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

Posted on October 28, 2017 by Andrew Defty

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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Some thoughts on the latest appointments to the ISC

Posted on November 2, 2016 by Andrew Defty

ISCIn previous posts, here , here and here, I’ve written about the process of appointing members of the Intelligence and Security Committee, and in particular about the new arrangements for appointments introduced by the Justice and Security Act, 2013.

Although the ISC is reconstituted after each general election, there are occasional changes if members leave and need to be replaced. There were two new appointments to the Committee in October. These were prompted by the departures of Alan Duncan, who was appointed as a Foreign Office Minister in July, and George Howarth who stepped down from the ISC in October. Duncan left under that section of the Justice and Security Act which prevents Ministers from serving on the ISC. It is not, at present, clear why George Howarth has stepped down. Interestingly the appointment of a replacement for Alan Duncan was originally on the House of Commons order paper for 17th October, although it was not debated on that day, which suggests that Howarth’s decision was, perhaps, a recent one and it was decided to allow both new appointments to go through together.

Alan Duncan has only been a member of the ISC since the general election. George Howarth, however, was the longest serving member of the current committee, having joined the ISC after the 2005 general election. His departure means that Lord Lothian (Michael Ancram), who replaced James Arbuthnot on the ISC  in January 2006, is now the longest serving member. However, he is now the only current member to have served anywhere near two terms on the ISC, the next most experienced member, the Labour MP, Fiona Mactaggart, only joined the committee in January 2014. With only one member who served throughout the previous Parliament this is now the most inexperienced Intelligence and Security Committee since the first committee was appointed in 1994.

In some respects this is a significant change in the complexion of the ISC. Since the ISC was first established it has been accepted that this is an area of scrutiny in which few parliamentarians have any experience and that membership of the committee would involve a steep learning curve. The ISC’s first report published in 1995 observed that:

The intelligence and security field is a specialist and complex one, about which relatively little is reliably known from the outside. Even though several Committee members have relevant past experience as Ministers over parts of this field, none has been responsible for the whole range. Both for them and for those coming new to these matters there is a lot to absorb and assess… [ISC, Cm 2873, Interim Report of the Intelligence and Security Committee]

As a result of this when the ISC has been reconstituted after each general election it has been comprised of a combination of new and existing members. Although this is perhaps more difficult when there has been a change of government, it was for precisely this reason that Labour retained Tom King as the Chair of the ISC, after it came to power in 1997. Labour also retained the services of three other original members of the committee. Several MPs have served for long periods on the committee, most notably Michael Mates (1994-2010) and Alan Beith (1994-2008), and have provided an important element of continuity when there has been a turnover of membership. Howarth and Ancram provided that on the current committee.

The potential challenges facing a newly constituted ISC were thrown into sharp relief in 2005 when a new committee was appointed in July, only days before the 7/7 London bombings. Moreover, that committee was considerably less experienced than its predecessor having retained only two members from the previous Parliament and having appointed a new Chair. Members of the committee from that time observe that it was forced to hit the ground the running.

Another potentially worrying tendency is an increased turnover in membership of the ISC. There was only one change of membership in each of the first two committee, 1994-1997 and 1997 – 2001, when Lord Howe stepped down from the first committee and Yvette Cooper left the second for Ministerial office. Membership of the third committee 2001 – 2005, remained the same throughout the Parliament. However, the fourth committee (2005 – 2010), had five changes of membership, including three Chairs. This was far from ideal and certainly impacted on the committee’s work and the wider perception of it. The committee appointed in 2010 was somewhat more stable that its predecessor, with only three members leaving during the Parliament, although the departure of its Chair, Malcolm Rifkind, towards the end of the Parliament was more than a little unsettling. Unlike Julian Lewis, who left the committee after him, Rifkind was not replaced and a new Chair was not appointed until after the general election.

In addition to the retention of experienced members, another way in which the ISC has sought to provide expertise, in an area in which few parliamentarians have any experience, is through the appointment of members with some experience of dealing with the intelligence agencies. This has led to a tendency towards seniority in appointments to the ISC, with a large proportion members having formerly held Ministerial office, particularly in the Home Office, the Foreign Office, the North Ireland Office or the MoD. This has not always been a welcome approach to selecting ISC members as it has allowed the perception to develop, within Parliament and beyond, that the ISC is too close to those it is responsible for scrutinising. In interviews for our research, one parliamentarian who subsequently went on to serve on the ISC even suggested that because of his experience in working with the agencies he was precisely the kind of person who should not be selected to serve on the ISC. Although he did gracefully concede that he had changed that opinion when re-interviewed following his appointment to the committee.

