For effective democratic oversight of intelligence and security, an independent Scotland would need more politicians

On 11 September 2014 my colleagues and I published our fourth report, on the subject of ‘Intelligence and security oversight in an independent Scotland’, as part of our research seminar series ‘Security in Scotland, with or without constitutional change’. These are my personal thoughts on its implications.

With the real possibility of a yes vote in just over a week, it goes without saying that the referendum would only be the beginning of the long and complex task of turning Scotland into an independent country. Most discussions of ‘the day after’ have considered the nature of the negotiating process and how to divide up the assets of the UK. But further ahead would be the more profound task of creating the constitution of an independent Scotland. This would not only mean writing a legal document, but also deciding, among other things, the structure of the Scottish state, government and parliament. In theory, anything is possible. For example, there is no reason why an independent Scotland would have to continue with the current Scottish parliament structure, with 129 MSPs in a single chamber. I believe we need to start thinking about these questions now.

My research role in the Future of Scotland and the UK programme has been to investigate the security implications of Scottish independence. I’ve done that with several colleagues by running a series of research seminars. Over the last year, we’ve invited intelligence and security experts from across the UK and Europe, including former senior figures from the UK intelligence community. We’ve discussed the current intelligence and security apparatus of the UK and Scotland, the threats an independent Scotland might face, how similar European countries manage their security affairs, and most recently, how an independent Scotland would provide democratic oversight of its proposed new intelligence agency.

Speaking for myself as a security researcher, it is only the question of democratic oversight that gives me real cause for concern. I’m writing a book about security politics in the UK parliament, and I’ve become familiar with the difficulties posed by this issue. At Westminster, members of parliament have historically played a minimal role in the intelligence and security arrangements of the UK. Before the late 1980s it was taboo for governments even to mention the existence of MI5 or MI6 in pubic, let alone for parliament to hold those agencies to account. Things have been changing, with parliament taking a greater interest in these matters, but democratic intelligence and security oversight remains a difficult issue.

The problem is that much of what the security and intelligence services do cannot be discussed in public. This is why the Intelligence and Security Committee meets behind closed doors. When the ISC was created in 1994, a decision was made to keep it separate from other parliamentary committees, with its membership approved by the prime minster and its reports approved by the government. The ISC has recently been reformed to boost its investigatory powers and bring it closer to parliament. But especially since the Edward Snowden revelations about the activities of GCHQ, it remains under great pressure to prove its legitimacy and effectiveness.

The ISC faces a number of fairly intractable difficulties in this task. Meeting in secret means it cannot easily demonstrate the value of its work. It cannot publicly show how critical it has been of the security and intelligence services, or that it knows what they are really up to. And it cannot disprove the suspicion that it is too close to them. Because the members of the ISC need to be trusted with state secrets, membership tends to favour senior government loyalists and former security-related ministers. If and when an intelligence scandal erupts, the members of the ISC have to explain what they knew, if they knew then why they didn’t raise the alarm, how critical they had been of the practices in question, and whether they were in effect sanctioning the legally marginal or morally dubious. All this builds an impression among some that the ISC lacks critical independence. And because the ISC members can’t talk openly about their work, it is difficult for them to defend themselves publicly.

In short, members of the ISC somehow need to display three qualities, without being able to directly demonstrate them. First, not to be too close to the government or the intelligence services. Second, to be experienced and knowledgeable enough about intelligence and security not to be hoodwinked by the agencies. And third, to be trusted by the public and their parliamentary peers. The ISC has at times struggled with all three.

Drawing on these sorts of issues, the report we’ve published today outlines some difficult challenges for intelligence and security oversight in an independent Scotland. The report is a summary, produced by the project organisers, of the key points raised by our seminar speakers in their capacity as experts.

Speaking for myself as a security researcher, and not for my project colleagues or our speakers, I think the report points towards a rather serious conclusion. The Scottish parliament in its current form may not be adequate to the task of providing intelligence and security oversight. I can’t comment on other policy areas, but in terms of providing a Scottish equivalent of the ISC, the Scottish parliament is too small, too controlled by the executive, under resourced, and lacking in intelligence and security expertise.

