Justice and Security Bill [HL]
(11 years, 10 months ago)
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Lord Butler of Brockwell
Lord Butler of Brockwell
My Lords, I will speak also to Amendment 2. These two amendments are in my name and that of my noble colleague on the Intelligence and Security Committee, the noble Marquess, Lord Lothian, as well as those of the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Beecham. I can introduce the amendments quite briefly, and I hope that we are pushing at an open door. It is, I think, common ground with the Government that the Intelligence and Security Committee will serve Parliament and the public better if it is made clear that it is indeed a committee of Parliament and not a creature of the Government. Since its creation in 1994 the committee has played an independent part, but because the committee is appointed by the Government, it has often been difficult to convince outside observers of its independence. I again pay tribute to the committee, as I did in my Second Reading speech to earlier members of the committee. It is now common ground that it has behaved in such a way that it has come of age and its independence and duty to Parliament can be made clear by adding the words that it is indeed a committee of Parliament. I hope that that is agreed with the Government.
Amendment 2 would have the effect that the Intelligence and Security Committee would enjoy the same rights and privileges as a departmental Select Committee in respect of having parliamentary privilege. Perhaps I may just explain that. Because the Intelligence and Security Committee is created by statute and is not a Select Committee of Parliament, it does not automatically receive the same rights and privileges as, for example, a departmental Select Committee. That is the purpose of writing in the Bill that it should have parliamentary privilege. This issue is important, because the committee’s work has to be conducted in confidence and those who give evidence to it, including not only the intelligence agencies but also others, must have confidence that the security of their evidence will be protected. This is necessary not only for future evidence but for past evidence, because in this litigious age there needs to be assurance that evidence previously given cannot be sought to be disclosed as evidence in any proceedings. To make that clear, this amendment proposes that privilege should apply to the proceedings of the Intelligence and Security Committee as it does to Select Committees of Parliament.
Lord Campbell-Savours
Is there a precedent for this form of committee anywhere within the constitution?
Lord Butler of Brockwell
There are indeed committees that are set up by statute. I can give the noble Lord three examples: the Ecclesiastical Committee of Parliament, the Public Accounts Commission and the Speaker’s Committee on the Electoral Commission. Those are all similar committees which have been set up by statute but are not Select Committees.
The Marquess of Lothian
My Lords, I rise briefly in support of the noble Lord, Lord Butler of Brockwell, on both amendments, to which my name is also attached. I do so because I am also a member of the Intelligence and Security Committee. I was first appointed to the committee in 2006 and therefore have some years of experience of it.
In looking at the first amendment I feel very strongly that we need to make it clear that this is more than just a committee. The problem that we have faced in terms of credibility until now, as the noble Lord said, is that we were a committee created by statute but appointed by the Prime Minister and reporting to the Prime Minister—who could report to Parliament in due course. Although we exercised what we thought was the maximum independence possible, the public perception was that we were actually a creation of, and therefore a tool of, the Executive. In that regard, less confidence was put in the reports that we produced. My belief has been that if this committee is to work properly—which is what I believe the Bill is about now—we need to make it clear that this is not just a committee hanging in the ether but a committee of Parliament: it is composed of parliamentarians, exercises its oversight of the intelligence agencies on behalf of Parliament and reports to Parliament, although the Prime Minister will ultimately have a veto over appointments and also have access to the reports that we produce. I believe that the simple addition of the words “of Parliament” will make it clear that what I am looking for can be achieved.
I have been told in the past that there may be difficulties about the words “Committee of Parliament”. I am a simple Scottish lawyer, and I have worked very hard to understand what these possible difficulties can be given that, as I said at Second Reading, a committee of Parliament is what we are effectively becoming. I hope, therefore, that the Government will accept that, because I think that the committee’s credibility in exercising parliamentary oversight of the intelligence agencies is an important part of our developing constitution.
I turn briefly to the second amendment spoken to by the noble Lord, Lord Butler of Brockwell. I have very little to add to what he said other than this. He talked about the need for those who give evidence to the Committee to be able to do so in the knowledge that their evidence will not suddenly be made public. That is a very important part of the way in which the Intelligence and Security Committee works. It is particularly important in one respect. When the intelligence agencies give evidence to us they will naturally take account of how secure their evidence will be. If they feel that that evidence is not secure then they quite simply will not give us that evidence. We rely on their confidence in us to ensure that they give us the maximum amount of information upon which we can exercise our oversight. Unless we have the protection which is the purpose of the second amendment I believe that that confidence will not be there. I hope, therefore, that the Government will accept both amendments.
Lord Campbell-Savours
My Lords, I have reservations which I will deal with when I speak to my amendment arguing the case for a Select Committee to take on these responsibilities. Parliament is being required to approve wording which suggests that this committee is controlled by Parliament, but without recognising what the Justice and Security Green Paper of October 2011 says at paragraph 3.19. It states:
“However, under such arrangements”—
that is, the arrangements of a Select Committee—
“the Government would clearly have no veto on publication of sensitive material”.
I repeat:
“no veto on publication of sensitive material”.
In other words, the provision is being introduced as a way for the Government to secure control outside of Parliament, through this half-measure of a committee, over the publication of sensitive material. My view is very simple. If they want to do that, let it be done through a full Select Committee structure. That is the substance of my amendment which will come later.
Lord King of Bridgwater
My Lords, if I may intervene in this discussion, I seek to bring to it the “veneer of experience”—to quote the Deputy Prime Minister, as the noble Baroness on the Front Bench did on Second Reading—that this House can contribute on these matters. I am delighted to follow the noble Lord, Lord Campbell-Savours, who is an excellent member of the committee that I had the privilege to chair for a number of years. In listening to this debate I am absolutely sure that we have reached the time to move forwards. However, I am torn between Amendment 1, the significance of which I have to admit I do not fully understand, and Amendment 3, which proposes moving to Select Committee status. Early in our committee’s discussions we considered the role of a Select Committee, and—if I can stop the noble Lord mucking up my papers—I shall find a quote from a report that our committee produced in 1998 or 1999. We said:
“There are arguments for and against such a status, and we have not as yet formed a view on the issue … Even if thought desirable, however, such changes would take time to introduce, and could alter significantly the structure of relationships between the Committee and the intelligence community”.
I think that, as time has moved on, we have established that sort of relationship.
It is important to remember where we have come from. Although the noble Baroness, Lady Manningham-Buller, rightly points out that the agencies were not resistant to the establishment of a committee—that certainly matches my own impression, and she knows the situation much better than I do—many serving in the agencies wanted not only an Intelligence and Security Committee but, in their own interest, for that committee to be as thorough and active as possible so that it could carry credibility. As one of the big problems facing the agencies was false allegation and rumour, an independent and credible body would be seen to address and deal effectively with those issues—in secrecy if necessary, and without disclosure of operational information or other evidence, some of which might come from other countries.
My feeling at that time was that it was critical that we should establish credibility, because although many of the agencies were in favour of the committee, others were nervous about whether parliamentarians could be trusted, whether information would be secure or whether it would be leaked—all the problems that one might advance. There was a lot of hostility. I recall that, way back in the early 1980s, Jonathan Aitken was an original proposer of an intelligence and security committee, and he was interrupted by an old colleague, Ray Whitney—a distinguished former member of the foreign service, and a Member of Parliament at the time—who said that whatever one says about the Senate intelligence committee, there is general agreement that it has destroyed the American intelligence capability. That was an exaggeration of the sort of strong feeling common at the time. Having had the privilege of serving under the noble Baroness, Lady Thatcher, who was not the first outspoken advocate of this particular approach, I can attest that there was a lot of resistance to it.
When our committee started out it was very important to establish its credibility. I felt at that time—and members of the committee shared this view; I think that the noble Lord, Lord Campbell-Savours, was a keen advocate of it—that it was more important to establish the trust of the agencies, to make sure that they were forthcoming with information, because they could switch us off at any time. After all, we were into the “don’t-know don’t knows”, so establishing that trust was important. I believe that that trust, confidence and relationship have been established now—more than established, I hope, given the passage of time. I am therefore very torn between these amendments, Amendment 1 or 2, which propose setting up a Committee of Parliament, or whether there is not an argument for going straight to a Select Committee. I have learnt something today from the noble Lord, Lord Butler. After spending a brief period of 30 years in the House of Commons, I had not understood that the PAC was set up under a different arrangement. One learns something every day. It sounds attractive for the IC to be on the same wavelength.
Lord Butler of Brockwell
It is confusing but what is set up under statute is the Public Accounts Commission, not the Public Accounts Committee.
Lord King of Bridgwater
I have now unlearnt something which I thought I had learnt, and I am grateful to the noble Lord for his intervention. I certainly think that when we come to Amendment 3 there are strong arguments for moving in that direction, provided that the arrangements can be established to ensure security of intelligence. I think that the noble Lord, Lord Campbell-Savours, was with us when we went to Washington. One is struck by the number of Senate committees there. The Senate Select Committee on Intelligence is held in a totally secure room, and there are badges for all 19 government agencies that the committee oversees as part of its various responsibilities. It is a completely different facility. If, as I understand it, the proposal is that the facilities will now be provided by Parliament, as opposed to the separate facilities that existed in the Cabinet Office, it will be necessary to think about what sort of facilities will match up to the requirement for total security and the proper safeguarding of intelligence.
Baroness Smith of Basildon
My Lords, one thing that the debate has shown so far—and this will also apply to the debate on the next amendment—is that the Government have not yet done enough to satisfy your Lordships that the arrangements for independence for the committee are adequate. This debate has been interesting. I think I understood the noble Lord, Lord King of Bridgwater, correctly when he said that he was quoting me quoting the Deputy Prime Minister on the “veneer of expertise”. I in no way associate myself with that comment, nor with the one that I am told the Liberal Democrat spokesperson from the House of Lords made on TV today—that we are a House full of dead-beats and has-beens. I think that this debate will prove how wrong both those comments are.
The arrest just last week of alleged Olympic terror plot suspects was a clear reminder of the vital and largely hidden work that the intelligence and security services undertake. Part of the discussion that we are having now is based on the fact that the strength and health of our democracy in the UK depends on a very fine balance between the Government, who are empowered to protect our national security, and the strength, credibility and authority of the institutions that have oversight of that power.
I suspect that during the course of Committee the majority of debate will understandably be reserved for the changes proposed to the judicial element of that oversight. However—and I make this point very strongly—our system of democracy is, unlike that of the USA, based on the concept of parliamentary sovereignty. That means that Parliament, as representative of the public, is the ultimate check over other government institutions—not the Prime Minister or the Government. A powerful security service demands equally powerful and independent parliamentary oversight, and the Intelligence and Security Committee is a very important plank in this oversight mechanism. However, it is widely recognised that, while the committee has in some ways developed its remit in response to the changing nature of government intelligence and counterterrorism activities, the law has not kept pace with that change.
The committee was set up in 1994. We saw in its 2009-10 annual report that the committee itself recognised that reform was necessary to maintain public confidence in its oversight function. It asserted that corporate knowledge of the committee’s procedure within government had been lost over time and that in some cases this had led—this is a serious point—to misunderstandings about the statutory independence of the committee and its work and about the nature of the relationship between the committee and the Prime Minister. The committee has suggested a number of reforms which I think we will hear more about and discuss today.
The Minister of State, Home Office (Lord Henley)
My Lords, I think that the final point made by the noble Baroness, Lady Smith, on the Bill of Rights is posed to the movers of the amendment, and I will leave them to respond to it when the noble Lord, Lord Butler, winds up the debate.
My noble friend Lord King said that he had been described as having a veneer of experience in these matters. All four speakers before the noble Baroness and me had far more than a veneer of experience in these matters. All four have served on this Committee or have been chairman, like my noble friend, and we are very grateful that they bring their expertise to this because it is a matter that requires a great deal of discussion and consideration by us.
I start by setting out what changes the Bill proposes to make to the ISC’s status. The new ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. In parallel with the Bill, the Government intend that the ISC will be funded by Parliament and accommodated on the Parliamentary Estate, and that its staff will have the status of parliamentary staff.
As both my noble friend Lord King and the noble Baroness, Lady Smith, have implied, the current ISC has been criticised for being a creature of the Executive—I think that was the word that the noble Baroness used. The intention of this measure is that the ISC should be brought much closer to Parliament. It will be a committee of Parliament created by statute in the same way as other bodies are, as listed by the noble Lord, Lord Butler, in response to the noble Lord, Lord Campbell-Savours.
The noble Lord, Lord Butler, said there were three examples. The Speaker’s committee for IPSA, created under Section 1 of the Parliamentary Standards Act 2009, is another. Like those other statutory committees of Parliament, the ISC will not have all the attributes of a departmental Select Committee. The question of whether such a committee would be the appropriate route to go down is another matter. We will deal with it when we debate Amendment 3, which the noble Lord will speak to immediately after this group.
The two amendments that we are considering concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. Some noble Lords will be aware that my right honourable friend the Lord Chancellor and Justice Secretary has written to the chairman of the ISC, Sir Malcolm Rifkind, stating that in principle the Government support such a change, or one that would have a like effect of making clear in the Bill the parliamentary character of the ISC. However, before we could accept the amendment that noble Lords proposed and which the Opposition support, we would need to be very clear that it would be the best means to achieve this end and what all the implications of such a change would likely be, including the very tricky issue of parliamentary privilege. Any change that has the possible impact of increasing the risk of unauthorised disclosure of sensitive information should be very carefully thought through.
My noble friend Lord Lothian described himself as a simple Scottish lawyer. I always get rather worried when noble friends describe themselves as simple, Scottish or a lawyer, and when all three come together I am even more alarmed. However, the amendment could affect the ISC’s status for other purposes. For example, it could bring the ISC within the ambit of the Freedom of Information Act 2000 by making it part of the House of Commons and the House of Lords for the purposes of the Act. It may also change the ISC’s status under the Data Protection Act 1998, as Section 63A of the Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC’s data-processing activities. I put it to my noble friend—the simple Scottish lawyer—that those consequential effects need to be examined in some detail.
It has been very helpful to debate the issues raised by the amendment. I hope I have gone some way to explaining why I am not in a position at this stage to say anything more. Certainly I can say that the ISC chairman, Sir Malcolm Rifkind, has responded to my right honourable friend’s letter, and that the Government would welcome further discussion with the ISC on this important issue.
The second amendment in the group deals with the very significant issue of parliamentary privilege and takes us back to the Bill of Rights. This is a matter that the House has considered on a number of occasions in recent years. The Government’s most recent consideration of the issue came in the Green Paper that was published in April this year. Noble Lords will be aware of the importance that privilege can play in the functioning of this House and of another place. Parliamentary privilege includes such fundamental concepts as the freedom of speech of Members of this House and of another place, and the prohibition on courts questioning proceedings in Parliament. Both Houses and their Select Committees benefit from that privilege. Freedom of speech in the context of the Bill of Rights is just one aspect of parliamentary privilege.
At present the Intelligence and Security Committee is a statutory committee of parliamentarians. However, it does not at present benefit from that parliamentary privilege. The amendment would provide that the proceedings of the ISC would be proceedings in Parliament for the purposes of Article 9. That would ensure that the committee’s proceedings were covered by parliamentary privilege. The question posed by the amendment is about the consequences of privilege attaching to the proceedings of the ISC, which would be that criminal or civil proceedings could not be brought in respect of statements made by ISC members, or witnesses before the ISC, in the course of ISC proceedings.
Noble Lords may say that this makes very little difference because the ISC members are all parliamentarians and can benefit from privilege when participating in parliamentary proceedings. However, it would be different for a witness, who at present would not benefit from privilege. Other consequences would be that disciplinary proceedings against witnesses, based on statements made in ISC proceedings, would be barred as such proceedings would constitute a contempt of Parliament.
Noble Lords will understand from what I have said that there is a degree of sympathy for both amendments, and particularly the first, but more work needs to be done. I should be grateful if noble Lords accepted that and that it would probably be best at this stage to withdraw the amendments and to have further discussions, particularly in the light of the fact that my right honourable friend the Lord Chancellor has written to Sir Malcolm Rifkind about this and said that he is broadly content with the idea. However, as I have explained, we believe that more work is necessary. With that, I hope the noble Lord will feel able to withdraw his amendment.
Lord Butler of Brockwell
My Lords, I am grateful to the Minister for that reply and to the other Members who have taken part in the debate. Two clear points have come out of the debate that are agreed on all sides. First, the ISC should be able to fulfil its duties to Parliament as strongly as possible. It should be clear that it is a servant of Parliament and not of the Executive. That was the purpose of the first amendment.
We will debate in a moment the amendment tabled by the noble Lord, Lord Campbell-Savours, proposing that the ISC becomes a Select Committee, but, as I understand it, special safeguards are required for it, both in relation to appointments and in the nature of its reports: namely, that things that are genuinely secret should not accidentally be released in its reports. I think I am right in saying—this will no doubt come out in our next debate—that there will need to be a statute for that reason, so the statute will be necessary anyway. It would be difficult to apply those restrictions to a Select Committee of Parliament, but that will no doubt also come out in our next debate.
