Time to adopt a different approach to appointing members of the Intelligence and Security Committee

Posted on July 20, 2015 by Andrew Defty

This post first appeared on the Democratic Audit blog in March 2015.

In the last two weeks the Intelligence and Security Committee has lost its Chair, Sir Malcolm Rifkind, who remains as a member of the committee, and one of its members, Julian Lewis, who has stepped down from the committee. The changes mark an unwelcome end to the term of office of the current committee which, with the exception of the untimely death of Paul Goggins, had remained unchanged since the 2010 general election. The stability in membership of the current committee had been a welcome change from the previous parliament in which the ISC had three chairs and five changes of membership. However, these recent changes once again raise questions about the composition of the committee and the kind of parliamentarians selected to serve on the ISC.

The ISC is a cross-party committee comprised of nine members from both Houses of Parliament. Until changes introduced as part of the Justice and Security Act 2013, the ISC was a statutory committee with a membership hand-picked by the Prime Minister. The committee was reconstituted as a parliamentary committee in 2013, although the membership remained the same. New members are now nominated by the Prime Minister but their appointment must be approved by Parliament. The Chair of the committee is now selected by its members. Sir Malcolm Rifkind will be the last ISC Chair to have been appointed by the Prime Minister. These changes marked an important step towards making the ISC more accountable to Parliament. However, changes to the process by which members of the ISC are selected are unlikely to enhance the credibility of the committee unless there are also changes to the kind of individuals nominated to serve on the committee.

The establishment of the ISC in 1994 was an important step forward in intelligence agency accountability in the UK. The committee has undoubtedly developed a close working relationship with the intelligence agencies and has been instrumental in demystifying parliament for the agencies to the extent that agency heads now also give evidence to a number of other parliamentary committees. However, the ISC has done little to build credibility for the agencies within parliament and the credibility of the committee itself is often questioned. The committee’s image problem was acknowledged by its former Chair, Sir Malcolm Rifkind, in a speech shortly after his appointment in 2010, in which he observed that the ISC must ‘not just be entirely independent in law and in the eyes of its own members. That independence must in practice, be fully respected by all government departments and the ISC perceived to be fully independent, both by Parliament and by the public.’

Unfortunately, Sir Malcolm was himself part of the problem. As part of research undertaken at the University of Lincoln, in a series of interviews with over one hundred parliamentarians from both Houses, one of the most consistent weaknesses identified in the ISC was the kind of parliamentarians selected to serve on the committee. There was a widespread perception within Parliament that those appointed to the ISC were too close to the agencies and not the kind of members one would expect to ask difficult or probing questions. Some of the more restrained comments about the ISC membership was that they are ‘not the sort of people to make a big issue out of things’, ‘not the kind of people to rock the boat’, and ‘an elite group of parliamentarians who believe they’re the only ones who know about these matters.’ One former member of the ISC admitted that the committee had been ‘too deferential’ while a member of the current committee acknowledged that there was a still a danger of members being ‘starstruck’ by the agencies.

The ISC does have a rather different complexion to other parliamentary committees. There has been a tendency towards seniority in appointments to the ISC. Twenty-three of the thirty-nine parliamentarians who have served on the ISC have held ministerial office before being appointed to the committee, with a clear preference for members with ministerial experience in defence, foreign affairs and Northern Ireland. With the exception of Kim Howells, the six Chairs of the ISC have all held Cabinet positions prior to their appointment, including two former Foreign Secretaries (Margaret Beckett and Sir Malcolm Rifkind), two former Defence Secretaries (Sir Tom King and Rifkind), two former Secretaries of State for Northern Ireland (King and Paul Murphy) and two former Leaders of the House of Commons (Beckett and Ann Taylor).

There is a popular misperception that members of the ISC also have to be Privy Counsellors, based perhaps on the practice that Governments have occasionally shared secrets with selected parliamentarians on ‘Privy Council terms’. Although this is not the case, Privy Council membership has often been a reward for serving on the committee. Julian Lewis’s elevation to the Privy Council was, for example, announced at the same time as his departure from the committee. Many former members have also found themselves in the House of Lords. Although this has been less so in recent years, there are at present as many current and former ISC members in the House of Lords as in the House of Commons.

