‘Evaluating Intelligence Oversight Committees: the case of the UK Intelligence Security Committee and the “War on Terror”,’

Evaluating Intelligence OversightCommittees: The UK Intelligence and

Security Committee and the ‘War on Terror’

PETER GILL

After a brief introduction giving a short history of legislative oversight,

a number of criteria by which committees can be evaluated are

enumerated, including their mandate, membership, resources and

access to information. The development of parliamentary oversight in

the UK culminating in the creation of the Intelligence and Security

Committee in 1994 is outlined. Its performance between 2001 and 2006

is described and assessed. It is concluded that, while it has made some

appropriate criticisms of the agencies, it can be faulted in that both the

style and substance of its reports are essentially managerialist and

have paid inadequate attention to questions of human rights and the

need for public education.

INTRODUCTION

The history of legislative1 oversight of security intelligence agencies is short.

With one or two exceptions, it simply did not exist before the 1970s, though

its spread since then has been rapid. There are two main reasons for this: first,

the liberalization of former authoritarian states in Europe, Latin America and

South Africa has produced a large number of ‘new’ democracies in which

oversight of security organs was seen as essential to the legitimacy of the new

regimes. Second, in the ‘old’ democracies intelligence oversight was

addressed as a response, often, to scandals in which agencies were seen to

be abusing their surveillance powers. However, there has been no single

answer to the question of what oversight institutions are to be developed.

Should external overseers be located in the legislature or in some other body?

What should be their mandate, or over what precisely should they have

oversight? How are they to be chosen and by whom? Must they be vetted?

What powers will they have to obtain access to intelligence personnel and

files? To whom do they report?

Intelligence and National Security, Vol.22, No.1, February 2007, pp.14 – 37ISSN 0268-4527 print 1743-9019 onlineDOI: 10.1080/02684520701200756 ª 2007 Taylor & Francis

As the first steps were made to external oversight, there was considerable

suspicion that legislatures would not be appropriate, for example, because of

their tendency to partisanship and to leak information for political advantage.

There were exceptions: the German Bundestag was central to oversight from

the 1950s but that developed from the unusual circumstances of post-war

reconstruction and a determination in the new Basic Law to avoid the secret

police nightmare of Nazism. In the US, too, the post-Watergate reforms

centred on Congress but in parliamentary systems such as Canada, UK and

Australia the early moves were to create external review bodies outside of

Parliament: Security Intelligence Review Committee (SIRC) in Canada

(1984), a combination of Commissioner and Tribunal in UK (1985 and 1989)

and an Inspector General in Australia (1986). But now all these have or are

setting up parliamentary committees, though to supplement rather than

replace these other bodies. Legislative committees are now to be found in

most of the post-Communist states of Europe from Poland to Albania and

everywhere in between.2

‘Oversight’ is often distinguished from ‘review’: review describes an ex post

facto process and oversight a process of supervision that might include ongoing

activities.3 Fewer resources might be required for a committee with only review

functions. In practice, depending on mandates, powers and political conditions,

many committees are likely to carry out both. Here, the term oversight has

been used even where, strictly speaking, review might be more appropriate.

Within parliamentary systems another key question to be asked is: what is the

objective of oversight?4 This may seem a silly question – based on the principle

of elected representatives maintaining the democratic accountability of un-

elected officials, the objective is to ensure that ministers and officials spend

money properly and wisely and do not abuse citizens’ rights in the process.

However, this simple proposition clearly conceals the central feature of the UK

system, that is, the executive and assembly are closely intertwined and the

former is the most powerful influence over the timetable, organization and

activities of the latter. Therefore, parliamentarians cannot be viewed simply as

overseers of the executive; many share the precise political objectives of the

government that is made up of the most powerful members of their party (or, if

members of minority parties, of their ‘shadow’ cabinets). Therefore, their

actions as overseers are always tempered to a greater or lesser extent by the

realization that they are the government (or hope soon to become so).

Oversight of security intelligence agencies is perhaps the most demanding

of all parliamentary challenges and it is has become even harder in the wake

of 9/11 and the declaration of the ‘war on terror’.5 This discussion, first,

outlines some criteria for the evaluation of oversight committees, sketches the

development of parliamentary oversight in the UK and assesses the ISC’s

performance, especially since 2001.

EVALUATING INTELLIGENCE OVERSIGHT COMMITTEES 15

EVALUATING OVERSIGHT COMMITTEES

What are the criteria by which we might evaluate the performance of

oversight committees in what is, possibly, the most challenging of all

committee assignments for elected politicians? Their task is difficult because

much of the work is carried out in secret and essentially unheralded – an

unusual position for elected politicians to adopt – and, while there are rarely

votes to be won by becoming an informed critic of intelligence agencies, they

can certainly be lost if one is perceived as disloyal or, alternatively, in the

pocket of the ‘spooks’. There are six variables that can be identified as key to

determining whether a committee is to be taken seriously as overseeing or

‘superintending’ security intelligence: its form, mandate, membership,

resources, access to information and reporting.

The form committees take clearly depends on the situation and status of the

parent assembly; for example, a clear distinction can be made between the

committee traditions found in the US Congress and those in parliamentary

systems. In the US, Congress initially considered itself to be the government

and the subordinate role of the President (and executive branch) was simply

to implement the laws passed. Although the President is now relatively much

more significant – especially in foreign and military affairs and the world of

intelligence, the US system still provides congressional committees with a

potential for independent action in terms of budgets, appointments and

investigations that is rarely available in parliamentary systems. There,

although national conditions vary, parliamentary committees are more likely

to be the creatures of the executive.

The mandate or terms of reference for the committee are likely to be a

function of its form – a congressional committee will determine its own terms

of reference, while one that is set up by statute, as is the UK Intelligence and

Security Committee (ISC), will have its powers enumerated in the statute. To

the extent that the executive is the dominant force in writing statutes, the

committee’s powers will reflect government preferences rather than those of

independent legislators.

How is a parliamentary committee to be constituted? Members’ indepen-

dence of the executive will be clearest if the members are chosen by the

assembly itself, as in Argentina and Germany, rather than by the government,

as in the UK. In Argentina and the UK, for example, a significant number of

committees have been established jointly between the two houses of

Parliament. Given the real fear that intelligence services may be used by

governments for their own partisan purposes, committees must have cross-

party membership and require the Chair to be from an opposition party (e.g. in

Hungary), which will reinforce the appearance of independence. Whoever the

membership and however they are chosen, if they are to have full access to

16 INTELLIGENCE AND NATIONAL SECURITY

secret materials, are they to be subject to security vetting? For parliamentar-

ians anxious to maintain their autonomy, this is a delicate issue as they are

understandably reluctant to submit themselves to vetting by the very agencies

over whom they are to exercise oversight. Informal political processes will

ensure that those deemed unsuitable will probably not be appointed in the first

place but, where there are formal processes of vetting, there should be an

independent mechanism for resolving disputes arising from a negative report

against a parliamentarian.6

What resources does a committee have? The disparity in resources available

to oversight committees is great: the US Congressional Joint Inquiry team

investigating 9/11 had 24 researchers divided into five investigative teams that

interviewed officials, reviewed documents and submitted questionnaires not

only at the FBI, CIA and NSA but also other departments.7 Staff reviewed

almost 500,000 pages of documents, conducted 300 interviews and participated

in briefings and panel discussions involving 600 officials from the intelligence

agencies and elsewhere.8 Most parliamentarians can only gawp in envy at such

staff resources. But generous resources do not guarantee effectiveness since

they may be dissipated if there is neither the will nor the skill to use them. For

example, the secrecy of intelligence work means that it is relatively easy for

insiders to mislead external visitors, especially if their visits are sporadic,

predictable and limited to interviews with selected officials and files. Security

and intelligence personnel are skilled at answering precisely the question that is

asked and no more. Therefore, the first task for any committee is to discover

what the right questions are. This, in turn, depends on the expertise, experience

and energy of members and staff, if any, and the will to use them.

