The Wilson doctrine: tapping the telephones of members of parliament

IMG_1997The Investigatory Powers Tribunal will today consider the legality of a convention whereby the communications of parliamentarians may not be subject to interception by the intelligence agencies. In a case brought by the Green MP, Caroline Lucas, the Peer, Jenny Jones, and the former MP, George Galloway, the tribunal will test the strength and legality of the so-called Wilson doctrine.

The Wilson doctrine is a convention established by the then Prime Minister, Harold Wilson in 1966, when in response to a series of questions in the House of Commons, Wilson informed the House of Commons that ‘there is no tapping of the telephones of honourable Members, nor has there been since this Government came into office.’ He went on:

I reviewed the practice when we came to office and decided on balance—and the arguments were very fine—that the balance should be tipped the other way and that I should give this instruction that there was to be no tapping of the telephones of Members of Parliament. That was our decision and that is our policy. But if there was any development of a kind which required a change in the general policy, I would, at such moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it. I am aware of all the considerations which I had to take into account and I felt that it was right to lay down the policy of no tapping of the telephones of Members of Parliament.

Five days later, in response to a question in the House of Lords, the Lord Privy Seal added that this policy also applied to members of the House of Lords.

Successive Prime Ministers have all expressed their continued commitment to the Wilson Doctrine. Moreover, it is apparent that the scope of the convention has expanded in recent years. Developments in communications technology have prompted a series of parliamentary questions about the scope of the doctrine. In 1997, Tony Blair stated that the Wilson doctrine also applied to electronic communications, and then in 2002, perhaps exasperated by continued questions on the subject, stated that that ‘the policy refers to all forms of warranted interception of communications’.

The principle which underpins the Wilson doctrine is that MPs’ communications should be treated differently to those of ordinary members of the public. It is based in part on the notion of parliamentary privilege which protects MPs and Peers from prosecution for anything they might say as part of the proceedings of Parliament or any of its committees, and also allows each House the freedom to regulate its own affairs. However, it is not clear to what extent this encompasses all communications entered into by members of Parliament, and also how this relates to subsequent legislation on the operation of the intelligence agencies, which makes no mention of the Wilson doctrine. In the tribunal’s considerations much may hang on its understanding of what constitutes parliamentary proceedings. However, as the Wilson doctrine has no basis in law it may also decide that it is something on which is it not prepared to pass judgement.

Prior to Wilson’s statement the assumption was that the communications of parliamentarians were not treated any differently to those of other members of the public. In 1957 a committee of inquiry into the interception of communications concluded that:

So far as we can determine, a Member of Parliament is in exactly the same position as any private citizen in regard to the interception of his communications unless those communications were held to be connected with a proceeding in Parliament.

The committee struggled to define what might be constitute communications connected to a proceeding in Parliament, but assumed a rather limited approach providing the example of a telephone call relating to an intended parliamentary question. In 2005 the Blair government considered rescinding the Wilson doctrine on the grounds that with legislation in place to authorise and oversee the interception of communications it was no longer necessary to rely on such a convention. Blair was supported in this by the Interception of Communications Commissioner who argued that the Wilson doctrine flew in the face of the constitution by assuming that MPs’ should be treated differently to other citizens. However, in the face of considerable disquiet in Parliament, including within his own Cabinet, Blair dropped the idea.

There is a widespread assumption that the doctrine provides for a blanket ban on intercepting the communications of parliamentarians. There are however, a number of important caveats to the Wilson doctrine and it is quite clear that MPs’ communications have been intercepted since Wilson made his statement. Firstly, Wilson’s statement does not preclude the interception of parliamentary communications it simply states that if interception takes place Parliament would be informed at some point. This highlights a fundamental contradiction at the heart of the Wilson doctrine, which is that whilst it is designed to protect the communications of Members of Parliament, it may at any point be in abeyance, with it simply being the case that parliament has not yet been informed. Indeed, the carefully worded statements of successive Prime Ministers’ in relation to the Wilson Doctrine do not indicate that the communications of parliamentarians are not being intercepted, but merely that if they are, it is with the Prime Minister’s approval and Parliament has not yet been made aware. Former Ministers interviewed for our research argued that the Wilson doctrine merely set a higher bar for the authorisation of interception which means that warrants to intercept the communications of parliamentarians will be subject to much closer scrutiny than other warrants, and are likely to authorised by the Prime Minister.

