How democratically accountable are the UK’s security and intelligence services?

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In the latest installment of our 2016 Audit of Democracy, Sean Kippin and the DA team assess the ways in which the UK’s four main security services are scrutinised, to ensure that they are operating legally and in the public interest. For matters that must be kept secret, ‘compromise’ forms of scrutiny have now been developed, in Parliament. But how effectively or independently do they work?

Credit: Cory Doctorow, CC BY SA 2.0

Credit: Cory Doctorow, CC BY SA 2.0

What does democracy require for the accountability of security and intelligence services?

  • Elected legislators normally must control all government services and state operations, either directly or indirectly (that is, via ministers), normally through full public and Parliamentary  accountability
  • At the same time, the state must also maintain a national security, intelligence and defence apparatus sufficient to protect citizens from terrorism and other harms, and to secure national defence – and for much of such activities maintaining secrecy is essential.
  • Institutional arrangements must balance these contradictory requirements, ideally securing a degree of accountability while preserving essential secrecy.
  • Given limited public accountability, it is of the first importance that legislative, ministerial and judicial controls are sufficient to ensure that the security and intelligence services respect civil liberties and human rights, and operate within the law – e.g. with rigorous complaints and investigation processes that engage high levels of public trust.

Parliament’s Intelligence and Security Committee (ISC)

This is formally a joint committee of the Houses of Parliament. In practice it is Commons-dominated and is the major way in which MPs in the Westminster Parliament (plus a few peers) exercise a degree of control over the UK’s intelligence and security services. These consist of

  • MI5 (internal security),
  • SIS or MI6 (overseas intelligence),
  • GCHQ (electronic and other surveillance),
  • the Defence Intelligence Staffs (military intelligence), and
  • the Joint Intelligence Committee (JIC) in the Cabinet Office, which coordinates and sanctions major operations, reporting to the Prime Minister.

How it works: The ISC looks a bit like a normal Select Committee of the House of Commons, but it operates in an almost completely dissimilar way. Its nine members are appointed by the government in consultation with opposition party leaders (not chosen by vote of other MPs) and are vetted. The Committee generally meets in private (although has held occasional public sessions). It almost always questions security and intelligence witnesses in private, and issues only heavily vetted summary public reports, designed not to reveal any secret information. The Chair of the Committee comes from the government party, is appointed by the PM, and is very influential in settling its work flow and being the public face of its investigations and reports. They (and committee members) have often (but not always) had a background of supervising security agencies as ministers (see Chart 1 below).

The ISC is a kind of ‘compromise’ solution of a kind that is quite common in liberal democracies. However, a 2014 report of the Commons’ Home Affairs Committee identified three ‘shortcomings in this approach across many countries surveyed:

  • the potential for political deference [to ministers and the intelligence services top brass];
  • the over-identification of the [committee] members with the security and intelligence services: and,
  • the danger of the leaking of confidential information provided to the committee’.

Recent developments

The 2010-15 ISC was criticized as a group of elderly ‘trusties’, all heavily committed to defending intelligence operations from criticism. Their average age 63), were overwhelmingly male in this period, and the ISC chair was Malcolm Rifkind (age 67 when he finished, a former foreign and defence secretary), who also had extensive business interests in a number of areas.

Serious allegations surfaced in the mid 2000s of UK agencies having colluded with the illegal ‘rendition’ of suspects by the CIA and US agencies; and of SIS agents knowing of and being complicit in US or foreign services torturing of suspects. The UK government made large payments to British citizens imprisoned in Guantanamo Bay and released without any charges. Links between UK services and the Gaddafi regime in Libya have also provoked controversy, and damages have been paid for a rendition of one person. The Committee investigated all the claims against the UK services in 2007 (in some fashion, undisclosed) and pronounced that the fears expressed about them were all unfounded.

