Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Manningham-Buller Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

The noble Lord, Lord King of Bridgwater, is unavailable, so I call the noble Baroness, Lady Manningham- Buller.

[Baroness Manningham-Buller (CB) [V]]

I was expecting to follow the former chair of the ISC from when I was there, but I am delighted to follow the noble Lord, Lord Thomas of Gresford. I do not intend to repeat what I said in Committee, but I want to make a few points—although I realise it is late and we have a lot more to get through.

If the noble Baroness, Lady Kennedy of The Shaws, is right that judges have changed over the years, so have MI5 and the police. Since I left MI5 13 years ago, oversight, which is the first thing I want to talk about, has strengthened. The double lock now exists: you cannot get a warrant for a telephone intercept or a microphone operation without a judicial signature, as well as that of the Secretary of State. IPCO has assumed a very important and vital role and I read with great interest its recent report, which is very comprehensive and thorough.

Since I left, there have been Independent Reviewers of Terrorism Legislation. I suggest to your Lordships that we are lucky to have in this House the noble Lords, Lord Anderson and Lord Carlile. They have deep inside knowledge of these issues and, unlike me, they cannot be accused of a conflict of interest. They came to these jobs and did them objectively.

I welcome this oversight. I am not somebody who feels that too much interference is tricky. It helps keep standards high, it gives confidence to the public and it gives clarity to my former colleagues, which they welcome. When I joined the Security Service there was no law at all governing what we did, and I can tell noble Lords that that was an extremely uncomfortable position.

I support the new clause proposed by Amendment 33, because it seems to be the ideal combination of independent oversight from IPCO and operational expertise—and I believe quite strongly that we should not muddle those two roles.

I had thought that I would try to resist defending covert human intelligence sources, but I cannot allow some of the comments made this evening to stand without my giving an alternative view. Of course I do not defend those involved in the murder of Finucane, and of course I regard the undercover police who grossly abused their trust as culpable. But I have met many undercover agents—as very few Members of your Lordships’ House, apart from the noble Lord, Lord Paddick, have done. I have to say that my experience is different from the noble Lord’s. Mine have not been engaged in activity regarded as undesirable. They have not been venal or self-interested, receiving brown envelopes of cash. So the earlier point about whether the legislation is right for all of us is interesting, but my experience is very different.

This is where I will repeat myself from Committee. I have met brave men and women who risked their lives—I underline that—to save other lives. Yes, they are occasionally authorised to commit crimes, but lesser crimes than the ones they seek to prevent. It is risible to suggest that they have carte blanche or should be involved in setting bombs. They have saved thousands of lives. They will never get public recognition or thanks, but I take this opportunity to thank them. We have a moral obligation to respect them, protect them and keep them safe, because many of us depend on their work. I am also very reassured that a recent IPCO report said that the way MI5 ran covert human intelligence sources was “highly professional” and “mindful” of the ethical issues.

If the House will forgive me, I will take a slight deviation to tell noble Lords about one particular human source. A few years ago, the BBC “Today” programme asked me to guest-edit a Christmas programme, which I did. I asked my former colleagues in MI5 if they could produce an agent—a CHIS—to talk to the BBC home affairs editor, to be played by an actor, and explain why they were working for the authorities in this way. MI5 produced an agent who was a British Muslim, and he described what he was doing: reporting on ISIS and related terrorism. He was asked how he justified this to himself, and he said, “I look in the mirror every morning and I know I am doing Allah’s work.” I do not know what intelligence he produced or his name—I know nothing about him. But it was a very compelling interview.

On prior authorisation, whether judicial or political or, in today’s terms, probably a combination of the two, I said in Committee that this is superficially attractive. I still think this; it would give confidence and reassurance to many. But I am afraid that I also share strongly the views of the noble Lord, Lord Anderson, that it is unfortunately not practical. Why?

The noble Lord, Lord Rooker, described—in some ways better than I have done—some of the complex aspects of running covert human intelligence sources. As I think the noble Baroness, Lady Chakrabarti, said, they are not robots. As I said a minute ago, we have an obligation to their safety first of all, under the ECHR and any other criteria. Running them is complex—there is the care for their welfare, and before they are taken on there is the involvement of in-house lawyers, security advisers and behavioural scientists. Some of them work for many years at great risk to themselves. It is quite different from microphone and interception operations, which can be switched on and off and the product from them retained or destroyed.

The handlers, who are not the people who authorise criminal activity, will have deep knowledge of the individual: their family; their history; their motivation, which will vary; their access; what intelligence they are going to get; what training they have had; what instructions they have been given; what limits have been put on what they do; what the agreed rules of their deployment are; their contacts for emergency; and if they need to be extracted. CHISs trust the handlers to protect their identity, possibly in perpetuity.

When I was head of MI5, I very rarely knew the name of a CHIS. I knew them by a number, and I knew what access they had. The authorisation for criminal activity is a small and rare part of a much broader relationship, often long-term, and running them deals with fast-moving and unpredictable circumstances. I am again reassured by IPCO’s independent view that the handling of cases involving criminality has been proportionate and necessary, and I think some of the suggestions of what CHISs might be authorised to do are just unrealistic and alarming.

I would like to pick up on Amendment 34 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. It is difficult for me to imagine that if a judicial commissioner raised a serious concern about an authorisation, it would continue. But it might not be able to stop immediately. There would have to be some discussion, because the safety of the covert human intelligence source would be paramount. Their right to life is as important as the right to life of the public who, in many cases, they seek to protect.