Moreover, it is far from clear that the interception of communications in particular cases would involve a setting aside of the Wilson doctrine requiring parliament to be informed at all. It could be argued that the general policy remains that the communications of parliamentarians will not be intercepted while in particular cases, and with the correct authorisation, they may be. In the same way that in general the communications of members of the public will not be intercepted, but that in specific cases and with the correct authorisation, they may be. This does, of course, raise the question of whether the Wilson doctrine provides any protection not afforded to ordinary members of the public. What may make a difference in the current case, particularly in the light of recent revelations about the collection of communications data, is if it can be shown that parliamentarians’ communications have been intercepted as part of a general trawling of communications data. Although this, of course, may be hard to prove.

While the Wilson doctrine may have expanded to encompass new communications there are also a number of other limitations to its application. It is a privilege which does not apply to members of other legislative assemblies such as the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly. Moreover, it only applies to interception by the intelligence agencies. Since Wilson made his statement there has been a significant  expansion in the use of interception by other agencies, most notably the police. When meetings between the Labour MP, Sadiq Khan, and a constituent in Woodhill Prison were covertly monitored in 2006, this was not considered a breach of the Wilson doctrine on the grounds that the interception was instigated and carried out by the police rather than the intelligence and security agencies, and had not therefore been subject to Ministerial authorisation.

All of which raises the question of whether the Wilson doctrine has any real meaning at all. The practice as set out by Wilson allowed for it to be set aside at any time, and only required the Prime Minister to reveal this to Parliament at some point. The communications of some parliamentarians have certainly been intercepted at various points since 1966. The monitoring of the communications of Sinn Fein Members of Parliament in the 1990s is an open secret, but are not the only examples. However, while it is quite possible that the Wilson Doctrine has been routinely set aside in a number of particular cases for some time, and that successive Prime Ministers have not felt able to reveal this to Parliament, this would arguably be in keeping with Wilson’s commitment, and would not contradict the assurances of successive Prime Ministers that the doctrine remains in force. At the same time, a significant growth in the number of government agencies now able to carry out surveillance, and particularly the expansion of covert surveillance by the police, means that the Wilson Doctrine provides only partial protection to the communications of parliamentarians and may, either by accident on design, be circumvented. Finally, questions remain about whether parliamentarians should be treated differently to other members of the public in this respect, and if so whether this should be extended to members of other legislative chambers. If this is to be the case then legislation would provide greater protection than a caveat-laden convention enunciated on the floor of the House of Commons.


This post draws on the article ‘Tapping the telephones of Members of Parliament: the ‘Wilson doctrine’ and Parliamentary Privilege’ by Andrew Defty, Hugh Bochel and Jane Kirkpatrick which was published in the journal, Intelligence and National Security, vol. 29, no. 5 (October 2014), pp.675-697. The article contains much more on the background and operation of the Wilson doctrine, including analysis of cases involving Sinn Fein MPs and the Labour MP, Sadiq Khan. We also submitted evidence in relation to the Wilson doctrine to the government’s 2012 consultation on parliamentary privilege.

 

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Where is the Intelligence and Security Committee?

It is more than two months since the general election and new Intelligence and Security Committee (ISC) has yet to be appointed. The delay in appointing the new committee is beginning to raise eyebrows, and questions, in Parliament and beyond. Two weeks ago, Fiona Mactaggart, who served on the ISC in the last Parliament asked the Leader of the House, Chris Grayling, whether the membership might be finalised so that the committee could meet before the summer recess. His reply that it was his ‘hope and expectation that that would happen as soon as possible, and hopefully before the summer recess’, does not inspire confidence.

It is not entirely clear why the appointment of a new committee is taking so long, but the process of appointing ISC members changed in the last Parliament, and it also appears to have become bound up with the appointment of select committees which has preoccupied Parliament in recent weeks. Since the election a short note on the ISC website has noted that:

…following the 2015 General Election, Parliament has yet to appoint Members to the ISC.  It is expected that this will occur in a similar time frame to, or shortly after, appointments have been made to Departmental Select Committees in the House of Commons.

