The Intelligence and Security Committee and the Privy Council

PCAt a meeting at Windsor Castle at the end of April the Labour MP, Kevan Jones, was appointed as a member of the Privy Council. Mr Jones can now adopt the title, Right Honourable, and unless he chooses to resign, which is very rare, it is a position he will hold for life. Membership of the Privy Council is, by convention, offered to Cabinet Ministers, opposition leaders and other notable public figures including Archbishops and senior judges. Mr Jones, who has been an MP since 2001, has never held a Cabinet post, his most senior Ministerial role being as a junior defence Minister from 2008 to 2010. He owes his elevation to the Privy Council to his recent appointment to the parliamentary Intelligence and Security Committee (ISC).

Mr Jones is the final member of the current ISC to elevated to the Privy Council. His appointment reinforces a common misperception that ISC members must also be members of the Privy Council. I have lost count of the number of occasions on which I have been told by Members of Parliament and others that the ISC is a very senior committee and only Privy Counsellors may serve on it. The assumption is either that only Privy Counsellors are appointed to the ISC or that appointment to the ISC is automatically followed by elevation to the Privy Council. In fact, neither of these things are true. ISC members do not need to be Privy Counsellors, nor does membership of the ISC automatically lead to elevation to the Privy Council.

There has been a tendency towards seniority in appointments to the ISC with the result that a large proportion of appointees have previously held Ministerial positions which have meant that they were already members of the Privy Council before appointment to the committee. However, the proportion of ISC members who are Privy Counsellors has fluctuated throughout the committee’s history. For example, the first committee, which was appointed in 1994, comprised five Privy Counsellors, including the Chair, Tom King, and four members who were not Privy Counsellors. It was not until 2004, that, for the first time, all members of the ISC were also Privy Counsellors, but this changed again with the appointment of new members following the 2005 general election.

Nor has appointment to the ISC guaranteed Privy Council membership. Several ISC members, including Allan Rogers, Ben Chapman and Dari Taylor have never been members of the Privy Council. Others including Yvette Cooper and Rosie Winterton, who are now Privy Counsellors received this honour as a result of ministerial appointments after leaving the ISC. Others have served for long periods on the ISC before being appointed to the Privy Council. Michael Mates, for example, one of the four members of the first committee who were not Privy Counsellors, served on the ISC for ten years before being appointed to the Privy Council. Moreover, rather than being a reward for ISC service, Mates’ invitation to join the Privy Council appears to have been to allow him to serve on the committee of Privy Counsellors which conducted an inquiry into Iraqi weapons of mass destruction. Others such as Julian Lewis and Mark Field, were made  Privy Counsellors on leaving the ISC, rather than on appointment.

The mistaken assumption that ISC members must also be members of the Privy Council appears to be based on the long-established practice of governments sharing material with selected MPs on ‘Privy Council terms’. Members of the Privy Council must swear an oath of loyalty to the monarch, which includes a promise to ‘keep secret all matters committed and revealed in Council.’ This has been a useful device to enable governments to share sensitive material, including intelligence material, with individuals who are not members of the government. Using this mechanism, Leaders of the Opposition have occasionally been apprised of concerns if one of their MPs is considered to be a security risk. It has also been used to share sensitive information with senior opposition politicians at times of national emergency or crisis such as the Cuban missile crisis, the war in Iraq or more recently in relation to the military intervention in Syria.

However, while the Privy Council oath has been a convenient mechanism for the occasional sharing of sensitive information beyond government, it clearly was not considered sufficient protection for the extent of access to intelligence material provided by membership of the ISC. ISC members, like Government Ministers, are bound by something more robust and legally binding than the Privy Council oath; all are notified under the Official Secrets Act. Membership of the Privy Council is for most a welcome reward for service on the Intelligence and Security Committee, but it is the legal obligations backed up by the threat of prosecution which is the real guarantor of secrecy from the ISC.

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The Intelligence and Security Committee: a committee in decline?

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.

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

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

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

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

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

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

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

Why then has the committee not been appointed more promptly?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Delayed reports

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

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

Ongoing inquiries

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

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

Changing membership

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

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

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

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

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

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