[Lord King of Bridgwater (Con) [V]]

I was expecting to follow the noble Lord, Lord Thomas of Gresford, but I am even more delighted, with no disrespect to him, to follow the noble Baroness, Lady Manningham-Buller. Obviously, I have had some personal involvement with her, and I can pay tribute to her huge experience in this field. I certainly endorse her final point, which is, of course, the issue about the security of people involved as covert intelligence sources.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Manningham-Buller Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Lord Blunkett (Lab)]

In the light of the answer the Minister has given, including her willingness to talk with my noble friend Lord Hain, I am happy to withdraw.

[Baroness Manningham-Buller (CB) [V]]

My Lords, I am not going to repeat what I said in my speech, but I want to make three small points—[Inaudible.] The first is to correct an impression that the noble Lord, Lord Paddick, largely corrected: that the decision to authorise is made by a handler. It is not. In MI5, it is made by a senior manager who may be several grades above the handler, so it is a twofold process.

Secondly, there has been a certain amount of reference to training. I am out of date but the training in MI5 for someone to be permitted to run covert human intelligence sources certainly involved extensive residential courses and frequent refresher training.

Thirdly, I just hope that, as we come to look in the amendments in more detail at later stages of the Bill, noble Lords will bear in mind that the details and numbers of this activity must remain top secret and cannot be revealed, because the lives of covert intelligence sources are at risk. If sufficient information can be pieced together to point to their existence or encourage people to look for them, they will be exposed and potentially killed. I know that noble Lords understand that; I hope that they will forgive me for repeating it. I am not going to engage with other points at this stage because the Minister has summed up well and I know that there will be further discussions between her and Members of your Lordships’ House.

Data Protection Bill [HL]

Baroness Manningham-Buller Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Baroness Manningham-Buller (CB)]

My Lords, I will be brief, as the late Lord Walton always said at the start of his speeches. However, I actually mean it. That is because many of the points I want to make have been made by either the noble Baronesses, Lady Neville-Jones or Lady Ludford, or my noble friend Lord Patel, who declared my interest as chair of the Wellcome Trust for me. For those noble Lords who are not familiar with the organisation, we spend about £1 billion a year on improving human health, largely through funding medical research, primarily in this country but also in 16 other countries overseas. We welcome the Bill, although we think it needs improvement. Before Committee, we look for answers to the questions laid out by my noble friend Lord Patel on the need for universities to have real clarity about how they process data.

For the public interest, terminology should be extended so that we can look at issues of safeguards beyond consent and make sure that it is possible to do clinical trials and interventional work. Why is that the case? It is because health data offers the most exciting opportunities to do things which we have only recently been able to do, understand the causes of disease in detail over populations and have a much better chance of getting to diagnosis early. We could deal with many things if we could only diagnose them far earlier and develop treatments for them—indeed, prevent some of them ever materialising. Health data also helps us to measure the efficacy of treatment. We all know of plenty of treatments that over years have proved to be useless, or unexpected ones that have proved to be outstanding. Looking at big-scale data helps us to do that. That data helps in precision medicine, which we are all moving towards having, where the drugs we receive are for us, not our neighbour, although we apparently both have the same illness. Health data can also help with safety as you can collect the side-effects that people are suffering from for particular drugs. It helps us evaluate policy and, of course, should help the NHS in planning.

I know that the Government want to support scientists to process data with confidence and safety. The industrial strategy comments that data should be “appropriately accessed by researchers”. “Appropriate” is a hopeless word; we do not know what it means, but still. The document also states that access for researchers to,

“currently available national datasets should be accelerated by streamlining legal and ethical approvals”.

We are not there yet.

I want to say a word about public support. The Wellcome Trust commissioned an Ipsos MORI poll last year before the Caldicott review to assess public support for the collection of data. In many cases, there is significant public support for that provided it is anonymised—although I know there are questions about that—but what people are fussed about is that their data is sold on for commercial purposes, that it is used for marketing or, worst of all, that it is used to affect their insurance policies and life insurance. Therefore, we need to give reassurance on that. However, it has certainly been the case in our experience, and that of many universities, that you can recruit many people for trials and studies if they believe that their data will help others with similar diseases or indeed themselves.

My noble friend Lord Patel trailed that I would mention the UK Biobank, as this will face real problems if this legislation is not amended. For noble Lords who are not aware of it, the UK Biobank is funded partly by the Wellcome Trust and partly by the Government through the Medical Research Council. Between 2006 and 2010, it recruited half a million people who gave body samples, details about their lifestyles, economic environments and genomes. Some of these details have been accessed but not all. This has produced the most fantastic amount of data, which is helping us to discover causes of cancer, heart disease—there is a long list, and I will read them all out as they are all important—stroke, diabetes, arthritis, osteoporosis, eye disorders, depression and dementia. Other subjects will be added. The conclusions of this data are open to anybody in the world because health has no frontier. There is no other biobank like this in the world. The Chinese have started one called the Kadoorie, but it is neither as extensive nor profound; it will become invaluable, but it is not yet. The UK Biobank is a unique resource for the world. It is based in Oxford and funded by a major British charity and the taxpayer. We must make that data useful and do nothing to damage the way in which it contributes to helping save lives.

Investigatory Powers

Baroness Manningham-Buller Excerpts

Wednesday 8th July 2015 Lords Chamber

[Baroness Manningham-Buller (CB)]

My Lords, today’s debate is part of a continuing discussion on how best to ensure that we have robust and defensible legislation covering the intelligence work of the British intelligence and security community and the police. We all acknowledge that RIPA has its flaws and is out of date, but it was my service that argued for the necessity of legislation like this in 2000—against some departmental opposition—to ensure that we were compatible with the Human Rights Act. I say that because I and many of my former colleagues believe that having a proper legislative framework is critical for this work in a democracy.