My view is that if Scotland votes for independence, policymakers and civil society need to start debating the case for reconstituting the Scottish parliament, including increasing the number of MSPs or creating an upper chamber to bring in more varied expertise, perhaps even from former Scottish MPs. Despite the apparent groundswell of enthusiasm for Scottish independence, there seems to be little desire for more politicians or rethinking the structure of the Scottish parliament. My research on parliamentary security politics and the security aspects of Scottish independence makes me concerned for the balance between the powers of the new Scottish state and the ability of parliament to keep it in check. This is not an argument for 18 September 2014, but for the day after a possible ‘yes’ vote, when the work would really begin.

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White Paper reflections – Security

The security and intelligence plans in the white paper build on Scotland’s strengths in policing and resilience by proposing a single integrated security service. There are no plans for a Scottish MI6, heeding criticism of this mooted idea. GCHQ-type functions will be integrated into an MI5-style civilian security service. This forward-thinking arrangement could take advantage of the increasing importance of open source intelligence and the availability of advanced off-the-shelf surveillance technologies. It could also improve coordination, oversight and accountability by avoiding inter-service rivalry and any fudge between domestic and foreign intelligence gathering functions.

Oversight plans are on a par with the new powers of the UK Intelligence and Security Committee. Combined with the rights enshrined in a new written constitution, regulation and accountability could be robust. The white paper calls the UK government’s bluff on several areas, pointing out that it is in the UK’s interests to have secure neighbours and that Scotland would expect recognition of its capital investment in the national security architecture, including current investments in cyber security.

There is a strong coded message that Scotland will do what is necessary to be considered for membership of the ‘five eyes’ intelligence sharing relationship. The white paper recognises that a new security service may not be completely in place by independence day, and so calls for continuing UK assistance. Questions remain over how this assistance would eventually be drawn down and how the UK security agencies providing the assistance would be held accountable in an independent Scotland.

Reblogged from Future of UK and Scotland.

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‘Scotland’s Defence’ at the Festival of Politics: Staying above politics is still politics

Reblogged from: The Future of Scotland and UK

Dr Andrew Neal blogs from the Festival of Politics 2013

This was an elegant lesson in democratic politics. A few in the audience wanted to heckle and speak out of turn. The rest were having none of it, insisting through a collective murmur that they should follow the unspoken rules. Similarly, the panellists declared their wish to stay above yah-boo politics, which they did. Jim Murphy MP said that TV distorted debate by encouraging barbed drama. He and Angus Robertson MP remained bright eyed and softly spoken. Neither attacked the other. They took the audience with them, despite the nationalist/unionist divide.

But can two opposed politicians really stay above politics? They appealed to the facts. Why is Trident based where it is? Contrary to a heckled suggestion, Jim Murphy said it was nothing to do with London making Scotland bear the risk of a nuclear strike, but simple geography. Faslane has better natural defences than Plymouth. He said that shipbuilding for the Royal Navy keeps Clyde shipyards open, but if Scotland was a foreign country that would end. In turn, Angus Robertson, also ‘staying above politics’, quoted a Vice Admiral who saw no reason why an independent Scotland could not still build ships for the UK. Ding dong. The problem with facts is that there are always counter-facts.

Staying above politics is still politics. This is especially the case with security, which follows certain conventions: playing politics with security is frowned upon; party politics should be left at the border; the national interest transcends party interest. At Westminster this has effects. Seeking consensus in the name of national security means stifling dissenting voices. Arguably, the British political system is built on opposition (look at the facing benches), and when it is absent or neutered, politics has failed. Remember Iraq. But it feels grubby when politicians approach security opportunistically by scapegoating those who can’t easily argue back such as asylum seekers.

The independence debate is different of course. There are few conventions. Unionists and nationalists cannot appeal to a higher common purpose. Nor can they appeal to the facts because the facts are not above politics. Every possible ‘fact’ about an independent Scotland depends on politics. And not just current politics but future politics that are unknown. A referendum yes vote would only be the beginning of an unprecedented and unspeakably complex political process of separating two advanced capitalist democracies. Every possible outcome would depend on negotiations. For example, the enormous cost of relocating Trident lacks meaning outside the context of every other issue. If relocation was to happen, who would bear the cost and what would they demand in return? What would it mean for the negotiations over dividing up the national debt, ownership of nationalised banks, oil revenues, pension obligations and social security? How much goodwill or bad blood would be involved? We simply don’t know.