The appointment of ISC members from the House of Lords has allowed the appointment of individuals with professional experience of working with the intelligence agencies. Baroness Ramsey of Cartvale who served on the committee from 2005 to 2007 is a former member of SIS. The appointment to the current committee of the former Cabinet Secretary, Robin Butler, was opposed by some who felt that he was too close to the agencies. In an interview prior to Butler’s appointment, one member of the current committee noted that the ISC certainly ‘should not’ have people like Butler serving on it, although in a later interview the same individual argued that enough time had now passed since Butler had any professional contact with the agencies and his expertise meant that he could play an important role on the committee.

There are of course very good reasons for staffing intelligence oversight committees with individuals with experience of working in this area. ISC members must be trusted to handle classified information, and there may be a risk that those who are not accustomed to handling such material may, either by accident or intent, leak secret information. Intelligence is also an area in which few parliamentarians have any experience and there is therefore a steep learning curve for new members. These problems may be militated if members have previously encountered the agencies through ministerial office, or previous appointments. Such individuals may also be better placed to ask difficult questions of the agencies.

However, there is also clear potential for conflicts of interest, and such appointments can also serve to give the impression that the committee is not sufficiently independent, as Sir Malcolm Rifkind acknowledged in 2010 it is not sufficient for scrutiny to take place, those outside of the process must also have confidence it is taking place. In responding to such concerns it is not enough simply to throw up one’s hands, as ISC members have been prone to do, and simply state that the critics will never be persuaded. The ISC must work to build credibility within parliament and beyond. One way in which it may do so is to accept that the membership of the committee has not always inspired confidence and to adopt a wider and more imaginative approach to appointments.

The ISC will be reappointed after the general election and there are a number of potential changes to the membership which might serve to enhance its credibility. Whoever is Prime Minister after the election could nominate more members from outside the standard profile of ISC membership, in particular there could be less former-Ministerial appointments. While some experience in this area is clearly valuable to the committee it is damaging if the ISC is viewed as a sinecure for former Ministers. Similarly, in making appointments from the House of Lords, those who have experience of working in, or very closely with, the agencies should be avoided. The recent practice of appointing former senior members of the intelligence community to the House of Lords presents an obvious pool of individuals to serve on the ISC. However, whatever their qualifications for the post it would be a poor day for the committee if a former head of MI5 found themselves serving on it. Indeed, the Prime Minister along with Opposition leaders might instead go so far as to seek out potential members who are known to be critics of the agencies, or if that is a step too far, individuals who at least engender respect in the House for their independence of mind. In considering such individuals for nomination the question should simply be whether their membership would be damaging to national security not whether their questions might undermine confidence in the agencies. There is also clearly a case for more women on the committee. Parliament itself could also do more to shape the committee. While the Prime Minister is still responsible for nominating members, Parliament has the power to challenge those nominations, it remains to be seen whether it will exercise that power or routinely nod through the Prime Minister’s nominations. The committee itself could also seek to assert its independence from the Executive by adopting a policy of appointing as its Chair, an Opposition member. This is widely viewed as best practice in intelligence oversight committees and would serve to balance the in-built government majority on parliamentary committees.

Whatever the damaging effects of recent weeks, under Sir Malcolm Rifkind the ISC has taken some important steps towards making itself more open and accountable. In addition to navigating through Parliament significant reforms to the powers and status of the committee, Sir Malcolm has also been more prominent than previous Chairs in publicly explaining the work of the committee and seeking to contribute to debate on issues of national security. Despite some flaws, the introduction of public evidence sessions is another welcome initiative which it is hoped will develop. However, for many the ISC continues to look and sound like every previous committee. A different approach to the nomination and appointment of members of the next committee might help to change that.