I do not want to repeat many of the things the Minister said but I welcome this opportunity for us to continue the conversation that will go on through the autumn and when we see what the legislation looks like. I do not think now is the time to analyse minutely the substantial and carefully considered work of David Anderson and that produced in March by the Intelligence and Security Committee, which took a broader look at the subject. Of course, we await the outcome of the RUSI panel, which I believe we will see next week. We should thank it very much for that substantial amount of work. I really do not believe that everybody has read this report. It is an extraordinary piece of work. I admit to having read only chunks of it but we should be very grateful for what we have—I give this copy back to the noble Lord, Lord Blair.

I have only a few comments to make at this early stage. Obviously, when we see the legislation there will be more that one wishes to make. First, technology races ahead and the intelligence capabilities that we have had in the past and until recently are being eroded, not increased, and that heightens the risk. We need to be able to keep pace with and, where possible, get ahead of the terrorists, serious criminals and others. I have just started a book on ISIS, the subtitle of which is The Digital Caliphate, which tells us something very important. It is an accurate title.

I am pleased that both the parliamentary committee and David Anderson endorse the need for the existing powers, including bulk personal data and computer network exploitation, both of which have been critical to many terrorist and serious crime operations. The focus is rightly on the authorisation that should be needed for these powers to be used. They are not all here today but in this House are many former Ministers who have used these powers and carried this responsibility—I see the noble Lord, Lord Reid, over there, and the noble Lord, Lord King—and noble and learned Peers who have conducted the post-hoc scrutiny of warrants. I look forward to hearing their views and observations. My own experience is that those who had responsibility for authorising warrants for state intrusion into the privacy of the individual took that responsibility very seriously indeed. It was not an automatic process. I was often challenged by successive Home Secretaries and Northern Ireland Secretaries as to why a warrant was needed, and warrants were turned down.

David Anderson’s recommendation for judicial warranting for national security warrants within the UK is pretty attractive at first sight. It would shore up the interception legislation against legal challenge, and such a system is used in parallel legislation elsewhere in the world. I have thought for many years that we were likely to move in this way. I understand that it would be possible to make arrangements for a judicial response to be very rapid. We have to be agile; a warrant may be needed in a matter of 15 minutes if something appalling is to be prevented. But there is a real problem—and I look forward to seeing how the Government address this—over political accountability.

Let me give an example. The Home Secretary is asked by my former service to sign a warrant on a highly sensitive subject. She first looks to see whether the warrant is legal within the terms of the Act. She judges the intelligence case, which she has had described to her, but she adds something, which is a judgment of the political risk. She must decide whether the advantages and benefits of what this warrant might deliver outweigh the drawbacks if it all went badly wrong, because she knows that she is accountable to the other place if it so does. Judicial warranting, which, as I said, is at one level extremely attractive in taking this issue out of contention in many ways, misses that key part.

Whatever legislation we pass, either later next year or early the year after, I am confident that the security and intelligence agencies and the police will operate fully within its remit. MI5 argued for the Security Service Act, which we did not get until 70 years after our foundation. It is my strong view, as I said earlier, that a strong judicial framework is essential in a democracy. I am often asked whether the law inhibits security intelligence work. My reply is that it should be the foundation for it.

Counter-Terrorism and Security Bill

Baroness Manningham-Buller Excerpts

Wednesday 28th January 2015 Lords Chamber

I presume universities in particular—“will be included”. Although they are not listed at the moment, the point is one which could be of real significance. I hope that at some stage when these amendments are looked at again, and possibly brought forward on Report, they would apply equally in Scotland as they certainly would in England and Wales.

[Baroness Manningham-Buller (CB)]

My Lords, I start by declaring an interest as the chair of the Court and Council of Imperial College and by agreeing with the very clear concerns expressed by my noble friend Lord Pannick about this whole area. The widening circles of support for this pernicious ideology are a concern for us all. I also pick up the question put by the noble Baroness, Lady Warsi, to my noble friend Lord Evans of Weardale, in his absence, about there being many routes to terrorism. I am out of date on this subject, but there is no one, single route by which a young man or woman turns up as a terrorist—there are many different routes.

I therefore fully understand the Government’s concern in this area and their wish to address it. However, I also support the very powerful remarks made by the noble Lord, Lord Macdonald of River Glaven, with which I agree. I am afraid that it is a profound irony that we are seeking to protect our values against this pernicious ideology by trying to bar views that are described, too vaguely, as “non-violent” extremist but which fall short of incitement to violence or to racial or ethnic hatred—which is already forbidden by law—or indeed of the other legislative constraints on universities, which other Members of the Committee have mentioned. This is potentially in conflict with the university’s existing obligations to protect free speech, something we are all concerned about. The voicing of these opinions, some of which have been mentioned, such as those against the rule of law, democracy, civil society, women’s rights and so on, is of course often offensive and insulting to people. But we have been reminded only recently that we have a right to insult and we should avoid double standards here.

These opinions need to be exposed, challenged and countered. As the Minister said when referring to universities in his very helpful letter yesterday, to which my noble friend Lord Pannick extensively referred, they are,

“one of our most important arenas for challenging extremist views and ideologies”.

Quite so, and it is safer to challenge them in a university, if they arise there, although I agree with the noble Baroness, Lady Kennedy of The Shaws, that it is not all happening in universities. Much of it is happening in bedrooms, online and so on.

So this is difficult. My instincts are very often in support of the Government on these sorts of subjects, knowing that countering terrorism is not straightforward. However, the doubts that I expressed at Second Reading about putting Prevent, whatever its importance, on a statutory footing, in particular with regard to universities, have not been assuaged by anything that I have heard today. This work is going on now, and we really need a proper review of what has been achieved so far that is evidence-based. We have heard statistics, but we have not heard what they really mean. Prevent needs to be conducted with sensitivity, proportionality and care, and I fear that making it statutory in universities will jeopardise all three.