The purpose of the clauses in the Bill and of the amendments is exactly the same as the purpose that the noble Lord, Lord Campbell-Savours, is pursuing. I am very strongly in favour of Parliament’s effective control over the Executive. I have become more strongly in favour of that since I became a Member of Parliament rather than a member of the Executive. I believe in it very strongly, and I believe that of all the parts of the Executive, the security agencies need to be effectively controlled by people who are in a position to see and be trusted with information about what they are doing. So I do not think there is any difference about the ends.
The second thing is that witnesses to the ISC should have confidence in the security of the evidence they give. Again, I do not think there is any difference between us on that subject. As the Minister said, members of the ISC, as Members of Parliament, may be secure in that respect, but witnesses may not necessarily be so secure. If a situation arose in which the courts could question the proceedings in the ISC and enforce the revelation of evidence, the ISC would simply not be able to operate effectively. That is the purpose of seeking to apply in the statute that the ISC should have the benefit of parliamentary privilege as if it were a Select Committee of Parliament.
Again, it is clear from the Minister’s reply that the question here is about means rather than ends, and I entirely accept that those need to be carefully looked into and that the implications of the proposed amendments need to be carefully examined by those who are sufficiently expert to do so.
In the belief that our objectives in this are the same, that we are talking about means and not ends, and that the Government will now look at ways of achieving those ends, I am very happy to beg leave to withdraw the amendment.
Lord Campbell-Savours
“( ) The ISC shall be a Select Committee of Parliament.”
Lord Campbell-Savours
My Lords, I welcome this debate on an issue that I have pursued now for 14 years since 1998. As I foresaw the response that the Minister has given today—that he was unable to give undertakings on privilege—I asked for my amendment to be taken separately. He will now understand why I had it moved from the group containing Amendment 1.
I corresponded with and made direct representations to Prime Minister Blair and others in Downing Street over a number of years. I was supported in doing so by the overwhelming majority of Labour Members of the other House and members of other political parties, with whom I had conversations in the late 1990s. There was overwhelming support for the principle of a Select Committee. I do not believe that oversight is fully credible while the committee remains a creature of the Executive or some halfway house that lacks parliamentary privilege. Privilege is the central issue in this debate—this was raised in the debate on the previous amendment—and that is why I am driven down the Select Committee route.
The problem at the moment is that the committee considers its relationship with the Prime Minister more important to its operations than its relationship with Parliament. The Government’s proposal seeks to address that but, in reality, it will make little difference to the nature of the relationship. I strongly dissent from the view that this relationship with the Prime Minister is more important than the relationship with Parliament, and that is why I favour Select Committee status.
We live on the threshold of an era in which civil liberties and freedoms will be subjected to increasing pressure. In such conditions, one has to beef up systems of regulation, safeguard and oversight. Those systems need to command public support, confidence and trust. I do not believe that, despite the good intentions of its membership and the witnesses who come before it, the ISC, as a creature of the Executive, can possibly meet those tests. What is proposed will in reality make little difference.
The committee needs new and increased powers to call persons and papers and to communicate with other committees. There are times when the information that comes before the committee should, in certain circumstances, be referred to other Select Committees. I shall deal with that in later amendments. This would enable it to carry out its inquiries. It does not mean that security will be in any way breached because mechanisms could be introduced to ensure that that does not happen with the release of material.
It is already acknowledged that the committee needs the power to report directly to Parliament and the argument has been well rehearsed over the years. The ISC needs the power to take evidence under oath: Select Committees have that power. It would not be that it took all evidence under oath but it should have the power to do so. As I say, Select Committees have that power but the ISC does not.
Without going into any details, there are times when the committee might receive assurances on issues where, if those assurances were given under oath, the committee might have the confidence, with the approval of the Prime Minister, to make statements that would be extremely helpful during the course of public debate and in the exercise of reassuring public opinion.
The ISC needs the power to take evidence under privilege. Technically, if a person appeared before the committee today, he could libel another person because he would not be protected by privilege. The committee has none of the powers that are afforded to witnesses giving evidence to parliamentary Select Committees. Above all, the committee should have the power to hold witnesses in contempt if they deliberately mislead the committee, which is what happens in the Commons. If Parliament knew that the committee had the ability to take evidence under oath and to hold witnesses in contempt in the event that they were deliberately to mislead, it would substantially increase the credibility of any reassuring statement that the committee makes.
The arguments are not new. They have been rehearsed at length on a number of occasions in the past, most notably during the passage of the 1989 and 1994 legislation—we go back a long way in this discussion. Those supporting Select Committee status included the noble Lord, Lord Hattersley, then speaking from the Labour Front Bench, the future Secretary of State for Trade, the noble Lord, Lord Mandelson, and the future Minister at the Cabinet Office, now the noble Lord, Lord Cunningham of Felling. All made positive speeches in favour of Select Committee status. In 1989, the entire Labour shadow cabinet, including the shadow Home Secretary and Foreign Secretary voted for full Select Committee status and not a halfway house. I have a copy of the Division List and the entire Labour membership in the House of Lords at the time voted for Select Committee status. We are not arguing new principles today.
Some say that legislation is required if the decision is taken to accord Select Committee status, but that is not altogether clear, as the noble Lord, Lord Butler of Brockwell, was saying. It is argued by many that, although some tinkering with the law might be necessary, resolutions establishing the committee—effectively a Joint Committee—carried in both Houses with simple resolutions could cover all the functions of the committee.
I recognise that there is some opposition to the whole proposal. Some argue that the fact that the committee reports directly to the Prime Minister gives individual members of it additional clout, kudos, weight or importance in the political world. That was the view of some on the committee when I was a member. I strongly reject that view. Others argue that no way can be found to restructure the practices and the procedure of the Select Committee so as to ensure executive influence for reasons of national security over material that it may seek to publish. That is simply untrue. A resolution of both Houses could require that the committee sought the approval of the appropriate agency before reporting to the House. The resolutions could further provide that, in the event of a dispute arising between the agency and the committee over the publication of information or evidence in a report to the House, the matter at dispute could be referred to the Prime Minister for his decision and the committee could be required to comply with the decision of the Prime Minister. That is what I referred to during my Second Reading speech as the override.
If in unforeseen circumstances, the committee, or any member of it, were to threaten to breach the committee’s rules and procedure, as agreed by the House in these resolutions, it would always be open to the Leader of the House, on the instructions of the Prime Minister, to dissolve the entire committee or to remove any member of it on a resolution tabled on one day which took effect on the next. There are adequate provisions, although I shall argue on a later amendment that this power would need to be exercised with great caution.
I believe that Parliament could carry resolutions that make the committee as hermetically sealed as any structure that currently exists. We are told that such a committee could not be prevented from taking evidence in public session, if that were the wish of the committee. In response, I argue that a resolution of the House could introduce a general prohibition on the Select Committee taking evidence in public session—resolutions of the Commons can be carried to deal with the issue. It could further place a requirement on the committee to seek the permission of the appropriate agencies and the Prime Minister in conditions of dispute, if it wished to take evidence in public in particular circumstances. It is argued that although a Select Committee is neither more nor less likely than the ISC to leak, as a Select Committee it would have the right to publish reports in a way that could prove prejudicial to the interests of national security. A resolution of the House could introduce a general prohibition on the Select Committee publishing reports without approval. It could further place a requirement on the committee to seek the permission of the appropriate agency and the Prime Minister in conditions of dispute, if it wished to publish a report. Safeguards would be available for every eventuality in the event that it were to be created a full Select Committee of Parliament.
As prime ministerial appointees, members are currently responsible for reporting collectively to the Prime Minister. It is argued that such limited powers to report would not be possible if the committee were appointed by the legislature. There is no reason why the resolution of the House should not stipulate the procedure to be used in the publication of reports. It could require the committee to publish its reports subject to sidelining by the Prime Minister for reasons of national security, as currently happens.
It is also argued that a move to a parliamentary arrangement could lead to greater pressures on Ministers to be accountable as witnesses, with less emphasis on agency heads giving evidence. That argument is not supported by an examination of practices in some of the House’s other committees. In my 11 years on the Public Accounts Committee, Ministers never attended as witnesses. I am not advocating a prohibition on Ministers attending the ISC, but Ministers would be no more likely to attend a House Intelligence Committee than the ISC. With hearings being held in private, there will be no additional pressure on Ministers to attend. I believe that with the right membership, a parliamentary committee is as secure as the ISC. I reject the statement in the Green Paper as I said in an earlier intervention; if the right people are selected there will not be a problem.
I remind the Committee that this is the first real open debate we have had in Parliament on this issue in 14 years. I welcome this debate. We need now to grasp the mettle and not muck around with some interim or secondary arrangement. There is an expectation among colleagues that the system should work. We must be satisfied that the structure we create is going to work so that we have a system that is credible with the public.
The Marquess of Lothian
My Lords, I have long been an admirer of the persistence of the noble Lord, both in this House and in the other place. Certainly, in regard to his amendment, that is no exception. I wish to correct him on one point he made at the end. There is no prohibition on relevant Ministers attending the ISC and they have done so on a number of occasions. That is simply a matter of fact.
Over the years that I have been a member of the ISC, I was one of those who thought very carefully about the future of the committee and whether it should be a Select Committee. Although I understand many of the points made by the noble Lord, particularly in relation to privilege, I shall say why ultimately I do not agree with him on making this committee a full Select Committee of Parliament.
Over a long—probably overlong—if broken career in the other place, I served on two Select Committees. Their purpose—I refer to the Select Committee on Energy and the Public Accounts Committee—was to openly take evidence that was available to the public on matters of relevance in terms of energy and of public accounting. The culture of a Select Committee is based on being able to take open evidence. There is no compunction on witnesses at a Select Committee to give full answers; there is no evidence given on oath. But normally a Select Committee is not dealing with confidential information that cannot be disclosed in that forum.
Lord Lea of Crondall
My Lords, I wonder whether we are missing a major point in all this, which is why my instinct is strongly to support my noble friend Lord Campbell-Savours. I refer to public confidence in the work of MI5 and MI6 and what we know about them.
There is a sort of closed shop mentality at the moment, as I see it, what some people call the “secret state”. People have the right to write their books and put titles on them, but when I want to find out how many of the e-mails that I write could possibly be hacked by one of the agencies, there is no way of knowing, obviously. But should there be some way of knowing the categories of e-mails that can be hacked? Is it part of national defence and security that we do not know an awful lot about what is going on? This has a tangential bearing on whether it is a parliamentary committee or whether it is the committee that we have at the moment. Incidentally, as I understand it—I will be corrected if I am wrong—there is no Labour Member of the Lords on this committee at present. Is that correct?
Lord Butler of Brockwell
There are Labour members, but not Labour Members of the House of Lords. There are two Members from the Lords, my noble friend and a Cross-Bencher, but there are Labour Members from the House of Commons.
Lord Lea of Crondall
The noble Lord, Lord Butler, is correcting something that I did not say. I said Labour Members of the Lords. There are no Labour Members of the Lords on this committee.
The information flow should be the subject of a much more substantive statement by the Minister when he responds than is normal on these occasions. I was interested in the remark made as an aside by my noble friend Lord Campbell-Savours on the fact that this question en principe has never been discussed in the past 14 years. I rather suspect that if we were setting up a constitution for a new member of the United Nations, we would be a little worried if that were the case. Although I am not saying that this amendment is the right thing, I will support it because I believe that it opens up a very important question. We know that the noble Lord, Lord King of Bridgwater, is a typical, reputable, outstanding and well respected member of the circle in which this sort of activity takes place. It used to be called the Establishment. I do not know whether that was a compliment or an insult; it was half way between. However, we do not need to be so scared of the idea that we are always playing into the hands of enemies of the country, whether it is al-Qaeda or anybody else, if we have a more adult approach to these matters. Political balance is needed by those who have been involved in the agencies—I see a couple on the Front Bench—where people find it perhaps difficult to understand the world where other people come from. It would be much better if the normal rules of political balance and openness were observed.
Finally, as regards the remark of the previous speaker, we had the example last week of members of the Treasury Select Committee not covering themselves in glory when asking questions about LIBOR because they did not really understand what they were talking about. I can see the objection that ordinary souls on a committee like this would be of no use because they would not know what they were talking about. Obviously, by definition, they would not know what they were talking about as they would not have been serving in one of the agencies or been on this intelligence committee for a number of years or been Secretary of State for Defence or whatever. I wonder whether that is going to inspire public confidence.
Lord Deben
My Lords, I intervene as somebody who has not been a member of this committee. I have now managed to get papers from the noble Lord who sits next to me. Unusually I find myself wishing to ask my noble friend to listen carefully to the words of the noble Lord, Lord Campbell-Savours, for the following reason. The issue is the confidence of the public in this committee. I have a difficulty of inventing a committee of a particular kind in order to meet that confidence requirement because it seems to start from a grave disadvantage of looking as if you have an artefact here. People complain about the fact that nobody seems to know too much about what goes on, so let us invent something that seems to meet their requirements. That is what it will look like if we make the alterations suggested by the noble Lord, Lord Butler, although I am entirely in favour of them.
The advantage of a Select Committee is primarily that it is something that people know and it has, over the years, established a position, as a concept, of independence. It clearly is not the creature of the Prime Minister or of the political parties. It is manifestly, and increasingly, with the election of its chairman, an independent form of investigation. Therefore, prima facie, it would be much more sensible to use that mechanism and to make such changes as are necessary for the particularities of such a Select Committee so that at least when it is referred to as a Select Committee people immediately catch on—in so far as they know about anything in Parliament—that this is an independent, non-party parliamentary committee that is treated by its members as a place where they work in the national interest and not in their party-political interest.
I think there is an important advantage in using the Select Committee structure. My worry is that my noble friend will be led by all sorts of officials—I have been in this position and I hope that the noble Lord, Lord Butler, will excuse me when I try to describe it—of the “better not Minister”, “it would be safer to do something slightly different”, “you never know what might happen” kind. That attitude is endemic in the giving of advice because advisers would prefer not to have given advice that turned out not to be quite right, so it is better to give the most negative advice.
I hope my noble friend the Minister will be prepared to say that we can create a construct that is a Select Committee and sits naturally in the parliamentary structure but is specifically designed to deal with security matters and will be what everyone outside will recognise is different from a Select Committee on the environment or a Select Committee concerned with trade and industry. Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special?
I very much respect my noble friend Lord Lothian and I understand his fear that the Select Committee will be expected to have public hearings. I agree that a public hearing in which every answer is, “I am afraid I can’t answer that” will be an embarrassment and not helpful, but it seems to me not impossible that, before any such hearings are started, this Select Committee should publicly be said to be a Select Committee that does not have public hearings, except in unusual circumstances. You start off as you mean to go on. No one would misunderstand that. Indeed, I think if it were stated like that, it would be much easier for the committee to proceed, and I would like to see it. But to say that because it is different from other Select Committees in that sense, it ought to be set up in an entirely different way is a mistake because it is more similar to a Select Committee in every other manner. What people want to know is that it is independent and all-party, that its members take things seriously as parliamentarians and that its secrecy is only the secrecy that is necessary because of the nature of the things that it discusses.
I hope my noble friend will not be led astray by the siren voices of those for whom this is a step too far. We have been a long time discussing this issue. The noble Lord, Lord Campbell-Savours, reminded us of how long and there was time before even he came on the scene in which this discussion was taking place. I hope we will not step back now. We ought to do the thing properly and set down the terms of the Select Committee in advance.
Lord Carlile of Berriew
My Lords, I welcome the opportunity to say a few words on this amendment, mainly because I always listen with great respect to the noble Lord, Lord Campbell-Savours. His knowledge of parliamentary procedure is second to none and he is probably the most skilful of anyone I have observed in what one might call the parliamentary maze. However, I disagree with his proposal that there should be a Select Committee for the following and other reasons.
First, intelligence is not created in a vacuum but for a reason. Sometimes it is found to be created for a reason that proves to be suspect but not necessarily to be followed. It is not completely free of scrutiny; far from it. A little later in the Bill there are references to the Intelligence Services Commissioner. I am bound to say—I said this before when I was independent reviewer of terrorism legislation—that the Government and the security services could give a more coherent and fuller narrative of what they do. I pay tribute to the noble Baroness, Lady Manningham-Buller. She started the process in a convincing way of giving at least some narrative that enabled not only the public but, perhaps more importantly, parliamentarians in the first instance to understand why certain things were being done and certain actions taken. It is subject to oversight and it is necessarily subject to confidentiality. Accountability is very important but we have to face up to the fact that full transparency can never be achieved, and indeed should never be achieved for it runs the risk of exposing those who do very difficult tasks for our intelligence service to risks to which we would not wish them to be exposed.
Furthermore, a Select Committee of either the other place or both Houses involves the normal Select Committee procedures. It is very difficult to limit those procedures because Parliament makes its own rules. Those of us such as the noble Lord, Lord Campbell-Savours, a number of others present and me—derided as we are by some for having been in the House of Commons before coming here—know something that possibly not everyone else knows, which is that Erskine May is not like a legal textbook. The rules of parliamentary procedure are often made up as you go along and one cannot anticipate clearly what they will be. Sometimes the mood of the nation changes those rules. Think back to what happened in London on 7 July 2005 to see the emotion that followed those events and how easy it would have been for parliamentary procedure to have been changed, either to make a Select Committee much more secretive in its approach— inappropriately so perhaps—or to go the other way and open up everything to public scrutiny.