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The Syria Vote: The Unwritten Constitution Rewritten Before Our Very Eyes

Last night’s parliamentary vote against military action in Syria was constitutionally significant. The UK is said to have an ‘unwritten constitution’. There is no single document called ‘The Constitution’. Instead the constitutional fabric of the country is made up of conventions, documents, and individual pieces of law. Which laws have constitutional significance is up for debate, but they would certainly include the Reform Acts of the 19th century, the 1928 Equal Franchise Act, the 1976 Race Relations Act and the 1998 Human Rights Act. The Cabinet Office Manual first published in 2010 is not a law but is in effect a constitutional document stating how government should work. Conventions are less tangible but no less significant. The Salisbury convention is that the House of Lords will not vote down government bills mentioned in an election manifesto. The ‘Royal Prerogative’ is another and was challenged in parliament last night. Royal prerogatives are traditional powers of the sovereign that have been passed to the executive. The ‘Royal Prerogative’ in the singular refers to the power of the Prime Minister to wage war. Hence no PM has ever needed to consult parliament to deploy the military.

Last night’s vote was the culmination of ten years of constitutional change. In the run up to the Iraq war, many politicians pushed hard for parliament to have a say. The gravestone of Robin Cook reads: ‘I may not have succeeded in halting the war, but I did secure the right of Parliament to decide on war.’ Prime Minsters after Tony Blair have promised that parliament would have a vote on military action. This began to establish a constitutional convention, but last night cemented it. Parliament has voted on military action before, over Libya for example, but yesterday was the first time it has rejected a Prime Minister’s military policy. Parliament has now demonstrated that its vote will not simply be a rubber-stamping exercise in deference to the constitutional authority of the Prime Minister. True, a future PM could technically bypass parliament on military action, because nowhere is it written down that there must be a vote. But that has now become unthinkable. Being unthinkable is one of the most important constitutional safeguards the UK has against the unthinkable, such as parliament abolishing female suffrage. And true, a future PM without a hung parliament could be more sure of winning. But that’s politics. This is the establishment of a constitutional convention.

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Seminar Series Announcement: Security in Scotland, with or without constitutional change

These six one-day seminars will bring together policymakers, politicians, practitioners and academics to explore the implications of constitutional change for security governance in Scotland and the rest of the UK. Funded by the Economic and Social Research Council, they will run from September 2013 to September 2015.

If Scotland votes for independence it will have implications for security governance in Scotland and the rest of the UK. Even without independence, security governance is already encroaching beyond the ‘reserved matters’ of defence and foreign policy and becoming part of everyday governance at multiple levels of government.

These seminars will create a forum for policymakers, politicians, practitioners and academics to explore these implications and eventualities. They will build knowledge and research capacity in Scottish academia and government. This will inform the independence debate and any post-referendum settlement in either outcome.

There is almost no academic literature on Scotland and security at present (and what little there is relates to the traditional areas of defence and foreign affairs) because until the October 2012 agreement on the referendum there was little perceived need for it in think tanks or academia. Currently there is no security think tank network for Scottish policymakers to draw upon as there is in London (e.g. Royal United Services Institute, Chatham House). Academic security expertise exists across Scotland but has few links with the Scottish institutions of government.

All of the UK’s security services are based in England (e.g. MI5, MI6, GCHQ, Defence Intelligence); all the UK government centres of security policymaking are based in Westminster (e.g. National Security Council and Joint Intelligence Committee in the Cabinet Office, the Office for Security and Counter-Terrorism in the Home Office); and all scrutiny and oversight bodies with an interest in security are based in London (e.g. Intelligence and Security Committee, Select Committees for Defence, Foreign Affairs and Home Affairs, Joint Committees on Human Rights and the National Security Strategy, Independent Reviewer of Terrorism Legislation). The seminar series will invite policymakers, politicians, practitioners and academics from Scotland, the UK and comparator countries to address this imbalance.

