Select Committee on Foreign Affairs Ninth Report

The machinery of Parliament

The roles of the Intelligence and Security Committee and the Foreign Affairs Committee

158. The Intelligence and Security Committee (ISC) is a committee formed of members of both Houses of Parliament, appointed by the Prime Minister. It is a creation of statute, not of the Standing Orders of the two Houses.[226] Its secretariat is provided by the Cabinet Office. It reports to the Prime Minister, who lays an annual report on its activities before Parliament.[227] The ISC exercises oversight of the three intelligence and security agencies of Government, and also regularly meets the JIC. It always meets in private.

159. The Foreign Affairs Committee (FAC) is a select committee of the House of Commons, set up under the Standing Orders of the House and appointed by it.[228] Its secretariat is provided by the Clerk of the House. It reports to the House and publishes its evidence with its Reports. The FAC scrutinises the expenditure, policy and administration of the Foreign and Commonwealth Office and its associated public bodies.

160. When the ISC was created (by the Intelligence Services Act 1994), the then Foreign Secretary, Lord Hurd, assured the House that it would not "truncate in any way the existing responsibilities of existing committees."[229] However, since the ISC was set up, successive Secretaries of State have on more than one occasion refused to allow FAC access to the agencies, on the grounds that Parliamentary scrutiny of those agencies is carried out by the ISC.[230]

161. We have attempted, so far in vain, to explain to Ministers that for the FAC to discharge effectively its role of scrutinising the policies of the FCO, it will on occasion require access to intelligence material and, on rare occasions, to the agencies themselves. The present inquiry is a case in point. Ministers base their refusal to grant such access on the existence of the ISC, suggesting—in our view wholly wrongly—that Lord Hurd's undertaking has been honoured, because there was no such access before 1994. This leads us to wonder what "existing responsibilities" Lord Hurd could have had in mind.

162. We are particularly concerned that there is no symmetry in the Government's position. Our colleagues on the ISC produced a useful and well received Report on the Bali bombing, a substantial part of which commented on the administration of the FCO and was based on evidence taken from the FCO. Because the ISC operates in conditions of secrecy, we do not know how hard they had to press the FCO to allow them to scrutinise its procedures, but we do know that they succeeded. By the FCO's own logic, it should have applied its policy of avoiding "competing jurisdictions" to the ISC's wish to scrutinise the work of the consular division of the FCO, as it applied it to our request for access to intelligence papers which formed the basis of the FCO's travel advice at the time of the Bali bombing.

163. We regard the Government's refusal to grant us access to evidence essential to our inquiries as a failure of accountability to Parliament, the more so as it does not accord entirely with precedent. As our predecessor Committee noted in 1998, the Foreign Affairs Committee was granted access to the highly classified "Crown Jewels" papers on the Falklands War in 1984; while in the course of its inquiry into Sierra Leone the Committee enjoyed some limited success in obtaining copies of classified telegrams. In both cases, parallel inquiries were under way (the Franks and Legg inquiries respectively). It is, as we have already observed, a matter of great regret that those precedents have not been followed in this case.[231]

164. The FAC does not seek to duplicate the work of the ISC, which has a valuable role to perform as the Committee responsible for scrutinising the work of the agencies. But there will be occasions, inevitably, when the work of both overlaps. This is quite normal with select committees, but the problem is that the ISC is not a select committee.

165. We note that the Foreign Secretary has now gone on the record as supporting the recasting of the ISC as a select committee of Parliament.[232] This option would offer a number of advantages: the possibility of joint hearings, joint inquiries and joint reports; established structures for the management of overlap; a more open way of working; and a seat for the ISC Chairman on the Liaison Committee. We recommend that the Intelligence and Security Committee be reconstituted as a select committee of the House of Commons.

166. But so long as the present status of the ISC continues—and we recognise that primary legislation will be required to change it—if this Committee is to do its job properly we will on occasion require access to intelligence material and personnel. This is not a threat to the agencies; it is not an attempt to usurp the role of the ISC for as long as it continues; it is simply a recognition that in order to understand the foreign policy-making process this committee needs to have access to all stages of that process, just as the ISC has had access to the FCO in its Bali inquiry.

167. We also note that select committees have always enjoyed the power to send for "persons, papers and records" to assist them in their work. While committees cannot summon members of either House (Commons or Lords) to appear before them, officials have a duty to attend when requested. By tradition, select committees have observed what are colloquially known as the 'Osmotherly Rules', which provide guidance to civil servants appearing before committees.[233] These state that when a Minister and a select committee disagree about the attendance of a particular, named official, the Minister should give evidence personally. However, in 1990, the then Permanent Secretary to the Cabinet and Head of the Home Civil Service, Sir Robin Butler, confirmed that when a specific civil servant was summoned by a committee they had a "duty" to attend.[234]

168. We conclude that continued refusal by Ministers to allow this committee access to intelligence papers and personnel, on this inquiry and more generally, is hampering it in the work which Parliament has asked it to carry out.

169. We recommend that the Government accept the principle that it should be prepared to accede to requests from the Foreign Affairs Committee for access to intelligence, when the Committee can demonstrate that it is of key importance to a specific inquiry it is conducting and unless there are genuine concerns for national security. We further recommend that, in cases where access is refused, full reasons should be given.

226   Intelligence Services Act 1994, Chapter 13 Back

227   Intelligence and Security Committee, Annual Report 2002-03, Cm 5837, June 2003 Back

228   House of Commons, Standing Orders of the House of Commons, January 2003, HC 175, SO No. 152 Back

229   HC Deb, 22 February 1994, col 164 Back

230   Second Report from the Foreign Affairs Committee, Session 1998-99, Sierra Leone, HC 116-I, paras 102-109 Back

231   Third Report from the Foreign Affairs Committee, Session 1984-85, Events surrounding the Weekend of 1-2 May 1982, HC II; and Second Report from the Foreign Affairs Committee, Session 1998-99 Sierra Leone, HC 116-I Back

232   Q 836 Back

233   The guidance was first issued by E B C Osmotherly, a Cabinet Office civil servant, in 1980. The latest version is : Cabinet Office, Departmental Evidence and Response to Select Committees, 1999, available at: Back

234   Treasury and Civil Service Committee, Fifth Report of Session 1989-90, Civil Service Pay and Conditions, HC 260, Qq 75-76 Back

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