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Jobs for the boys? Women members of the Intelligence and Security Committee

Posted on March 8, 2015 by Andrew Defty

In a publication clearly timed to coincide with this weekend’s International Women’s Day the Intelligence and Security Committee has published a report on Women in the UK Intelligence Community. The report reveals somewhat disappointing, if not entirely surprising, information about the status of  women in the intelligence and security agencies, particularly in comparison to the rest of the civil service, including, for example, that 37% of intelligence agency staff are women, compared to 53% of civil servants. The headline figures also tell a familiar story about career progression for women, with only 19% of senior staff being women, compared to 38% in the civil service as a whole. The report includes some important recommendations for improving the recruitment and retention of women within the agencies.

This report is not only interesting because of its content. Although it is made clear that the report has the backing of all members of the committee, this is the first time that an ISC inquiry has been so clearly led by someone who is not the Chair of the committee. The report is introduced by Hazel Blears, who was clearly responsible for initiating the inquiry. It was launched at a press conference held by Blears, although that may also be a reflection of the fact that at present the committee has no Chair. The report even looks somewhat different to previous ISC reports with a more commercial layout including a large number of photographs and no redactions.

However, the publication of the report naturally raises the questions about the role of women on the Intelligence and Security Committee. That the issue of gender has hardly featured in any of the ISC’s previous reports is perhaps a result of the fact that this has been, and remains, a committee which is dominated by men.

The Intelligence and Security Committee was established as a statutory committee in 1994. It has nine members, who come from both Houses of Parliament. Members were selected by the Prime Minister after consultation with Opposition leaders. Following changes introduced in the Justice and Security Act 2013, the ISC became a committee of parliament with members chosen by Parliament from a list of nominations provided by the Prime Minister. The Chair is selected from the committee by its members. The committee is reconvened after each general election with a combination of new and existing members. While it is clearly not an attractive option for all parliamentarians our research indicates that there is considerable competition to be considered for membership of the committee.

There were no women on the first ISC which sat from 1994 to 1997, and which was Chaired by the Conservative MP, Tom King. Following the 1997 general election one woman was appointed to the committee, the newly elected Labour MP, Yvette Cooper. Following Cooper’s appointment as a junior health Minister in 1999 she was replaced by the Labour MP, Rosie Winterton. After the 2001 general election, Tom King was replaced as Chair by the former Labour Chief Whip, Ann Taylor, and a second woman, Joyce Quin, was also appointed. Taylor’s appointment was criticised at the time by some who claimed that she did not have the necessary experience and expertise to undertake the role. This was echoed in confidential interviews with former committee members conducted as part of our research, although she is by no means the only Chair who was subject to that criticism.

There was considerable turnover in the membership of the committee which sat from 2005 to 2010. The committee had three Chairs, one of whom was a woman, the former Labour Foreign Secretary, Margaret Beckett. Her period as Chair from January to October 2008 was short and came to an end when she was appointed as Minister for Housing. Two other women served on the committee during the 2005 parliament, the Labour MP, Dari Taylor, and the Labour Peer and former MI6 officer, Baroness Meta Ramsey. The committee which was appointed in 2010 had only one woman member, Hazel Blears. A second woman, the Labour MP, Fiona Mactaggart, was appointed following the death of ISC member, Paul Goggins, in January 2014. Mactaggart was the first member to be appointed using the new arrangements.

There have never been more than two women on the ISC at any one time, and for almost half of the time since the committee was established in 1994 there has never been more than one woman member. All of the women on the committee have been Labour members. Of the thirty-eight parliamentarians who have served on the ISC since 1994, nine (23.6%) have been women. Although two of the six Chairs have been women, as a result of the truncated leadership of Margaret Beckett, the committee has had a woman Chair for only four and a half years since 1994.

The reasons for the paucity of women on the ISC are not clear and, like the under-representation of women in other areas, complex. The most obvious explanation is the under-representation of women in parliament as a whole. Less than one in ten MPs were women in the 1992 to 1997 parliament, and the absence of women on a committee of nine was therefore perhaps not surprising. There was, of course, a large influx of women into the House of Commons in 1997, which also saw the first woman appointed to the committee. The overall proportion of ISC members who have been women since 1997 (27%) is actually slightly higher than that for women in parliament as a whole, which has risen from 18% of MPs in 1997 to 22% in 2010.