[Lord Hennessy of Nympsfield (CB)]

My Lords, I shall say a few short words in support of this group of amendments. I pay tribute to the Minister for the courtesy and care that he has brought to the conversations and for the correspondence that he has shared with several of your Lordships.

I declare as interests my professorship at Queen Mary University of London and my membership of the Royal United Services Institute Independent Surveillance Review. I have not been reassured about the practicalities of what the Government are proposing with regard to universities, on which I spoke at Second Reading, and I share the anxiety of many other noble Lords about freedom of speech within a university’s walls. I listened carefully to the Government’s case, but I am not persuaded that we need to shift from a voluntary approach to compulsion. By all means, strive to bring those universities which are laggardly up to the standards of the best; but we need to keep sharp what we already have—the scalpel of quiet, bespoke relationships between the authorities and the universities, rather than the mallet of legislation, however laudable the Government’s motivations in furthering the Prevent strategy.

I have to admit that the prospect of certain vice-chancellors being in the dock for contempt has a certain delicious attraction to it—although, I hasten to say, not my great friend and boss, the principal of Queen Mary University of London, Simon Gaskell. Universities must be very wary of overpleading that they are a special case—they genuinely must. None the less, the statutory road is not the path to take, as mapped out in Part 5 of the Bill. The defence of the realm is the first duty of the state—the first call upon the state—but here I think the state is in danger of overreaching and taking a step too far, even given the magnitude of the very real terrorist threats that we are facing.

--- Later in debate ---

[Baroness Manningham-Buller]

My Lords, it is late, we all want to go home, and the end is in sight. This grandly titled panel is a tail stuck clumsily on a donkey. Someone has grabbed an American idea and stuck it into the Bill. What is it for? Others who have spoken have asked exactly the same question, and I think that we would all be concerned if the role of the Independent Reviewer of Terrorism Legislation was damaged or corroded in any way.

I congratulate the Opposition on nobly suggesting some flesh to put on this bony tail of the donkey with a number of things that they think might be worth discussing, if the board ever was to convene under a different title. It is all pretty vague stuff. What do the Government think the board will do? They have had some suggestions from the Opposition. How will the members be chosen, what will be their powers, and—a point raised by the noble Lord, Lord Pannick—what access to classified information will they have? No doubt all that is clear to the Government, but it is certainly not clear to me.

[Lord Butler of Brockwell (CB)]

My Lords, I have sat through the Committee debates without opening my mouth until this late stage, but if even now I can help to save the Government from expenditure on some quite unnecessary bureaucracy, it will have been worth while.

I am actually astonished that this Government, who have been so draconian in their cull of quangos and unnecessary bodies, should come forward at this late stage of the Parliament with a proposal of this sort. However, it is not just that I think that it is unnecessary. I agree with the noble Baroness and the noble Lord, Lord Carlile, that it is damaging. At Second Reading I said that I feared that this was the fifth wheel on a coach which at present operates very satisfactorily. Even if that were not so and it could be shown that the body has some utility, I must point out to noble Lords how unsatisfactory it is to include this clause in the Bill in its present state. It is an empty shell. It empowers the Secretary of State to do anything she likes by way of functions, appointments and procedure, including amending any primary legislation—a Henry VIII clause par excellence.

The contents of the statutory instrument, now non-existent, are to be determined as a result of consultation. It has been pointed out that that consultation is not due to end until 30 January. There is no prospect that we will have the Government’s conclusions on these important matters about the board before the Bill passes into law. The only firm provision in the Bill is that the independent reviewer should chair the board. The noble Baroness, Lady Hamwee, moved an amendment even to modify that and make it flexible. Moreover, I understand that the Government may have already changed their mind about it. That only serves to illustrate how completely undecided the Government are about this body.

I would submit to noble Lords and to the Government that it would be much better to remove the clause from the Bill at this stage and to do the further work which the noble Lord, Lord Carlile, has described, and which is extensive. If, after the election, the next Government wish to come forward with a board with its functions and its contribution very much better defined, and after consultation with the independent reviewer, that would be the time to make provision for a board of this sort.

[Lord Bates]

My Lords, this has been a good debate and I am grateful to noble Lords for their amendments. I, too, must not be tempted at this late hour to drift off the core message before me. I was tempted, when the noble Baroness, Lady Manningham-Buller, talked about camels and donkeys—

[Baroness Manningham-Buller]

I only talked about donkeys.

[Lord Bates]

Perhaps I was thinking of the aphorism that a camel is a horse designed by committee.

Terrorist Attack in Paris

Baroness Manningham-Buller Excerpts

Wednesday 14th January 2015 Lords Chamber

[Lord Bates]

I am grateful to my noble friend for raising that point, which perfectly illustrates the tensions. I disagree fundamentally with what has been said, both by Rupert Murdoch and by the UKIP member in the other example that she gave. Again, however, we defend the free press and its right to say that.

[Baroness Manningham-Buller (CB)]

My Lords, I can well understand that Members on the Lib Dem Benches wish to wait, as many of us would like to in an ideal world, for the outcome of David Anderson’s review of terrorism legislation, and they welcome the ISC on the subject of data and the work of the independent group at RUSI. However, does the Minister accept that in waiting for those recommendations and in taking a slow and considered look at legislation in this difficult area, we heighten the risk to our citizens?

[Lord Bates]

The noble Baroness, who of course has immense experience in this area, will recall that the Home Secretary said that,

“every day that passes without the proposals in the draft Communications Data Bill, the capabilities of the people who keep us safe diminish; and as those capabilities diminish, more people find themselves in danger and—yes—crimes will go unpunished and innocent lives will be put at risk”.