At the heart of the issue of whether oversight is to be real and effective

rather than tokenistic is the fifth factor: access to information. Clearly,

parliamentarians require a degree of access that enables them to fulfil their

mandate but the extent of their formal powers is only part of the answer.

Parliamentary committees may be privileged in many ways but at root they

face the same problems of negotiating gatekeepers as do all researchers into

powerful organizations. Legislation varies. Not only do US congressional

committees have a right to all the information regarding covert action that

they ask for but agency heads have a legal obligation to keep the committees

‘fully and currently informed’ of all such actions though ‘to the extent

consistent with due regard for the protection from unauthorised disclosure of

classified information relating to sensitive intelligence sources and methods’.

Legislation in Australia and UK deploys the term ‘sensitive’ in a similar way

to describe information that ministers may prevent committees from acces-

sing.9 But even where legislation formally enables untrammelled access,

committees will still need to deploy skill in negotiating with informal

gatekeepers in ministries and agencies.


The final factor for parliamentarians is their reporting relationship with

their parent assembly. The privileged position inside the ‘barrier of secrecy’

requires that there be some mechanism for ensuring that their public reports

do not include compromising material but, again, the precise procedures

vary. Ideally, the committee itself will make this decision, after consultation

with the agencies has produced agreement as to what if anything should

be omitted, but in some cases the executive retains a firmer grip. The

necessity of access to protected information combined with the equal

necessity that some material is not published leaves parliamentarians in the

unenviable but inevitable position of being unable to tell their voters all that

they know.

THE DEVELOPMENT OF PARLIAMENTARY OVERSIGHT IN UK

In the UK parliamentary oversight is now just over ten years old but its roots

can be traced back 25 years. Until the 1970s the British convention was that

security intelligence was simply not a subject that could be discussed in front

of the children, servants or electorate. Since 1962 security and espionage

scandals have been investigated by an ad hoc Security Commission but only

limited versions of reports, concentrating on management issues, were

published.10 Harold Wilson, Labour Prime Minister for part of the 1960s and

1970s, famously included a ‘chapter’ on national security in his memoirs

which said: ‘The Prime Minister is occasionally questioned on security

matters. His answers may be regarded as uniformly uninformative. There is

no further information that can usefully or properly be added before bringing

this chapter to an end.’11

It was the confluence of a range of issues and controversies that was to

crack open this wall of total secrecy. Most fundamental was the fracturing of

the British post-war political consensus between the major political parties

that had facilitated secrecy by removing intelligence matters from partisan

political debate. Through the 1970s growing unemployment, inner city

poverty, racism and continuing violence in Northern Ireland sparked

continuing controversies around the role of security and police intelligence

activities. Margaret Thatcher’s election in 1979 and her attempts at a neo-

liberal restructuring of the political economy aggravated these trends. The

debate was further intensified by regular spy scandals: the public unmasking

of Anthony Blunt as one of the ‘Cambridge Five’, the appalling personnel

practices in the Security Service exposed by the case of Michael Bettaney

who offered his services to the KGB, and the case of Geoffrey Prime who had

been selling secrets to the USSR from his position within Government

Communications Headquarters (GCHQ). Former Security Service officer,

Peter Wright published his autobiography12 which made a range of


allegations about illegal activities and the government’s attempts in 1986 to

prevent the book being published in the UK descended into a long-drawn-out

and ultimately unsuccessful farce.

Parliamentarians had naturally responded to this catalogue of controversy:

in 1980 Robin Cook introduced a private member’s bill that would have

defined a more limited range of activities for the Security Service, required it

to obtain judicial (rather than ministerial) warrants for communications

interception and the Director General to make an annual report to

Parliament.13 Two years later, and in the context of criticisms of the failure

of intelligence to warn of the Argentinean invasion of the Falklands, senior

backbenchers of both main parties discussed setting up a new select

committee to oversee intelligence14 but they foundered on implacable

opposition from the government. In 1984 MPs managed to get a small foot in

the door when the Commons Home Affairs Select Committee did investi-

gate police special branches. These were first set up in London in the late

nineteenth century to investigate Irish Fenian bombings and by 1978 there

were 1250 officers in England and Wales involved in political surveillance

and the investigation of political violence, firearms, immigration and election

offences. They enjoyed considerable operational autonomy from the police

forces of which they were part mainly because they were so closely

connected to the Security Service. MI5 officers not only received information

from branch officers but relied on them also to carry out arrests since

the Service had no police powers.15 The only immediate result of the

committee’s work was that the government published for the first time the

official guidelines on the mandate and rules for special branches.16

While parliamentary pressure for oversight built steadily through the

1980s, the main factor that finally tipped the views of ministers and officials

was the European Court of Human Rights (ECHR). In 1984 the Court

declared that UK procedures by which ministers issued warrants for

telephone tapping were contrary to the European Convention of Human

Rights because there was no statute authorizing the process and no

mechanism by which citizens might complain about any abuse of their

rights.17 As a result, the government introduced what became the Interception

of Communications Act (IOCA) 1985 to legalize tapping and establish a

commissioner to oversee the legality of ministerial decisions and a tribunal to

investigate public complaints. It was not long before officials could foresee

further setbacks at the ECHR – in a Swedish case involving security files and

vetting the ECHR established in 1987 that independent remedies must be

provided for alleged breaches of privacy.18 At this time two employees of the

National Council for Civil Liberties19 were challenging the legality of their

surveillance that had been revealed in 1985 by a former Security Service

officer. One did not have to be a great legal expert to predict that the lack of a


statutory framework either authorizing Security Service activities or

providing a mechanism for citizen remedy would again lead to UK practices

falling foul of the European Convention. Accordingly, officials set about

preparing what became the Security Service Act in 1989. This established a

statutory framework for the Security Service to continue with its operations in

defence of national security and established a structure of commissioner and

tribunal copied from IOCA for the review of warrants granted by ministers for

‘interference with property’.20 This structure was minimalist in that it fulfilled

the basic procedural requirements of the ECHR but it was not a serious attempt

to address the broader political demands for accountability of intelligence

agencies. There was still no place for parliamentary oversight – this would

have to wait at least until Margaret Thatcher was out of power.

John Major succeeded her in 1990 and, shortly after his government was re-

elected in 1992, a cabinet sub-committee was set up to plan for the estab-

lishment of a parliamentary committee along with promised legislation to

place MI6 and GCHQ on a similar statutory footing to the Security Service.21

Any remaining hesitation among ministers as to the wisdom of this move was

promptly blown away by the Matrix Churchill scandal. Little noticed at the

time, three businessmen went on trial in October 1992 at the Old Bailey for

selling arms-related equipment to Iraq during the 1980s when the public

position of the UK government was to prohibit such sales as it maintained

neutrality regarding the Iraq–Iran war. In fact the government had, since the

late 1980s, been secretly favouring Iraq and knew not only that the equipment

was going to Iraq but that the main defendant had been supplying information

to MI6 about Iraq’s weapons programme! In order to keep all this secret a

succession of ministers signed public interest immunity certificates which

would have prevented the disclosure of documents crucial to the defence had

they not been overruled by the judge. A succession of ministers, officials and

intelligence officials had testified at the trial before a minister gave evidence

