Too Secret to Scrutinise? Executive accountability in foreign policy

Abstract

The scrutiny of Executive action in foreign affairs is a constitutional function for which the Foreign Affairs, Defence and Trade Select Committee is primarily responsible. To this end Parliament has, in principle, unlimited inquiry powers. Yet our foreign affairs select committee, and those in other Anglo-Commonwealth jurisdictions, have in recent years experienced serious and on-going challenges to the fulfilment of their investigatory role. The public interest is being pulled in opposite directions: the Executive relies on national security considerations to justify confidentiality, whereas Parliament can (and should) demand disclosure in order to hold the Government accountable. This tension will be explored through examining if the recent work of FADT achieves the "robust scrutiny" envisaged by the 1985 select committee reforms, followed by a detailed analysis of the validity of one common limitation on inquiry powers, statutory secrecy provisions. Possible options for reform, namely processes for public interest immunity claims, independent arbitration and increased use of secret evidence, will be considered as possible means of strengthening the accountability of the Executive for its foreign policy activities. Political remedies are unsatisfactory to resolve this tension in the context of constitutional obligations and responsibilities.