Executive Accountability and National Security
| Published date | 01 May 2021 |
| Author | Lorna Woods,Lawrence McNamara,Judith Townend |
| Date | 01 May 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12624 |
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Modern Law Review
DOI:10.1111/1468-2230.12624
Executive Accountability and National Security
Lorna Woods OBE,Lawrence McNamara and Judith Townend∗
The protection of national security has traditionally been an exception to general norms of pub-
lic accountability,based on prerogative powers. The last three decades have seen eorts to bring
national security closer to the normal constitutional control mechanisms of parliament and the
courts. The design of and changes to mechanisms of accountability have,however,been accepted
without discussion of the often narrower purposes for which they were rst established (most
notably for oversight of surveillance),the extent of their departure from constitutional princi-
ples,or their impact in embedding new forms of exceptionalism in the constitutional framework.
This article critically assesses these developments, prompted for example by the Law Commis-
sion’s recommendations to reform ocial secrets laws, which adopted trusted intermediary and
indirect accountability models without full consideration of historical and contemporary con-
cerns or the exceptionalism on which they were based.Though focused on the UK, our account
provides a cautionary tale for national security law reform in any modern democracy.
INTRODUCTION
The British constitution is based on the accountability of the executive to par-
liament withan independentjudiciaryensuring compliancewith thelaw. Tra-
ditionally an exception to these general norms of public accountability,the
protection of national security constitutes an area where information ows are
tightly controlled and the executive can act without approval of the legislature
and where judicial intervention will be rare and limited.Secrecy has been de-
manded to protect the national interest,though this and national security are
terms which can cover a range of interests and arise in many dierent contexts.
From the late 1980’s there have been moves to bring national security mat-
ters closer to the normal constitutional control mechanisms of parliament and
the courts, changes vital and valuable for a modern democracy in which the
executive is accountable for its actions. Nevertheless, by no means did the un-
derpinning of the security and intelligence agencies (SIAs) by statute and the
introduction of external oversight constitute a golden age of transparency and
responsibility.1Given the sensitive nature of national security,the shift towards
∗Respectively, Professor ofInternet Law, University ofEssex; Reader inLaw, University ofYork;
Senior Lecturerin Media&InformationLaw, University ofSussex. Theauthorsare gratefulto
numerous people for the comments we received on drafts at various stages, including Simon Halliday,
Jenny Steele,Pablo Iglesias-Rodriguez and the three anonymous reviewers for this journal.We would
also like to thank our colleagues at the Information Law & Policy Centre at IALS,which provided
the forum for our early discussions of the ideas in this article.
1Shortcomings had long been identied; for example HC Deb vol 222 cols 131-138 29 March
1993; HC Deb vol 222 col 940 15 April 1993.
© 2021TheAuthors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(3) MLR 553–580
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Executive Accountability and National Security
ordinarystandardsandprocesses hasinevitablybeenincomplete. Indeed, con-
cerns about the need to counter terrorism have given rise to state calls for
furtherpowers, especially inthe lightoftechnologicaldevelopments, andare-
assertion of the need to keep these capabilities and their deployment secret in
the service of national security.This process has seen measures and models put
in place seeking to balance the competing imperatives.These are dierent from,
if not inconsistent with,the usualmechanisms to ensure governmental account-
ability, which ordinarily require considerable openness and transparency.2Many
of these measures,as they have emerged,have been subject to criticism.3What
is lacking in the existing scholarship is a focus on the ways that,as the law has
been reformed, changes in the mechanisms of accountability on the basis of
the exceptional nature of national security have been accepted and replicated,
the circumstances in which they are used expanded,and, taken together, the
consequences for the constitutional settlement. It is only as time has passed that
the full extent of this has become apparent.
This article argues that there has been an increase in oversight and trans-
parency measures that rely on ‘trusted intermediaries’ in the area of national se-
curity,establishingamodel thatisrepeatedlyredeployed andnormalised. While
re-using existingapproachesmayseemuncontroversial, even sensible,ourcon-
cerns arise because those developments become treated as unproblematic once
adopted and then used as a model going forward in wider contexts.The focus
2Cabinet Oce, Ministerial Code (August 2019), paras [1.3] and [1.7] at https://www.gov.uk/
government/publications/ministerial-code. All URLs last visited 11 August 2020 unless other-
wise noted.
3For example on the role of the judiciary,including special advocates and closed material pro-
cedures: D.Feldman, ‘HumanRights, Terrorism andRisk: TheRole ofPoliticiansandJudges’
[2006] Public Law 364; J. Ip, ‘The Rise and Spread of the Special Advocate’[2008] Public Law
717; G. van Harten, ‘Weaknesses of adjudicationin theface ofsecret evidence’ (2009)13In-
ternational Journal of Evidence and Proof 1; A. Kavanagh, ‘Special Advocates, Control Ordersand
the Right to a Fair Trial’(2010) 73 MLR 836; A. Tomkins,‘Justice and Security in the United
Kingdom’ (2014) 47Israel Law Review 305; C. Walker and G. Lennon (eds), Routledge Handbook
of Law and Terrorism (London & NewYork,NY:Routledge, 2015)espch8,B. Dickson, ‘Terror-
ism and Legal Accountability’ and ch 18,D. Jenkins, ‘The Handling and Disclosure of Sensitive
Intelligence: Closed Material Procedures and Constitutional Change in the Five Eyes Nations’;
M. Chamberlain QC, ‘SpecialAdvocatesand Amici Curiae in National Security Proceedings
in theUnitedKingdom’ (2018)68University of Toronto Law Journal 496; L. Graham, ‘Statutory
secret trials: the judicial approach to closed material procedures under the Justice and Security
Act 2013’ (2019)38Civil Justice Quarterly 189. Onreview mechanisms: D. Anderson, ‘The In-
dependent ReviewofTerrorism Laws’ [2014] Public Law 403; J. Blackbourn, ‘Evaluatingthe
Independent Reviewer ofTerrorism Leg islation’ (2014) 67Parliamentary Aairs 955; K. Roach
and C. Forcese, ‘Bridging the National Security Accountability Gap: A Three-Part System to
Modernize Canada’s Inadequate Review of National Security’Ottawa Faculty of Law Work-
ing Paper2016-05, 31March 2016. Onoversightoftheintelligenceagencies: J. Ip, ‘Terrorism
laws and constitutional accountability’ in Walker and Lennon,ibid, 99; S. McKay andJ. Moran,
‘Surveillance Powers and the Generation of Intelligence within the law’ in Walker and Lennon,
this note, above, 133; T. Hickman andA. Tomkins, ‘National securitylawandthecreep ofse-
crecy: a transatlantictale’ inL. Lazar us, C.McCr udden and N. Bowles (eds), Reasoning Rights:
Comparative Judicial Engagement (London:Har t, 2014). The mostnotable recentattempt tobring
these togetherhasbeen P. Scott, The National Security Constitution (London: Hart, 2018). Scott’s
thematic choicesarecitizenship, justiciability, secrecy andsovereignty. See alsoP.Scott, ‘Hybr id
institutions in the national security constitution: the case of the Commissioners’(2019) 39 Legal
Studies 432.
554 © 2021TheAuthors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law ReviewLimited.
(2021) 84(3) MLR 553–580
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