This post first appeared on the blog of the Political Studies Association Specialist Group on Parliaments. It is based on my paper presented at the group’s Legislatures in Uncertain Times conference, held at the Scottish Parliament in November 2017.
The Intelligence and Security Committee (ISC) was established in 1994 to provide, for the first time, oversight by parliamentarians of the British intelligence and security agencies. Although modelled on the select committees, the ISC was not established a parliamentary committee, but was appointed by, and reported to, the Prime Minister. Reforms included in the Justice and Security Act 2013, reconstituted the ISC as a parliamentary committee, and provided it with a new and expanded mandate. Despite these changes, this post argues that in a number of respects the ISC has become less visible in recent years and is increasingly marginalised by government, leading to potential gaps in the democratic accountability of intelligence in the UK.
The impact of the 2015 and 2017 general elections
Two general elections in quick succession have had a significant impact on the work of the Intelligence and Security Committee as they have on many parliamentary committees, although the impact on the ISC has perhaps been more acute. The ISC is reconstituted following each general election. Following changes introduced in 2013, members of the ISC are nominated by the Prime Minister after consultation with opposition leaders, and the committee is then appointed by the House of Commons Selection Committee. For reasons that are not clear, this process took a very long time following the 2015 general election and even longer in 2017.
In 2015, a new ISC was not established until early September, four months after the general election and six months after the last meeting of the committee. This delay prompted ISC Chair Dominic Grieve, to make a direct appeal to party leaders prior to the 2017 general election to ‘prioritise the appointment’ of a new committee following the election. Yet the ISC was, once again, one of the last parliamentary committees to be established in the 2017 Parliament and was not reconstituted until November 2017, more than five months after the election. This exceptionally long delay prompted strong criticism from returning Grieve, who returned as Chair, and observed that
‘the effective and robust oversight of the intelligence community, entrusted to us, is too important to have been left in a vacuum for so many months.’
These delays have significantly disrupted the work of the ISC, which has a considerable backlog of work. The ISC inherited the detainee inquiry when the judge-led inquiry into the treatment of prisoners by UK intelligence personnel was wound up in 2013, but it has yet to report.Further, while the ISC has a statutory duty to produce an annual report on its work, there was no annual report for 2014 – 2015, the first time this has happened, and the most recent annual report covering 2016 – 2017, which was due to be published in the spring, was delayed by the general election. Prior to the 2017 election the committee rushed out its report on the UK involvement in lethal drone strikes in Syria. However, in order to facilitate this, the committee decided to forego the usual process of negotiating with the government over the publication of sensitive material, with the result that the published report was much more heavily redacted than is usually the case.
The newly established ISC announced an ambitious programme for the publication of its outstanding reports, and published the 2016 – 2017 annual report just before Christmas. The, as yet unfinished, detainee inquiry is expected to appear in 2018, along with a review of diversity and inclusion in the intelligence agencies.
It is deeply unsatisfactory that for almost twelve months in the last three years, Britain has been without a legislative intelligence oversight body. There were four terrorist attacks in the period following the committee’s last meeting in the 2015-2017 Parliament. While it is not the role of the ISC to provide day to day scrutiny of the intelligence and security agencies, it does have a an expansive mandate which includes the scrutiny of operations and the handling of intelligence by government. The ISC has taken a close interest in the agencies’ performance against domestic terrorism, undertaking inquiries on the 7/7 bombing, the Crevice plot, and the murder of Fusilier Lee Rigby, and it will want to look at the handling of intelligence prior to the Manchester bombing and the London attacks. In terms of providing accountability and also reassurance, both to parliament and the public, it is important that the ISC exists and that it is active.
Retreating into the shadows? The visibility of the ISC
General elections, while inconvenient, are a normal and essential part of the democratic process. However, the delay in establishing a new committee reflects a more worrying decline in the visibility of the ISC in recent years. The ISC is, of necessity, a secret committee, it meets behind closed doors, takes evidence in secret and its reports are subject to a process of review before publication. The fact that the ISC ‘operates within the ring of secrecy’, has often been considered to be one of the strengths of the committee.
At the same time there is an open side to the ISC. It is a statutory committee and its creation in 1994 was the subject of considerable parliamentary debate, as were the reforms introduced in 2013. The committee publishes reports and members are accountable to Parliament for its work. In 1998, the Labour government introduced an annual House of Commons debate on the work of the committee, and this was extended to the House of Lords in 2009. Under recent Chairs the ISC has also adopted a more public profile in an effort to enhance the credibility of its work in parliament and beyond. In 2010, the incoming Chair of the ISC, Malcolm Rifkind, conceded that while the ISC was ‘entirely independent in law and in the eyes of its own members’, the wider perception of the committee was often at variance with this, and that steps needed to be taken to ensure that the ISC was ‘perceived to be fully independent, both by Parliament and by the public.’
Under Rifkind, the committee held its first public evidence sessions, publicly cross-examining intelligence agency heads in November 2013. This was followed by the committee’s first public call for evidence as part of its Privacy and Security inquiry and a further series of public evidence sessions with academics, privacy campaigners and Government Ministers. Rifkind and his successor, Dominic Grieve, have also been somewhat more prominent than previous ISC chairs, in terms of speaking about the committee’s work and issuing public statements in response to emerging stories or public concerns, such as the Snowden revelations.
