Justice and Security Bill [HL]
Baroness Smith of Basildon Excerpts(12 years, 3 months ago)
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Baroness Smith of Basildon
My Lords, this has been an extremely interesting debate, as was the debate we had in Committee. I am at something of a disadvantage—or perhaps it is an advantage—as the Minister and I are the only speakers in this debate who have not been members or indeed esteemed chairs of the ISC. I think I heard the noble Lord, Lord King of Bridgwater, say, “Good”—I hope it is.
I support the amendments tabled by my noble friend Lord Campbell-Savours, and I will explain the reasons why. I join the noble Lord, Lord King of Bridgwater, in paying tribute to my noble friend Lord Campbell-Savours because the way that he has brought forward this argument today does the House a great service.
In Committee, many Members of your Lordships’ House, who have had a lifetime’s experience of these matters, proposed a number of different ideas for reform of the Intelligence and Security Committee, ranging from the designation of parliamentary privilege through to issues such as public hearings. What was striking in that debate—and is again today—was that there was an overwhelming consensus on all sides of the House that the Bill could be significantly bolder. It has been evident throughout the debate that there is some dissatisfaction with the Government’s approach. Your Lordships’ House does not feel that what is before it today adequately addresses some of the concerns raised in Committee.
We fully support the Government’s stated aim, which is, as the noble and learned Lord, Lord Wallace of Tankerness, said at Second Reading,
“improved parliamentary and independent oversight of the security and intelligence agencies”.—[Official Report, 19/6/12; col. 1661.]
What we have in Part 1 of the Bill, as illustrated by this and the next group of amendments, is a missed opportunity. In Committee, we discussed a range of different options for strengthening the independence of the ISC beyond what is proposed in the Bill. What emerged were two different blueprints for achieving pretty much the same aims and objectives. First, the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, two distinguished members of the committee, proposed an arrangement along the lines of existing parliamentary committees established by statute, such as the Ecclesiastical Committee, the Public Accounts Committee, the Speaker’s Committee for the Independent Parliamentary Standards Authority, and the House of Commons Commission. The committee as envisaged would have the independence and powers afforded by being a creature of Parliament rather than the Executive, but would retain the security of checks and balances provided for in statute. The second way forward, proposed by my noble friend Lord Campbell-Savours, seeks to establish the Intelligence and Security Committee as a fully fledged Select Committee of Parliament, having all the privileges attached to that arrangement, but with safeguards or restrictions provided through resolutions of Parliament rather than statute. I think my noble friend Lord Campbell-Savours used the phrase “hermetically sealed”.
However, both these blueprints are seeking to achieve the same end point. They are both seeking a concept of the ISC as a creature of Parliament rather than the Executive; independence that is recognised by the public but still guarantees the absolute security of sensitive information disclosed to the committee; and maintaining the good relations and trust that have been established with the agencies. It seems that the choice between the two concepts is one less of principle and more of practicality: which proposal will best achieve this end? My noble friend Lord Campbell-Savours and the noble Lord, Lord Butler of Brockwell, have both confirmed that they are seeking to achieve the same ends.
As my noble friend Lord Campbell-Savours has already stated, chief among the advantages gained by being a parliamentary Select Committee is parliamentary privilege. This would grant the ISC, among other things, protection of members and witnesses by parliamentary privilege, which encourages free disclosure within the secure confines of the committee; the power to take evidence under oath; and the power to hold witnesses in contempt for deliberately misleading the committee.
I have listened carefully to my noble friend’s arguments about the designation of parliamentary privilege, and in Committee we debated and supported amendments moved by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, to grant the ISC parliamentary privilege by amending the Bill of Rights. Indeed, I have attached my name to similar amendments in the next group, because I fully support the ISC obtaining parliamentary privilege. However, if, as my noble friend Lord Campbell-Savours, has compellingly argued today, there are serious problems with seeking to designate privilege in this way, it would appear that a Select Committee arrangement is the only option that would satisfactorily guarantee the committee these powers. The notion that privilege, if gained in the way that has been proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, may be struck down by the courts, which I am absolutely clear is not what they are seeking, is hugely concerning. If witnesses and members of the committee had given evidence to that committee under the assumption that they had immunity, only later to have that immunity revoked, it would have huge implications for the work of the committee. The absolute and total guarantee of parliamentary privilege is therefore a compelling reason to support the ISC’s move to full Select Committee status.
The question then rests on whether a Select Committee arrangement could be relied on to act in a way that absolutely guaranteed, without qualification, the protection of our national security. The Opposition would support the establishment of the ISC as a Select Committee only where such a guarantee could be satisfied. Under no circumstances should any change in the structure of the ISC result in sensitive information being disclosed that could put at risk our national security or the safety of intelligence sources or operations. Restrictions or safeguards on the committee’s powers could include a number of areas—we have heard of some of them today—and others that may be agreed by Parliament. For example, the Prime Minister could veto the publication of material by the committee for reasons of national security; proceedings of the committee could be closed to the public unless agreed by the Executive and/or provided for under its own terms of reference, such as annual public hearings of the heads of the agencies; there could be an executive prerogative to instruct the Leader of the House to dissolve the committee or to remove one of its members by a resolution of Parliament; or there could be a veto or agreement of a nomination to the committee. I use those just as examples— there will be others that I am sure will occur to your Lordships, particularly those who have been members of the ISC—but providing for such safeguards in legislation, as in the Bill before us, is perhaps the clearest way of ensuring that they are met.
In Committee, the noble Marquess, Lord Lothian, argued against a Select Committee structure on the basis that it would necessitate public evidence sessions. He rightly said that,
“there are many occasions when to attempt to take evidence in public would create an even less high regard for the committee that it maybe has at the moment, because questions would be answered by the agency heads with the words, ‘We cannot answer that question’”.—[Official Report, 9/7/12; col. 923.]
I completely agree with the noble Marquess on that point. In the majority of cases, the committee must sit in private. To do otherwise would not only damage the reputation of the committee, as I have said, but, most seriously, undermine its core function of effective oversight over the intelligence services. However, as has been argued by my noble friend, the mechanism by which Select Committee powers and terms of reference are constituted are sufficiently flexible conceivably to provide for any one of those concerns.
I understand from my noble friend Lord Campbell-Savours that he has it on the authority of clerks of both this House and the other place that Parliament may, either through the committee’s order of reference or by instruction, specify the terms under which the committee may sit, may take evidence and report, including requiring the consent of another body including the Government. Indeed, there are already known precedents for such restrictions. The Defence Select Committee already holds evidence sessions in private in order to hear classified and national security-sensitive information. For its recent report on maritime surveillance, published in September this year, it held part of its first evidence session in private. As my noble friend has indicated, there have been instances in the past where the House has resolved that a committee report to the Prime Minister and it may even be precluded from publishing certain material on the grounds of national security. Given those assurances, a Select Committee arrangement would both guarantee the ISC parliamentary privilege and ensure the necessary safeguards for our national security.
My understanding is that, if the House were today to pass my noble friend’s amendment and the Government accepted the will of your Lordships’ House, the Government could seek to withdraw Clauses 1 to 4 of the Bill in the Commons and then issue a statement that they would seek agreement through a resolution of the House to establish the ISC as a Select Committee of Parliament. If the Government and the Opposition were unable to reach agreement over the terms of such a resolution—including all the necessary safeguards that I have referred to and others—then presumably the ISC would continue under its present arrangements.
We have heard a compelling argument from my noble friend Lord Campbell-Savours that it is not possible to designate a body of parliamentary privilege such as the ISC simply by amending the Bill of Rights or by other statutory means. If this is indeed correct, it is undeniably a compelling reason for pursuing the Select Committee route rather than the statutory one. However, even if it were possible to do so, there is a further reason why we believe that the Select Committee should be the model that we aim for. That reason was expressed by the noble Lord, Lord Deben. I am sorry that he is not here today as his contribution in Committee was valuable. In Committee, the noble Lord, Lord Deben, was supported by the noble Lord, Lord King, and the noble Baroness, Lady Manningham-Buller, when he asked:
“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”?—[Official Report, 9/7/12; col. 926.]
