Dominic Grieve, former Chair of the Intelligence and Security Committee, discusses whether or not reform of the committee is desirable or sensible following the dual controversies of the delayed release of its report on Russia and the government’s unsuccessful attempt to whip committee members into supporting its choice of Chair.
The recent controversy over the election of a new Chair for the Intelligence and Security Committee of Parliament (ISC) and the longer running saga of the failure to publish its report on the threat from Russia, has put the spotlight on both the constitution and work of an organisation that usually attracts limited attention.
Prior to 1989 the existence of all three of the UK’s intelligence agencies, the Security Service (MI5), the Secret Intelligence Service (MI6) and Government Communications Headquarters (GCHQ) was not even avowed, despite their existence being common knowledge. While from 1989, a degree of scrutiny started for the work of the Security Service (MI5), as a result of the Security Service Act, there was also no system of parliamentary scrutiny of their activities. Any question raised in parliament on a topic of national security involving the operational work of all three of the agencies would not and will still not normally be answered.
In 1994 the government of John Major put the work of all the agencies on a statutory footing with the Intelligence Services Act. This also made provision for the establishment of an Intelligence and Security Committee of Parliament to oversee their work. But this was effectively confined to their expenditure, administration and policy. The ISC had no power to investigate specific operations. The ISC was also answerable to the Prime Minister and not to parliament, even if it was composed of parliamentarians. Although the cross-party composition of nine members involved input from the leaders of the Opposition and of the third largest party in the Commons, appointment was at the discretion of the PM, who also chose the Chair. The ISC reported to the PM, who decided what if anything of any report might be published. There was criticism that the relationship between the ISC and the PM and the agencies was too close and that it did not have the independence needed to provide proper oversight. When after 2005 concerns grew about both UK involvement in US unlawful detention and rendition and in the handling of counterterrorism, the government allowed the ISC to widen its remit, by agreement, to allow it to look into some past operational matters.
In 2013 this lead to the Justice and Security Act, which greatly enhanced the statutory role and powers of the ISC. Although members are nominated by the PM, the list of names from each House has to be approved by that House and no member can be removed, save by resolution of the House from which they come. The Chair is now elected by the committee’s members. Whereas previously the agencies could refuse to co-operate if they deemed enquiries to endanger operational security, the ISC has acquired powers to compel disclosure of all relevant information it needs and to look at past operations subject to the longstop of a ministerial veto. It has a small independent secretariat and the right to choose its director. Its remit has been expanded to take in Defence Intelligence, the Office for Security and Counter Terrorism in the Home Office and the intelligence-related work of the Cabinet Office, including the Joint Intelligence Organisation (JIO) and the National Security Secretariat (NSS).
It is inevitable that, with such a major change, the work of the ISC should not always proceed as smoothly as one might wish. The intelligence-related work of the Cabinet Office lies close to the heart of government policy making. It was noteworthy that when the ISC conducted an inquiry into the intelligence underpinning the drone strikes in Syria that targeted UK nationals, it was provided with the intelligence assessments of their activities that formed the basis for justifying the strikes but it was refused access to the assessments relating to the proportionality of the strikes themselves and the collateral damage that might result from them, on the grounds that this constituted advice to ministers – a view with which the ISC disagreed, as it was the assessment and not the advice that might flow from it in which its members were interested.
Another example relates to the ISC inquiry into UK involvement in detainee mistreatment and unlawful rendition. This proved impossible to conclude, as the ISC was denied access to a list of witnesses from whom it was seeking to hear evidence, on the grounds that as they were not senior officials they should not be called before it, with the limited powers of select committees to call junior officials being cited in support. Yet the ISC had been specifically requested by government to carry out this inquiry, which clearly needed to hear from these witnesses to finish its work: the ISC considered that it had been given assurances that it would have access to the witnesses it needed.
It is also the case that the disruption caused by changes of government and Brexit has impacted the normal contact between the ISC and the PM which ought to take place annually. While the Chair may get this access, it is important the PM should hear from the committee collectively. But no such meeting has taken place for several years because of successive PMs’ diary constraints.
But despite these setbacks, my experience of chairing the committee was, until just before the end, very positive. Some friction with government is inevitable in this field. But in most cases the ISC was able to get access to all the information and individuals it needed to do to its work and prepare reports. It was able, for instance, to make a constructive contribution to the content of the Investigatory Powers Act. Particularly where the relationship is between the ISC and agencies it has scrutinised for a long time, there is a good level of communication and mutual respect. Central to this is that the ISC has in its work succeeded in being seen to be wholly non-party political. This coupled with a reputation for not leaking information has made it trusted as an oversight body even if its conclusions may at times make difficult reading for the organisations under scrutiny.
This, however, makes the latest developments in its relations with government all the more worrying. The failure to publish the report on Russia before parliament was dissolved for the 2019 general election was without any reasonable justification and the explanation offered has no credibility. Most recently the attempt to dictate the election of the new Chair through the whipping system strikes both at the ISC’s independence and brings party politics into its functioning. The suggestion that it is improper for its members to vote across party boundaries in choosing the new chair is as wrong as it is absurd. Had the government attempt to impose a Chair succeeded the ISC would have lost all credibility and its effectiveness to do its work and have its conclusions accepted by the public and parliament would have been severely compromised, if not destroyed.
Some will say that this calls for a complete rethink of the ISC’s powers. It is argued that it ought to be a Joint Committee of both Houses with all the privileges and protections this affords. It would certainly help on the issue of immunity for witnesses, although a form of statutory immunity is provided for evidence given to the ISC. But realistically I don’t see how this change would work. Parliament does not have the premises to house it and its work requires more staff than is usual for a parliamentary committee. It would also lead to the likelihood of greater clashes with the government over its remit and such a committee is incompatible with the PM’s powers of veto over access to information and publication of reports. Despite what has happened over the Russia report, I don’t see these safeguards as unnecessary. But they must not be abused, as is plain that at present they are being. It might however be possible to insert more formalised rules on how any departure from the conventions as to the timing of government responses to reports being submitted for publication are carried out. Finally the issue of oversight over the work of Special Forces often comes up. At present there is no parliamentary oversight of their work, even from the Defence Select Committee. This may make life easier for government but it will cause problems if for any reason a Special Forces operation fails or is called into question. The ISC could do this work, but it would need more resources if this were to happen.
At the end of the day, the ability of the ISC to act in the public interest is going to depend on the government wishing it to do so. I do not believe that there is any serious criticism that can be made of its work since it was created 25 years ago. It has not endangered our national security but has helped support it by its own independent view. The model has been copied by many other democratic states; Canada is one recent example. I am afraid that my own conclusion is that for reasons I don’t fully understand the present government does not like democratic accountability and the independent institutions that deliver it. That problem is not solved by rule changes.
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About the author
Dominic Grieve QC is a former Chair of the Intelligence and Security Committee and former Attorney General of the United Kingdom.