21. There are a number of areas in which the constitution and powers of the Intelligence and Security Committee differ from those of a select committee. Some of the differences are more apparent than real. We examine them in turn, assessing the implications for parliamentary accountability of any variation between them.

22. Appointment The Intelligence Services Act 1994, section 10(3), provides that the members of the ISC "shall be appointed by the Prime Minister after consultation with the Leader of the Opposition" and that one of them shall be appointed as chairman. Select committees, by contrast, are appointed by resolution of the House,[26] with the names being tabled by the Committee of Selection (in the case of the departmentally-related committees) or by the Leader of the House (in the case of most other committees). Generally speaking, the formal power to choose the chairman of a select committee rests with the committee members. Thus the independence of the oversight process from the executive is more clearly apparent in the select committee model than in the statutory model.

23. In practice of course, the reality is somewhat different. The appointment of members of select committees, whether through the Committee of Selection or otherwise, is in practice organised by the party whips. In the case of a select committee appointed to scrutinise the security and intelligence agencies it would be unlikely that a list of names would go forward to the House, or be approved by the House, which was not composed of Members of the House who were in some way 'acceptable' to the Government. Similarly, the choice of chairman of each committee will generally have been negotiated through the usual channels and will not be challenged by the committee members.

24. We would not therefore lay great store by the fact that parliamentary select committees are appointed by the House rather than the executive in advancing the select committee model rather than the statutory model for scrutiny of the Agencies. But nor can the point be entirely ignored. Challenges to government (or front-bench) nominations for select committee membership and for Chairmanships can and have been made, and this—or just the possibility of such challenges—makes it more difficult for the executive, should it so wish, to ensure that all the members of the committee are of its own choosing.

25. Staffing At present, the ISC is staffed by a small number[27] of civil servants attached to the Cabinet Office. The post of Clerk of the Committee has been filled by officials with experience in the intelligence world. Select Committee staff on the other hand are staff of the House of Commons,[28] not civil servants, and are thus not beholden to the executive, nor looking to a future career back in the very organisations which they are monitoring.

26. Again, however, we would not make much of this point. There is clearly some value, in such a specialised area of work in which almost by definition only 'insiders' can have a deep knowledge, in having people with a relevant subject expertise to support a monitoring committee in its work. In practice also, Parliament might realistically accept that any of its own staff who might work for such a committee would have to be subject to a security vetting process. Nevertheless, the need for inside experience is not the only criterion for appointment and we note that the possibility of appointment of parliamentary staff to service a scrutiny committee has not been ruled out by the ISC;[29] certainly the fact that a select committee would use such staff is no bar to the parliamentary rather than statutory model.

27. Meeting room Although select committees (other than when taking evidence away from Westminster) almost always hold their formal meetings within the Palace of Westminster, the ISC meets in special premises in the Cabinet Office, making it easier to provide the necessary security for classified papers and for discussion. A consequence of this is that it is less convenient for the members of the Committee to arrange to read relevant papers in good time ahead of meetings. Procedures are in place within the Palace for committees—in particular the Defence Select Committee—to examine classified papers within committee offices, though existing needs are not perhaps as extensive as would be required for an oversight committee on intelligence and security. If oversight were to be carried out by a select committee, then consideration would have to be given as to whether satisfactory arrangements could be made for it to meet within the Palace. If this were not possible then it might be that the select committee would, like the ISC, have to meet outside the Palace.

28. Power to obtain evidence The powers of the ISC to obtain information are set out in Schedule 3 to the 1994 Act. In essence, they provide that the heads of the agencies shall disclose to the Committee any information requested unless the relevant Secretary of State forbids its disclosure or the information is both 'sensitive' and unsafe to disclose.[30] 'Sensitive' information, as noted above, is defined as information relating to sources or operational methods etc., or to 'particular operations', or information provided by another Government which does not consent to its disclosure.[31] The Secretary of State is not to forbid disclosure 'on the grounds of national security alone' or if he would have made the information available to a departmental select committee.[32]

29. These powers are in some ways narrower than those available to select committees and in some ways wider. On the one hand, there are no express powers in the Act for the Committee to obtain information from anyone other than the heads of the Agencies, whereas a select committee's powers to summon witnesses or demand information from the public at large are almost—theoretically at least—unlimited; additionally, as Mr Bickford noted, the ISC in their access to information "depend to a significant extent on the quality of the relationship with the Agency heads".[33] On the other hand, the ISC's explicit powers to obtain information from central government itself about the Agencies are stronger than those held by a select committee. Select committees' formal powers in respect of most[34] central government departments are very constrained: they cannot themselves demand the production of papers, but must request the House to pass an Address for them.[35]