In 2013, the scale of surveillance work carried out by Western governments was revealed by Edward Snowden, a US security contractor, who released a great mass of documents to the Guardian and Washington Post newspapers. They showed the existence of a series of programmes pertaining to the mining of phone, internet, and other personal communication data, and agreements to share said data between governments, without – in most cases – the knowledge or consent of citizen populations. Essentially GCHQ appeared to be running a ‘swapsie’ information deal with the US National Security Agency, whereby GCHQ bulk-spied on US citizens for its American counterpart (for whom this would be illegal), in exchange for the NSA bulk-spying on British and European citizens (for which GCHQ would normally need a warrant or ministerial clearance). According to the well-placed observer Ian Brown the scale and reach of these activities ‘appeared to be a surprise to members of Parliament’s Intelligence and Security Committee (ISC), let alone the National Security Council, other parliamentarians, and the broader public.’ Under Rifkind’s lead, the Intelligence and Security Committee rather promptly cleared GCHQ of any wrongdoing at all, which a former Chair of the ISC and Conservative Defence Secretary Lord King described as ‘unfortunate’ and ‘pretty quick’.

In February 2015 Rifkind was involved in a ‘sting’ operation (along with former Labour foreign secretary, Jack Straw), where Daily Telegraph journalists claimed both men offered to trade lobbying influence for advisor fees. Cleared by a limited Commons investigation, both men’s public credibility was none the less impaired. In September 2015 Rifkind stood down as ISC Chair.

The new ISC Chair appointed in 2015 was the Conservative MP Dominic Grieve, a former Solicitor General (government law officer), who has been a prominent defender of the European Convention on Human Rights and someone with a strong civil liberties reputation. He has attracted press coverage over recent years for his stances on issues such as enforced removal of UK passports from citizens, the stalled Gibson Inquiry which looked into the treatment of detainees, and the potential implications of repealing the Human Rights Act. Since Grieve’s appointment in September 2015, however, the ISC has not released any annual or special reports.

Demand for further reform of the ISC remains on the agenda. Only two of nine ISC members are women. Lord MacDonald, a former Director of Public Prosecutions, criticised the ‘partial’ nature of the reforms enacted by the 2013 Justice and Security Act. He argued that the reforms ‘unwittingly or not, actually weakened democratic oversight of the security and intelligence agencies through the introduction of closed hearings into our civil justice system in national security cases, while simultaneously failing to strengthen the structures of direct parliamentary oversight in any meaningful way.’

Strengths, Weaknesses, Opportunities, Threats (SWOT) analysis

Strengths Weaknesses
  • The ISC follows the pattern of a common, minimum or compromise solution used in several liberal democracies.
  • It creates some appearance of an independent Commons capacity to investigate, that is separate from ministers.
  • For the first time, the heads of the security services were questioned in front of the ISC in public, and the Director of MI5 has in addition been interviewed on the Today Programme, suggesting a new willingness to engage with the public via the media.
  • ISC members are able to require the security agencies to produce information pertaining to their activities, a stronger power than is granted to standard Select Committees which only have the power to ‘request’ departmental information.
 

  • The Committee has a modest staff, no investigatory powers and can only conduct very limited private hearings with the heads of agencies.
  • The ISC is in principle able to consider any operational matter, but only if it is a matter of significant national interest and does not form part of an ongoing operation. Since security operations often take place over a long period, this is a significant restriction.
  • Despite the ability to request information from the security services and other governmental bodies engaged in intelligence work, sensitive material is subject to veto at Secretary of State level on grounds that are not limited to national security.
  • Inherently the Committee is not normally able to publish much of the evidence that it has taken, but can only pronounce its conclusions.
  • The ISC remains to a considerable degree in hoc to the government, with the Prime Minister and Leader of the Opposition nominating ISC members. Additionally, the Prime Minister continues to receive ISC reports ahead of publication, and retains the right to choose the timing of publication, and even to veto the publication of certain elements of the report. (This scrutiny power is probably mostly delegated to the Permanent Secretary who chairs the Cabinet Office’s Joint Intelligence Committee).
  • The ISC remains a one-off and heavily ‘siloed’ body with little transfer of knowledge or expertise from a core group of representatives to the wider Parliament, much less the public – threatening a breakdown in trust of both the ISC and of the intelligence agencies.
  • Critics of the ISC are numerous and vocal. They see it as offering just a ‘sop’ to public concerns. By 2015 its public reputation was at best contested.
Opportunities for positive change Future Threats
  • The new ICS Chair (Grieve) has a good reputation for taking rights issues seriously, and legal knowledge. With new leadership the Committee might develop a more robust reputation, e.g. taking some regular public hearings.
  • The Justice and Security Act (2013) ended the anomalous situation by which the secretariat to a Parliamentary Committee was provided by Cabinet Office civil servants (itself a government department with intelligence responsibilities). So the ISC now has its own, dedicated staff – which may help it to take a more independent attitude over time.
  • With the growth of violent extremism, and other threats, externally, and the increasing scale of homeland security interventions, the absence of more credible Parliamentary safeguards for UK citizens may fuel problems.
  • The provisions of the RIPA 2000 (Regulatory and Investigatory Powers Act) are being greatly extended by current legislation – giving security services greater powers to hoover up the electronic communications of all citizens without warrants. ISC has no apparent resources for effectively monitoring the use of such powers.

