant, without interception. In other words, is it publicly available or whatever? I cannot remember exactly which code it is in, but I have seen such a reference. I agree with the thrust of your point, which is that it would be good to try to make these principles explicit. I hate to mention the Intelligence and Security Committee again, for fear of the Committee’s response, but I did write to them and give them a copy of these principles and say, "These are the principles you should be applying when you are quizzing the agency heads."

Q629 Dr Huppert: There is some disagreement on exactly what mass surveillance means-whether it means looking at content or just processing and parsing large amounts. How do you fit the idea of very large-scale scanning of communications, at least, with the idea of only doing it as a last resort? It seems to me that if you are doing it so proactively, it cannot be a last resort as well.

Professor Sir David Omand: No. I think the judgment is that there is a class of information that is important for security-for example, pre-emptive intelligence on terrorism or serious crime-which you are very unlikely to get any other way than by intrusive investigation. You then say, "Where would we go to get this information?" Increasingly, it is information you will find on the internet, because that is where everybody is doing their communicating. Therefore, given that it is a global network and anyone’s information is liable to pop up anywhere in the world, you inevitably get drawn-at least in the present stage of technology-into saying, "We are going to have to gather in an awful lot of this, a big haystack or set of haystacks, in order to try to find the bits we are looking for, the needles we are looking for". I think that is the kind of logic behind it, but you certainly should not be even going to start pulling out the needle if that is information you could have found out without intruding into somebody’s privacy.

Q630 Dr Huppert: It seems that if you are doing a large-scale programme-I do not think anybody doubts that there are large-scale programmes-that means, when it comes to considering an individual, you are not looking for alternative ways of finding information about them. You are necessarily starting off with your last resort of collecting this information before you have even started considering that person. It is suspicion, surely.

Professor Sir David Omand: On the face of the Act, the analyst does actually have to be able to demonstrate that what they are doing in trying to pull out a needle of some wanted piece of information, say from a computer that has been associated with a terrorist, is necessary as well as proportionate. It would clearly fail the "necessary" test if the information could readily be obtained, for example, by a Security Service operation directly with the individual. For a lot of this, it is the only way you will find it, if it is on the internet.

Chair: Thank you. I think we have spent quite enough time now on looking for needles in haystacks.

Q631 Paul Flynn: In 2004, Mr Abdel Hakim Belhadj, with his pregnant wife, was abducted from Bangkok Airport, flown to Gaddafi’s Libya and tortured. In 2005, Jack Straw denied that the British Government had any involvement in renditions. In 2011, Human Rights Watch discovered documents and published them which named the British MI6 agent who they claim had boasted about this abduction, and Jack Straw has subsequently said that he was advised by MI6 on this. No one would have the knowledge of this and the truth on this without Human Rights Watch. Many other matters we would not have the truth of if it was not for whistleblowers like Edward Snowden. Do you not agree that we do need the whistleblowers, and they do convey to the public the truth of what is going on, rather than listen gullibly as we are told-as I have been and as the Chairman has been-that there was no involvement with extraordinary rendition. We were lied to. Do we not need whistleblowers?

Professor Sir David Omand: Let me say that a true whistleblower, in accepted international convention, has to exhaust his remedies. For example, Mr Snowden could have gone to his employers-I understand why he would not do that; I would not press that point. He could have gone to the inspector general, the independent figure of his organisation. I would not press that point either. He could have gone to Congress. Just imagine if Mr Snowden-flanked perhaps by the editor of The Guardian and the editor of The New York Times-had walked into the Congressional Oversight Committee and said, "The White House has kept from you and the Executive have kept from you knowledge of a massive programme of collecting data on American citizens." There would have been a huge political stink. I am quite sure President Obama would have been forced to issue the sort of statement that he issued a few weeks ago.

Paul Flynn: He has.

