Submission to Investigatory Powers Review

This is our submission to the Investigatory Powers Review, currently being undertaken by David Anderson, QC, the Government’s Independent Reviewer of Anti-Terrorism Legislation. The review was announced by the Home Secretary in July to look in particular at: the capabilities and powers required by law enforcement and the security intelligence agencies; and the regulatory framework within which those capabilities and powers should be exercised.

Mr Anderson’s report is due to be published in May.


Investigatory Powers Review

Submission by Dr Andrew Defty and Professor Hugh Bochel

School of Social and Political Sciences, University of Lincoln

1. This submission deals primarily with the statutory arrangements for the oversight of investigatory powers by the intelligence and security agencies. It draws upon the findings of a major research project on parliamentary scrutiny of the intelligence and security agencies carried out at the University of Lincoln, which has been published in a number of journal articles and a book, Watching the Watchers: Parliament and the Intelligence Services (Palgrave, 2014). The research, which was funded in part by the Leverhulme Trust, examined the various mechanisms by which parliament and parliamentarians seek to scrutinise the intelligence and security agencies, including through legislation, debates, the work of the Intelligence and Security Committee and other parliamentary committees and the tabling of questions and Early Day Motions. In addition to a detailed examination of parliamentary business (reports, debates, EDMs and questions), the research drew on interviews with more than 100 MPs and Peers, including current and former members of the Intelligence and Security Committee, and with senior officials in the Foreign Office and the Cabinet Office. This submission also draws upon some on-going research on the impact of recent reforms on the operation of the Intelligence and Security Committee of Parliament.

The nature of intelligence oversight in the United Kingdom

2. Intelligence oversight is generally defined as a process of supervision designed to ensure that intelligence agencies do not break the law or abuse the rights of individuals at home or abroad. It also ensures that agencies are managed efficiently, and that money is spent properly and wisely, while some form of legislative oversight also helps provide democratic legitimacy for the work of the agencies. There is, however, no one model of intelligence oversight. It does, of necessity, vary from country to country, and may be affected and defined by a state’s history, constitutional and legal systems, and political culture. Nevertheless, it is possible to identify a range of institutions and actors that may be involved in the oversight of intelligence and security agencies. Oversight is typically seen as taking place at several different levels: internal oversight at the level of the agency; executive oversight by the government; legislative oversight by democratically elected politicians, usually through specialist legislative oversight committees; external oversight by independent bodies such as the judiciary; and oversight by civil society through actors such as pressure groups and the media.

3. Britain has a patchwork of oversight arrangements involving different actors with different roles. Although these arrangements have evolved over time, statutory oversight is a relatively recent development. For most of their existence, oversight of the British intelligence and security agencies was the sole preserve of government Ministers. Although the agencies have always been required to obtain warrants for interception of communications, the procedure for issuing warrants or for implementing interception was, until relatively recently, not subject to external review either by Parliament, the judiciary or any other body. From the mid-1980s a raft of legislation placed these arrangements on a statutory footing, and also established new oversight mechanisms with Commissioners to oversee the warranting procedure, a committee of parliamentarians to scrutinise the expenditure, administration and policy of the agencies, and an Investigatory Powers Tribunal to investigate complaints.

This submission deals with the statutory arrangements for oversight of the intelligence and security agencies by executive, legislative and judicial bodies within the UK.

Executive oversight – accountability to Ministers

4. Considerable attention has focused on the statutory role of the various Commissioners in providing a selective post hoc review of the warranting procedure for the interception of communications (see paras. 11-12 below). It is important to remember, however, that the first line in the accountability arrangements involves the review and signing of warrants by a senior government Minister. While the Commissioners only review a sample of warrants, all warrants for interception and intrusion by the intelligence and security agencies must be signed by a Secretary of State. Our research involved interviews with several individuals with experience of the warranting procedure, including serving and former Home and Foreign Secretaries. These Ministers frequently testified as to the robustness of the warranting process, the seriousness with which they approached the task, and the amount of time they devote to reviewing every single warrant.

