Why is it taking so long to appoint a new Intelligence and Security Committee?

This post first appeared on the Democratic Audit blog in September 2017.

The recent botched terrorist attack on a London tube train, following this summer’s attacks at London Bridge, Finsbury Park, and Manchester, have served to highlight the fact that the parliamentary committee tasked with overseeing the work of the intelligence and security agencies does not at present exist. The Parliamentary Intelligence and Security Committee (ISC) was wound up at the end of April in advance of June’s general election, but has not yet been reappointed. The onset of the party conference season means that the committee is unlikely to begin work before mid-October, more than five months since it last met.

Moreover, this is not the first time this has happened. There was a similarly long delay in appointing a new committee following the 2015 general election. Coupled with the fact that in 2015 the committee wound up its work two months prior to the election, this meant that the ISC was in desuetude for over six months on that occasion.

The risk of a similar delay this time prompted the Chair of the committee, Dominic Grieve, to make a stark and direct appeal to party leaders before the general election. In a press release issued at the end of the last parliamentary session he concluded:

We urge all political parties to prioritise the appointment of members to the Intelligence and Security Committee following the general election. It is not in the public interest for oversight of the intelligence community to be left unattended for any period of time.

The committee has a significant backlog of work including the unfinished detainee inquiry which the committee inherited when the judge-led inquiry, announced by David Cameron in 2010, was wound up in December 2013. The committee’s annual report for 2016-17 was also delayed by the election. Grieve made clear that during the dissolution the committee’s staff would remain in place and seek to ‘progress the work’ on the detainee inquiry in preparation for the new committee. However, they will not be in a position to undertake any new inquiries. When it is finally appointed, the ISC is likely to play a significant part in examining the role of intelligence in responding to the recent attacks. Following reforms in 2013, the ISC has a new and expansive mandate which encompasses operational aspects of the work of the intelligence and security agencies, and also the broader management of intelligence within Whitehall.

Why then has the committee not been appointed more promptly?

One possible explanation is that government and opposition leaders have been unable to agree on who should be nominated to serve on the ISC. Under reforms introduced in 2013, like other parliamentary committees, the ISC is now appointed by Parliament. However, because of the sensitive nature of its work the Executive still retains some control over membership and potential members must first be nominated by the Prime Minister after consultation with Opposition leaders. It has been suggested that the Labour leader, Jeremy Corbyn may have proposed members who are not considered suitable to serve on a committee with such a sensitive mandate. Although ISC members are notified under the Official Secrets Act, there has been a tendency to appoint MPs with previous Ministerial experience of working with the intelligence agencies, and who are considered reliable. One previous Labour Chair of the ISC argued that making the ISC a committee of Parliament would result in ‘nutters’ being elected to the serve on the committee. The current delays may well be the result of the scenario that, Kim Howells, so inelegantly envisaged.

There may also be some disagreement as to the balance of the parties on the ISC. Without a House of Commons majority there will almost certainly be some negotiation about how many seats the Conservatives retain on the committee. The SNP will also presumably be making a strong case for retaining their seat on the ISC, first gained in 2015, despite the fact that Angus Robertson, the SNP member of the committee, lost his seat in the general election. Moreover, as the Chair of the ISC is elected by its membership the balance of the parties on the committee also has a significant impact on who heads this important committee. There is a longstanding argument that the ISC should be chaired by an opposition MP, and Labour could therefore make a strong case for nominating a senior politician who is likely to contest Dominic Grieve for the Chair. Although she is unlikely to want to see a Labour Chair, the Prime Minister may also be wary about seeing Grieve re-elected as Chair. Although he was widely seen as a good appointment, Grieve has been an independent Chair of the ISC and not afraid to highlight the government’s lack of cooperation with the committee. He has also been a vocal critic of the government, not least in its approach to Brexit negotiations.

A more prosaic, and more likely, explanation for the delay in appointing a new ISC is that it has become entangled in parliamentary procedure and delayed by wider concerns about the government’s legislative agenda.

The ISC is not the only parliamentary committee which has taken a long time to get up and running. The appointment of House of Commons select committees is now a lengthy two-stage process in which Chairs are elected by the whole House, and ordinary members by their respective parties. Although the election of Chairs took place in July, before the summer recess, the membership of the select committees was not confirmed until early September.