This is more than just a cosmetic change. The parliamentary Select Committee structure is one widely recognised as being capable of serious and robust scrutiny. It is a concept that is familiar to the public and one that they understand as being independent. While I agree with the noble Lord, Lord King of Bridgwater, about public confidence in the committee I do not think that most of the public know of the existence of the ISC, whereas they are aware of the structure and work of Select Committees. Even if it were possible to guarantee the committee watertight parliamentary privilege, as I now seriously doubt, it would still ultimately be a hybrid committee. A halfway house would undeniably be better than what we have in the Bill but it would still be a peculiar body. If we are to go to all the effort of dressing up the ISC to look and sound like a parliamentary Select Committee, although with question marks over parliamentary privilege, why not simply have a Select Committee to do the job fully?
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I thank the noble Lord, Lord Campbell-Savours, for presenting his amendments in such a typically articulate way. He draws to our attention the challenge that faces us in achieving confidence—the word that was used by many noble Lords and spoken of by my noble friend Lord King of Bridgwater. In a nutshell, this is about the scrutiny of Parliament and the responsibility of government, and how those two can be reconciled. Although the noble Baroness, Lady Smith of Basildon, talked about not wishing to create a special committee, this is a special committee because it deals with matters that are self-evidently outside normal public scrutiny.
This group of amendments, which I thank the noble Lord, Lord Campbell-Savours, and others for bringing to the House, concern the status of the ISC and, although we have not talked about it much, the remit of the Intelligence Services Commissioner. As my noble friend Lord Henley previously noted, the Bill proposes a number of important changes to the ISC’s status. Members of the ISC would be appointed by Parliament, rather than as at present by the Prime Minister, and those members would be free to choose their own chair. The ISC is created by statute to ensure that there are safeguards in place to protect against the disclosure of sensitive information and therefore the Government do not consider it appropriate for the ISC to be a full Joint Committee established under the Standing Orders of each House, as other Joint Committees are. I hope that noble Lords will find it useful for me to expand on this reasoning.
It is essential that the ISC operates within a framework that protects the highly sensitive material to which it has access. In particular, the Government must be able to prevent the publication of sensitive material by the ISC. They must be able to withhold the most sensitive material from the committee—albeit that those powers are rarely used currently and can be expected to be rarely used in future—and must have some role in the appointment of members of the ISC. Without guarantees in those three areas, the risk of disclosure of information that might damage national security would be increased. That might, in turn, lead to a situation where agency heads found it hard to reconcile their statutory duties to protect information with their duty to facilitate oversight. That could therefore lead to the sharing of less sensitive information and a corresponding reduction in the effectiveness and credibility of oversight.
The Bill provides the necessary guarantees in each of those three areas. The Prime Minister would be able to require matters be excluded from the ISC’s reports if the matter would be prejudicial to the discharge of the functions of the agencies or the wider intelligence community. Ministers would be able to withhold information from the ISC in the limited circumstances provided for in paragraphs 3 and 4 of Schedule 1. A Member of this House or of another place would not be eligible to become a member of the ISC unless they had first been nominated for membership by the Prime Minister.
Although it may be possible to replicate those safeguards in Standing Orders of this House and another place, Standing Orders can be amended at any time, as noble Lords will know, and can be suspended for a specific period, or dispensed with for a specific purpose, by a Motion in the relevant House. Standing Orders do not therefore have the same permanence, or provide the same level of protection to sensitive information, as statutory provisions to the same effect.
It seems to me that we can divide the noble Lord’s amendments into two sets. Both are concerned with the same aim—that the new ISC should be a Select Committee—but they get there by different routes and with different consequences. It is not absolutely clear what the effect of the noble Lord’s first two amendments would be. If we were to accept them and the amendment that he proposes to Schedule 2, the ISC would still be created by statute in the Bill and safeguards would still exist to protect national security in the three areas that I have listed. My noble friend Lord King of Bridgwater drew attention to the inconsistency of the amendments, but we accept the noble Lord’s wish to draw the issue to the attention of the House in the way that he has by tabling Amendment 1.
The noble Lord’s 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 other Select Committees? The Bill makes clear, even were it amended in other respects according to the noble Lord’s wishes, that the ISC is quite different from other Select Committees in fundamental respects—for instance, in relation to appointments and reporting. That being so, it is unclear whether or to what extent changing the ISC in this way would give it the other characteristics of a Select Committee. Indeed, the risk is that describing the ISC as a Select Committee when it has characteristics that are not shared by such committees could mislead as to the ISC’s true character. For these reasons, I hope that the noble Lord will see fit to withdraw his amendment and that the noble Baroness, Lady Smith of Basildon, will reconsider her position on it.
The noble Lord’s next four amendments would, together, remove the first four clauses, which deal with the ISC. It is to be assumed that the noble Lord’s intention with those amendments is that a new ISC should be created solely by the Standing Orders of each House. Indeed, the noble Lord said so in his speech introducing his amendment. I have already listed the vital safeguards relating to appointments, reporting and provision of information contained in the Bill. Without these safeguards, we will increase the risk of unauthorised disclosure of the sensitive information to which the committee has access. As I have already said, Standing Orders cannot adequately replicate the safeguards against disclosure of information that might damage national security contained in the Bill. It is only by enshrining these safeguards in statute that we can ensure that they are sufficiently robust and enduring.
Baroness Smith of Basildon
My Lords, much of the debate regarding this amendment was covered in the debate on the previous group of amendments. I will therefore keep my comments brief. We put our names to the amendments proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. We considered that the arrangements that they are proposing for the ISC, which is a variation of a statutory parliamentary committee, to be the next best option were the Select Committee option to fail.
In the previous debates, I referred to a committee being strengthened in its independence by the privileges and status afforded by being a creature of Parliament rather than a creature of the Executive, while retaining robust safeguards over the constitution and the work of the committee in the interests of national security. The idea of a security committee that is covered by parliamentary privilege and also bound by safeguards established by statute is of course attractive, as it would give the absolute guarantee needed on issues such as the disclosure of sensitive information and the appointment of members. However, my concerns lie—the noble Lord, Lord Butler, also acknowledged these deficiencies—with the argument raised by my noble friend Lord Campbell-Savours that parliamentary privilege conferred in this way would be suspect and potentially challengeable in the courts. That makes me nervous and I am sure that it makes other Members of the House nervous. If my noble friend is right that the present statutory committees of Parliament are not covered by privilege, it is difficult to see how statute can provide for it in this case, for the fundamental reason that the committee will not be a fully fledged body of Parliament.
In Committee, the noble Lord, Lord Henley, said that discussions would take place. The noble Lord, Lord Butler, referred to that. I am very concerned that, if I understand correctly, the noble Lord, Lord Butler, said that no discussions on the issue have taken place with the Government. There is an overwhelming desire on all sides of the House to get the issue right.
Lord Butler of Brockwell
Perhaps I may do justice to the Government. There have been discussions. My complaint is that they do not seem to have reached a conclusion.
Baroness Smith of Basildon
I do not know whether that is better or worse. It is disappointing that the Government have not been able to reach a conclusion, given the overwhelming desire on all sides of the House to get this right and to ensure that the committee has the privilege that it will need to do its job properly. I remain concerned about the process that is being used. I wait with interest to hear what the noble Lord will say about the consequences of pursuing parliamentary privilege in this way. Without assurances that the committee will have full privilege, I will have serious reservations about the viability of the proposed amendments, despite the fact that I fully support the aims behind them.
Lord Taylor of Holbeach
My Lords, I was tempted to make a relatively short summary for this debate, but the amendments tabled by the noble Lord, Lord Butler, give me the chance to elaborate on certain matters to which other noble Lords alluded. As we know, the proposal of the Government in the Bill is to change the ISC’s status. It will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The two amendments in this group 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. The Government’s intention is that the ISC will be a committee of Parliament created by statute. It will not be a classic Select Committee that covers departmental bodies, but a statutory committee of Parliament.
The Government are in principle supportive of the amendments tabled by the noble Lord, Lord Butler, to change the name of the committee to the Intelligence and Security Committee of Parliament. While we are not in a position to support the amendment at this stage, we will be in a position to do so later. I hope that in what I say I will give the House reassurance that the time since July has not been totally wasted, and that the Government are quite a long way down the road of sorting out the particular issues to which noble Lords quite rightly drew the attention of the House. If the ISC becomes a committee of Parliament, it may even be necessary to make some consequential amendments. The amendment may bring the ISC within the ambit of the Freedom of Information Act 2000 by making it a part of the House of Commons and the House of Lords for the purposes of the Act, which was alluded to by the noble Lord, Lord Campbell-Savours. It may change the ISC’s status under the Data Protection Act 1998, as Section 63A of that 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.
