Moreover, the High Court in the case of Binyam Mohamed24 stated that 42 documents which were not made previously available to ISC (when it was conducting an investigation into UK's involvement in rendition operations) and which had come to light as a result of the proceedings had been provided to the committee. However Dr Kim Howells (Chair of ISC) stipulated, contrary to the judgement, that the committee had not seen them. 25 He was of the view that these documents would help the ISC with their inquiry into the agencies' policies regarding the US rendition programme.
The ISC does not possess the investigatory powers which the select committees do. 26 Unlike the Standing Committee it cannot compel the witness's attendance. The ISC in its report in 1997-1998 stated that it lacked the investigatory powers which it considered to be very crucial. Therefore, in the following year it appointed an investigator whose job was to inspect important documents and interview key personnel. He operated under ISA and reported directly to the committee.
Investigators appointment was considered an important development as it was recognised that effective scrutiny of an agency could not be maintained if the information was to come from the officials of that very agency. The effectiveness of committee's oversight would have been severely compromised without such an "independent investigative capacity". Nevertheless, no new investigator was ever appointed, after the ISC's investigator, John Morrison, left his post following making comments about the use of intelligence in relation to Iraq War on BBC. This has been seen as "a step backwards". 27
Regulations of Investigatory Powers Act 2000 (RIPA) provides for Intelligence Services Commissioner and communications commissioners. Their main responsibility is to examine the warrants issued by the secretary of state to engage in e. g. intrusive surveillance and communications interceptions. The warrant will only be issued if it is necessary for one of the four specified grounds specified in RIPA e. g. in the interest of national security. The Act also provides for the interception of communications Commissioner who oversees the warrants given by the Secretary of State for communications interceptions.
The Commissioners report annually to the Prime Minister who puts the report before the Parliament after excluding the information which he thinks would be prejudicial to important interests e. g. national security. A statement relating to the exclusion must accompany the report. RIPA has also established a tribunal which deals with the complaints in relation to the breach of Human Rights Act by the services or persons acting on their behalf (where convention right is involved proportionality will apply ex. p Daly28) and complaints allocated to it by the secretary of state (s 65(2) of RIPA).
Under s 68(7) the tribunal can order disclosure from a wide range of bodies. It can provide different remedies e. g. quashing warrant, destruction of information obtained thorough warrants and compensation. In matters involving authorisation by SOS, the tribunal may report its decision to the Prime Minister. In A v B30, the Court of Appeal (COA), while overruling the administrative court's decision that a former MI5 agent could bring judicial review proceedings for the breach of Article 10 right when he was denied permission to publish his memoirs, stated that the tribunal was the appropriate body to deal with such a complaint.
This has now been confirmed by the Supreme Court. 31 In view of this decision, the claim in relation to the refusal to allow publication, as in the case of Shayler, would no longer go to the judicial review court. It has been conceded that the rule that tribunal will only investigate the matter if the complaint is not deemed "vexatious or frivolous" by it (the complainant under s 69(2)(d) is required to provide information which would facilitate such determination32). This seems to be a serious impediment, given the difficulty the complainant would have in obtaining information.
Information from Intelligence Services possessed by public authorities is subject to an absolute exemption under s 23 of FOIA. National security information under s 24 is subject to ministerial certificate which can only be overturned by the Information Tribunal under s 60 of FOIA on a very few grounds. 33 Although the latter is a qualified exemption but only in exceptional circumstances the public authority would decide that the public interest in disclosing the information outweighs the public interest in maintaining the exemption.
Moreover it is only theoretically possible that where a ministerial certificate is given, the public authority could still decide that the public interest in disclosure is greater. In practice, it is unlikely to happen. 34 Evidence and the reasons for the decision would be given to the complainant keeping in mind the sensitive information is not disclosed. What may amount to sensitive information is really broad and this is evident from the decision in Rehman where national security was considered to include the security of other friendly states.
Further, in my view, the tribunal, in conventional rights cases, should be able to look at the merits of the decisions (full appeal; not just judicial review) as OSA can be seen by many as being an impediment in the way of exercise of Article 10 right. Intensive scrutiny (proportionality) may not be enough if the act is to have the intended effect even for a laudable aim. The statutory developments in this area have left several gaps. It does not clarify the working link between the Prime Minister and the services.
Furthermore, only reports by the heads of services and not by the subordinates are dealt with by the legislation. 35 This is a serious weakness in protection afforded by the law, given that the services officials are not covered by the Public Interest Disclosure Act 1998 (cannot make qualified disclosures) as their disclosures would constitute criminal offences i. e. breach of OSA. It has been recognised that in view of inadequate procedure for grievance resolution, the absence of detailed statutory code (stating the powers of the services in very wide terms) inhibits the effectiveness of the services.
The RIPA is an improvement and does provide for complaints dealing procedures but the scope of such procedures is uncertain and the whole system of the services is unlikely to function properly if the aggrieved wishes to sue. For instance S 1 of the act sets out the tort of unlawful interception, however if the information comes from security official, he would be caught by s 1 of OSA. Moreover it has been argued that considering the imprecise nature of these statutes, they may not be the sole source of power of the services.
It is true that secrecy should manifest itself in sensitive areas. However at present certain issues demand attention, such as the oversight of the operational activities of the services (ISC cannot oversee operations), publication of the major activities of the services after every 10 years, means of making the services opinion on threats and the change in their practice known. 37 Knowledge and oversight work towards achieving democratic accountability, however, given the world that we are living in this interest ought to be balanced against maintaining secrecy for executive efficacy.