Professor Sir David Omand: Mr Snowden would have achieved his objective and he would not have had to steal 58,000 British top-secret documents or 1.7 million-

Paul Flynn: There is very little time, so can I just make two points?

Professor Sir David Omand-he did not do that, so in my book he is not a whistleblower.

Q632 Paul Flynn: Monsieur Dick Marty, who is a very distinguished Swiss MP, who was described by a Foreign Secretary here to me as being a madman-he was not; I know him very well. He was the person who very bravely took up this issue in Europe. Successive British politicians denied what was going on. The question is: do we not have to rely on the whistleblowers, on the Dick Martys, on the Human Rights Watch, to get the truth? Otherwise we live in ignorance, as politicians and the public. Of course they supply this service to us, surely.

Professor Sir David Omand: I believe in the free press. Under no circumstances will I want to muzzle the press. If they can perform a public service, let them do that. In a well-regulated democracy, you don’t have to rely on the media.

Chair: Before we close, we do need to make progress.

Q633 Ian Austin: Do you share my incredulity that Members of Parliament regard someone who flees to China and then Russia as a source we are taking seriously on internet and press freedom?

Professor Sir David Omand: I, too, swallow hard when I hear these arguments.

Q634 Ian Austin: Would you agree with me that in the past, when intelligence personnel have fled to Russia with sensitive information, they have generally been regarded as traitors and not whistleblowers?

Professor Sir David Omand: That is certainly true. I do think that Mr Snowden did have a cause. His cause was what he believed to be the unconstitutional collection of data by the Federal Government on Americans-not about spying on anyone else-and he is in a long tradition of American libertarians who have not liked the idea of big government. He could have achieved that objective, the whistleblowing objective, without-

Q635 Ian Austin: Briefly, I agree with you about that, but the question is not whether he had a cause. You could argue that Blake and Philby and Maclean and Burgess and all the rest of them had a cause. The question is: is what he did justified, or has what he has done put the security of public servants who protect the rest of us at risk? That is the question, I think.

Professor Sir David Omand: I am sure you are right in your conclusion on that. Absolutely that is what has happened.

Q636 Lorraine Fullbrook: Sir David, I would like to ask about narcoterrorism. In north and particularly west Africa, there appears to be a high degree of synergy between terrorism and drug smuggling. Do you think there has to be more resource focused on the illicit drugs trade, or do you think the profits from this drugs trade are negligible compared to other forms of terrorist revenue, for example kidnapping of foreign nationals?

Professor Sir David Omand: It is only my impression, but I think I am more concerned about the connection between terrorists and serious organised criminal gangs in relation to the crossing of borders and smuggling of materials such as weapons than the financing of terrorist groups-if you remember that appalling attack in Spain, the Atocha attack, where the explosives were obtained from criminal sources. In future, too, it will be cyber-criminals who are exploiting the internet for gain, but who might be prepared to pass their techniques on or sell their techniques on for terrorist purposes. I think the nexus that you are talking about between serious criminality and terrorism is one to take extremely seriously.

Chair: We have a final question from Mr Ellis. If you can make it as brief as possible, please, which I am sure you will do.

Q637 Michael Ellis: Sir David, just further to Mr Austin’s very good points-if I may put it that way-Snowden was no whistleblower, was he? He was a traitor-a traitor to his country-but also someone who, irrespective of what options were available to him within the American system, stole 58,000 documents that were classified as secret and top-secret by the British Government. He thereby endangered British lives and British interests and British treasure, and did so without regard to the other recourses open to him that were not illegitimate. Would you agree with that?

Professor Sir David Omand: Yes, I would.

Mr Winnick: You surprise me.

Q638 Michael Ellis: Some of my colleagues on this Committee cannot resist interrupting my questions for some reason, Sir David-I wonder why that might be-but let us carry on.

Sir David, do you also agree with me that-contrary to the paranoid reaction of some about the surveillance state that you have already referred to-those who seek to defend this country and its people from terrorist activities and hostile forces should be commended and applauded, and that the work of our security and intelligence community is exemplary when compared with those equivalents around the world? Would you agree with me that this is an opportunity for you to commend the excellent work of those men and women?