Lord King of Bridgwater
My Lords, I support what the noble Lord, Lord Campbell-Savours, has just said—in the knowledge that there is no back pay in this world. It does seem very weird to be considering this. I am not sufficiently familiar with the remit of IPSA, but although we have been arguing about the extent to which this committee is or is not part of Parliament, in the area of pay and rations it appears to have been put right inside it.
Baroness Smith of Basildon
My Lords, my name and that of my noble friend Lord Rosser have been added to this amendment, as was the case in Committee. We argued then, and argue again now on Report, for the establishment of the ISC along lines similar to that of a Select Committee, and indeed preferably the same lines. It would therefore be inconsistent not to argue that the chair of this committee should be remunerated in much the same way as the chair of a Select Committee. The work that is undertaken is enormously serious and therefore the role should be recognised and fairly compensated on par with that of a chair of a Select Committee.
We have just heard comments about whether IPSA is the appropriate body for this role, and in Committee it was the Minister who said that it was. I have been involved in politics both in your Lordships’ House and in the other place for a good many years and I still enjoy irony, which is much underused in politics, so I find the argument of the Government rather ironic given the debate over Select Committee status which has underscored the difference between this committee and a committee of Parliament. Perhaps the Minister can change the Government’s position and we will accept the amendment.
The details of the committee’s arrangements are to be established in statute, but when it comes to discussing remuneration, it will be for IPSA to decide. It really does not seem appropriate for that body to do so, and the Government cannot have it both ways. If the ISC is to remain a body provided for in statute and ultimately accountable to the Executive, which is the case in this Bill, then regardless of any closer ties to Parliament it remains a creature of the Executive. It therefore seems completely illogical for IPSA to be the body which decides on the remuneration of the committee’s chair. I support the amendment. If the Government think that IPSA is the way forward, they have got it wrong, and I hope that the Minister will be able to accept the amendment.
Lord Taylor of Holbeach
My Lords, we turn now to the remuneration of the ISC chairmanship. I have to say that the loyalty which members of that committee have shown to the chairmen and the work they undertake reflects the commitment that those who have held that office have demonstrated to the security services. I note the widespread view that this position should be properly remunerated in some way or another, and the Government support that view. There is no real consistency in the way that Select Committees are treated and no absolute rule that all Select Committee chairmen will be paid. In the Commons at present, not all Select Committee chairman receive a salary for those functions. In the Lords, there is only one such salaried chair, the chairman of the EU Select Committee, who is paid a salary—not by virtue of holding that position but by virtue of also being the Principal Deputy Chairman of Committees.
Lord Gilbert
My Lords, the situation is considerably more complex than your Lordships have heard this afternoon. One has the impression from the debate that the only intelligence-gathering agencies are MI5, MI6 and GCHQ, and that is far from the case. We have the Defence Intelligence Agency and the intelligence work of the individual services, and a lot of other people in this country handle high-security intelligence by acquiring, analysing and distributing it. If we think that we have covered the waterfront just by approving the heads of MI5, MI6 and GCHQ, we are deluding ourselves.
Baroness Smith of Basildon
My Lords, we have had an interesting debate, and Amendments 9 and 11, in my name and that of my noble friend Lord Rosser, seem to have gained a significant degree of support from around your Lordships’ House. In response to the concern of the noble Lord, Lord King, about the televising of proceedings, I suspect that if this debate were being televised at 4.30 am it would not get a great deal of viewership. Having said that, we will probably now receive letters from those who watch TV at 4.30 am.
Amendment 9 would provide the committee with a remit to hold pre-appointment hearings for the heads of agencies. The noble Baroness, Lady Hamwee, spotted my tabling of her amendment from Committee, when she convinced me that having a permissive amendment was a good way forward. She has now tabled a further amendment that would make the proposed hearings compulsory, but I do not think that that has found favour with your Lordships. We are very much in favour of pre-appointment hearings by Select Committees; indeed, the Labour Government in 2007 pioneered them. This Government have suggested that they are equally keen on pre-appointment hearings. The coalition agreement contains a specific plan to strengthen the powers of Select Committees to scrutinise major public appointments as part of improving government transparency. This seems to be one of those areas that would benefit from such hearings.
I take on board the wisdom, as usual, of the noble Lord, Lord Reid, on these matters and the concerns he raised. However, as to what he said about there being a veto on information, the committee would use its customary wisdom in passing on advice or information to the Prime Minister as it saw fit.
As regards Amendment 11 on annual public hearings, I must admit that I had not envisaged many separate hearings but perhaps one or two hearings a year at which heads of agencies could be questioned. There is an issue of public confidence, and the noble Baroness, Lady Manningham-Buller did a huge amount during her time as head of MI6 to open up the so-called secret services and increase public understanding of and trust in what the agency and other agencies do. She, more than anyone, understood how important it was that the public needs to have confidence in those at the head of organisations that have to, by necessity, operate outside the public view.
I also do not disagree with those who said in Committee or in this debate that the credibility of the ISC would be undermined by farcical staged hearings, as we have seen on TV elsewhere when the only answer to questions has been, “I’m sorry I can’t answer that or provide that information”. Obviously, we would want any hearings to be genuine, give confidence to the public and not have a block that would provide a lack of confidence.
As has been pointed out in Committee, the ISC already has the power to sit in public if it so chooses. Amendment 12, which proposes that there be a presumption that the ISC would meet in public unless it were to meet in private, could create the kind of difficulties that have already been outlined. A presumption that the ISC would meet in public would be difficult for that committee to manage, but hearings taking place in public from time to time are useful and have a large part to play. We have to recognise the sensitive nature of the committee’s work and information that cannot be made public.
When considering the amendments and the support for them, I hope that the Minister will accept Amendment 9. He has heard that it has significant support from around the House. If he is unable to accept that amendment, I will consider testing the view of the House.
Lord Taylor of Holbeach
My Lords, we have an opportunity to consider this group of five amendments. Although Amendments 9 and 10 are similar, the noble Baroness has pointed out the difference between them. Under Amendment 9, the ISC “may” consider the proposed appointment of individuals to the posts of director-general of the Security Service, the chief of the Secret Intelligence Service, the director of GCHQ and other such persons as the Prime Minister may direct. The committee would do this by questioning the prospective appointee at one of its meetings. Under Amendment 10, the ISC “must” consider the proposed appointments.
Pre-appointment hearings are a relatively new phenomenon in the United Kingdom. Since 2008, Select Committees have conducted pre-appointment hearings for a list of posts. There is guidance published by the Cabinet Office on the process followed for such pre-appointment hearings, which includes the list of posts. In general, this process has been a welcome development and gives departmental Select Committees a role in questioning proposed appointees. However, the important thing to note about the list of pre-appointment posts is that the posts concern public bodies—for example, the chairs of Ofcom and the Social Security Advisory Committee. The pre-appointments process has never been used concerning the appointment of civil servants. The heads of the intelligence and security agencies are civil servants at Permanent-Secretary level, and the recruitment process is therefore expected to follow the process for the appointment of civil servants of such seniority.
Noble Lords may find it helpful if I provide some detail on the present process for appointing the agency heads and their status. The agencies are excluded from the provisions of Part 1 of the Constitutional Reform and Governance Act 2010, as my noble friend Lady Hamwee mentioned. That legislation places the management of most of the Civil Service of the state on a statutory footing. Exclusion from the provisions of that Act merely reflects the specific nature of the agencies’ operations. The agencies’ staff, including their heads, are and always have been part of the Civil Service of the state. This is clear from the Act. If it were not so, the specific exemption for the agencies in Section 1(2) of that Act would not be necessary. Staff of the agencies are not, however, part of what is generally referred to as “the Civil Service”, with a capital C and a capital S—that is, the Home Civil Service—nor are they part of Her Majesty’s Diplomatic Service. They form a separate category of civil servants, but civil servants they are. They are also “Crown servants”, but that is a wider term, covering, for example, members of Her Majesty’s Armed Forces and non-civilians in the service of the Crown.