I have written elsewhere about the need to adopt a different approach, and that the government should perhaps throw the net a little wider, in nominating members for the ISC. However, the replacements for Duncan and Howarth, the Conservative MP, Richard Benyon and the Labour MP, David Hanson, fall pretty firmly into the standard profile of appointments to the ISC. Both have previously served as Ministers. Of the forty-six parliamentarians who have served on the ISC, Benyon and Hanson  are the 26th and 27th former Ministers to be appointed to the committee. They are also the 35th and 36th men to serve on the ISC.

David Hanson, in particular has extensive relevant Ministerial experience having served as Minister of State in the Northern Ireland Office, the Ministry of Justice and perhaps most significantly, as Minister for Security and Policing in the Home Office. If one were to draw up a list of MPs who are possible candidates for ISC membership, based solely on relevant Ministerial experience, David Hanson would appear quite near the top of that list. If there was some concern in Whitehall that Jeremy Corbyn would take this opportunity to nominate a well-known critic of the agencies to the ISC, they will have been allayed by Hanson’s nomination. Richard Benyon‘s, Ministerial experience is somewhat more modest and less relevant, having served as a Parliamentary Under-Secretary of State in DEFRA. His qualification for appointment to the ISC probably lies in the fact that he is a former officer in the British Army, with experience in Northern Ireland and East Asia. Benyon will also be the only member of the ISC who is not a Privy Counsellor, although that may follow.

Although members are still nominated by the Prime Minister in consultation with opposition leaders, appointments to the ISC are now subject to parliamentary approval. Nevertheless, these two new appointments apparently went through on the nod with no opposition in the chamber. Whether either of these appointments are likely to provide anything new to the ISC or offer a more challenging or independent perspective on the work of the intelligence and security agencies or the government’s handling of intelligence remains to be seen, but I doubt it.

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Britain’s response to the attacks in Paris

Posted on March 25, 2016 by Andrew Defty

IMG_0250This post brings together two similar pieces I wrote in response to the terrorist attacks in Paris in November 2015. They focus in particular on the potential impact of events in Paris on the passage of the Investigatory Powers Bill currently making its way through Parliament. The first longer piece appeared on the Democratic Audit blog on 20th November. The second shorter piece also considers the implications of the attacks in relation to the operation of NATO. It was published on the website of the Lincolnshire Echo on 16 November.

Parliament must not be marginalised in Britain’s response to the attacks in Paris

In times of crisis, particularly when issues of national security are at stake, it is customary for Parliament to defer to the Executive. There can be very good reasons for this, if a situation is fast moving and requires a quick and decisive response, or if the government is in possession of intelligence of a threat which it does not feel able to share with parliament. However, such occasions are rare and there are also very good reasons to argue that it is at times of crisis or national emergency that Parliament should more closely scrutinise the powers of the Executive. Such scrutiny should aim to ensure that governments do not seek to take advantage of circumstances to force through measures which have previously been rejected, or to ensure that special measures introduced to deal with particular circumstances do not remain on the statute books in perpetuity.

It is, therefore, vital that Parliament is not marginalised in the government’s response to the recent terrorist attacks in Paris or in the development of a strategy for dealing with the wider threat of international terrorism. The attacks in Paris coincide with an ongoing debate about the powers of the intelligence and security agencies in the UK. The draft Investigatory Powers Bill, which was published a little over a week ago, provides for controversial new surveillance powers including the bulk retention of communications data, something which had previously been rejected by Parliament.

The government has recognised the complex and controversial nature of the Investigatory Powers Bill and has allowed for a long period of pre-legislative scrutiny. The draft Bill will be subject to scrutiny by a Joint Committee of Parliament, the Intelligence and Security Committee has said that it will also look at the Bill and other parliamentary committees may well take an interest. The government has also invited comments from industry, academia and civil liberties groups. In a rare intervention, the Director-General of MI5 has also called for a mature debate on surveillance powers. While there is clearly some element of perception management in all of this, it is nevertheless, a welcome opportunity for substantive debate about intelligence agency powers, and is in marked contrast to previous legislation relating to the intelligence and security agencies which was subject to relatively scant parliamentary scrutiny and generally made it onto the statute books unchanged.