The gender balance within the parliamentary parties may also be a factor. Although the ISC is a cross-party committee, as with other parliamentary committees the balance of parties reflects the balance of parties in the House of Commons. The Conservatives have consistently had a smaller proportion of women MPs than Labour which may help to explain why there have been less women on the committee when the Conservatives have held the majority of seats, prior to 1997 and since 2010. Similarly, the increase in the proportion of women on the ISC after 1997 may be seen as the result of the large number of women elected as Labour MPs. However, despite a tripling of the  number of Conservative MPs who are women in the 2010 general election, it is disappointing that there has yet to be a Conservative woman on the committee.

Another possible explanation lies in the kind of MPs appointed to the ISC.  There has been a tendency towards seniority in appointments to the ISC. Of the thirty-eight members of the committee since 1994, twenty-three have previously held Ministerial office. Moreover, there has been a clear preference for those with experience in departments which may have brought them into contact with the intelligence agencies: the Home Office, the Foreign Office, the Ministry of Defence and the Northern Ireland Office. The lack of women on the ISC may therefore reflect a shortage of women with what is perceived as the necessary experience.

Nineteen women served as Ministers under the Conservative governments from 1979 to 1997, six served in one of the four departments mentioned above and none above the level of Minister of State. The situation improved considerably under Labour. Sixty-seven women served as Ministers between 1997 and 2010. Of these eleven served in the Home Office, six in the Foreign Office, four in the NIO and one as a Defence Minister. Labour also made the first appointments of women as Foreign Secretary, Home Secretary and Secretary of State for Northern Ireland, although the MoD remained, in a number of respects, a male preserve. These changes are also reflected in the women appointed to the ISC. The two women who have Chaired the ISC have both held Cabinet posts, Ann Taylor as Leader of the House of Commons and Chief Whip, while Margaret Beckett was the first, and so far the only, woman to have served as Foreign Secretary. Joyce Quin, Hazel Blears and Fiona Mactaggart were all Home Office Ministers. Four women members of the ISC had no Ministerial experience prior to their appointment, although Baroness Meta Ramsey, who is a former member of the intelligence service, clearly had a background in the field.

The lack of women on this committee also raises a wider question as to whether some policy areas are considered to be particularly gendered. Those who work on gender and politics have long identified a functional division of labour between men and women, with women more likely to specialise in ‘soft’ policy areas such as education, health and social security, while areas such as foreign affairs, security and defence, have traditionally been dominated by men. It is not clear what causes this division of labour, although it clearly has its roots in traditional ideas about gender roles. However, its continuation cannot simply be attributed to the exclusion of women from particular policy areas on the part of men. It is also apparent that in some cases women have chosen to specialise in those fields where they feel they are more likely to be able to make a difference. Nevertheless, there is evidence for such a division within parliamentary committees. A quick survey of current select committee membership reveals that the Work and Pensions select committee has six members who are women, the health select committee has five, and the education committee has three, while the Home Affairs Committee also has three women, the defence and foreign affairs committees both have two female members. The Joint Committee on National Security which has members from both Houses including the Chairs of related select committees, including the ISC, has a total of twenty-two members, but only two of them are women, the Chair Margaret Beckett, and Baroness Neville-Jones.

The ISC report on women in the intelligence services is an important example of how having women on parliamentary committees can affect it’s work. It is hard to imagine this report being produced in the early years of the committee, and it is intriguing to wonder how hard Hazel Blears had to push to include it as part of the work of this committee. In producing this report the committee has made some important recommendations for improving diversity within the agencies which, unless men are inherently better at spying, can only improve the quality of appointments to, and the prospects for women within, the agencies. The report also commits the ISC to monitor these developments in the future. However, this is not just an issue for the intelligence and security agencies and it would be  welcome if, when the new ISC is appointed following the general election, some consideration could also be given to the gender balance of those responsible for overseeing them.

