Jane Kirkpatrick

Other Indicators of Parliamentary Interest: Debates, Questions, Motions and Groups

While the ISC has clearly been seen by governments as the principal means of providing legislative oversight of the intelligence and security agencies, and select committees have been an important mechanism for parliamentary scrutiny of the actions of governments and their agencies in general, this chapter looks at the use of other methods available to parliamentarians that allow them to scrutinise the intelligence and security services. It examines parliamentary debates and questions in both the House of Commons and the House of Lords, EDMs in the Commons, and APGs, and considers the extent to which they demonstrate parliamentary interest in the work of the intelligence and security services, and how effective these methods may be in enabling parliamentarians to scrutinise them. Each of these mechanisms provides different opportunities for involvement on the part of MPs and Peers, as is discussed in greater depth below (see also, Norton, 2005; Rogers and Walters, 2006). Participation in debates is clearly one of the most obvious ways for members of either House to make clear their views on issues, but, particularly in the realm of intelligence, such debates are relatively rare, and given the pressures on parliamentary time, those who do wish to speak may not receive the opportunity. Of course, dissent, in the form of rebelling against the party whip, has been used as one indicator of parliamentarians’ views (for example, Norton, 1975; Cowley, 2002 and 2005), but there are so few votes on intelligence topics that such a measure is of little value here.

Managing Continuity and Change: Legislating for Intelligence Agency Accountability

While legislative oversight of intelligence agencies implies an ongoing process of scrutiny by democratically elected politicians, at its most fundamental level it also involves the passage of legislation to ensure that the existence and activities of intelligence agencies are grounded in law. As Born and Leigh observe: Legislation is the legal embodiment of the democratic will. In most states, approving legislation (along with scrutinising government actions) is among the key roles of the parliament. It is therefore appropriate that in democracies where the rule of law prevails, intelligence and security agencies derive their existence and powers from legislation rather than exceptional powers such as the prerogative. (Born and Leigh, 2005, p. 17) Providing intelligence agencies with a democratic mandate not only provides legitimacy, the process of securing parliamentary approval through the passage of legislation also allows democratically elected politicians the opportunity to debate an important area of state power and establish the nature and powers they wish it to wield. While the passage of legislation, without some ongoing process of scrutiny or review, is not sufficient on its own to ensure effective accountability, it is nevertheless an important first step.

New Possibilities: Legislative Oversight of Intelligence beyond Westminster

This chapter looks beyond the Westminster Parliament at new potential sources of legislative scrutiny of intelligence, and in particular the European Parliament (EP). It does this by examining the extent of any emerging interest in the EP in the work of national intelligence and security agencies and their oversight. There has also been the development of a number of agencies within the EU, which raises further and different questions about scrutiny and oversight, including the role, or lack of one, for the EP in relation to such activities, and how this relates to individual member states and their political oversight of intelligence. The chapter will consider these issues and examine the activities undertaken by the European Parliament in relation to intelligence and security, perhaps most obviously the work of the temporary committee on Extraordinary Rendition in 2005 and 2006, but also more broadly at other measures of interest such as questions and reports.

Conclusions: Parliament and the Future of Intelligence Oversight

This book has sought to provide a broad examination of parliamentary scrutiny of the British intelligence and security agencies and the government’s use of intelligence. Whereas previous studies of parliamentary scrutiny in this area have focused almost exclusively on the work of the ISC, and in particular the Committee’s relationship with the agencies, this study has widened the focus by examining a range of mechanisms through which Parliament and parliamentarians might seek to hold the agencies and governments to account, and also by considering the relationship between the ISC and Parliament. The research included in this book has also sought to adopt a broader methodological approach than in many previous studies, including by drawing on methods deployed in the field of legislative studies but not previously applied to parliamentary scrutiny of intelligence. An important element of this involved interviews with a large sample of MPs and Peers, which included not only current and former members of the ISC, but also a large number of other parliamentarians, among them members of a range of select committees, APGs, current and former ministers, and backbench members of each House with a wide range of backgrounds and levels of experience of the world of intelligence. The research also drew on a number of other indicators of parliamentary interest and expertise, including data on select committee reports, parliamentary questions, EDMs, and parliamentary debates.

‘A Unique and Special Committee’: The Intelligence and Security Committee

The establishment of the ISC was a significant step in the development of parliamentary oversight of the British intelligence and security agencies. The ISC operates within the ‘ring of secrecy’ and has therefore for the first time allowed MPs and Peers to have wide-ranging access to the intelligence and security agencies, documents and staff. Moreover, it has also exposed intelligence agency staff to parliamentarians and the democratic process in a way which had not been required in the past. The ISC sets its own agenda and, although its proceedings remain secret, it publishes annual reports, and it has also produced a number of additional reports both on subjects of its own choosing and at the request of governments. Moreover, the Committee has expanded its remit somewhat since 1994. Although its mandate was limited to the examination of the ‘administration, policy and expenditure’ of the intelligence and security agencies, it has shown an increasing propensity to consider operational matters. According to a number of studies, the Committee has exceeded expectations in terms of access to information and has sought to establish itself as a serious critic of the agencies, for example, with reports on intelligence on Iraqi weapons of mass destruction, the handling of detainees by British intelligence personnel, and rendition (Gill and Phythian, 2006; Glees et al., 2006; Phythian 2007).

