The Intelligence and Security Committee's role in legislative scrutiny
Understanding the contribution of the committee through the National Security Bill
If you read through the National Security Bill third reading you might have noticed recurrent allusions to the Intelligence and Security Committee (ISC), and its role in scrutinising legislation.
By way of reminder, the ISC is a unique Parliamentary committee. Unlike Select Committees (the ISC is not a Select Committee), the ISC meets in private, and what it does on a weekly basis remains obscured. Periodically it publishes reports, which, after redaction and careful vetting, are published by the Prime Minister. Whereas historically the ISC was seen as lacking independence, the 2013 Justice and Security Act (JSA) reforms have bolstered its reputation in some quarters. I’ll write more on this elsewhere.
The ISC also scrutinises new legislation, and we can see this in the National Security Bill debate. ISC members took a keen interest, with many of them deeply critical of particular clauses within the legislation. The discussion of controversial clause 28, which provides exemptions from prosecution for the commission or involvement of the security services in serious crimes (murder, torture, etc) gives us some insight into how this works.
A little more background on clause 28 is needed. Speaking in the debate, Labour’s front bench minister Holly Lynch described the rationale for clause 28. She said: “the security services have told me directly why they believe that they need clause 27 [now clause 28].” She went further to state that she has been told the absence of this clause “is having an operational impact”, with security personnel put at risk of committing an offence when carrying out their proper duties.
This post is not focused on the merits of the clauses, but I will briefly say that this does not stand up to scrutiny - as Lynch correctly points out, there is already a defence in existing legislation. Again, I’ll write more on this separately.
What is interesting in terms of the ISC’s role, is that Holly Lynch justified her opposition on the basis that ISC members, who have access to classified briefings, are not convinced of the need for clause 28.
ISC members gave indications that they have been promised this classified information - hinting at the unique role of the committee. Kevan Jones, an ISC member (Labour) noted that “a commitment was given to allow the ISC to have classified information on this, and the Chairman of the ISC wanted that before today because it would have given us an opportunity to say whether we were satisfied”.
This was repeated by Jeremy Wright, a Conservative ISC member: “we are due to receive further evidence on clause 27 and we are, therefore, not yet in a position to provide a view on it”.
This speaks to the absolutely vital and privileged role that the ISC has with regards to national security legislation, and more fundamentally, to the absolute necessity for an ISC that is prepared to be critical of the Government. We can be somewhat reassured that the current committee is doing this. But is that a product of the 2013 JSA reforms, or a result of other factors, i.e. a weak Conservative Government with Conservative grandees (like Sir Jeremy Wright or chair Julian Lewis)? Would a new Committee formed after the next election by, presumably, a Labour Government with a strong majority, have a membership and a chair as willing to criticise their party?
Those with a longer memory might recall national security legislation introduced by Labour which was heavily criticised as draconian and a critical and authoritative ISC is vital to ensuring any new legislation is effectively scrutinised.
I will keep readers updated on the ISC’s activities, both in relation to this bill, and also its annual report for 2021-2022, which should be laid before Parliament in the next few days.