That is a very sober message for all Members of this House to reflect upon.

Counter-Terrorism and Security Bill

Baroness Manningham-Buller Excerpts

Tuesday 13th January 2015 Lords Chamber

[Baroness Manningham-Buller (CB)]

My Lords, speaking so late in the debate has its advantages. You will be reassured to hear that I have been able to do some rigorous editing of my speech, partly because many other noble Lords have made the points that I wish to make. I congratulate my noble friend Lord Evans of Weardale on his excellent maiden speech, but of course I would say that, wouldn’t I? He is also a friend. I also congratulate my noble friend Lord Green of Deddington, with whom I worked when he was in the Foreign Office.

My noble friend Lord Evans says that he followed in my footsteps. Certainly, this evening I follow in his: to my surprise, I agree with everything that he said. I wish to avoid the thought that MI5 all thinks the same. In the time that we worked closely together we had many disagreements and arguments.

In particular, I agree this evening with the point that was picked up by the noble Lord, Lord Judd. Whatever the outside world may think, those in the Security Service, including my noble friend Lord Evans and I, believed that we were trying to protect civil liberties through security. There is no liberty without security. That is very important. I am extremely glad that my noble friend’s maiden speech was not on vintage cars, because I would have gone to sleep.

In starting scrutiny of the latest counterterrorist legislation, we do so, as Members of the House have noted, against the sober backdrop of events in Paris, although drafting this legislation predated that. The calm and resolute way in which Parisians have responded reminds me of how London responded in the days after the attacks in July 2005, which I remember very well, as we all can.

In some observations before I get down to the legislation, I note that, as in July 2005, some people—not in this House—have rushed to blame not the terrorists but the French authorities for the crimes of the terrorists. They assume that the crimes could have been prevented because those responsible were known. My noble friend and I will not always agree but, as he has said in the past, you can know of people without knowing what they can do. Although people are known, there may still be inadequate intelligence to identify what they are going to do and, mercifully, we do not intern people on suspicion, although we have in the past.

As the noble Lord, Lord Paddick, said, the numbers involved are simply too big to prevent everybody of concern being monitored constantly, be that here, in France or anywhere in the world, even in a totalitarian regime, which we are not. The French security service is an excellent organisation. Its leaders are well known to us and it is a very good friend of the United Kingdom.

As Andrew Parker, who is following in the footsteps of my noble friend Lord Evans, said last week, it is not possible to prevent all attacks. We must remember that. Post hoc analysis of events, as the noble Lord, Lord Butler, referred to regarding the awful murder of Lee Rigby, gives us lessons. We learn from what happened in those events. However, it is not the case that we can ever expect to prevent everything. Incidentally, I strongly support the comments made by the noble Lord, Lord Butler, on the need to revisit the issue of communications data.

This legislation is taking a number of steps—some of them contentious, some of which will probably be improved in Committee—to do a number of smallish things. However, the loss of capability following the revelations of Snowden is extremely damaging. For the record, this House should not assume that counterterrorism legislation is, as it were, dictated to government and the Home Office by the security and intelligence organisations and the police. As the noble Lord, Lord Carlile, mentioned, that is simply not true. Governments have their own ideas on counterterrorism legislation. I remember, in the wake of the Brighton bomb, trying to persuade Mrs Thatcher against the powers that she was thinking of. Many people and different departments contribute to legislation, and it is not the script of the Security Service.

I will keep my main comments on the legislation for Committee, but like others I am concerned about Part 5 of the Bill concerning Prevent. Prevent is the key part of the Government’s counterterrorism strategy. That strategy has existed for a decade; it was drafted in 2005 and became part of the previous Government’s strategy in 2006. Of the various strands—Pursue, Prepare, Protect and so on—Prevent is the most difficult and the most important. I cannot agree with the noble and learned Lord, Lord Lloyd of Berwick, that we need to do less of Pursue. The identification, tracking, arresting and prosecution of terrorists needs to go on unabated. However, it seems to me that Prevent is clearly not working.

This is not altogether surprising because it is difficult. We do not really know what works. I retired nearly eight years ago. I know that a great deal of effort has gone into thinking about how to counter this toxic and murderous ideology. I believe that we must have a better understanding of the roots of terrorism than we used to, and a better understanding of how to divert people—particularly vulnerable young people who have, in some cases, been groomed and exploited—from their path.

Some of those who come back from Syria will not be terrorists; some need to be reintegrated. The Channel programme is obviously to be applauded, but I am still concerned that it is bound to be slow, even over the long term. It is understandable that it will be slow, but we do not seem—I beg to be corrected by others who are more up to date than me—to be having much effect. We are told that 600 dangerous extremists who are British citizens have fought in Syria. That is a large number. If Prevent had been working for the past 10 years, we might not have seen so many going.

It follows that I rather doubt that the Government, however laudable their efforts, are well placed to counter this ideology. A lead on that has and is beginning to come from moderate, mainstream Islam, which has itself suffered so much from the distorted version of its faith propounded by terrorists. One of the most appalling scenes from Paris was that of the Muslim policeman on the pavement being executed brutally by one of the terrorists.

It also follows, therefore, that I am not convinced of the value of putting Prevent on a statutory footing. I am out of date. The Government may be able to convince me but I cannot see how legislation can really govern hearts, minds and free speech. We can legislate against activity—the actions that people take can be detected, prosecuted and brought to court—but this I find much more difficult. We already have legislation on incitement to violence, which it is difficult enough to get evidence of, as the police know and have tried.