Mr Winnick: What do you say to that?

Professor Sir David Omand: I am very happy to say I am proud to have been associated with that group of people. [Interruption.]

Chair: Order, Mr Winnick.

Professor Sir David Omand: Can I just add, though, there is a serious category error in the reporting of the Snowden case, which is to confuse bulk access to the internet with mass surveillance of the population? These are different things. There is no room filled with analysts at GCHQ conducting mass surveillance on the population, but it is now known publicly that they have very considerable bulk access to data on the internet. I believe that is what they need in the 21st century to get the targeted intelligence they are looking for, but it is not mass surveillance.

Michael Ellis: Thank you.

Q639 Chair: On the "Today" programme on 7 November, you said, about our collaboration with the Americans, "We have the brains and they have the money. It is a collaboration that worked well".

Professor Sir David Omand: It was a joke.

Q640 Chair: But as far as you are concerned, that is the central part, is it not, of the way in which we do our intelligence: it is collaboration with Governments that work with us and the sharing of information.

Professor Sir David Omand: It is a remark that has a long historical resonance, going back to Bletchley Park, when the United Kingdom discovered that it had the brains-it had the ability-but it simply did not have the means to produce enough of the machines that would deal with this, and therefore the secrets were entirely shared with the United States, who provided the resources, to very good effect. Ever since then, given they are five times our size, we have been in a position where we have been able to hold our own with innovation, with brainpower and with access. They have been able to resource things-ideas that we have had-but that we simply did not have the public expenditure to develop.

Q641 Chair: There were no complaints from them that they also had some brains?

Professor Sir David Omand: No. No altercation whatever.

Chair: Sir David, thank you very much for coming to give evidence today. You have been very helpful to the Committee. I am most grateful. Thank you. Could we have Sir Anthony May, the Interception of Communications Commissioner?

Examination of Witnesses

Witnesses: Sir Anthony May, Interception of Communications Commissioner, and Joanna Cavan, Chief Inspector, Interception of Communications Commissioner’s Office, gave evidence.

Q642 Chair: Sir Anthony, we are going to canter through these questions if we can, and we are going to exercise great self-discipline on this side of the dais. I want to start by asking you about whether the Government has allowed the Intelligence and Security Committee to have access to the confidential parts and confidential annexes of your reports.

Sir Anthony May: I am afraid the literal answer to that is I do not know, but can I explain the background to that? I hope you do not mind if I-

Q643 Chair: We do not need background; it is either a "yes" or a "no". If it is a "no", then would you write to us and tell us when this happens?

Sir Anthony May: I can give a more helpful answer than that. I was appointed in January 2013. After my appointment, the report that my office is required to produce for the Prime Minister for 2012 was produced, and it had a confidential annex. The question arose in the ISC, at a meeting that I attended, whether the ISC could be shown that confidential annex, to which the answer I gave was that I was perfectly content on Sir Paul Kennedy’s behalf that they should have it, but that the final say should be with the Prime Minister, because the Prime Minister would-

Q644 Chair: Where does that leave us today, then, in answer to my question, "Have they received the report?" You are quite happy for them to receive the confidential annexes.

Sir Anthony May: Yes.

Q645 Chair: You then passed it over to the Prime Minister, so is it with him?

Sir Anthony May: I think it must be with him. We have made inquiries, and I am afraid we do not have-

Q646 Chair: You made inquiries of whom?

Sir Anthony May: Of the Cabinet Office.

Q647 Chair: I will now write to the Prime Minister, asking him what has happened to the confidential parts of the report.

Sir Anthony May: That would follow up where we have got to.

Q648 Chair: I will send you a copy so you are aware of it.

Sir Anthony May: Thank you very much.