Women members of the Intelligence and Security Committee

Yvette Cooper, MP 1997 – 1999

Rosie Winterton, MP 1999 – 2001

Rt. Hon. Ann Taylor, MP 2001 – 2005 (Chair)

Rt. Hon. Joyce Quin, MP  2001 – 2005

Rt. Hon. Margaret Beckett, MP January 2008 – October 2008 (Chair)

Dari Taylor, MP 2005 – 2010

Baroness Meta Ramsey, 2005 – 2007

Rt. Hon. Hazel Blears, MP 2010 –

Fiona Mactaggart, MP 2014 –

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Sir Malcolm Rifkind’s status as Chair of the ISC

Posted on February 23, 2015 by Andrew Defty

The ‘cash for access’ allegations against that the former foreign secretaries, Jack Straw and Sir Malcolm Rifkind, have led  to both being suspended from their parliamentary parties. There are clearly wider questions to be answered about the outside interests of parliamentarians and perhaps more pointedly about the external interests of members of the Intelligence and Security Committee (ISC). However, the fallout from this case also serves to reveal important new dynamics in the relationship between Parliament and the Intelligence and Security Committee.

Questions have, understandably, been raised about Sir Malcolm’s future as Chair of the Parliamentary Intelligence and Security Committee. Downing Street, were quick to point out that Sir Malcolm’s position as Chair is a matter for the Committee itself, something which Sir Malcolm has also sought to emphasise in his robust response to the Telegraph allegations. This is the result of recent changes to the status and operation of the ISC introduced as part of the Justice and Security Act 2013.  The Justice and Security Act changed the status of the ISC, making it a committee of parliament, and provided it with enhanced powers. The legislation also changed the way in which members of the committee are appointed, and perhaps crucially how they may be removed.

Under previous arrangements which were outlined in the Intelligence Services Act 1994, members of the ISC were appointed by the Prime Minister after consultation with Opposition leaders. The Chair like other members was hand-picked by the Prime Minister. Under the Justice and Security Act these arrangements were changed so that members are now appointed by Parliament from a list of nominations provided by the Prime Minister. The legislation also changed the way in which the Chair is appointed, rather than being in the gift of the Prime Minister, the Chair of the committee is now ‘chosen by its members.’

The status of the current committee is somewhat anomalous. Members of the ISC are appointed after each general election and the current committee, including the Chair, was appointed under the old arrangements, following the 2010 general election. The only exception to this is Fiona Mactaggart who was appointed using the new arrangements following the death of the Labour MP, Paul Goggins, in January 2014. The membership of the ISC was not reconstituted following the passage of the Justice and Security Act, although the current committee is in all other respects operating under the arrangements set out in the 2013 Act and has adopted the mantle of Parliamentary Intelligence and Security Committee.

As a result the Prime Minister and Sir Malcolm, are of course, correct in asserting that it is up to the Committee to decide on who should be its Chair. However, what they did not point out is that the new legislation also introduced a new mechanism for removing members of the Committee. Under the previous arrangements ISC members could be removed, ‘if required to do so by the Prime Minister’. Under the Justice and Security Act the Prime Minister no longer has the power to require a member to leave the ISC, but members may be removed if ‘a resolution for the person’s removal is passed in the House of Parliament by virtue of which the person is a member of the ISC,’ effectively providing Parliament with a vote on whether individual members should be required to leave the ISC.

Given that he has already withdrawn the Whip from Sir Malcolm, the Prime Minister may be somewhat relieved that he is not required to decide on Sir Malcolm’s future as Chair or indeed as a member of the ISC. However, for Sir Malcolm the position is not so secure. While he may be confident of maintaining the support of his colleagues on the ISC, sustaining the support of the House of Commons may be somewhat more difficult. Whether this would ever come to a vote, in this case or any other, seems unlikely. If considerable opposition were to emerge within Parliament it may be that Sir Malcolm would resign rather than face a resolution of the House of Commons on his continued membership of the ISC. Nevertheless, it does serve to illustrate the new power of Parliament in relation to the ISC, which perhaps means that its members must take more care than in the past to retain the confidence of their colleagues in the House and not just those they meet around the committee table.

