Justice and Security Bill [HL]

Baroness Ramsay of Cartvale Excerpts

Tuesday 19th June 2012 Lords Chamber

[Baroness Ramsay of Cartvale]

My Lords, it is a particular pleasure to follow such distinguished members of the current ISC as the two noble Lords who have spoken before me in this debate. The ISC is a committee on which I have twice had the pleasure of serving in the past. I welcome the Bill which, although not long, deals with rather a large number of important issues that have been in need of being addressed for some time. At later stages I will consider whether amendments might be desirable, but at this Second Reading, I would just like to seek assurances from the Government on some points.

Part 1 of the Bill, on the oversight of intelligence and security activities, deals almost wholly with the Intelligence and Security Committee. The ISC came into being through the Intelligence Services Act 1994 for which the then Prime Minister, John Major, deserves considerable credit. Although the intelligence community had long desired such a development—especially the SIS, which until then was not officially avowed—previous Governments had been reluctant to go down that route. The excellent work of the ISC since its inception has demonstrated the correctness of Prime Minister Major’s decision at the time.

Nearly all the proposals, as far as I can see, regularise what in fact has come to be the practice of the ISC, as the noble Lord, Lord Butler, indicated. For example, it looks at intelligence activities outwith the three main agencies and examines in retrospect operations of particularly significant national interest. I would just comment here that there has been a feeling for some time that, as a Joint Committee, consideration should be given to increasing the number of members from your Lordships’ House on the ISC. It should be acknowledged here that the present Government have increased that representation from one to two members, but I think a further increase should be considered.

However, there is one point in the Bill on which I would urge caution and seek reassurance; that is, that the ISC should have powers to require information from the agencies subject to a veto from the Secretary of State rather than, as now, the head of an agency. As a general comment, I would advise the Government to be careful of eroding the authority of the heads of the agencies. I was concerned to discover that there had been changes in recent years in the writing of annual confidential reports on the three agency heads, so that where the Secretary of State had featured in the past, the first National Security Adviser was considered to be the “line manager” of the three agency heads. I understand that there has been a change with the change of National Security Adviser. I must make clear here that I have absolutely no idea what the three agency heads felt or feel about this, but that is not the point. This has nothing to do with personalities or personal feelings; to my mind, it is a matter of constitutional propriety.

I do not consider it appropriate that the three heads of agencies should be simply slotted into senior Civil Service rankings. In a democracy, it is essential that the security and intelligence services should be independent, answering to a Secretary of State and directly to the Prime Minister. Of course, in practice it will probably make little difference to refer to a Secretary of State for release of refused information, because it would be a very brave—in the Sir Humphrey usage of that word—Secretary of State who would overrule a director-general of the Security Service, a chief of SIS or a director of GCHQ on the wisdom of releasing sensitive material, and of course much fuller detailed reasoning can be given to Secretaries of State about the sensitivity of sources than can be revealed to the ISC.

However, I urge the Government to proceed with great caution here. Of course the agencies have to be accountable but their independence is crucial. That independence has to be from political or—dare I say it?—Civil Service operational interference. I would appreciate hearing the Minister’s comments on this point and would like to be reassured that there is no slippage about safeguarding the operational independence of the agencies.

Part 2 of the Bill, which deals with the disclosure of sensitive material in courts, is of course long overdue but the delay has been caused by having to wrestle with some hugely difficult problems of how to use sensitive intelligence material in our legal system without taking unacceptable risks of damaging sources, both human and technical. This set of proposals seems to tackle these problems rather well. I would just like to make two comments from my own past professional experience—one of revealing information from a liaison service and the other on the use of intercept material as evidence. Both these issues are much more complex, sensitive and difficult than they appear at first glance or to the uninitiated. I have spoken before in this House at some length on both of them, and today at Second Reading I will be very brief.

On the first point, it is a rule—in my day it was called the “third party rule”—engraved on the heart of every intelligence officer, however junior or senior, that material from any liaison service cannot and must not ever be passed on or revealed to a third party without the express permission of the originator. If that rule is violated, the intelligence flow is endangered. We, the British, would enforce this rule absolutely on our own material, so it is to be expected that liaison services would do the same to us, which in some cases would result in very serious adverse consequences and loss of intelligence, as the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, have made very clear in their speeches today.

Secondly, the question of using intercept as evidence has occupied this House at great length on many occasions over the years, as well as the whole of Whitehall, and I will not rehearse the detailed arguments again here. In spite of the ardent desire of successive Secretaries of State and law officers to achieve this, and the best legal brains in Whitehall wrestling with it, no solution has been found—perhaps until now. It has never been a question of principle but rather one of sheer practicality. A team of distinguished privy counsellors produced a report after lengthy consideration of all the evidence, and an implementation unit was set up in the Home Office to test various possible solutions in conjunction with the privy counsellors, one of whom was my much admired and now sadly missed noble and learned friend Lord Archer of Sandwell. How does all this relate to Clause 6(3)(b) of the Bill, which states that the court must ignore Section 17(1) of the Regulation of Investigatory Powers Act 2000, which deals with the exclusion of intercept material?

I would be grateful if the Minister could elucidate and explain how the Bill’s provisions satisfy the requirements of the report of the privy counsellors. I hope that I can be reassured on this and the other points I have raised. On receiving such assurances, I would very happily support this Bill.