Revelations from Edward Snowden about the scope of intelligence activities in the UK have led to renewed attempts to enhance democratic oversight of the UK’s security services. The heads of MI5, MI6 and GCHQ appeared before the Intelligence and Security Committee for the first time, while Lord Macdonald called for strengthened parliamentary accountability. In this post, we ask democracy and security experts to consider the need for further reform

Bochel, Hugh

Brown, Ian

Leigh, Ian

Pickles, Nick

Raab, Charles

Rifkind, Malcolm

Sedley, Stephen

Vermeulen, Mathias

Wilson Palow, Caroline

LSE Research Online

By Democratic Audit UK 2014-1-14Ends and means: experts debate the democratic oversightof the UK’s intelligence servicesdemocraticaudit.com /2014/01/14/ends-and-means-experts-debate-the-democractic-oversight-of-the-uks-intelligence-services/Revelations from Edward Snowden about the scope of intelligence activities in the UK have led to renewed attemptsto enhance democratic oversight of the UK’s security services. The heads of MI5, MI6 and GCHQ appeared beforethe Intelligence and Security Committee for the first time, while Lord Macdonald called for strengthenedparliamentary accountability. In this post, we ask democracy and security experts to consider the need for furtherreform. Sir Malcolm Rifkind MP, Chair of the Intelligence and Security Committee ofParliamentOn 7th November 2013, the Intelligence and Security Committee of Parliament(ISC), which I chair, held an open evidence session with the three heads of theUK intelligence and security Agencies. Given that until 1994 these agencies didnot officially exist, the evidence session marks another staging post of aremarkable and ongoing transformation in the relationship between theintelligence and security community and the public.The 2013 Justice and Security Act, given Royal Assent earlier this year, has radically transformed theISC’s powers and capabilities. Whereas the ISC used to only be able to ‘request’ the evidence itneeded in order to carry out its investigations, it now has the statutory power to ‘require’ it. It has beengiven the statutory responsibility for the oversight of operations, and it has been given the capabilitiesrequired in order to fulfil their new powers and responsibilities, with its budget doubled.Oversight is necessary not just in order to prevent flagrant abuses of power, although that is itsultimate function. It is also to ensure that public money is spent wisely, that Parliament as a wholecan properly hold the agencies to account, and that public confidence is maintained – but only if andwhen that confidence is deserved. Sir Stephen Sedley, Visiting Professor at the Faculty of Law, University ofOxford, and former Lord Justice of Appeal[The UK has] a statutory surveillance regime shrouded in secrecy, part of agrowing constitutional model which has led some of us to wonder whether thetripartite separation of powers – legislature, judiciary, executive – conventionallyderived from Locke, Montesquieu and Madison still holds good. The securityapparatus is today able in many democracies to exert a measure of power overthe other limbs of the state that approaches autonomy: procuring legislation whichprioritises its own interests over individual rights, dominating executive decision-making, locking itsantagonists out of judicial processes and operating almost free of public scrutiny. The arbitrary use of1/5sweeping powers of detention, search and interrogation created by the (pre-9/11) Terrorism Act,which recently made headlines with the detention of David Miranda  at Heathrow, illustrates a long-term shift both in what is constitutionally permissible and in what is constitutionally acceptable. Theformer may be a matter for Parliament, but the latter is still a matter for the rest of us.This is an extract of an article for the London Review of Books. Dr Ian Brown, Associate Director of the Cyber Security Centre, University ofOxfordThe extent of GCHQ’s surveillance activities revealed by Edward Snowden’sleaks appeared to be a surprise to members of Parliament’s Intelligence andSecurity Committee (ISC), let alone the National Security Council, otherparliamentarians, and the broader public. While the Justice and Security Act 2013makes some welcome improvements to the independence and powers of theISC, more is needed – beginning with the steps suggested by Lord Macdonald. However, the muchstronger Congressional intelligence oversight committees did not prevent the US National SecurityAgency developing parallel capabilities “on autopilot”, as Secretary of State John Kerry told a Londonconference last autumn.This points to a need both for stronger statutory limits on GCHQ activities, and a much broader publicdebate on the legal framework governing them. The parliamentary debates that led to the Regulationof Investigatory