During the last Parliament changes were made to the process for appointing members of the ISC. In the past, the committee and its Chair were appointed by the Prime Minister, after consultation with opposition leaders, shortly after each general election. Under changes introduced in the Justice and Security Act 2013, members are now appointed by Parliament. However, unlike select committee members who are elected from the whole House, members of the ISC must first be nominated by the Prime Minister, after which Parliament approves their membership. Although this process was followed for the appointment of two new members in the last Parliament, this will be the first time that Parliament has been asked to approve the whole committee, and the first time that the ISC has selected its own Chair.

The process to some extent mirrors that for appointing members of parliamentary select committees, which was also modified in the last Parliament, so that select committee Chairs are elected by a secret ballot of all MPs, while individual parties must now hold elections for their allocation of select committee members. Although both processes are part of a shift towards giving Parliament more say over the composition of its committees, the different approaches reflect the Government’s (and perhaps the agencies) desire to retain some control over appointments to the ISC.

The distinction between the ISC and the parliamentary select committees is also reflected in the timing of appointments to the committee. While parliament has spent much of the last month finalizing the membership of select committees, it is clear that the Government has decided that appointments to the ISC should wait until that process is over. There may be good reasons for this. The government would not want to be seen to deny select committees access to some MPs by effectively having first choice of MPs for membership of the ISC. Something which might also lead to parliament vetoing ISC members if it was felt their talents would be better placed elsewhere. It also means that MPs who are unsuccessful in seeking appointment to a select committee can still find a role on the Intelligence and Security Committee.

However, the situation is somewhat unsatisfactory, for a number of reasons. By delaying appointments to the ISC until after the appointment of select committees there is a risk that the ISC is viewed, in Parliament and beyond, as a second tier committee, less important than other parliamentary committees. As a result of the tendency to appoint former Ministers to the ISC, membership of the committee has in past, rightly or wrongly, acquired the reputation of being a compensation for departing Ministers. It would be regrettable if as a result of the current arrangements, the ISC were now viewed as comprising members who were unsuccessful in securing select committee membership.

There may also be more pressing reasons why a new Intelligence and Security Committee should be in place soon. 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. For this reason, following each election the newly appointed ISC has usually comprised a combination of new and existing members. With the departure from Parliament of three members of the previous committee including its Chair, and the resignation of a fourth shortly before the general election, at least four of the nine members of the ISC will be new appointees. There will be much to learn not least about the way in which the committee operates, before the serious business of intelligence oversight can begin in earnest.

The relative inexperience of the new committee may be compounded by the need to hit the ground running. As is clear from the reported cases of UK citizens travelling to Syria to fight with ISIS and the recent terrorist attack in Tunisia, the UK is facing an ongoing terrorist threat with significant implications for the work of the intelligence and security agencies. Yet there is, at present, no parliamentary oversight committee in place to assess the agencies’ capacity to meet that threat. This is not the first time that this has been the case. Delays in making appointments to the ISC have, in the past, left the committee struggling to keep up with events. Most notably following the 2005 general election when a new committee was not appointed until the 12th July, several days after the 7/7 terrorist attacks in London.

The situation has been made worse this year because it appears that the previous ISC effectively stopped working in February. On 24th February, Sir Malcolm Rifkind resigned as Chair of the ISC, following ‘cash for access’ allegations arising from an investigation conducted by The Daily Telegraph and Channel 4. On the same day, in what might be viewed as a fit of pique, the ISC issued a statement that as there were ‘no further formal meetings scheduled before the prorogation of Parliament’, it would not be appointing a new Chair. Although the ISC published two reports after this date, both of these were completed before Sir Malcolm’s resignation, and it is far from clear that the committee has met at all since that date. The committee’s press releases certainly suggested it was not intending to.

This in itself is somewhat unsatisfactory. ISC members frequently claim that the committee is one of the hardest working parliamentary committees. It meets on a weekly basis when Parliament is sitting. In addition to its set-piece inquiries such as those published towards the end of the last Parliament, it also oversees the administration, expenditure and policy, and since reforms introduced in 2013, the operations, of the three intelligence and security agencies and the wider intelligence community. While the publication of its Privacy and Security report marked the end of a significant and to some extent ground-breaking inquiry for the ISC, it seems odd that the committee would decide that it had no further work to do for the remainder of the Parliament. While the ISC does not comment on every intelligence issue which comes to public attention, ISC members claim that it keeps a watching brief on what is going on and any significant intelligence issue which attracts the attention of the public and the media, and many which do not, are subject to scrutiny by the committee.