contradicting that which he had initially given to the prosecuting body – HM

Customs and Excise22 – and the entire trial collapsed. The revelations of

government knowledge and attempted concealment gave rise to such a storm

of criticism that Major felt he had no alternative but to appoint a judicial

inquiry under Lord Justice Scott.23 This worked for three years and produced

an extraordinary account of duplicity at the heart of government, including a

less than flattering picture of the intelligence agencies.24 One of the intended

effects of setting up the inquiry was that ministers could refuse to answer

questions on the affair while the inquiry sat; by the time Scott published his

five-volume report in February 1996, the Intelligence Services Act (ISA) 1994

was law and the new ISC up and running.25

But what was established was a ‘committee of parliamentarians’, not a

‘parliamentary committee’. The ISC is a ‘statutory’ committee whose


membership is determined by the Prime Minister after consultation with the

Leader of the Opposition. It has nine members and, so far, eight have been

from the Commons and one from the Lords. The ISC reports to the Prime

Minister, who, after the removal of material prejudicial to the agencies’

activities, lays the report before Parliament.26 In this way the structure seeks

to maintain the idea that the intelligence agencies are different from other

government departments – their heads, rather than ministers are responsible

for what the agencies do.27 Although designedly not a select committee, the

ISC mandate is expressed in similar terms to those of select committees: ‘to

examine the expenditure, administration and policy of the three services’.28

On the central issue of access to information the ISA lays down that the

minister is the ultimate gatekeeper. Agency heads may refuse to disclose

‘sensitive’ information to the ISC: that is, it concerns ‘sources and methods’

and relates to operations or ‘third party’ information that the donor does not

want disclosed.29 Of course, these are categories of information which all

intelligence agencies are very reluctant to share but, if the ISC is to be ‘within

the ring of secrecy’ then not permitting access to information regarding

operations seems to deny to members the very information they would need

to inform themselves about the efficiency and propriety of the agencies.

AN ACCOUNT OF THE ISC SINCE 2001

In quantitative terms the ISC has certainly steadily increased its output: in

1995–97 its four published reports averaged 29 paragraphs, in 1997–2001 the

six reports averaged 67 paragraphs and in 2001–05 the seven reports

averaged 110 (see Table 1). In 1998 the government started to publish their

response to ISC reports and annual parliamentary debates commenced. Space

does not permit a full evaluation of the first decade of the ISC; this discussion

concentrates on the period since 2001.

The committee’s first two ‘terms’ have been analysed systematically by

Marc Davies and Mark Phythian. Davies concluded that during 1995–97 the

committee developed as it gained familiarity with the area but remained

relatively deferential to the agencies and offered no substantive criticism.30

During 1997–2001 he finds it ‘immediately apparent that the ISC had grown

significantly in confidence and that it was no longer deferential to the

intelligence agencies. The committee offered stinging criticism of the

agencies on a number of issues, most notably in the Mitrokhin report.’31

Thus, Davies concludes:

Despite being initially cautious and reluctant to criticise, the

Committee had developed and shown itself willing to criticise both

the intelligence agencies and the government. The overall record of the


TABLE 1

INTELLIGENCE AND SECURITY COMMITTEE REPORTS AND GOVERNMENT

RESPONSES, 1995–JUNE 2006a

Cmnumber Title

Date ofpublication

No. ofparagraphs

2873 Interim May 1995 113065 Security Service Work Against Organised Crime December 1995 93198 Annual Report 1995 March 1996 41? ***b Spring 1996

(unpublished)?

? Agencies’ Work ‘in the Interests of the EconomicWell-being of the UK’

November 1996(unpublished)

?

3574 Annual Report 1996 February 1997 544073 Annual Report 1997–98 October 1998 724089 Government Response to Cm4073 October 1998 234309 Sierra Leone April 1999 174347 Government Response to Cm4309 May 1999 114532 Annual Report 1998–99 November 1999 904569 Government Response to Cm4532 January 2000 354764 Agencies’ Handling of the Information

Provided by Mr. MitrokhinJune 2000 79

4765 Government Response to Cm4764 June 2000 (19)4897 Annual Report 1999–2000 November 2000 1085013 Government Response to Cm4897 December 2000 285126 Interim Report 2000–01 March 2001 365225 Government Response to Cm5126 July 2001 (2�)5542 Annual Report 2001–02 June 2002 965543 Government Response to Cm5542 June 2002 325724 Inquiry into intelligence Assessments and Advice

prior to the Terrorist Bombings on Bali 12October 2002

December 2002 50

5765 Government Response to Cm5724 February 2003 175837 Annual Report 2002–03 June 2003 975838 Government Response to Cm5837 June 2003 195972 Iraq Weapons of Mass Destruction – Intelligence

and AssessmentsSeptember 2003 145

6118 Government Response to Cm5972 February 2004 266240 Annual Report 2003–04 June 2004 1546241 Government Response to Cm6240 July 2004 note c6469 Handling of Detainees by UK Intelligence

Personnel in Afghanistan, Guantanamo Bayand Iraq

March 2005 131

6510 Annual Report 2004–05 April 2005 946511 Government Response to Cm6469 April 2005 note c6515 Government Response to Cm6510 April 2005 note c6785 London Terrorist Attacks on 7 July 2005 May 2006 1466786 Government Response to Cm6785 May 2006 note c

Notes:aISC reports and government responses are available at 5http://www.cabinetoffice.gov.uk/intelligence4.

b***is the device by which ISC reports indicate redacted material. In this case, the very subject ofthe report remains classified.

csince July 2004 government responses have been structured by specific replies to each ISCrecommendation.


Committee suggests that despite a slow start, it eventually gathered

pace and became increasingly credible as an oversight body.32

Similarly, Phythian concludes that, by 2001, the ISC had gained a significant

degree of trust from the agencies, had probed repeatedly to secure access to

information and had been critical of both government and agencies.33

In the 2001–05 term the context within which the ISC operated shifted

rapidly, first because of 9/11 and then the intelligence controversies around the

invasion of Iraq. Even though the 9/11 attacks were not on the UK, by

comparison with the extensive congressional inquiries in the US that in the UK

was minuscule. The 2001–02 Annual Report34 identified some resource

pressures in the Security Service (MI5), Secret Intelligence Service (MI6) and

Defence Intelligence Staff (DIS) (para.61), referred to a Joint Intelligence

Committee (JIC) July 2001 assessment that Al Qaeda attacks were in the final

planning stages but that timings, targets and methods were unknown (para.65);

noted the re-deployment of staff post-9/11 (paras.67–9) and the increased

Security Service resources in collection and dissemination (para.72) but,

significantly, said nothing about analytical deficiencies. Finally, it noted the

lack of linguists (para.77).

The three ISC reports other than Annual Reports during this period

concerned the Bali bombings in October 2002, the assessments regarding

Iraqi WMD, published in September 2003 and the treatment of detainees by

intelligence personnel in Afghanistan, Guantanamo Bay and Iraq, published

in March 2005. Each of them contains criticisms but they are very limited and

hardly challenge the government’s own agendas for improving intelligence

performance. Regarding Bali, the Foreign Office took advantage of the

coincident arrival of the ISC in Canberra to ask them to investigate. The ISC

concluded that, on the available intelligence, there was no action that could

have been taken to prevent the attacks but, in the light of incidents earlier in

the year in Indonesia, criticized the Security Service for a ‘serious

misjudgement’ in not raising the threat level from SIGNIFICANT to HIGH.

