Developing Oversight
55. The new system of intelligence oversight by Parliamentarians has now been in place for almost four years. With the benefit of our own experiences, and our study of oversight policies and practices in a number of other countries, we have been taking stock of this country's oversight structures, and considering the extent to which they are appropriate to the tasks which Parliament originally intended.
Oversight in the UK
56. This Committee is one of several bodies outside government charged with accountability or oversight in relation to intelligence and security issues. The others are:
- the Commissioners and Tribunals established in relation to the interception of communications, the Security Service and the two intelligence services (SIS and GCHQ);
- the National Audit Office - which audits the Agencies' finances but, because of the sensitivity of the subject matter, reports not to the full House of Commons Public Accounts Committee but to the Chairman alone; and
- the Security Commission, which exists to investigate and report on the circumstances in which a breach of security is known or presumed to have occurred in the public service.
57. The Commissioners keep under review the exercise by the relevant Secretaries of State of their warrant and authorisation powers under the appropriate Acts, and provide assistance to the Tribunal. They have the power to call for any papers or information required for the discharge of their functions from any Crown Servant. They may submit ad hoc reports to the Secretary of State, and are required to make annual reports to the Prime Minister, which are laid before Parliament, subject to security excisions. They have no executive powers or public or Parliamentary functions.
58. The Tribunals are required to investigate complaints about Agency activities affecting a complainant or his property, or in respect of the interception of communications. Again, Crown Servants are under a duty to give the Tribunals such documents and information as they require. The Tribunals determine whether the Agencies had reasonable grounds for doing what they did, applying the principles of judicial review; they may also refer to the Commissioners complaints concerning property or which may concern authorisations by the Secretary of State. The Tribunals have the power to order redress in the form of terminating inquiries or other activities and ordering the destruction of records, quashing warrants and ordering compensation. Thus far, however, none of the Tribunals has found in favour of a complainant. Some see this as evidence that the Tribunal system does not work. We merely state this as a fact since we have not had access to the material to enable any judgement to be made.
59. Since it was established in 1964, the Security Commission has conducted 14 separate inquiries, involving various security breaches or reviews of security procedures. In particular, two investigations concerned cases of espionage by Agency staff: Geoffrey Prime (GCHQ) in May 1983 and Michael Bettaney (Security Service) in May 1985. All but one of the Commission's investigations - that into the case of Michael John Smith in July 1995 - were conducted prior to the formation of this Committee. Depending on the type of case, we can certainly envisage this Committee conducting its own inquiry in areas that previously only the Security Commission could have handled. In those circumstances, it would then be sensible to consider whether a duplicate inquiry by the Commission was necessary.
Oversight in other countries
60. The UK structure of accountability and oversight has evolved over recent years, with either new bodies being created or existing ones having their remits extended. This Committee however, with a remit covering oversight of all three of the Agencies, is still relatively new - certainly, in comparison to many of our counterparts, or nearest equivalents, overseas. In our discussions with these bodies during the course of the year, we have focused in particular on their different methods and powers of oversight, and on a number of related accountability issues, notably:
- legal constraints on intelligence methods and targets;
- executive and judicial checks that intelligence and security services are obeying the law, in particular on acts which would be unlawful but for express authorisation;
- oversight by the legislature of the appropriateness and legality of intelligence and security services' activities; and
- the impact of oversight and accountability on the effectiveness of intelligence and security services.
For illustration, the table at Appendix 5 sets out the various systems in the UK, the United States and Canada. We have considered these, and also those in Europe, Australia and New Zealand.
61. In respect of legislative oversight, it comes in many shapes and sizes. The most substantial and developed is in the United States, with substantial access to all the Agencies and large staffs and resources at the disposal of the Congressional oversight committees. It was in the United States, however, that we also took serious notice of concerns expressed to us that the oversight system is so extensive and bureaucratic that it hinders the effectiveness of the agencies.
62. Several countries have more extensive forms of 'independent' oversight. One feature that is common to the United States, Canada, Australia and New Zealand is the Inspector-General (IG). IGs' remits vary but, in general, they have considerable powers of access to the operational and other information they may require, similar to those of the Commissioners and Tribunals in this country. In the UK, however, the Commissioner for the Security Service has indicated that it is not his function to review operations46, and the Tribunals would only do so in response to a direct complaint from a member of the public.
63. Most IGs answer to the executive rather than the legislature. They are full-time appointments, with significant staff support. As a result, those IGs we have met, and their investigative staff, are often able to devote considerably more time and resources to pursuing their various inquiries, and in more depth, than can the serving judges, senior lawyers and, indeed, Parliamentarians appointed to UK 'oversight' positions.
64. The introduction of an IG system in the UK would require careful analysis of the alternative structures that are used in different countries, and primary legislation. This will inevitably mean that some significant period would elapse before such changes could be introduced. It should also be recognised that there are sharply divergent views in different countries on the value of IGs and to whom they should report.
65. A feature particular to the UK is the style of our Committee, which is not a Parliamentary Select Committee. There are arguments for and against such a status, and we have not as yet formed a view on the issue.
66. Even if thought desirable, however, such changes would take time to introduce, and could alter significantly the structure of relationships between the Committee and the intelligence community.
Further evolution of the UK oversight structure
67. In our review of our arrangements, we recognise that the present system and the manner in which it operates is a serious approach to meeting the needs of oversight. We have a broad remit, we work within the 'ring of secrecy' and we have a unique right of access under the law to highly sensitive intelligence and security material. The Intelligence Services Act 1994 places a duty on the Heads of the Agencies to disclose information to us on request, subject to arrangements approved by the Secretary of State. The Agency Heads do have specific discretion to withhold information from the Committee where that information may involve, for instance, specific operations or individuals. The Secretary of State, however, can over-ride an Agency Head in this respect, if he considers this desirable in the public interest.
68. This is the legal position, but within it the level of disclosure of information to the Committee actually depends to a significant extent on the quality of the relationship between the Committee and the Agency Heads and the wider intelligence community. Questions of our access to particular information do arise from time to time, but we have usually been able to reach a satisfactory arrangement. In this connection, it is most important that all in the intelligence community recognise that the greatest possible openness and frankness with the Committee is ultimately in their best interests as well.
69. That said, however, we are conscious that, in comparison to other countries, we lack the ability to investigate directly different aspects of the Agencies' activities, some of which have been highlighted in earlier Committee reports. We believe that enhancement of the present arrangements can be achieved without necessarily changing our remit or the law, at this stage, but by extending the Committee's reach with an additional investigative capacity. Such a person would need access to the Agencies' staff and papers, when required to meet the Committee's particular inquiry. We receive much helpful evidence from the Agency Heads and the staffs concerned, but we have not had the capability to conduct independent verification ourselves. Without such a capability, the Committee cannot make authoritative statements on certain issues. It would reinforce the authority of any findings that we make, and be an important element in establishing public confidence in the oversight system. This is important not just for oversight, but for the Agencies themselves and the public view of them. We believe that this is the right approach, and intend to introduce this capability in the coming year.
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