The ISC is a statutory committee of parliament and not a select committee, however, its creation is closely bound up with the process for establishing select committees. As noted above the procedure for nominating ISC members is different to that for select committees and is designed to allow the Executive to retain some control over membership. However, once members have been nominated by the Prime Minister, under Standing Order 152E of the House of Commons, the creation of the ISC is then handled by the Committee of Selection, which tables a motion on the floor of the House proposing the membership. Unlike the ISC, the Committee of Selection is a select committee, which means that it must be in place before the ISC membership can be confirmed. Any delay in establishing the select committees, and the Committee of Selection in particular, therefore has an impact on the ISC. Although the Committee of Selection is now in place it was only established on 12th September, just before Parliament went into recess for the party conference season.

Moreover, while the process for establishing the select committees is now of necessity quite lengthy, there have been some particular concerns this time around about the delay in establishing the Committee of Selection. Aside from handling nominations to other parliamentary committees, the main role of the Committee of Selection is to appoint members to Public Bill Committees which are responsible for the detailed scrutiny of legislation at the committee stage. The government, naturally, has been keen to ensure that it has a majority on the Committee of Selection in order to ensure a majority on Public Bill Committees, easing the legislative challenges of governing without a majority. Opposition parties, naturally, have sought to resist this, prompting a procedural row which has by extension delayed the appointment of the ISC.

Whatever the reason for the delay, and it may well be a combination of the above, for the second time in two years Britain has been left without a parliamentary intelligence oversight committee for a prolonged period, and moreover, a period in which Britain’s intelligence and security agencies are facing significant challenges. As Dominic Grieve made clear in April, this is not in the public interest. A solution to this procedural delay must be found if the ISC is not to become a second-tier committee with little impact or importance. Interestingly in Canada, which has recently created a parliamentary intelligence oversight committee modelled on the British ISC, legislation states that the committee must be in place within 60 days of Parliament returning after a general election. No such condition exists in the legislation relating to the ISC, but neither does it set out the current procedure for the appointment of the ISC by the Committee of Selection and after the establishment of select committees. There is scope for adopting a different mechanism for appointing the ISC. Serious consideration must surely now be given to finding a different and more timely mechanism for establishing this important committee.

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General Election 2017: The Unwelcome Impact on the Work of the Intelligence and Security Committee

This post first appeared on the RUSI blog in May 2017.

The announcement of a snap general election and the rapid conclusion of the shortest Parliament for more than 40 years have undoubtedly placed considerable strain on Westminster. Legislation has been rushed through or abandoned, while parliamentary committees have rapidly sought to conclude inquiries and publish reports.

The Intelligence and Security Committee (ISC) is just one of many parliamentary committees caught out by the timing of Britain’s early general election, but the impact on this committee is particularly acute.

The ISC was the last parliamentary committee to be appointed following the 2015 general election, more than four months after the vote – and long after the appointment of select committees – and inherited a significant backlog of work.

The 8 June election has prompted the premature publication of its drone strikes report, while others have inevitably been delayed and another turnover in membership will further undermine the committee’s expertise.

The delay in appointing the committee after the last general election was compounded by the fact that the previous committee had effectively stopped work in February 2015, when the Chair, Sir Malcolm Rifkind, resigned. The ISC declined to elect a replacement and the committee effectively went into desuetude more than two months prior to the 2015 general election.

Even if a new committee is promptly appointed after 8 June, it remains the case that since the beginning of 2015, the UK has been without a legislative intelligence oversight committee for a total of more than nine months.

It is to be hoped that the new government takes note of the pointed remarks of the Chair of the outgoing committee, Dominic Grieve, in his final press release before parliament was prorogued, in which he urged:

… all political parties to prioritise the appointment of members to the Intelligence and Security Committee following the General Election: it is not in the public interest for oversight of the intelligence community to be left unattended for any period of time.

The 2015 general election also saw a large turnover of membership of the ISC. The committee is reconstituted after each general election, usually with a combination of new and experienced members, but the committee appointed in 2015 was the most inexperienced since the ISC was first established in 1994.

While four members were retained, only two of those had served for the whole of the previous parliament. Moreover, two committee members have stepped down since the 2015 general election, including the longest serving committee member, George Howarth.

