Monday, March 28, 2016
Seminar 5 Position Statement: Prof. Mark Phythian
The parliamentary Intelligence and Security Committee (ISC) has had a chequered history. However, it is too useful to government and the intelligence agencies to be replaced, and this is the secret of its resilience. At the same time, though, the ISC can be under no illusions following the mini ‘season of inquiry’ that occurred in the UK during 2015 as a consequence of the Snowden leaks. It has few friends outside of government and limited legitimacy – no surprise if legitimacy is understood as arising out of the historical effectiveness of a system in dealing with a circumscribed set of national problems. It needs to up its game.
The post-Snowden mini ‘season of inquiry’ of 2015 comprised three separate inquiries that reported within a short space of time between March and July: the March 2015 report into Privacy and Security from the ISC; the June 2015 report, A Question of Trust, from David Anderson QC, the Independent Reviewer of Terrorism Legislation; closely followed by the July 2015 report of the Independent Surveillance Review (ISR), A Democratic Licence to Operate, set up at the instigation of then-Deputy Prime Minister Nick Clegg. The Anderson report hadn’t been sought and wasn’t particularly wanted by government, but had been granted as a concession accompanying the rapid parliamentary passage of the Data Retention and Investigatory Powers Act 2014 (DRIPA) - in just four days - in July 2014. It was also the most radical of the three. It recommended that all warrants for interception should be judicially rather than ministerially authorised (although with regard to warrants relating to national security, the relevant secretary of state would have a significant role in certifying that the warrant was required for the purposes stated, in which case the Judicial Commissioner could only depart on the basis of the principles of judicial review). It also recommended that these be authorised by a Judicial Commissioner of an Independent Surveillance and Intelligence Commission (ISIC), which would replace the existing system of three separate commissioners (the Interception of Communications Commissioner, the Intelligence Services Commissioner, and the Chief Surveillance Commissioner). Like the ISC earlier in the year, Anderson recommended overhauling the existing legislative framework, with the withering observation 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.”
Anderson saw ISIC as a body that would be “public-facing, transparent and open to diverse ideas (including from all sectors of the community in all parts of the UK, from other countries, from international institutions and from young people who have grown up online)”, and would draw on a wide range of expertise “from the worlds of intelligence, computer science, technology, academia, law and the NGO sector” and participate in conferences, “invite dialogue”, be accessible to traditional media and have an active social media presence.
This was a long way from the culture of oversight adopted over a long period by the ISC, notwithstanding reforms and incremental improvements in its approach to openness and engagement since 2013. Anderson was aware of the limitations of the ISC, pointing out that the ISC “as an institution did not receive significant support from those making submissions to us”, with some advocating its abolition. As a result, the Anderson report did not support the continuation of the ISC in its current form. While making clear the importance of some form of parliamentary oversight of intelligence, Anderson proposed that ISIC and ISC functions should not overlap – which would represent a contraction of the ISC’s remit (for example, its Privacy and Security report would have been infeasible under such an arrangement). Anderson’s report also suggested that Parliament should consider whether to maintain the ISC but strengthen it by appointing a Chair from outside the governing party or parties, whether to transfer its investigative resource to ISIC in due course, or whether to recast it as a Select Committee, possibly merged with the Defence Select Committee.
The Independent Surveillance Review (ISR) panel was established by Deputy Prime Minister Nick Clegg in response to the Snowden leaks. It was chaired by Michael Clarke, Director General of the Royal United Services Institute, and contained a cross-section of leading figures from the worlds of technology, policing, intelligence and academia, including Sir David Omand, former head of MI6 and Chair of the Joint Intelligence Committee Sir John Scarlett and investigative journalist and privacy campaigner Heather Brooke. As with the Anderson report, the ISR recommended that the existing three commissioners be replaced by a single organisation, the National Intelligence and Surveillance Office (NISO), with its independence guaranteed by statute, but that the judicial commissioners who would authorise warrants should not be part of it. As with Anderson’s vision for the ISIC, public education would be a key plank of the proposed NISO’s role. The ISR report, like Anderson’s, also noted the lack of public confidence in the ISC and the problem this created in terms of intelligence and security legitimacy.