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Submission to Investigatory Powers Review

Posted on December 11, 2014 by Andrew Defty

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

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

Investigatory Powers Review

Submission by Dr Andrew Defty and Professor Hugh Bochel

School of Social and Political Sciences, University of Lincoln

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

The nature of intelligence oversight in the United Kingdom

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

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

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

Executive oversight – accountability to Ministers

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

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

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

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

Legislative oversight – the Intelligence and Security Committee of Parliament

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

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

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

Judicial oversight – The Commissioners and the Investigatory Powers Tribunal

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

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

Cross-cutting issues

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

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

Conclusions & Recommendations

Executive Oversight – accountability to Ministers

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

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

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

Legislative oversight – the Intelligence and Security Committee of Parliament

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

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

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

Judicial oversight – The Commissioners and the Investigatory Powers Tribunal

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

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

Cross-cutting issues

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

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

Dr Andrew Defty, Reader in Politics

Professor Hugh Bochel, Professor of Public Policy.

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Has the Intelligence and Security Committee leaked again?

Posted on November 19, 2014 by Andrew Defty

In an interesting article in Saturday’s edition of The Daily Telegraph the paper’s security correspondent, Tom Whitehead, provided details of the forthcoming Intelligence and Security Committee report on the murder of Lee Rigby. This is the second substantive newspaper article about the, as yet unpublished, ISC report. Following a previous report published in The Sunday Times in May I wrote a post suggesting that the ISC had leaked. This was significant because leaks from the ISC are rare, the committee has access to some of the most secret material, and members are notified under the Official Secrets Act.  Moreover, ISC members frequently attest to the committee’s security and its credibility, not least amongst the intelligence and security agencies, rests on its reputation for not leaking secrets.

Whitehead’s article in this weekend’s Telegraph claimed that the ISC’s report on the Rigby murder, which has been in preparation for some time, is scheduled to be published this week. It claims that the ISC report will reveal that online behaviour of one of Rigby’s killers, Michael Adebolajo was known to MI5 but that more intrusive surveillance was not considered justified. However, the ISC, Whitehead adds, will stop short of saying Rigby’s murder was preventable.

The question is does this represent another leak of the ISC’s report on the Rigby murder?Another leak would be embarassing. The Sunday Times article caused considerable consternation within the ISC when it appeared in May. It is now clear that the article was based on a leak of the ISC report and that this was a significant leak. It will be interesting to see how both of these articles compare with the ISC report when it is eventually published, but it seems apparent that the material in the Sunday Times article came from an unredacted version of the ISC’s report which had been circulated to those agencies involved for comment. As I suggested at the time, members of the ISC are convinced that the leak did not come from within the committee. However, while I suggested in my previous post that circulation of the report within Whitehall would be limited to a very small number of individuals, a leak inquiry launched after the publication of the Sunday Times article revealed that the circulation of the unredacted report included over 100 people across a range of agencies including the intelligence and security services and the police. It is not clear, to me at least, whether the source of the leak has yet been identified but it is clear that ISC members feel that the leak was the product of the expansive nature of its inquiry and the unusually wide circulation of its unredacted draft report.

With regard to the piece in this week’s Telegraph it seems unlikely that this represents another substantive leak of the ISC’s Rigby report. There is nothing in Whitehead’s piece which does feature in the earlier Sunday Times article, which was also somewhat more detailed than Whitehead’s article. The Telegraph article could therefore be little more than a warming up of old news, perhaps on the basis that Whitehead has got wind that the ISC report is finally to published. Another scenario is that whoever was responsible for talking to the Sunday Times earlier in the year may now have had a conversation with the Telegraph, which would suggest that the source of the earlier piece has still not been identified. Either way in terms of the ISC report on Lee Rigby this more recent piece does not add anything to the earlier report. Nevertheless, irrespective of whether the original leak came from the ISC itself, this story is almost certainly an unwelcome reminder of what was perhaps the most significant leak to emerge from the ISC since it was established in 1994.

Further information about parliament and the intelligence services can be found in our book, Watching the Watchers, published by Palgrave.

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