Two further members, Fiona Mactaggart and Gisela Stuart, are not standing in the general election with the result that even if all the remaining members are reappointed after the general election, only one, Lord Lothian, will have more than two years’ experience on the committee.

The turnover in membership and the speed with which a new committee is appointed are important for a number of reasons. As the committee has itself observed, intelligence is an area in which few parliamentarians have much experience and membership of the ISC comes with a steep learning curve.

The relative inexperience of committee members may be compounded by the need to hit the ground running. Britain is still facing a significant terrorist threat and delays in making appointments to the ISC have, in the past, left the committee struggling to keep up with events.

Most notably, this happened following the 2005 general election when a new committee was not appointed until the 12 July, several days after the 7/7 terrorist attacks in London.

The committee appointed in 2015 also inherited a significant backlog of work that has inevitably been disrupted by the early election. The ISC was asked by the prime minister to pick up the work of the unfinished detainee inquiry when the judge-led inquiry was wound up in December 2013.

The ISC was provided with extra staff to enable it to analyse the 40,000 highly classified documents received by the inquiry, and has taken additional evidence from the intelligence agencies and former government ministers, but has yet to report on the issue.

In its latest annual report, published in July 2016, the committee reported that, although this was now their priority, the inquiry was still ‘expected to occupy the Committee for some time’. Significantly, the committee has asserted that its staff will continue to work on the inquiry even while parliament is prorogued, so they can ‘progress the work … in readiness for the new Committee’.

Another focus for the ISC since 2015 has been its inquiry into the use of intelligence in targeted drone strikes against UK nationals in Syria. ISC reports are submitted first to the prime minister and reviewed by the agencies concerned before publication.

Suggestions for the redaction of sensitive material are then subject to a process of negotiation between the committee and the government. Although the ISC submitted its report to the prime minister in December 2016, it did not receive a draft of the report with suggested redactions until 12 April, only days before Theresa May’s announcement of her intention to call an early general election.

In a highly unusual move, in order to facilitate the publication of the report before the election, the committee decided to forego the usual process of negotiation and published the report with all of the government’s suggested redactions.

In a robust press release to accompany the publication, the committee made clear that the report was being published ‘even if it was more heavily redacted than we would normally accept’ and that the redactions ‘are therefore precisely those as proposed by the Agencies and Departments on behalf of the Prime Minister’.

The early election also means that the government’s customary response to the drone strikes report will not be published until after the election. The government has yet to respond to the committee’s annual report for 2015–16 and the ISC has also revealed that although its annual report for 2016–17 is complete, it too will not be published until after the election.

This catalogue of delays and interruptions is an unwelcome consequence of an early general election, which many would claim has been called in the interests of political expediency. It is to be hoped that the prompt reconstitution of the ISC after the election will serve to minimise the unwelcome impact this has had upon its work.

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The disruptive impact of a snap general election on the work of the Intelligence and Security Committee

This post first appeared on the Democratic Audit blog in April 2017, and then on the Political Studies Association Parliaments Group blog in May 2017.

Elections are a central and necessary feature of any democratic system. However, elections are also highly disruptive events. The process of government is effectively halted to allow for a period of campaigning. Laws are wrapped up quickly or abandoned altogether. Ministerial are diverted into party business and major announcements from government departments and a wide range of other public bodies are postponed. This is even more the case if an election is called unexpectedly. Even in states which do not have a fixed period between elections, the existence of a recognised electoral cycle lends predictability to the system and means that elections are less disruptive. There is a further lag following an election. If a sitting government is re-elected, some policies and appointments are likely to be carried over and the policy process may be restarted fairly quickly, if a government changes then a more substantive and lengthy reboot is usually necessary.

If elections are disruptive to the process of government, they are even more disruptive to the scrutiny process. In the UK, a new government is usually formed fairly quickly in the days following a general election. In contrast losing opposition parties often go through a period of upheaval, particularly if party leaders are challenged or resign. In parliament, new governments usually enjoy a honeymoon period as new MPs find their feet, and may be reluctant to challenge the new government’s electoral mandate. The reformulation of parliamentary scrutiny bodies also often takes somewhat longer than the establishment of a new government. The process of creating select committees can only begin once it is known which MPs have been offered Ministerial positions and are therefore excluded from consideration. Moreover, the process of electing select committee members and Chairs takes time and now means that it will be several weeks before a full complement of select committees are in place.

