Intelligence and Security Committee of Parliament

Lord Anderson of Ipswich Excerpts

Monday 9th September 2019 Grand Committee

[Lord Anderson of Ipswich (CB)]

My Lords, I am grateful to the noble Marquess, Lord Lothian, not only for this debate and the fine speech we have just heard but for his Global Strategy Forum, at which I have learned so much. The debate is timely—indeed, it is overdue, considering that, according to Andrew Defty, an authority on intelligence oversight to whose research I am indebted, the House of Commons last debated the ISC in 2011 and the House of Lords in 2010.

The security and intelligence agencies are only peripherally relevant to the everyday work of the Independent Reviewer of Terrorism Legislation, in which capacity I had the privilege of serving for six years until 2017. However, from 2014 I was commissioned by the Government to conduct a number of extra reviews focused on the work of the SIAs. These include A Question of Trust, a comprehensive report on investigatory powers, the Bulk Powers Review, which assessed the operational case for bulk collection of data, and a quality assurance of the steps proposed by MI5 and Counter Terrorism Policing to improve intelligence-handling procedures after the terrorist attacks of 2017. In each of those assignments I drew on the work of the ISC and found its members and staff unfailingly helpful. I declare a further interest as a miniature oversight mechanism myself—the Investigatory Powers Commissioner for Guernsey and Jersey.

There are many reasons why effective oversight of security and intelligence agencies is needed, even when those organisations have a strong internal compliance culture, which is what really counts. Informed scrutiny can identify systemic errors and ingrained misconceptions, challenge groupthink and bring different perspectives to complex issues. At the political level, it can help formulate and scrutinise policy in relation to such delicate issues as 5G suppliers and offensive cyber. By pressing for, and indeed providing, an appropriate degree of transparency—perhaps in this field it should be called “translucency”—active and forward-looking oversight can promote informed public discussion of such controversial matters as the ethics of intelligence, the exercise of bulk powers, the efficacy and intrusiveness of current and future data-driven intelligence techniques and the impact of technologies such as blockchain and quantum computing. Such discussions should be conducted dispassionately on the basis of trustworthy information and assessments provided in good time. That is far preferable, not least for the agencies themselves, to what we saw in the aftermath of the Snowden revelations: stolen or leaked information prompting an emotional debate and a drop-off in co-operation, causing potential harm to national security.

More generally, detailed and unsparing scrutiny can serve to reassure an often suspicious public that the money and intrusive powers devoted to intelligence work are properly used. I refer not only to the British public—who are rightly conscious of our fine intelligence heritage and warm as instinctively to the history of Bletchley Park and Operation Double Cross as they do to the fables of James Bond—but to the international public. If the United Kingdom is successfully to defend before national or supranational courts its drone strikes, data sharing or covert interception of international cables, or indeed to secure the data adequacy determination from the EU that is likely to be required after Brexit, assurances from government are not enough; independent and hard-hitting assessments are called for.

The positive findings of such independent assessments were helpful to the Government in the recent Big Brother Watch judgment of the European Court of Human Rights on bulk collection of data by intelligence agencies. The United Kingdom was rewarded also for the massive exercise in transparency, independent approval of warrants and beefed-up oversight that was the Investigatory Powers Act 2016, when the UN’s Special Rapporteur on Privacy, Professor Joe Cannataci, opined last year after a fact-finding visit that, after what he called,

“significant recent improvement to privacy laws and mechanisms”,

the UK,

“is now co-leading with that tiny minority of EU states which have made a successful effort to update their legislative and oversight framework dealing with surveillance”,

and,

“can now justifiably reclaim its leadership role in Europe as well as globally”—

not bad from a UN rapporteur.

Parliamentary oversight of intelligence, which is now standard in most democracies, brings another important benefit: it ensures that the parliamentarians who conduct it, on the basis of access to highly classified material, are sufficiently versed in intelligence matters to understand the implications of proposals that come before Parliament, and thus to speak with authority on the issues under debate. Nor, I need hardly say, would the interests of the agencies in any way be served were we to see the appointment of compliant rather than critical overseers.

I spoke once to a Green Party member of the G10 Commission, the German parliamentary body responsible for the scrutiny of surveillance warrants. I have no doubt that his initial reservations, and the way in which he had overcome them when shown the evidence, had been helpful in influencing his colleagues and in formulating his party’s policy along practical and realistic lines.

Noble Lords will be pleased to hear that there is no time for me to address the form, mandate, membership, powers or resources of the ISC. However, it seems to me that, since the reforms of 2013 for which its then chair Sir Malcolm Rifkind fought so hard, the ISC has compared favourably in a number of these respects with its parliamentary counterparts elsewhere in the Five Eyes.