One consequence of this mini ‘season of inquiry’ is that oversight that commands public trust is now clearly accepted as being essential to the legitimacy of intelligence and security practice. As the ISR report observed:
There is certainly a problem of trust in the system of oversight, and particularly the lack of popular visibility of the oversight arrangements that currently exist. A clear and transparent new legal framework and a more coherent, visible and effective oversight regime should be the basis for a public discussion about the appropriate and constrained power the British state should have to intrude into the lives of its citizens.
But does all of this suggest that the idea of parliamentary oversight is a busted flush given issues of time, complexity and lack of expertise? Do a combination of structural realities and the ISC’s past performance mean that there is a growing acceptance that parliamentary oversight is not the answer, and that primary responsibility should be transferred to lawyers whose job is, in essence, to check for compliance with legislation? For a number of years now I have been critical of the performance of the ISC, but this criticism was not an argument for downgrading legislative oversight in favour of judicial oversight. This would create clear problems – not least the risk that this becomes little more than a tick-box exercise establishing compliance with legislation when the lesson of the past (and not just in the UK) is that the law is often the problem. Moreover, oversight should be concerned with normative and policy issues (for example, look at the range of work undertaken by the Defence Committee or Foreign Affairs Committee) rather than simply ruling on legal compliance. However, posing this question does beg another one; what would adequate legislative oversight require in terms of staffing and support?
The current ISC, which came together in September 2015, post-dates the regime criticised by Anderson and the ISR. It may be that these processes and reports, together with the recasting of the ISC - with new chairman Dominic Grieve (interestingly, a critic of the ISC prior to the election of the coalition government in 2010) replacing the disgraced Sir Malcolm Rifkind, and with just three surviving members of the previous ISC (one of whom, Fiona Mactaggart, only joined in May 2014) – constitute a Damascene moment for its members. Confronted with intimations of its mortality, its members may seek to up their game and be more assertive. There is some evidence of this in the ISC’s response to the government’s initial investigatory powers bill, published in draft form in late 2015 to enable pre-legislative scrutiny. The ISC was critical:
Taken as a whole, the draft Bill fails to deliver the clarity that is so badly needed in this area. The issues under consideration are undoubtedly complex, however it has been evident that even those working on the legislation have not always been clear as to what the provisions are intended to achieve. The draft Bill appears to have suffered from a lack of sufficient time and preparation.
Then again, there are structural reasons for believing that the ISC remains hobbled by design, as Anderson seemed to recognise. It is still chaired by a member of the governing political party and has lost key expertise with the departure of members such as Lord Butler, which it is not immediately clear it has replaced. However, it is worth making a final point; the development of intelligence oversight is not a linear process leading, inevitably, to some Francis Fukuyama-style ‘end of history’ moment at which point the ideal form will have been arrived at. It is, rather, a contested process with ebbs and flows – reflecting the fact that executive, agencies, legislators and public have different understandings of the purpose of oversight and, consequently, different expectations of it. It is more useful to consider the emerging legislative framework as representing another episode in this history of contestation rather than arrival at a mythical end-state for oversight and accountability of intelligence.
 As per the definition in E. C. Hargrove, The Power of the Modern Presidency (New York: Knopf, 1974), p.20.
 Intelligence and Security Committee, Privacy and Security: A Modern and Transparent Legal Framework (HC 1075 - London: HMSO, March 2015).
 David Anderson, QC, A Question of Trust: Report of the Investigatory Powers Review (London, HMSO, June 2015) [henceforward ‘Anderson report’], https://terrorismlegislationreviewer.independent.gov.uk/a-question-of-trust-report-of-the-investigatory-powers-review/
 Independent Surveillance Review, A Democratic Licence to Operate (London, Royal United Services Institute, July 2015) [henceforward ‘ISR report’].
 Anderson report, paras. 15.30, 15.47.
 Ibid, para.35.
 Ibid, para.111.
 Ibid, para.12.93.
 Ibid, paras. 118-120. The director of Liberty, Shami Chakrabarti illustrated the lack of support for the ISC in welcoming the publication of the Anderson report: “This thoughtful report is in sharp contrast with the defensive whitewash from the discredited intelligence and security committee of the last parliament...While we don’t agree with all his conclusions, Mr Anderson’s intervention could be the beginning of re-building public trust in surveillance conducted with respect for privacy, democracy and the law.” Richard Ford, ‘Cameron in Showdown over Spying’, The Times, 12th June 2015.
 ISR Report, para. 5.30.
 ISC, Press Release, 9th February 2016.