5. However, the warranting process does raise a number of concerns. Firstly, it is a constitutional anomaly that warrants for the interception of communications and covert intrusion, actions which involve the state in the most serious intrusion of individual liberties, are signed by a government Minister and not a judge. Direct Ministerial responsibility for the actions of the intelligence and security agencies is an important safeguard. However, some form of independent legal review of the warranting process at the time at which warrants are signed, involving either a judge or an independent inspector general would significantly strengthen the oversight procedures. If changes were made to the statutory arrangements for the issuing of warrants consideration might be given to the involvement of some form of external legal scrutiny alongside the role of Ministers in the issuing of warrants.

6. The process of having warrants signed by a Secretary of State also raises questions about the level of scrutiny applied to each warrant. While those involved claim to spend a considerable amount of time reviewing warrants the process must be extremely demanding. Questions are often raised about the extent to which the Commissioners, whose role is only part-time, can provide effective review of only a sample of warrants, (see para. 12 below). Yet those Ministers responsible for signing all warrants must combine this with running a large government department, being a senior member of the government, and other parliamentary and constituency duties. An additional layer of independent judicial scrutiny at the point at which warrants are signed may help to relieve the burden on hard–pressed Ministers and provide more effective scrutiny of the process.

7. Another question relates to who signs warrants for interception in the absence of the designated Secretary of State. The legislation states that warrants must be signed by a Secretary of State. Although the assumption is that this will be either the Home or Foreign Secretary, the legislation does not specify in detail which Secretary of State, or who should sign in the absence of the relevant Minister. As part of our research we interviewed a Secretary of State from another department entirely, with no experience in the Home Office or of dealing with the intelligence and security agencies, who claimed to have routinely signed Home Office warrants when the Home Secretary was unavailable. In order to ensure that the arrangements for issuing warrants is robust it would be helpful if legislation specified in more detail who should sign warrants and what the process should be in the absence of the designated Secretary of State. It would be preferable if, in the absence of the appropriate Secretary of State, a clear chain of responsibility was established which involved passing warrants to another designated Secretary of State, or upwards to the Prime Minister, rather than to a Secretary of State from any other department.

Legislative oversight – the Intelligence and Security Committee of Parliament

8. The Intelligence and Security Committee (ISC) is a statutory committee established by the Intelligence Services Act 1994, to examine the administration, policy and expenditure of the three intelligence and security agencies. The anomalous status of the ISC led to considerable debate and repeated questions in Parliament about the independence of the Committee. Significant reforms included in the Justice and Security Act 2013 reconstituted the ISC as a parliamentary committee, expanded its remit to encompass the wider intelligence community, and also provided new powers to oversee operational issues and request access to information. The resources available to the ISC have also increased considerably since 2010. Although the ISC does not have a direct role in approving the interception of communications it is responsible for overseeing the administration, policy and operational practices of the intelligence and security agencies. It is therefore central to the effective oversight of the use of investigatory powers by the agencies. The increased powers and additional resources now available to the ISC are a welcome development. Although it remains to be seen whether the reformed ISC will in practice enhance the current oversight arrangements, it would be premature to recommend further statutory reform of the ISC at this time.

9. Nevertheless, some changes to the way in which the reconstituted ISC operates may serve to further enhance its credibility, most notably in relation to the membership of the Committee. It is widely accepted that the legitimacy of legislative intelligence oversight bodies is enhanced if they are chaired by a member of an opposition party. This is a model which has been followed in a number of other states, and one which has periodically been discussed in relation to the ISC. The profile of others members of the Committee may also have a significant impact on the perception of the Committee, both in Parliament and beyond. A large proportion of those who have served on the ISC have previously held Ministerial office (22 out of 37 current and former members). The limited profile of the membership, and in particular the reliance on parliamentarians with existing experience of working with the agencies, means that the ISC has done little to broaden the pool of parliamentary knowledge and understanding of intelligence. Moreover, while the tendency towards seniority in appointments to the ISC may have enhanced the Committee’s standing with the agencies, it has done less to convince Parliament that the Committee is capable of rigorous and independent scrutiny. Changes to the composition of the ISC, including the practice of appointing a Chair from an opposition party, coupled with a more bold approach to the appointment of members who may be viewed as more independent, would help enhance the ISC’s credibility in Parliament and beyond.

