6 Democratic Accountability for Counter-Terrorism
Policy
Introduction
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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