30. Equally, although select committees have power to demand the attendance of witnesses, Governments have not accepted that a named individual civil servant should attend before a select committee as a witness where the Government, in the circumstances of the particular case, thinks it more appropriate for another official—or a Minister—to appear instead.[36] In such a case, if the select committee sought to insist that the named individual it wished to examine should attend then it could pass an appropriate Order. However, to enforce such an order the select committee would have to persuade the House itself to invoke its disciplinary powers, which—assuming the Government commanded a parliamentary majority—might be regarded as unlikely; and even if the witness did then attend, the Government might argue that he or she would be subject to Ministerial instruction as to what could be said.[37]

31. Again, it might be concluded that these differences in powers are more apparent than real. The key element in both cases is that situations may arise in which the Government and the scrutiny committee disagree on whether given information should or should not be made available to the Committee. Where this occurs, the outcome will in practice depend on a process of negotiation as to what is reasonable in the particular circumstances or on the degree to which the scrutiny committee, whatever its formal powers, can pressure—or perhaps embarrass—the government into cooperating. We understand that in practice this already happens: the Intelligence and Security Committee obtains a certain amount of information which the Agencies or Ministers might lawfully refuse but which they are content to make available because of the trust and the working relationship which have been built up. We have little doubt that similar considerations would apply in the case of an equivalent select committee.

32. Power to publish reports and evidence The ISC operates within what has been termed the 'ring of secrecy'.[38] Insofar as this enables the Committee (subject to the statutory limitations already outlined) to have access to more information than would otherwise be available to it, this clearly helps towards its effectiveness. But the 'ring of secrecy' has another side to it, namely the constraints it places on what the Committee can do with the information it receives. The Committee cannot itself control the extent to which its conclusions are made public: the 1994 Act specifies that its reports are made not to Parliament but to the Prime Minister, and that the Prime Minister may—after consultation with the Committee—exclude material which he considers to be 'prejudicial to the continued discharge of the functions' of the Agencies, before laying it before Parliament.

33. Mr Bickford argued that operating entirely within the ring of secrecy in this respect detracted from the effectiveness of the ISC.[39] He concluded that, under oversight by a select committee, the "issue should be left to the scrutiny committee's good judgment. The agencies and others will have indicated to the committee areas of sensitivity which they would advise against publishing. The committee would balance the relevant interests before publishing".[40]

34. Select committee procedures allowing the exclusion of material whose publication might be harmful do exist.[41] Where witnesses consider that their evidence should not be given in public they can request that the session (or part session) take place in private. After the transcript of the evidence is received, consideration is given to the extent to which the evidence given in private—or any written evidence—can be published, with the witness indicating the passages which give rise to difficulty.[42] Using its knowledge of the areas where the evidence has been sensitive, a select committee can identify what should not be included in its report; where it wishes to draw some conclusion or to make a recommendation which cannot itself be safely published, the select committee can cover the point in a separate letter to the government department and indicate in its report that some such action has been taken.

35. Under both procedures therefore—the ISC's statutory procedures and the select committee procedure-there is again a practice of negotiation as to what should be published and what should not. The key difference is that under the statutory procedure the final word rests with the executive , whereas under the select committee procedure the final word rests with parliament.

36. Conclusion Overall, it can be seen that the differences in practice between the two systems are not as great as a purely theoretical description of the position might suggest. Apart from practical issues, such as the location of meeting rooms, where similar considerations apply to both kinds of committee anyway, the operation and effectiveness of both kinds of committee depend heavily on the development of a good working relationship between the committee and the Agencies; this is particularly so in the key area of provision of evidence.

37. It could be argued that in these circumstances it would be inappropriate to upset the present arrangements. A good and trusting working relationship has developed, allowing the ISC to exercise effective oversight of the three Agencies on behalf of Parliament. Any unnecessary change could threaten this relationship and set back effective scrutiny while a similar relationship was built up with a new kind of committee. Those arguing that the ISC is less effective than a select committee are failing to recognise that, even if the formal position might be different, the two kinds of committee would be composed of a similar cross-section of the membership of both Houses and, as such, would be unlikely in practice to adopt any very different approach. The Home Secretary and the Chairman of the ISC put a case against change to us along these lines. We accept the sincerity with which they put forward this argument, though we suggest also that the effectiveness of the ISC has yet to be tested in a real crisis.

38. But, anyway, the conclusion that the statutory system and a parliamentary select committee system would in practice operate fairly similarly also allows the opposite inference to be drawn. If there would be no significant loss in effectiveness by providing for oversight by a select committee then, it could be argued, the change should be made because of the important and valuable signal it would send that the oversight process was properly independent of the executive. As Mr Bickford suggested, the "openness of [a select committee], operating even as it would with regard to secrecy, would lead to a healthier, less secretive, relationship with the agencies".[43] It is the absence of openness and of an overt independence in the present system which is perhaps the chief concern about the present arrangements.