While the agencies are not bound by the Civil Service recruitment principles, I can reassure noble Lords that they do, in practice, follow the spirit of the principles, and the Civil Service Commission is expected to be involved in the process. Pre-appointment scrutiny by Parliament is not appropriate given that these roles are Permanent-Secretary level roles, and in practice those who fill them will be recruited by a process involving a Civil Service commissioner to ensure that the appointment is made on merit. In particular, I see no reason why agency heads should be treated differently from any other Permanent Secretary appointment.
Certainly, the roles that the agency heads play are very important and the appointments must be the right ones, but all Permanent Secretaries in the UK Government play very important roles. There is thus no reason for singling out this particular group for special treatment. The fact that all these posts are posts within the Civil Service of the state, serving successive Administrations, means that the pre-appointment process is not appropriate.
I hope I have given the noble Lord and the noble Baroness reassurance that the process which presently exists—
“Pre-appointment hearings( ) The ISC may consider the proposed appointment of the following, including by questioning the prospective appointee at a meeting of the ISC—
(a) the Head of the Security Service;(b) the Head of the Secret Intelligence Service; (c) the Head of the Government Communication Headquarters; and(d) such other persons as the Prime Minister may direct.”
Baroness Smith of Basildon
My Lords, I had hoped that the Minister would at least consider taking this away for reflection. However, the mood of the House is clear. I beg to move.
Baroness Smith of Basildon
My Lords, I wish to test the opinion of the House on Amendment 9.
Lord Taylor of Holbeach
My Lords, it may be useful if I start by explaining why paragraph 3(3)(b) of Schedule 1 is necessary. There are a number of long-standing conventions that have developed in the relationship between Parliament—in the form of its Select Committees—and successive Governments. These conventions recognise that there are categories of information that in certain circumstances may be withheld from Select Committees on grounds of public policy. Noble Lords may know a good deal about this. Examples of this type of information are given in the Cabinet Office guide, Departmental Evidence and Response to Select Committees. Some noble Lords will know this by another name: the Osmotherly rules. The categories of information set out in the guide include information about matters that are sub judice, information that could be supplied only after carrying out substantial research or research that would incur excessive costs, and papers of a previous Administration.
The provision in the Bill is necessary to safeguard the long-standing conventions that are reflected in the Osmotherly rules in the context of the relationship between government and the ISC. It provides a basis for withholding from the ISC the sorts of categories of information described in the rules. As I explained, we intend the ISC created by the Bill to be a committee of Parliament and not simply a committee of parliamentarians, so there is all the more reason for the ISC that the Bill would create to be subject to these conventions.
The provision gives only a Minister of the Crown the discretion to withhold material. In exercising that discretion, the Minister would of course have regard to the provision that the ISC has for keeping material confidential. The Osmotherley rules state:
“If the problem lies with disclosing information in open evidence sessions or in memoranda submitted for publication, Departments will wish to consider whether the information requested could be provided on a confidential basis”.
For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. As I said, the powers to withhold information from the ISC have been used only sparingly in the past, and we expect this to continue. However, it is important that the safeguards are retained.
In Committee, the debate focused in particular on the word “proper”. The noble Lord, Lord Thomas of Gresford, who is not in his place, queried the use and meaning of the word. In addition, the noble Baroness, Lady Smith of Basildon, was concerned that paragraph 3(3)(b) lowered the threshold for information being withheld from the committee compared with that which currently applies under the Intelligence Services Act. I assure the noble Baroness that that is not the case. The Intelligence Services Act contains a provision equivalent to paragraph 3(3)(b). In fact, the categories of information that can be withheld from the ISC, and the thresholds for withholding information, will be the same under the Bill’s provisions as they are currently under the 1994 Act.
The noble Lord withdrew his amendment. I hope that Amendment 14 clarifies the situation and addresses his anxieties in this respect. I beg to move.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for seeking to clarify the matter. As he said, I raised my concern on this in Committee. Perhaps I may ask one question. If he is unable to answer today, perhaps he would write to me. I am not 100% convinced that Amendment 14 is sufficient to prevent paragraph 3(3)(b) being used as a justification, as the Minister claimed. Amendment 14 stipulates merely that the Minister “must have regard to” the Osmotherly guidance, as set out in sub-paragraph (3)(b). Will the Minister tell us whether, after considering the guidance he referred to, the Government could still use the conditions set out in sub-paragraph (3)(b) to refuse disclosure of information to the ISC even if the guidance was not relevant to the material in question?
Lord Taylor of Holbeach
I am not in a position to answer that directly, but if the noble Baroness permits, I will write to her and place a copy of the letter in the Library of the House.
“(a) the Secretary of State for that Department, or(b) in the case of a Department without a Secretary of State, a Minister of the equivalent level, identified in a memorandum of understanding.”
Baroness Smith of Basildon
My Lords, the amendment concerns the power to withhold information from the ISC and at what level the decision should be taken. The Bill states that the decision should be taken by a “Minister of the Crown”. The amendment proposes that it should be at the level of Secretary of State in the relevant department and not just a Minister of the Crown. The response I was given in Committee was that the Cabinet Office does not have a Secretary of State and therefore it would be the Minister of State. As somebody who was the Minister of State at the Cabinet Office, that did not seem appropriate. Every department has a Minister who sits in the Cabinet. The reason for putting the amendment before the House today is to propose that, as a minimum, it should be a Minister who is at the equivalent level of Secretary of State. That would be justified because the explanation given by the Minister in Committee for lowering the threshold was not adequate given such a change in power.
We have sought to tighten up the drafting to make it clear in the Bill that in all but exceptional circumstances the power to withhold information from the ISC should be exercised only by a Secretary of State unless there is no Secretary of State in that department. In that case, it should be exercised by a Minister of comparable rank such as the current Paymaster-General who is a member of the Cabinet as well as the most senior member in the Cabinet Office. The amendment is simply to specify that a reference to a Minister of the Crown should be interpreted as a Secretary of State for that department except where there is no Secretary of State where it should be someone of the equivalent rank.
I hope that that is clear and I hope that the Minister can accept or at least reflect on this because it would be a significant change if it was not the Secretary of State seeking to withhold information. I beg to move.
Baroness Stowell of Beeston
My Lords, I hope in responding to the noble Baroness, Lady Smith of Basildon, that I can give her some assurance so that she feels able to withdraw her amendment.
The Bill provides that Ministers may decide that information should be withheld from the ISC on two grounds. First, the Minister may consider that it is “sensitive information” as defined in the Bill, which in the interests of national security should not be disclosed to the ISC, and secondly for the reasons that we just discussed.
Currently, under the provisions of the Intelligence Services Act 1994, information can be withheld from the ISC on the same grounds, but the decisions to withhold are taken, in part, by agency heads rather than Ministers. These powers to withhold information from the ISC have been used very rarely in the past, and we would expect the equivalent powers in the Bill to continue to be used sparingly, only in exceptional circumstances; however it is important that these safeguards are retained as there will continue to be material the nature of which is so sensitive that access to it must be very narrowly restricted in the interests of national security.
Where agencies’ material is concerned, the Bill provides that decisions to withhold information from the ISC must be taken by the Secretary of State. However, where the ISC requests information from another government department, a decision to withhold is taken by the,
“relevant Minister of the Crown”.
That means, for these purposes, such a Minister as is identified in the memorandum of understanding between the Prime Minister and the ISC or, where no Minister is so identified, any Minister of the Crown.
The effect of the noble Baroness’s amendment would be that in circumstances where the Bill enables a Minister of the Crown to withhold information from the ISC, that power would rest with the Secretary of State for the department whose information is to be withheld, or for departments without a Secretary of State, a Minister of the equivalent level, identified in the memorandum of understanding.
The reason that we have included provision for the exercise of the power by a Minister of the Crown rather than a Secretary of State in respect of material held by government departments is that there may be some departments where there is no Secretary of State. The noble Baroness referred to this. For example, the post of Minister for the Cabinet Office is a Minister of State position rather than a Secretary of State position.
The current ISC has, over its history, taken evidence on, and made recommendations relating to, the Joint Intelligence Organisation and the central intelligence functions of the Cabinet Office. The Bill formalises the ISC’s oversight role for bodies such as the Joint Intelligence Organisation so the Cabinet Office can expect more requests from the ISC for disclosure of information in future. It is therefore important that a Minister of the Crown should be able to make decisions about when and what information should be withheld from the ISC. This may not just be about the Cabinet Office. It may be that, in the future, other government departments involved in security and intelligence functions will not have a Secretary of State. This provision would also cover those circumstances.