Chairs of the Intelligence and Security Committee

This key role has tended to be given to former ministers, with preponderance towards those who have served in governmental positions in which security clearance is required. Table 1 below shows that only Ann Taylor and the Dominic Grieve had served in ministerial positions that did not pertain to security matters prior to their appointment (and even then both were Cabinet members).

Table 1: Chairs of the Joint Intelligence and Security Committee since its creation in 1994

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*Position involves supervising security services

Reporting by the Committee

The intelligence and Security Committee is now required to release an annual report on ‘the discharge of its functions’ and 2013 legislation ‘enables it to make any other reports as it considers appropriate concerning any aspects of its functions’. This differs from the previous situation, before the 2013 Act was implemented, which required the ISC to make its reports to the Prime Minister alone. However, the Prime Minister still enjoys foresight of reports and can delay their publication or veto the release of certain information. 

The committee may also make other reports on issues and topics which it views as important. For example, in November 2014, it produced a report on the London murder of an off-duty soldier Lee Rigby in a London street. It also released a report entitled ‘Women in the Intelligence Community’ in March 2015. The same month, it published ‘Privacy and Security: a modern and transparent legal framework’ showing the range and frequency of ISC reports. The committee has no legal obligation to investigate and make public the kinds of intelligence service work which may create controversy due to invasion of civil liberties or human rights. Nor does it have any duty to educate or to explain the intricacies of intelligence work to both parliamentarians and members of the public.

Political neutrality, transparency and openness

Some of the main UK security agencies have shown a greater desire recently to engage in public debate, partly because they use public appearances to lobby for increased surveillance powers in battling terrorism, cyber attacks and major crime. (Prior to 1994 the official attitude was that the security services’ existence was not even acknowledged). The Director of MI5 Andrew Parker agreed to be interviewed by the BBC’s Today programme in September 2015 – but then did not reveal anything by way of new information. Instead Parker used the interview to justify the passage of the draft Investigatory Powers Bill. Robert Harrington, the normally reclusive head of GCHQ, wrote an opinion piece for the Financial Times in which he made the case for a new understanding between the security services, social media companies, and the public.

The first-ever evidence session at which ISC members publicly questioned the agency heads was held in late 2013. An academic expert on the ISC, Andrew Defty, noted that:

‘Some of the questions were clearly designed to allow the agency heads to make prepared statements dispelling popular myths about their work. It is hardly tenable, for example, that [the then-ISC Chair] Sir Malcolm Rifkind really believes that GCHQ collects information on “the majority of the public”. But his suggestion that they did, allowed the head of GCHQ to refute the notion’.

Conclusion

The Intelligence and Select Committee remains an imperfect and very limited body for the regulation of the large, powerful, and secretive intelligence services. Despite recent reforms which have seen the body become a committee of Parliament, and influence over its membership extended to Parliament, it is still a body over which the government and Prime Minister exercise an enormous amount of influence. Choreographed evidence sessions between the committee and the Service heads, suggest an over-co-operative, too close relationship. So too does the past willingness of the committee to very promptly exonerate the GCHQ in regard to the Snowden revelations and the charges of data collection and surveillance exceeding the agency’s remit – a clearance that occurred while the revelations will still coming out. Whether the new 2015 Committee can do better than the old remains unclear.

DA_Banner_UKThis is the latest post in our 2016 Audit of UK Democracy. This post does not represent the views of the London School of Economics or the LSE Public Policy Group. Please read our comments policy before posting.

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