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July 7: Do we need an inquest?

Commentary, 31 August 2007
Intelligence, Terrorism, Europe

This week a group of survivors and relatives of those killed in the July 7 London bombings have applied for a judicial review of a Home Office decision not to hold an inquiry into the attacks.

Lawyers for the group said the action was being taken to ensure lessons were learned for the future and that legal proceedings would be stopped if an independent and public inquiry was launched.

Much of the dissatisfaction surrounds the revelation in May this year that Mohammad Sidique Khan, the ring-leader of the suicide bombers who carried out the horrific attacks on the London Underground, had already appeared on MI5’s radar at least five times, yet they did not follow up leads on him. At the time there was intense media reaction that the security services made major mistakes, together with many calls for a public enquiry.

The action this week is reported as being the result of a breakdown in an on-going dialogue between the survivors and the Home Office.

The survivors’ motivation is beyond reproach and they are at pains to stress "the international importance of finding out the truth of events leading up to these ... bombings". However, it is not at all clear that an independent and public enquiry is the best vehicle by which to achieve their aims.

In line with many countries, the UK has acknowledged that ‘national security’ should not be a pretext to abandon commitment to the rule of law. This commitment extends to extreme situations and the exceptional powers of all our intelligence agencies are grounded in a clear legal framework.

This legal framework is important for a whole host of reasons. But the main one is that it differentiates our intelligence agencies from other institutions such as law enforcement. Clear lines of accountability mean that in routine situations we, the citizens, are protected from the special powers that the security and intelligence agencies possess in exceptional circumstances. In short, it means that bugging, interception of mail, stealing documents and bribery etc., are legal only when there is a pre-eminent threat to the state or its key institutions.

This is undoubtedly a good thing but, having made lawful in exceptional circumstances what would otherwise be unlawful, the existence of such taxpayer-funded activities is out in the open and it is understandable that the public will then expect there to be some form of democratic accountability.

In the case of the UK, oversight of the intelligence agencies is provided by the Intelligence and Security Committee (ISC). It is a committee that operates on behalf of the Executive (the Prime Minister) to hold members of the Executive (the Agencies) directly to account. It reports to the Prime Minister rather than Parliament and Heads of Agencies give evidence on their own behalf. In short it is a mechanism whereby the Executive in the form of the Prime Minister can demonstrate that it can hold itself to account.

The justification given for such oversight is often to preserve secrecy. The intelligence agencies are trying to uncover what others are trying to conceal and they do not wish to reveal sources, methods, resources or priorities. They therefore wish to give evidence in a protected manner.

The academic literature is full of long treatise about what has been coined the ‘paradox of secret agencies operating within the law’. There are also numerous complex oversight frameworks.

However, fundamental to this whole argument is that the intelligence agencies do not work in isolation. They are tasked according to their customer’s requirements and their output is the departure point of others, such as the police. Therefore a public enquiry into the events leading up to the dreadful attacks of 7 July 2005 would necessarily be a collation of a number of reviews of different parts of the system. And herein lies the problem, as different parts of the system have completely different oversight arrangements. Some parts of the system have Select Committees, others have Judicial Review and who is accountable and how the evidence is collected is fundamentally different dependent on the oversight arrangement adopted.

At present it is entirely feasible that a public enquiry will show that everyone did exactly what they should have done – according to the collective enquiries of their respective oversight committees.

Therefore, prior to any public enquiry, it would make sense to review and amend the supervision arrangements so that oversight is uniform and covers every part of the system.

Dr Sandra Bell
Director of Homeland Security and Resilience
31 August 2007

The views of the author are not meant to represent the views of the RUSI.

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