More generally they suggested that the threat assessment system needed

another level between SIGNIFICANT and HIGH,35 though it is very unclear

why this would make much difference to the behaviour of those reading the

assessments which, as we shall see below, turned out to be the case. In

February 2003 the government’s response included the announcement that

the multi-agency Counter-Terrorist Analysis Centre established after 9/11

was to be expanded into a Joint Terrorism Analysis Centre (JTAC) located in

Thames House under the Security Service Director General.36 The timescale

here and the lack of any ISC reference to a JTAC suggests a degree of

orchestration to legitimate changes already in train – the Security Service was

proud of the innovation of JTAC yet did not accept the ISC criticism of its

threat assessments.37


After the invasion of Iraq in March 2003 and the rapid toppling of the

regime, concern grew rapidly at the failure to uncover the alleged stocks of

WMD that had been the official rationalization for the invasion under UN

Security Council 1441. In the UK the controversy grew throughout May and

then erupted into the war between Downing Street and the BBC over Andrew

Gilligan’s 29 May broadcast alleging that the government had included the

claim that WMD could be ready within 45 minutes in its pre-war dossier

knowing it to be probably wrong (see further below). Within a few days, the

Commons Foreign Affairs Select Committee (FAC) had announced that it

would examine whether the government had ‘presented accurate and

complete information to Parliament in the period leading up to military

action in Iraq, particularly in respect of weapons of mass destruction’.38

One problem facing the FAC was, as with other Commons select

committees, it could gain access only to those people and papers that the

government allowed and, although it did interview the Foreign Secretary in

closed session, it was denied access to agency heads or the Chair of the JIC.

Its report, completed and published in not much more than a month,

concluded that ministers did not mislead Parliament (para.188) but voiced a

number of criticisms of the presentation of the case for war including: the

certainty of the government’s assertion that Iraq had sought uranium from

Niger (para.60); that the 45 minutes claim did not warrant the prominence

given to it in the September dossier (para.70); that the language used in the

dossier was more assertive than traditionally used in intelligence documents

(para.100) and that it was wholly unacceptable for the government to have

plagiarized work for the ‘dodgy dossier’39 that was published in February

2003 (para.140).

As the FAC started work, the Prime Minister noted that the ISC had

already commenced an investigation of the pre-war intelligence. The

committee had flagged the issue when it transmitted its Annual Report for

2002–03 to the PM on 8 May, that is, before the BBC broadcast, and said that

it intended to examine in more detail the intelligence and assessments used in

the lead-up to the invasion.40 This enabled to PM to sideline the inquiry

established by the FAC: the PM legitimized his refusal to cooperate with the

FAC inquiry by agreeing, just a few days after Gilligan’s broadcast, that the

ISC would have access to all the JIC assessments.41 The Chair, Ann Taylor,

wrote to the JIC Chair, John Scarlett, the same day to request the JIC

assessments back to August 1990.42

Accordingly the ISC sought ‘to examine whether the available intelligence,

which informed the decision to invade Iraq, was adequate and properly

assessed and whether it was accurately reflected in Government publica-

tions’.43 It reported that, based on the intelligence it had seen, ‘there was

convincing intelligence that Iraq had active chemical, biological and nuclear


programmes and the capability to produce chemical and biological

weapons’,44 but also noted that the JIC assessment of September 9 2002

‘did not highlight in the key judgements the uncertainties and gaps in the

UK’s knowledge about the Iraqi biological and chemical weapons’.45 In its

response to this point the government drew what might be described as a fine

distinction: the ‘key judgements’ section of a JIC assessment is to highlight

the judgements to be drawn from the assessment, it ‘is not intended to be a

summary of the main facts of the paper’.46 With respect to the 24 September

dossier, ISC said that it was ‘founded on the assessments then available’ and

had not been ‘‘‘sexed up’’ by Alistair Campbell or anyone else’. It concluded

that the JIC had not been subjected to political pressures and that its

independence and impartiality had not been compromised.47

ISC criticized the removal from the PM’s Foreword of the sentence

regarding nuclear attack on London48 and rebuked the government over the

presentation of the 45 minutes claim in the dossier:

The dossier was for public consumption and not for experienced

readers of intelligence material. . . . The fact that it was assessed to refer

to battlefield chemical and biological munitions and their movement on

the battlefield, not to any other form of chemical or biological attack,

should have been highlighted in the dossier. This was unhelpful to an

understanding of the issue.49

Even though this was an extraordinary understatement,50 in its response the

government took no responsibility for the silences in the dossier. It was

content that the ISC recognized that the dossier did not say that Iraq posed a

‘current and imminent’ threat to the UK mainland51 but made no response to

the criticism of the exclusion of the UK attack caveat in the Foreword (see

above). Similarly, regarding the ISC criticism that the 45 minute claim was

‘unhelpful’, the government merely noted that the dossier did not say that

Iraq could deliver chemical or biological weapons by ballistic missiles within

45 minutes’.52 No, it did not, but it was precisely this failure to make clear

just what the assessments were that amounted to serious misrepresentation of

the nature of the threat from Iraq.

There is one footnote to this issue that raises questions as to who is

overseeing what and in whose interests. In July 2003 SIS withdrew the

intelligence relating to the accelerated production of biological and chemical

agents that had been crucially withheld from DIS experts and was seen as

reinforcing the 45 minute claim shortly before the publication of the

September dossier.53 Sir Richard Dearlove, C, told the ISC of this when he

gave evidence to their inquiry into Iraqi WMD the same month. But when, on

9 September, the ISC sent its WMD Report to the PM, no mention was made


of this very significant fact and, ISC reported subsequently, ‘the PM was

informed only when the Butler Review was published in July 2004’.54

When Lord Owen raised this in the Lords, a junior Foreign Office minister

said that C had given this information to the ISC on condition that it did not

include it in its report because it involved sensitive operational matters.55 But

that provision was to protect information from damaging parliamentary or

public disclosure, not to prevent it going to the PM with his overriding

responsibility for national security. What to make of this? Perhaps it was a

case of nobody before Butler daring to tell the Emperor he had no clothes so

that Blair would be in a state of blissful ignorance when giving evidence to

the Hutton inquiry – a case of ‘plausible deniability’. Alternatively, C’s

‘sensitive’ information would have had to be excluded from the published

version of ISC’s written report, which would have left intriguing asterisks.

So, perhaps the ISC Chair told the PM privately in July 2003 or the ISC

simply assumed, wrongly, that C had told the PM. In any event the ISC

recommended that ministers be ‘informed forthwith of any withdrawal or

amendment by the issuing Agency of an intelligence report upon which they

have been briefed’.56

Read in the context of the steady spread of democratic oversight of

intelligence in the last 30 years, one thing is very striking about all ISC

reports published before 2005 – that is, the complete absence of any explicit

reference to human rights. While the ISA 1994 gives the committee no

explicit human rights mandate, the application of the Human Rights Act 1998

to ‘public authorities’57 and the specific dangers posed by intelligence

policies and practices certainly provides it implicitly. In 2005, however, the

ISC reported on an issue at the heart of the ‘global war on terror’: the

treatment of those detained in Afghanistan, Guantanamo Bay and Iraq. As

with the question of JIC WMD assessments, the ISC does appear to have

been ahead of the game on this issue since it says that it ‘raised the matter of

detainees’ with the PM in June 2003 and wrote to him about the involvement

of intelligence personnel in interviews in January 2004, that is, two months

before the controversies broke with the publication of pictures of abuses at

Abu Ghraib prison in Baghdad.58 Paying careful attention to its own

boundaries, the ISC investigated any involvement in or witnessing of abuse

by intelligence personnel, the adequacy of training as to what to do if it was

witnessed and when ministers were informed of any concerns. Their report

rehearses the relevant conventions on treatment of prisoners, noting that the

US does not regard those detained in Afghanistan as covered by them.59 ISC

also notes the post-1972 ban on the deployment of the ‘five techniques’60 of

interrogation used during internment in Northern Ireland. The substance of

the report is taken up with some cases in which intelligence personnel did

report their concerns at the treatment of detainees by US personnel, finds that


these were relatively few (less than 15 out of over 2000 interviews

witnessed), criticizes the lack of training of staff in Convention matters

before they were deployed to Afghanistan, Guantanamo and Iraq and notes

that when concerns were expressed to US authorities these were inadequately

followed up.