The attacks in Paris have not changed the debate about surveillance in the UK but they have intensified it and they may well have foreshortened it. The immediate response of some to the Paris attacks has been to suggest that the case for the Investigatory Powers Bill has now been made and that detailed scrutiny should be curtailed. On Friday’s edition of the BBC’s Newsnight, while the attacks were still going on, Nadhim Zahawi, Conservative member of the foreign affairs select committee used the attacks to justify the Investigatory Powers Bill, asserting that it was necessary to ‘help our police and intelligence agencies to track those people electronically’. On Sunday, Lord Carlile, formerly the Government’s independent reviewer of terrorism legislation, asserted that the Bill gave the intelligence agencies all the powers they now need to fight terrorism and asserted that ‘I and other politicians want this Bill to be expedited, so that rather than becoming law by the end of 2016, which is the plan, it should become law as soon as possible.’ The Prime Minister also suggested that scrutiny might be foreshortened when he told the Today programme on Monday morning that ‘we should look at the timetable’ for the Bill. The government’s decision on Tuesday to bring forward an announcement of further resources for the intelligence and security agencies, a decision which had clearly been made before the attacks in Paris, have further added to the sense of urgency around the Bill.

Such statements have raised obvious and understandable concerns that the attacks in Paris will be used as a pretext to ‘fast-track’ legislation through Parliament without proper scrutiny. As others have observed, good legislation is rarely made in haste, nor, one might add, as an immediate response to individual events. Britain’s recent experience with anti-terrorism legislation is an object lesson of the problems associated with such an approach. Between 2001 and 2010, Labour introduced a raft of anti-terrorist legislation in response to terrorist attacks (9/11, 7/7) or, more often than not, in response to court rulings that elements of previous legislation (detention without trial, control orders, asset-freezing) were unlawful.

The coalition government’s attempts to bring forward legislation on the collection and retention of communications data were similarly faltering. It is important to remember that the draft Investigatory Powers Bill is not a response to the terrorist threat from ISIS, or any other group, but rather to a series of legal challenges and inquiries which have cast doubt on the legality of the intelligence agencies’ surveillance activities and the effectiveness of the current regulatory framework under which they operate. Earlier this year the European Court of Justice ruled that elements of the Data Retention and Investigatory Powers Act, which the Investigatory Powers Bill will replace, were incompatible with EU law. The Investigatory Powers Tribunal also ruled that bulk communications data collection had been unlawful and that the communications of civil liberties groups including Amnesty International had been unlawfully intercepted. There has also been considerable debate about whether the communications of some groups including lawyers, journalists and MPs, which have variously been presumed to be privileged should be subject to further protections. The current reviewer of anti-terrorism legislation, David Anderson, described the current arrangements for interception of communications as ‘undemocratic, unnecessary and – in the long run – intolerable.’

Legislation which is not subject to substantive, detailed and sustained scrutiny is unlikely to enhance national security. It is vitally important not only that the intelligence agencies have the powers they need to combat the terrorist threat but also that they operate within a sound legal framework. Failure to provide such a framework will undermine the work of the agencies and lead to the unwelcome distraction of further legal challenges. The government’s initial proposal to consult widely on the draft Investigatory Powers Bill was a good one. It is hard to avoid the conclusion that in responding to the attacks in Paris some, including perhaps the Prime Minister, have been swayed by Churchill’s maxim to ‘never let a good crisis go to waste’. However, relying on a sense of urgency in order to get measures onto the statute books will not make for good law and does a disservice to the intelligence agencies and those they are tasked to defend.

Britain’s response to the terror attacks in Paris

The terrible attacks in Paris on Friday will raise understandable concerns about the threat of further terrorist attacks, including in the UK. Although Paris has suffered two serious attacks this year the government will be keen to ensure that the British public are not complacent about the threat of attacks in the UK. The system of publishing threat levels within the UK was introduced following the Bali bombings in 2002. The current threat level of ‘severe’ has been in place since August 2014 when it was raised in response to the conflict in Syria. The government has not chosen to raise that to the highest level, ‘critical’, which means that it does not at this time have specific intelligence of an imminent threat of attack within the UK, but that could of course change at any time.