Q649 Dr Huppert: There are a number of questions I have, but what do you think about the capacity that you and others have? The Chief Surveillance Commissioner, Christopher Rose, has commented that he does not have any capacity left. How is your capacity?

Sir Anthony May: I would just like to say that I am in the process of busily writing my report for 2013 to go to the Prime Minister. I am intending to do this at a substantially earlier stage in the year than has occurred in previous years. That report deals with a number of matters, and it includes addressing requests as to whether my office and I have sufficient resources to undertake the statutory functions that are imposed upon us. That is an introduction. It will be in some greater detail perhaps than I can give this afternoon in this report, which we will deliver to the Prime Minister, and I hope it will be laid before Parliament before Easter. I can go on, if you would like me to.

Dr Huppert: Yes, that would be helpful.

Sir Anthony May: The office that I inherited when I took office had myself, Jo Cavan, my chief inspector, five inspectors and two office staff. This was very shortly after the parliamentary Committee that had scrutinised the Communications Data Bill, which I think at least two of the members of this Committee were members, had looked at the sufficiency of my office and my predecessor’s team to inspect communications data, in particular under part 1, chapter 2 of RIPA. The recommendation of that Committee included that we should inspect at least the large law enforcement agencies and everybody else who acquires communications data on an annual basis, rather than slightly longer as had happened in the past.

The Communications Data Bill did not go ahead, but that was a recommendation that I picked up almost immediately that I took office. I decided then-this was about a year ago-to implement that recommendation, to which end we needed more inspectors, and during the course of 2013 we recruited three extra inspectors.

Q650 Dr Huppert: This is helpful. For example, of the 570,000 requests for communications data, how many of those were you able to assess?

Sir Anthony May: It is an extremely difficult question, for reasons that, to do it fully, require some detailed explanation. I think this has been explained to this Committee in written evidence by Charles Farr, but it goes something like this. In a sense, 570,000 is a misleading number, because it is 570,000 authorisations and notices under section 21 or 22-whichever it is-of RIPA, but that does not, for instance, tell you how many applications there were, nor does it tell you how many people that referred to.

Q651 Dr Huppert: I think we do understand that, and it is astonishing that the Home Office does not know how many people it relates to or any of the information you highlight. Presumably, you will have looked at a certain number of the applications or the authorisations.

Sir Anthony May: Yes.

Q652 Dr Huppert: Your colleague is nodding. How many is that? Is it half of the 570,000?

Sir Anthony May: No.

Q653 Dr Huppert: Is it one-thousandth of it? How many is it?

Sir Anthony May: It is somewhere between 5% and 10% of not the 570,000, but the applications.

Q654 Dr Huppert: Which is a larger number.

Sir Anthony May: Which is a smaller number-a substantially smaller number-because research has been done, Jo has undertaken research, so has the Home Office actually, which has produced the approximation that the number of authorisations and notifications result from about one-third the number of-[Interruption.] That is put very badly, I am sorry.

Q655 Dr Huppert: Are you saying that we do not know how many applications there are and you have to estimate it?

Sir Anthony May: Yes, and the reason-

Q656 Dr Huppert: It is astonishing that there is no log kept of each application, each authorisation, otherwise-

Sir Anthony May: Yes.

Joanna Cavan: There is no doubt that the information is available within the public authorities, but it is not easy to extract that information because there are certain statistical requirements in the code of practice that the public authorities are mandated to report to us. Unfortunately, the number of applications is not one of the current statistical requirements; so, as a result, their systems have not been built around those statistical requirements, so-

Q657 Dr Huppert: It seems perverse that they do not keep track of that, and I hope one of our recommendations will be that they do tell you how many applications there are.

Joanna Cavan: It is something we have been looking at this year, and we have conducted a short sample with a number of the larger law enforcement agencies, and that is how we can equate. We did report in last year’s annual report we can equate that it is approximately between 3 and 3.6 notices and authorisations on each application.