The seminars will explore the following questions:

1) How is security currently governed in the UK and Scotland?

A full assessment of this is crucial for institutional learning and for enhancing security governance knowledge in Scotland. Referendum aside, security governance in the UK is no longer confined to defence, foreign affairs and the security services. As such, the evolving nature of security governance already challenges the separation of ‘devolved’ and ‘reserved’ matters. It also involves both local government and the EU.

For example, the 2010 National Security Strategy of the UK includes non-traditional risks such as pandemics, disruption to communications, and illegal immigration; the latest edition of the CONTEST counter-terrorism strategy lists 29 departments and offices as playing a role in security; and the Intelligence and Security Committee reports that ‘18 departments, units and agencies …[have] responsibilities for aspects of cyber security’. We need to take stock of the security governance activities already taking place in Scotland, such as emergencies planning by the Scottish Government’s Resilience Division, the Scottish Preventing Violent Extremism Unit set up between the Scottish Government and the Association of Chief Police Officers in Scotland, civil contingency planning in local government, and the Counter Terrorist Security Advisers in the Scottish police service.

2) How might security governance differ in an independent, further devolved, or status quo Scotland?

The ‘Safer Scotland’ section of the Scottish Government’s 2009 white paper on Scotland’s constitutional future makes no mention of security governance, and there is little evidence that Scotland’s political elite has considered this question beyond the traditional defence issues of NATO membership, Trident, and the dividing up of the armed forces.

We will explore the implications and practicalities of the Scottish government seeking to create its own security governance institutions to mirror those in the UK in the event of independence, or alternatively pursuing capacity sharing and policy coordination with London. From the other side of the equation, we will explore how UK policymakers and security agencies would manage security issues that span their new northern land border, how they would coordinate with the Scottish government, and what the power/knowledge relationship between them would be.

We need to understand whether the insecurities and risks faced by Scotland are the same as those detailed in the UK National Security Strategy, and whether the policymakers of an independent Scotland would perceive those insecurities and risks in the same way. Moreover, is a separation of insecurities and security governance even possible in an island with highly integrated critical infrastructures such as energy, finance, data, communications, transport and trade? We will consider the extent to which Scotland is integrated into EU mechanisms of security governance, and what its relationship with these would be in the event of Scottish independence, uncertain Scottish EU membership, or even a UK withdrawal from the EU. What lessons can we learn from comparable countries (e.g. Norway, Sweden, Denmark, Ireland, Finland, Netherlands) given that security governance operates within varying institutional designs that can affect policy and day-to-day practices? What are the security implications of a separate Scottish foreign policy?

These questions are pertinent not only in prospect of a ‘yes’ vote in the independence referendum and any subsequent inter-government negotiations, but also in prospect of a ‘no’ vote and the possibilities of longer-term constitutional change. Even in the event of a continuation of the constitutional status quo, the devolved institutions of government still need to increase their interest in security governance because of its proliferation across government departments, policy areas, and areas of democratic oversight.

3) What democratic oversight of security governance is needed in Scotland, with or without independence?

The proliferation of insecurities means that democratic oversight of security governance in Westminster now stretches to at least six different parliamentary committees, occasionally more. For example, the Public Accounts Committee has inquired into outsourced security provision such as G4S at the Olympics, the House of Lords Science and Technology Committee has reported on the government response to the 2009 flu pandemic, and the Energy and Climate Change Committee has published a report on the UK’s energy security.

In an independent Scotland, what democratic oversight of security governance would be needed? What committees and bodies would need to be created, and what would be their remit? This would be especially complicated in the case of shared security governance between Scotland and the remaining UK, because the security services are already cautious about speaking to parliamentary committees, let alone the parliamentary committees of a newly independent neighbouring state. Independence aside, are Scotland’s current democratic oversight mechanisms adequate given the proliferation of insecurities across areas of government? How far does security governance now encroach on areas of devolved government? How are the security governance activities already underway in Scotland overseen democratically?