If Members of this House or another place are appointed to Select Committees by the normal route, it exposes much of what is given to them to their staff. The Government should be entitled to look at the ability of the proposed members of a committee to retain and hold to confidential material and the reliability of their staff. The one thing one cannot afford in this area is inadvertent leaks or the innocently meant, but foolish, acts of the unwise.
What the Government propose in this Bill is, in my judgment, appropriate. We have a committee that is accountable but not wholly transparent for perfectly good reasons. It has the capacity to look at secrets in detail but within an appropriate context—as limited, for example, by Clause 2(3), which means that the Prime Minister and the ISC must be satisfied as to the part that anything that might be inquired into plays in any ongoing national security operation.
My judgment, for what it is worth, is that what the Government propose in this Bill creates a prudent and carefully thought-out structure for the proper and rigorous scrutiny of how secret material is dealt with by Her Majesty’s Government. There is a danger that we play into the hands of those who believe that because something is secret there is some kind of ghastly Executive conspiracy going on. That is completely untrue. Of course, mistakes are made; there are people in the secret services who have to delve into the most difficult things that face our society, and they are bound to make mistakes. I hope that occasionally they do make the odd mistake in the protection of the public, because overcaution is not a bad thing if it saves lives—sometimes large numbers of lives. But the menu provided in this Bill allows the proper balance, and I shall, if necessary, not support the noble Lord’s amendment.
Lord King of Bridgwater
The noble Lord has great experience in these areas, and I take it from the tenor of his argument that he is not advocating a Select Committee approach. He said that he was in favour of what the Government have in the Bill, but since then the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, have produced amendments. What is his view on those?
Lord Carlile of Berriew
At the moment I am dealing with the amendment proposed by the noble Lord, Lord Campbell-Savours. I listened with great care to my noble friend Lord Henley from the Front Bench, and I am very content with the approach that he has taken. We should wait and see what the Government come up with in answer to the noble Lord, Lord Butler, who has great wisdom and experience in these things—I am completely open-minded about that. But I am not happy with the idea that we should have a conventional Select Committee or, even worse, a Select Committee whose rules have been fiddled with for this purpose.
Lord Elystan-Morgan
My Lords, like many Members I have been greatly impressed by the contribution made by the noble Lords, Lord Campbell-Savours and Lord Carlile. Both have the gift of being able to articulate their views with awesome clarity and very great force. If one had to, I should find it somewhat difficult to decide which one is correct in this matter. However, in respect of this debate and the earlier Amendments 1 and 2, it seems that everybody’s objectives point very much in the same direction.
In the first instance is the desire for sovereignty and independence for this particular body. By sovereignty one means that it is an organ, extension and delegation of Parliament, to such a degree that, as far as the Bill of Rights is concerned, it would be unchallengeable in the courts. I think that we are all agreed on that matter. At the same time, it has to be independent of the Executive and Prime Minister, which means that it should be, to use a canine expression, the watchdog of Parliament rather than the poodle of the Prime Minister. It is much easier to enunciate that principle than to work it out exactly because, by definition, the Prime Minister and to a large extent the Home Secretary has a constant flow of intelligence information, which will simply not be disseminated generally.
My other point relates to Select Committees. I listened carefully to the noble Marquess, Lord Lothian, and believe that the concept of a Select Committee is sufficiently broad and flexible to allow a great deal to be done of the nature suggested by the noble Lord, Lord Campbell-Savours. I would have thought that a Select Committee could always decide whether to sit in public or not and, if so, on exactly what terms. A Select Committee can decide whether a single word of its report is to be published or whether there is to be general publication, subject to sidelining. Sidelining, of course, can be a severe sanction. I will never forget the day, in about 1967, when I was a Member of the House of Commons and that flamboyant and splendid Member of Parliament Tam Dalyell was hauled before the House to answer a serious charge of contempt. It related to a Select Committee that was looking into the affairs of Porton Down, a most delicate situation as we all appreciate. There was an awesome hush; it was almost like a public flogging. There was the miscreant standing ashen-faced at the Bar of the House. It taught me a lesson about the tremendous and terrible jurisdiction that the House of Commons has, if it wishes to use it in a situation like that.
Where do we arrive? First, at a body that is not appointed by the Prime Minister; secondly, a body that is unchallengeable in the courts; and thirdly, a body—possibly a Select Committee—that is able to do its work with the confidence of the public, and yet able to maintain an absolute confidentiality which is so important to its very function.
Lord King of Bridgwater
My Lords, I agree very much with the noble Lord that—as the noble Lord, Lord Butler, said—there is no argument about the ends. We need to establish public confidence in a very important committee which has a very important role in overseeing the intelligence agencies and which clearly has to be regarded as being in a different world from the other areas of responsibility that Select Committees deal with. This is a difficult issue and a number of interesting points have come up during this debate which I had not anticipated. One point, made by my noble friend Lord Lothian, was the implication that this must involve, as I understood it, a majority of public hearings. My understanding is that the Defence Select Committee, particularly when discussing our nuclear deterrent, goes into secret session and there has never been any problem with that. I am not aware of any leaks from any of those proceedings. However, it is a challenge. The noble Lord, Lord Campbell-Savours, might remember that when we tried to meet totally in secret, as we did, I tried to see whether there was some way that we might at least have a public hearing. I certainly saw the risk, exactly as posed by my noble friend Lord Lothian, that if you were not careful you would end up with prepared questions and prepared answers—all planted—and it would be just a stage show, which would not carry much credibility.
As for the challenge about how we achieve this balance, I reflected on a bit of history. When Sir Anthony Blunt had to be outed at the beginning of the 1979 Administration of the Prime Minister Margaret Thatcher, there were considerable debates about whether it was time to have some sort of committee. Jonathan Aitken got quite a bit of publicity for being in this particular session when he stood up and said that,
“one debate and one Written Answer do not add up to adequate and continuing scrutiny of the Security Service”.—[Official Report, Commons, 21/11/79; col. 446.]
I think we would all agree with that. He said the Government should take the initiative and if they did not move to establish a “senior and more cautious” committee of privy counsellors, then in a different Parliament—perhaps one dominated by left-wing Back-Benchers—a more intrusive, less sympathetic Commons Select Committee might be set up.
Baroness Hamwee
My Lords, like other Members of the Committee I am a bit puzzled about how polarised the debate became a few minutes ago. It seems to have swung back now. I do not see all the distinctions that have been drawn, and I certainly do not see the distinction between the committee being there to ask questions in public or as something different to get to the bottom of an issue.
I agree, of course, that the committee must have the confidence of the agencies and that it must have public confidence. I would add, perhaps as a subsection of that second point rather than as a third category, that it must also have the confidence of those affected by events. When I was a member of the London Assembly, I was involved in some work following the events of 7/7, and one of the benefits of our being able to undertake some work was that it fulfilled the need of some who had been affected to tell their story and to have their story listened to. I am not suggesting that this is a pattern or even relevant to the majority of the ISC’s work, but I would not want it to be forgotten.
I think that this debate is leading us towards there being a Select Committee and that badging it as such is important because of what that says about the focus of Parliament’s responsibility to the public. I do not think it would require the rules to be fiddled with, but it would require them to be made fit for purpose. Perhaps it is naive and untraditional of me, but I do not see why the rules of a Select Committee cannot be made fit for purpose. It might require a lot of work, but I think it ought to be done.
I have some very non-technical and rather inelegant amendments later, but the point that they are intended to raise is that the default should be that the committee works for the public and in public, not as a stage show—absolutely not, because to take up one of the points that has just been made, I for one think that the most important questions that tend to be asked are the supplemental ones. I am glad that we are having this debate because I think that it is taking us in an important direction.
Baroness Manningham-Buller
My Lords, I declare what I hope is an obvious interest—my membership of the Security Service for 33 years—although I should warn the Committee that I retired five years ago and so am out of date.
I should like to reiterate a couple of points. I listened with great interest to the points made by both former members of the ISC, current members and others with a close interest in this matter. It is certainly the case—and I do not think that I am out of date in saying this—that it is in the interests of the security and intelligence community to have either a Select Committee or the present committee as it stands seeking to give reassurance to Parliament and the public that these agencies are properly run, obeying the law and doing a reasonable job. As the noble Lord, Lord Carlile, said, they will make mistakes—it would be a delusion to suggest that any organisation was free from making mistakes—but certainly when I was reporting to the ISC I hoped to own up to and discuss those mistakes.
The support of members of the public is necessary not only in terms of general support for the organ of government but because, to do their work, the agencies require that support every day of the week. They need the public to join them as recruits—they want to attract high-quality recruits—they need them as sources of information, and they need them to help in whatever way possible. Someone might be asked, “Can I come and sit in your bedroom with a camera?”. I might say no but people say yes to the officers of the Security Service daily. Therefore, when we talk about public opinion, the services require the help of the public to do their job and, in my experience, they get it.
When we talk about whether to go for a Select Committee—a proposal with which I have a lot of sympathy—or an improvement on, or development of, the last one, I share the view of the noble Lord, Lord King of Bridgwater, that we will get there at some stage, although whether we will do so at the speed at which the noble Lord, Lord Campbell-Savours, would like, I do not know.
I am sorry but I feel that I must take slight issue with the noble Lord, Lea of Crondall, about the amount of information on the services that is available in the public domain. For certain, my service took its heart in its hands and commissioned a centenary history of the Security Service. We made the professor of contemporary history at Cambridge a temporary member of the service and allowed him into our records. We said, “You can make any judgment you like. We won’t seek to query it. There will be a few things that you can’t publish for national security reasons but we will keep those to a minimum”. If you look at our website—I must stop saying “our”; I left the organisation. If you look at the Security Service’s website, you will see quite extensive amounts of information.
Why do these organisations exist? They exist to try to protect the United Kingdom and its citizens, and it is in their interests that as far as possible the confidence in them is well founded and, as far as it can be, widely and publicly known. To that extent, I should like to say how much I welcome the arrival of the ISC and how much I look forward to its continuing evolution.
Lord Butler of Brockwell
My Lords, I wish to make a brief point. In doing so, I know that I risk being regarded by the noble Lord, Lord Deben, as the siren voice of cautious officialdom—or, in my case, cautious former officialdom. However, I want to raise a question on what the noble Lords, Lord Campbell-Savours and Lord Deben, said.
The argument of the noble Lord, Lord Deben, was that the badging of the security committee would be improved if it were called a Select Committee. I can see the case for that. I think we all agree that the ultimate purpose is that the public should have confidence in the committee’s scrutiny of the intelligence services. However, it was clear from the speech of the noble Lord, Lord Campbell-Savours, that if this were to be a Select Committee, it would have to be hedged around by a very large number of parliamentary resolutions, and that would have the same effect as the constraints that are written into the Bill. The question is: would that make it more convincing if it were a Select Committee when it was a Select Committee unlike any other because it would be so inhibited by those restraints?
They say that something which looks like a duck and quacks like a duck can be regarded as being a duck, but this would not look like or quack like a Select Committee; it would be something completely separate. I suspect that this might reduce, rather than increase, public confidence in it because people would see that it was a Select Committee that did not operate like any other Select Committee and could not really be regarded as a Select Committee in the true sense in which the public understand it.
Lord Campbell-Savours
Could I draw attention again to the noble Lord’s own argument over privilege? The issue of privilege will not arise in the event that it is a full Select Committee because by definition it has everything that the noble Lord proposes in his amendments.
Lord Butler of Brockwell
I accept that, and we will be coming to some other amendments where I will be arguing that we should have our cake and eat it. We are entitled, however, to have our cake and eat it. For the reasons I have been arguing, I do not think that it is advantageous to have this as a Select Committee because I do not think it can be like any other Select Committee. I do think, however, that it requires special arrangements to give it the privileges of a Select Committee, and I do not withdraw that argument.
Baroness Smith of Basildon
My Lords, the noble Lord, Lord Campbell-Savours, has done this Committee a service in degrouping his amendments. It is a broader and deeper debate than the one we had on the first two amendments. It has been extremely helpful. The noble Lord, Lord Elystan-Morgan, hit the nail on the head when he described it as a useful debate with a lot of consensus. I disagree with the noble Baroness, Lady Hamwee, who said this was a polarised debate. I am not convinced that it is. This is less about what we expect the ISC to do and how we expect to do it than the structure that can best achieve those objectives. There seems to be a fair amount of agreement on the kind of objectives we are seeking. I wrote down a couple. The idea of a veneer of expertise has now been firmly laid to rest. I hope that we will not hear that expression again either in your Lordships’ House or outside. I was intrigued when the noble Lord, Lord Deben, mentioned to the Minister the comments from civil servants. I felt the ghost of “Yes Minister” creeping into our debates. Civil Service Ministers sometimes have to make a decision and challenge civil servants on some issues.
The areas of broad agreement were the independence from the Executive and the issue of parliamentary privilege. I thought the comment of the noble Lord, Lord Campbell-Savours, about the power to take evidence under oath was a powerful one. Security of information caused considerable concern for those who are not keen on having a Select Committee structure but who also, like the noble Lord, Lord Campbell-Savours, want to protect security of information if there is any question on that. There is the same point even if the structures are different.
The issue of public hearings came up. I am not sure how relevant that is in terms of structure in that amendments have been tabled about the kind of public hearings there could be and what form they could take. My own view is that they are valuable. They certainly should never be automatic but we have that debate coming up. I am unclear whether a Select Committee would have to have public sessions unless the Committee wanted to have it. It is the best structure for achieving that.
We have also heard from a number of noble Lords about ensuring public confidence in whatever structure the Government decide to go ahead with. It was helpful that in the last debate the Minister, if I understood his words correctly, said he wanted to look at the best means of achieving these ends and consider all implications. I hope he can say that in the context of this debate as well. It has been a broader debate in that noble Lords have been thinking carefully about powers, independence and structure, and I hope the Minister finds that debate and those comments and views helpful.
Public confidence is an issue to take into account. It can be well served by public hearings or it can be badly served by public hearings, and we will debate that further today. Public confidence does have an impact on how sensitive or highly confidential information that is relevant to national security is dealt with. So I am interested in what the Minister has to say. I hope that he will take on board all the comments made in the last debate and in this debate. I hope that he is smiling because he agrees with me rather than because he is amused by what I said. I hope that he will say—as I hope I would say if I were sitting in his seat—that he will take this away and take into account not only the comments that were made in the previous debate but the wide range of views expressed in this debate. They are moving in the same direction and seek that, whatever structure the Government want to proceed with, the comments of the House should be taken into account to ensure that the Government get it right, protect national security, safeguard sensitive information and also secure parliamentary independence and public confidence.
Lord Henley
My Lords, I was smiling at the noble Baroness only because I thought that she was trying to write my speech, which was not necessarily her job at this stage. I agree with her about several things. It has been a very useful debate. The 11 speakers—12 including myself—expressed a range of views. As the noble Lord, Lord Elystan-Morgan, said, we are all heading in the same direction and all trying to ensure, as a number of speakers put it, that there will be an appropriate degree of public confidence in whatever we set up.
I was very interested in the opening remarks of the noble Lord, Lord Campbell-Savours. He talked about the position of many colleagues in his party in 1989. Many of them are now distinguished members of his party. He stressed that all of them, to a man and woman, were in favour of Select Committee status for what became the ISC in 1994 under the chairmanship of my noble friend, and what is now being developed by the Bill. I was looking forward to hearing the official view of the Opposition on whether Select Committee status was the appropriate road to go down, but I heard no answer on this from the noble Baroness later in the debate, nor on what the collective view of the party was. It might be that there are now different views, because 1989 is a considerable time ago.
Lord King of Bridgwater
The view about a Select Committee is rather easier to hold if you are in opposition than if you are in government. The history of this was that the entire shadow Cabinet in 1989 voted in favour of it. When the prospect of office loomed, Jack Straw, who was then I think shadow Home Secretary, was asked the same question and was much more cautious about the whole matter. Of course, when they came into government there were no moves to introduce a Select Committee. However, times have moved on and I hope that there will be moves in that direction.
Lord Henley
My Lords, obviously my noble friend is right to say that times have moved on. All of us can remember as far back as 1989. Things have obviously changed since then. I was merely trying to tease out the official view of the Opposition at this stage, but it does not matter because as we all know, and as a very distinguished Cross-Bencher, the noble Lord, Lord Elystan-Morgan, made clear, we are all heading in the same direction and at least trying to make sure that we achieve the right thing—a committee that has the appropriate degree of public confidence.
I do not want to re-emphasise what I said earlier about the ISC being appointed by Parliament rather than the Prime Minister, and about its members being free to choose their own chair. That will be debated later, in the context of another amendment tabled by the noble Lord. In parallel with these statutory changes, it is the Government’s intention that the ISC will be funded and accommodated by Parliament. The amendment sets up the ISC as a Select Committee of Parliament. The noble Lord could have achieved that by the simpler means of leaving out the whole of Part 1 and making sure that the appropriate authorities in another place created the Select Committee—but he went down a different route and we are having this debate for the very good reasons that all speakers in the debate made clear.