In the longer term these attacks will certainly change the context in which the government is seeking to introduce controversial new surveillance powers for the British intelligence and security agencies, which were included in the draft Investigatory Powers Bill published a little over a week ago. While supporters of the Bill will wish to stress that attacks such as these reinforce the need for additional powers. Opponents of these proposals, including many within the Prime Minister’s own party, will argue that what is needed is better intelligence about what are often known threats, rather than additional powers to facilitate mass surveillance.

The attacks will also once again raise the possibility of another Parliamentary vote on British participation in military action in Syria. The Prime Minister will not want to risk losing another vote on this issue and is therefore only likely to seek one if he is confident of winning. However, the Paris attacks will certainly strengthen the arguments in favour of intervention. One factor which may influence parliamentary opinion here is the response of Britain’s NATO allies. President Hollande’s declaration that the attacks amount to an act of war raises the possibility of an invocation of article 5 of the North Atlantic Treaty, which states that an armed attack against one member state constitutes an armed attack against them all. The only previous occasion on which article 5 has been invoked was following the attacks of September 11, 2001. Crucially article 5 does not specify how member states should respond but there would be considerable pressure for Britain to stand by her allies in this case.

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Submission to Joint Committee on Draft Investigatory Powers Bill

Posted on March 25, 2016 by Andrew Defty

billThis was my written submission to the Joint Committee on the Draft Investigatory Powers Bill. The committee was established in November 2015 to consider the draft Bill. The committee received a total of 148 written submissions and took oral evidence from 59 individuals. It published its report in February 2016.

The committee’s report referred to this evidence in relation to the operation of judicial commissioners (p.109) and particularly in relation to protections for the communications of Members of Parliament, the so-called ‘Wilson doctrine’, (pp.135-6).

Submission from Dr Andrew Defty, Reader in Politics,

School of Social and Political Sciences, University of Lincoln

  1. This submission deals primarily with the question of whether the powers set out in the draft bill are sufficiently supervised, and focuses in particular on interception by the intelligence and security agencies. It also offers some comments on the issue of protections for MPs’ communications and the status of the so-called ‘Wilson Doctrine’.
  1. The submission draws upon the findings of a major research project on parliamentary scrutiny of the intelligence and security agencies carried out by a team of researchers at the University of Lincoln, which has been published in a number of journal articles and a book.[1] This submission also reflects comments made in a submission to the Investigatory Powers Review conducted by David Anderson, QC. The research on which the submission it based was funded in part by the Leverhulme Trust and 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 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 four former Home Secretaries, six former Foreign Secretaries, 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 follow-up research on the impact of recent reforms on the operation of the parliamentary Intelligence and Security Committee.

Nature of the oversight framework

  1. 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. There is, however, no one model of 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.
  1. Britain has a patchwork of oversight arrangements involving different actors with different roles. This multi-faceted approach has a number of advantages. A combination of organisational and functional oversight serves to overcome the potential accountability gaps when oversight arrangements are tied to specific agencies. A combination of Executive and legislative scrutiny is an important check on legislative power, and the use of external review processes involving judges, not only helps to ensure that covert activities are carried out within the law, but may also serve to lift oversight above political partisanship. However, there are also a number of potential problems with what may be seen as a patchwork approach. It is important to ensure that as changes take place, both organisationally and functionally, that oversight mechanisms are adapted to keep pace with change and gaps do not emerge. 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 at one level do not compensate for deficiencies at another level. For example, in the context of the draft Bill changes to the authorisation process do not obviate the need for strong post hoc review. 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.