I appreciate the intention of the amendment, which is to ensure that the Minister of the Crown making the decision to withhold information from the ISC is of appropriate seniority. I hope that I can reassure the noble Baroness that that is also the Government’s intention. We hope to publish, before Third Reading, a document which sets out the areas that the Government expect the memorandum of understanding to cover, premised on the assumption that the ISC-related provisions in the Bill are enacted, substantially, in their current form.
In that document, we will state that it is the Government’s intention that the Minister making such decisions should be of appropriate seniority and should have sufficient knowledge of the work of the department in question. The document will state that it is the Government’s intention that, for the Home Office, the Minister making such decisions should be the Home Secretary, for the Foreign Office the Foreign Secretary, for the Ministry of Defence the Defence Secretary and for the Cabinet Office a Minister of State. As I said, I hope that that gives the noble Baroness enough assurance for her to withdraw the amendment.
Baroness Stowell of Beeston
I am grateful to the noble Lord for his assistance. That is absolutely right. If the committee requests the information, because the MoU will make it clear which Minister within a department is responsible for responding or deciding whether or not the department should provide that information, obviously the Minister has an obligation to respond to that request.
Baroness Smith of Basildon
My Lords, I am not sure that the noble Baroness has understood the central point that I am making and if she has, she has not answered it to my satisfaction. The query that I have with this amendment is the level of the Minister who can exercise a veto. I entirely agree that it is an exceptional measure that will be used only in exceptional circumstances. It takes the power from the agency’s head so that it rests with the elected representatives of the Government who are ultimately accountable to Parliament. But I have not heard from the noble Baroness an adequate justification from the Government as to why they have chosen to downgrade the level at which the veto is held from a Secretary of State to a Minister of State.
I mentioned the Cabinet Office because that was the department mentioned by the Minister previously. The noble Baroness responded and said that it could be another department that does not have a Secretary of State. The point being made is the level of Minister who can withhold information and exercise a veto against the ISC. It is entirely reasonable that it should be the Secretary of State or a Minister at the same level, not downgraded to a Minister of State level.
Lord King of Bridgwater
The answer my noble friend gave was extremely encouraging and recognised the importance of the seniority of the person. The only thing I do not understand is whether paragraph 3(5)(b) of Schedule 1, which reads,
“if no Minister of the Crown is so identified, any Minister of the Crown”,
will survive.
The noble Baroness appeared to be saying that if a particular Secretary of State is for some reason not available—which is perfectly possible, particularly if you are dealing with the Foreign Office—any other Secretary of State will do. Would it not be much better to have a Minister of State in the same department who is familiar with the matter to deal with it, rather than some other Secretary of State? Have I got the noble Baroness wrong?
Baroness Smith of Basildon
No. The noble Lord is absolutely right. At the moment it is a Secretary of State but the Bill proposes to downgrade that to any Minister of the Crown. I know the noble Baroness says that there will be a MoU that will identify certain Ministers of the Crown but these decisions should be taken at Cabinet level.
Lord King of Bridgwater
I understand what the noble Baroness is saying but if the information concerns the Foreign Secretary, who is responsible for SIS and GCHQ, or the Home Secretary, who is responsible for the Security Service, or, in certain circumstances, the Secretary of State for Defence, who is responsible for the DIS and so on, and if by chance that Secretary of State is not available to deal with an urgent matter on which a reply is requested, it would be much better that the Minister of State in that department deals with it and that we do not have the Secretary of State from Defra or from some other department shifted in merely because he is of equal seniority and that meets the requirement.
Lord Reid of Cardowan
Perhaps I may help. This is not a new problem—it happens with intercepts. The only people allowed to authorise an intercept are Secretaries of State and, if the Secretary of State is not available or is not in London, his officials will get it to him—and these are far more urgent than anything envisaged here. The point that is being made is that the refusal to supply information to the ISC is such an important decision, given the confidence we are placing in the ISC, that the level at which that decision should be taken is Secretary of State level or equivalent. The Government are envisaging extending not only to a Minister inside the Home Office when the Secretary of State is not available but to any Minister of the Crown, on any refusal, the power so to refuse. My noble friend is saying that this is such an important decision that it ought to be taken only at the level of Secretary of State or equivalent. That is an entirely reasonable suggestion and is looser than the intercept provision which applies to only four Secretaries of State.
Baroness Smith of Basildon
My Lords, as ever, my noble friend Lord Reid has summed up the point I was making. The Minister did not refer to an emergency situation but to departments that would not have a Secretary of State and therefore it would be downgraded. It is entirely appropriate to ask that a decision as serious as to withhold information from the ISC should be taken only at the highest levels in government, and that means the level of Secretary of State.
Lord Butler of Brockwell
My Lords, I also support the amendment. It is no answer to say that if the information is held by the Cabinet Office, where there is not a Secretary of State, it should be at some other level. Any intelligence information held by the Cabinet Office will belong either to the Home Office, the Foreign Office or some other department where a Secretary of State is responsible. It is not the case that provision ought to be made for an exception where the Cabinet Office is involved. I support the amendment moved by the Opposition.
North Wales Abuse Allegations
Baroness Smith of Basildon Excerpts(12 years, 4 months ago)
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Baroness Smith of Basildon
My Lords, I am grateful to the Minister for repeating the Statement today because for the past few weeks we have reacted with increasing horror as new details of historic allegations of sexual abuse of children and young people have emerged. Your Lordships’ House will emphatically agree with the noble Lord that these are deeply disturbing allegations. It is not only that the crime itself is so despicable and that many young people’s lives have been deeply affected and in some cases destroyed. It is not just that the very adults who have abused children and young people seem to have enjoyed the protection offered by positions of trust and fame. The most evil and despicable aspect is that these children and young people have been failed by the very institutions charged with protecting them, including the criminal justice system. The noble Lord is right. It is clear that Parliament must act to ensure that justice is done and that the perpetrators are held to account. The Government are right to act and I welcome their swift response and the announcement today.
But I remain to be convinced that this is the most appropriate way forward given what could be the scale of the problem. The whole House will welcome the Government’s Statement that all allegations must be treated with the utmost seriousness. As the noble Lord said, child abuse is a hateful, abhorrent and disgusting crime. We would concur that anyone who has information must go to the police.
As my right honourable friend Yvette Cooper, the shadow Home Secretary, has said, we need to have a full criminal investigation and we also need to examine what further changes are needed in the way in which we protect children and investigate abuse. But we also need to know whether there has been institutional failure to deal with historic allegations, whether by turning a blind eye, by covering up, or by simply failing to get to the bottom of what has happened.
For any child or young person to report physical or sexual abuse takes an enormous degree of courage. Any and every abused child or young person has the right to expect that the authorities will take them seriously, believe them and take action to protect them and deal with the abuser. That is why we must examine whether there is a further, deeper problem, whether in north Wales, in the cases involving Jimmy Savile and the BBC, or in those of grooming and sexual abuse in Rochdale and Rotherham. If children and young people who have been physically and sexually abused have reported their abuse and the authorities have failed to believe them, or even worse have believed them but then failed to act, that is truly shocking. Those who have failed to investigate or have sought to protect abusers or cover up abuse are equally guilty.
Given the scale of this issue, it has become evident that we cannot look at the allegations in north Wales in isolation. I hope that the noble Lord will understand when I express concern that the Government’s response will not address the wider concerns and seek assurances from the Minister.
I welcome the new criminal investigation into the allegations in north Wales. In particular, I very much welcome the involvement of the Child Exploitation and Online Protection Centre, which has considerable expertise. But can the Minister confirm that the inquiry can go wherever the evidence takes it and will not be confined to north Wales?
Also, the Minister may be aware from our debate on the Crime and Courts Bill with his predecessor and the Parliamentary Questions that I have asked on this issue that I remain concerned that the transition to the new National Crime Agency may leave the organisation underfunded. I have raised this now on several occasions. Will the Minister confirm that these investigations will not in any way be hampered by a lack of funding?