39. We note that spokesmen for the then Opposition took this line during the passage of the relevant legislation. For example, the Rt Hon Roy Hattersley MP (now Lord Hattersley), during the Committee stage of the Security Service Bill in January 1989, argued that:

"One of the advantages of a Select Committee in comparison with other institutions is that under our scheme it would write its reports after listening to the Government's advice about the need for security. That difference is crucial. It demonstrates the weakness of one and the strength of the other. It is the difference between keeping the supervision of the security services within the family of the establishment or extending it to a responsible but essentially independent oversight....".[44]

The Rt Hon Jack Cunningham MP, during the Second Reading of the Intelligence Services Bill in February 1994, stated that:

"....We have considerable misgivings about the nature and size of the [proposed Intelligence and Security Committee]. It should be a Select Committee and it should be larger ......Furthermore it is proposed that the Committee should not report to Parliament but to the Prime Minister. I do not regard that as parliamentary scrutiny or oversight, because the Prime Minister has the right to veto sections of its report—I call it prime ministerial oversight and scrutiny. If we are to have an effective parliamentary watchdog to oversee such matters and to probe and scrutinise, it should report to Parliament. It cannot legitimately be called a parliamentary committee unless it does so..".[45]

Mr Allan Rogers MP, during the Third Reading of the same Bill in April 1994, argued that:

"...Unfortunately, clause 10, which sets up the Intelligence and Security Committee, does not also set up a process of accountability. There is no breaking of the ring of secrecy.....[with] the services reporting back to the Secretary of State, the Secretary of State filtering the information before it comes to the Intelligence and Security Committee and the Prime Minister and the head of the agencies using their right to sideline information. The circle is too tight and too complete. The committee will be a charade, a pretence at accountability.....".[46]

40. While we do not think that the prediction in the last of these three quotes has been proved remotely correct, we nevertheless think that their central thread remains valid. We note also that some members of the ISC itself expressed a similar view in the debate on the security and intelligence services in November last year. For example, Mr Dale Campbell-Savours MP, calling for a move to select committee status, stated that "I do not believe that oversight is fully credible while the Committee remains a creature of the executive—and that is what it is...";[47] Yvette Cooper MP also lay emphasis on the need to develop the parliamentary element in the accountability process.[48] Another member of the Committee, the Rt Hon Alan Beith MP, while noting that there would have to be differences in the way it operated from other select committees, said that for the Liberal Democrats "It remains our objective to obtain a body that is a select committee of this House".[49]

41. We conclude that the present statutory arrangements for oversight of the intelligence and security agencies by the Intelligence and Security Committee should be replaced by a parliamentary select committee or committees. The new system would draw heavily on the achievement of the Intelligence and Security Committee, and in some detailed areas adaptations might be needed to present select committee practice, but the key feature must be that the scrutiny committee should be more clearly seen to be independent of the executive.

27  At present 3 full time staff, to which the Investigator would be additional (see Cm. 4073, Appendix 5). Back

28  Or the House of Lords. Back

29  Applications for the post of Clerk of the Committee were invited from House of Commons staff in specified grades for the appointment made in 1999, though in the event a civil service candidate was appointed. Back

30  Paragraph 3(1). Back

31  Paragraph 4. Back

32  Paragraph 3(4). Back

33  Appendix 2, p. 26; Mr Bickford adds that the "ISC has no direct access into the agencies and this leaves little room for their determining whether the agencies are cultivating a relationship or are actually responding". Back

34  All those departments headed by a Secretary of State. Back

35  See Erskine May: Parliamentary Practice (22nd edition, pp. 649-650) and First Report from the Procedure Committee, Session 1977-78 (HC 588-I, para 7.6 and Appendix C). Back

36  See Departmental Evidence and Response to Select Committees, Cabinet Office, Jan 1977, paras 40-42. Back

37  ibid. Parliament has never approved the guidance contained in this document. Back

38  See Interim report by the Intelligence and Security Committee (1995) Cm. 2873 paras 1 and 8. Back

39  Q83. Back

40  See Appendix 3. Back

41  Such procedures are routinely used, for example by the Defence Committee. Back

42  This process is know as 'sidelining'; where material is excised in this way then the fact that material is omitted is indicated by asterisks, as is done in the case of text omitted from reports from the Intelligence and Security Committee. Back

43  Appendix 2, p. 27. Back

44  Official Report 16 January 1989 col 37. Back

45  Official Report 22 February 1994 cols 170-1. Back

46  Official Report 27 April 1994 col 351. Back

47  Official Report 2 November 1998, col 618. Back

48  Official Report 2 November 1998, cols 610-611. Back

49  Official Report 2 November 1998, cols 600-601. Back