Q658 Dr Huppert: Would you like us to recommend that it be made clear that the information on applications, authorisations and number of people involved be made available to you because that would really help with your job?

Sir Anthony May: Yes.

Joanna Cavan: Certainly. We did write in our annual report last year that that is one of the statistics that should be collected.

Q659 Dr Huppert: On RIPA itself, do you have a take on whether it is currently fit for purpose-whether the definitions in it are clear and usable-or do you struggle with it? Do you think it needs to be updated in any ways?

Sir Anthony May: If I may say so that is a very large question that I am going to address to the very best of my ability in this report, which I am going to produce in April. It is a very big question and it has two preliminaries. The first is that, as I think everybody knows, it is an extremely difficult Act of Parliament to get your mind around. I do not envy anyone who tries to do this if they have not spent a great deal of time on it. Therefore, it is really quite difficult to start from what I regard as the most important starting point; that is to say, to understand where we are at the moment. As your previous witness has touched upon, there is quite considerable misunderstanding about where we are at the moment.

The second difficulty, which we are stuck with, is the other side of the picture-that is to say, what the intelligence agencies, the law enforcement agencies, Her Majesty’s Revenue and Customs, the Ministry of Defence and the other agencies that have power to apply for interception warrants actually do. What they actually do is subject to extreme provisions of sensitivity, so one cannot just write down and tell the public what goes on. However, what I am attempting to achieve in the report that I am writing at the moment, is a greater openness on that subject than has happened in the past.

Q660 Dr Huppert: Is your report-which we look forward to very much-likely then to support a rewrite of RIPA to make it clearer, as you are suggesting? Is that something you would want to see?

Sir Anthony May: There is a paragraph in the current draft-I do not promise to leave it there, but I can tell you about it-which says that I do not really see the justification for Parliament spending a lot of time trying to rewrite RIPA part 1 to make it clearer and for no other purpose. It just seems to me to be a waste of parliamentary time. It is a difficult subject, and one would not just set about saying, "Here is a better version of what we have"-

Q661 Dr Huppert: But you would to change it?

Sir Anthony May: Yes. If there were major changes, then it might well be a good idea to try to simplify what we have.

Q662 Chair: Thank you. In 2012 there were 570,135 notices and authorisations for communications data. In that time, 979 data errors were reported to your office.

Sir Anthony May: Yes.

Q663 Chair: Thirty-three of those errors were identified during inspections.

Sir Anthony May: Yes.

Q664 Chair: Why was it so low?

Sir Anthony May: Because the agencies report nearly all the errors that they make.

Q665 Chair: But why is your office not able to identify more errors? Only 3% of the overall errors in notices were identified by your office. What is the point in having all these people working for you when the vast majority of the errors are notified to you and you do not find them out yourself?

Sir Anthony May: The inspectors are doing very, very much more than simply looking for errors. That is just part of what they are doing. Why weren’t there more of them? Because all the agencies have a statutory obligation to report their errors to my office, and they do so. The fact that they-

Q666 Chair: This does not cause you concern, the fact that you have only picked up 3% of the errors?

Sir Anthony May: No.

Q667 Chair: Previously, the offices of-

Sir Anthony May: I am so sorry, Chairman, if I might say, it is not that we "only" picked up 3% of the errors; the 900-and-something have all been reported to us in advance of the inspections.

Q668 Chair: Previously, the offices of the Intelligence Services Commissioner and the Interception of Communications Commissioner published the breakdown of the outcome of cases heard by the IPT. This is no longer the case, and the last time it was published was in 2011. Why is such information no longer being made public?

Sir Anthony May: By the tribunal?

Chair: Yes.

Sir Anthony May: I am not aware that that happened. I am sorry if I did not, but I do not have access to the proceedings of the tribunal unless-

Q669 Chair: Sorry, Sir Anthony: by the offices of the Intelligence Services Commissioner and your office, Interception of Communications Commissioner. We have not had a statistical breakdown since 2011. Are we wrong?