On the second point about historic reviews, it is right to look again at the Waterhouse inquiry, but can the Minister explain what is meant by,
“whether the Waterhouse inquiry was properly constituted and did its job”?
Are the Government now questioning the terms of reference or the operation of the inquiry? Can the Minister be more specific about that point?
Does the Minister understand the widespread concerns about there being so many inquiries? I am aware that these have grown rather than being planned in this way, but in addition to the police investigations there are three BBC inquiries into Savile, a Department of Health investigation into Savile’s Broadmoor appointment and several individual hospital inquiries. There is the CPS inquiry into why Savile was not prosecuted; there is the new north Wales inquiry; there is the HMIC inquiry into other forces that may have received information about Jimmy Savile; and there are others.
The Minister will be aware that we have already called for all the Savile inquiries to be held together. Is there not a strong case for a single, overarching, robust inquiry, not just about the abuse itself but also about whether individuals or groups used positions of influence—either their own or that of friends—to evade criminal prosecution? Of course we need to get to the bottom of what happened in each and every case but we also need to see if there are common themes and problems to prevent them happening again. There is a genuine concern that too many individual and specific inquiries is not the proper way to learn the right lessons for effectively and properly safeguarding children and young people. Time and again, evidence of serious institutional failures is presented; a single overarching inquiry into whether these allegations were ignored, or if there was a cover-up to protect abusers from public exposure and prosecution, is now essential.
The Waterhouse report led to, I believe, 72 recommendations and significant changes in child protection. The Children’s Commissioner was introduced, there is the Care Standards Act and the child protection Act, and we saw a strengthening of the law in introducing new measures and policies on safeguarding children and young people in schools and in social services. We saw the creation of the Child Exploitation Online Protection Centre, but yet again we are now presented with evidence that children and young people who came forward to report abuse were not taken seriously. We know that abuse was ignored for far too long against girls and young women in Rochdale and that concerns raised in Rotherham were not acted upon.
The Minister may be aware of previous debates we had with his predecessor about our concerns on the weakening of the vetting and barring system, our concerns about the changes to CEOP as it was merged into the new National Crime Agency, and our concerns about the funding of the new National Crime Agency. PCTs have warned that child safeguarding has been jeopardised by confusion and transitional arrangements in NHS reforms. Is the Minister confident that the fragmented inquiries announced today will give a clear picture of the action that is needed to really protect children from abuse in the future?
It demands enormous courage for a child or young person to speak out and report sexual or physical abuse; if they are not believed or if their reports are not acted on, it only compounds that abuse. I believe the Minister and your Lordships’ House are united in the objective of wanting the most effective and robust inquiry possible for lessons to be learned and for actions that will really make a difference, because only then can we truly provide justice to those who have suffered.
Police and Crime Commissioners
Baroness Smith of Basildon Excerpts(12 years, 4 months ago)
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Lord Taylor of Holbeach
That is very good news for the candidate in my noble friend’s constituency.
Baroness Smith of Basildon
My Lords, for a moment when the noble Lord referred to late legislation, I thought that the Electoral Registration and Administration Bill was being withdrawn to have new legislation on this but unfortunately he has not agreed with us on that point. Perhaps I may ask two questions. First, is he satisfied that the level of public awareness of and interest in these elections is adequate at this stage? Secondly, he will have seen the reports of shockingly low police morale. Does he think that this flagship policy on police from the Government has improved police morale, made it worse or made no difference?
Lord Taylor of Holbeach
My answer to the second part of that question is that I am certain that it will have done. It has focused public attention on the police as an institution in a way that has not existed before. It has made it quite clear that the services of those who work in the police service are valued. Indeed, people will be voting for the police and crime commissioner who will be responsible for the governance of police in local areas. I am sorry but I have forgotten the first part of the noble Baroness’s question. Perhaps she would not mind repeating it.
Baroness Smith of Basildon
I asked whether the Minister was satisfied with the level of public awareness of and interest in these elections.
Lord Taylor of Holbeach
I think that I have given that answer already. The poll conducted showed that 85% of the people who were eligible to vote in these elections were aware that they were taking place. I am satisfied. It is up to those of us engaged in democracy to get involved with making sure that these elections return good candidates to do the task that is set before them. It is an important job and it will make a lot of difference to policing in this country.
Statement of Changes in Immigration Rules
Baroness Smith of Basildon Excerpts(12 years, 4 months ago)
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Baroness Smith of Basildon
That this House regrets that notwithstanding welcome but limited measures to ensure the deportation of foreign criminals and tackle sham marriages, and notwithstanding the importance of greater protection for the taxpayer, the Government have not demonstrated that the specific minimum annual income requirement which has been introduced through the Statement of Changes in Immigration Rules (HC 194) is the most effective way to protect taxpayers and deliver fairness for UK citizens who wish their spouse or partner to settle in the United Kingdom.
Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee
Baroness Smith of Basildon
My Lords, I should say at the outset of this debate that we support the Government in their efforts to address and manage levels of immigration to this country and to make it easier to deport foreign criminals, but my Motion of Regret is on the specific aspect of HC 194, that part of it which sets an income threshold of £18,600 for British citizens and people settled here who wish to sponsor their spouse or partner to come to live with them in this country and of £22,400 for couples with children. I would also like, during the course of the debate, to raise with the Government the issue of Article 8 of the European Convention on Human Rights—that is, the right to respect for private and family life—and the Government’s proposal to find greater legal clarity by balancing Article 8 with public interest considerations.
On income threshold, of course it is right that if an individual wishes to bring their family to settle here in the UK, they should not assume that the state will support them. That is why it is already a requirement for an individual to demonstrate that they have access to sufficient funds at a level that will put them in a similar position to someone on income support here in the UK, so that they will not seek recourse to benefits. Unlike a blanket income threshold, the current position allows authorities to take into account the different ways in which a couple may be able to demonstrate that they can meet that requirement. For example, currently, the joint income of a couple can be taken into consideration when assessing whether their funds are adequate, as well as the likely employment prospects of one or both of the parties. Couples are also able to use an undertaking by members of their family in the UK to provide them with adequate funds for maintenance as evidence that they will be able to support themselves without recourse to the state.
I understand that that leaves a level of discretion in decision-making, and we support efforts to provide greater clarity in the rules, to eliminate opportunities for abuse, but we must also recognise that, nowadays, we live in a world where it is commonplace to travel, to study, to do business and to work abroad, so it is only natural that people from here in the UK will travel, fall in love and form long-term and permanent relations across borders. Family circumstances are not always as straightforward as government policy assumes. Many in your Lordships’ House will know of couples of different nationalities, friends and family members, who have established long-lasting relationships through living and working abroad.
When my Motion of Regret was published, I received several letters by e-mail and fax from those who have been affected by government policy. I do not know the circumstances of all those who have contacted me, but as a generalisation, I would class those who have contacted me directly as strivers—a term that the Prime Minister has used. They are people who work hard to provide for themselves and their families, not rich or wealthy people, but often people who work hard in useful jobs on wages lower than most of us in your Lordships’ House have come to expect in our working lives.
I want to refer to a couple of examples that I think may help your Lordships’ House in considering the issue. I shall call one family Mr and Mrs M. They are a married couple. She is from a Commonwealth country; she is Canadian. Both of them have children from previous marriages. They married in 2005 in the UK and lived in the UK for a year, when she went back to Canada to go to university to complete her education, which would no doubt lead to a better job. As she puts it to me in her correspondence, it was,
“short term suffering for the long term benefits”.
Her husband visited Canada a couple of times and they then decided that they would settle in Canada. For a number of reasons, not least being his responsibilities to his family here in the UK, including his parents, who were getting old, he moved back home in 2010 and they agreed that she would follow him once he found work. In the mean time, his wife sent him money from her earnings in Canada to buy household items for the new home that they were going to set up here in the UK. Again, these are people trying to do the right thing in seeking to support themselves. Alfred got a job; he was doing well and she started to complete the visa application form. However, in July 2012, their world just fell apart because he did not earn the £24,800 that the Government said he had to before his wife and two children could join him. His father was a miner in Wales; he had a low income—both were proud men and proud of their work. They estimated that his wife—when they thought she was going to join them—would get a job in the region of £18,000 to £24,000. Yet despite all their planning, and all their efforts to provide for themselves, they have fallen foul of this rule and are now living on different sides of the world.