One committee whose work has been significantly disrupted by the Prime Minister’s decision to seek a general election in June is the Intelligence and Security Committee of Parliament (ISC). The ISC is not a parliamentary select committee but is a cross-party committee of MPs and Peers whose role is to oversee the work of the intelligence and security agencies. The committee was reformed in 2013 to become a committee of parliament with enhanced powers and a more expansive mandate. However, the committee has been worryingly quiescent in recent years and particularly since the 2015 general election. It is not clear whether this is the result of changes within the committee itself and the adoption of a new mode of operating or a more general marginalisation of the committee on the part of the government. Nevertheless, the announcement of a general election is an unwelcome interruption to the ISC’s work, further delaying the publication of reports, interrupting ongoing inquiries and leading to an inevitable change in the membership.

Delayed reports

Perhaps the most immediate impact on the ISC of an early general election, is to further delay publication of the committee’s report on the UK’s involvement in lethal drone strikes in Syria. Following the 2015 general election the committee announced that one of its immediate priorities was to conduct an inquiry into ‘the intelligence basis surrounding recent drone strikes in which British nationals were killed.’ The inquiry followed an announcement by the Prime Minister in September 2015 that three UK nationals had been killed in targeted drone strikes in Syria. On 16th December 2016, the ISC announced that its report on lethal drone strikes had been passed to the Prime Minister and that following a process of review and redaction it expected the report to be published ‘in the New Year.’ More than four months later the report is yet to appear, and it is unlikely now be published until after the general election.

Some delay in the publication of ISC reports is not uncommon. Although the ISC is a parliamentary committee, because of the nature of its work, its reports are first submitted to the Prime Minister and subject to the redaction of sensitive material, before being laid before parliament and published. Although this is a necessary precaution, it also means that the timing of the publication of ISC reports is in the hands of the government. This is not the first time that the delay in publishing ISC reports has been a cause for concern, nor is it the first time that a general election has interfered with the process. The committee has periodically complained about the delay between submission and publication of its reports. Moreover, prior to the 2010 general election the ISC completed a report on the draft guidance given to intelligence officers involved in the interrogation of detainees. Although the committee clearly expected the report to be published at that time, the government held up publication. Following the election the in-coming committee announced that the previous committee’s report would not now be published, but that the government’s guidance would be published instead. It is to be hoped that this does not set a precedent.

Ongoing inquiries

The general election will also, of course, interrupt the committee’s ongoing work. The ISC’s most pressing current concern is the much delayed inquiry into the role of UK intelligence agencies in the treatment and rendition of detainees. The establishment of a judge-led independent inquiry into the treatment of detainees by British personnel since 9/11, was announced by the Prime Minister, David Cameron, in July 2010. It would, the Prime Minister hoped ‘report within a year’; an inquiry which was costly and open-ended, he added, ‘would serve neither the interests of justice nor national security.’ In December 2013, following the publication of an interim report the inquiry ceased its work, on the grounds that ongoing legal action against the British government on the part of several detainees would prevent it from completing its work in the near future. Responsibility for the inquiry was passed to the ISC who were provided with extra resources in order to take it on. In its most recent annual report, published in July 2016, the ISC reported that the detainee inquiry was now the committee’s ‘main focus’ but that ‘it is a detailed and long-term Inquiry into an important issue and is expected to occupy the Committee for some time.’ This will be the second general election in the four years since the ISC took over the inquiry, and it seems unlikely to hasten its completion.

The ISC also has a statutory obligation to publish an annual report on its work. This is usually published in June or July, shortly before parliament goes into its the summer recess. The timing of the annual report has been affected by previous general elections, but publication has usually been brought forward to enable an outgoing committee to complete its report before an election. A snap general election means that this has not been possible this time. Moreover, the timing of the election coupled with the time it will likely take to appoint a new committee after the election (see below), means that it is unlikely that the latest annual report will be published before the autumn. While ISC members often claim that it is one of the hardest working committees in parliament, judged on the basis of its output alone it is not the most productive of committees. The current committee has published just two reports since the 2015 general election.