Sir Anthony May: My office is separate from the IPT.

Q670 Chair: No, I understand that, but your office has not published any statistical breakdown of cases since 2011. Ms Cavan, why not?

Joanna Cavan: When you say "statistical breakdown of cases", can you elaborate on what you mean by "cases", please, Chair?

Q671 Chair: The cases that you considered in 2011.

Joanna Cavan: In terms of during the inspection, the investigations we have looked at or the applications? What do you mean by "cases"?

Q672 Chair: All of them. Do you publish all of that?

Sir Anthony May: The question surely, as it relates to-

Q673 Chair: Do you publish all of that information?

Joanna Cavan: We publish all of the information around the findings of our inspections and the frequent recommendations that we make. We publish the total number of notices and authorisations that are reported to our office. We have not as yet broken down the notice and authorisation figures into individual public authorities, so if you are talking about the usage statistics for each public authority, to date we have not published that.

Q674 Chair: The Investigatory Powers Tribunal sits in secret for the majority of its proceedings, and has only found in favour of 10 complainants in the 1,468 reported cases that it received between 2000 and 2012. Only 10 complainants. Do you think that that commands public confidence? If not, is it the fault of the tribunal or Parliament?

Sir Anthony May: Could I first make absolutely clear that my office had no direct communication with the tribunal? The tribunal does not tell us what they are doing. The only obligation that I have, as Commissioner, in relation to the tribunal is to provide them with assistance if they ask for it. In the whole of my time of 13 months as Commissioner, I have received no request from the tribunal for assistance. Accordingly, I am able to say to you that I really do not know what the tribunal is doing, and there is no reason why I should.

Having said that, the circumstances in which the tribunal operates-this is just a comment from me-are laid down by statute, and I would have thought that if Parliament reckons it is unsatisfactory, Parliament would do something about it.

Q675 Chair: So it is the legislature. Going back to my previous question, previously your office used to publish the cases of the IPT, but it no longer does so.

Sir Anthony May: Certainly under present conditions, there is no basis whatever for my office doing so. My office is completely separate, now, from the IPT. Whether two or three years ago there was some communication between the two so that we published something that they told us about, I am sorry, but I simply do not know.

Q676 Lorraine Fullbrook: Oversight of the intelligence agencies is dispersed among various bodies. There is yourself, the Intelligence Services Commissioner, the Investigatory Powers Tribunal. Would it not be simpler to have that oversight under one umbrella and concentrate it in the single office of the Inspector General, as has happened in many other countries?

Sir Anthony May: This was a question that was raised, as you will know, in the Green Paper that preceded the legislation last year. It was not taken forward, but there is a whole annex to that Green Paper that raises the possibility of having an Inspector General. I was not central to the considerations that led to that not being taken forward when that legislation was taken forward, but I am told that it was considered to be difficult and perhaps unnecessary.

Q677 Lorraine Fullbrook: Both of you will have a personal opinion on this, so what would that be?

Sir Anthony May: I think as follows. As you know, broadly speaking, my statutory responsibility is limited to overseeing what happens under part 1 of RIPA-that is to say part 1, chapter 1, interception of communications, and part 1, chapter 2, communications data. This is a confined and well-defined operation, which, now that I have spent 13 months finding out all that I need to know about it, it seems to me is an operation that a single commissioner ought to be able to look at and look at properly. Whether we do or not is for other people to look at, but it seems to me to be a parcel that is usefully undertaken by one commissioner.

The suggestion that the intelligence services or a wider spectrum of the subject matter we are talking about should be under aegis of a Registrar General, or something like that, would mean a different structure and a much larger structure. One consequence of that-at least one possibility that was discussed in the Green Paper-was that the interception of communications part of RIPA, part 1, chapter 1, which I currently oversee, should be removed from my oversight and taken, for instance, to a Registrar General or the Intelligence Services Commissioner or whatever. That might be a good idea, it might not be a good idea, but one consequence of it would be that the interception side of the entire spectrum would be split in two, because we do not just oversee the intelligence services; we oversee six other agencies as well. It seems to me at any rate that that is an operation that ought to be kept together.