There is another lady who contacted me, Miss BF. She and her non-EU partner plan to marry in December 2012. She wrote:
“I do not earn £18600. I work part time as a healthcare assistant for the NHS. I am unable to work full time as I have a 14 year old son … If I worked in London I could earn the £18600 however the cost to rent in London would probably be triple the cost of my current mortgage. The income threshold does not allow for variations in circumstances. It does not allow for the earning potential of single parents, or for women in general. Our wedding plans are now on hold”.
So no regional variation—or, again, partner’s income—is taken into account.
Mr S—a highly qualified man who has worked in government in the past—also outlines in his letter to me the perverse incentive of an absolute threshold. He lives some distance from London. He says:
“I’m desperately trying to find a job that would make the required £18,600 a year. In this area, that scenario is a difficult one, so I’m looking for work in London. If I secure such a job, earning the required salary, it’s likely that most of this would be spent on the high costs associated with living in London. Yet the government deem this ok. However, I could probably find a job in this area earning around £14-15,000 and would have more disposable income to support my family whilst having the assurity of living with my parents in the short term.”.
All these are people trying to do the right thing—trying to support themselves. As there is now no flexibility in the system, but a very blunt policy of a blanket income threshold, the rules can unfairly penalise couples like Mr and Mrs M, and people like Mr S and Miss BF. Can the Minister confirm that we have members of the Armed Forces serving overseas who, if they were to marry somebody they met on duty overseas, would have an income that would fall below the level expected by the Government and who therefore would not be allowed to bring their new wife or husband back to the UK with them?
People who are trying to do the right thing and who are strivers—and the Prime Minister has used both those terms—and who would so easily be capable of supporting themselves and are determined to support themselves without relying on the state, are being turned away. We need a system that delivers protection and fairness for existing tax payers, but also fairness to families like this who will ultimately be net contributors to the system.
This is about the right to family life for British citizens and those permanently settled in this country. That is not an absolute right but one that is rightly qualified by the public interest test. None the less, it is of the utmost significance to the lives of many British citizens who wish to settle their families in the UK. Did the Government properly and adequately examine all the options for the most effective method of delivering fairness to both families and taxpayers? We contend that the Government have failed to do so. The Government have relied on the response of the Migration Advisory Committee for justification of the policy and the level at which the income threshold has been set.
So, what was the question that the Government asked the Migration Advisory Committee, which provided the evidence that this was the correct policy? Did the Government ask: “Is an income threshold the most effective way of delivering fairness for the taxpayer and families and preventing abuse of the system?”. Perhaps the Government asked the Migration Advisory Committee: “What would be the best way of ensuring that those bringing a spouse or dependent children into this country would not have recourse to public funds?”. It was neither of those questions. Instead, the initial question that the Government asked the Migration Advisory Committee was framed in a way that made it clear that they had decided the policy before asking the question. It was,
“what should the minimum income threshold be for sponsoring spouses/partners”.
The policy of a single income threshold had been decided, and the question was asked in such a way that it could only be answered with an assessment of the amount. The Government pre-empted any independent advice from the Migration Advisory Committee on what would be the most effective and fair process for determining adequate means of support without reliance on the state because they had already unilaterally decided on an income threshold policy.
Baroness Smith of Basildon
My Lords, I will reflect on the Minister’s response and will read and consider his comments in Hansard. However, I have to say that at this stage I am disappointed by his response; I wonder if he took on board any of the comments around the House about the devastating impact that this threshold is having on so many families. All of us in your Lordships’ House understand the need to tackle abuses—this was said to the Minister—but this measure goes beyond that and I do not think, as other noble Lords have illustrated, that it actually achieves the Government’s policy objectives.
The Minister said that it more effectively reduced the burden on the taxpayer and was fair to families. Based on the examples he has heard this evening, however, it does not seem a very effective way to protect the taxpayer. The issue is not just the level of the threshold but the principle of the threshold. He claimed that one of the questions I asked was what happened if somebody lost their job. That was not the question I asked at all; the point that I was putting to the Minister was that a threshold is an inadequate way of making an assessment, as someone could be above that threshold and then lose their job but still have the right to remain, since a judgment was made at one point in time based on a person’s income, rather than on a package of measures that was available previously.
I appreciate that he cannot comment on individual cases, but Mr and Mrs M, the lady from Canada and her husband from Wales; the lady who was the NHS care worker; and the clergymen referred to by the right reverend Prelate the Bishop of St Edmundsbury and Ipswich who wanted to come or bring their spouses to this country will all listen to the Minister’s comments with some dismay.
I appreciate that he was not able to answer all the questions but I was disappointed that he answered so few. I mentioned one to him about the perverse incentive where an individual would have to go and live in a more expensive part of the country to see their income increase, even though their costs would increase, including their rent or mortgage, and their disposable income would fall. That would qualify them to be able to bring their spouse into the country because they had a higher income level. That is a perverse incentive, to have a lower disposable income. The Minister did not comment on that. Nor did he comment on any of the examples—I am sure that this was not intended—of Church of England clergy’s partners being excluded from the UK. He also said that the Migration Advisory Committee supported the level but my understanding is that the committee was asked what the level should be; it was not asked to comment on the proposals generally or on whether this was the most appropriate way to achieve the Government’s objective.
I was especially hoping that the Minister would respond on the following issue that I raised. The Migration Advisory Committee, in its response to the Government, said that, of those who satisfied the current criteria of being able to show they had access to sufficient funds to support themselves and their families, 45% would no longer be eligible under the new criteria to have their spouses come to this country. I asked him how many of those who were eligible under the current procedures would not be allowed under the new rules and have since claimed access to public funds. He has not answered that. The answer that he gave was that 267 individuals now claim some kind of public support or assistance, but he was unable to tell us how many of those had come to this country through the existing rules on family visas. If he does have that figure, it would be extremely helpful to have it. I suspect that it might not be available but it might have been provided to him. It would have been a more useful figure and the one that I asked for.
Obviously we understand the need to ensure that the system is not abused, but I fear that what is being done here today will not protect the taxpayer in the way that the Minister seeks, and it certainly does not protect the family. I beg to withdraw the motion.
Motion withdrawn.
Extradition
Baroness Smith of Basildon Excerpts(12 years, 4 months ago)
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Baroness Smith of Basildon
My Lords, I thank the Minister for repeating the Statement. I do not think that I have had the opportunity to welcome him to his new position; I do so and look forward to working with him.
I entirely concur with our shadow Home Secretary, the right honourable Yvette Cooper, when she said in the other place that this was a serious decision and, as the Home Secretary explained, had to be based solely on the judgment as to whether Gary McKinnon’s extradition to the US would breach his human rights. It is testament to how serious a decision this is that the Home Secretary has taken two years to reach it. Within that time, she has commissioned further medical and legal advice. Can the Minister clarify whether the most recent psychiatric report commissioned by the Government was a separate and new medical opinion of Gary McKinnon or a review of the existing medical reports?
I focus on three specific issues in the Statement today: the Home Secretary’s announcement following Sir Scott Baker’s review; the implications that the Home Secretary’s decision may have for outstanding and future cases; and the European arrest warrant.
On the Baker review, it is clearly unacceptable that any case can be delayed for over 10 years pending a decision on extradition. I cannot overstate the difficulties and stress within this case but it is also a terrible burden on the victims and families; neither does it serve justice. We accept and agree with the conclusions of Sir Scott Baker’s review: that removing the role of the Home Secretary from human rights decisions in future will prevent cases languishing without decision for so long again.
In relation to the Government’s announcement of their intention to introduce the new forum bar the Minister will be aware that, when in government, we included the option for a forum bar in the Extradition Act. That has never been introduced. We understand and share Sir Scott Baker’s concerns over introducing further delays in the process, with the risk of endless satellite legislation. We will therefore be happy to work in co-operation with the Government on future legislation to resolve some of the outstanding practical concerns. We know that the expertise of your Lordships’ House will be especially important in that process. However, there is a wider problem that the Government have not addressed and I would be grateful if the Minister could help me on it. We are all becoming increasingly aware of cybercrime—a crime that can occur across several jurisdictions at the same time. As the legislation stands, a forum bar would not make any difference in dealing with the difficult decisions about whether extradition should take place. What efforts are the Government therefore making to work with the US, and other countries where we have existing extradition arrangements, on the development of new arrangements to deal with these emerging crimes?