Yet ISC demonstrated its keen awareness of the political realities of the

issue: they noted the ‘very difficult and unusual operating conditions’61 and

the junior status of UK personnel in the ‘coalition of the willing’:

The UK intelligence community has a duty to obtain intelligence for

the purpose of protecting the UK from terrorist threats and the Agencies

saw access to the detainees as a source of such intelligence. The

Agencies told us that this access and the additional intelligence offered

by the US authorities were provided on a privileged basis, which could

have been withdrawn.62

In places, the report really does not provide adequate oversight; certainly the

actions of UK soldiers lies within the remit of the Defence Select Committee

and the ISC notes that a number were court-martialled but it would have been

appropriate for the committee to explore whether soldiers ‘prepared’

detainees for interrogation as US personnel did.63 The ISC notes the

widespread concern about the use of information obtained under torture and

the pragmatic and principled arguments but ‘do[es] not attempt to answer

these difficult questions’. Instead it quotes at some length the Foreign

Secretary’s utilitarian justification for using such information if necessary.64

We might have expected a parliamentary oversight committee to discuss this

more critically;65 after all, ministers can speak for themselves.

EVALUATION OF THE ISC

The six criteria identified above provide a useful structure for some

preliminary assessments. As the Major government deliberated on how to

initiate parliamentary oversight in 1992, the Commons Home Affairs Select

Committee recommended that, since the departmental select committee

system had proved successful, it should assume responsibility for overseeing

MI5. It specifically rejected the idea of a select committee covering all the

intelligence agencies.66 When the Home Affairs Committee re-visited the

issue after five years’ experience of the ISC, it acknowledged that the ISC had

‘been a significant step forward’67 but maintained that the ISC should be re-

constituted as a select committee in order that scrutiny ‘be more clearly seen

to be independent of the executive’.68 However, the committee now

acknowledged the sense of one committee overseeing across the intelligence


agencies and recommended accordingly.69 The issue of whether intelligence

oversight should be conducted by a select rather than statutory committee

continues, but on all sides there is a recognition that the difference has been

less in practice than was envisaged in the early 1990s. Indeed, it can be

argued that, in practice, the ISC has been more effective than any select

committee could have been.70 There can be no doubt that the agencies are

more comfortable with a committee reporting to the PM rather than directly

to Parliament and, until a government itself decides to re-constitute the ISC

as a select committee, the transition is unlikely to be made.

The ISC has interpreted its mandate flexibly and probably not always to the

liking of the agencies. For example, the legislation mandated review of the

three main agencies, MI5, MI6 and GCHQ, but ISC quickly extended this to

include both the DIS and the National Criminal Intelligence Service (NCIS).

It was noted earlier that ‘operational matters’ were those deemed ‘sensitive’,

information about which could be denied to the ISC. But this does not mean

that it always has been: Stephen Lander, former Director General of the

Security Service said:

concern about the ISC’s apparent lack of oversight of our operations is

based on an illusion. If I had a pound for every time the Committee has

asked me about operational matters, I would be a very rich man. And if

you look down the reports they have written there are quite a lot of

what sound to me like operational issues: the Kosovo campaign, excise

evasion, Mitrokhin, proliferation of weapons of mass destruction,

events in Sierra Leone, and continuing risks from Irish terrorism. Those

sound to me like operational not policy questions.71

Distinguishing ‘policy’ from ‘operations’ tends to be easier in theory than

practice and the actual access to operational matters that oversight bodies

achieve is more likely to come about through relationships of trust than any

formal mandate. Still, the point remains that oversight without any access to

operational issues would be weak indeed.72

Born and Leigh argue that ‘best practice’ is that parliament ‘owns’

oversight and is responsible for appointing the membership.73 This is not the

case with the ISC because it is a statutory committee appointed by the PM.

However, the practical rather than symbolic importance of this can be

exaggerated. The PM must consult with the Leader of the Opposition and the

party whips will be involved in selecting members and choosing chairpersons

just as they are with select committees.74 Arguably, in parliamentary systems

the legitimacy of oversight can be increased if the Chair is from an opposition

party75 but this has not been normal practice with the ISC. Tom King, a

former Defence and Northern Ireland minister was appointed as the first


Chair in 1994 and then re-appointed by Labour after the 1997 election. This

was in acknowledgement of the lack of ministerial-cum-intelligence

experience among Labour MPs after 18 years out of office. After the 2001

and 2005 elections, Blair appointed former Labour ministers to chair the

ISC – respectively Ann Taylor and Paul Murphy. It would be unfortunate if

the committee were to become a pasture for unwanted ministers.

A committee might have an extensive mandate but lack the resources to

carry it out. On the face of it the ISC’s resources are meagre: just a small

administrative staff of five civil servants. Therefore its inquiries are based on

written submissions from the agencies, briefings from heads and officials at

its weekly meetings plus visits to the agencies and meetings there with

additional staff. In its Annual Report for 1997–98 the committee suggested it

needed a means of verifying what it was told in order to increase public

confidence in its findings.76 The government acceded to this request as a

compromise so that the committee stopped short of calling for the creation of

an independent investigator while the government guaranteed that the

agencies would cooperate with the investigator.77 John Morrison, a former

deputy Chief of Defence Intelligence was appointed to the role but only on a

part-time basis. His time with the ISC came to an abrupt halt in 2004 when he

was sacked, having appeared on a TV programme about the Iraq controversy

in which he described the ‘collective raspberry’ that ran around Whitehall at

the government’s claim in the September 2002 dossier that Iraqi WMD posed

a ‘current and serious’ threat.78 He appeared as a former deputy CDI, not as

an employee of the ISC, but the committee was not prepared to back him

when the agencies said they had lost faith in him.79 Presumably the ISC was

not best pleased that his comments were at odds with their own report.

Subsequently the committee has said it has no plans to replace him.

Although it is not of the ISC’s making – indeed, it has tried to reduce it –

there is a problem in the UK with what might be called the ‘compartmenta-

lization’ of oversight. Since IOCA in 1985, further statutes and administrative

measures have contributed piecemeal to a rambling oversight architecture –

like Topsy it ‘just growed’. The Regulation of Investigatory Powers Act

(RIPA) 2000 provided some rationalization by bringing together different

commissioners and tribunals but there are still important barriers between

different oversight functions: judicial commissioners review after the event

the issue of warrants by ministers for interception of communications and

other ‘interferences with property’ such as break-ins and theft of records.

Public complaints go to an Investigatory Powers Tribunal (IPT) that

investigates the complaint, unless it relates to a warrant in which case it is

passed to the Commissioner. The main outlet for aggrieved agency

employees is a Staff Counsellor, first appointed in 1988 after the Bettaney

case. Given the scarcity of resources applied to oversight, it would be in the


interests of all if they were to combine their efforts but the government has

refused to make available to the ISC the confidential annexes to the

Commissioner’s reports on the grounds that the information therein is

‘sensitive’.80 The President of the IPT even refused to meet with the ISC to

discuss his role on the grounds of needing to retain the separation of powers

between judiciary and legislature.81 This is a defect in the overall system: it is

necessary for there to be a clear division of labour between oversight

agencies but they must share information in order better to inform themselves

and thus collectively to punch above their weight.