Changing membership

As with all parliamentary committees the membership of a new ISC will need to be selected following the general election. The ISC is reconstituted following each general election usually with a combination of new and existing members. Under arrangements introduced in 2013 the members are now appointed by parliament from a list nominated by the Prime Minister in consultation with opposition leaders. The Chair of the committee is then appointed by its members from those selected to serve on the committee.

There will be some inevitable turnover in membership of the ISC which raises a number of concerns. Two members of the current committee, the Labour MPs, Fiona Mactaggart and Gisela Stuart, have announced that they are standing down at the election and will not therefore be available to serve. Mactaggart and Stuart are also the only women on the committee. Although membership of the ISC has historically been dominated by men, the presence of women on the committee has had a substantive impact. The committee has been chaired by two women, and in 2015 Hazel Blears was instrumental in prompting the committee to examine the role of women in the intelligence community. Despite this women have been notably under-represented on this committee. The opportunity to establish a gender balance on this committee would be a welcome development, but if the polls are correct, the pool of Labour women to replace Mactaggart and Stuart may well be small.

Turnover of membership will also undermine the experience of the committee. Mactaggart is the longest serving MP on the committee, although she has only been on the committee since January 2014. In terms of members with past experience on the committee, the current ISC is the least experienced since the ISC was first established in 1994. The committee appointed after the general election will be more inexperienced still. This matters because intelligence is an area in which few parliamentarians have a great deal of background knowledge or experience and members of the committee often attest to a steep learning curve while serving on it. The departure of a number of long-serving members during the last parliament served to erode the institutional memory of the committee and this is a resource which is not easily restored. It is to be hoped, at least, that the services of the current Chair, Dominic Grieve, are retained following the election. Although Grieve was new to the role, his experience as Attorney General and his reputation for independence meant that his appointment was widely welcomed. He has not been in place long enough yet to demonstrate whether that faith was justified.

Perhaps more worrying is the possibility that there will be a significant delay in appointing a new committee. There is, once again, an unfortunate precedent in this respect. Following the 2015 general election a new ISC was not put into place until September, some four months after the election. It is not clear why the process took so long in 2015, but ISC members were not selected until all Ministerial appointments had been made and all select committees had been established. It may also be delayed if opposition leaders resign and the nomination of new members does not take place until a new leader is in place. The delay in appointing a new committee does little to dispel the impression that ISC membership is a compensation for a loss of Ministerial office. It would be unfortunate if it also became viewed as a second-tier parliamentary committee. Moreover, the prolonged absence of the principal mechanism for providing democratic accountability for Britain’s intelligence and security agencies is not conducive to good governance or national security.

The Intelligence and Security Committee is just one committee of parliament. The disruptive impact of a snap general election will be felt across many others. There are, however, some worrying precedents which suggest that the impact on the ISC may be particularly acute. The formation and work of the current committee have been characterised by delay, it would be reassuring if this was not carried over into the next parliament.

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Some thoughts on the latest appointments to the ISC

ISCIn previous posts, here , here and here, I’ve written about the process of appointing members of the Intelligence and Security Committee, and in particular about the new arrangements for appointments introduced by the Justice and Security Act, 2013.

Although the ISC is reconstituted after each general election, there are occasional changes if members leave and need to be replaced. There were two new appointments to the Committee in October. These were prompted by the departures of Alan Duncan, who was appointed as a Foreign Office Minister in July, and George Howarth who stepped down from the ISC in October. Duncan left under that section of the Justice and Security Act which prevents Ministers from serving on the ISC. It is not, at present, clear why George Howarth has stepped down. Interestingly the appointment of a replacement for Alan Duncan was originally on the House of Commons order paper for 17th October, although it was not debated on that day, which suggests that Howarth’s decision was, perhaps, a recent one and it was decided to allow both new appointments to go through together.

Alan Duncan has only been a member of the ISC since the general election. George Howarth, however, was the longest serving member of the current committee, having joined the ISC after the 2005 general election. His departure means that Lord Lothian (Michael Ancram), who replaced James Arbuthnot on the ISC  in January 2006, is now the longest serving member. However, he is now the only current member to have served anywhere near two terms on the ISC, the next most experienced member, the Labour MP, Fiona Mactaggart, only joined the committee in January 2014. With only one member who served throughout the previous Parliament this is now the most inexperienced Intelligence and Security Committee since the first committee was appointed in 1994.