Finally, I must declare an interest. This is not as a pensioner of MI5, although I am that, but as the chair of the council of Imperial College London. The noble Lord, Lord Phillips of Sudbury, expressed strong feelings about the difficulties for universities of what is proposed. Again, I will listen carefully in Committee but I prefer to believe that a voluntary, optional regime of securing co-operation is preferable to what is proposed in Part 5. I have real difficulty in understanding the practicality of requiring an enormous range of authorities to respond to what is described as the “local threat”, which may after all be covert. How will they judge who is vulnerable? How will they judge who is a non-violent extremist? I wait to hear. I look forward to listening to the Government’s arguments in Committee on these and other issues.

Justice and Security Bill [HL]

Baroness Manningham-Buller Excerpts

Monday 9th July 2012 Lords Chamber

[Baroness Hamwee]

Maybe. The Minister says it has not been traditionally considered and is one of those words that only recently has come into normal use. It probably means slightly different things to different people.

[Baroness Manningham-Buller]

I think the problem is the word “operation”. Certainly in the security and intelligence world, an operation is something finite, with a code name, that will come to an end. I think that is what the legislation is trying to get at. It certainly would not be a merged operation such as a jihadist threat or Iraq, which would not be seen in those terms. That may be the difficulty. If we can make that clear in defining it, that might be helpful to the Minister.

[Lord Henley]

I am grateful to the noble Baroness for her intervention. I am also grateful to my noble friend Lady Hamwee for her suggestion that “current” might be a better word than “ongoing”. “Ongoing” is not a word that I would necessarily have wanted to use and is not one that I have come across much before in legislation. “Current” might be a better term and might be one of the reasons why we need to look at the drafting of these matters, to make sure that we have got it absolutely right. For that reason, all I can say is that we will look again—the noble Lord, Lord Campbell-Savours, smiles—at that word “ongoing” and make sure that we have got it right. Again, as a layman and not a simple Scottish lawyer, it seems to me that “ongoing” is something that we can all understand relatively simply, so I hope we can get this right. That is the point of the processes that we are going through in this House. I hope that we can get it right in due course.

Amendment 32 is the third amendment in this group and the second in the name of the noble Lord, Lord Butler, and my noble friend Lord Lothian, and would allow the ISC to oversee an operational matter that does not meet the criteria in Clause 2(3) if the relevant Minister of the Crown agrees to consider the matter. Given that the requirement is that the Government and the ISC both need to agree, it is difficult to see circumstances in which the noble Lords’ amendment would ever need to be used. For example, we cannot presently foresee circumstances in which it would be appropriate to call on the ISC to put its resources towards examination of operational matters that were not of significant national interest.

Nor would it be appropriate for the ISC to have a role in approving future actions or decisions relating to the agencies, or to examine ongoing—again I use that word, but perhaps I ought to say current—operations. Such a role could cut across lines of ministerial accountability and could even have the potential to prejudice those operations. The amendment is therefore unnecessary.

I hope that that deals with most of the points. I am sure that it does not, but I have given a commitment that we will look again at the drafting of this part of Clause 2. I hope that the noble Lord will feel able to withdraw the amendment.

Justice and Security Bill [HL]

Baroness Manningham-Buller Excerpts

Monday 9th July 2012 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Justice and Security Bill [HL]

Baroness Manningham-Buller Excerpts

Tuesday 19th June 2012 Lords Chamber

[Baroness Berridge]

My Lords, I am a member of the Joint Committee on Human Rights. When we were considering the Green Paper and now the Bill, I seemed always to have had in mind the statue of Lady Justice at the top of the Old Bailey, but when seeking to balance the various injustices in these situations I have come to conclude that her scales need at least seven pans.

First, the Government assert that they are not able to defend themselves and are forced into the settlement of claims. I agree with the Lord Chancellor that that is “extremely unsatisfactory”. Secondly, the Bill would have the claimant and the lawyers in the corridor of the court and evidence seen fully by only one party. Thirdly, in civil proceedings there can be an appeal on the facts, but if, as the Government assert, these cases are so saturated in intelligence information that most of the judgments are secret, people will be less able to appeal and correct decisions.

Fourthly, there is the exclusionary nature of PII where the evidence is not considered by either side. Fifthly, there are apparently strike-outs of meritorious claims, but currently the only example is the case of Carnduff and Rock. Sixthly, how do we ensure the continued development of the balancing of public interest immunity in national security cases? Seventhly, is there information that has previously been disclosed in court proceedings, and thus available to the general public and the press, that would now remain secret? Some of the injustices do not relate to individual cases as the Bill will change the judicial system. It is a fine balancing exercise that, I would add, gives you a headache, and inevitably people will come to different conclusions about the least bad solution.

However, Lady Justice is usually blindfold, which is apt in this situation as your Lordships cannot observe a CMP in full. That is, the hearing has one party excluded. I trooped down to the Royal Courts of Justice in the February Recess to watch a control order case. I spent nine years as a civil advocate and I can spot a court case when I see one, but this did not feel like a court case: namely, a case in which parties try evidence before a judge. It was more like manoeuvrings, with the open advocate, the special advocate and the judge trying to assist to ensure that enough of the allegations were known before the whole thing—the trial of the allegations and most of the evidence—was held in secret behind what I discovered are literally the locked doors of the court. The controlled person was not even there. When I queried that, I was told that it is not unusual because, “there is not really much point”. What I saw worried me and convinced me that the best people to determine this issue were those who have actually done these hearings, which will not necessarily be the most experienced practitioners, judges or academics.

That leaves three groups: those I will call the CMP judges, whose views are not known to Parliament; David Anderson, the independent reviewer; and of course the special advocates. David Anderson QC accepts that CMPs have the capacity to operate unfairly, especially if there is no gisting of the evidence. The last group are the most experienced, and they are not at all convinced. In fact, “inherently unfair” has been their consistent criticism of CMPs. Again, I agree with the Lord Chancellor when he said that the,

“evidence of the special advocates most unsettled me”.