More significantly, the ISC does have unfinished business. In December 2013 the Prime Minister asked the ISC to pick up the work of the so-called Detainee Inquiry, chaired by the retired judge, Sir Peter Gibson, into whether Britain was implicated in the ill-treatment of detainees by other countries. In response to this additional work-load the committee requested, and received, additional resources to enable it to continue the work of the detainee inquiry alongside its other inquiries into the murder of Fusilier Lee Rigby and the Privacy and Security inquiry. While the latter two inquiries were completed in the last Parliament the detainee inquiry remains in the ISC in-tray. Therefore, far from reaching the end of its work in February 2015 the ISC had at least one on-going inquiry. It is disappointing that this was not scheduled for consideration in the remaining weeks at the end of the last Parliament, and that the time taken to appoint the new committee has delayed it further.

There may, of course, be a number of reasonable explanations as to why the ISC has not yet been appointed and it may also be the case that the committee was not in a position to make progress with the detainee inquiry at this time. Nevertheless, the very existence of a parliamentary intelligence oversight committee which meets on a regular basis and which may at any point seek explanation or clarification about the conduct of the intelligence and security agencies is central to providing democratic legitimacy to the agencies and the government’s use of covert powers. The government’s tardiness in seeking to appoint a new Intelligence and Security Committee threatens to undermine the capacity and credibility of the new ISC before it has even begun its work. Insofar as the role of the committee is to monitor the effectiveness of Britain’s intelligence and security agencies it may even be damaging to national security.


This was first posted on the Democratic Audit blog on 15th July 2015.

 

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Time to adopt a different approach to appointing members of the Intelligence and Security Committee

This post first appeared on the Democratic Audit blog in March 2015.


In the last two weeks the Intelligence and Security Committee has lost its Chair, Sir Malcolm Rifkind, who remains as a member of the committee, and one of its members, Julian Lewis, who has stepped down from the committee. The changes mark an unwelcome end to the term of office of the current committee which, with the exception of the untimely death of Paul Goggins, had remained unchanged since the 2010 general election. The stability in membership of the current committee had been a welcome change from the previous parliament in which the ISC had three chairs and five changes of membership. However, these recent changes once again raise questions about the composition of the committee and the kind of parliamentarians selected to serve on the ISC.

The ISC is a cross-party committee comprised of nine members from both Houses of Parliament. Until changes introduced as part of the Justice and Security Act 2013, the ISC was a statutory committee with a membership hand-picked by the Prime Minister. The committee was reconstituted as a parliamentary committee in 2013, although the membership remained the same. New members are now nominated by the Prime Minister but their appointment must be approved by Parliament. The Chair of the committee is now selected by its members. Sir Malcolm Rifkind will be the last ISC Chair to have been appointed by the Prime Minister. These changes marked an important step towards making the ISC more accountable to Parliament. However, changes to the process by which members of the ISC are selected are unlikely to enhance the credibility of the committee unless there are also changes to the kind of individuals nominated to serve on the committee.

The establishment of the ISC in 1994 was an important step forward in intelligence agency accountability in the UK. The committee has undoubtedly developed a close working relationship with the intelligence agencies and has been instrumental in demystifying parliament for the agencies to the extent that agency heads now also give evidence to a number of other parliamentary committees. However, the ISC has done little to build credibility for the agencies within parliament and the credibility of the committee itself is often questioned. The committee’s image problem was acknowledged by its former Chair, Sir Malcolm Rifkind, in a speech shortly after his appointment in 2010, in which he observed that the ISC must ‘not just be entirely independent in law and in the eyes of its own members. That independence must in practice, be fully respected by all government departments and the ISC perceived to be fully independent, both by Parliament and by the public.’

Unfortunately, Sir Malcolm was himself part of the problem. As part of research undertaken at the University of Lincoln, in a series of interviews with over one hundred parliamentarians from both Houses, one of the most consistent weaknesses identified in the ISC was the kind of parliamentarians selected to serve on the committee. There was a widespread perception within Parliament that those appointed to the ISC were too close to the agencies and not the kind of members one would expect to ask difficult or probing questions. Some of the more restrained comments about the ISC membership was that they are ‘not the sort of people to make a big issue out of things’, ‘not the kind of people to rock the boat’, and ‘an elite group of parliamentarians who believe they’re the only ones who know about these matters.’ One former member of the ISC admitted that the committee had been ‘too deferential’ while a member of the current committee acknowledged that there was a still a danger of members being ‘starstruck’ by the agencies.