The seminar series team:

Dr Andrew Neal, University of Edinburgh School of Social and Political Science
Professor Charles Raab, University of Edinburgh School of Social and Political Science
Dr Juliet Kaarbo, University of Edinburgh School of Social and Political Science
Professor Stephen Tierney, University of Edinburgh School of Law
Professor Thierry Balzacq, University of Namur, Belgium
Dr Holger Stritzel, University of St Andrews School of International Relations
Dr William Vlcek, University of St Andrews School of International Relations

Report on the first event ‘Assessing security governance in the UK and Scotland under current arrangements

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Spying on Scotland – a modest proposal

The recent revelations about domestic surveillance in the US were controversial because the National Security Agency was secretly spying on the communications of American citizens. In the US, debates about intelligence have always hinged on a distinction between citizens and foreigners. The Foreign Intelligence Service Act has long made it perfectly acceptable for US agencies to spy on foreigners at home or abroad. These powers have been consistently approved and upheld by US courts.

In the UK, successive governments have tried to create a law to allow blanket communications surveillance. This would be the mass collection, retention and analysis of communications ‘metadata’; not the content of telephone calls and emails but connections, numbers, times, locations, call length, frequency and so on. This data could be used for sophisticated forms of social network analysis. Ad hoc groupings of libertarians in parliament, led by the Liberal Democrats, have successfully blocked the Communications and Data Bill or ‘Snoopers’ Charter’.

It now transpires that the UK intelligence agency GCHQ has been getting around the continuing lack of a legal basis for this kind of surveillance. It has been receiving the data it wants from the NSA in the US. This falls under a legal grey area. It seems that British data protection laws do not apply if the data of UK citizens is already in the US (e.g. Gmail, Dropbox, Facebook, Skype, Flikr, pretty much everything). This is a convenient way for a government to avoid the charge that it spies on its own citizens. Instead, another government spies on that population as foreigners, then hands the intelligence over.

Now, one of the uncertain issues in the Scottish independence debate is what kind of intelligence agencies a new Scotland would create. Deputy First Minister Nicola Sturgeon told the Foreign Affairs Committee that an independent Scotland would create its own domestic intelligence agency, but that the Scottish Government was taking advice on establishing a foreign intelligence service like MI6. Members of the intelligence community have said that Scotland would also need some kind of ‘mini-GCHQ’ to defend against cyber attacks. Whatever the decision, an independent Scotland would not have the resources to replicate the advanced communications intelligence facilities of GCHQ. It would also be starting from scratch and so take years to establish credible capabilities.

This raises some questions. If Scotland is not going to monitor domestic communications like the UK government wants to, then will this leave an unsurveilled utopia of personal freedom north of the border? Could a would-be terrorist simply move to from London to Gretna to avoid having his or her communications monitored, then plan the next attack? And given that UK communication systems (land lines, mobile networks, internet infrastructure) are completely integrated, how would an independent Scotland implement a different legal regime for data protection and surveillance, even if it wanted to?

Here is a modest proposal. The US-UK intelligence sharing relationship shows us the way. An independent Scotland could simply allow GCHQ to spy on its citizens’ communications, then share the intelligence with the Scottish Government. This way, GCHQ would be spying on foreigners, the Scottish government could legitimately say that it does not monitor its own citizens’ electronic activities, and the UK security services would avoid the terrifying Gretna scenario.

So here are two questions for First Minister’s Question Time at the Scottish parliament: “Would the First Minister allow UK intelligence agencies to spy on the citizens of an independent Scotland? And would the Scottish government make use of the resulting intelligence?”

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Security in an independent Scotland

An objective analysis of the prospective security situation of an independent Scotland is impossible. There is no objective or settled meaning to the term ‘security’, even in the current governmental and constitutional arrangements of the UK. It is thus not possible to simply produce an objective and comparative list of ‘threats’ to the UK and an independent Scotland. The real question is how governments perceive threats and what they attempt to do about them. The question is therefore not whether an independent Scotland would face different threats to the rest of the UK, but how the government of an independent Scotland would perceive threats and what it would attempt to do about them.