In some respects this is a significant change in the complexion of the ISC. Since the ISC was first established it has been accepted that this is an area of scrutiny in which few parliamentarians have any experience and that membership of the committee would involve a steep learning curve. The ISC’s first report published in 1995 observed that:

The intelligence and security field is a specialist and complex one, about which relatively little is reliably known from the outside. Even though several Committee members have relevant past experience as Ministers over parts of this field, none has been responsible for the whole range. Both for them and for those coming new to these matters there is a lot to absorb and assess… [ISC, Cm 2873, Interim Report of the Intelligence and Security Committee]

As a result of this when the ISC has been reconstituted after each general election it has been comprised of a combination of new and existing members. Although this is perhaps more difficult when there has been a change of government, it was for precisely this reason that Labour retained Tom King as the Chair of the ISC, after it came to power in 1997. Labour also retained the services of three other original members of the committee. Several MPs have served for long periods on the committee, most notably Michael Mates (1994-2010) and Alan Beith (1994-2008), and have provided an important element of continuity when there has been a turnover of membership. Howarth and Ancram provided that on the current committee.

The potential challenges facing a newly constituted ISC were thrown into sharp relief in 2005 when a new committee was appointed in July, only days before the 7/7 London bombings. Moreover, that committee was considerably less experienced than its predecessor having retained only two members from the previous Parliament and having appointed a new Chair. Members of the committee from that time observe that it was forced to hit the ground the running.

Another potentially worrying tendency is an increased turnover in membership of the ISC. There was only one change of membership in each of the first two committee, 1994-1997 and 1997 – 2001, when Lord Howe stepped down from the first committee and Yvette Cooper left the second for Ministerial office. Membership of the third committee 2001 – 2005, remained the same throughout the Parliament. However, the fourth committee (2005 – 2010), had five changes of membership, including three Chairs. This was far from ideal and certainly impacted on the committee’s work and the wider perception of it. The committee appointed in 2010 was somewhat more stable that its predecessor, with only three members leaving during the Parliament, although the departure of its Chair, Malcolm Rifkind, towards the end of the Parliament was more than a little unsettling. Unlike Julian Lewis, who left the committee after him, Rifkind was not replaced and a new Chair was not appointed until after the general election.

In addition to the retention of experienced members, another way in which the ISC has sought to provide expertise, in an area in which few parliamentarians have any experience, is through the appointment of members with some experience of dealing with the intelligence agencies. This has led to a tendency towards seniority in appointments to the ISC, with a large proportion members having formerly held Ministerial office, particularly in the Home Office, the Foreign Office, the North Ireland Office or the MoD. This has not always been a welcome approach to selecting ISC members as it has allowed the perception to develop, within Parliament and beyond, that the ISC is too close to those it is responsible for scrutinising. In interviews for our research, one parliamentarian who subsequently went on to serve on the ISC even suggested that because of his experience in working with the agencies he was precisely the kind of person who should not be selected to serve on the ISC. Although he did gracefully concede that he had changed that opinion when re-interviewed following his appointment to the committee.

I have written elsewhere about the need to adopt a different approach, and that the government should perhaps throw the net a little wider, in nominating members for the ISC. However, the replacements for Duncan and Howarth, the Conservative MP, Richard Benyon and the Labour MP, David Hanson, fall pretty firmly into the standard profile of appointments to the ISC. Both have previously served as Ministers. Of the forty-six parliamentarians who have served on the ISC, Benyon and Hanson  are the 26th and 27th former Ministers to be appointed to the committee. They are also the 35th and 36th men to serve on the ISC.

David Hanson, in particular has extensive relevant Ministerial experience having served as Minister of State in the Northern Ireland Office, the Ministry of Justice and perhaps most significantly, as Minister for Security and Policing in the Home Office. If one were to draw up a list of MPs who are possible candidates for ISC membership, based solely on relevant Ministerial experience, David Hanson would appear quite near the top of that list. If there was some concern in Whitehall that Jeremy Corbyn would take this opportunity to nominate a well-known critic of the agencies to the ISC, they will have been allayed by Hanson’s nomination. Richard Benyon‘s, Ministerial experience is somewhat more modest and less relevant, having served as a Parliamentary Under-Secretary of State in DEFRA. His qualification for appointment to the ISC probably lies in the fact that he is a former officer in the British Army, with experience in Northern Ireland and East Asia. Benyon will also be the only member of the ISC who is not a Privy Counsellor, although that may follow.