I will explain why we believe that the ISC should be created by statute. It is to ensure that safeguards are in place to protect against the disclosure of sensitive information. Therefore, the Government do not consider it appropriate for that body to be a full Joint Committee established merely under the Standing Orders of each House, as other Select Committees are.
I hope that the Committee will bear with me if I expand on those reasons. First, in that scenario, the Government would not have a statutory ability to prevent the publication of sensitive material. There are two main problems with this. The risk of disclosure of information that might damage national security could be increased. This might lead to a situation where agency heads find it hard to reconcile their duty to protect information with their duty to facilitate oversight. This could lead to a sharing of less sensitive information and therefore a corresponding reduction in the effectiveness and credibility of oversight.
Secondly, it would not be possible for the most sensitive information to be withheld from the Committee. It is important that safeguards exist so there is adequate provision for those exceptional circumstances where the disclosure of information, even to the Chairman of the Committee, would be damaging to national security and/or would jeopardise vital agency operations or sources of information. The equivalent grounds on which information can be withheld from the Committee under the Intelligence Services Act 1994, have been used very rarely, as those former or current members of the Committee will know. We would expect the similar powers in the Bill also to be used sparingly—only in exceptional circumstances.
Thirdly, there is the appointments process. Again we will deal with that in greater detail later on. Here the Prime Minister has a role, and the noble Lord, Lord Campbell-Savours, in a later amendment proposes a much stronger role for him. That role is important. The ISC is unique in that members of the Committee have access to very important and extremely sensitive information, and it is important that the appointments process has sufficient safeguards to ensure there is as little risk as possible of unauthorised disclosure of sensitive information and the consequences that could do significant damage to national security.
The effect of the noble Lord’s amendment to create a Select Committee is not clear to me. He says it could take evidence under oath. In the Bill, even if we were to accept all the noble Lord’s amendments, the ISC would still be created by statute and safeguards would still exist to protect national security in those three areas I have listed, although admittedly altered to some degree. Unless the noble Lord pursues this suggested alternative policy of deleting the whole of Part 1, his amendment would not create a full Joint Committee because that can be done only by the Standing Orders of each House. It would create an entirely novel body, a Select Committee established by statute.
To what extent would such a body share the characteristics of the other Select Committees? The Bill makes it clear that, even were it amended in other respects according to noble Lords’ wishes, the ISC is different from other Select Committees in fundamental respects—for instance, in relation to appointments and reporting. That being so, I believe it is unclear whether or to what extent changing the ISC in this way would give it the other characteristic of a Select Committee. Indeed, I believe the risk is that describing the ISC as a Select Committee when it has characteristics not shared by other such committees could positively mislead as to the ISC’s true character.
I hope that that explanation is sufficient for the noble Lord. I wait to see what he says. This has been a useful debate and there will no doubt be further discussions on this matter, but I believe that it is appropriate for the noble Lord to withdraw his amendment.
Lord Campbell-Savours
My Lords, perhaps I may say a few words in winding up the debate. I say to the noble Lord, Lord Henley, that I recognise the wording I have used could not be put in the Bill. My amendment is simply my attempt to ensure that there is a debate. I recognise perfectly well that if we were to go down this route, while there would be, as the noble Lord, Lord Butler of Brockwell, said, a requirement for something in statute, the body of the change would be incorporated into parliamentary resolutions.
Lord Butler of Brockwell
“( ) Financial support shall be available to members of the ISC who are members of the House of Commons as if they were members of a Select Committee of that House; and to those who are members of the House of Lords as if they were members of a Select Committee of that House.”
Lord Butler of Brockwell
My Lords, I shall speak also to Amendment 9.
It is right and customary to declare an interest in these amendments. I certainly do so in this case because I have a direct financial interest in Amendment 4. The purpose of the amendments is that the chairman of the Intelligence and Security Committee should be treated in the same way as the chairmen of Select Committees in terms of remuneration. The purpose of Amendment 4 is that the members of the Intelligence and Security Committee should, similarly, be treated in the same way as members of Select Committees.
I wish to make it absolutely clear that Amendment 9 is not tabled at the behest of the current chairman of the ISC, the right honourable Malcolm Rifkind, who does a great deal of work for the committee on an entirely voluntary basis. I think that my colleague the noble Marquess, Lord Lothian, will agree that this committee chairman certainly does not do less work than the chairman of a Select Committee. He works many more days of the week than the days on which the ISC meets. For financial purposes—and leaving aside the particular individual, Sir Malcolm Rifkind—the chairman of the ISC should, as a matter of justice, be treated similarly to the chairmen of Select Committees and receive remuneration accordingly. I think I can say that that is the view of the other members of the ISC, who are similarly grateful for and deeply impressed by the work that our chairman does.
As regards Amendment 4, the House of Lords is kind enough to provide that attendance at meetings of the Intelligence and Security Committee should qualify for half the daily allowance—£150—but only on the days when this House is sitting. There seems to be no logic in that. We do exactly the same amount of work regardless of whether this House happens to be sitting at the same time. If one day should qualify for the £150 allowance then it seems that the other day should. This point arises because, these days, and as we will see in the next couple of weeks, the sittings of the House of Commons and the House of Lords do not always coincide with each other. I regret that. It may happen in September that the House of Commons will sit and the House of Lords will not. If there is a meeting of the ISC on those days, my noble colleague and I will not be eligible for the daily allowance. There is a greater injustice as a result of the unevenness of the sittings of the House of Commons and the House of Lords.
I have, as I say, a personal interest in this perfectly simple point of equity, which ought to be put right. It can easily be put right in the rules on the financial support of the House. In order to draw attention to it and try to ensure that it is put right, I have put down Amendment 4.
The Marquess of Lothian
My Lords, I support the noble Lord, Lord Butler of Brockwell, in both of his amendments, to which I have attached my name. Like him, I declare an interest in Amendment 4—on which I shall say no more than he has said. He has argued the case with great eloquence and I hope that the Government will listen to his argument.
In general terms, I say to the noble Lord, Lord Campbell-Savours, that these amendments are slightly ironic, given what I was saying in answer to his previous amendment. We are asking to be treated like a Select Committee and, once more, this underlines the fact that the argument on that is not polarised. It is not about the theory of a Select Committee but about the practice of one. We may well return to this matter in the future.
I strongly endorse the proposal in Amendment 9 that the chair of the committee should be remunerated in line with the chair of departmental Select Committees. I have served under four Intelligence and Security Committee chairmen, I think, and in each case I have been amazed at the amount of work they are required to do compared with the ordinary members of the committee. The ordinary members do preparation behind closed doors in secure surroundings for an afternoon and then we have the meeting the next day, but the chairman is in almost every day, going through issues, deciding whether they should be brought to the committee. The chairman has a major piece of work. It is therefore only fair that the chairman should be properly remunerated, as he would be if he were a chairman of a Select Committee.
Lord Campbell-Savours
My Lords, I wholeheartedly support the amendment. My parting speech in the House of Commons in 2001 was on the very issue of the payment of chairmen of Select Committees. I wanted to see the development of what you might call a separate career structure in the legislature as opposed to the Executive. When I was a member, the chairman, the noble Lord, Lord King of Bridgwater, did excellent work. When I think of the amount of work that he took on, it is inconceivable that we should now push through legislation without taking full account of that work and the need to ensure that it is remunerated.
Lord King of Bridgwater
I intervene very briefly. I thank the noble Lord, Lord Campbell-Savours, for his comments and for those that he made at Second Reading, for which I am grateful. I am not sure whether this amendment can be made retrospective, but it seems an excellent idea. I do support it—it seems logical if a Select Committee chairman in the House of Commons now has it. I understand my noble friend Lord Lamont made the point. The point the noble Lord, Lord Butler, raised is pretty fundamental because it applies to every Select Committee of this House. If the House is not sitting, people do not get any allowance even if those committees are working. The issue goes a bit broader than just changing it for the ISC.
Lord Butler of Brockwell
If I may correct the noble Lord, it is worse than that. Under the arrangements for other Select Committees of this House, the members qualify even if the House is not sitting. The noble Lord shakes his head but if he looks up the rules he will find—I see the noble Baroness, Lady Hamwee, agrees with me—that for Select Committees the allowance is available on days when the House is not sitting, but for the ISC it is not.
Lord King of Bridgwater
I am grateful to the noble Lord. He has cheered up the noble Lord, Lord Lamont, quite considerably if that is right because he was telling me of the committee session he must attend in the Recess. I simply say that I support this. I do not know quite what the first part of the amendment means or whether the Minister will explain it. I am not clear what the financial benefits are for Members of the House of Commons when they are on Select Committees. We asked for equivalent arrangements for the ISC. Perhaps somebody will clarify that point.
Lord Rosser
My Lords, the names of my noble friends Lady Smith of Basildon and Lord Beecham are associated with Amendment 9 and we support the proposal that the chair of the Intelligence and Security Committee should be remunerated in line with chairs of departmental Select Committees of the House of Commons. As has already been said clearly, the commitment required by future occupants of this post is likely to be extensive, bearing in mind that the whole purpose of the Bill is to strengthen oversight of the intelligence and security activities of the Government by extending the statutory remit of the Intelligence and Security Committee. The committee, as we know, will be drawn from Members of the House of Commons and your Lordships’ House. It would seem appropriate to determine remuneration as part of the Bill, and to relate it to a not dissimilar position in one of the Houses of Parliament from which the membership of the committee is to be drawn.
A departmental Select Committee in the House of Commons has a different but not widely dissimilar role to that of the Intelligence and Security Committee under the Bill. The chair of a departmental Select Committee in the House of Commons also takes on a considerable additional level of commitment and responsibility. There are a number of such posts and they are not held by Ministers of the Crown. The officeholders, like the Select Committees themselves, are drawn from Back-Benchers, as would be the case with the Intelligence and Security Committee and the chair of that committee. It would therefore seem that the chair of a departmental Select Committee in the House of Commons is the appropriate benchmark, as provided for in Amendment 9, which we support.
Lord Henley
My Lords, we can deal with these amendments fairly briefly. The noble Lord, Lord Butler, described them as a simple point of equity. On that basis, I hope the debate has been—or will be—listened to in due course by IPSA in the case of the Commons and, in the case of Members of this House, the House Committee, because in the end decisions have to be made by those appropriate committees. It is not really a matter for legislation.
To underline that, I remind the Committee that Commons Members’ pay is entirely a matter for IPSA and it makes decisions in accordance with resolutions of the House. The relevant resolutions make no provision for additional financial support for ordinary members of Select Committees so it would be a matter only for the chairmen of committees. I will get to the question about the chairman of this committee later. IPSA may determine that MPs who hold a position or office specified in a resolution of the House of Commons should receive a higher salary than ordinary Members. IPSA will have no say as to which positions are on the list—that is obviously a matter for Parliament; once it has decided on that list, it will be for IPSA to set the rate. Again, it is for IPSA to listen to this debate.
Lord Butler of Brockwell
My Lords, I am grateful to the Minister for his sympathetic response and to other Members of the House for their comments. I just want to make clear to the noble Lord that it is not a question of feeling adequately or inadequately remunerated. There may be different views in the House about whether payment of £150 for a day’s work on the committee is adequate or inadequate, but that is not my point. My point is that there is an obvious inequity between the treatment of members of the Intelligence and Security Committee and the members of Select Committees, and that is what I would like to see put right. I beg leave to withdraw the amendment.
Lord Butler of Brockwell
“( ) If the House of Parliament from which a member of the ISC is to be drawn declines to appoint a person nominated by the Prime Minister, the Prime Minister shall nominate an alternative person.”
Lord Butler of Brockwell
My Lords, Amendment 5 is an amendment to Clause 1(4). It seeks simply to fill out an obvious point that is not currently covered by the Bill.
Under the arrangements proposed in the Bill, the Prime Minister will propose members of the committee but it will be for Parliament to agree to the appointment or not. Therefore, we need to provide for the situation in which Parliament does not agree to an appointment. At the moment the Bill says nothing about that. The purpose of this amendment is to make clear that in those circumstances, if either the House of Commons or the House of Lords does not agree to the nomination of a Member of that House to the Intelligence and Security Committee, the Prime Minister would have to nominate somebody else for the appointment for the approval of the respective House. I think that is obvious and that is what would happen. It is not provided for in the Bill and this amendment is therefore just to fill that gap.
The Marquess of Lothian
My Lords, once again I rise to support the noble Lord, Lord Butler of Brockwell, on this amendment, to which my name is also attached. I will not add much to what he said. I think that the real purpose here is to remind the House that the committee has nine members. That is written in to the statute. It is one of the smaller committees involved in the sort of work that this committee is doing and it is very important, in my view, that we retain that number at least. In the absence of this amendment it is theoretically possible that this House might decide that it did not want the two nominations from this House made by the Prime Minister and that the Prime Minister might decide to leave it at that—have a committee of seven in total from the House of Commons and nobody from this House. This amendment would make sure that that cannot happen by ensuring that, were this House or, indeed, the other House to say no to nominations by the Prime Minister to this committee from those Houses, the Prime Minister would be required to make another nomination.
Lord Campbell-Savours
My Lords, I shall speak to Amendment 6 in this group. My amendment deals with the wording in Clause 1(5) of the Bill, which states:
“Before deciding whether to nominate a person for membership, the Prime Minister must consult the Leader of the Opposition”.
I have great reservations about this, and I will explain why. I think that this is the product of muddled thinking. This is an appointment of trust. The appointment requires the Prime Minister’s knowledge of opposition politicians. I think that Ministers very often do not understand what motivates opposition politicians.
As an example I take my own appointment. It is utterly inconceivable that the then Prime Minister, Margaret Thatcher, now the noble Baroness, Lady Thatcher, would have appointed me to that committee. She would have referred to my record in the 1980s when I was running with the hounds on the issue of Peter Wright and we caused some considerable difficulty, I was informed, in the House of Commons. I had endless arguments with the Table Office over the tabling of Questions. On a number of occasions my Questions, which, it was thought, would have breached national security had they been tabled, were submitted to the Speaker of the House of Commons under the appeal procedure. If, in the 1980s, I had applied to be a member of this committee, I feel quite sure that if it had been left to the Prime Minister of the day—I am arguing the converse—the Prime Minister of the day might well have objected to a person like me being a member of that committee.
The problem was that, at the time, people did not know what we were campaigning about. It was about reform of Section 2 of the Official Secrets Act and about the need to introduce freedom of information legislation. In both areas we were successful. All I am saying is that, before we go down this route and require the Prime Minister to consult with whomever, we should have in mind that it is possible that people might be blocking appointments in an unfair manner.
Amendment 8 deals with the issue that the chair of the ISC is to be chosen by its members. This is the product of muddled thinking among those who fail to understand the internal dynamics of the committee. It is as if someone has sat down to devise systems of greater accountability that enable them to avoid taking the big question on going for full Select Committee status. In my view, the chairman needs the respect of the agencies, and new members appointed in a new Parliament will have no knowledge of the relationship between the chairman or any member of that committee and the agencies. There is a real danger that the Whips will seek to influence members’ decision about whom to appoint as chairman. It might be that there is an exercise in handing out the jobs going on. I feel that it is wrong that the committee should be placed in a position where it has to choose its chairman at the beginning of a Parliament. New members might be unduly influenced by previous members against their better judgment. As I said at Second Reading, if when I was selected to sit on the committee, I had been asked to vote for the chairman, I would never have voted for the noble Lord, Lord King of Bridgwater, because he was not top of my list of popular Secretaries of State, but within a matter of months I realised that he was ideal for the job. You need the experience of being on the committee before you start picking the chairman. What we are doing here is establishing a procedure whereby a chairman will be selected by new members going on to a committee without any knowledge of who they might be appointing.
If a chairman does not fully enjoy the trust of the agencies, there is a danger that that lack of trust may impede the work of the committee by denying access to material that is on the margins of the memorandum of understanding. There will be material on the margins of the memorandum of understanding to which the committee wants access, and it is vital that the chairman is someone who has been picked not by members of the committee but by the Prime Minister.
Lord King of Bridgwater
I agree with the noble Lord, Lord Butler, that the Bill is inadequate without Amendment 5 because it is simply a diktat. The fact that the Houses of Parliament vote on the members is not a really democratic position. We hope to see a more acceptable position.
The question I would put to the noble Lord, Lord Campbell-Savours, on Amendment 6 is: when he was active on some of these issues, would he have been appointed or recommended by the leader of the Opposition? He says that there was no way in which Prime Minister Margaret Thatcher, now the noble Baroness, Lady Thatcher, would have appointed him. Would the leader of the Opposition have appointed him?
I do not see how else you can do this. It is really down to the calibre, resolution and determination of the leader of the Opposition. In the end, he is in a very powerful position if he says, “These are the people I want. These are the people I think should be from the Opposition”. I do not know—and I do not know whether the noble Lord has any background on this—whether a Prime Minister has refused to accept the recommendation of the leader of the Opposition.