The ISC’s recent work has been, to my mind, generally impressive, both in itself and as an accompaniment to the other principal UK mechanisms for intelligence oversight: courts and tribunals, including, in particular, the specialist Investigatory Powers Tribunal, and the super-regulator and approval mechanism for warrants—IPCO—which is now assisted by a high-powered technology advisory panel, which has been given an energetic and successful start by the outgoing Investigatory Powers Commissioner, the appellate judge Sir Adrian Fulford.

The ISC has looked at subjects with strong policy elements to which a parliamentary body is particularly well suited: for example, in its privacy and security report and its current inquiry into national security issues relating to China. It has also displayed a forensically detailed approach, on a smaller canvas, in its reports into the intelligence relating to the murder of Lee Rigby, lethal drone strikes in Syria and the changes required after the 2017 attacks in London and Manchester. Not everyone will agree that a parliamentary body is best equipped for such close work. After all, even the international benchmark in this area, the 6,700-page American enquiry into CIA torture, was adopted in 2012 only after a vote on which members of the Senate Intelligence Committee divided largely on party lines.

The ISC has avoided such partisanship, so far as I know, but in other respects its wings have been clipped. Though there is much of value in the two detainee treatment and rendition reports of last year, the Government’s refusal to give it access to those who had been on the ground at the time prevented the ISC, in its own words, conducting an authoritative inquiry or producing a credible report. If the ISC is to be hobbled by such a restrictive interpretation of its powers—and I hope it is not—the case is strengthened for entrusting future reports of such a forensic nature to a serving or former judge, whether within IPCO or outside it, with the ISC concentrating its efforts on the policy-heavy subjects for which its political expertise gives it a comparative advantage.

I shall end with a few suggestions which I hope the Minister might be prepared to consider. First, something must be done to improve the speed with which new members are appointed. In the three years 2015 to 2017, a period much marked by terrorism in the UK, France and elsewhere, the ISC was not constituted for almost 12 months. This is plainly unacceptable. Secondly, the ISC’s reports should be published without delay and responded to fully by the Government. Delays in publication are said to have become worse in recent years, and the publication of responses to annual reports has been patchy. Thirdly, as I have already indicated, the ISC needs to be able to see any relevant document and to interview any relevant witness in closed session. As the noble Marquess, Lord Lothian, said that must include access to relevant ministerial advice.

Fourthly, the resources of IPCO could be more often requested and made available to supplement those of the ISC staff. Those resources include the reports of the expert technology advisory panel, which I understand is proving a most useful addition to IPCO’s armoury, and the services of IPCO’s expert inspectors who, among other things, know the agencies from the inside. Fifthly, the ISC should do more to invite genuine dialogue with civil society groups, as IPCO has done, for example, in relation to its work on the Consolidated Guidance. They should, after all, be on the same side when it comes to holding the intelligence agencies to account. People active in international NGOs in this area have told me that this is more evident when dealing with parliamentary committees in some other western European states than it is here.

Sixthly, oversight mechanisms such as the ISC and IPCO need the involvement of lively minds from outside the worlds of security and the Civil Service. The refusal of security clearance to such persons should be capable of appeal to the Security Vetting Appeals Panel, as it is when clearance is refused to a civil servant or a contractor. That is the best way of avoiding the real or apparent conflict of interest inherent in a potential overseer being refused clearance by the bodies which they are applying to oversee.

Seventhly, any legal or practical gaps in oversight, whether by the ISC, IPCO or others, need to be identified and remedied, not as an ad hoc response to litigation, as is so often the case, but on a considered basis. Candidates for consideration are: intelligence work abroad that does not need authorisation under Section 7 of the Intelligence Services Act and is not caught, for example, by the Fulford principles; enhanced use of machine learning, artificial intelligence and behavioural analytics, particularly when data is managed, as is increasingly the case, outside the SIAs’ own systems; and the use of overt surveillance and insufficiently regulated techniques such as facial recognition, gait recognition and lip-reading technology. Many of those techniques are of course used not just by the SIAs but by the police and others: oversight, similarly, should not be exercised in silos, and the remit of the relevant bodies should reflect this—as indeed is the case with IPCO.

Finally, the Public Administration and Constitutional Affairs Committee of the House of Commons recently recommended that Parliament’s committees should be given access where possible to the most relevant information that has informed the Government’s decisions about foreign affairs, military action and intelligence. This will also need consideration.