10. Another potentially significant improvement in the current arrangements would be an increase in the level of cooperation between the ISC and other bodies involved in oversight. As noted below (para. 13), cooperation between oversight bodies is an important means of avoiding accountability gaps. There have, however, been significant barriers to cooperation between the ISC and the Commissioners and the Investigatory Powers Tribunal (IPT). Since 1994, the ISC has met on an annual basis with the Commissioners responsible for overseeing the warranting procedure for the intelligence and security agencies. However, despite repeated requests the ISC only met representatives of the Investigatory Powers Tribunal for the first time in 2010. The ISC has also repeatedly been denied access to the confidential annexes to the Commissioners’ published reports. The ISC first requested access to the confidential annexes in 1998, and continued to do so over the following years, most recently in its annual report for 2010-2011, but access has continued to be denied. Cooperation between the various oversight mechanisms is central to ensuring that policy and operations are in concert and that accountability gaps do not emerge. Steps should be taken to allow for greater and more substantive cooperation between the ISC, the Commissioners and the IPT, including access to each other’s procedures and unredacted reports.

Judicial oversight – The Commissioners and the Investigatory Powers Tribunal

11. The process of reviewing the authorisation of warrants for interception and intrusive investigations by the intelligence and security agencies is carried out by the Interception of Communications Commissioner and the Intelligence Services Commissioner. The structural limitations on the work of the Commissioners are well known and will no doubt feature heavily in a number of responses to this consultation. These concerns do not relate to the quality of the individuals holding the office of Commissioner, all of whom have held high judicial office, but to the nature of the post and the timing of review. Perhaps the most significant limitations relate to the fact that the Commissioners operate on a part-time basis and only review a relatively small sample of warrants. Moreover, the process of review is post hoc, with the result that mistakes are only identified after a potential infringement of liberties has taken place. In the course of their work the Commissioners do routinely identify mistakes and provide for restitution. However, if mistakes are identified in a sample of warrants then further, possibly many more, mistakes must go undetected in the warrants that are not subject to scrutiny. It is important to remember that every warrant involves a potential breach of human rights, with potentially significant consequences. It is also important to remember that oversight mechanisms which identify mistakes also serve to enhance the efficacy of the agencies. The post hoc nature of the Commissioners’ work, and even the more selective approach, would be more acceptable if some form of independent judicial review were provided at the stage at which warrants are signed (see para 5). In the absence of this, the scale and seriousness of the work of the intelligence and security agencies, and the commensurate demands on those responsible for oversight, is such that a more comprehensive and robust system of review should be instituted, whereby many more, if not all, warrants should be subject to review.

12. The demands on the Intelligence Services Commissioner, in particular, have increased in recent years. In addition to the Commissioner’s role in overseeing the warranting process, the Justice and Security Act expanded the role of the Intelligence Services Commissioner to include, at the Prime Minister’s request, keeping under review ‘any aspect of the functions of ’ the intelligence services, the heads of the intelligence services, and any part of the armed forces engaged in intelligence activities. Not only does this new and expansive role place an extra burden on the resources of the Intelligence Services Commissioner, it also appears to overlap somewhat with the functions of the ISC. The lack of clarity about roles can, of course, lead to duplication but may also lead to accountability gaps if each body assumes that the other has primary responsibility in a particular area or case. There is also the possibility that governments can play scrutiny bodies off against each other, assigning tasks to the body that they assume will offer the most agreeable response, or when duplication occurs, being able to pick and choose which findings to accept. While ensuring close cooperation between the various oversight bodies, it would nevertheless be beneficial if a clear demarcation was maintained between their respective roles, and in particular if some clarity was provided in relation to the overlapping statutory roles of the ISC and the Intelligence Services Commissioner.

Cross-cutting issues

13. The regulatory framework: As noted a number of times in this submission (paras. 3, 10, 12) there are a number of bodies involved in the oversight of the intelligence and security agencies. This multi-faceted approach has several advantages. A combination of organisational and functional oversight serves to overcome the potential accountability gaps when oversight arrangements are tied to the activities of specific agencies. A combination of Executive and legislative scrutiny is an important check on Executive power, and the use of external review processes, including by judges, not only helps ensure that intelligence agencies operate within the law, but may also help to lift oversight above political partisanship. However, there are also a number of potential problems with what may be seen as a patchwork approach to intelligence oversight. It is important to ensure that as changes take place within the intelligence community, both organisationally and functionally, oversight mechanisms are adapted to keep pace with such changes and that gaps do not emerge in the oversight system. It is also important to remember that each level of oversight has a distinct and important role in terms of providing effective and credible oversight, and that changes in the role and powers of one level of oversight may not compensate for deficiencies at another level. Strong Executive control does not obviate the need for parliamentary scrutiny, and wider parliamentary oversight of the efficacy of intelligence agencies and operations does not preclude the role of the judiciary in addressing questions of legality. In considering reform of any aspect of the regulatory framework consideration should be given to the framework as a whole to ensure that accountability gaps do not emerge. It should also be appreciated that the breadth and depth of oversight are likely to be enhanced if there is a good level of cooperation between the various actors involved.

