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.