The ISC does have a rather different complexion to other parliamentary committees. There has been a tendency towards seniority in appointments to the ISC. Twenty-three of the thirty-nine parliamentarians who have served on the ISC have held ministerial office before being appointed to the committee, with a clear preference for members with ministerial experience in defence, foreign affairs and Northern Ireland. With the exception of Kim Howells, the six Chairs of the ISC have all held Cabinet positions prior to their appointment, including two former Foreign Secretaries (Margaret Beckett and Sir Malcolm Rifkind), two former Defence Secretaries (Sir Tom King and Rifkind), two former Secretaries of State for Northern Ireland (King and Paul Murphy) and two former Leaders of the House of Commons (Beckett and Ann Taylor).

There is a popular misperception that members of the ISC also have to be Privy Counsellors, based perhaps on the practice that Governments have occasionally shared secrets with selected parliamentarians on ‘Privy Council terms’. Although this is not the case, Privy Council membership has often been a reward for serving on the committee. Julian Lewis’s elevation to the Privy Council was, for example, announced at the same time as his departure from the committee. Many former members have also found themselves in the House of Lords. Although this has been less so in recent years, there are at present as many current and former ISC members in the House of Lords as in the House of Commons.

The appointment of ISC members from the House of Lords has allowed the appointment of individuals with professional experience of working with the intelligence agencies. Baroness Ramsey of Cartvale who served on the committee from 2005 to 2007 is a former member of SIS. The appointment to the current committee of the former Cabinet Secretary, Robin Butler, was opposed by some who felt that he was too close to the agencies. In an interview prior to Butler’s appointment, one member of the current committee noted that the ISC certainly ‘should not’ have people like Butler serving on it, although in a later interview the same individual argued that enough time had now passed since Butler had any professional contact with the agencies and his expertise meant that he could play an important role on the committee.

There are of course very good reasons for staffing intelligence oversight committees with individuals with experience of working in this area. ISC members must be trusted to handle classified information, and there may be a risk that those who are not accustomed to handling such material may, either by accident or intent, leak secret information. Intelligence is also an area in which few parliamentarians have any experience and there is therefore a steep learning curve for new members. These problems may be militated if members have previously encountered the agencies through ministerial office, or previous appointments. Such individuals may also be better placed to ask difficult questions of the agencies.

However, there is also clear potential for conflicts of interest, and such appointments can also serve to give the impression that the committee is not sufficiently independent, as Sir Malcolm Rifkind acknowledged in 2010 it is not sufficient for scrutiny to take place, those outside of the process must also have confidence it is taking place. In responding to such concerns it is not enough simply to throw up one’s hands, as ISC members have been prone to do, and simply state that the critics will never be persuaded. The ISC must work to build credibility within parliament and beyond. One way in which it may do so is to accept that the membership of the committee has not always inspired confidence and to adopt a wider and more imaginative approach to appointments.

The ISC will be reappointed after the general election and there are a number of potential changes to the membership which might serve to enhance its credibility. Whoever is Prime Minister after the election could nominate more members from outside the standard profile of ISC membership, in particular there could be less former-Ministerial appointments. While some experience in this area is clearly valuable to the committee it is damaging if the ISC is viewed as a sinecure for former Ministers. Similarly, in making appointments from the House of Lords, those who have experience of working in, or very closely with, the agencies should be avoided. The recent practice of appointing former senior members of the intelligence community to the House of Lords presents an obvious pool of individuals to serve on the ISC. However, whatever their qualifications for the post it would be a poor day for the committee if a former head of MI5 found themselves serving on it. Indeed, the Prime Minister along with Opposition leaders might instead go so far as to seek out potential members who are known to be critics of the agencies, or if that is a step too far, individuals who at least engender respect in the House for their independence of mind. In considering such individuals for nomination the question should simply be whether their membership would be damaging to national security not whether their questions might undermine confidence in the agencies. There is also clearly a case for more women on the committee. Parliament itself could also do more to shape the committee. While the Prime Minister is still responsible for nominating members, Parliament has the power to challenge those nominations, it remains to be seen whether it will exercise that power or routinely nod through the Prime Minister’s nominations. The committee itself could also seek to assert its independence from the Executive by adopting a policy of appointing as its Chair, an Opposition member. This is widely viewed as best practice in intelligence oversight committees and would serve to balance the in-built government majority on parliamentary committees.