Despite these developments the ISC has, in some respects, become less visible in recent years. The annual parliamentary debates on the work of the committee have fallen into abeyance. There has not been a House of Commons debate on the ISC since 2011, while there have only been two annual debates in the House of Lords, the most recent in 2010. The practice of holding evidence sessions in public has also not been repeated since 2014, with no public sessions in the last, albeit truncated, parliament.
Given the nature of its work, public sessions are always likely to be a minor part of the ISC’s evidence gathering procedures. Nevertheless, a public call for evidence as part of the committee’s detainee inquiry has not been followed by further public evidence sessions, and written submissions have not been published. There was also clearly scope to hold public sessions with the agencies as part of the committee’s inquiry into women in the intelligence community, which focused on issues such as childcare, flexible working and maternity provision, and resulted in a report which, unusually, had no redactions.
The scale of the ISC’s published output has also declined. The published output of the ISC has always been relatively modest, particularly compared to other parliamentary committees. In the 2010 – 2015 parliament, for example, the ISC published four annual reports and five additional reports, while in the same period, the Foreign Affairs Select Committee published thirty-five reports. Despite this the committee has reduced its reporting in recent years. Following the 2013 reforms a decision was made within the committee to reduce the length of its annual reports in order to allow a greater focus on the committees more substantive inquiries. The first two annual reports in the 2010 parliament were very long at 282 and 250 paragraphs, while the second two ran to just 52 and 17 paragraphs. In the same period the committee produced substantive reports on the murder of Fusilier Lee Rigby (191 paragraphs), and privacy and security (149 paragraphs). However, in the 2015 Parliament the ISC produced only three reports in total, all of which were very short when compared to the committee’s previous output: one annual report (20 paragraphs) and two special reports, on the Investigatory Powers Bill (13 paragraphs) and the UK’s involvement in lethal drone strikes (31 paragraphs). While it is perhaps a little unfair to focus solely on the length of the ISC’s output, as the committee meets and takes evidence almost entirely in secret, and its work is no longer debated in Parliament, its published output represents the only opportunity to scrutinise its work.
One possible explanation for the ISC’s declining output is that the committee is simply overwhelmed by the burden of taking on the detainee inquiry. The ISC has been provided with extra resources to progress the inquiry, but it is a significant undertaking, involving the review of over 40,000 documents and over 60 hours of oral evidence. This is an important and long overdue inquiry which was begun in 2010, and about which the then Prime Minister, David Cameron, expressed the hope that it would ‘report within a year’. However, it would be unfortunate if the inheritance of this inquiry by the ISC was preventing the committee from carrying out its core functions and pursuing its own agenda.
Marginalised by the Government?
Finally, and perhaps most worryingly, there is some evidence that the ISC is becoming marginalised by the government. The delay in appointing a new committee clearly suggests that the establishment of the ISC is not a priority for the Government. The Government also appears to have ended the practice of publishing a response to all ISC reports. Moreover, there were some worrying signs at the end of the last Parliament that the government is pushing back against the new powers acquired by the committee in 2013.
The ISC’s inquiry into lethal drone strikes in Syria resulting in the deaths of UK nationals, was the first opportunity for the ISC, under its new powers, to undertake an investigation into an operational aspect of the work of the intelligence agencies. Significantly, although the inquiry was initiated by the committee, it was explicitly sanctioned by the Prime Minister who asked the ISC to undertake an investigation and set out the parameters of the inquiry. On previous occasions, the ISC has only agreed to carry out an inquiry at the government’s request if it could be assured of full disclosure. In the words of one former committee member on such occasions, ‘the cupboards were thrown open, we saw everything.’
The drone inquiry, which was begun under David Cameron and completed under the current Prime Minister, examined the threat to the UK posed by individuals targeted by drone strikes and the decision-making which led to their targeting, focusing in particular on the case of Reyaad Khan who was killed by UK forces. Although the committee was provided with detailed evidence of the threat posed by Khan, their request to view the submissions made to Ministers about that threat were denied. This is a highly unusual position for the ISC. It is only the second time that the ISC has had a direct request for material denied, and the only time this has happened in an inquiry which the government has sanctioned in advance. It is not clear why the committee’s request was denied, although it seems that the decision was made by the Prime Minister on the basis of a more rigid definition of ISC’s remit than was agreed with her predecessor. Whatever the reason, the committee’s stark conclusion was that its capacity to carry out its core function has been diminished:
Oversight and scrutiny depend on primary evidence: without sight of the actual documents provided to Ministers we cannot ourselves be sure – nor offer an assurance to Parliament or the public – that we have indeed been given the full facts surrounding the authorisation process for the lethal strike against Reyaad Khan.
It may be premature to conclude that, despite recent changes to its status and powers, the ISC is a committee in decline. Nevertheless, the committee is clearly facing a number of significant challenges in terms of establishing its authority and credibility. This may be a natural consequence of a committee testing the limits of its new mandate, although some of the issues identified here pre-date the 2013 reforms. It may also be a consequence of the ISC becoming a committee of Parliament, rather than one operating under the authority of the Prime Minister. Although these issues also clearly illustrate the extent to which the committee remains dependent on cooperation from the Government both for its existence and operation. It is to be hoped that a new committee is able to reassert the importance of effective parliamentary oversight of intelligence and arrest these worrying signs of decline.