Powers Act 2000 and its statutory instruments were desperately lacking substance onthe astonishing new capabilities of intelligence agencies in the modern technological environment.We need a new framework if we are to effectively protect privacy in future, and give democraticlegitimacy to the targeted, proportionate surveillance that almost everyone agrees is needed tocounter terrorism and serious crime. Hugh Bochel, Professor of Public Policy, University of LincolnLord Macdonald’s recent call on Democratic Audit for the Intelligence andSecurity Committee to become a select committee is not new, and is likely toremain topical for some time.However, whatever the status of the ISC, whether a committee of Parliament ora select committee, there remains a further challenge for parliamentaryoversight: the role of other select committees in relation to intelligence issues.There is, it must be said, no evidence that they have any desire to take on the ISC’s role. Yet, theHome Affairs and Foreign Affairs committees, and the Joint Committee on Human Rights, have, fromtime-to-time, raised concerns about their lack of access to individuals and papers related tointelligence on issues over which they would appear to have very reasonable interest (the recentrefusal by Theresa May to allow Andrew Parker, head of MI5, to appear before the Home Affairscommittee to justify his claim that the publication by The Guardian of materials leaked by EdwardSnowden put national security at risk, being one obvious example). Some agreement on how toprovide reasonable access to select committees and how to deal with overlaps of interest with theISC would arguably do a great deal to aid oversight and transparency and also to educate more2/5parliamentarians about intelligence issues.Read Hugh Bochel’s article on this topic in Parliamentary Affairs (with Andrew Defty and JaneKirkpatrick) Caroline Wilson Palow, Legal Officer, Privacy InternationalDespite recent attempts by the UK Government to reform the Intelligence andSecurity Committee through the Justice and Security Act 2013 , the continuingSnowden revelations show how feeble UK oversight actually is. It is now widelyacknowledged that the ISC’s weaknesses have resulted in an almost ‘siloed’ bodywith little transference of knowledge or expertise from a core group ofrepresentatives to the wider Parliament, much less the public. This in turn leads toa severe lack of accountability, transparency, and ultimately a breakdown in trust– both of the oversight mechanism and of the agencies themselves. But it doesnot have to be this way.The ISC’s unwavering defence of the intelligence agencies’ actions is in contrast to the reaction of thesimilar bodies in the US. While far from perfect, the US response to the Snowden revelations hasresulted in a more robust debate about the powers of the intelligence services than we have thus farseen in the UK. Congress and the US courts have placed significant pressure on the US executiveand intelligence services to acknowledge the Snowden revelations and reveal additional detailsregarding the decision-making process that led to such potential abuses of power. That pressure hasresulted in much more transparency, which in turn has led to substantive discussions regardingreform. The ISC should take notes. Nick Pickles, Director, Big Brother WatchSubstantial reform is essential if our oversight system is to command publicconfidence. Parliamentary questions, let alone those from the public, are met withthe standard retort ‘we do not comment on intelligence matters.’ In one recentexchange in the Lords, the Government minister refused to even say whichlegislative provision was being used to justify publicly known programmes.In the US, a system already far more rigorous than our own, the Government wasable to make an argument in a secret court – unopposed – that the word‘relevant’ justified collecting in bulk the phone call data of millions of innocentpeople. As President Obama’s NSA review noted, the interpretation did ‘violence’ to the meaning ofthe word ‘relevant’. We have absolutely no idea if the same over-reach is occurring here. OurInvestigatory Powers Tribunal does not award legal costs, even for those who successfully challengesurveillance.With an oversight committee still nominated by the Prime Minister, rather than elected by Parliament,and with no judicial authorisation of surveillance at any point for the intelligence agencies, we havean oversight system that fails every test of rigour, confidence and objectivity.3/5 Mathias Vermeulen is a Research Fellow at the European UniversityInstitute in FlorenceLord MacDonald offered a stringent critique on the composition and functioning ofthe Intelligence and Security Committee, and its impact on the introduction ofclosed material procedures. I share his proposals for further reform, which wouldbring