Whatever the damaging effects of recent weeks, under Sir Malcolm Rifkind the ISC has taken some important steps towards making itself more open and accountable. In addition to navigating through Parliament significant reforms to the powers and status of the committee, Sir Malcolm has also been more prominent than previous Chairs in publicly explaining the work of the committee and seeking to contribute to debate on issues of national security. Despite some flaws, the introduction of public evidence sessions is another welcome initiative which it is hoped will develop. However, for many the ISC continues to look and sound like every previous committee. A different approach to the nomination and appointment of members of the next committee might help to change that.

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Jobs for the boys? Women members of the Intelligence and Security Committee

In a publication clearly timed to coincide with this weekend’s International Women’s Day the Intelligence and Security Committee has published a report on Women in the UK Intelligence Community. The report reveals somewhat disappointing, if not entirely surprising, information about the status of  women in the intelligence and security agencies, particularly in comparison to the rest of the civil service, including, for example, that 37% of intelligence agency staff are women, compared to 53% of civil servants. The headline figures also tell a familiar story about career progression for women, with only 19% of senior staff being women, compared to 38% in the civil service as a whole. The report includes some important recommendations for improving the recruitment and retention of women within the agencies.

This report is not only interesting because of its content. Although it is made clear that the report has the backing of all members of the committee, this is the first time that an ISC inquiry has been so clearly led by someone who is not the Chair of the committee. The report is introduced by Hazel Blears, who was clearly responsible for initiating the inquiry. It was launched at a press conference held by Blears, although that may also be a reflection of the fact that at present the committee has no Chair. The report even looks somewhat different to previous ISC reports with a more commercial layout including a large number of photographs and no redactions.

However, the publication of the report naturally raises the questions about the role of women on the Intelligence and Security Committee. That the issue of gender has hardly featured in any of the ISC’s previous reports is perhaps a result of the fact that this has been, and remains, a committee which is dominated by men.

The Intelligence and Security Committee was established as a statutory committee in 1994. It has nine members, who come from both Houses of Parliament. Members were selected by the Prime Minister after consultation with Opposition leaders. Following changes introduced in the Justice and Security Act 2013, the ISC became a committee of parliament with members chosen by Parliament from a list of nominations provided by the Prime Minister. The Chair is selected from the committee by its members. The committee is reconvened after each general election with a combination of new and existing members. While it is clearly not an attractive option for all parliamentarians our research indicates that there is considerable competition to be considered for membership of the committee.

There were no women on the first ISC which sat from 1994 to 1997, and which was Chaired by the Conservative MP, Tom King. Following the 1997 general election one woman was appointed to the committee, the newly elected Labour MP, Yvette Cooper. Following Cooper’s appointment as a junior health Minister in 1999 she was replaced by the Labour MP, Rosie Winterton. After the 2001 general election, Tom King was replaced as Chair by the former Labour Chief Whip, Ann Taylor, and a second woman, Joyce Quin, was also appointed. Taylor’s appointment was criticised at the time by some who claimed that she did not have the necessary experience and expertise to undertake the role. This was echoed in confidential interviews with former committee members conducted as part of our research, although she is by no means the only Chair who was subject to that criticism.

There was considerable turnover in the membership of the committee which sat from 2005 to 2010. The committee had three Chairs, one of whom was a woman, the former Labour Foreign Secretary, Margaret Beckett. Her period as Chair from January to October 2008 was short and came to an end when she was appointed as Minister for Housing. Two other women served on the committee during the 2005 parliament, the Labour MP, Dari Taylor, and the Labour Peer and former MI6 officer, Baroness Meta Ramsey. The committee which was appointed in 2010 had only one woman member, Hazel Blears. A second woman, the Labour MP, Fiona Mactaggart, was appointed following the death of ISC member, Paul Goggins, in January 2014. Mactaggart was the first member to be appointed using the new arrangements.

There have never been more than two women on the ISC at any one time, and for almost half of the time since the committee was established in 1994 there has never been more than one woman member. All of the women on the committee have been Labour members. Of the thirty-eight parliamentarians who have served on the ISC since 1994, nine (23.6%) have been women. Although two of the six Chairs have been women, as a result of the truncated leadership of Margaret Beckett, the committee has had a woman Chair for only four and a half years since 1994.