At present, the UK government does not have a coherent approach to ‘security’, and there is no reason to think that an independent Scottish government would be any different. Governments of modern states are sprawling, complex beasts. Getting them to do anything in a coherent, unified way is extremely difficult, especially on issues that span different parts of government, maybe even all parts of government.

There are currently two interpretations of ‘security’ in play within the UK government: the narrow and the broad. The narrow interpretation adopts a traditional understanding of security, in which threats are foreign, military, and state-based. The corresponding parts of government in the Foreign Office, the Ministry of Defence and 10 Downing Street deal with those threats. The National Security Council chaired by the Prime Minister has largely focused on traditional foreign and defence issues, such as the Libyan intervention.

At the same, an alternative broad interpretation of security is being developed elsewhere in the UK government. The UK government’s counter-terrorism strategy document (CONTEST) lists 29 departments and agencies as playing a role in this strategy. The most recent version of the National Security Strategy (NSS) goes further by shifting from ‘security’ to an encompassing list of ‘risks’. These stretch from international terrorism and overseas military crises to border transgressions by illegal immigrants and disruptions to fuel and food supplies. The manifestation of this broad interpretation of security is that security is proliferating across all areas of government, far beyond the traditional narrow remit of foreign and defence policy.

The conclusion we must draw is that there is no single meaning of security in the UK. The reality is that disparate parts of the government perceive ‘threats’ and ‘risks’ differently and develop policies to deal with them in a piecemeal fashion. Whether this is good or bad depends on ones’ view on the relative dangers of security threats on the one hand, or a unified security state on the other.

Would it be different in an independent Scotland? The Scottish government might not perceive threats and risks in the same way. Given the haphazard nature of threat perception in the UK, there is no reason to think that Scotland would independently come up with same list of threats and risks. Scottish politics has been less hostile to immigrants than Westminster politics. The Scottish government might not see immigration as part of the bundle of risks specified in the NSS that includes terrorism, organised crime and smuggling.

My current research on parliamentary security politics at Westminster analyzes this unsettled and changing state of security affairs. The uneven creep of ‘security’ across different areas of government is reflected in a larger number of parliamentary committees handling security issues. Half a dozen now do so regularly (Intelligence and Security, Home Affairs, Foreign Affairs, Defence, Joint Committee on Human Rights, Joint Committee on the National Security Strategy). At least half a dozen more discuss security questions on a less frequent basis (e.g. Lords Committee on the Constitution, Energy, Public Accounts, Energy and Climate Change, Science and Technology, Health). If we were to take the comprehensive list of risks in the NSS seriously, we could argue that every part of government and parliament will find itself dealing with security issues at some point.

Whatever ‘security’ is, it already reaches far beyond the ‘reserved areas of government’ that Holyrood currently leaves to Westminster (e.g. foreign affairs, defence, counter-terrorism). The proliferation of ‘security’ across Westminster has in no way been mirrored in Holyrood. Even in the constitutional status quo, it is not clear that current Scottish arrangements provide adequate scrutiny and oversight of every aspect of ‘security’ that could affect Scotland. Without knowing which new ministries and parliamentary committees an independent Scotland would create, it is difficult to know how ‘security’ would play out in the new constitutional context.

And what of a Scottish House of Lords or equivalent? The House of Lords has often put a brake on the excesses of security politics at Westminster, such as extended pre-charge detention for terrorist suspects. In large part this is thanks to the many lawyers and a scattering of former security officials in its ranks. We do not even know if an independent Scotland would have an upper house of parliament, but we can be certain that it would not be an unelected body of experts and political appointees like the Lords and so would probably not have the same legal and security expertise.

Much hinges on the extent to which an independent Scotland would truly be an ‘independent’ state. If it does not free itself from the current security model at Westminster, we can expect security to be a lengthening rope pulled in several different directions at once. If it does not depart radically from the current Holyrood model, we can expect a continuing lack of scrutiny and oversight. The question of security in an independent Scotland is not a question of what objective threats it would face. It is a constitutional question. The character of security in a modern state is a product of its constitutional arrangements. Leadership, officialdom, parliament; these all shape ‘security’ in different, conflicting ways. Sometimes security shapes them.

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