I hope that it is no longer the case, as according to the Snowden documents it once was, that intelligence officials could present it as a “selling point” to the National Security Agency that “We have a light oversight regime compared to the US”. Good progress has been made in recent years, by legislative advances in 2013 and 2016 and by the enhanced professionalism of oversight work. Few of us welcome our auditors with unalloyed pleasure, and, given the vital importance of the work that our intelligence personnel do, scrutiny should be no more resource-intensive than necessary. But, in my judgment, the SIAs are sincere when they tell me that the continued acceptance of what they do by the public, both here and abroad, depends on active, thorough and forward-looking oversight. I commend the ISC and our other oversight mechanisms for their first-class work and look forward to hearing any immediate reaction that the Minister may have to my suggestions for improving them further.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank all noble Lords who have taken part in this debate, particularly my noble friend Lord Lothian for securing it. He and many noble Lords made the point that the committee has not had an opportunity to discuss this, and in my time as Home Office Minister, I have not had the opportunity to reply to the committee until now. I hope that, in the future, the committee requests more regular debates. I will certainly be happy to respond to them.

Before I proceed, I echo the comments of my noble friend Lord Lothian in praising the noble Lord, Lord Janvrin, and the work that he does, and the committee, which does the most incredible work. When I listened to some of the comments from the committee today, I felt quite humbled by the expertise we are so lucky to have in your Lordships’ House and the contributions that the committee has made. I also join noble Lords from the committee in thanking the right honourable Dominic Grieve QC for his leadership and direction of the work of the committee since 2015. Security and intelligence have featured heavily in public discourse over recent years, and it is to the credit of the chairman and the committee members that parliamentary oversight of the intelligence community has been so effectively maintained, even when the pace of events has been extraordinarily fast.

Noble Lords from the committee talked about its output since 2015 and managed to divvy up various contributions so that they were entirely different and focused on different aspects of the committee’s work. The committee has taken evidence on numerous occasions from Ministers and senior officials, conducted a number of inquiries and published several comprehensive reports on a variety of issues.

I shall take a moment to focus on some of the notable achievements of the committee. First, its report into the terrorist attacks in 2017, to which several members of the committee referred, was well researched with tangible recommendations that will help to improve the safety and security of our country. The Government’s official response to that report made clear that the police, the Security Service and the Home Office are all implementing improvements based on it.

Secondly, the committee’s reports into current and historic issues relating to detainees in the Afghanistan and Iraq conflicts were the result of several years of hard work by the committee and its staff. Those reports were extremely thorough and highlighted a number of important findings.

Thirdly, we must commend the committee’s efforts in looking into at how the intelligence community can become even more diverse and inclusive. It was interesting that a number of noble Lords made that point. Again, the report included useful recommendations that build on the significant work that the agencies have already done to make their organisations more diverse and inclusive places to work. The noble Lord, Lord Kennedy, rightly pointed out that inclusivity and diversity is not just a “nice to have”: it enhances the workforce at hand. I am very glad that the committee gave that issue equal standing with the other topics that it has examined.

Finally, the annual reports demonstrate the breadth of its remit and the wide-ranging nature of its oversight role. The conclusions and recommendations of those reports are always noted with interest by the Government and the agencies.

I have so far acknowledged the vital work that the Intelligence and Security Committee conducts to ensure that the UK’s oversight of its security and intelligence agencies is world-leading, but of course, like other noble Lords, I want to put on record the excellent work that the agencies do. As the noble Lord, Lord Janvrin, mentioned, their families support them in their work, and one must not underestimate the strain that that probably often puts them under.

I turn to the various points that noble Lords made, starting with the point made by my noble friend Lord Lothian and others on lethal drone strikes in Syria. A precision airstrike against a British citizen is one of the most difficult decisions a Government can take. However, if there is a direct threat to UK citizens, such as that posed by Reyaad Khan, this Government will always be prepared to act. In 2015, there was no alternative to a precision airstrike in Syria. There was no Government who the UK could work with and no military on the ground to detain Daesh operatives. There was also nothing to suggest that Rayeed Khan would desist from his desire to murder innocent people in the UK. The Government had no way to ensure that all of his planned attacks would not become murderous reality without taking direct action. As the then Prime Minister informed the House in September 2015, a rigorous decision-making process underpinned the airstrike. A direct and imminent threat was identified by the intelligence agencies and the National Security Council agreed that military action should be taken. The Attorney-General was consulted and was clear that there would be a clear legal basis for action in international law. An air strike was the only feasible means of effectively disrupting the attack planning, so it was necessary and proportionate for the individual self-defence of the UK. On that basis the Defence Secretary authorised the operation, which was conducted according to specific military rules of engagement that complied with international law and the principles of proportionality and necessity.