The authorisation process for the issue warrants

  1. The draft Bill restates the principle that warrants for interception by the intelligence and security agencies are issued by a Secretary of State. The involvement of Ministers at this point is important in terms of maintaining democratic accountability and legitimacy. In our research we interviewed a number of those with direct experience of the warranting procedure, including former Home and Foreign Secretaries. These individuals testified as to the robustness of the warranting process, the seriousness with which they approached the task and the amount of time they devoted to reviewing every warrant. However, the existing warranting process does raise a number of concerns. It is anomalous 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. Moreover, given the large number of warrants signed each year there are also obvious concerns about the amount of time available to a busy Secretary of State to scrutinise each warrant in detail. In our submission to David Anderson’s review we recommended that 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 also provide more effective scrutiny of the process. The draft bill’s inclusion of a ‘double-lock’ procedure whereby warrants issued by a Secretary of State would require approval by a Judicial Commissioner before coming into force is a significant improvement on the current arrangements.
  1. The main potential point of contention would appear to be the stipulation, at section 19 (2), that in approving a warrant, Judicial Commissioners must apply the same principles as would be applied in cases of judicial review. This reflects the recommendations of the RUSI report but not those of the Anderson review. I am not convinced that this represents a significant limitation on the powers of the Judicial Commissioner, particularly when considered alongside section 19 (1). Moreover, judges have consistently shown themselves prepared to exercise considerable rigour and independence in the application of judicial review in other, related, areas such as control orders. Lord Pannick’s recent article in The Times was particularly convincing in this respect.[2] However, the advantages are of this limitation on the role of Judicial Commissioners are not clear. If a Secretary of State is convinced of the case for interception, as they always claims to be, and particularly when a process exists to challenge the decision of a Judicial Commissioner, then allowing Judicial Commissioners to review the application on the same terms as Ministers would seem to provide a more robust system and one which is less open to criticism.
  1. In my view a more significant flaw in the proposed authorisation procedure is the mechanism whereby Ministers might appeal against the decision of a Judicial Commissioner. Section 19 (5) states that where a Judicial Commissioner refuses to approve a decision to issue a warrant, the decision may be referred to the Investigatory Powers Commissioner. The authority of the Investigatory Powers Commissioner to approve warrants is set out in section 167 (6), which states that the Investigatory Powers Commissioner will be a Judicial Commissioner. Allowing the Investigatory Powers Commissioner to act as final approval in the issue of warrants represents an undesirable blurring of the roles of authorisation and oversight. It is the role of a Judicial Commissioner to approve the issue of warrants, while the role of the Investigatory Powers Commissioner is to provide post hoc review of this process. The draft Bill makes the Investigatory Powers Commissioner the ultimate authority in decisions about the issue of warrants, whilst also being responsible for reviewing such decisions. It should go without saying that it is not a good idea for those responsible for making decisions, to also be responsible for reviewing their own decisions. While it might be beneficial for the post of Investigatory Powers Commissioner to be held by an individual who has previously served as a Judicial Commissioner, the two roles should not be combined. If a process for challenging the decision of a Judicial Commissioner is to be included in the Bill then the model set out in the Anderson report whereby one of the Judicial Commissioners would be designated as the Chief Judicial Commissioner would be preferable to involving the Investigatory Powers Commissioner in the authorisation process.
  1. One long-standing area of ambiguity which is not clarified in the draft Bill relates to which Secretary of State is responsible for signing interception warrants. The field of intelligence is one in which few parliamentarians, or indeed government Ministers, have any experience and the application of investigatory powers as set out in the Bill is complex. It is standard practice that Home Office warrants are signed by the Home Secretary while warrants for covert activities abroad are signed by the Foreign Secretary, while those relating to defence intelligence may be signed by the Secretary of State for Defence. However, neither in previous legislation or the draft Bill is it specified which Secretary of State should sign warrants, or who should sign in the absence of the relevant Secretary of State. While it is clear that in most cases warrants will be issued by a Secretary of State with the appropriate knowledge and understanding of the process, this may not always be the case. As part of our research we interviewed a former Secretary of State from a different department entirely, with no experience in this area 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 the Bill specified in more detail which Secretary of State should issue 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 designated individual, 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.