Whereas members of the agencies are under a legal duty to give

information to the commissioners and tribunals when they investigate, the

minister is the ‘gatekeeper’ of information that may be made available to the

ISC. I suggested in 1996 that if the new ISC were to challenge government

‘information control’ as it attempted real evaluations of security intelligence

then battles over access to information could be predicted.82 This has only

partly been borne out: Tom King, the first Chair, said in 2001 just before he

retired: ‘Although the current legislation remains in place and there are

powers to withhold information from us in certain circumstances, there have

been remarkably few occasions when that has been a problem.’83 Stephen

Lander acknowledged that he gave the ISC more information ‘as confidence

has grown’,84 reflecting the general approach of the ISC to seek to build trust

which, given the ability of agencies to deny access to information, makes

much sense. In some cases the ISC has been given access to information that

would not have been envisaged originally, extending beyond anything made

available to select committees. In the case of the inquiry into the security

intelligence agencies handling of the Mitrokhin archives and associated

issues of the non-prosecution of those who had been Soviet agents, the ISC

agreed to conduct it only on condition that it had access to all material

including advice and correspondence with ministers.85

The ISC’s rules for reporting clearly fall short of what Born and Leigh

identify as best practice: it does not have the final word on what, if anything

should be removed from its reports and the timing of their release to

Parliament is in the hands of the PM. Delays in tabling their reports about

which ISC complained86 have been met and government responses have

become fuller. If parliamentary committees are to be inside the ‘ring of

secrecy’ in order to conduct oversight at all, there is an inevitable problem

that they cannot report everything to Parliament and public. So, the issue

becomes who is to make the final determination as to what can be published.

There is no evidence that there have been major disagreements between ISC

and PM over exclusions but there is no reason why the ISC should not have

the final say. This could be particularly important in politically contentious

areas such as the government’s use of intelligence. In such cases it is vital


that the oversight committee is not just seen as a vehicle for protecting

governments.

Clearly the ISC has been at pains since its inception to reassure nervous

officials that it was not about to start throwing its weight around or to

grandstand for political purposes. All sides see that the committee’s approach

has been bipartisan, differences have been negotiated, only the Chair talks to

the media and there have been no leaks. But, in its care to avoid

sensationalism, the ISC might be criticized for resting too comfortably in

the warm embrace of the Whitehall village. In early days of the committee,

Ken Robertson noted that ‘The Report (Cm3065) is couched in the anodyne

language and style of a civil service briefing and is the very opposite of

sensationalist. Its audience was clearly the government and legislators and

not the media or general public.’87 The style of reports has not improved

over time. It may be understandable that the committee wishes to avoid

sensationalism but it must give serious thought to addressing a wider

audience. Inhabitants of the Westminster/Whitehall village are well versed in

reading between the lines of reports and noting what is not said as much as

what is, but many voters are not. The need to increase the accessibility of ISC

reports is now urgent – security fears increased a great deal after 9/11, not

just because of the intrinsic nature of the event but because of government’s

subsequent policies in the context of the ‘global war on terror’.

The intelligence fiasco over Iraq and clear government misuse of what

scant intelligence there was have given rise to unprecedented political and

public controversies around intelligence, subsequently further enhanced by

the failure to prevent the 7/7 bombings. As the central mechanism for

oversight of intelligence the ISC must pay much greater heed to the need for

public education in the realities of intelligence and, as a first step, its reports

must be written to ‘tell it like it is’. Its report into the pre-war intelligence on

Iraq was weak: ‘Its investigation had been limited, its findings dismissed by

government, and its credibility damaged.’88 The ISC expressed concern at the

extensive withdrawal by JIC of its pre-Iraq war judgements but drew no

overall conclusion and made no comment, seeming content to note that

Butler’s recommendations were being implemented.89

There is nothing in the report on 7/7 that would lead to any modification of

this evaluation. The main questions dealt with are whether the agencies could

have prevented the bombings and the operation of threat levels and alert

states that the ISC first visited after the Bali bombing in 2002. On the first, the

ISC concludes that MI5 curtailed several attempts to identify the person who

later transpired to be Mohamed Siddique Khan because they had inadequate

resources compared with the number of potential investigative leads.90 On

the second, the ISC concludes that it was ‘not unreasonable’ to reduce the

threat level in May 2005 but notes also that this action ‘had little or no


practical effect’ on the actions of security personnel.91 Since the ISC itself

had criticized the Security Service for not increasing the threat level prior to

Bali in 2002 and recommended increasing the number of levels, there is

clearly much confusion in the system and yet another government review is

underway. Following Butler’s lead, the ISC does make some important

remarks about the limits of counter-terrorist intelligence and, in particular,

the problem of providing assessments of what is not known.92 However,

given the lack of investigative resources of the ISC and their total reliance on

documentation and briefings from the agencies and police, this report is less

of an inquiry than an alternative official account of the lead-up to the

bombings. The government’s own narrative of the events93 was published

simultaneously and the ISC makes clear that, given its focus on the

intelligence community, it does not seek to answer broader questions about

the efficacy of the government’s counter-terrorist strategy including the

relevance of foreign policy.94 Certainly, there is nothing in the ISC report that

will satisfy the calls for a public enquiry.

CONCLUSION

Has the ISC has been incorporated by the intelligence community? Given that

developing some degree of trust with the agencies is an indispensable condi-

tion for effective oversight, this is always a danger. Apart from not seeking

confrontations with the agencies, the ISC has also been prepared to make

comments about their need for resources which can only have been helpful in

their Whitehall battle for funding.95 Further, on at least one occasion, the

agencies consulted the ISC in advance for its view of a course of action96 – in

part this may have had the effect of heading off subsequent criticism if the

matter had become public. On the other hand, there have been enough serious

criticisms of the agencies, for example, over their handling of issues related

to the Mitrokhin archive and threat assessment in advance of the Bali

bombings, to acquit the ISC of any general charge of incorporation by the

agencies.

It is reasonable to conclude that the ISC has probably exceeded the

expectations of some, including this author, in terms of its access to

information and success in establishing itself as a serious critic of the agencies.

Yet it might also be criticized for timidity because it sees itself more as part of

the Whitehall machine for the management of the security intelligence

community than as its overseer. To be sure, there is a fine line between these

concepts but ISC reports read more like those from management consultants

than parliamentary critics. This appears to bear out Robertson’s argument that

in the post-Cold War world of changing patterns of risks involved in

intelligence activities, for example, court appearances by intelligence


officials, the real role for the ISC ‘was to act as a public vehicle for expressing

the strongly held views of key players in Whitehall . . . The ISC becomes

another instrument to be used, dare one say manipulated, by those engaged in

Whitehall power struggles.’97 One strong piece of evidence supporting this

rather pessimistic conclusion is that, if we take the notion of oversight to

incorporate issues both of efficacy and propriety then we must include that the

ISC has concerned itself almost entirely with the former to the exclusion of

the latter. In a world in which intelligence issues have become even more

important to both foreign and domestic policy making and where there are

frequent assertions that rights must be sacrificed in the search for security, the

ISC must adopt a much more proactive and rights-oriented approach. There is

a danger that the ISC becomes a vehicle by which governments sideline more

critical reviews by other parliamentary bodies.

The new committee appointed after the 2005 election is chaired by former

Northern Ireland minister Paul Murphy; three of the other eight members had

served before, two of them, Liberal Democrat Alan Beith and Conservative

Michael Mates have been ever-present. Having experienced a very steep

learning curve in the wake of 7/7, it will be interesting to see whether the

committee re-visits the continuing controversy around intelligence in the

lead-up to the invasion of Iraq or whether it agrees with Tony Blair that it is

‘time to move on’.