It has been suggested that the special advocates underestimate the effectiveness of CMPs, but that is unusual for any group of lawyers, especially one that includes 22 QCs, not because they are arrogant but because they are really excellent at what they do; QC is a top brand. I would like to see the Government gain the support of these independent advocates before being prepared to support such a fundamental change to our judicial process. I might add that these lawyers, the special advocates, will secure more work if we have more CMPs, and that is a rarity in my experience.

On the injustice of evidence excluded under PII, I join the noble and learned Lord, Lord Morris, but I would be grateful if my noble and learned friend the Minister could set out the statistics of how many cases in the past have led to the successful exclusion of all material, and how many have led to the partial admission of material in open court, such as that achieved so ably in the 7/7 inquest. Further, was this technique used in the Guantanamo Bay litigation which the Government have relied on so heavily? Were exclusionary PII applications made in those proceedings? Also, I am perplexed that the Government apparently settled the al-Rawi case before knowing whether they could have a closed material procedure. When questioned by the Joint Committee, the Lord Chancellor maintained that the Government could have defended the claim if they had had a closed material procedure, but if the Supreme Court had decided in their favour, no proceedings would be left to try. I am perplexed about this.

Moving on, it is hard to see how to ensure the future development of PII in national security cases when under this Bill the judge would be required to accede to an application if there is any national security information relevant to the case, even if he considers that the case could be tried using the existing PII rules. I suspect that we will find amendments tabled during Committee on the Bill. Will less information be available in the public domain than there should be? I think there is a danger that closed material procedures will restrict it.

As I understand the Bill, the difference between closed material procedures and public interest immunity is illustrated using an extension of the example cited in the Constitution Committee’s report of an aircraft accident where the family ended up suing the Government. Let us imagine that we have gone into a closed material procedure and it becomes clear for the first time, behind closed doors, that cockpit video footage exists. That footage is played behind the closed doors. It is akin to the footage that many noble Lords will have seen from a recent inquest into a friendly fire incident that was leaked to the Sun newspaper. Is there any way in which the judge, in a closed material procedure, can balance the interests and pierce the wall of the closed material procedure to put that video into the public domain, given the level of intense interest both in the press and among the public since they know of its existence? As I understand the Bill, that would not be possible. Of course, the claimant may win the claim and the judge may use the powers under Clause 7 to enforce concessions on the claimant, but the public and the claimant will never see that video.

Civil claims are not always about winning or money but about knowing the evidence that establishes the allegation. The same is true for the press, as Ian Cobain, the Guardian journalist who gave evidence to the committee, said. His allegations were viewed as conspiracy theories by the Government, but documents disclosed in court proceedings have sadly proved otherwise. As I understand the Bill, CMP applications are ex parte, so there will never be cases in which the press should be represented to argue the open justice issue. Also, apparently meritorious claims are struck out as the intelligence is so central that it cannot be tried. As I understand the Bill, a claimant is not helped as only the Secretary of State can apply for closed material procedures.

What of confidence in Lady Justice herself? I rely here on the words of the noble Marquess, Lord Lothian, that it is perception that matters. We do not legislate in a vacuum and there is concern about the level of trust that the public have in institutions—except, I think, in the monarchy and the judiciary. On “Thought for the Day” this very morning, the right reverend Prelate the Bishop of Norwich helpfully summed this up for me when he said that confidence in our institutions is dependent on our trust in the individuals in them. Do the public have such confidence in the groups that will give evidence behind closed doors in a closed material procedure?

Before I am accused of being a fantasist, I pray in aid evidence from the Deputy Assistant Commissioner of the Metropolitan Police, Sue Akers. Her witness statement to the Leveson inquiry is as follows:

“Alleged payments by journalists to public officials have been identified in the following categories: Police; Military; Health; Government; Prison and others. The evidence suggests that such payments were being made to public officials across all areas of public life. The current assessment of the evidence is that it reveals a network of corrupted officials”.

Your Lordships will remember better than I the West Midlands serious crime squad. I am not a doomsday merchant, but one has to think about what happens if this system goes wrong. Who will do the public inquiry? Not, I think, a judge—not because they lack the integrity but because what is being asked of them is beyond the capacity of any human being if both sides are not there to bring forward the evidence and to rebut one another’s claims. Human beings are fallible. Home Office officials have been known to use the power to redact documents to cover up Home Office mistakes. MI6 was found to be incompetent at checking where its seconded staff were for over a week. How will all this not be less challengeable if behind closed doors?

Finally, I ask the Government to consider very carefully the implications of the following scenario. What will be the position under this Bill of the trial in which the right honourable Jack Straw MP is currently sought to be added to proceedings in his personal capacity over allegations from a Libyan military official that he authorised his rendition to Libya? The Government are an existing party to these proceedings and a CMP would be eminently possible. Is Mr Straw going to sit in the corridor outside a locked court? Imagine that Mr Straw loses the claim and has to pay £500,000 damages, and all that is done behind closed doors. He has also previously had security clearance, so he will potentially have knowledge to rebut these allegations from his direct experience, which he will not be able to use.

[Baroness Manningham-Buller]

Ministers do not have security clearance—if only.

[Baroness Berridge]

I welcome that correction from the noble Baroness, but I think that the majority of the point still stands. Do your Lordships trust the Twittersphere to carry this information properly without muddying the waters with potentially inaccurate party political accusations? “The Conservative and Liberal Democrat Government changed the law and Jack Straw, the former Labour Foreign Secretary, had to pay damages”—is that fewer than 140 characters? Will this enhance confidence in our judicial process?