Introduction: The Challenges of Legislative Oversight of Intelligence

On 24 September 2002, Tony Blair, the British Prime Minister, walked into the House of Commons carrying under his arm a dossier comprising intelligence on Iraqi weapons of mass destruction. The dossier had been published earlier that day to coincide with the recall of Parliament to debate policy towards Iraq. As the Butler Inquiry later observed, the so-called September dossier broke new ground by using secret intelligence in a public document in order to make a case for international action (Butler, 2004). While there were significant reservations within Parliament about the need for military action, there was broad acceptance of the information included in the dossier. When, almost eleven years later to the day, David Cameron, the Conservative Prime Minister of a coalition government, stood before a recalled House of Commons to seek parliamentary support for military action in Syria, the Prime Minister once again invoked the ‘key independent judgements of the Joint Intelligence Committee’ (JIC) (Hansard — 29 August 2013, col. 1426), which this time took the form of a letter from the Chair of the JIC. On this occasion, however, Parliament was less accepting of that evidence, and the overwhelming response of those MPs who voted against military action was to press the government to publish more intelligence.

Issues of Accountability and Access: The Select Committees and Intelligence

Much of the scrutiny of the work of government departments by Parliament takes place within select committees, particularly in the House of Commons. It is widely recognised that one of the strengths of this system has been that it allows small groups of MPs to develop considerable knowledge of a particular area, and to apply that to scrutiny of government. In addition, while the composition of select committees reflects the balance of the parties in the House, they are generally seen as being less partisan in their approach, seeking consensus on the issues that they consider, rather than narrowly reflecting party interests. While select committees can be criticised on a number of grounds, including, for example, the significant levels of turnover of members, choosing or avoiding particular topics to minimise divisions on party lines, for their reports rarely being debated on the floor of the House, and because governments are not required to respond to reports, let alone to act upon them, they are nevertheless widely portrayed as successful (Norton, 2005; Rogers and Walters, 2006; Bochel and Defty, 2007; Brazier and Fox, 2011; Benton and Russell, 2013). Given the range of topics that the select committees are responsible for covering, and the higher profile of intelligence and security issues in Parliament and in the media in recent years, it would not be unreasonable to expect some to have paid attention to such topics.

‘No Longer Scared to Ask…’: Parliamentarians and the Intelligence Services

As has been highlighted in the preceding chapters, the role of Parliament in relation to the intelligence agencies has evolved considerably in recent decades, particularly with the legislation of the late 1980s and early 1990s that placed the agencies on a statutory footing (see Chapter 3). While the establishment of the ISC has sometimes been seen, particularly by governments, as providing the mechanism for parliamentary oversight of the agencies and intelligence issues, as Chapters 4, 5 and 6 have shown, this has not deterred other parliamentarians, and particularly some select committees, from seeking some degree of additional involvement with and oversight of intelligence, a position which has perhaps been increased by the greater awareness of the use of intelligence in relation to areas such as military intervention and terrorist threats.

‘The Government Does Not Comment…’: Parliament and the Intelligence Services

Although the British intelligence and security agencies have a longer history than most, the UK was rather late in subjecting the agencies to parliamentary scrutiny. For most of their 100-year history the intelligence and security agencies operated with relative anonymity and impunity. In the official history of MI5, published to mark the agency’s centenary in 2009, the historian Christopher Andrew observed that until recently the work of British intelligence and security agencies had been underpinned by two constitutional doctrines. The first of these was that the existence of intelligence agencies should never be officially acknowledged. As the historian Sir Michael Howard observed in 1986, ‘so far as official government policy is concerned, enemy agents are found under gooseberry bushes, and our own intelligence is brought by storks’ (quoted in Andrew, 1988). The second constitutional doctrine under which the agencies operated was that their work would not be subject to external scrutiny or regulation. As Andrew points out, any regulation which was carried out was undertaken by the agencies themselves, and occasionally, with a very light touch, by the government. There was no notion that Parliament, or indeed the public, should be able to question or scrutinise the work of the intelligence and security agencies, a situation, Andrew adds, which was widely accepted both by Parliament and the public: It followed from the storks-and-gooseberry-bush tradition that the mysteries of intelligence must be left entirely to the grown-ups (the agencies and the government) and that the children (parliament and the public) must not meddle in them.

Tapping the Telephones of Members of Parliament: The ‘Wilson Doctrine’ and Parliamentary Privilege

In 1966, in what has become known as the Wilson Doctrine, the Prime Minister, Harold Wilson, informed Parliament that he had issued an instruction that the telephones of parliamentarians were not to be intercepted by the intelligence and security agencies. Subsequent Prime Ministers have all expressed their continued commitment to the Wilson Doctrine. This article examines the nature and limitations of the Wilson Doctrine, and its continued application in the context of recent legislative changes and a number of prominent recent cases. It focuses on apparent changes to the scope and attempts to set aside the Wilson Doctrine under the Blair government and the implications of the interception of the communications of Sinn Fein Members of Parliament, and the bugging of meetings involving the Labour MP Sadiq Khan.