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 