The reasons for the paucity of women on the ISC are not clear and, like the under-representation of women in other areas, complex. The most obvious explanation is the under-representation of women in parliament as a whole. Less than one in ten MPs were women in the 1992 to 1997 parliament, and the absence of women on a committee of nine was therefore perhaps not surprising. There was, of course, a large influx of women into the House of Commons in 1997, which also saw the first woman appointed to the committee. The overall proportion of ISC members who have been women since 1997 (27%) is actually slightly higher than that for women in parliament as a whole, which has risen from 18% of MPs in 1997 to 22% in 2010.

The gender balance within the parliamentary parties may also be a factor. Although the ISC is a cross-party committee, as with other parliamentary committees the balance of parties reflects the balance of parties in the House of Commons. The Conservatives have consistently had a smaller proportion of women MPs than Labour which may help to explain why there have been less women on the committee when the Conservatives have held the majority of seats, prior to 1997 and since 2010. Similarly, the increase in the proportion of women on the ISC after 1997 may be seen as the result of the large number of women elected as Labour MPs. However, despite a tripling of the  number of Conservative MPs who are women in the 2010 general election, it is disappointing that there has yet to be a Conservative woman on the committee.

Another possible explanation lies in the kind of MPs appointed to the ISC.  There has been a tendency towards seniority in appointments to the ISC. Of the thirty-eight members of the committee since 1994, twenty-three have previously held Ministerial office. Moreover, there has been a clear preference for those with experience in departments which may have brought them into contact with the intelligence agencies: the Home Office, the Foreign Office, the Ministry of Defence and the Northern Ireland Office. The lack of women on the ISC may therefore reflect a shortage of women with what is perceived as the necessary experience.

Nineteen women served as Ministers under the Conservative governments from 1979 to 1997, six served in one of the four departments mentioned above and none above the level of Minister of State. The situation improved considerably under Labour. Sixty-seven women served as Ministers between 1997 and 2010. Of these eleven served in the Home Office, six in the Foreign Office, four in the NIO and one as a Defence Minister. Labour also made the first appointments of women as Foreign Secretary, Home Secretary and Secretary of State for Northern Ireland, although the MoD remained, in a number of respects, a male preserve. These changes are also reflected in the women appointed to the ISC. The two women who have Chaired the ISC have both held Cabinet posts, Ann Taylor as Leader of the House of Commons and Chief Whip, while Margaret Beckett was the first, and so far the only, woman to have served as Foreign Secretary. Joyce Quin, Hazel Blears and Fiona Mactaggart were all Home Office Ministers. Four women members of the ISC had no Ministerial experience prior to their appointment, although Baroness Meta Ramsey, who is a former member of the intelligence service, clearly had a background in the field.

The lack of women on this committee also raises a wider question as to whether some policy areas are considered to be particularly gendered. Those who work on gender and politics have long identified a functional division of labour between men and women, with women more likely to specialise in ‘soft’ policy areas such as education, health and social security, while areas such as foreign affairs, security and defence, have traditionally been dominated by men. It is not clear what causes this division of labour, although it clearly has its roots in traditional ideas about gender roles. However, its continuation cannot simply be attributed to the exclusion of women from particular policy areas on the part of men. It is also apparent that in some cases women have chosen to specialise in those fields where they feel they are more likely to be able to make a difference. Nevertheless, there is evidence for such a division within parliamentary committees. A quick survey of current select committee membership reveals that the Work and Pensions select committee has six members who are women, the health select committee has five, and the education committee has three, while the Home Affairs Committee also has three women, the defence and foreign affairs committees both have two female members. The Joint Committee on National Security which has members from both Houses including the Chairs of related select committees, including the ISC, has a total of twenty-two members, but only two of them are women, the Chair Margaret Beckett, and Baroness Neville-Jones.

The ISC report on women in the intelligence services is an important example of how having women on parliamentary committees can affect it’s work. It is hard to imagine this report being produced in the early years of the committee, and it is intriguing to wonder how hard Hazel Blears had to push to include it as part of the work of this committee. In producing this report the committee has made some important recommendations for improving diversity within the agencies which, unless men are inherently better at spying, can only improve the quality of appointments to, and the prospects for women within, the agencies. The report also commits the ISC to monitor these developments in the future. However, this is not just an issue for the intelligence and security agencies and it would be  welcome if, when the new ISC is appointed following the general election, some consideration could also be given to the gender balance of those responsible for overseeing them.

