Wednesday 30 May 2012

The Justice and Security Bill - Part 1 - Oversight

The  Justice and Security Bill - is the coalition government's attempt to implement certain aspects of the Justice and Security Green Paper which was considered in three posts on this blog.  Those posts considered in some detail (1) the Government's case; (2) Proposals and consultation (including Closed Material Procedure) and (3) Oversight.  Those posts contain links to the various judgments which have led to the government bringing forward their proposals.  Those posts also state the various concerns raised about aspects of the Green paper and which continue to be relevant to the Bill.

Structure of the Bill:  The Bill divides into 3 Parts: Part 1 Oversight of Intelligence and Security Activities; Part 2 Restrictions on disclosure of sensitive material and Part 3 General.  There are three Schedules: Schedule 1 The Intelligence and Security Committee; Schedule 2 Consequential Provision and Schedule 3 Transitional provision.

The remainder of this post considers Part 1.

Part 1 - Oversight of Intelligence and Security activities:

The Green paper recognised a need to strengthen oversight of the Security Service and the Secret Intelligence Service.  The existing Intelligence and Security Committee (ISC) had put forward suggestions about reform and, in the Green paper, the government generally indicated agreement with the ISC's ideas.

The ISC had suggested making the committee a Parliamentary Committee and the government preferred to make it a Statutory Parliamentary Committee.  Power to withhold information from the ISC would rest at Secretary of State level only.

Clause 1 creates the ISC as a statutory committee of Parliament with 9 members chosen by Parliament but the choice of members if restricted to persons nominated by the Prime Minister.  (Members will come from both Houses of Parliament).  The Committee will choose its own Chairman.  Clause 2 sets out the ISC's functions and these appear to be widely drawn though restrictions exist.  Under Clause 3 the ISC will report annually but the Prime Minister gets to see the report first and may require material to be excluded from the report.  (If so, the report must indicate this).  Clause 4 is Interpretation.

The main functions of the ISC are in clause 2(1).

The ISC may examine or otherwise oversee the expenditure, administration, policy and operations of—
(a) the Security Service, (b) the Secret Intelligence Service, and (c) the Government Communications Headquarters.
The ISC may examine or otherwise oversee such other activities of Her Majesty’s Government in relation to intelligence or security matters as are set out in a memorandum of understanding.  (NB: the term HM Government is limited by Clause 4 to HM Government in relation to the United Kingdom).
The ISC may consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that - (a) the matter - (i) is not part of any ongoing intelligence or security operation, and (ii) is of significant national interest, and (b) the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding.
A memorandum of understanding under this section may include other provision about the ISC or its functions as agreed between the Prime Minister and the ISC.  
The ISC must publish a memorandum of understanding under this section and lay a copy of it before Parliament.

Hence, the Memorandum of Understanding will be a very key document.

Schedule 1 -  the 4 paragraphs of this Schedule set out details of the tenure of ISC members; ISC procedure; Access to information and Sensitive Information.  

In relation to the Security Service, the Secret Intelligence Service and GCHQ, the Secretary of State will be able to refuse to supply information to the ISC.  In relation to other government departments, a Minister of the Crown will be able to refuse to supply information.  To justify refusal, the material muse be either "sensitive information" or information which, in the interests of nationals security, should not be disclosed to the ISC or be of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were
not limited to national security) it proper not to do so.

Thus, Ministers will have very wide rights to refuse the ISC access to material.  This seems likely to raise issues about the real effectiveness of the ISC.

The term "sensitive information" is defined as:

(a) information which might lead to the identification of, or provide details of, sources of information, other assistance or operational methods available to - (i) the Security Service, (ii) the Secret Intelligence Service, (iii) the Government Communications Headquarters, or (iv) any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities, 

(b) information about particular operations which have been, are being or are proposed to be undertaken in pursuance of any of the functions of the persons mentioned in paragraph (a)(i) to (iv), 

(c) information provided by, or by an agency of, the Government of a country or territory outside the United Kingdom where that Government does not consent to the disclosure of the information.

The term "national security" is not defined and this again appears to give Ministers considerable leeway in relation to disclosure.

The Commissioner:  The Bill grants the Intelligence Services Commissioner additional review functions.    this is done by inserting new sections into the Regulation of Investigatory Powers Act 2000.

So far as directed to do so by the Prime Minister and subject to subsection (2), the Intelligence Services Commissioner must keep under review the carrying out of any aspect of the functions of -(a) an intelligence service, (b) a head of an intelligence service, or(c) any part of Her Majesty’s forces, or of the Ministry of Defence, so far as engaging in intelligence activities.

The Prime Minister may give a direction under this section at the request of the Intelligence Services Commissioner or otherwise.  Directions may, for example, include directions to the Intelligence Services Commissioner to keep under review the implementation or effectiveness of particular policies of the head of an intelligence service regarding the carrying out of any of the functions of the intelligence service.

The Prime Minister must publish directions but there are wide exceptions to this requirement.

Inspector-General:   The Green Paper put forward the possibility of there being an Inspector-General appointed by, and answerable to, the Prime Minister.  This is not included in the Bill.  In the Green Paper it was indicated that the government saw the idea of an Inspector-General as incompatible with granting the ISC a greater remit.

? Devils in the detail ?
Overview:  In general, Part 1 of the Bill will be welcomed though there are some possible devils in the detail including the fact that the ISC will be made up of persons nominated by the Prime Minister even though appointed by Parliament.  The rights for Ministers to refuse to disclose material to the ISC are extensive.  The proposed Memorandum of Understanding will be key.  Any challenges to decisions to refuse disclosure will be for Parliament itself since it will be either the ISC itself or perhaps individual members who will raise any challenges.   The enhanced role of the Commissioner was again envisaged in the Green Paper and is welcome although there are considerable caveats on the new functions.

The recognition that Parliament has an important role in oversight is a particularly welcome development.

The real arguments about this Bill will be in relation to Part 2.  This will be the subject of a later post ....!

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