Lord Campbell-Savours
If my noble friend Lord Kinnock had been Prime Minister, he would not have been put off putting me on that committee because he was well aware of the campaign that we were running and its objectives.
Lord King of Bridgwater
I am grateful to the noble Lord for that comment.
I would like to support opposition Amendment 7. It has not been spoken to by the noble Lord, Lord Rosser, but I imagine that he will speak to it. It says that the chairman of the ISC should be “from the Opposition party”. In principle, I support that. One of the ways for the committee to gain credibility is for the chairman to be a member of the opposition party. However, I would not wish to see it written into the statute in this way. I will, if I may, cite my own experience. We started this committee with considerable uncertainty and considerable reservations in a number of quarters—in some of the agencies and other places—as to whether it would be reputable. A great effort was made by both the Prime Minister and the then leader of the Opposition to get a pretty experienced bunch. They were mainly ex-Ministers, and I think almost all were privy counsellors. The desire was to have a really credible, reputable and senior committee. It was certainly the most senior of all the committees, and in calibre and experience outranked the PAC, which would otherwise be seen as a pretty senior committee. That was the right way to start.
Lord Rosser
My Lords, I wish to talk about Amendments 5 and 7 in particular. Amendment 5, as the noble Lord, Lord Butler of Brockwell, said, lays down what happens if a person nominated for membership of the Intelligence and Security Committee is not then appointed by the House of Parliament from which they are drawn. The amendment lays down that in this situation,
“the Prime Minister shall nominate an alternative person”.
The Explanatory Notes to the Bill say that the purpose of the procedure in the Bill for nominating and appointing members of the committee,
“is to ensure that the Government retains some control over those eligible to access”,
highly sensitive information.
Many might feel that the use of the words “some control” in the Explanatory Notes rather understates the position from the government perspective. This amendment does at least make it clear that the relevant House of Parliament is not obliged to accept the Prime Minister’s nominee and that the Prime Minister cannot simply keep resubmitting the same name, or do nothing, but has to nominate an alternative person.
Amendment 7, to which the noble Lord, Lord King of Bridgwater, has already referred, is, certainly at this stage, rather more a probing amendment in the light of the enhanced role that the committee will have and the need for it to be seen as clearly separate from the Executive. It provides, as has already been said, for the chair of the Intelligence and Security Committee to be not only a member of the ISC, chosen by its members, but a member of the ISC from the opposition party. The Public Accounts Committee, for example, is chaired by a senior opposition MP.
It must surely be important that the Intelligence and Security Committee, bearing in mind its strength and oversight of the Government’s intelligence and security activities, and its role in this sensitive and potentially controversial area, is an all-party committee that is not only not open to pressure from government or the intelligence and security agencies in the work it undertakes but perceived as being not open to such pressure.
The Prime Minister has, under the terms of this Bill, considerable influence over the appointments to the committee. He or she is required to consult, not reach agreement with, the leader of the Opposition on nominations, and the two Houses of Parliament can only decline to accept a nomination and cannot appoint someone of their own choosing. Neither does the Intelligence and Security Committee have unchallenged powers to require information from the intelligence and security agencies, even though the members of the committee will all have been nominated through the Prime Minister, as the Secretary of State can veto the giving of information to the committee.
If the chair of the committee were to be not only a nominee of the Prime Minister but from the same party as the Prime Minister and from the same party as the Secretary of State, who could veto the use by the committee in carrying out its statutory oversight remit of the use of its power to require information from the intelligence and security agencies, that might well lead to a perception, no doubt unfairly, that the leadership of the committee and its most influential member was a little too close to the Government of the day, particularly bearing in mind that the objective of the Bill, as explained in paragraph 3 of the Explanatory Notes is to provide,
“for strengthened oversight of the intelligence and security activities of the Government”.
Lord Henley
My Lords, we have four amendments in front of us, all slightly different but all covering appointments to the committee. I will deal with them in turn. Amendment 5 seeks to ensure that if someone is turned down by Parliament the Prime Minister will have to make another nomination. This is something with which the Government entirely agree. However, the amendment is not necessary as it will be achieved by the current drafting of the Bill. If, under the appointments process in the Bill, the Prime Minister’s nominees are rejected by either House, the Prime Minister will have to make another nomination or nominations after consultation with the Leader of the Opposition. This is clear from the fact that the Bill requires the ISC to consist of nine members so if one is turned down another would have to be found. I hope that deals with the point made by my noble friend Lord Lothian, who asked what would happen in such cases. Where we differ is that the amendment in the name of the noble Lord, Lord Butler of Brockwell, insists that an alternative person should have to be nominated and we would like to keep the flexibility because there are occasions where it is possible for the Prime Minister to be able to renominate. It might be that one reached some sort of impasse in due course but it should be possible on occasions to renominate and that renomination might be rejected. Whatever happens, as the Bill is drafted, a ninth person would have to be put forward.
Turning to Amendment 6 from the noble Lord, Lord Campbell-Savours, he suggests that it should no longer be necessary to consult the Prime Minister. He said that he would never have been appointed if it had been left purely to my noble friend Lady Thatcher if she had been in opposition. Obviously, if we accepted the amendment proposed by the noble Lord, Lord Campbell-Savours, and removed the necessity to consult the Leader of the Opposition, there would be even less likelihood that he would be appointed, because my noble friend—or Mrs Thatcher, as she then was—would have made the decision entirely by herself, without consulting the Leader of the Opposition. We believe that it will be important in retaining cross-party support, just as it was when the original 1994 Act went through, requiring that the committee should be appointed by the Prime Minister after consultation with the Leader of the Opposition. For that reason, the Prime Minister should continue to consult the Leader of the Opposition before he nominates any such person.
Lord Campbell-Savours
This is quite an important issue. The question is very simple. If the Prime Minister, Margaret Thatcher, had been Leader of the Opposition, would she have allowed someone like me, with my record at that time, to go on this committee? The answer is no, which is why I believe that this provision is wrong.
Lord Henley
But the noble Lord is also saying that he wants to delete the ability to consult the Leader of the Opposition and leave it entirely to the Prime Minister. I have to say that the Prime Minister probably would not have appointed him either, so the issue does not arise. What we suggest is that, to maintain cross-party support—I suspect that everyone agrees on this except the noble Lord himself—there should be a degree of consultation between the Prime Minister and the Leader of the Opposition on this issue. The simple fact is that consultation did take place and we are all very happy, my noble friend Lord King included, that he was taken on to that committee.
Rather than dealing with the amendments sequentially, I come to Amendment 8 before Amendment 7. It comes from the noble Lord, Lord Campbell-Savours, and relates to the election of the chairman. The noble Lord raises concerns about the Government’s proposals for appointing the chair, arguing that the chair’s appointment should again be made with the agreement of the Prime Minister and the Leader of the Opposition. I notice that the effect of the amendment would be for the chair to be appointed by the Prime Minister and that there would be no requirement to consult the Leader of the Opposition. So I suppose that the chances of the noble Lord having got on to the committee or being appointed as chairman would be even more remote, but that is something that he can consider in due course.
As we explained earlier, we believe that the changes that we are making to the ISC status are designed to bring it closer to Parliament and increases public confidence in it. That is why the Government propose that the chairman of the ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The noble Lord seemed to suggest that with a new Parliament, the new Members would not know each other. I suspect that with the experience of the members on that committee, as has happened in the past, it will normally be the case that the committee will know who is the appropriate person as well as anyone. It is quite right, therefore, that those members should make the appointment.
Lord King of Bridgwater
I am trying to remember how many new Members came on to the committee. There was a big upheaval. I remember that the noble Lord, Lord Gilbert, for example, was a member of the previous committee; he was whisked off to be a Minister. It was a pretty major change of cast. With great respect to my noble friend, who says that new members of the committee might be expected to know about these things, a number of them might have had no previous experience whatever of the committee.
Lord Henley
My Lords, I will look very carefully at the point that my noble friend has made and at the statistics relating to 1997 in particular, which was one of those years in which there would have been a big upheaval, with that particular new Parliament. Off the cuff, I do not know who was on the committee and who came on, although perhaps my noble friend can remember. But in the main, with the relatively experienced parliamentarians who will be on this committee, I think that it is well suited to making the decision itself.
Lord Campbell-Savours
You might, as a Member of Parliament who had been in the House for years but had no contact with intelligence, not understand the vital nature of the relationship between the agencies and the chairman. It is critical to the whole operation. I cannot see how someone who goes newly on to that committee could have any understanding of that relationship. If the relationship is wrong because the wrong person has been appointed, the committee could be denied information. If the objective behind the Bill is to secure more access to more operational material, we are undermining the whole arrangement. Ministers should reconsider this point. It is all right saying that it is more democratic and accountable and that Parliament is more involved—but if it does not work, do not do it.
The Marquess of Lothian
My noble friend Lord King of Bridgwater was talking about the noble Lord, Lord Gilbert, leaving the committee. Between 2007 and 2009, two chairmen of the committee were promoted to being Ministers and left the committee. I wonder how the committee would have been able to elect successors to those two when we needed someone of sufficient seniority to carry out that task.
Lord Henley
I think that my noble friend possibly means that two members of the committee were promoted to being Ministers, rather than two chairmen.
The Marquess of Lothian
No, they were two chairmen. The first was Paul Murphy and the second was Margaret Beckett.
Lord Henley
Yes, my noble friend is correct in that. I was looking at the wrong dates—he means between 2007 and 2009. I will obviously have to examine this and, as I promised my noble friend Lord King, examine the statistics in relation to the 1997 Parliament, when there would have been the biggest change in the membership, rather than the subsequent Parliaments. In brief, I stick to my position that it would be better for Parliament to make this decision, rather than the Prime Minister, but I note the concerns put forward by colleagues from all sides, or both sides, of the House.
I turn to Amendment 7, which presents the idea that, whatever happened, the chairman of the committee should be drawn from an opposition party. Again, my noble friend Lord King had some sympathy for this amendment, but when one looks at the history of the committee and the distinguished service of my noble friend, who served as chairman when our party was in government, and as chairman in opposition, from 1994 to 2001, it is obvious that one can do it from either side. To make a statutory requirement that a chairman had to come from the opposition party would unnecessarily limit the available candidates for that job. My noble friend rightly pointed to the problems that might have arisen in 1997 when, after a very long period in opposition, all the more senior members of the then opposition party going into government were likely to become Ministers, and there might not have been suitable people around. To curtail who could be chosen would reduce unnecessarily the pool from which the appropriate chairman could be taken.
Having said that I would listen to comments made on Amendment 8, proposed by the noble Lord, Lord Campbell-Savours, I hope that the explanations that I have given on the other Amendments 5, 6 and 7, as well as Amendment 8, will be sufficient for the noble Lord to withdraw his amendment.
Lord Butler of Brockwell
My Lords, on the basis of what the Minister has said, I am happy to withdraw Amendment 5.
Baroness Hamwee
Baroness Hamwee
My Lords, grouped with this amendment are Amendments 11 and 12 in the name of the noble Lord, Lord Campbell-Savours, on rather different points from mine. I will confine my remarks to my amendment. Schedule 1 provides that members will hold office for the duration of the Parliament in which they are appointed. I do not read later parts of the paragraph, in particular sub-paragraphs (6) and (7), as applying to membership. This raises two issues, which I shall ask about in what is no more than a probing amendment. One is whether there should be a committee in existence during the period when Parliament is prorogued; the second is about the delay in appointing members after the next Parliament has started to sit. On the latter point, I have heard reports that some Select Committees have taken a very long time to be established—up to six months. I am certainly not arguing that the approach of this amendment is the best way of doing it. If there were to be some amendments, the arrangements would need much more detail, but I am worried that there would be an issue if there were a long lacuna. I do not know whether the Minister can help the Committee regarding the position of the current committee. Are members appointed until the appointment is terminated in a positive fashion, whether or not Parliament has been prorogued? Clearly, if an MP is not re-elected, he would not be expected to retain membership.
The ISC is so important that I would be reluctant not to have some sort of formula for unbroken oversight. It could be argued, of course, that its work is largely retrospective so it would not matter if there was a gap, but I would not accept that argument. It occurs to me that one could deal with continuing membership if enough Members of your Lordships’ House were appointed for there to be a quorum over the period of Prorogation, but that is unlikely to commend itself. There is also the question of the period between Parliaments and any delay in appointment once a new Parliament sits. I beg to move.
Lord Campbell-Savours
My Lords, I want to speak to Amendments 11 and 12, standing in my name. Amendment 11 deals with the words in Schedule 1, paragraph 1(2)(c), which states that,
“a resolution for the person’s removal is passed in the House of Parliament by virtue of which the person is a member of the ISC”.
In other words, there has to be a resolution of Parliament to exclude someone from the ISC. Have those who wrote this Bill thought that through? A resolution in the House of Commons, or even in this House, would mean that the person who is being removed from the ISC, with all the material that they have gained over the years on matters relating to national security and who may well be angry with the chairman and the system, is given free rein to get up on the Floor of the House of Commons and, in their defence on the back of the resolution, say why they should not be removed from the Intelligence and Security Committee. This is a very silly proposal. It is highly dangerous and has clearly been worked up by someone who did not understand the implications of what a resolution of the House of Commons means for public debate. It should be removed.
How could someone be removed from the Intelligence and Security Committee? First, one would go to them privately and explain the reasons why they should resign. I am sure that the Whips and the system have all sorts of ways for removing Members of Parliament without allowing them free rein to get up on the Floor of the House of Commons on the back of the resolution to defend themselves. That is my case for Amendment 11. I seek the exclusion of what I regard as a highly irresponsible proposition.
I now turn to Amendment 12, which deals with sub-paragraph (3), which states:
“A member of the ISC may resign at any time by notice given to … in the case of the member who is the Chair of the ISC, the Speaker of the House of Parliament by virtue of which the person is a member of the ISC”.
Why should the Speaker be informed? This is not a parliamentary committee; the Speaker is not a member of the committee and has no relationship with it. The committee is external to Parliament, however we want to describe it. I cannot see any explanation why, other than the fact that those who devised these sections of the Bill believe that it is necessary to have a model where they have the imprimatur of Parliament on the label. I think it is ludicrous, unnecessary, and again it should be removed from the Bill. It is trying to lead the public to believe that this is truly some committee of Parliament. It is not, because it lacks the privileges and the powers that a parliamentary committee has as a Select Committee. That is my case.
Lord Henley
My Lords, I will return to the noble Lord’s amendments in due course, but I will start with Amendment 10 in the name of my noble friend Lady Hamwee. This seeks, in effect, to continue the committee’s existence for a period of days after Dissolution until a new Parliament is created. It must be remembered that the absence of the ISC for that short period of Dissolution does not mean that the agencies are unaccountable. There are other mechanisms for agency accountability, not least through their accountability to Ministers, who obviously continue in their role throughout that Dissolution. The absence of the more considered work of the ISC during that relatively short period will not result in some sort of accountability deficit. Naturally, continuity between Parliaments is very important, but it is not necessary to have the old ISC stretch into the next Parliament to achieve this. I assure my noble friend that we do not need legislative provision for a new incarnation of the ISC to inherit the documents, for example, of its predecessor. Under the existing regime this has happened without any difficulty. Furthermore, the provisions in sub-paragraphs (6) and (7) of paragraph 1 of Schedule 1 allow the ISC in a new Parliament to pick up work that was ongoing at the time of Dissolution of the previous Parliament.
I turn to the amendments of the noble Lord, Lord Campbell-Savours, who seems particularly worried about mechanisms for removing individuals from that committee. He seemed to suggest some sort of equivalent to the idea of the Whips giving them a bottle of whisky and a revolver and telling them to sit quietly in a room until they have resolved matters by themselves. I do not know if that was quite what he was suggesting, but we believe that if Parliament appoints, it is plain that Parliament should also have the power to remove. That fits the broad thrust of what we are doing. That is the reason for the provision that the noble Lord seeks to leave out, ensuring that an ISC member can be removed involuntarily from the committee only by virtue of a resolution passed by Parliament. Again, this is an important safeguard to the ISC’s independence and means that the final say on its membership is with Parliament.
Lord Campbell-Savours
Does the Minister foresee circumstances in which an angry young man or woman who was excluded from the committee on the back of a resolution would, under privilege in the House of Commons, argue a case that might even breach national security? If he, or those who have devised this provision, can foresee such circumstances, does he not think that this provision bears further responsibility, despite what the noble Lord said?
Lord Henley
My Lords, the same could apply to whoever was removing that person. We are saying that Parliament should, in conjunction with the Prime Minister, have the responsibility for appointing, and therefore that Parliament should therefore have the duty to remove. If we accepted the noble Lord’s amendment, can he not see possible occasions where there was no possibility of removing a member of the ISC from office, no matter what they had done, unless they ceased to be a Member of their House of Parliament—this place or another place? I do not therefore accept the noble Lord’s amendment.
