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DERMOT MURNAGHAN:     Now, the Foreign Secretary has confirmed he will make a statement to Parliament tomorrow over claims that GCHQ accessed American intelligence that spied on peoples’ internet use. He said it was necessary for a lot of the eavesdropping centre’s work to be covert and that law abiding citizens had nothing to fear. Well, in a moment I’ll speak to the former independent reviewer of anti-terror legislation. He is Lord Carlile, but I’m joined right now from Sheffield by Major-General Jonathan Shaw who was until last year, head of cyber security for the MoD. Very good morning to you, Major-General Shaw. I mean, on the broad point here, as President Obama put it best when he said just as you can’t have total security, then in the attempt to achieve that, you can’t have total privacy.  

MAJOR-GENERAL JONATHAN SHAW:       Yeah, and he’s absolutely right. That was the first point I wanted to make actually, is that there is no such thing as total security just as there’s no such thing as total freedom. And if I have to make a point, it is that the public needs to really support the intelligence agency, and what we’re seeing is an incredibly difficult job of getting the balance right between security and freedom. I mean, it’s only a few weeks now that we had the Woolwich beheading and the whole public campaign for saying we need more security, and MI5 getting it in the neck for not tracking these people. Now the pendulum has swung the other way. I think we just need to take a much more balanced approach on this and I think the press and the politicians can play a major role in leading the public to a more nuanced and a more understanding, more supporting attitude towards the intelligence agencies, who actually deserve our support, not our criticism, I think at the moment.  

DM:     But isn’t part of the problem the fact that we are discussing this in a mature and responsible way, it’s that we’re only discussing it because it was uncovered. Shouldn’t we have been told in advance?  

JS:       Well, I think as the Foreign Secretary has just said, there are certain activities the government pursues in secret and I think that’s quite right but that doesn’t mean they’re illegal; it doesn’t mean there are no checks and balances. And I think we should just trust the agencies. I know from having worked in that community that they bend over backwards to comply with the constraints, the checks and balances that are essentially particularly in a democratic society like our own. But there are, for perfectly understandable reasons, there are certain things that should not be in the public domain. And I think we should recognise that actually, this link with America, between GCHQ and the NSA is absolutely essential to both our countries’ security and we should, instead of being surprised and shocked by this, we should actually be delighted it’s happening because it’s to the major security advantage of both our countries.  

DM:     How closely do they cooperate?  

JS:       I would say it’s the closest intelligence relationship that we have.  

DM:     Okay, and it is a two way street?  

JS:       Oh, definitely. Absolutely. Neither has the capacity for global reach. No one can do the whole world and GCHQ is such a technological; they are a technologically capable place that in some aspects, lead the NSA. So between them both in terms of mass coverage of the world and in technology, they have a great deal to share and an enormous amount of mutual benefit by cooperating. We really shouldn’t underestimate and neither should we ask too many questions about the extent to which they cooperate because we just take it for granted that we benefit hugely from it, as did the Americans.  

DM:     But just let me ask you, there’s a point you touched on earlier about the restraints and the oversight. Is that something that is formalised or is it just something that the people that are engaged in this know that there are certain areas they cannot go into?  

JS:       Believe me, it’s heavily formalised. It’s debated, it’s legally crawled over and the checks and balances are there as far as I’m aware. Your next speaker, I think, is more up to speed on those matters than I am but in my experience, there are very clear checks and balances that are gone through here and great constraints. We just need to trust those because they are there, believe me, and if they’re not made public, well, that’s probably for very good reasons.  

DM:     Well just lastly on that though, do you think there’s too many checks and balances? Are they proportionate or are they, in your view, a bit of a hamstring to some of the activities?  

JS:       Well, there’s the political judgement. There’s no right answer to that. You’ve just got to hope that they get it right and equally, you’ve got to hope that you get the checks and the constraints right. It’s a constant juggling act and I think perhaps the worst outcome that could come from this incident is that the restraints get... (we’re being attacked by a dog! [laughter]) ... the restraints get increased on people and I really believe we should just continue to trust our agencies to act in a responsible way and for the checks and balances put in place by our politicians to work. I think they’re working fine, I think we should trust them to keep working fine because as I say, this is an impossible; there is no right answer to this, there’s just a judgement that’s made and it’s never going to be perfect. It’s always going to be a question of contention so I think the worst thing that can happen is that we overreact and over-constrain our intelligence agencies at the moment.  

DM:     Well, Major-General Shaw, thank you very much indeed there for talking about the cyber threats and dealing with your own personal canine threat there. That’s Jonathan Shaw [laughter] there at the countryside. Well, he mentioned there Lord Carlile, let’s talk to him now. He joins me now from North London. Very good morning to you, Lord Carlile. Picking up from what the Major-General was telling us there, could you just paint out for us what some of the checks and balances are and what the security services can access, and how they use it?  

LORD CARLILE:      Yes. Well, first of all if the security services want to access your telephone calls or your emails as to the content, then they have to go and obtain a warrant and it’s a pretty sophisticated procedure, subject to very careful checks and balances and annual reports. If on the other hand, they wish to check the email traffic of a suspect rather than its content, or the mobile phone traffic other than its content then it’s a simpler process which enables them to carry out enquiries in real time, quickly, against suspects. And I think we do roughly have the balance right, though I’m not opposed to constant vigilance to ensure that the appropriate checks and balances are in place.  

DM:     But there is, isn’t there; we’ve just heard it from the Major-General and we’ve heard it from the Foreign Secretary this morning, a large dollop of ‘Trust us’ in all this. I suppose eroding that trust is the fact that we, the public, were not told about the extent of these activities, that they were going on in cooperation with the Americans.  

LC:      Well, I’m not sure that’s right. My view is that we have been told about the extent of cooperation with the Americans on many occasions. I look forward to the Foreign Secretary’s statement in the House of Commons tomorrow but unless it’s proved to the country, I believe the reassurance that’s been given by GCHQ, that they have entirely obeyed the law. What one has to understand is that there are different laws in the United States and in the United Kingdom, respectively. If the United States, with their much broader law enabling interception, discovers something which might for example, tell us there could be another Woolwich attack in the UK, then of course we would expect them to supply that information to the United Kingdom, even if the United Kingdom intelligence services would not have been able to obtain it themselves under UK law.  

DM:     The last time you were on this programme, the last time we spoke, we spoke after Woolwich, of course, and you mentioned how important the Data Communications Act, the so-called ‘Snoopers Charter’ was. Well, many people are saying, “Well, it looks like what it would do has already been in operation for quite a long time.” This is the DCA via the back door.  

LC:      That’s absolutely not correct. It’s not been in operation in this country. The Americans have something called the Patriot Act. I looked at the Patriot Act very closely when it was introduced in the United States, and indeed, visited the USA to discuss it with officials there. It is an act which would not be passed in the United Kingdom. It goes much further than UK law would. However, as I said earlier, if a potentially critical attack is warned by the United States, using their powers, surely we would expect them to pass on that information and it would be completely irresponsible of the UK authorities not to act upon it. But that’s quite different from the Communications Data Bill. That’s a completely separate issue for consideration.  

DM:     Lord Carlile, as ever, thank you very much indeed for your thoughts.