the UK’s parliamentary oversight regime more in line with internationallyaccepted best practices.In my view, the main flaw of the UK’s ‘parliamentary’ oversight regime is its lack of independencefrom the executive. The adoption of the Justice and Security Act did not change the fact that (a) ISC-members are still nominated by the Prime Minister (instead of both Houses of Parliament), who (b)receives ISC reports before they are sent to Parliament and (c) even has a veto power to excludecertain matters from such a report. If one combines this with the ISC’s lack of subpoena-powers andits ability to only review operational matters post-facto, you create a situation where no realparliamentary accountability is possible, only ‘accountability theatre’. Professor Ian Leigh, Durham Law School, Durham UniversityIntelligence oversight is now at the crossroads, not just in the UK but in manyother countries also. The fundamental challenge is not fine-tuning the compositionor powers of oversight bodies like the ISC, although clearly some further usefulreforms could be made. The problem is that oversight legislation was drafted withtwentieth century abuses in mind and, post 9/11, is now left facing in the wrongdirection.In their counter-terrorism work the UK agencies are now cooperating with severalhundred international partners.  At best nationally-based oversight committees areonly able to see one side of this global picture. At worst- as has been alleged by Edward Snowden –international partnerships could be exploited to escape the limits of national legislation. The antidoteis not to attempt to create a supra-national oversight body but, rather, to enhance the existingdomestic structures. A useful start would be for the ISC to begin to coordinate investigations with theircounterparts overseeing the UK agencies’ closest intelligence partners. In the longer term, however,changes will be needed to strengthen accountability for the approval of intelligence cooperation andto remove the current legal barriers to examining it.In time the agencies will come to see that this is in their best interests too – certainly it would bebetter than a steady drip of damaging disclosures about their dangerous overseas liaisons. 4/5Charles Raab, Professor of Government, University of EdinburghLord Macdonald rightly insists on better parliamentary scrutiny of the intelligenceservices through an effective select committee. Recent revelations about GCHQ,the US National Security Agency, and so on, have dramatised this scrutiny gap.Democracy can only benefit from a greater transparency and accountability,exposing what is clandestine and eroding the secrecy that abets self-servinginterests operating in the name of an unexamined ‘national security’. Astrengthened ISC would certainly help. But select committees in both Houseshave written many reports on surveillance, privacy invasion, and so on. Theseshould not be overlooked even if they only touch the foothills of Snowden’s grand intelligence andsurveillance issues.I served on the Lords Constitution Committee as the Specialist Adviser for an investigation leading tothe report. ‘Surveillance: Citizens and the State’. It remains relevant because the Committee’sconcern about surveillance’s effects on the rule of law and state-citizen relations – fundamentalmatters in a democracy – led it to investigate and criticise information practices in many domains.Material examined was not about intelligence services but related to the effects on daily life of theoperation of the Regulation of Investigatory Powers Act 2000; the national DNA database; data-mining and -sharing; camera surveillance; and so on. These too are marked by obscurity and weakcontrols, posing palpable threats to the rule of law and the prospects for an informed citizenry.The ‘surveillance/security state’ applies also to such mundane but significant contexts nearer the ‘soft’end of a spectrum of intelligence activities that stretches to a mass surveillance that underminesreasonable expectations about the privacy-protective integrity of modern communications.Safeguarding democracy and the rule of law is required at both ends. Parliament has more work to doon surveillance practices that are sometimes wrongly considered to be less important, even if scrutinyof the intelligence services is also transformed in the current ferment.—Note: This post represents the views of the contributors, and does not necessarily give the position of DemocraticAudit or the LSE. Please read our comments policy before commenting. Shortlink for this post: buff.ly/19T6DMVHome page image: Thierry Ehrmann, CC BY 2.05/5

Ends and means: experts debate the democratic oversight of the UK’s intelligence services

Ends and means: experts debate the democratic oversight of the UK’s intelligence services

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