As regards his second amendment and the idea that the Speaker of either House has to be notified, I really do not see why notifying the Speaker as a means of resigning from the committee causes any problems at all. Both the Government and the committee are of the view that the chair should no longer be removed by, or required to resign by giving notice to, the Prime Minister. Again, the committee has previously been criticised for being a creature of the Executive. If the committee is to be a creature of, or belong to, Parliament, it seems far more appropriate that a person should have to resign by the means proposed rather than tendering their resignation to the Prime Minister.
I therefore hope that my noble friend will withdraw her amendment, and I am sure that the noble Lord will not want to move his amendments.
Baroness Hamwee
My Lords, I clearly did not explain my amendment adequately. My noble friend responded on one point, the continuity of the committee, but he has not dealt with my concern about delay in appointing members in a new Parliament. Can he help the Committee on that and give any assurances?
Lord Henley
My Lords, both Houses are normally reasonably speedy about these matters and we will obviously take the issue very seriously. I do not think that there has previously been a delay in appointing the nine members after appropriate discussions, and I cannot see that there would be any dangers of delay in the future, but whoever is in government will obviously have to bear in mind the importance of these matters and ensure that a new committee is created as quickly as possible.
Baroness Hamwee
My Lords, I have no idea about the appointment of the ISC but I discussed this matter with a Member of the Commons who has considerable experience of membership of Select Committees. It was from him that I heard that in one case there was a delay of almost six months in appointing the committee. It is that situation that I am seeking to avoid. I do not expect the Minister at this point to say anything other than what he has said, but the issue is serious in my head.
He said that legislation is not needed for the continuity of work of the committee or of the transfer of documents. I was not arguing that point at all. As I said, this is a probing amendment. I am not sure that I have probed quite far enough, but of course I beg leave to withdraw the amendment.
Baroness Williams of Crosby
My Lords, let me say right away that I come to this issue completely as a laywoman because I have never been a member of the Intelligence and Security Committee, I have never been asked to be a member and I do not purport to have the arcane wisdom that is obviously involved in the intelligence committee. I speak simply as a laywoman puzzled about this point.
I find it strange that the quorum is as low as three—that is to say, one-third of a committee of nine. It puzzles me for two reasons. The first is perhaps best summed up by the rather agreeably brusque remarks of the noble Lord, Lord King of Bridgwater, who explained, when referring to Australia, that an “awkward squad” had decided to take over that country’s intelligence and security committee, and that it would therefore be open to the possibility of a small group effectively influencing the ISC in ways that might be troubling over the long term.
However, I have a rather different thought in mind. Sadly, many Parliaments around us are increasingly polarised, whereby the Government of the day and the opposition find it very hard to work together. The United States is just one example of that. If you have in a polarised parliament or congress a party that decides it will not co-operate with other parties even on such an important committee as an intelligence and security committee, the committee would be nullified by itself and it would be hard to reach overall decisions. Clearly, on a matter of such importance, it is important that a consensus, if one can be found, should be sought.
There is also another objection that I feel strongly about. The decision of a committee as important as the ISC should at least have to depend upon some level of attendance in addition to the three who may represent one party in order to give the committee the kind of credibility that the noble Lord, Lord Campbell-Savours, and many others referred to when they were talking about public attitudes towards the ISC. I should therefore have expected a larger quorum of at least four or five, rather than three, as stated in the Bill.
The main point of the amendment is to persuade the Minister to think about whether that quorum is not a little too small. There is a real danger that a faction could dominate the committee in a way that would be completely destructive of its credibility over a period of time. I therefore ask him to consider this issue, explain why the figure in the Bill is as low as three—for all I know, it always has been three and I do not know if changing it would be a bad precedent—and to say whether we could have a figure more convincing in terms of carrying public opinion with it.
I have no wish to delay the House but I am surprised that no other amendment has been tabled about the size of the quorum. That may be because I am not part of this wise and arcane group, and I am delighted now to see the noble Lord, Lord King of Bridgwater, to whom I have just referred in relation to the quorum being as low as three, which makes it possible for an awkward or fanatical club effectively to control the discussions of the ISC. The noble Lord quoted the case of Australia, as regards the danger that the committee, if there were a low quorum, could be dominated by a small faction or extreme group of some kind. I hope that he will not mind that I referred to him. I beg to move.
Lord Henley
My Lords, I start by being faintly flippant. I remind my noble friend that the quorum for this House and this Committee is only three—one to speak, one to listen and one to sit either in the Chair or on the Woolsack. Even with the crowded House that we have at the moment, we represent probably well below a third or even a tenth of the membership of the House. I should also remind my noble friend that my understanding is that it is the practice of most Select Committees to have a quorum of three or a quarter of the committee’s membership. Three is therefore the number that we have picked. Bearing in mind that the ISC is a relatively small committee with a membership of only nine, three represents a third of the membership.
Having said that, one should take my noble friend’s amendment seriously but we have not, as far as I am aware, had any problems with the quorum. A quorum of five might be overly restrictive, particularly if you take the view that the function of a quorum should be to provide protection against the possibility of a small number of persons on a body taking actions or decisions that could be unrepresentative of that body as a whole.
Lord King of Bridgwater
I think it fair to say that this is a Committee that, quite exceptionally, has a remarkably high attendance level, and this is something we are quite proud of and which, I am sure, has continued. I do not ever recall any problem about a quorum. In fact, I recall very few occasions when the whole Committee was not on parade and, as anyone familiar with House of Commons Select Committees will know, that is often far from being the case.
Lord Henley
I am very grateful to my noble friend for giving me that assurance. I remember when, many years ago, I was first put on a Committee—the Joint Committee on Statutory Instruments, possibly the outer Siberia of committees. I think there were seven Members from each House and a quorum of two from each House. On a committee of that sort it was often quite difficult to reach the quorum of both Houses, but some of us manfully attended week in, week out, to preserve it. I am very grateful to my noble friend for making the more serious point that the Committee does, in the main, have not just a quorum but is normally fully attended by virtually all Members; that really answers the points of the noble Baroness, Lady Williams.
Baroness Williams of Crosby
With great respect, I do not think that what the noble Lord, Lord King of Bridgwater, said went very far towards supporting the argument that because there is such good attendance at this extremely important committee there is a case for a very low quorum. On the contrary, it seems to me that Members take their duties so seriously—and rightly so, given the importance of the subject matter—that it would not be disruptive to increase the quorum, at least to some extent, from the present three.
Again with great respect, the fact that around 5% of the possible attendance of the House of Lords is present at this particular discussion is not really the point because, of course, noble Lords attend when they are expert or knowledgeable on a particular subject and do not come when this is not the case. In the case of the Intelligence and Security Committee, one assumes from its very careful appointments process that most members are people with a strong commitment and very considerable knowledge of the fields in which they operate.
Lord Henley
My Lords, I hope my noble friend heard in my opening remarks that I was being faintly flippant when talking about this House. I agree that this is a very important committee. I am very happy that attendance is well above its quorum number—that it is always fully quorate. However, I do not think it is necessary to restrict it in such a manner by bringing in an artificially high quorum, which would be completely unlike all other committees. I think that three out of nine is a perfectly effective number and I hope, therefore, that my noble friend will feel able to withdraw her amendment.
Baroness Williams of Crosby
I beg leave to withdraw the amendment in the knowledge that I shall certainly return to this issue on Report.
Baroness Hamwee
“(a) the ISC shall meet in public save when it determines that members of the public shall be excluded,(b) a determination under paragraph (a) may be made prior to the meeting to which it applies and may apply to more than one meeting.”
Baroness Hamwee
My Lords, I shall speak also to Amendment 15 as well as to Amendment 17, which was tabled by the noble Baroness, Lady Smith of Basildon, and has been grouped with my amendments because we cover very similar ground. Indeed, we have covered a fair bit of the ground already during this afternoon’s discussions, including the subjects of open meetings, question times, public hearings and so on. I am, of course, not so naive as to think that the ISC needs to meet only occasionally in closed session, but I do think it a good discipline to ask oneself regarding every meeting whether it needs to be closed. I am therefore proposing that open discussions be the default arrangement. It is also important to justify why a meeting is closed, if it is, and to that extent I think that Amendment 17 asks the right sort of question, although I would have put it differently, saying that “proceedings should be public unless” rather than “private if”. However, I think that these are all probing amendments.
The Marquess of Lothian
I am grateful to the noble Baroness for giving way. Could she perhaps outline to the House what sort of meetings of this committee should be held in public?
Baroness Hamwee
I am saying that the committee should consider whether there is a reason not to hold a meeting in public. My approach to this would be to say that each move into closed session should be considered quite positively. I look at it the other way round; it is a different philosophy and I accept that.
I have provided in Amendment 14—these are probing amendments—that a determination could be made to apply to more than one meeting. I cannot believe, given the committee’s obligation to the public, that every meeting should be held privately unless there is a good reason to hold it in public. As I say, it is a difference in philosophy. Amendment 14 is, as I say, probing, and I accept that a decision could be taken to cover more than one meeting.
Amendment 15 is rather different. I think that there is a place for something like a public question time. The noble Baroness’s amendment suggests annual hearings with the heads of the agencies and the Secretary of State, and I think that that is a good idea. In both of our amendments, we suggest that the public should have a hand in setting the agenda of the committee. I beg to move.
Baroness Smith of Basildon
My Lords, I shall speak to Amendment 17 and then perhaps say something about Amendment 15. The noble Baroness, Lady Hamwee, might have misunderstood our intention in Amendment 17, because I think that our intention differs very much from hers in Amendment 15. Amendment 17 is essentially, as she said, intended to probe the idea of public hearings. This idea has had a mixed response in your Lordships’ House in both today’s debate and earlier debates. What is vitally important is that the public should have confidence in the system of oversight of our intelligence and security services. I think that that has been quite clear in the early amendments to the structure and kind of committee that we are seeking. As has also been previously mentioned, the ISC itself has admitted that reform is needed urgently. One of the areas of reform that it stresses is the need to improve public confidence in its work and in its ability to function as a strong and independent check on the work of the intelligence community. Just as we would say that justice does not just need to be done, it must also be seen to be done, the scrutiny role of independent checks and balances does not just have to be done, it must also be seen to be done in order to create public confidence. I have to say to the Minister that, looking at the legislation before us, I do not think that the Government have given enough thought to the role that visibility can play in building up that kind of public confidence.
We have heard mixed responses to the public hearings held in the United States by the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence with the heads of the intelligence community. Those hearings in public session—many of them televised—are a significant aspect of this issue and have produced some important public admissions by the agencies’ heads. However, I think that there is a risk of them being seen as stage-managed, as we heard earlier from the noble Marquess, Lord Lothian.
We have to recognise that a large part of the committee’s work involves hearing evidence of a highly sensitive nature that cannot safely be publicly disclosed. However, it is important to move towards a system where public hearings are considered not automatic but more routine. I do not go quite as far as the noble Baroness, Lady Hamwee, although I think that we are going in the same direction, as I do believe that such hearings should be accepted more and be more routine. Therefore, Amendment 17 would expressly provide for the ISC to hold public hearings where it is judged that there is no significant risk of the disclosure of sensitive information, as defined by the Bill, or information that risks undermining the interests of national security. The noble Lord keeps chastising me for the wording of the amendment but I hope that he understands the theme that we are putting forward here. In effect, the amendment sets the same threshold for judging the risk of the disclosure of information in public hearings as the Bill does for the disclosure of information to the committee.
Perhaps a more appropriate set of conditions could be used here to ensure that public hearings do not lead to the jeopardising of our national security or of the work of the intelligence services. That is something that I would be happy to discuss. However, it is the principle of routine public hearings that we are trying to establish with this amendment. Similarly, annual public hearings with the heads of the intelligence services, as provided for in Amendment 17, would, as they do in the United States, send a very public signal about the accountability of our intelligence community to Parliament through the ISC.
There is perhaps just a slight difference of emphasis in our amendment compared with the noble Baroness’s Amendment 14, in that we do not think that public hearings should be automatic. However, I am slightly curious about Amendment 15 and the suggestion of a public question time. I wonder whether that would change the role of the ISC. It seems to me that its role is very specific—that of oversight of the intelligence community and intelligence agencies—and I am not sure what would be gained by putting its members into the public eye, with them being questioned by the public, as I think is the noble Baroness’s intention. I should have thought that public confidence would be achieved by members of the Intelligence and Security Committee being seen to do their job robustly and ensuring proper scrutiny and oversight of the intelligence community. This seems to be more about oversight and scrutiny of the intelligence committee by the public, although I should have thought that that was a job for Parliament rather than for the public. I should be interested to hear the noble Lord’s comments on the amendments.
Lord Skelmersdale
My Lords, I wish to say a tiny word on Amendment 17. I note that it begins:
“The ISC may decide to hold some of its proceedings in public, subject to sub-paragraph (2)”,
and so on. I ask the Minister whether there is anything in the Bill to prevent the ISC meeting in public, should it so wish.
Lord Campbell-Savours
My Lords, perhaps I may intervene briefly. Amendment 14 says that,
“the ISC shall meet in public save when it determines that members of the public shall be excluded”.
I think that that would put the fear of God into the agencies and I am afraid it would create a climate of suspicion which the committee does not deserve. I am not saying that it should not meet in public on occasion, as I shall explain in a minute, but putting words such as that into the Bill would be very unpopular within the agency. It needs to have confidence that Parliament is able to handle the material with the necessary safeguards.
Amendment 15 says:
“The ISC shall not less than once in each calendar year hold a public question time for which it shall determine applicable procedures”.
In a curious way, there may be something in that amendment. I remember—and the noble Lord, Lord King of Bridgwater, may recall—that we did occasionally meet in public. After the Mitrokhin inquiry, we invited journalists in to ask us questions. Therefore, in a way, the structure is there to do it. The question is: what is on the agenda? I can foresee circumstances in which there may well be an item of some controversy or just a general report where the committee may want to meet in public, and the public—basically, journalists—ask questions. However, Ministers may want to ponder over the exact wording of the amendment.
Finally, Amendment 17 says:
“The ISC may decide to hold some of its proceedings in public, subject to sub-paragraph (2) … The ISC may not hold public hearings under sub-paragraph (1) if it might lead to the disclosure of”.
The problem is that if members of the agencies, or indeed Ministers, are brought in as witnesses to answer questions, their refusal to answer, for perfectly legitimate reasons of national security, might send a hare running in the media which gets completely out of control. Although I accept that there are conditions in which the public or journalists should be able to ask questions, we have to be very careful about witnesses who might be called before the committee in those circumstances but who might feel that they cannot answers the questions in open session. The reason that parliamentary Select Committees meet in private is to avoid those very problems.
Therefore, again, I give qualified support but I think that there would be certain conditions under which it would be quite wrong for the committee to meet in public.
The Marquess of Lothian
My Lords, perhaps I may intervene briefly to say that there is nothing to prevent the ISC in its present form holding public hearings. Indeed, the Prime Minister in the previous Government, Gordon Brown, called on the committee to hold public hearings, and we have been looking very closely at ways in which this can be done. Therefore, there is nothing in Amendment 17 that I find very difficult because, first, there is the principle and, secondly, the restrictions on it which would be required for any public hearing.
However, following on from what the noble Lord, Lord Campbell-Savours, has just said, the first point to bear in mind is that a public hearing should not end up as a farce in which, because of the subject matter, every significant question that is asked is answered by the famous phrase, “I can’t answer that question”. The credibility of the committee would suffer very quickly if we went down that road. Secondly, it has to be an honest process. We cannot have a subject which is so anodyne and so completely rehearsed that in the end the public see through it. That, again, would be to the disadvantage of the committee.
We are looking closely, whether under this Bill or even before the Bill goes through, at whether we can identify subjects that are of genuine public interest and where the agencies or the sponsoring Ministers will feel able to answer at least the majority of the questions. We are looking at holding a public hearing in which the members of the committee, in its normal form, ask the questions and the answers are given. I think that that is slightly different from the sort of press conference to which the noble Lord, Lord Campbell-Savours, referred, which we have also undertaken on a number of occasions. This would be a case of the committee asking questions of the agencies, which is, after all, the true role of the committee.
Lord King of Bridgwater
My Lords, I shall take together all the amendments that deal with how the ISC can interface more clearly with the public. I listened with interest to the noble Baroness, Lady Hamwee, and I wondered whether her view on the meetings in public and the hearings that might subsequently be held in public, which is raised in the amendment of the noble Baroness, Lady Smith of Basildon, is that those would be televised as well. This is an option in Select Committees, and hearings that are held in public will presumably be open to television coverage.
Baroness Smith of Basildon
My Lords, I did not hear what the noble Lord said as he turned away from the microphone. Will the noble Lord repeat what his concern was because we missed it on these Benches? I did not hear what his objection was.
Lord King of Bridgwater
The point was that it may be decided to hold some proceedings in public which presumably would be televised as well. The noble Lord, Lord Campbell-Savours, referred to a point that I was also going to refer to. The annual appearance of what was previously the ISC was the publication of the annual report. We used to have a press conference after that and it was televised and open to all the journalists. Of course there could be an inquiry of one sort or another that came outside the annual cycle. The classic illustration of that was Mr Mitrokhin and the Mitrokhin report. I have a copy of the press release that we put out on 13 June 2000 on the Mitrokhin report.