I know that the Minister will also be aware of the case of Richard O’Dwyer, whose extradition was approved following charges brought in the US for conspiracy to commit copyright infringement and criminal copyright infringement following his creation of a website. Not being particularly technical myself, I understand that the site included links to other websites where the copyright infringement was alleged to have taken place. In Richard O’Dwyer’s case, it has been noted that had the forum bar been applied at the time his extradition may not have been approved. Does the Minister feel that the proposals announced by the Home Secretary today fully address the issues raised by the O’Dwyer case, including when offences may have been committed in the UK at the same time as in another jurisdiction?
I have just one further point, which comes back to the discussion we had yesterday about the European arrest warrant. I understand the concerns that have been raised but I also understand and appreciate that this is incredibly valued, as I highlighted yesterday and as law enforcement agencies in this country have highlighted as well. I worry about losing those powers without having anything immediately in their place. The Minister said in repeating the Statement that the Government wanted to work with other European countries to seek changes to the European arrest warrant. Is he aware that work is already ongoing to make changes to and review the operation of that warrant? Does he know what contribution the UK Government are making to those discussions and deliberations at present? My fear is that when other European countries see that we want to withdraw from the European arrest warrant, it will make our power to influence discussion and deliberation of that issue at this time more difficult. If we decide to opt out and then try to opt back in, we may lose the opportunity to influence the changes that—there is some acceptance of this—need to be made. I hope that the Minister is able to address some of the questions I have raised.
Police and Crime Commissioners: Elections
Baroness Smith of Basildon Excerpts(12 years, 5 months ago)
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Baroness Smith of Basildon
To ask Her Majesty’s Government what assessment they have made of the likely turnout in the elections for police and crime commissioners.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, the election of police and crime commissioners will be one of the most significant democratic reforms of policing in our lifetime. We want and encourage everyone to have their say and we are confident that come 15 November the public will not only be aware of the elections but will have the information that they need to make their choices.
Baroness Smith of Basildon
My Lords, I welcome the noble Lord, Lord Taylor, to his new role at the Dispatch Box and look forward to many long and interesting discussions with him. However, I found his Answer somewhat disappointing. The Reform Society fears an 18.5% turnout for these elections. That is not surprising, given that the elections will be held in November when it is cold, wet and dark, and that the candidate information has been made available online instead of in the normal leaflets for every household, as in similar elections. May I press the noble Lord on this point and ask him what level of turnout he would accept as evidence that the Government have respect for the police and the candidates and that this is a serious policy and not something dreamt up on the back of an envelope?
Public and Commercial Services Union: Strike Action
Baroness Smith of Basildon Excerpts(12 years, 7 months ago)
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Lord Henley
As my noble friend will be well aware, we have full contingency plans in place, just as we did on the other four occasions on which the PCS has called one-day strikes. On all those occasions we managed not only to secure the border appropriately but to prevent excessive queues. We hope to do that again tomorrow, but we hope that the PCS will see reason. Our doors remain open to negotiations until the last minute but, as I said, we are also taking legal advice on this matter.
Baroness Smith of Basildon
My Lords, although we would all support an Olympic truce between the Government and the unions, I think the Minister does this House a disservice when he tries to imply that the leader of the Labour Party, Ed Miliband, supports the strike when he has made it quite clear, as the Minister and other noble Lords will know, that he does not support the strike. We also recognise that there are real long-term issues about queues at border controls, particularly for non-EEA visitors. Yesterday the National Audit Office blamed the Government for cutting too many staff—more than even the Government planned—far too quickly. We now have a Bermuda Triangle of lost asylum cases being written off, mounting casework backlogs, and even fewer foreign criminals being deported. I appreciate that there are shorter queues at border controls for the Olympics, but can the Minister guarantee that, following the NAO report, the Government will treat this issue as a priority and ensure that there are enough staff and resources to do the job in the long term?
Late Night Levy (Application and Administration) Regulations 2012
Baroness Smith of Basildon Excerpts(12 years, 7 months ago)
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Baroness Smith of Basildon
My Lords, I had understood from press reports and a Written Ministerial Statement last night that, in light of a Supreme Court judgment yesterday, immigration orders or regulations would be laid today. Can the Minister enlighten us as to what form those may take and when noble Lords are likely to have sight of them?
The Minister of State, Home Office (Lord Henley)
My Lords, I issued a Written Ministerial Statement last night in response to that judgment from the Supreme Court. I can give an assurance to the noble Baroness that we will be laying orders later today and that they will be available in the Printed Paper Office.
Olympic Games: Security
Baroness Smith of Basildon Excerpts(12 years, 7 months ago)
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Baroness Smith of Basildon
My Lords, I am grateful to the Minister for coming to the House this evening to repeat the Statement.
I have listened carefully to the Statement and in it the Home Secretary says that following a report from HMIC in February 2012, LOCOG and the Home Office monitored delivery throughout the following months. How was that done? What were those checks and monitoring systems that the Government put in place to ensure that security personnel were being trained and would be in the right places at the right times? Did the Home Office and LOCOG fail in their monitoring, or did the Government and LOCOG just hand over the entire security operation to G4S with no checks or monitoring other than a government Minister sitting in meetings listening to false assurances from G4S?
I noted what the Home Secretary said in her Statement about the Minister, James Brokenshire, not receiving information about security staff shortages. So what was the purpose of James Brokenshire attending those meetings? What happened at those meetings? Did LOCOG and the government Ministers just sit there and listen to assurances from G4S that it was on target and everything was okay? Did anyone ask for evidence that that was the case?
Did the Government say, “Is everything going to plan and on time?”. Did G4S say, “Yes”, and did the Government just say, “That’s okay”? If the Home Secretary’s Statement, repeated in your Lordships’ House, that the Home Office and LOCOG weremonitoring delivery, is accurate, it is hard to understand the Home Secretary’s Statement, when she says later:
“I want to be clear that this”—
that is, Wednesday 11 July—
“was the first time that G4S admitted to any Minister that it would not be able to deliver the numbers of security personnel that it had promised”.
It is essential that we know about the monitoring arrangements to which the Home Secretary refers in her Statement. Will the Government publish the minutes or notes of the meetings that James Brokenshire attended on behalf of the Home Office? Can we have an assurance that that is not the usual way that the Government do business with business partners?
When the Home Secretary was asked earlier whether she could confirm the exact number of security staff that G4S would provide for the Games, she appeared unable to do so. I have been given a transcript of what she said in the House of Commons. She said:
“They are, they are, we are, continuing to accredit personnel for G4S and they are continuing to schedule personnel for the Olympic games and the precise balance of the numbers … they will be providing … will become clear over the next few days. But this is, this is, well, I suggest to Honourable Members opposite that they actually look at the statements that have been made by G4S about how they are dealing with this issue and what the problem is and the suggestion that somehow … this is a problem for us is not the case”.
What number of personnel is G4S now saying that it will be able to provide for the Games? What action are the Government taking to ensure that we can all have confidence in the training, support, management and adjustable arrangements for security staff to be in the right place at the right time?
Can the Government assure your Lordships’ House that the shortfall of security staff now being provided by G4S will not result in any additional cost to the public purse? I am greatly relieved that contingency plans were in place, although, obviously, government failures to identify the problem meant that they are having to be used very late in the day. I have great confidence in our Armed Forces—more than in G4S or the Government—but are the Government satisfied with the accommodation arrangements being provided for the Armed Forces, as this is being done at very short notice? I have received a number of reports—I would be happy to receive assurances that they are not correct—of soldiers having to be put up in shopping centres, school gyms and hurriedly constructed large shed-type accommodation. What will be the costs of those and who will meet them?
The Government have assured the Armed Forces that they will not be out of pocket for any family holidays or events that they have booked. That is small consolation for a soldier who has been in Afghanistan and now sees his leave cancelled to undertake security arrangements for the Olympics. Can you imagine how much he would enjoy being with family and friends? Who is meeting those costs?
There is great pride in London hosting the Olympics, and we all want it to be a fantastic experience for everyone who attends and takes part, but the Government really have to get their act together.
Justice and Security Bill [HL]
Baroness Smith of Basildon Excerpts(12 years, 8 months ago)
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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.
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.
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.
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.
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.