Although members are still nominated by the Prime Minister in consultation with opposition leaders, appointments to the ISC are now subject to parliamentary approval. Nevertheless, these two new appointments apparently went through on the nod with no opposition in the chamber. Whether either of these appointments are likely to provide anything new to the ISC or offer a more challenging or independent perspective on the work of the intelligence and security agencies or the government’s handling of intelligence remains to be seen, but I doubt it.

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Britain’s response to the attacks in Paris

IMG_0250This post brings together two similar pieces I wrote in response to the terrorist attacks in Paris in November 2015. They focus in particular on the potential impact of events in Paris on the passage of the Investigatory Powers Bill currently making its way through Parliament. The first longer piece appeared on the Democratic Audit blog on 20th November. The second shorter piece also considers the implications of the attacks in relation to the operation of NATO. It was published on the website of the Lincolnshire Echo on 16 November.

Parliament must not be marginalised in Britain’s response to the attacks in Paris

In times of crisis, particularly when issues of national security are at stake, it is customary for Parliament to defer to the Executive. There can be very good reasons for this, if a situation is fast moving and requires a quick and decisive response, or if the government is in possession of intelligence of a threat which it does not feel able to share with parliament. However, such occasions are rare and there are also very good reasons to argue that it is at times of crisis or national emergency that Parliament should more closely scrutinise the powers of the Executive. Such scrutiny should aim to ensure that governments do not seek to take advantage of circumstances to force through measures which have previously been rejected, or to ensure that special measures introduced to deal with particular circumstances do not remain on the statute books in perpetuity.

It is, therefore, vital that Parliament is not marginalised in the government’s response to the recent terrorist attacks in Paris or in the development of a strategy for dealing with the wider threat of international terrorism. The attacks in Paris coincide with an ongoing debate about the powers of the intelligence and security agencies in the UK. The draft Investigatory Powers Bill, which was published a little over a week ago, provides for controversial new surveillance powers including the bulk retention of communications data, something which had previously been rejected by Parliament.

The government has recognised the complex and controversial nature of the Investigatory Powers Bill and has allowed for a long period of pre-legislative scrutiny. The draft Bill will be subject to scrutiny by a Joint Committee of Parliament, the Intelligence and Security Committee has said that it will also look at the Bill and other parliamentary committees may well take an interest. The government has also invited comments from industry, academia and civil liberties groups. In a rare intervention, the Director-General of MI5 has also called for a mature debate on surveillance powers. While there is clearly some element of perception management in all of this, it is nevertheless, a welcome opportunity for substantive debate about intelligence agency powers, and is in marked contrast to previous legislation relating to the intelligence and security agencies which was subject to relatively scant parliamentary scrutiny and generally made it onto the statute books unchanged.

The attacks in Paris have not changed the debate about surveillance in the UK but they have intensified it and they may well have foreshortened it. The immediate response of some to the Paris attacks has been to suggest that the case for the Investigatory Powers Bill has now been made and that detailed scrutiny should be curtailed. On Friday’s edition of the BBC’s Newsnight, while the attacks were still going on, Nadhim Zahawi, Conservative member of the foreign affairs select committee used the attacks to justify the Investigatory Powers Bill, asserting that it was necessary to ‘help our police and intelligence agencies to track those people electronically’. On Sunday, Lord Carlile, formerly the Government’s independent reviewer of terrorism legislation, asserted that the Bill gave the intelligence agencies all the powers they now need to fight terrorism and asserted that ‘I and other politicians want this Bill to be expedited, so that rather than becoming law by the end of 2016, which is the plan, it should become law as soon as possible.’ The Prime Minister also suggested that scrutiny might be foreshortened when he told the Today programme on Monday morning that ‘we should look at the timetable’ for the Bill. The government’s decision on Tuesday to bring forward an announcement of further resources for the intelligence and security agencies, a decision which had clearly been made before the attacks in Paris, have further added to the sense of urgency around the Bill.