In its special report on Iraqi WMD, the committee did not just examine the

adequacy of the available intelligence but also ‘whether it was accurately

reflected in Government publications’.98 Further evidence has now emerged

as to the extent to which the PM misled parliament and public in the pre-war

period. A number of documents have been leaked to journalist Michael Smith

in which it becomes clear that, six months before the publication of the

dossier relating to WMD, Blair had already promised Bush military support

for regime change. David Manning, Blair’s foreign policy adviser, met with

Condoleezza Rice and with the US National Security Council in March 2002

after which he briefed Blair on his upcoming visit to the US: ‘It is clear that

Bush is grateful for your support and has registered that you are getting flak. I

said that you would not budge in your support for regime change but you had

to manage a press, a parliament and a public opinion that was very different

from anything in the States.’99 Blair’s promise was reiterated when he met

Bush at Crawford, Texas in April100 and the note of a meeting of Blair’s inner

circle of ministerial and other advisers on 23 July shows that a range of

political, military and legal questions were discussed. The head of SIS

reported on his recent visit to Washington: ‘Military action was now seen as

inevitable. Bush wanted to remove Saddam, through military action, justified

by the conjunction of terrorism and WMD. But the intelligence and facts

were being fixed around the policy.’101


Furthermore, in the articles he wrote based on the memos, Michael Smith

pointed out the evidence that the US and UK engaged in steadily increasing

bombing of Iraq in the summer and autumn of 2002 – far beyond what would

have been required to enforce the ‘no-fly’ zones – as a means of trying to

provoke Saddam Hussein into retaliation that could itself be used as a

justification for the invasion.102 Therefore, in the light of this fresh evidence,

the ISC should now re-investigate the extent to which the UK intelligence

was ‘fixed around’ a policy decided by the PM in spring 2002 and the

subsequent misleading of Parliament and the public. In other words, was Iraq

more of a political than an intelligence failure and can the ISC demonstrate

genuine independence of the executive by a thorough examination of the

issue? The continuing ‘war on terror’ necessitates vigorous oversight of

security intelligence agencies as they operate in a context where it is too often

argued, wrongly, that they are more likely to get results if rights are ignored.

NOTES

Thanks for their helpful comments on the original draft of this article to John Morrison, anotherreader who would prefer to remain anonymous and the journal’s reviewers.

1 Since this article is about the UK it will normally use the term ‘parliamentary’; there is notthe space for a thorough discussion of the differences found in non-parliamentary systems.

2 H. Born and I. Leigh, Making Intelligence Accountable: Legal Standards and Best Practicefor Oversight of Intelligence Agencies (Oslo: Publishing House of the Norwegian Parliament2005) pp.77–9 provide an interesting comparison of arrangements in seven countries.

3 M. Caparini, ‘Challenges of Control and Oversight of Intelligence Services in a LiberalDemocracy’, Paper presented to Workshop on Democratic and Parliamentary Oversightof Intelligence Agencies (Geneva: DCAF October 2002) p.5, 5http://www.dcaf.ch4(accessed 1 June 2004).

4 Stephen Lander, while Director General of the UK Security Service, made this point in a2001 address: ‘The Oversight of Security and Intelligence’, reprinted in RUSI Journal (June2001) pp.30–4.

5 Aspects of this are discussed in P. Gill, ‘Securing the Globe: Intelligence and the Post-9/11shift from ‘‘Liddism’’ to ‘‘Drainism’’‘, Intelligence and National Security 19/3 (2004)pp.467–89.

6 Issues discussed in more detail by Born and Leigh (note 2) pp.85–90.7 E. Hill, Joint Inquiry Staff Statement, Part I, House Permanent Select Committee onIntelligence and Senate Select Committee on Intelligence, 18 September 2002, 5http://www.fas.org/irp/congress/2002_hr/091802hill.html4 (accessed 15 November 2002).

8 House Select Permanent Committee on Intelligence and Senate Select Committee onIntelligence, Report of the Joint Inquiry into Intelligence Community Activities Before andAfter the Terrorist Attacks of September 11, 2001, December 2002, declassified version, p.2.

9 United States Code, Title 50, section 413b; Intelligence Services Act 2001, s.30 (Australia);Intelligence Services Act 1994 Schedule 3 (UK); Born and Leigh (note 2) pp.91–3; P. Gill,‘Reasserting Control: Recent Changes in the Oversight of the UK Intelligence Community’,Intelligence and National Security 11/2 (1996) pp.313–31.

10 P. Gill, Policing Politics (London: Cass 1994) pp.260–62; I. Leigh and L. Lustgarten, ‘TheSecurity Commission: Constitutional Achievement or Curiosity?’, Public Law (Summer1991) pp.215–32.


11 H. Wilson, The Governance of Britain (London: Weidenfeld & Nicolson 1976).12 P. Wright, Spycatcher: The Candid Autobiography of a Senior Intelligence Officer (New

York: Viking Penguin 1987).13 The Guardian, 29 February 1980. Private members’ bills have no chance of becoming law

unless they have government support. Robin Cook would later become Labour ForeignSecretary under Blair and resigned from the government in 2003 because of his oppositionto the invasion of Iraq.

14 The Guardian, 10 November 1982.15 R. Allason, The Branch: A History of the Metropolitan Police Special Branch 1883–1983

(London: Secker & Warburg 1983), and T. Bunyan, The History and Practice of thePolitical Police in Britain (London: Quartet Books 1977), provide, respectively, orthodoxand critical reviews of special branches.

16 Subsequently up-dated in July 1994: Guidelines on Special Branch Work in Great Britain(London: Home Office). In the wake of the July 2005 London bombings it was announcedthat the Metropolitan Police SB was to be merged with the Antiterrorist Squad to create anew Counter Terrorism Command. The Guardian, 9 September 2005.

17 Malone v. UK (1984) 7 EHRR 14. For detailed consideration of the implications of the casesee L. Lustgarten and I. Leigh, In From the Cold: National Security and ParliamentaryDemocracy (Oxford: Clarendon Press 1994) pp.68–72. See also P. Fitzgerald andM. Leopold, Stranger on the Line: The Secret History of Telephone Tapping (London:Bodley Head 1987). More generally, I. Cameron, National Security and the EuropeanConvention on Human Rights (Sweden: Lustu Forlag 2000).

18 Leander v. Sweden (1987) 9 EHRR 433. On Swedish procedures see I. Cameron andD. Tollborg, ‘Internal Security in Sweden’ in J.-P. Brodeur et al. (eds.) Democracy, Law andSecurity: Internal Security Services in Contemporary Europe (Aldershot: Ashgate 2003)pp.173–209.

19 Now called Liberty and the UK equivalent of the ACLU.20 Gill, ‘Reasserting’ (note 9) p.321.21 The Guardian, 24 June 1992.22 As an independent prosecuting authority Customs conducted the prosecution in the belief

that the defendants had breached export control regulations but totally unaware that theintelligence agencies and relevant ministers connived in the breach.

23 D. Leigh with R. Norton-Taylor, Betrayed: The Real Story of the Matrix Churchill Trial(London: Bloomsbury 1993); M. Phythian, Arming Iraq (Boston, MA: NortheasternUniversity Press 1996).

24 Lord Scott, Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq andRelated Prosecutions, HC115 (London: The Stationery Office 1995–96); R. Norton-Taylorwith M. Lloyd, Truth is a Difficult Concept: Inside the Scott Inquiry (London: Fourth Estate1995); R. Norton-Taylor et al., Knee Deep in Dishonour: The Scott Report and its Aftermath(London: Victor Gollancz 1996).

25 For an alternative survey of the ISA see Lustgarten and Leigh (note 17) pp.441–55, 511–15.26 Intelligence Services Act 1994, s.10.27 I. Leigh, ‘Accountability of Security and Intelligence in the UK’ in H. Born et al. (eds.)

Who’s Watching the Spies: Maintaining Accountability over the World’s Secret Agencies(Washington DC: Potomac Inc. 2005) pp.79–98, especially 83–6.

28 ISA 1994, s.10(1). The services are MI5, MI6 and GCHQ – the UK SIGINT agency.29 ISA 1994 Schedule 3.30 M. Davies, ‘Guarding the Guardians’, unpublished PhD thesis, University of Wales at

Aberystwyth 2002, pp.117–18.31 Ibid. p.185.32 Ibid. p.24633 M. Phythian, ‘The British Experience with Intelligence Accountability’ in L. Johnson (ed.)

Strategic Intelligence (Westport, CT: Praeger 2007).34 ISC, Annual Report 2001–2002, Cm 5542, June 2002.35 ISC, Inquiry into Intelligence Assessments and Advice prior to the Terrorist Bombings on

Bali 12 October 2002, Cm5724, December 2002.