It is interesting about pushing back the boundaries. This is pervasive and accepted by the Government in the whole concept of the initial clauses of this Bill on the wider remit that has grown for the ISC. The committee agreed to conduct this inquiry on the understanding that it would have access to all the relevant documents, including advice given to Ministers as well as evidence from key witnesses. We were given this access. This was never included in the original Bill and was an illustration of the way in which the committee gradually covered a wider area and had greater access. The idea that the committee hides away in private and is not prepared to appear in public is not right.
Amendment 17, in the name of the noble Baroness and her colleagues on the opposition Front Bench, states that the committee,
“may decide to hold some of its proceedings in public, subject to sub-paragraph (2)”.
Sub-paragraph (2) states:
“The ISC may not hold public hearings … if it might lead to the disclosure of—
(a) sensitive information”.
That is the whole problem. As the noble Lord, Lord Gilbert, who has now joined us as a former member of the committee, said, if you have an effective committee with effective questioning, where may it lead? If you are discussing serious issues, you cannot be sure at the start of it. You may have started out with a wonderful public agenda but things may emerge in the evidence that make it thoroughly undesirable at that stage that it is held in public. I was trying to think what the issues are because I was myself in favour of trying to see whether the committee could have the occasional public meeting, not as an obligation and having to explain each time why it was not having it in public, but just to show that there are issues, that it is an effective committee and that it could hold the heads of the agencies to account.
One of the problems when we started was that the heads of the agencies did not always want to appear in public and have their faces too easily recognisable. That situation changed and the noble Baroness, Lady Manningham-Buller, was an exception. She was extremely good at bringing a more public face to the essential activities of MI5. I wondered about the sort of subjects on which we could see the committee in action. One of them might be recruitment for the Security Service: the issue of whether it is recruited from too narrow a sector of society, the efforts that the agency is making to recruit across a wider section of community, the importance of diversity, and the importance of access to a wider range of languages and of being involved with and recruiting from all sections of our multicultural society, which is so important at the present time. That is the sort of issue—I got a small nod as I said this—that I thought could be handled in a public hearing.
I would like to have had a public hearing on the accommodation arrangements of GCHQ and our criticisms of the control of that project. This was one of the biggest scandals that we uncovered during our time in Government, where the estimate for the expenditure on the new facility in Cheltenham, the donut, which is now well photographed, rocketed beyond an initial brave estimate of £20 million and ended up closer to £220 million. Issues of accommodation are perhaps relevant, although you can get bogged down in all sorts of tabloid sensations. One of the accommodation issues was the cost of the trees on the balcony of SIS and who was paying for those. The committee has to be careful not to get bogged down—we always took this view—in chasing the individual tabloid shock-horror story of the week and to concentrate instead on the issues that are of fundamental importance.
There is a real difficulty in trying to say that in principle the hearings should be in public. My noble friend Lord Lothian illustrated to those who were not at the earlier session what happened with the Senate Intelligence Committee and how it was a put-up job with planted questions and planted answers because that was all it felt safe to handle in public. I do not think that helps credibility and it looks as though the committee is just part of the conspiracy.
I do not support the idea that in principle there should be public hearings and that the committee should explain why if they are not, which is the theme of these amendments. Public confidence is best achieved by taking the opportunity where possible for a public hearing and showing the sort of way that the committee operates but not having it as a presumption in every case.
Baroness Manningham-Buller
I am pleased to hear from the noble Marquess, Lord Lothian, that the committee is currently thinking of whether there are ways that some things could be held in public because I think it is the case that there are issues—the noble Lord, Lord King of Bridgwater, suggested some—that could conceivably be considered in public without any danger to national security. Having said that, I would also say that, whenever I gave evidence to the committee, on practically all occasions I was discussing secret information and very often top secret information. Therefore, the time that you could have an open hearing would be very restricted indeed. On whether this would improve public confidence, it would be narrow so it might or might not. However, if the committee is thinking that way, that is welcome.
Lord Henley
My Lords, we have three amendments in this group, all of which are concerned with the ISC meeting in public and how that should operate. I appreciate the concerns behind the amendments but similarly I have a number of concerns about the idea of creating any formal power and, in the case of annual hearings, a duty to hold public hearings. I am sympathetic to the noises made by the noble Lord, Lord Campbell-Savours, when in relation to Amendment 14 he suggested it might put the fear of God into some of the agencies involved to see such an amendment down.
Perhaps I may go back through the history of these matters to set things in context. In The Governance of Britain Green Paper of 2007, a series of reform proposals were made aimed at bringing the ISC as far as possible in line with other Select Committees. One proposal was for some hearings of the ISC to be structured to allow unclassified evidence to be heard in open session. However, as Members of the Committee will know, those sessions did not happen with any frequency. As my noble friend Lord Lothian pointed out, the committee has the power to have open sessions if it so wishes.
Building on this, the Justice and Security Green Paper stated that while the ISC’s meetings would still as a rule have to take place in private, both the Government and the committee were committed to the concept of public evidence sessions where these could be held without compromising national security or the safety of individuals. The Bill does not need to include a specific provision to enable public evidence sessions. Both the existing ISC, created by the 1994 Act, and the ISC that is provided for in the Bill have the power to determine their own procedures. That is sufficient for these purposes. In this way, there is very little difference between the position in the Bill and that proposed by the noble Baroness, and for that matter by Amendment 17. The crucial difference from Amendment 14 is that we do not start with the default position that sessions must be in public unless certain conditions are met.
There are very significant practical issues that must be addressed before public evidence sessions can take place. As I am sure the Committee will appreciate, introducing public evidence sessions for a committee that will in the vast majority of its work be concerned with very sensitive and highly classified information will be very challenging. The Government are in discussion with the committee and remain committed to making this work in practice—for instance, on issues such as appropriate subject matter, timing and having appropriate safeguards against unauthorised disclosure of sensitive information. I have already argued that the work of the ISC must be done largely in private. As only a very small amount of the evidence that it hears, whether written or oral, is unclassified, the default position suggested in Amendment 14 that it should meet in public is neither appropriate nor practical.
On Amendment 15 there are a number of different models for what could be considered a public question time. In one model, members of the public could ask questions directly to members of the ISC on their oversight role. That format is sometimes used in local government. Naturally it is in everyone’s interests that there is an understanding among members of the public of the ISC and the valuable function that it performs. However, the Government have concerns that a question time of the nature suggested by Amendment 15 would pose significant risks and would be ultimately unworkable. Again we make it clear that the committee has access to extremely sensitive intelligence information, public disclosure of which could cause significant damage to national security. Therefore, the way it operates will inevitably be different from that of departmental Select Committees, and it must not necessarily be conducted in public. I hope that that explanation will satisfy my noble friend Lady Hamwee on her Amendments 14 and 15.
On Amendment 17, I appreciate that the noble Baroness, Lady Smith, was probing. The answers that I gave on what we want to do following the 2007 Green Paper and the more recent one indicate that where possible we would like openness in order to allow public confidence in the committee to be maintained and enhanced. However, it is not necessary to go down the route suggested by the noble Baroness in her amendment. As I made clear, it is available to the ISC to do that should it so wish. Of course, we will continue to have discussions with the committee about the most appropriate manner in which to deal with that. I hope that my noble friend will feel able to withdraw Amendment 14.
Baroness Hamwee
My Lords, I am grateful for that response and for the comments made around the Committee. Of course I accept that there is nothing to prevent public proceedings, and what we have heard about the direction in which the committee is moving is very welcome. However, I felt that it was important to raise the issue in order to indicate what Parliament will expect in future. On the query about televising proceedings, I suppose that it is almost inevitable in this day and age. If proceedings are to be in public, what are the mechanisms for making them so? However, I accept the implicit point that that raises issues.
On the issue of question time, as the Minister said, there are a number of models for questioning the committee or the agencies. I am not entirely sure that there is an absolutely clear demarcation line between the two. One can imagine members of the public asking committee members why they had not asked about something. Perhaps it is a muddy area. The title “question time” can mean different things to different people. I accept that it might raise the wrong expectations. Nevertheless, it is a flavour of where work should be heading.
We have heard examples of possible subjects that might be covered. Some—perhaps not all—financial arrangements of the agencies, along with some aspects of the administration, might also be dealt with in public. The example of recruitment was very interesting. That would be a matter of broad public interest and I hope that it could be pursued. Of course, planted questions and answers are not enough, but are they not sometimes better than nothing? People will have different views on that.
I raise these issues because they are properly covered in debate at this stage of the Bill. I am not sure whether we will take them further. The issue remains very live, but whether it is an issue for legislation is perhaps a different matter. I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) The ISC may consider the proposed appointment of the following including by questioning the prospective appointee at a meeting of the ISC—
(i) the Head of the Security Service;(ii) the Head of the Secret Intelligence Service;(iii) the Head of the Government Communication Headquarters; and(iv) such other persons as the Prime Minister may direct.”
Baroness Hamwee
My Lords, if I have not caused apoplexy so far, I will with this amendment. I have absolutely no expectation that the Government will be minded to accept the notion of confirmatory hearings. However, I tabled the amendment because we do not have to go the way of the United States. There are more and more examples in the UK of confirmatory hearings. They do not necessarily come with a veto—in fact, there are probably no hearings where a veto is granted to the examining committee. However, holding sessions where a nominee for a position can be questioned so that the public know what they are getting in the prospective appointee is part of opening up services to public understanding as well as addressing issues of accountability.
I mentioned the Greater London Authority earlier. I will not draw too many comparisons between the organisations, but confirmatory hearings of mayoral appointments were introduced just after I stood down from the GLA. I watched one of them on what I believe is called a narrowcast on the web and it was absolutely fascinating—not just the questions but the whole experience. One could tell so much from the body language of the person who was being questioned. I thought that it was a very useful session. This is not even in hope, let alone expectation, but I do not want to think that we have to do things exactly as the United States does or discard them because of that experience.
Lord King of Bridgwater
I have a point of clarification. Is the noble Baroness proposing that these hearings should be in public or not?
Baroness Hamwee
I suppose it had been in my mind for the reason that I gave about public understanding. The noble Lord raises a very interesting point as to whether one should look at this as not a public exercise. That would raise different and very interesting issues, and perhaps fruitful ones. I am sorry I did not go there in my comments. I beg to move.
Lord Campbell-Savours
I am glad the noble Baroness did not stipulate that the hearings should be in public because that would make it quite impossible for us to carry out this function, which in many ways I have great sympathy with. If we had had the opportunity when I was a member of the committee to interview proposed heads of the agencies prior to them taking over responsibility for the agencies, it would have been helpful to the committee. In so far as it had not been in public, no damage would have been done. Certainly we would have been able to make our concerns or satisfaction known to the agency, and during the questioning of the proposed appointee we could have raised subjects that would have given us, certainly in one case, a little more reassurance than perhaps I felt I had when the particular person was appointed. I think there is merit in this amendment as long as the hearings are in private.
Baroness Smith of Basildon
My Lords, the issues that have been raised are the very ones that I listened to the noble Baroness to hear as she moved her amendment and to try to see what the aim was. Her amendment does not mention public or private, although in her original comments she spoke of public hearings. It was not until the noble Lord, Lord King of Bridgwater, intervened that she conceded that there could be private hearings, which have more value than a public hearing would. I am no wiser and very interested to hear what the Minister has to say. I assume that he will accept the principle. My favourite bedtime reading, the coalition agreement, includes a specific commitment to strengthen the powers of Select Committees to scrutinise major public appointments. I should have thought that this comes under the remit of a major public appointment. The noble Baroness might have done the House a service to tease out whether the Government intend to honour that part of the coalition agreement.
Lord Henley
The noble Baroness is right: there was that commitment. She also knows that pre-appointment hearings are a relatively new phenomenon. Since 2008, Select Committees have conducted pre-appointment hearings for a number of posts, and there is Cabinet Office guidance on the process and on who should be heard. The important thing to note about the list of pre-appointment posts is that the posts concern public bodies, such as the chair of Ofcom and the chair of the Social Security Advisory Committee. The most recent one that my department had an interest in was Her Majesty’s Inspectorate of Constabulary. There is no suggestion that the pre-appointment process has been used to appoint civil servants. Indeed, the noble Baroness is not suggesting that before appointment each Permanent Secretary should go before the appropriate Select Committee.
The heads of the intelligence and security agencies are Permanent Secretary-level civil servants.
Baroness Manningham-Buller
They are not civil servants; they are Crown servants.
Lord Henley
I stand corrected by the noble Baroness, but it makes little odds; Crown servants are in fact at Permanent Secretary-level, although I accept that rebuke.
The recruitment process is therefore expected to follow the process for the appointment of Crown servants of such seniority. I could go through the details of the Constitutional Reform and Governance Act, but I can give an assurance that they are exempt from that. They will necessarily follow the spirit of the civil servant recruitment principles, which we consider to be the best process. We do not consider it to be the appropriate mechanism for recruitment to public bodies, whether the process is conducted in public or in private. It might be appropriate for the other posts that I mentioned but not for the public bodies that we are talking about.
Lord King of Bridgwater
I apologise to the Minister for intervening, as he has been extremely co-operative with the Committee in every respect. It seems to me that, on the whole principle of this pre-appointment hearing—we left open the question about public or private hearings—it is an important asset for the person about to be appointed if he has a successful hearing before the committee. It reinforces his position at the start of his work if the principle is accepted elsewhere.
We then have the argument about Crown servants and their exact role, and we go through a range of bodies, including Ofcom. I do not even know what Ofcom’s position is—whether it is in government or outside it—and exactly what its relationship is. However, I think that the principle of holding hearings has merit, and—to use a phrase I have used before—I have a feeling that they will come.
Lord Henley
I am afraid that on this occasion I have to disagree with my noble friend. There it is quite a distinction between Her Majesty’s Inspectorate of Constabulary or the chair of the Social Security Advisory Service on the one hand and, for that matter, the Permanent Secretary of the Home Office or the Permanent Secretary of any other department on the other. We suggest that the heads of the intelligence and security agencies fit in more appropriately with that later group rather than with the former group.
Baroness Hamwee
My Lords, I am not clear whether the Minister is saying that they fit in with that group or that they are exempt under the legislation, which he mentioned. Either way, process moves forward. It is not so very long ago that we did not have the Nolan principles, but they are completely accepted now. I, too, think that this may come, although it may not come in the Justice and Security Act 2012. However, we are in Committee, and I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) arrange for it to be made available to advisers to the ISC who are the subject of specific security clearance who may then advise the ISC with regard to the information including providing written material in redacted form,”
Baroness Hamwee
My Lords, Amendment 18, in my name and that of my noble friend Lord Thomas, is the first in quite a large group. We have other amendments in the group, as does the noble Lord, Lord Campbell-Savours, and the noble Baroness, Lady Smith, and they are all about access to information.
Amendment 18 would provide for advisers to the ISC with the right security clearance to be able to have access to information. It was suggested to me by someone who was at one point a member of the ISC and who thought that it would make the process a great deal easier if some of the committee’s own advisers had that clearance and could go into the agencies and do the work that was necessary. That goes to the independence of the ISC.
The other amendments are all about accessing information when it is a necessity. If the committee is to carry out its proper role of scrutiny and to deter poor practice effectively, it should see what it wants, not what is given. Obviously others will have different views about that.
Paragraph 3(1)(b) allows the Secretary of State to determine whether information is not to be disclosed on one of the bases set out in paragraph 3(3), one of which is that the information is sensitive as defined in paragraph 4. I simply ask whether it is constitutionally appropriate for the Government to withhold access to documents which the committee considers necessary to hold the Government to account. A much happier situation would be to provide information but to be confident in the appointees and in restrictions on their using it. However, access to information is the point from which I start. I beg to move.
Lord Thomas of Gresford
My Lords, perhaps I may follow and develop the argument made by my noble friend Lady Hamwee in her final remarks and deal with some of the important features of the Bill.
There is a constitutional principle that the Executive and every agency of government are accountable to Parliament. Parliament is supreme, not the Executive, and it is to Parliament that accountability must be made. If the ISC is to operate effectively and to act as a deterrent against malpractice, it should have the power to examine any document that is held by the security services. As my noble friend said, the ISC members will be nominated by the Prime Minister and approved by Parliament and, presumably, will be security-cleared to the necessary level. If they are to be limited in the documents that they can inspect by reason of the diktat of a Minister, as advised by the security services, there is a breach of constitutional principle. It is not appropriate for there to be legislation to prevent government accountability to Parliament by allowing Ministers to operate in that way.
Under the format of paragraph 3 of Schedule 1, the Director-General of the Security Service and others, if asked by the ISC to disclose any information, can arrange for it to be made available. However, they can also inform the ISC that the information cannot be disclosed because the Secretary of State has decided that it should not be disclosed—the decision of the Secretary of State, presumably, being advised by the security services. Amendment 19 seeks to delete sub-paragraph (1)(b).