The Investigatory Powers Commission

  1. The draft Bill includes significant proposals for reform of the current independent oversight regime, most notably with the establishment of a new and powerful Investigatory Powers Commission. The creation of a single Investigatory Powers Commission to replace the patchwork of existing commissioners is a welcome development.
  1. The new Investigatory Powers Commission is likely to be a powerful body but there is a need to ensure that it does not overlap with other oversight bodies. As noted in paragraph 7 above, it is important that the role of the Investigatory Powers Commission, which is one of audit, inspection and review, is kept separate from that of the Judicial Commissioners who are directly involved in authorisation. There is also potential for some overlap between the work of the Investigatory Powers Commission and the parliamentary Intelligence and Security Committee. In addition to overseeing the warranting process the draft Bill provides the Commission with a wide remit, which includes, 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 the any part of the armed forces engaged in intelligence activities. Not only does this expansive role place an extra burden on the resources of the Commission, it also appears to overlap considerably with the functions of the Intelligence and Security Committee. 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 which it assumes 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 Investigatory Powers Commission and the parliamentary Intelligence and Security Committee.
  1. The main challenge involved in establishing this new oversight body is to ensure that sufficient resources are made available. The Investigatory Powers Commission will be replacing at least six existing offices (section 178 (1)), while this will inevitably serve to prevent some duplication, it is important to ensure that the creation of the new body should not lead to any loss of function or capacity. There can be a tendency to view resources allocated to oversight as detracting from those which might be devoted to the important work of protecting national security. However, as noted in paragraph 3 above, oversight is not simply about ensuring that intelligence agencies do not exceed their powers, it is also an important means of maintaining and improving effectiveness. Efficacy and oversight are not mutually exclusive, and rigorous and effective oversight should be seen as a force multiplier when it comes to combating threats to national security. While it is difficult to legislate for sufficient resources, it is nevertheless, crucially important to ensure that the new Investigatory Powers Commission has sufficient resources in terms of staffing, budgets and expertise. In particular, it is vital that it has the necessary technical expertise in order to effectively exercise its functions.

Additional protection for Members of Parliament and other legislatures

  1. The draft Bill includes new protections for the communications of Members of Parliament and other legislative bodies (section 16). To date the interception of the communications of parliamentarians has been covered by the Wilson Doctrine, a convention established by the Prime Minister, Harold Wilson, in 1966. Successive Prime Ministers, including the current one, have expressed their continued commitment to the application of the Wilson Doctrine and the convention continues to have strong support amongst parliamentarians. However, there is also considerable confusion, in parliament and beyond, about the scope of the Wilson Doctrine[3] and it has come under pressure in recent years, notably from the Interception of Communications Commissioner who called for its repeal and from the Investigatory Powers Tribunal which concluded that it had no legal basis. The passage of legislation relating to the interception of communications since the 1980s means that the Wilson Doctrine is now out of step with the current statutory framework. If parliament believes that the communications of parliamentarians should be treated differently to those of other members of the public then the draft Bill provides a clear opportunity to place the Wilson Doctrine on a statutory footing.
  1. One notable anomaly of the Wilson Doctrine, which has become more obvious in recent years, is that it has only been applied to members of the House of Commons and the House of Lords. The draft Bill’s extension of additional protections to members of the devolved assemblies and UK members of the European Parliament, in addition to members of the Westminster Parliament, serves to resolve a notable inconsistency in the current operation of the Wilson Doctrine.
  1. However, while the protections set out in the draft Bill do represent a raising of the bar when it comes to the interception of communications of members of the relevant legislatures, in its current format the Bill does not represent a codification of the Wilson Doctrine. The Wilson Doctrine comprises two elements. The first is a general, although not absolute, prohibition on the interception of communications of Members of Parliament by the intelligence services. The second is that, if there is a change in that general policy the Prime Minister will inform Parliament, at a time commensurate with the interests of national security. The proposed protections in the draft Bill arguably enshrine the first element, but there is no provision for the second. If it was felt desirable to codify the Wilson Doctrine more fully, one possible solution could be a process whereby the Prime Minister will inform the parliamentary Intelligence and Security Committee, or possibly the committee’s Chair, if a warrant is issued for the interception of the communications of a member of a relevant legislature.

Conclusions and Recommendations

The authorisation process for the issue warrants

  1. The draft bill’s inclusion of a ‘double-lock’ procedure whereby warrants issued by a Secretary of State would require approval by a Judicial Commissioner before coming into force is a significant improvement on the current arrangements.
  1. If a Secretary of State is convinced of the case for interception, as they always claims to be, and particularly when a process exists to challenge the decision of a Judicial Commissioner, then allowing Judicial Commissioners to review the application on the same terms as Ministers would seem to provide a more robust system and one which is less open to criticism.
  1. Allowing the Investigatory Powers Commissioner to act as final approval in the issue of warrants represents an undesirable blurring of the roles of authorisation and oversight. If a process for challenging the decision of a Judicial Commissioner is to be included in the Bill then the model set out in the Anderson report whereby one of the Judicial Commissioners would be designated as the Chief Judicial Commissioner would be preferable to involving the Investigatory Powers Commissioner in the authorisation process.
  1. In order to ensure that the arrangements for issuing warrants is robust it would be helpful if the Bill specified in more detail which Secretary of State should issue 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 designated individual, 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.

