SCS064

About Us

The Remote Warfare Programme (RWP) is a project of the Network for Social Change and part of the Oxford Research Group. We examine changes in military engagement with a focus on remote warfare: the recent shift away from boots on the ground deployments towards light-footprint Western military interventions abroad.

We produce evidence-based research and policy recommendations to raise public awareness and to facilitate debate amongst military and policy practitioners. Ultimately, our aim is to help effect positive policy change to improve prospects for long-term security.

Summary

Over the past two decades parliamentary select committees have become an integral part of legislative scrutiny of executive decision-making. Nevertheless, while an expansion of the forums in which government policy can be debated, two significant obstacles are preventing greater legislative scrutiny of executive decision-making on defence and security issues. Firstly, no mechanism exists in Parliament to provide democratic scrutiny of Britain’s Special Forces (referred to here as UKSF). Secondly, a reticence on the part of government – as well as insufficient permissions to review classified material – means committee members on the Defence Select Committee (HCDC) are constrained in the contributions they can make to policy debates on defence policy.

This submission is based on research undertaken by the Remote Warfare Programme as part of a larger policy report called: Britain’s Shadow Army: Policy Options for External Oversight of Britain’s Special Forces and will draw on comparative analysis of the U.S. system of legislative oversight of defence and security policy.[1] We propose the following recommendations to improve the effectiveness of parliamentary select committees overseeing Britain’s defence policy:

1)      In the short-term, Parliament should work with government to introduce democratic oversight of UKSF within Parliament under the mandate of the Intelligence and Security Committee (ISC);

2)      In the longer-term, efforts should be made to provide members of the HCDC with security clearance in order for them to have greater access to classified material to

contribute more positively and in an informed way to policy debates on British defence policy. 

1.   “No Comment” policy over UKSF

1.1.  Unlike the disclosure standards that surround the rest of Britain’s Armed Forces, the UK has a long-standing policy not to comment on its Special Forces.[i] This policy extends to units that are attached to the Special Forces Support Group (SFSG)[ii] when they operate under the command of the Director of Special Forces (DSF),[iii] as well as in cases where UKSF are embedded in the “armed forces of other nations”.[iv]

1.2.  This policy allows the British government to “deflect any questions on any aspect of UKSF, including information about where they’re used, how they fit into UK defence strategy, and what roles they’re playing on the ground.”[v]. Most recently, the British government was able to employ this approach when it refused to confirm or deny reports in the Mail on Sunday and The Times, that UKSF were engaged in gun battles against Houthi rebels in Yemen, suggesting that the UK was party to the conflict despite repeated assurances from government ministers that the UK is not.[vi] This approach has significant implications for the British government’s ability to take command of the narrative, but also to draw lessons from UKSF deployments.

1.3.  The challenges posed by the “no comment” policy was demonstrated by a recent inquiry led by the HCDC to examine Britain’s contributions to the counter-Islamic State (IS) campaign in Iraq and Syria. As part of that inquiry, one MP asked Major-General Jones, who formerly served in the counter-IS coalition, whether he could elaborate on how critical UKSF had been to “ground operations and intelligence gathering”.[vii] To answer the question, Major-General Jones used the example of U.S. Special Operations Forces to avoid commenting on the role of UKSF, stating: “the Americans take a slightly different approach to how they communicate what they do with their special forces”. This is despite overwhelming evidence available in the public domain that shows UKSF have played a crucial role in the campaign. This includes reports of the death of a UKSF soldier, Sgt. Matt Tonroe, in March 2018 and reports in January 2019 that two SAS soldiers were injured fighting IS in Syria.

1.4.  Their omission from this evidence session is especially problematic given that Parliament predicated its support for military intervention against IS in Iraq (2014) and Syria (2015) on the fact that the government agreed it would not deploy British troops on the frontlines. Special Forces are exempt from the WPC and therefore can be deployed on combat missions without parliamentary approval. However, if UKSF are seen to be deployed in lieu of conventional forces to circumvent parliamentary accountability – especially when Parliament has clearly expressed its opposition to boots on the ground – it is reasonable to argue for an alternative mechanism of oversight.

1.5.  As it stands, however, while the HCDC has been able to receive oral evidence from senior military personnel formerly serving in the Royal Air Force (RAF) and British Army as part of the counter-IS campaign, no such equivalent assessment can be made to draw lessons from the deployment of UKSF. This represents a significant scrutiny gap and a missed opportunity to learn lessons about the integration of UKSF as part of the broader military campaign to counter-IS. We recommend this is addressed by reforming the ISC’s mandate to include oversight of UKSF.