Such statements have raised obvious and understandable concerns that the attacks in Paris will be used as a pretext to ‘fast-track’ legislation through Parliament without proper scrutiny. As others have observed, good legislation is rarely made in haste, nor, one might add, as an immediate response to individual events. Britain’s recent experience with anti-terrorism legislation is an object lesson of the problems associated with such an approach. Between 2001 and 2010, Labour introduced a raft of anti-terrorist legislation in response to terrorist attacks (9/11, 7/7) or, more often than not, in response to court rulings that elements of previous legislation (detention without trial, control orders, asset-freezing) were unlawful.

The coalition government’s attempts to bring forward legislation on the collection and retention of communications data were similarly faltering. It is important to remember that the draft Investigatory Powers Bill is not a response to the terrorist threat from ISIS, or any other group, but rather to a series of legal challenges and inquiries which have cast doubt on the legality of the intelligence agencies’ surveillance activities and the effectiveness of the current regulatory framework under which they operate. Earlier this year the European Court of Justice ruled that elements of the Data Retention and Investigatory Powers Act, which the Investigatory Powers Bill will replace, were incompatible with EU law. The Investigatory Powers Tribunal also ruled that bulk communications data collection had been unlawful and that the communications of civil liberties groups including Amnesty International had been unlawfully intercepted. There has also been considerable debate about whether the communications of some groups including lawyers, journalists and MPs, which have variously been presumed to be privileged should be subject to further protections. The current reviewer of anti-terrorism legislation, David Anderson, described the current arrangements for interception of communications as ‘undemocratic, unnecessary and – in the long run – intolerable.’

Legislation which is not subject to substantive, detailed and sustained scrutiny is unlikely to enhance national security. It is vitally important not only that the intelligence agencies have the powers they need to combat the terrorist threat but also that they operate within a sound legal framework. Failure to provide such a framework will undermine the work of the agencies and lead to the unwelcome distraction of further legal challenges. The government’s initial proposal to consult widely on the draft Investigatory Powers Bill was a good one. It is hard to avoid the conclusion that in responding to the attacks in Paris some, including perhaps the Prime Minister, have been swayed by Churchill’s maxim to ‘never let a good crisis go to waste’. However, relying on a sense of urgency in order to get measures onto the statute books will not make for good law and does a disservice to the intelligence agencies and those they are tasked to defend.

Britain’s response to the terror attacks in Paris

The terrible attacks in Paris on Friday will raise understandable concerns about the threat of further terrorist attacks, including in the UK. Although Paris has suffered two serious attacks this year the government will be keen to ensure that the British public are not complacent about the threat of attacks in the UK. The system of publishing threat levels within the UK was introduced following the Bali bombings in 2002. The current threat level of ‘severe’ has been in place since August 2014 when it was raised in response to the conflict in Syria. The government has not chosen to raise that to the highest level, ‘critical’, which means that it does not at this time have specific intelligence of an imminent threat of attack within the UK, but that could of course change at any time.

In the longer term these attacks will certainly change the context in which the government is seeking to introduce controversial new surveillance powers for the British intelligence and security agencies, which were included in the draft Investigatory Powers Bill published a little over a week ago. While supporters of the Bill will wish to stress that attacks such as these reinforce the need for additional powers. Opponents of these proposals, including many within the Prime Minister’s own party, will argue that what is needed is better intelligence about what are often known threats, rather than additional powers to facilitate mass surveillance.

The attacks will also once again raise the possibility of another Parliamentary vote on British participation in military action in Syria. The Prime Minister will not want to risk losing another vote on this issue and is therefore only likely to seek one if he is confident of winning. However, the Paris attacks will certainly strengthen the arguments in favour of intervention. One factor which may influence parliamentary opinion here is the response of Britain’s NATO allies. President Hollande’s declaration that the attacks amount to an act of war raises the possibility of an invocation of article 5 of the North Atlantic Treaty, which states that an armed attack against one member state constitutes an armed attack against them all. The only previous occasion on which article 5 has been invoked was following the attacks of September 11, 2001. Crucially article 5 does not specify how member states should respond but there would be considerable pressure for Britain to stand by her allies in this case.

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