36 Prime Minister, Government Response to the Inquiry into Intelligence Assessments andAdvice prior to the Terrorist Bombings on Bali 12 October 2002, Cm5765, February 2003,para.11.

37 Personal communication to author.38 Foreign Affairs Select Committee, The Decision to go to War in Iraq, 9th Report of

Session 2002–03, HC813-I, 2003, para.4, 5http://www.parliament.uk/commons/selcom78/fachome.htm4 (accessed 10 August 2003).

39 This had been prepared in Downing Street and used some intelligence material but was notshared with the agencies. Most of the dossier was plagiarized from I. al-Marashi, ‘Iraq’sSecurity and Intelligence Network’, Middle East Review of International Affairs 6/3 (2002).

40 ISC, Annual Report 2002–03, Cm5837, June 2003, para.83.41 It appears that ministers used a similar ploy as the Foreign Affairs Committee carried out an

investigation of UK complicity in ‘extraordinary rendition’ in 2006. Norton- R. Taylor and I.Cobain, ‘MPs Recall Straw as Air Traffic Controllers Confirm 2000 CIA Flights’, TheGuardian, 23 February 2006.

42 ISC, Iraqi Weapons of Mass Destruction – Intelligence and Assessments, Cm5972,September 2003, para.12.

43 Ibid. para.11.44 Ibid. para.66.45 Ibid. para.67.46 Prime Minister, Government Response to the ISC Report on Iraqi WMD, Cm6118, February

2004, para.7.47 ISC, Iraqi Weapons (note 42) paras. 107–8.48 Ibid. para.83.49 Ibid. para.86 (emphasis added).50 This point is discussed in more detail in P. Gill, ‘The Politicisation of Intelligence: Lessons

from the Invasion of Iraq’ in Born et al. (eds.)Who’s Watching the Spies (note 27) pp.12–33.51 Prime Minister, Government Response (note 46) para.14, but PM’s Foreword described it as

‘current and serious’ (HMG, Iraq’s Weapons of Mass Destruction: The Assessment of theBritish Government, 24 September 2002, p.3).

52 Prime Minister, Government Response, note 46, para.15.53 Lord Butler, Review of Intelligence on Weapons of Mass Destruction, HC898 (London: The

Stationery Office 14 July 2004) paras.566–78, 5http://www.butlerreview.org.uk/report4(accessed 15 July 2004).

54 ISC, Annual Report, 2004–05, April 2005, Cm6510, para.61.55 House of Lords Debates, July 20, 2004, column 98.56 ISC, Annual Report, 2004–05, note 54, 2005, para.62.57 Specifically, s.6.58 ISC, Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay

and Iraq, Cm 6469, March 2005, paras.3–4.59 ISC, Handling (note 58) para.9.60 Hooding, wall standing, sleep deprivation, food deprivation and white noise.61 ISC, Handling (note 58) para.111.62 Ibid. para.112.63 A.M. Taguba, Article 15–6 Investigation of the 800th Military Police Brigade, March 2004,

Part One Findings of Fact, para.10, reprinted in K. Greenberg and J. Dratel, The TorturePapers: The Road to Abu Ghraib (Cambridge: Cambridge University Press 2005) pp.405–57.

64 ISC, Handling (note 58) para.33.65 Indeed, the parliamentary Joint Committee on Human Rights requested more energetic ISC

work on this issue: The UN Convention Against Torture (UNCAT), 19th report of Session2005–06, HL 185-I, HC 701-I (London: The Stationery Office 26 May 2006), 5http://www.official-publications.gov.uk4 (accessed 5 June 2006).

66 Home Affairs Committee, Accountability of the Security Service, First Report, Session1992–93, HC265, December 1992, paras.25–31.

67 Home Affairs Committee, Accountability of the Security Service, Third Report, Session1998–99, July 1999, para.14.


68 Ibid. para.41.69 Ibid. para.47.70 R. Aldrich, ‘Whitehall and the Iraq War: The UK’s Four Intelligence Inquiries’, Irish

Studies in International Affairs 16/1 (2005) pp.73–88 at 80. See also Phythian, ‘BritishExperience’ (note 33).

71 Lander, ‘Oversight’ (note 4).72 For example, Home Affairs Committee, Accountability (note 67) paras.15–17.73 Born and Leigh (note 2) p.87.74 Home Affairs Committee, Accountability (note 67) paras.22–4.75 Born and Leigh (note 2) p.85.76 ISC, Annual Report for 1997–98, Cm 4073, October 1998, paras.67–9.77 Leigh, ‘Accountability’ (note 27).78 Panorama, ‘A Failure of Intelligence’, broadcast on BBC1, 11 July 2004.79 John Morrison, personal communication, August 2005.80 Prime Minister, Government Response to ISC Annual Report for 2001–02, Cm 5543, June

2002, para.23.81 ISC, Annual Report for 2001–02, Cm5542, paras.29–31; Prime Minister, Government

Response (note 80) paras.22–4.82 Gill, ‘Reasserting Control’ (note 9) pp.325–8.83 T. King, ‘The Role of the Intelligence and Security Committee’, address at Royal United

Services Institute, 15 March 2001, reprinted in RUSI Journal (June 2001) pp.26–9.84 Lander, ‘Oversight’ (note 4) p.32.85 King, ‘The Role’ (note 83) p.27; ISC, Agencies’ Handling of the Information Provided by

Mr. Mitrokhin, Cm 4764, June 2000. Because the government wanted the Mitrokhin inquirycarried out, it was an exception to the general rule that ISC has refrained from investigatingpre-1994 controversies.

86 ISC, Annual Report for 1999–2000, Cm4897, November 2000, para.103.87 K.G. Robertson, ‘Recent Reform of Intelligence in the United Kingdom: Democratization or

Risk Management?’, Intelligence and National Security 13/2 (1998) p.151.88 Phythian, British Experience’ (note 33).89 ISC, Annual Report 2004–05 (note 54) paras.63–9.90 ISC, Report into the London Terrorist Attacks on 7 July 2005, Cm6785, May 2006,

paras.43–57.91 Ibid. paras.59–76.92 Ibid. paras.110–14, 129–30.93 Report of the Official Account of the Bombings in London on 7th July 2005, HC1087

(London: The Stationery Office May 2006), 5http://www.official-documents.co.uk/document/hc0506/hc10/1087/1087.pdf4 (accessed 15 May 2006).

94 ISC, Report (note 90) para.6.95 Leigh, ‘Accountability’ (note 27) p.90. The ISC identified this as part of its role in its first

Annual Report, Cm 3198, 1996, para.37.96 King, ‘The Role’ (note 83) p.28.97 Robertson, ‘Recent Reform’ (note 87) pp.154–5.98 ISC, Iraqi Weapons (note 42) para.1199 D. Manning to Prime Minister, ‘Your Trip to the US’, 14 March 2002, 5http://

www.downingstreetmemo.com/4 (accessed 23 August 2005).100 Cabinet Office Paper, ‘Iraq: Condition for Military Action’, 22 July 2002, 5http://

www.downingstreetmemo.com/4 (accessed 23 August 2005).101 M. Rycroft to D. Manning, ‘Iraq: Prime Minister’s Meeting, 23 July’, 23 July 2002,5http://

www.timesonline.co.uk/4 (accessed 4 July 2005).102 Sunday Times, 1 May 2005; ‘The War Before the War’, New Statesman, 2 June 2005; Los

Angeles Times, 23 June 2005. See also M. Danner, ‘The Secret Way to War’, New YorkReview of Books, 9 June 2005, pp.70–4.


‘Evaluating Intelligence Oversight Committees: the case of the UK Intelligence Security Committee and the “War on Terror”,’

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