Women members of the Intelligence and Security Committee

Yvette Cooper, MP 1997 – 1999

Rosie Winterton, MP 1999 – 2001

Rt. Hon. Ann Taylor, MP 2001 – 2005 (Chair)

Rt. Hon. Joyce Quin, MP  2001 – 2005

Rt. Hon. Margaret Beckett, MP January 2008 – October 2008 (Chair)

Dari Taylor, MP 2005 – 2010

Baroness Meta Ramsey, 2005 – 2007

Rt. Hon. Hazel Blears, MP 2010 –

Fiona Mactaggart, MP 2014 -

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Sir Malcolm Rifkind’s status as Chair of the ISC

The ‘cash for access’ allegations against that the former foreign secretaries, Jack Straw and Sir Malcolm Rifkind, have led  to both being suspended from their parliamentary parties. There are clearly wider questions to be answered about the outside interests of parliamentarians and perhaps more pointedly about the external interests of members of the Intelligence and Security Committee (ISC). However, the fallout from this case also serves to reveal important new dynamics in the relationship between Parliament and the Intelligence and Security Committee.

Questions have, understandably, been raised about Sir Malcolm’s future as Chair of the Parliamentary Intelligence and Security Committee. Downing Street, were quick to point out that Sir Malcolm’s position as Chair is a matter for the Committee itself, something which Sir Malcolm has also sought to emphasise in his robust response to the Telegraph allegations. This is the result of recent changes to the status and operation of the ISC introduced as part of the Justice and Security Act 2013.  The Justice and Security Act changed the status of the ISC, making it a committee of parliament, and provided it with enhanced powers. The legislation also changed the way in which members of the committee are appointed, and perhaps crucially how they may be removed.

Under previous arrangements which were outlined in the Intelligence Services Act 1994, members of the ISC were appointed by the Prime Minister after consultation with Opposition leaders. The Chair like other members was hand-picked by the Prime Minister. Under the Justice and Security Act these arrangements were changed so that members are now appointed by Parliament from a list of nominations provided by the Prime Minister. The legislation also changed the way in which the Chair is appointed, rather than being in the gift of the Prime Minister, the Chair of the committee is now ‘chosen by its members.’

The status of the current committee is somewhat anomalous. Members of the ISC are appointed after each general election and the current committee, including the Chair, was appointed under the old arrangements, following the 2010 general election. The only exception to this is Fiona Mactaggart who was appointed using the new arrangements following the death of the Labour MP, Paul Goggins, in January 2014. The membership of the ISC was not reconstituted following the passage of the Justice and Security Act, although the current committee is in all other respects operating under the arrangements set out in the 2013 Act and has adopted the mantle of Parliamentary Intelligence and Security Committee.

As a result the Prime Minister and Sir Malcolm, are of course, correct in asserting that it is up to the Committee to decide on who should be its Chair. However, what they did not point out is that the new legislation also introduced a new mechanism for removing members of the Committee. Under the previous arrangements ISC members could be removed, ‘if required to do so by the Prime Minister’. Under the Justice and Security Act the Prime Minister no longer has the power to require a member to leave the ISC, but members may be removed if ‘a resolution for the person’s removal is passed in the House of Parliament by virtue of which the person is a member of the ISC,’ effectively providing Parliament with a vote on whether individual members should be required to leave the ISC.

Given that he has already withdrawn the Whip from Sir Malcolm, the Prime Minister may be somewhat relieved that he is not required to decide on Sir Malcolm’s future as Chair or indeed as a member of the ISC. However, for Sir Malcolm the position is not so secure. While he may be confident of maintaining the support of his colleagues on the ISC, sustaining the support of the House of Commons may be somewhat more difficult. Whether this would ever come to a vote, in this case or any other, seems unlikely. If considerable opposition were to emerge within Parliament it may be that Sir Malcolm would resign rather than face a resolution of the House of Commons on his continued membership of the ISC. Nevertheless, it does serve to illustrate the new power of Parliament in relation to the ISC, which perhaps means that its members must take more care than in the past to retain the confidence of their colleagues in the House and not just those they meet around the committee table.

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