There are other considerations, but one opinion that perhaps I might venture-it is only an opinion-is that it is quite important, I think, to have a commissioner or commissioners who have a function for which they can take personal responsibility.

Chair: We do have to speed up.

Lorraine Fullbrook: Yes, I will do.

Sir Anthony May: If I could just finish the sentence, if you do not mind. I think if there were a Registrar General overseeing a wider spectrum of operation, that personal responsibility would be diluted.

Q678 Lorraine Fullbrook: Ms Cavan, given your current position and your previous positions, what would your view be of a single umbrella, either personal or organisation?

Joanna Cavan: My personal opinion would be that it would be very difficult for one person to build up the technical expertise and knowledge across all of the activities. I think it works very well at the moment to have specialist teams looking at interception, communications data and surveillance.

Lorraine Fullbrook: Lovely. Thank you.

Q679 Dr Huppert: Presumably you are both aware of section 94 of the Telecommunications Act 1984, which gives powers to the Secretary of State to give such direction of a general character as appeared to be necessary in the interests of national security or relations with the Government of a country outside the United Kingdom. Do you supervise how that is used, and if not you then, who does?

Sir Anthony May: The Telecommunications Act does not provide for oversight by me, just as the Intelligence Services Act does not provide for oversight by me of the intelligence services that-

Q680 Dr Huppert: Who does check it? It seems in the Act that there is absolutely no supervision at all of it. It is not revealed to Parliament in almost any circumstances; it is not revealed to you. Ms Cavan, do you have any experience as to who gets to check that this is used appropriately? If there are no oversights, all sorts of things could be happening.

Sir Anthony May: I know the terms of this section, and it is very wide. As you know, the terms of it prevent disclosure unless the Secretary of State lays what she is doing before Parliament. I think perhaps one ought to say that, to the extent that I am not going to talk about at all that she might or might not use that, we would all be prevented from talking about it.

Q681 Dr Huppert: Ms Cavan, you have been in various areas. Do you know of anywhere where this is looked at?

Joanna Cavan: I do not. I am not aware in the Telecommunications Act whether there is any specific oversight built into that Act.

Q682 Mr Winnick: Can I just clarify the position? I think you heard the last witness reply to one of the members of the Committee and speak about the role of whistleblowers and what should be done. He more or less said, "If Mr Snowden"-this is the American scene-"had gone to see the American President," et cetera, et cetera. I listened very carefully indeed to that answer. What would be the position in the UK? This is what I am not quite clear on. If you will clarify that for me, and I know that you took over your job at the beginning of last year. Is that correct? Yes. I do not want to be patronising, but you certainly have the most distinguished legal background. What I want to ask you is: if someone is dissatisfied in the security services, is it to you as the Commissioner that that person would go, or to the organisation as such-to the IPT?

Sir Anthony May: Under the legislation, there is no clear indication that someone who was troubled should come to me. I would rather not expect them to do so. So far as I know, they could certainly go to the IPT, but they would have to formulate it, I guess, in terms of a complaint to be adjudicated upon, or something like that. I am not really very familiar with this, but I think that whistleblowing is a subject that has been dealt with-as I am sure you will know-by the report that President Obama received quite recently. I am talking from memory, but I think I am right in saying that the tenor of the report was that there should be a structure set up by legislation, which would enable people in that situation to make their point in an appropriate way. That is America. I do not know what would happen here, but there are obvious routes that somebody like that could take.

Q683 Mr Winnick: I do not think you were in the room when I was asking questions about the comments of the then Master of the Rolls when he said, "Some security officials have a rather dubious record". That would have been in 2010.

Sir Anthony May: No, I was in the room.