1.6.  One major advantage of handing UKSF oversight to the ISC is that the committee has developed a trusting relationship with the intelligence agencies and the executive, which has helped establish itself as a reputable overseer of the UK’s intelligence and security policy. In addition, the ISC is traditionally the body that handles topics of a particularly sensitive nature that might otherwise sit under other committees. For example, MI6, MI5 and Defence Intelligence (DI) fall under the remit of the Foreign & Commonwealth Office, the Home Office and the Ministry of Defence, respectively.

1.7.  Historically, the membership of the ISC has been made up of senior parliamentarians with prior experience with intelligence and security issues (each of whom is subject to Section 1(1)(b) of the Official Secrets Act 1989 and are provided with access to highly classified material to carry out their duties)[viii]. These are drawn from both the House of Commons and the House of Lords, which means the ISC operates much like a Joint Committee of Parliament.[ix] Moreover, ISC members have often served in government, indeed 23 out of 39 parliamentarians who sat on the Committee prior to 2015 had previously held ministerial office with broad experience serving at the Foreign and Commonwealth Office (FCO), MOD, Home Office and Northern Ireland Office.[x]

1.8.  The ISC also benefits from being able to draw from the experience of members who have served in the military—a useful attribute if UKSF were brought under their mandate. This mirrors the U.S. Armed Services Committees which have also been well represented by members with a military service record—the most obvious example being the former Chair of the U.S. Senate Armed Services Committee, the late John McCain.

2.   Broader reform to parliamentary oversight of defence policy

2.1  Beyond Special Forces opacity we have broader concerns that governments are overly cautious to share information about its interventions overseas with parliamentary committees. Since 2016 for example, the Foreign Affairs Committee (FAC), the Joint Committee on the National Security Strategy (JCNSS), the House of Commons Defence Committee (HCDC) and even the ISC – despite having security clearance– have all expressed frustrations about a lack of engagement, and/or disclosure of information between themselves and the department they oversee:

2.2  Our focus here is on the role of the HCDC and our analysis of that committee suggests that overall it has a good “reputation for its low level of political partisanship”, and demonstrates a willingness to offer “blunt criticism of…[MOD]…actions.”[xi] Most recently, the defence committee acted as an independent and effective overseer of the Government’s poor handling of the National Security and Capabilities Review (NSCR), which the committee feared threatened the future strength of capabilities like the Royal Marines (see quote above).

2.3  Despite its strong reputation, the main constraint on the HCDC when it comes to reporting is a lack of engagement and the government’s unnecessarily restrictive approach to sharing information to support its inquiries. We advocate that on top of reforming the current opacity towards UKSF, longer-term efforts should also be undertaken to improve the capacity and mandate of the Defence Committee to deal with classified and/or sensitive information. This would eventually mean bringing it more into line with its American counterparts – whose membership are security-cleared; have much larger resources; and a large supporting staff of experts and generalists (with varying levels of security clearance) to support the work of the Committee and its serving members – elements of which could arguably be incorporated within the parameters of the UK’s parliamentary democracy.

2.4  Staff members on the HCDC are not provided with clearance by virtue of [their] position as Defence Committee staff. This means that HCDC staffers are not necessarily in a better position to other committee staff members when it comes to getting access to official government documents. Being on the Privy Council also does not necessarily provide its members with access to classified documents. Instead, Privy Council terms are usually used by the government to share sensitive information with senior members of opposition parties. However, there are no security clearance procedures in place for those being received by the Privy Council. This means a chair of a committee who is also a member of the Privy Council, would not have an advantage over a committee chair who is not a member of the Privy Council when it comes to accessing sensitive information. This seems counter-productive and a serious impediment to the work of the HCDC – as well as other committees working in the foreign, defence and security space.

2.5  These constraints have led some to describe the HCDC as nothing more than a “committee of inquiry” in comparison with “legislatures of other states”, given its limited powers to directly influence government decision-making.[xii] In contrast, the Armed Services Committees (ACS) in the US Congress, have the mandate to “kill legislation”, “say ‘No’ to the President, veto appointments, and – with its vast resources – directly challenge “the might (and skill) of the [US state] bureaucracy”.[xiii]

2.6  Despite these differences – as well as the obvious implications of comparing the U.S. and British systems of government – a comparison with the U.S. model of oversight of defence and security policy is instructive, particularly with regards to its approach to oversight of its special forces.

