Is it time to give parliamentary oversight of intelligence some teeth?

By Garry Hindle for RUSI.org

In an unprecedented intervention on 11 February, the Director of the Security Service, Jonathan Evans, made a spirited and public defence of the service, urging commentators to resist 'conspiracy and caricature' when writing about the Service, especially in the case of MI5's alleged role in the incarceration of Binyam Mohamed.  Suggesting that criticisms of MI5 are serving the interests of the enemy does little, however, to reassure the public and Parliament that Government takes the accountability of intelligence agencies seriously. What is needed now is not less criticism but more confidence in the oversight and accountability of their activities.

President Eisenhower described the activities of the CIA as 'a distasteful but vital necessity'. The post-'War on Terror' world has revealed aspects of this activity that is far beyond distasteful. What has become increasingly clear is that, now, nine years in the wake of 9/11, there were plenty of otherwise decent right-minded people who temporarily lost sight of what most fundamentally needs protecting in Western society: its values and democratic principles.

This myopia was most acute in the Bush Administration, but it afflicted many in the UK too. Our Prime Minister announced that everything had changed, our Government temporarily signed up to the impossible concept of a 'War on Terror' and our Parliament gave its assent to a raft of poorly-conceived legislation. We now find ourselves - not least through the Chilcot Inquiry - in an effective period of truth and reconciliation. Seeking occasionally to punish, but preferring where possible to acknowledge error and build-in safeguards against future transgressions.

 The Binyam Mohamed case

What is becoming clear through a series of judicial findings and the evidence based thereon, is that MI5, however dedicated and however vital to our national security, was not immune from the post 9/11 myopia. Just as we have dropped the concept of a war on terror and aspects of anti-terrorism legislation are set to be repealed; one impact of the Binyam Mohamed saga, and the allegations of complicity in torture, must be a substantial strengthening of democratic oversight of the UK's intelligence agencies.     

The latest accusations that MI5 was complicit in the torture of Binyam Mohamed raises serious concerns about the degree of democratic oversight and the accountability of the UK's intelligence agencies. It is true that the Intelligence and Security Committee (ISC) has conducted a number of reviews into Extraordinary Rendition. It is also evident however that in doing so it has been inadequately resourced and, to a degree, been unable to ask the right questions. It is clear too that Agencies have not fallen over themselves to provide to the ISC the information necessary to clearly substantiate its current public claims of innocence.

Problems with the ISC

All Parliamentary select committees struggle, for reasons of capacity, to fully interrogate the complex machinery and policy of government departments. Their real power lies in an ability to reveal to Parliament and the wider public areas of concern regarding policy and practice. This knowledge of accountability acts as a check on government activity.

But the ISC is not a select committee, merely a committee of Parliamentarians appointed by and reporting directly to the Prime Minister, not Parliament. It is limited further by its operation within the 'ring of secrecy' of the Official Secrets Act, making public disclosures often impossible. The access that it has to the Agencies is governed to a great degree by the trust between the committee members and the Agency. As such, the Chairs of the committee tend to be a trusted former Minister from the Foreign Office or Ministry of Defence. Access can be further limited by Ministerial decisions that information is 'sensitive' and committee members and the investigator must negotiate with informal 'gatekeepers' of information.

The current form of the ISC has been hard won over, formed after thirty years of vigorous Agency and Government opposition to Parliamentary oversight. Intelligence failures associated with the Falklands War and Northern Ireland built a degree of momentum towards oversight. The later judgements of the European Court of Human Rights and scandal surrounding the 'arms to Iraq' affair led to the ISC's creation in 1994 as a way to pre-empt renewed Parliamentary demands for reform.

The future of the ISC

The current allegations of complicity in torture are unlikely to be resolved quickly and will likely remain in the realm of denial and accusation for the foreseeable future. They do, in any case, constitute a catalyst for further review of the ISC's function and capability that the Agencies should embrace. Acceding to demands that the Chairman be appointed by the Leader of the Opposition and exploring further options for beefing up the Committee's investigative capability are two good starting points.

Based upon judicial findings so far, it is difficult to imagine that any inquiry into the case of Binyam Mohamed or of the wider allegations of MI5 complicity in torture would not result in recommendations for overhauling the ISC. As in the late 1990s, the Government would do well to avoid being a reactionary force and embrace the need for change in democratic oversight of the intelligence Agencies.

This episode will be seen in the future as one more driver for enhancing the oversight of the Agencies:  it remains to be seen whether or not it is this Government or the next that effects this much-needed change.

Garry Hindle is the head of Security and Counter-terrorism at the Royal United Services Institute.

The views expressed above are the author's own, and do not necessarily reflect those of RUSI.