If the ISC asks a government department or any part of it to disclose information, the relevant Minister of the Crown—who, under sub-paragraph (5), may be any Minister—must arrange for that information to be made available in accordance with the memorandum of understanding or, as the Bill stands, inform the ISC that the information cannot be disclosed because the Minister of the Crown has decided that it should not be disclosed. Therefore Amendment 20 seeks to delete sub-paragraph (2)(b)
Under sub-paragraph (3), the Minister of the Crown can take the decision not to disclose only if he considers that it is sensitive information and information which, in the interests of national security, should not be disclosed to the ISC. So, again, presumably he is acting on the advice of the security services in coming to the conclusion as to whether it is sensitive information or as to what the interests of national security are.
Sub-paragraph (3)(b) of paragraph 3 states:
“it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security)”.
So, presumably, on the Minister’s say-so and without advice from the security services, it would be proper for that information not to be released.
The Secretary of State or Minister of the Crown can decide, either on the advice of the security services or on their own initiative, that the ISC is not very important and they can just say, “No, it cannot see this, even if it wants to. It will have to come to its conclusions simply on the documentation that I”—the Minister, acting on the advice of the security services—“think it should see”. Is that what the Bill is about? Is that its purpose? Are we debating the functions, procedures and the setting up of the ISC so that a Minister of the Crown, advised by the security services, can withhold information from it? It is constitutionally inappropriate and I firmly urge these amendments upon the Government.
Lord Campbell-Savours
My Lords, I have great sympathy with the speech of the noble Lord, Lord Thomas of Gresford. It addresses a fundamental flaw in the Bill.
I shall speak to Amendments 22 and 26. Amendment 22 deals with sub-paragraph (3), which states:
“A Minister of the Crown may decide under sub-paragraph (1)(b) … that information should not be disclosed only if the Minister considers that”—
as the noble Lord, Lord Thomas of Gresford, said—
“(b) it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.
If I remember rightly, that is currently the position under the present ISC, notwithstanding the statement in the Bill. I have not always understood exactly what such circumstances are. I have often wondered what would be the circumstances in which Ministers would take that action. Perhaps the Minister will give an explanation today.
The noble Lord, Lord Thomas of Gresford, referred to decisions being taken on a whim. Now that that provision in paragraph 3(3) is be enshrined in the Bill and subsequently become law, we need something more substantial so that we know exactly what is intended by it.
I turn now to the part of the Bill that really worries me—the phrase,
“relevant Minister of the Crown”.
As the noble Lord, Lord Thomas of Gresford, said, we are not given an indication of who is to be involved. Are we talking about Parliamentary Under-Secretaries or Ministers of State? The noble Lord, Lord Henley, is, I understand, a Parliamentary Under-Secretary.
Lord Campbell-Savours
He is a Minister of State. Forgive me. However, the point is that for a long time he was a Parliamentary Under-Secretary and, in my view, if he had been in the House of Commons he would have been in the Cabinet. We are not merely talking about the quality of Ministers that we have here in the House of Lords; we are talking about some of the Ministers that we see at the Dispatch Box in the House of Commons. It would be an error of judgment to include in the Bill a provision which would give some of these Parliamentary Under-Secretaries in the House of Commons the power to block information being brought before the ISC. However, that is what I understand the Bill means to do. It means that any Minister, in any department, in any circumstances, could decide that information was not to be made available to the committee.
Why do I have concerns that go up even as far as Secretaries of State? I referred at Second Reading to a particular incident in the committee when the late Robin Cook—I am sorry that he is not here to answer me today—was, in my view, very obstructive before the Intelligence and Security Committee in that he did not want to have certain information brought before that committee. There was quite a discussion in the committee about the fact that he was resisting having that information made available. I quoted the example of the noble Lord, Lord Heseltine, for whom I have great regard. Imagine the mindset of the noble Lord, Lord Heseltine, in the early 1980s when he had it in for CND and all that, and giving him the responsibility or the power to decide, on his personal consideration, that this information, which the ISC wanted, should be denied to the Select Committee. I believe that it is wrong that Ministers should be in that position. Indeed, as I said at Second Reading, I would trust the heads of the agencies more than I trust Ministers.
For a start, many Ministers lack confidence in this area. As they would have very little experience of how the system works and what goes on inside the agencies, their experience of the agencies may be far less that that of even members of the committee, yet they are to be given the right to decide whether information is to be blocked. It might well be that a junior Minister, lacking confidence, would be unwilling to take a decision to provide information, or allow information to be provided, for career considerations. He or she might worry that by providing that information and taking that risk, because they had not had that experience, they might be damaging their own career prospects. They may well simply be unable to quantify the risk on the basis of their very limited experience and, furthermore, some Ministers might simply make a straight political judgment about whether information should be made available to the committee. That is the very area about which I think considerations should not be made.
I have concerns and I do not believe that Ministers should be involved in this process at all. We go back to my very controversial model, which I put to the House at Second Reading—I put it in the same way that I put the argument for Select Committee status in 1998 and 1999. At that time it was simply ruled out of the question, so I recognise that it will probably be regarded as out of the question today, but I put forward the model that I put forward at Second Reading. First, the ISC should have Select Committee status. Secondly, the chair should be decided by the approval of the Prime Minister, not election by the committee. Thirdly, the chairman should be the critical person in this process.
The chairman of the Intelligence and Security Committee should have unrestricted access to all operational material within the agency on operations that have taken place. The chairman should be in a privileged position in the committee and it should be for him to decide whether information should be made available to the committee. That is why I do not want election of the chair. I want the Prime Minister to pick the chair, because I believe that the Prime Minister will know exactly who is capable of handling the material and deciding on the circumstances in which the membership of the committee is given access to the information. I would have—I have to be very careful how I phrase this—trusted the chairman, the noble Lord, Lord King of Bridgewater, to take that decision on my behalf, as a member of that committee, long before I would have trusted Labour Ministers, who might not have had the experience that he had gained as chairman of the committee.
It is a very serious area and what we are doing now, by going down this route and letting the politicians decide what information gets through, will create problems for the future which we may well regret. In other words, my answer is very simple: keep the Ministers out of it. Let the agencies influence the chairman of the committee. Let them go to the chairman and say, “Chairman, we do not believe that this information should be made available”. If Ministers want to get involved they can go to the chairman and say, “Chairman, we do not believe that this information should be made available”; but give the chairman the final decision. The committee, in those circumstances, would have far more confidence in the arrangement for scrutiny of the services, et al, than is presently the case, or, indeed, will be the case under the provisions in the Bill.
Lord King of Bridgwater
I am getting very flattered by the noble Lord, Lord Campbell-Savours. I think that there is a real problem in this area and I do not quite understand the amendments tabled here. I certainly do not understand this business in the Bill about what would be before a departmental Select Committee,
“on grounds that were not limited to national security”.
That is the point that the noble Lord, Lord Thomas of Gresford, made and I hope that the Minister will clarify that point to an extent.
I think that there is a point, though it may seem a bit extreme, in what the noble Lord, Lord Campbell-Savours, said. It may strike fear through all proper government structures that the suggestion should be left to the chairman of the committee. I think it is true that it is not just the chairman of the committee: initially, it is the heads of the agencies: they are the people who decide whether they wish to withhold information, then they have to make their case to the chairman.
This takes us into quite interesting country, because one of the arguments used in the past is, to whom are the heads of the agencies responsible? The answer is that they are responsible to the Prime Minister. That raises the question: how does a busy Prime Minister with a thousand problems on his plate really take direct ministerial involvement? One interesting study we did looked at the proposal—one or two members of the committee got quite interested in it—that there should be an intermediate Minister appointed who would have overall responsibility for the agencies at Minister of State level, answering to the Prime Minister. We thought that this was quite a good idea until we discovered that that was exactly what had happened in Germany. I do not remember the name of the Minister, but he became an intermediate and became carried away with his role in intelligence matters—he became a sort of super-M. At one stage he was flying to Iran and other places by private jet trying to negotiate the release of certain German hostages and other people. It had gone completely to his head and people suddenly realised that nobody had much control. One or two senior members of Her Majesty’s Civil Service pointed out the dangers of this role to the Prime Minister—one or two of them may be sitting here—saying that there were occasions when a previous Prime Minister thought that the intelligence agencies were out of control and trying to undermine him. Was it a good idea to pass this off to a junior Minister? The Prime Minister had better keep overall responsibility for it.
Having said all that, I think that there is an argument, for Ministers who are not—if it is the Prime Minister—entirely dependent on official advice on this, that a properly constituted, effective chairman will bear a heavy responsibility if he overrides the head of an agency and says that this information should be made public and then finds that it subsequently proves to be extremely damaging to national security. That would be enormously damaging not just to him or her personally, but, obviously, to the whole role of the ISC. On those grounds, it would not be an irresponsible chairman in this role; it would be somebody who, because of the involvement he has had already, over a period, with the heads of the agencies, could probably be expected to take a more informed and responsible response to representations made by the heads of the agencies.
Lord Rosser
My Lords, I shall be brief, as much of the subject matter has been covered already. I wish to speak to Amendments 21 and 23. The purpose of those two amendments is to ensure that the power to veto disclosure of departmental information can be exercised only by the Secretary of State and not by a Minister of the Crown. Paragraph 3(1)(b) of Schedule 1 requires that only the Secretary of State can decide that information required by the Intelligence and Security Committee can be withheld by the agencies. Moving down to paragraph 3(2)(b), in relation to other government departments, it appears that the Minister of the Crown can make that decision, which would appear to indicate, subject to the Minister’s response, that such a key decision can or would be made at a more junior level than Secretary of State in relation to disclosure of information in respect of a government department. If that is the case, no indication is given about a reason for that decision. Bearing in mind that withholding required information could thwart the Intelligence and Security Committee in its work to meet its statutory remit of strength and oversight of the intelligence and security activities of the Government, such a decision should be taken only at the highest ministerial and accountable level within the department concerned, namely, the Secretary of State. These amendments provide for that.
Lord Lester of Herne Hill
My Lords, perhaps I could briefly explain the problem that arises with the Joint Committee on Human Rights. It is very important that parliamentary committees are well informed. From time to time, under the previous Government and under the present one, the committee has considered inviting someone from the intelligence and security service to provide it with a proper context when it is considering something such as detention without trial for a long period or, for example, the Justice and Security Bill. Under the previous Government, when we tried, we were told that it would not be possible and, therefore, we were not given the benefit of that material. Therefore, we have not tried in relation to the Justice and Security Bill because we are certain that we would find the same refusal.
It seems to me that it ought to be possible for the intelligence and security service to assist a parliamentary committee, on whatever terms are needed, to protect its own position, whether giving evidence in private or in some other way because it is a real handicap. It means that when we produce reports, for example, on this Bill, we are deprived of information that would be very helpful. It makes us look as though we are looking at problems through one eye instead of both. I do not think that we should be put in blinkers. I mention this because it seems to be something that extends to committees other than the one that we are now considering.
Lord Campbell-Savours
Could I ask the noble Lord to attend the debate on one of my later amendments, which deals precisely with that matter?
Lord Henley
My Lords, I believe that the noble Lord, Lord Lester, is waiting for some later amendments beyond Part 1, so I am sure that he will be here for the amendments in the name of the noble Lord, Lord Campbell-Savours. I can advise the noble Lord, Lord Lester, that Amendment 37 is the one that he should stay for.
We have eight amendments in this group, which all deal with the power of Ministers to withhold information from the ISC. It might be helpful if I start by going back to where we are now. Currently, the agency heads can make a decision not to disclose information to the ISC on the basis that it is sensitive information which they consider it would be unsafe to disclose to the ISC. Information which agency heads consider should be withheld on this basis must, none the less, be disclosed if the Secretary of State considers disclosure to be desirable in the public interest. It is a matter for the agency heads, but the Secretary of State can order the disclosure if she thinks it is in the public interest.
The Justice and Security Bill removes the ability not to disclose from the agency heads; this will now rest solely with the appropriate Secretary of State according to specific conditions. Where the information in question is held by a government department, as opposed to the agencies, a Minister of the Crown—rather than a Secretary of State—will be able to withhold information on the same specific grounds applied to agency material. In other words, the Bill makes the decision on withholding information from the ISC one exclusively for democratically accountable representatives.
In passing, I shall deal with the question about Ministers of the Crown, rather than Secretaries of State, being referred to in paragraph 3. This is purely to deal with the question of the Cabinet Office, which noble Lords will be aware does not have a Secretary of State. Therefore, it would be down to one of two Ministers in the Cabinet Office to make that decision. If noble Lords look at paragraph 3(5), they will see that the,
“‘relevant Minister of the Crown’”,
will, in due course, be,
“identified, for the purposes of requests of that description, in a memorandum of understanding under section 2”.
We discussed the memorandum of understanding at Second Reading and noble Lords will be aware that we hope that that, or a draft of it, will be available at a later stage.
I now turn to Amendment 18. It is appropriate to go through the amendments in slightly more detail. This will have the effect that if any of the three heads of the intelligence and security agencies are asked by the ISC to disclose any information then, as to the whole or any part of the information, that person may arrange for it to be made available to a security-cleared adviser to the ISC who may then provide advice to the ISC on the information, including written material in redacted form. It is worth stressing the importance of the provisions in the Bill governing when information may be withheld from the ISC. These powers will be used sparingly only in very exceptional circumstances. It is important that we retain those safeguards. The ISC routinely sees very sensitive information, including that at the highest levels of classification. It would not be able to fulfil its oversight role if it did not. It is not clear from the amendment to whom the noble Baroness intends the term “advisers to the ISC” to apply. Does she have in mind the current staffing of the ISC or perhaps a completely new role? The type of material that a Secretary of State may decide cannot be shared with the ISC—a good example would be the names of agents—is likely to be of such a sensitive nature that, if the Secretary of State has made a judgment that it cannot be shared with the ISC, then it would not be possible to share it with “advisers to the ISC” either.
We should also think about the practical difficulties posed by an amendment of this nature. That is Amendment 18. The amendment is likely to lead to circumstances where an adviser to the ISC has access to information which he or she cannot share with the ISC. This could place the adviser concerned in an impossible position of conflict of interest. When next called on to advise the ISC, that person may know information relevant to the advice that he or she is being asked to give, which, because they cannot share it with the ISC, they have to try to put out of their mind. If harm to national security can be avoided by providing information requested in a redacted form, then the existing provisions of the Bill oblige the agencies to provide it in that form; that is the effect of including the words,
“or any part of the information”,
in paragraph 3(1) of Schedule 1. I hope that describing the way in which the ISC and its secretariat presently operate assists the Committee and explains why the Government resist Amendment 18. In short, the amendment seems to contemplate an intermediate level between disclosure to the ISC and non-disclosure, which I hope I have shown, in practice, does not usefully exist.
The effect of Amendments 19 and 20 would be that the Government would never be able to withhold information from the ISC, whether it is held by the agencies or a government department. As I have already said, the powers to withhold information in the Intelligence Services Act 1994 have been used very rarely in the past, and we would expect the equivalent powers in the Bill also to be used sparingly, and only in exceptional circumstances. However it is important that those safeguards are retained. In particular, although the ISC will clearly be a body that sees a great deal of very sensitive material, there will be circumstances in which it is not appropriate for even the ISC to see that information on the grounds of national security. For example, there may sometimes be information that is so sensitive that national security demands that it be shared only with a small number of people within the agencies, let alone with the ISC. This is why the sensitive information ground for withholding information is expressed in the Bill in the way it is. It is not enough that the information is sensitive; it must be in the interests of national security for that sensitive information not to be disclosed to the ISC.
Baroness Hamwee
My Lords, the Minister, who has been the subject of the many compliments flowing from the noble Lord, Lord Campbell-Savours, today, has given us quite a lot of material to think about. He has certainly given me some ideas about better drafting for my Amendment 18. Given the number of noble Lords who are here not to discuss this issue, I will do no more than end with a question. I am not sure that I expect the Minister to respond to it immediately. Under this paragraph, would a decision by the relevant Minister of the Crown—leaving aside the rank or position of that Minister—be judicially reviewable? Clearly it would have to be shown to be unreasonable and how one does that I do not know. Is this an administrative decision that would fall within the ambit of judicial review? The Minister is going to dare to respond.
Lord Henley
My Lords, I am not going to dare to respond. I am saying that there are a lot of very noble and learned Lords in this House and a lot of Members who are not necessarily noble and learned but know a great deal of law. I do not know the answer to that. I had better write to the noble Baroness. I am sure she will have a response before Report.
Baroness Hamwee
My Lords, I am not a noble and learned Member either, which is perhaps why I can dare to ask the stupid questions. I beg leave to withdraw Amendment 18.
Baroness Stowell of Beeston
My Lords, before I resume the House, I will cover a bit of housekeeping relating to the next debate in the name of the noble Earl, Lord Clancarty. I remind noble Lords that, with the exception of the noble Earl and the noble Viscount, Lord Younger of Leckie, all speeches are limited to three minutes because this is a time-limited debate. I remind all noble Lords participating this evening that when the Clock hits three minutes, I am afraid that is a signal that time is up. Those who have a television background should maybe think of their Whip tonight as a floor manager—they will stand between you and the camera if they need to.