3.   Case Study – US Legislative Oversight of Defence Policy

3.1.  U.S. Special Operations Forces (U.S. SOF) are overseen by the Senate (SASC) and House Armed Services Committees (HASC), where the Commander of Special Operations Command (SOCOM) – the unified command with strategic oversight of all U.S. SOF – can be called to give evidence to the ASCs. As the government body responsible for allocating annual DOD funds – a power the HCDC does not wield – Commanders have a history of using this opportunity to express concerns about budgets, overstretch and the health and well-being of service personnel and their families.[xiv] This allows the Congress to act as a safety net to ensure U.S. SOF are adequately resourced.[xv] 

3.2.  In terms of defence policy more generally, these congressional committees wield significant powers to directly influence U.S. defence policy by:

• Setting military budgets;
• Regulating the military, either through “stand-alone legislation” or through the budget process;
• Conducting classified oversight – unique only to the ISC in the UK context, where not even the Chair of the Defence Committee is vetted to receive security clearance;
• Receiving frequent (often classified) briefings, including with congressional staff employed on defence programmes, from Departments of State;
• Subpoenaing witnesses to force them to testify under oath.[xvi]

3.3.  But the HASC and SASC are also supported by sizable staffs who are at the disposal of its serving members. The SASC alone has 56 employees on its payroll and most members of the Congress usually have “at least one personal staff member who handles defence issues”.[xvii] This is reflective, not only of the US’ expansive international reach, but also the general concern that U.S. lawmakers have for national security issues.

3.5  While it is true that some members of staff are employed in ad hoc and part-time roles – in the same way specialist advisors are appointed to parliamentary select committees – the comparative size of the congressional committees concerned with the U.S. military is stark.[xviii]

3.6  The British Parliament clearly cannot emulate the U.S. approach like-for-like. However, steps can be taken to increase the support available to, and capacity of, MPs to fulfil their role as a member of a committee like the HCDC. One former Director of the United States Government Audit Office described these capacity challenges in the following way: “Your people [British MPs] tend to rely more on MPs’ personal knowledge and ability…but in this world as it gets more and more technical…you’ve got to have people who are technically trained and experienced to be reviewing programmes.”[xix]

3.7  Bruce George, a former Chair of the HCDC, put it another way when he said that “Members of Parliament…[are] expected to legislate and provide effective scrutiny over the administration of this major economic and political power…with fewer resources than many junior managers in business”.[xx] In the context of increasing demands on MPs’ time owing to the growth in electronic communications and social media, these pressures are even greater today than they were when George made these comments at the end of the last century.

3.8  In the realms of defence and security issues this is exacerbated by the reality that few MPs represented in Parliament today have a background in defence and security policy. For example, there are only around fifty MPs with previous military backgrounds – a majority of whom are Conservative MPs – serving in Parliament today.[xxi] This means that a majority of MPs are, by default, likely to have a low degree of base knowledge in either the military or defence more broadly. This knowledge gap could be addressed if members of committees had greater support from experts serving on these committees in support of their work on the committee.

3.9  But greater access to information and expertise would have to be augmented with improved access to the right information, including classified material. This would require members of parliamentary select committees like the Defence Committee to be security cleared – following the ISC model. Alternatively, a sub-committee of senior members of the HCDC could be appointed to look at specific areas that require a more sensitive handling of information. This may have implications for the types of candidates that decide to put themselves forward, for example, if they believed their background would prevent them from passing the vetting process. It may also cause a high degree of embarrassment if MPs put themselves forward and fail to pass the necessary security checks. However, there is evidence that the ISC has been able to respond to this issue when a number of candidates were proposed who were not “considered suitable to serve on a committee with such a sensitive mandate” after the general election in 2017.[xxii] Expanding the number of committees with access to classified material may also have practical implications; in terms of the suitability of the parliamentary estate to hold close-door meetings/ hearings. Therefore, it may be appropriate for plans to be made for a ‘clean room’ to be established in Parliament so that meetings involving sensitive material can be conducted.

4.   Conclusions

4.1 Legislative scrutiny of executive decision-making has expanded significantly over the past two decades. However, two major obstacles are preventing committees concerned with defence and security policy from being as effective as possible in positively influencing government policy. The first is that no mechanism exists within Parliament to provide democratic oversight of UKSF. The second are the restrictions placed on members of committees like the HCDC, which prevents them from accessing classified and sensitive government material to support their work. We argue that lessons can be drawn from the U.S. Congress, not only in terms of their approach to special forces oversight but also broader lessons on how congressional oversight committees have better access to support staff, as well as the permissions to review sensitive government documents pertaining to their nation’s national security. Incorporating some of these approaches in the UK system could improve the effectiveness and influence of the select committee system with regards to overseeing government defence and security policy, while also engendering greater trust between the committee and MOD. 

References

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