Lord MacDonald, the former Director of Public Prosecutions, recommends that the Intelligence and Security Committee become a regular Select Committee of Parliament, with the transparency and autonomy which comes alongside that status. It should also be appointed by, and responsible to, both Houses of Parliament, have specific powers to obtain evidence, have an independent secretariat and independent legal advice, and its Chair should be a member of the opposition.
While I have argued that open court hearings represent a critical mechanism in the democratic oversight of the security agencies consistent with the rule of law, it remains clearly unsatisfactory that we seem presently to learn more about the agencies’ activities through litigation rather than through proper oversight. The Intelligence and Security Committee’s claim in 2005 that the Security Services ‘operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training’ might now look a little incomplete.
Indeed it seems to me, in the light of the Snowden revelations that reforms in the Justice and Security Act did not go far enough, and I agree with other commentators and senior parliamentarians that we need to consider the extent to which RIPA can be said to remain an adequate mechanism for regulating surveillance. In this context, it seems to me that further reforms should be implemented.
Firstly, the ISC should become a full Joint Parliamentary Select Committee. This was hinted at by Gordon Brown’s Governance of Britain’ Green Paper but not followed through. The Joint Committee on Human Rights has previously made this recommendation, as has the Foreign Affairs Select Committee, way back in 2004. The J&S has done half the job, but now we need to complete it.
Secondly, the ISC should be appointed by, and be responsible, to both Houses of Parliament. Thirdly, it should have specific powers to obtain evidence. These should include the power to obtain information, by summons, from outside parties, lay experts, ministers, and civil servants- as well as from security chiefs. Fourthly, it should have an independent secretariat and independent legal advice. It should have access to all information. Select committee procedures already allow the exclusion of material whose publication might be harmful and the disclosure of secret material is a serious criminal offence.
Fifthly, its Chair should be a member of the opposition, and should not be someone who has previously has responsibility for any of the security agencies. Finally, we need to increase institutional expertise to ensure that human rights are at the heart of policy and strategies in this area. This needs to be more than rhetoric. We need to consider how such a committee could develop a wider role in educating Parliament as a whole, and consequently the public.
Educating parliamentarians and citizens
The first chapter of the Butler report explains in some detail what is meant by intelligence, acknowledging that while ‘a great deal of such information may be accurate … much is at best uninformed whilst some is positively intended to mislead’. Any oversight body should really take on an educative role in this sense. Reform of oversight, after all, is not just a matter of academic debate. It could be said that the ISC’s failure to educate Parliament or indeed the public about intelligence contributed to the failure of Parliament effectively to scrutinise the previous Government’s case for war in Iraq.
It was not merely the case that parliamentarians were not in full possession of the facts about the threat posed by Iraqi WMD, but also that, when presented with the evidence, many of them did not have the necessary understanding to scrutinise it in any meaningful way. It seems to me that in the absence of reforms of this sort, and a new legislative framework for surveillance, Part 1 of the J&S Act, with its partial and incomplete reforms to the ISC, can never provide an adequate counterbalance to Part 2, the introduction of closed material procedures, as the government claimed it would.
And this leaves us in a very unattractive position. For if I am right, the Act has, 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.
In this sense, I think that Binyim Mohammed and Operation Tempora combine. And the risk they portend is simply a further weakening in democratic and parliamentary oversight- less pressure to behave. And this risk will grow unless the Courts are vigilant to ensure that secrecy in justice is never be allowed to become a damaging alternative to integrity in these most sensitive areas of our public life.
In a recent issue of the London Review of Books, Sir Stephen Sedley described ‘a statutory surveillance scheme shrouded in secrecy, part of a growing constitutional model that raises the question as to whether the tripartite separation of powers, legislature, judicial and executive still holds good’. He identified a situation in which in many democracies ‘the security apparatus is able to exert a measure of power over the other limbs of state that approaches autonomy’.
In this sense, it can procure legislation, it dominates decision making in its sphere of influence and it even seeks to lock its antagonists out of judicial processes. It seems to me that in this troubling situation, and in the absence of any serious or rigorous public scrutiny of its work, the very last thing we should add to this potent brew is a still stronger dose of protective secrecy.
Note: this is an excerpt from a speech given by Lord MacDonald, which was first published on the Democratic Audit blog and can be read in its entirety here. It represents the views of the author and not those of Democratic Audit, the British Politics and Policy blog or the LSE. Please read our comments policy before posting.
About the Author
Lord MacDonald is a Liberal Democrat Peer and was Director of Public Prosecutions between 2003 and 2008. More information about him can be found here.