One of the most significant constitutional developments since 1997 has been the rise of the parliamentary select committee. As a scrutiny mechanism, these bodies have become ever more prominent, with chair positions an increasingly attractive position for MPs. For some – see current Chief Secretary to the Treasury Darren Jones MP – a strong performance as chair can act as springboard to ministerial office.
But what really defines the select committee’s rise – aside from the worthy reports, countless recommendations and earnest scrutiny – is its theatricality. The select committee ‘grilling’, whether of an errant minister, mandarin or even the odd media mogul, makes for great political spectacle. Its finest exponent was Baroness Margaret Hodge, challenging tax dodging multinationals in the Public Accounts Committee. But she’s far from the only example: see Liam Byrne MP challenging the CEO of P&O Ferries, embarrassing moments for Home Office Perm Sec Sir Matthew Rycroft, or Private Eye’s Ian Hislop turning the tables on one committee’s own members.
Some may question whether this is too much spectacle, rather than mature scrutiny. But this isn’t, of course, the only model of parliamentary committee. In fact, this year marks the 30th anniversary of another scrutiny body, one which embodies a radically different approach: the Intelligence and Security Committee (ISC).
The creation and history of the ISC
The passing of the 1994 Intelligence Services Act, five years after the Security Service Act 1989 which formalised MI5’s role, put both MI6 and GCHQ on a formal statutory footing for the first time. As well as clarifying the scope of their respective powers, Section 10 of the Act also introduced the ISC as a new scrutiny body:
(1) There shall be a Committee, to be known as the Intelligence and Security Committee and in this section referred to as “the Committee”, to examine the expenditure, administration and policy of —
(a) the Security Service;
(b) the Intelligence Service; and
(c) GCHQ.
It further established that there would be nine committee members, drawn from the Commons and Lords. These could not be government ministers, but would be appointed by the PM, following “consultation” with the Leader of the Opposition.
The ISC was tasked with collecting evidence and producing an annual report for the PM who would, in turn, lay a copy before the Commons and Lords. Crucially, the nation’s leader retained the power to exclude material from publication if it “would be prejudicial to the continued discharge of the functions” of the intelligence agencies. The ISC could also produce other thematic reports as it saw fit.
For nearly 20 years after that, the ISC’s remit and rules remained untouched. Then came the Coalition Government’s Justice and Security Act 2013.
Under this new Act, the ISC was given responsibility for overseeing a wider set of national security and intelligence bodies. Instead of just the three major intelligence agencies, the ISC’s remit now covers – according to its own website – Defence Intelligence, the National Cyber Force, the Joint Intelligence Organisation, the National Security Secretariat (NSS), and the Homeland Security Group too.
The selection of ISC members was also reformed subtly. Previously, the PM appointed these nine individuals directly, with no role for Parliament. Now, the Act gave Parliament itself the power of appointment – though it could still only choose members nominated by the PM. Those members would then elect their own chair.
Controversy in the Committee
Unlike the standard parliamentary select committee (which has much greater independence from government), the ISC – both pre and post the 2013 reforms – has always toed a much finer line. Every ISC member is, after all, approved by the PM. And the publication of ISC material is reliant on the PM’s sign-off. In recent years, there have been controversial incidents relating to both these elements.
The first involved the selection of the ISC’s chair – a process involving a (notionally) free vote among the nine selected members. However, in 2020, the Government’s preferred choice (then MP Chris Grayling) lost out to his Conservative colleague, Sir Julian Lewis MP. This reportedly came after Sir Julian voted for himself, meaning that, with the support of Opposition MPs, he became ISC chair – apparently amid concerns that Mr Grayling would be too loyal to the Johnson Government.
The Government was so incensed by the selection of an alternative ISC Chair, though he was still a Conservative MP, that they removed the whip from Mr Lewis altogether. They claimed that Mr Lewis had falsely told the Chief Whip that he would vote for Mr Grayling. But Mr Lewis strongly denied this, stressing the need for this to be an independent decision: “I received a text asking me to confirm that I would be voting for the PM’s preferred candidate… I did not reply as I considered it an improper request. At no earlier stage did I give any undertaking to vote for any particular candidate.”