The Investigatory Powers Commission

  1. The creation of a single Investigatory Powers Commission to replace the patchwork of existing commissioners is a welcome development.
  1. It is important that the role of the Investigatory Powers Commission, which is one of audit, inspection and review, is kept separate from that of the Judicial Commissioners who are directly involved in authorisation.
  1. 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 Investigatory Powers Commission and the parliamentary Intelligence and Security Committee.
  1. It is crucially important to ensure that the new Investigatory Powers Commission has sufficient resources in terms of staffing, budgets and expertise. In particular, it is vital that it has the necessary technical expertise in order to effectively exercise its functions.

Additional protection for Members of Parliament and other legislatures

  1. The passage of legislation relating to the interception of communications since the 1980s means that the Wilson Doctrine is now out of step with the current statutory framework. If parliament believes that the communications of parliamentarians should be treated differently to those of other members of the public then the draft Bill provides a clear opportunity to place the Wilson Doctrine on a statutory footing.
  1. The draft Bill’s extension of additional protections to members of the devolved assemblies and UK members of the European Parliament, in addition to members of the Westminster Parliament, serves to resolve a notable inconsistency in the current operation of the Wilson Doctrine.
  1. While the protections set out in the draft Bill do represent a raising of the bar when it comes to the interception of communications of members of the relevant legislatures, in its current format the Bill does not represent a codification of the Wilson Doctrine
  1. If it was felt desirable to codify the Wilson Doctrine more fully, one possible solution could be a process whereby the Prime Minister will inform the parliamentary Intelligence and Security Committee, or possibly the committee’s Chair, if a warrant is issued for the interception of the communications of a member of a relevant legislature.

18 December 2015

[1] H. Bochel, A. Defty and J. Kirkpatrick, Watching the Watchers: Parliament and the Intelligence Services, London: Palgrave, 2014.

[2] D. Pannick, QC ‘Safeguards provide a fair balance on surveillance powers’, The Times, 12 November 2015.

[3] A. Defty, H. Bochel & J. Kirkpatrick, ‘Tapping the telephones of Members of Parliament: the Wilson Doctrine and Parliamentary Privilege’ Intelligence & National Security, vol.29, no.5 (2014), pp.675-697.

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MI5 on the BBC: more PR than scrutiny

Posted on October 29, 2015 by Andrew Defty

This post first appeared on the Democratic Audit blog on 6th October 2015.

000_0159Public statements by heads of the British intelligence and security agencies are still rare enough to attract considerable attention. Moreover, representatives of the intelligence agencies do not step into the spotlight without good reason. The interview with Andrew Parker, the Director General of the Security Service (MI5) on BBC Radio 4’s Today programme last week was, therefore, significant for a number of reasons.

While much has been made of the fact that this was the first live interview with a serving head of a British intelligence agency, it is just the latest manifestation of a strategy of openness which began in the mid-1990s. However, public speeches by intelligence chiefs, the creation of websites for the agencies and the publication of official histories have often been more about information control than opening the agencies up to wider public scrutiny. Moreover, it is important to remember that the intelligence agencies have a long-established and often mutually beneficial relationship with the British media. Stories about the world of espionage are guaranteed to attract an audience, while agreeing to allow selected journalists privileged access has provided the agencies with an open channel through which to place material in the public domain. In an inquiry conducted by the Intelligence and Security Committee in 2004, it was revealed that a number of media outlets have journalists ‘accredited’ to the intelligence agencies, and receive briefings ‘about matters relevant to the Services.’ Indeed, the day after Mr. Parker’s appearance on the Today programme, newspaper reports based on ‘security sources’ confirmed the scale of the terrorist threat outlined by Parker, and added further details about the nature of that threat.