The ISC announced on 29 October 2015 that it would be,

“investigating the intelligence basis for the lethal strikes”.

The ISC was provided with all the relevant information in this respect, and we are very grateful to the committee for its work. The decision-making process was not part of the review’s remit, which meant that the committee was not provided with a number of documents, including what the ISC has referred to as the “key Ministerial submission”. More generally, I assure noble Lords that the Government take all ISC requests for information very seriously and respond in line with the memorandum of understanding between the Government and the committee.

My noble friend Lord Lothian, the noble Lord, Lord Anderson, and others talked about the detainees and the committee saying its inquiry was neither authoritative nor credible because of government restrictions. The Government and the agencies fully and willingly co-operated with the committee and the earlier Gibson inquiry. The Government provided all relevant documentary evidence to assist inquiries into this issue, including the committee’s. The committee had access to the Government’s material provided to the Gibson inquiry and the agency heads’ responses to the 27 themes issued by Sir Peter Gibson in his preliminary report. As the committee said, it took 50 hours of oral evidence, reviewed 40,000 original documents and devoted over 30,000 staff hours to its inquiry. The only sticking points were the committee’s request to interview junior staff and staff subject to ongoing legal proceedings.

The point about Russia has been well made, and we look forward to reading the committee’s report on Russia when it is published.

My noble friend Lord Lothian asked why the Prime Minister has not met the committee and whether it is a statutory requirement. The Prime Minister takes the work of the committee seriously and will provide evidence to it at an appropriate point in the future.

My noble friend also asked me about air strikes in Syria outlined in the 2017-18 annual report. All indications were that this was a chemical weapons attack, and we were and are clear about who was responsible. Both the Organisation for the Prohibition of Chemical Weapons’ interim report on the Douma attack and the UN commission of inquiry’s most recent report support the Government’s conclusion that a chemical weapons attack was carried out on Douma on 7 April. While we do not comment on specific targeting decisions, targets were selected on the basis of rigorous intelligence and were extensively examined and assessed to ensure that our objective was achieved while protecting civilian life.

The action we took has had a disruptive effect on the Syrian regime’s capabilities. There should be no doubt as to our resolve regarding any future use of chemical weapons. As the then Prime Minister said at the time:

“It is in our national interest to prevent the further use of chemical weapons in Syria”,—[Official Report, Commons, 16/4/18; col. 42.]


and we will continue to work with partners, including through the UN and other international organisations, to uphold and defend the global consensus that these weapons should not be used. The Syrian conflict has been one of the most destructive in recent human history, and we reacted with our largest-ever humanitarian response. Our priority now is for the war to end as quickly as possible through the UN-facilitated political process reaching a lasting settlement to the conflict that protects the rights of all Syrians.

I will move on to the comments of the noble Lord, Lord Anderson of Ipswich. The Government welcome the assurance that the noble Lord has provided in order to monitor the progress of the work of MI5, CT policing and the Home Office. As he highlighted, it is of great importance that MI5 and CT policing improvement programmes continue to be scrutinised. It should be noted that as part of the ongoing scrutiny, the Government are providing six and 12-month updates on a number of the recommendations in the committee’s recent report, The 2017 Attacks: What needs to change?

The noble Lord talked about the reconstitution of the committee and the speed, or lack thereof, with which appointments were made. As he will know, the Justice and Security Act 2013 devolved more of the appointments process to Parliament. Candidates for membership of the committee are nominated by the Prime Minister, after consultation with the leader of the Opposition, and Parliament then votes to appoint them.

The noble Lord talked also about the lack of speed in publications. The Government aim to publish our response to ISC reports within 60 days, as set out in the MoU, but I will defer to the noble Lord, Lord Paddick, who seems to think that one of them was not responded to. We aim to do so within 60 days.

The noble Lord, Lord Anderson, also referred to the IPCO, civil society and wider expertise. I thank him for his suggestions about IPCO resourcing, the involvement of civic society and the opening up to wider expertise. These suggestions will be considered by government.

On the same theme, the noble Lord, Lord Paddick, mentioned that the committee cannot sit during Prorogation, which is right. Both Prorogation and general election campaigns unfortunately do not provide for that process to continue.