Civil justice, with its disclosure provisions, is often the only avenue open to individuals to get the details of what has happened. This should not be underestimated. It is an old adage that justice must not only be done but be seen to be done. Could this Bill actually make matters worse for the security services and the Government? Can no one knowing the truth actually be better than, “We know but we cannot tell you why.”?

--- Later in debate ---

[Baroness Manningham-Buller]

My Lords, I declare an interest. I spent 33 years in the Security Service, but I also have a strong interest in the rule of law. I retired more than five years ago and the difficulties of intelligence and the civil courts, which is what we are talking about rather than the criminal courts, and the problem of Norwich Pharmacal have largely arisen since I retired.

Some important points have been made in today’s Second Reading, with many of which I sympathise. When we come to Committee, no doubt there will be a number of amendments that will seek to refine and improve the Bill. At this stage, I want to talk about the three main themes of the Bill in the order in which they come. I start with the Intelligence and Security Committee.

In the 1980s, although the noble Lord, Lord Butler, said that the intelligence and security agencies were anxious about such scrutiny, I can remember many in my service arguing for it. We felt that some parliamentary oversight—what those words mean, I agree with the noble Baroness, Lady Hamwee, is not entirely clear—was necessary. We thought that there was a democratic deficit. We found little support from the Prime Minister of the day or from the Government for that sort of committee. Not until many years later, in 1994, did it come into existence.

As the noble Lord, Lord Campbell-Savours, says, what we are seeing here is evolutionary not radical change. It is worth saying that my predecessors, I believe my successor and I have over the years ignored the narrow rubric of the Act, which says that the committee should confine itself to looking at matters of “policy, expenditure and administration”. This was always risible because all of those things are intimately connected with the operations of the service. Although we did not do so to begin with, because confidence needed to build up, certainly over the years we have sought to be very open with the committee and, looking for example at the 7/7 report that has extensive details of operations, we have been so.

I never refused to answer a question of the committee. That may have been because the committee itself was quite sensitive in not asking me, for example, the identity of my most important agent in the IRA or al-Qaeda because the committee itself understood that, in order to fulfil its function, it did not need this sort of really sensitive intelligence. The committee will evolve further. From my own view, I do not see a problem with it becoming a Select Committee. I am very interested and flattered that the noble Lord, Lord Campbell-Savours, thinks that he would get more truth from the head of the committee than the Ministers, on which I could not possibly comment. I end this bit by saying that it is very much in the interests of the security and intelligence agencies that parliamentary oversight is as thorough and convincing as possible. This is why, when my name was put forward to be on the committee, I said I could not possibly do it because the committee would be looking at things when I was director general.

This brings me on to the closed material proceedings. I understand the very real concern expressed in this House and outside that what the Government are proposing in resorting to secret justice—probably itself a contradiction in terms—is to conceal wrongdoing and to protect what should rightly be exposed. From my reading of it—and I accept that a number of bits need amendment—the Bill tries to address serious dilemma in very few cases, though we can argue in Committee how well.

I am interested that the noble Lord, Lord Macdonald, and the noble Baronesses, Lady O’Loan and Lady Hamwee—and probably many others earlier in the debate, I cannot remember—acknowledge that there may be some small, narrow band of cases where the dilemma on how to deliver justice is to bring highly relevant but sensitive material that would be excluded by PII into court and not keep it out. It is surely fair to claimants and to defendants in civil cases that such material is put in. The judge will decide whether it will be a CMP procedure.

Currently, a number of serious distortions in small cases seem to occur. Allegations become facts because they cannot be defended. Settlements presume guilt, even when the Government admit no liability. Perhaps almost more importantly, claimants may get financial satisfaction, but only that. Whether through these proposals or others, we need a way that is safe to test the allegations, some of which, as the noble Lord, Lord Pannick, said, are extremely serious and of the gravest nature against the Government and agencies like my own. These need to be properly investigated by the court and a determination made, which, I suggest, cannot happen without secret material.

This brings me to Norwich Pharmacal, which is new to me. I am interested to hear from present members of the parliamentary committee that it is already seriously damaging the exchange of intelligence, perhaps from a false perception of what the High Court determined.

The control principle is a pretty fundamental one. If we threaten and undermine it, we will be the losers. There is an exchange of intelligence around the world, not just with the Americans. All our European friends produce hundreds of pieces of information a day. It comes from Australia, New Zealand and Belgium—not much from Belgium, but a bit. We receive lots from France, from Germany, from Spain and from friends in the Middle East. We receive intelligence from countries and states that are not friends, and whose intelligence exchange has to be carefully handled. There is an enormous amount of intelligence.

The sources of foreign intelligence, just the same as those of our intelligence, are often fragile. Human sources can be exposed and killed. They have Article 1 rights to life just the same as other people. Technical sources can be quickly compromised and rendered useless. Other countries will not share with us if doing so jeopardises, or they judge it to jeopardise, their sources of intelligence. Who can blame them? We would do the same. We will not always or, indeed, even usually know or be able to judge the risk to their sources. Of course they make a judgment before handing us the intelligence, but if the judgment is that that would risk exposure, they will not hand it over. We need that intelligence when faced with a globalised threat.

I had further points I wanted to make in my speech, but many of them have already been covered by other speakers. I shall therefore end by saying that I have heard a lot in the debate about the conflict between liberty and security. Fundamentally, I feel that these are not concepts that should be in conflict. Security underpins liberty and, as I said in my Reith lectures, without security there is no liberty. I should say that I agree strongly with the comments of the noble Baroness, Lady Williams of Crosby, on that. When we reach the Committee stage, I hope that it is within our capability to pass an Act that damages neither liberty nor security and delivers justice that, while it is not open and therefore definitely second best, is better than the absence of justice in a very narrow range of cases where the use of highly sensitive material in court is necessary.