Avowable public statements, such as Parker’s radio appearance and the interview with the incoming head of GCHQ, Robert Hannigan, which appeared in the Financial Times earlier this year, are to be preferred to private briefings of carefully selected journalists. However, this interview, which included the customary question about James Bond, is just one form of scrutiny. There are some who would argue that if the agencies are serious about subjecting themselves to public scrutiny then they should be prepared to appear, in public, before parliamentary select committees. The carefully choreographed public appearance of intelligence agency heads before the Intelligence and Security Committee (ISC) last year was a welcome development, although it did not inspire confidence in the rigour of the ISC’s approach. It is to be hoped that further, and perhaps more challenging, public sessions will take place in the current parliament. However, a number of select committees including the Home Affairs Committee and the Joint Committee on Human Rights have had their requests to interview representatives of the intelligence agencies denied. These refusals seem less understandable in the context of media interviews with intelligence agency heads. When parliamentarians complain, as they often did in interviews for our research, that the intelligence agencies are not prepared to speak to parliament, they often add with some justification, ‘but they’re quite happy to talk to journalists.’

As has been widely reported, Mr Parker’s appearance on the Today programme was designed to make the case for intelligence agency powers in advance of the forthcoming Investigatory Powers Bill. The principal legislation governing the interception of communications, the Regulation of Investigatory Powers Act (RIPA) was passed in 2001, long before most of the current means of electronic communications were envisaged. Since the revelations of Edward Snowden, a series of legal challenges and inquiries have shed light on the extent to which the agencies have sought to stretch the interpretation of the existing legislation, while attempts to provide a new legislative framework have been piecemeal and far from successful. The Home Secretary’s attempt to bring forward a new and expansive Communications Data Bill, the so-called ‘snoopers’ charter’, stalled during the last Parliament when the Liberal Democrats withdrew their support. The Data Retention and Investigatory Powers Act, ‘emergency’ legislation introduced in July 2014 in response to a European Court of Justice ruling that the process whereby intelligence agencies’ required access to phone and internet records was incompatible with EU law, was itself ruled unlawful in July of this year in a case brought by the Labour MP, Tom Watson, and the Conservative MP, David Davis. In two recent landmark cases, the Investigatory Powers Tribunal ruled that the bulk collection of communications data had been unlawful up to December 2014 when the practice was revealed and that the communications of civil liberties groups including Amnesty International had been unlawfully intercepted. In June, a detailed review of investigatory powers, by the Government’s independent reviewer of terrorism legislation concluded that:

RIPA obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates. A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.

The forthcoming legislation seems likely to put back onto a statutory footing activities which have recently been ruled unlawful. It is also likely to reform the regulatory framework under which the agencies operate, although whether it will take forward all of the innovative proposals for oversight made in the investigatory powers review remains to be seen.

To some extent Parker sought to respond to these difficulties by explaining the nature of the threat and the challenges facing the agencies in monitoring terrorist communications. While he refused to be drawn on the question of what new powers the intelligence agencies might want, he did make it clear that the agencies do not feel that the current arrangements provide them with all of the powers they need, noting that the agencies, ‘can no longer obtain under proper legal warrant the communications of people they believe to be terrorists.’

Moreover, while he repeatedly responded that it was ‘for parliament to decide’, it is important to remember that legislation will be tabled by the government not parliament, and we should not assume that Mr Parker’s reticence means the agencies do not have a view on this issue, or that they are not making their views forcefully known behind the scenes in Whitehall. Moreover, public interventions such as this are likely to be invoked and may well be persuasive when parliament comes to debate the issue. It will also be interesting to see, when the bill is introduced, whether the Home Secretary is more forthcoming about what the intelligence and security agencies have said to her about the powers they now need. If she does, then members might do well to remind her that when it comes to debating civil liberties the views of the public and their democratic representatives in parliament should weigh more heavily than those of the agencies authorised to spy on them.

There is a broad consensus on the need for new legislation. The government and the agencies would clearly like to have a new legal mandate for covert interception to enable the agencies to carry out the kind of surveillance which they clearly feel is necessary for the maintenance of national security, while civil liberties groups, and to some extent those responsible for overseeing the agencies, would like to see a new regulatory framework which plugs the gaps in the current arrangements. These two objectives are by no means mutually exclusive. Effective oversight can, indeed should, lead to more effective intelligence and a more secure society, in a way that simply deferring to the agencies will not. If this is to be achieved, Mr Parker and his successors will need to be subject to more frequent, rigorous and open scrutiny, and less questions about James Bond.

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