Q684 Mr Winnick: Yes, but you were not in your present position.

Sir Anthony May: I was not sitting here.

Q685 Mr Winnick: The criticism probably would be: should the commissioner have then taken up not the allegations, but the judgment made by the Master of the Rolls and investigated accordingly? Would that be the position?

Sir Anthony May: Is this in the Binyam Mohamed case?

Mr Winnick: Yes, the Binyam Mohamed case.

Sir Anthony May: I was a member of the Court of Appeal that decided the Binyam Mohamed case. Judges normally do not talk about cases that they have decided, and in effect say, "I have written my judgment; you can read my judgment and I have nothing more to say". Having said that, two and a half years later-I have not read the judgments recently-I do not remember that the Master of the Rolls may have said that. What I do know, which is probably fairly obvious from the judgments, is that the three of us wrote separate judgments. I did, and I am pretty confident that I did not say what you are reminding me of what the Master of the Rolls said. Having said that, frankly, my memory does not assist me to be able to answer the question further; I am sorry.

Q686 Mr Winnick: In your present function, if a situation arises in the future, where allegations are made-or more than allegations, because the Master of the Rolls was not making an allegation; he was making a judgment, as I understand it, and you were involved in the court-should the commissioner then say, "Well, something has gone wrong; it is my job to investigate accordingly", or not?

Sir Anthony May: If it is within that commissioner’s sphere of responsibility and if it is sufficiently serious. If I may say so, I am going to be doing that sort of thing in my report in relation to some of the Snowden allegations.

Q687 Michael Ellis: Ms Cavan, can I ask you first of all? You have given evidence, have you not, as a forensic telecommunications expert in court, both for prosecutions and defence? I want to ask you generally about your opinion of communications data and the value of that. In your assessment, do we need to be able to resource communications data-the who, the when, the how-as opposed to the content, which of course communications data does not relate to? If we had such ability to access communications data, would it put us on an equal footing with the data that we can already access about telephone records, for example?

Joanna Cavan: In my personal opinion and from previous experience working on investigations and giving evidence in court, communications data is a vital tool for prevention and detection of crime, and also for national security and other purposes. I think it is very useful to give corroborative evidence, and there are also a number of cases I have worked on where it has assisted the defence or undermined the prosecution case as well.

Q688 Michael Ellis: It can exculpate people who are accused of offences, as well as inculpate them?

Joanna Cavan: Yes.

Q689 Michael Ellis: The same question to Sir Anthony: do you agree? Is it your assessment that communications data would be a vital tool in evidence, both for the prosecution and defence?

Sir Anthony May: There is no doubt about that at all. I just have one, as it were, gloss on that-it is not a gloss; it is unequivocal. 570,000 is a very large number. The equivalent number this year looks as if it is going to be rather less than that, but it will still be above 500,000. I have a feeling that it is not only very large, but possibly, overall, too large. The difficulty is this-and I am really quite keen on this. You can look at individual applications over and over again, asking the question, "Are they necessary for a statutory purpose? Are they proportionate? Could this be achieved by other reasonable, less intrusive means, and what is the intrusion that is going on?" You can get an answer: yes, yes and yes.

Chair: Thank you. The final question, please.

Q690 Michael Ellis: I am sorry about the time pressure, Sir Anthony, but the number, you say, is large-and it certainly sounds large when one puts it as a block figure-but surely one has to compare it to the amount of data that is in the ether, so it is a percentage of how much is in existence that is the relevant figure, not the bold figure in itself. Would you not agree?

Sir Anthony May: You would have a very large number of noughts after the decimal point.

Michael Ellis: Exactly. Thank you very much, Sir Anthony.

Chair: Sir Anthony and Ms Cavan, thank you very much. I am sorry we have run a bit over time, but we are most grateful to you. We will write to the Prime Minister about the confidential parts of the report, and we might have a copy in reply.

Prepared 24th February 2014