14. Openness and transparency: The work of the intelligence and security agencies is of necessity secret. However, the work of intelligence oversight bodies should wherever possible be open and transparent. It is not sufficient that oversight should take place, if oversight bodies are to have legitimacy then oversight should, to some degree, be seen to be taking place. With regard British intelligence oversight bodies, this has not always been the case. There has been considerable progress in recent years with, for example, the ISC, the Commissioners and the IPT establishing a web presence, and since 2010, the ISC in particular has developed a more outward facing profile. However, there is little evidence for widespread knowledge and understanding or indeed confidence in the regulatory framework under which the agencies operate, and the roles and processes of the Commissioners and the IPT in particular, remain somewhat opaque. Our research indicated that even within Parliament there remains considerable uncertainty not just about the roles but the very existence of the various oversight bodies. Continued efforts should be made on the part of all the statutory oversight bodies to enhance their public profile, explain their work more widely both to the public and to Parliament, and engage more closely with others involved in scrutiny both in Parliament and civil society.

Conclusions & Recommendations

Executive Oversight – accountability to Ministers

A. If changes were made to the statutory arrangements for the issuing of warrants consideration might be given to the involvement of some form of external legal scrutiny alongside the role of Ministers in the issuing of warrants.

B. An additional layer of independent judicial scrutiny at the point at which warrants are signed may help to relieve the burden on hard–pressed Ministers and provide more effective scrutiny of the process.

C. It would be preferable if, in the absence of the appropriate Secretary of State, a clear chain of responsibility was established which involved passing warrants to another designated Secretary of State, or upwards to the Prime Minister, rather than to a Secretary of State from any other department.

Legislative oversight – the Intelligence and Security Committee of Parliament

D. The increased powers and additional resources now available to the ISC are a welcome development. Although it remains to be seen whether the reformed ISC will in practice enhance the current oversight arrangements, it would be premature to recommend further statutory reform of the ISC at this time.

E. Changes to the composition of the ISC, including the practice of appointing a Chair from an opposition party, coupled with a more bold approach to the appointment of members who may be viewed as more independent, would help enhance the ISC’s credibility in Parliament and beyond.

F. Cooperation between the various oversight mechanisms is central to ensuring that policy and operations are in concert and that accountability gaps do not emerge. Steps should be taken to allow for greater and more substantive cooperation between the ISC, the Commissioners and the IPT, including access to each other’s procedures and unredacted reports.

Judicial oversight – The Commissioners and the Investigatory Powers Tribunal

G. The post hoc nature of the Commissioners’ work, and even the more selective approach, would be more acceptable if some form of independent judicial review were provided at the stage at which warrants are signed (see para 5). In the absence of this, the scale and seriousness of the work of the intelligence and security agencies, and the commensurate demands on those responsible for oversight, is such that a more comprehensive and robust system of review should be instituted, whereby many more, if not all, warrants should be subject to review.

H. While ensuring close cooperation between the various oversight bodies, it would nevertheless be beneficial if a clear demarcation was maintained between their respective roles, and in particular if some clarity was provided in relation to the overlapping statutory roles of the ISC and the Intelligence Services Commissioner.

Cross-cutting issues

I. In considering reform of any aspect of the regulatory framework consideration should be given to the framework as a whole to ensure that accountability gaps do not emerge. It should also be appreciated that the breadth and depth of oversight are likely to be enhanced if there is a good level of cooperation between the various actors involved.

J. Continued efforts should be made on the part of all the statutory oversight bodies to enhance their public profile, explain their work more widely both to the public and to Parliament, and engage more closely with others involved in scrutiny both in Parliament and civil society.

Dr Andrew Defty, Reader in Politics

Professor Hugh Bochel, Professor of Public Policy.

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