I will move on to the comments from the noble Lord, Lord Janvrin. Rightly, his first point—

[Lord Anderson of Ipswich]

Before the Minister leaves those comments, I wonder might I press her a little further on a point that was raised a number of times. We have heard in this debate of no fewer than three reports—on drone strikes, a detainee inquiry and Parsons Green—in which the committee has not been allowed either to see relevant documents or to speak to relevant personnel. That seems to be something of a pattern. Could the Minister explain how the public can have the necessary confidence that we have comprehensive intelligence oversight when the overseer itself complains that it is not being given the tools it needs to do the job? What guarantees can we have that this situation will not recur in future ISC inquiries?

[Baroness Williams of Trafford]

As I said to noble Lords, we endeavour to respond within 60 days. There will be certain occasions when responses cannot be given for reasons possibly of national security, but where responses can be given, we endeavour to give them.

[Lord Anderson of Ipswich]

Is the Minister saying that there may be reasons of national security why information cannot be provided to the privy counsellors on the Intelligence and Security Committee to hold the intelligence agencies to account?

[Baroness Williams of Trafford]

I am saying—I will be corrected if I am wrong—that there may be occasions when it is not possible for that information to be provided. But, for the benefit of the noble Lord, Lord Anderson, I will go back and interrogate each event that he mentioned and confirm that in writing to the committee if that is the case—but I suspect that is the reason why sometimes documents cannot be provided. I know the noble Lord does not look happy about that.

Moving back to the point about diversity and inclusion, I said that better workforces are more diverse workforces, and the other point I wanted to make was about flexibility in working styles to allow for more inclusivity within the workforce.

The noble Lords, Lord Janvrin and Lord Ricketts, talked about 5G suppliers. The UK Government have recently conducted a comprehensive review to ensure the security and resilience of 5G in the UK. We published that review earlier this month. Our response to the review is based on evidence and a hard-headed assessment of the risks. We will never compromise security in our pursuit of economic prosperity. I think we can have both. I stress that no final decision has been made about Huawei. The US entity listing is a new and relevant factor for the findings of this review, with potential implications for the market as a whole. The Government will further consider the position regarding high-risk vendors and make a decision in due course.

The noble Lord, Lord Janvrin, referred to Prevent and the Abedi case. As with all the other issues relating to the 2017 terrorist attack, the Government have looked for lessons learned relating to the Prevent programme. Abedi was not referred to the Prevent programme following the closure of investigations into him in 2014 by MI5 or CT policing. The investigations were closed because he was thought to be an individual seen acting suspiciously with a subject of interest, but he turned out not to have been that individual and therefore was judged to be low risk. He was also not referred separately to Prevent as part of the operational improvement review. Investigators must now give thought to referring an individual to Prevent upon the closure of an investigation.

The noble Lord, Lord Ricketts, made a point about how Brexit might impact on intelligence sharing with our EU partners. We work exceptionally closely with our European counterparts on intelligence sharing, joint operational work and sharing experiences of the developing threat. National security is outside the EU purview, but the noble Lord made the point that when we leave the EU the whole dynamic will change.

The light is flashing. I hope that noble Lords will be content for me to continue for another minute.

The noble Lord, Lord Kennedy, asked why the purchase of chemicals used in the Manchester and Parsons Green attacks was not picked up and why it took an attack for the Government to realise that the suspicious activity reporting regime was out of date. Terrorists diversify their methods, including their methods of acquisition, and therefore our methods need to adapt over time to maintain that correct balance. Since the attacks we have refined our comprehensive strategy for preventing and detecting terrorists’ acquisition of explosives precursors to make our activities smarter and more efficient. The Government are actively working with retailers to design out the threat by substituting products with safer alternatives that cannot be used in an attack.

The noble Lord also made the point about the Manchester attacker visiting a known terrorist prisoner in prison and asked why that was allowed. All offenders of extremist or terrorist concern are managed actively as part of the comprehensive counterterrorism case management system. We are currently scoping work to strengthen controls around communications and visits for TACT and TACT-related offenders that could continue to pose a risk to the community irrespective of their prison security category. This process will be part of the wider review of all contact and transactions between people in the community and extremists in prison, and it will include addressing arrangements currently in place under the approved visitors scheme.

Finally, the noble Lord made a point about bots—about what is real news and what is fake news. I have to say that the past week has led me to wonder what is real in the world; so much is going on on Twitter. The noble Lord made an important point about elections because we need them to be based on what people have actually voted for rather than on what might have been influential over the internet. We have the Online Harms White Paper and will be doing further work on what appears on the internet, but the noble Lord makes a valid point in which I know that DCMS will also be very interested.

I thank noble Lords for their patience—the light has now been flashing for three minutes—and particularly my noble friend.