While the whip was restored to Mr Lewis in December 2020, who also continued as chair through the 2019-2024 parliament, it highlighted the profound tension at the heart of the ISC. Is it really independent enough? As another ex-ISC chair put it to the BBC: “The committee can only exist, the committee can only be respected… if it is seen to be non-partisan, and independent.”
The second controversy related to the ISC’s report on Russia, which partly explored concerns about interference in the 2016 Brexit and 2014 Scottish Independence referenda. In this case, the issue wasn’t the findings, but rather the PM’s apparent foot-dragging around publication.
As former ISC Chair Dominic Grieve has explained, PMs usually take 10 days or less to approve ISC reports for publication. And yet, the Russia report took far longer to see the light of day. It was submitted to PM Boris Johnson on 17 October 2019, with no response for two months. On 17 December, the PM did confirm that it could be published – but refused to actually release it until after the General Election.
Ultimately, the document was only released a full nine months after it was passed to the PM, on 21 July 2020. Once again, the ISC dependence on the Government – or rather the PM – raised challenging questions.
The case for a stronger ISC
In some ways, these controversies might seem limited. The Russia report was, after all, made public in the end. Sir Julian Lewis remained as ISC Chair, in line with the Committee’s vote. His loss of the Conservative whip was only temporary (around six months). But these issues reflect deeper challenges.
There is a kind of unspoken predicate here, one embodied in many other parts of the UK’s constitution, that reflects the ‘good chaps’ theory of government. The fundamental belief that the UK’s political leaders will always be respectful of institutions, recognise the importance of effective scrutiny, and play by the rules (however vaguely defined.) And yet, some recent governments have deviated significantly from that assumption (to put it mildly), as these ISC controversies show.
It’s worth acknowledging, too, that the ISC’s scrutiny model has bigger trade-offs than the usual parliamentary select committee. When the latter exposes the inner workings of a Whitehall department, it can (and often does) cause embarrassment, but security is rarely at risk. If the ISC publicly exposed a major intelligence failing, embarrassment is guaranteed, but compromised national security is the far larger concern. Balancing the need for secrecy with the benefits of transparency – whether to maintain public trust or ensure scrutiny of mistakes and misbehaviour – is clearly essential.
However, a more transparent model of independent oversight is warranted and could much more robustly safeguard public trust. Intelligence agency heads are now named public figures, so why can’t the ISC do some more work in an open setting?[1] Similarly, the ideas promoted by Lord Macdonald, that the ISC Chair should always be an opposition politician and have an independent secretariat, are worth considering. As the PM would surely agree, it’s never a bad idea to listen to a former Director of Public Prosecutions…
Alongside this, there’s a more practical – and admittedly much less exciting – argument about capability. The ISC has a fairly broad remit already, covering the “expenditure, administration, policy and operations” of MI5, MI6, GCHQ and other national security agencies. It’s reported on many topics: threats from entire nation-states (Russia, China), terrorism (extreme right-wing, Northern Ireland), 5G suppliers, rendition policy, and more. And there’s a good case made by Rosamund Powell for a stronger focus on AI and technology issues in the near future too.
So, along with a more independent footing – leadership by an Opposition MP and a commitment to more public evidence sessions would be a good start – the ISC needs greater resourcing too. If we also accept the ISC’s own argument that its remit should be expanded to include intelligence matters handled by policy departments, there is a need to boost its capabilities accordingly.
In other words, 30 years since its creation – and 11 years since its most recent reform – the ISC could do with a refresh. Yes, the theatricality of a usual select committee might not be an appropriate model, but handling all intelligence scrutiny work backstage isn’t sustainable either. It’s time to bring the ISC further into the light.
James Sweetland.
James Sweetland is a freelance researcher, writer and consultant who works on government reform, policing and tech policy.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] See a similar argument here: https://cetas.turing.ac.uk/publications/30-years-scrutiny-what-next-intelligence-and-security-committee-parliament