Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In - Human Rights Joint Committee Contents

6  Democratic Accountability for Counter-Terrorism Policy


107. One of the lessons to be learnt since 2001 is the serious democratic deficit in the making of counter-terrorism policy. We now know a great deal more about the degree of the UK's involvement in US policies concerning extraordinary rendition, the use of torture itself and the use of intelligence obtained by torture. Much of what we now know has only seen the light of day because of litigation or the release of previously classified documents by foreign governments. We think it is legitimate to look back and ask what our own democratic accountability mechanisms were doing to find out exactly what was going on at the time of these events. Which bodies were investigating? How hard were they looking? Who was asking the right questions? How did the different accountability mechanisms perform? Could any of them have been more effective and if so how? The conclusion this leads to is that the mechanisms of democratic accountability for counter-terrorism policy have largely been found wanting.

The Intelligence and Security Committee

108. In their joint article in The Sunday Telegraph in August 2009, responding to our report on Complicity in Torture, the Home Secretary and Foreign Secretary argued that the Intelligence and Security Committee provides an effective mechanism for parliamentary accountability of the intelligence and security services.[78]

109. However, the effectiveness of the ISC has now been seriously called into question by the Court of Appeal's finding that the ISC's conclusions in 2005 that the Security Services "operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training" was at odds with the evidence which the Court of Appeal has now seen.[79]

110. We have consistently expressed our concern about the adequacy of the parliamentary mechanisms for oversight of the intelligence and security services, most recently in the context of current allegations about the UK's complicity in torture.[80] In our report on the Constitutional Reform and Governance Bill we recommended that the Intelligence Services Act 1994 be amended to change the formal system of nomination to the ISC and the method of appointment of its Chair, in accordance with the reforms recommended by the House of Commons Reform Committee to the system of election of members and Chairs of House of Commons select committees.[81]

111. One of the concerns we have previously expressed is the lack of an independent secretariat and independent legal advice. The secretariat for the ISC is provided by the Cabinet Office and we understand that the Committee's legal advice has originated from the same source as the Government's. This raises the possibility, for example, that the Committee receives advice about the meaning of "complicity" from the very same source as the Government itself. We welcome the fact that the ISC has announced that it will be taking independent legal advice on the proposed guidance for departments about interrogation overseas and we look forward to these arrangements being made transparent.

112. We repeat our earlier recommendations about reform of the ISC to make it a proper parliamentary committee, with an independent secretariat, independent legal advice and access to an independent investigator.

The Joint Committee on National Security Strategy

113. The Government says that human rights are at the heart of its national security strategy.[82] In the Home Office's recent Memorandum to the Home Affairs Committee concerning post-legislative scrutiny of the control orders legislation, for example, it said "the protection of human rights is a key principle underpinning all the Government's counter-terrorism work."[83]

114. Yet, when we requested a role in scrutinising the Government's National Security Strategy, on the basis of our expertise in counter-terrorism policy and human rights and the importance of human rights being central to the strategy, it was denied us. Nor is our Chairman included amongst the membership of the new Joint Committee on National Security Strategy.

115. Placing human rights at the heart of the Government's National Security Strategy is easy to say, but it has to find institutional expression if it is to be meaningful. We recommend that human rights expertise be made available to the new Joint Committee on National Security Strategy, both in its membership and at staff level.

The Independent Reviewer of Terrorism legislation

116. We have previously recommended that the post of statutory reviewer of terrorism legislation should be reformed so as to be Parliament's reviewer rather than the Government's: appointed by Parliament and reporting directly to Parliament.[84] During this year's renewal of the control order regime we heard evidence[85] which confirmed points made by others on previous occasions[86], that a reviewer with a supporting secretariat in the Home Office and who has been in post for many years may suffer from a perceived lack of independence from the Government. This is a structural criticism of the post, not its holder, whose reports we have often found useful, as in chapter 5 of this Report.

117. We repeat our earlier recommendations that the post of statutory reviewer should be appointed by Parliament and report directly to Parliament. We also recommend that the post should be limited to a single term of five years.

78   "We firmly oppose torture", Rt Hon David Miliband MP and Rt Hon Alan Johnson MP, The Sunday Telegraph, 9 August 2009. Back

79   See R (on the application of Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 (10 February 2010), above n. 33, at para. 168 of Lord Neuberger's judgment. Back

80   Report on Complicity in Torture, above n. 24, at paras 57-66. Back

81   Fourth Report of Session 2009-10, Legislative Scrutiny: Constitutional Reform and Governance Bill; Video Recordings Bill, HL 33/HC 249 at para. 1.92. Back

82   The National Security Strategy of the United Kingdom: Security in an interdependent world, Cm 7291 (March 2008), at para. 2.1: "Our approach to national security is clearly grounded in a set of core values.They include human rights, the rule of law, legitimate and accountable government, justice, freedom, tolerance, and opportunity for all." Back

83   Memorandum to the Home Affairs Committee: Post-Legislative Assessment of the Prevention of Terrorism Act 2005, Cm 7797 (1 February 2010), at para. 58. Back

84   Nineteenth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, HL 157/HC 394 at para. 63; Twentieth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Tenth Report): Counter-Terrorism Bill, HL 108/HC 5549 at paras 13-20. Back

85   See the evidence of Gareth Peirce as to why she did not complain to Lord Carlile, Report on 2010 Control Orders Renewal, above n. 3, Ev 3-4, Qs 8-13. Back

86   See e.g., HL Deb, 13 October 2008, col 586. Back

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