Counter-Terrorism and Security Bill

Lord Butler of Brockwell Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I would have liked to have started my remarks by congratulating the noble Lords, Lord Evans and Lord Green, on their maiden speeches but I cannot honestly do so because other House of Lords business prevented me from hearing them. However, I have heard enough favourable references to make me look forward warmly to reading them in the Official Report tomorrow.

Last summer I was critical of the Government’s treatment of Parliament in respect of the Data Retention and Investigatory Powers Act—DRIPA—which, in my view, took too long to prepare and offered unnecessarily limited time for this House to debate. In the past, I have also been critical of the quantity of legislation, particularly Home Office legislation. Even though this Bill is being fast-tracked, I am less critical of it in respect of those aspects. Like the majority of others who have spoken, I believe that the Bill contains necessary and useful provisions and that the Government are giving Parliament greater opportunity to consider it. Even so, there is evidence that parts of the Bill have not been fully thought through before presentation, and there is a regrettable and unhelpful element of political window-dressing in some parts of it. I shall return to those aspects. One feature of the debates in the other place was the large number of issues which the Government themselves identified as requiring further consideration in this House.

Nevertheless, I believe that further legislation is necessary, both to deal with the growing threat of domestic terrorism and with the particular circumstances created by the involvement of UK citizens in jihadism in Syria and Iraq. That threat has been growing and changing, and it is right that UK law should be developed and changed to deal with those new circumstances.

As many others have said, this debate takes place under the shadow of the terrible attacks in Paris, which remind us vividly of the imminent danger posed by perverted religious fanaticism. Moreover, those attacks appear to have been carried out by well armed but also well drilled and disciplined terrorists—exactly the sort of people who developed their training and discipline as jihadists in Syria and Iraq.

My knowledge of this subject has been mainly derived from my experience as one of your Lordships’ two representatives on the Intelligence and Security Committee of Parliament. Your Lordships will know that this committee recently published a detailed report on the mercifully more limited but similarly horrific attack on a soldier in Woolwich, Fusilier Lee Rigby. The House has not yet had an opportunity to debate that report but I have been asking myself what lessons can be drawn from it which bear on our consideration of this Bill. Much of the attention on the publication of the report focused on the performance of the intelligence agencies and the improvements needed in them—none of which in the committee’s view, I remind the House, could have prevented the attack on Lee Rigby—and on the one clue to the intentions of one of the attackers present in an internet message not available to the intelligence agencies.

There are other lessons to be learnt from the report which support the measures in the Bill before us now. One is that, although both attackers of Lee Rigby were identified by the intelligence agencies well in advance of the attack—in fact, one of them had gone abroad in an effort to make contact with a jihadist organisation—neither of them was under close scrutiny at the time of the attack and neither of them had been referred to any part of the Prevent programme. A second one is that both those potential attackers were highly security-conscious, so, although they had been subject to numerous investigations, their plot to murder a soldier was not uncovered or available to the agencies. The third is that both the attackers had other problems symbolic of alienation from our society, such as drug dealing and other criminal activity. All those three characteristics apply, mutatis mutandis, to the Paris terrorists.

What conclusions can be drawn from that case which are relevant to the present Bill? I suggest that the main one—and it is supportive of the provisions in the Bill—is that, as so often in terrorism cases, prevention is much better than cure and prevention cannot begin too early. So it is necessary to have powers to prevent people going abroad to take part in jihadism. If they do go abroad, it is necessary to have powers to monitor them on their return and to take action.

However, action directed at individuals is not enough. It may come too late. We also need action directed towards the communities from which jihadists may come. We need to ensure that locally there is a counter-narrative to jihadism, that local authorities, universities and schools have both the duty and the means to combat extremism while not infringing freedom of speech. Only finally do we need to ensure that, if people reach the point of being radicalised, the law enforcement agencies have the power to prevent them from breaking the law. In the face of the growing threat, we cannot afford to be lethargic about this. So it is welcome that the Government make the Prevent and Channel programmes into statutory obligations on those in a position to influence individuals who may be vulnerable to the propaganda of extremists.

Nevertheless there are parts of the Bill which smack of gesture politics and, as many other speakers have pointed out, which need clarification and improvement. The Government admitted in the House of Commons that judicial review of passport confiscation and supervised returns to this country needed further consideration in this House. So does parliamentary oversight of communications guidance to local and other authorities. As other speakers have pointed out, notably the noble Lord, Lord Judd, because there is such a narrow margin between free speech and censorship, there certainly should be parliamentary oversight of the guidance that is applied in these areas. However, if I may reassure the noble Lord, Lord Judd, my experience of universities suggests that those in higher education will not easily allow their academic freedom to be infringed.

There is also the vexed question of the Bill’s use of the term “temporary exclusion orders” when they are nothing of the kind. The term appears to have been adopted only to save the Prime Minister’s face when he unwisely said that,

“what we need is a targeted, discretionary power to allow us to exclude British nationals from the UK”.—[Official Report, Commons, 1/9/14; col. 26.]

Such a measure would be impracticable and contrary to international law.

I also have serious reservations about the proposed Privacy and Civil Liberties Board, which smacks of being a knee-jerk reaction to the revelations of Ed Snowden. Its purpose is nominally to support the Independent Reviewer of Terrorism Legislation, but it is all too likely to be a fifth wheel on his coach—a coach which, as steered by the present reviewer and his predecessor, appears to have been running satisfactorily without that support. It may well be unwise to rush through the establishment of a body of this sort in the few weeks before a general election without more consideration. I hope that the Government will at least wait for the imminent report of the ISC on privacy and security. I was very reassured by the suggestion—I think from the noble Lord, Lord Carlile—that the Government have indicated that they will not rush this body through in order to institute it before the general election. If the Minister could confirm that tonight I would be greatly reassured.

I should like to make one other point arising from last week’s speech by the director-general of the Security Service and the Prime Minister’s statement that if he is returned to office he will want to go ahead with the Communications Data Bill. In doing that, I am greatly reinforced by what was said by the noble Lord, Lord Carlile, and the noble Baroness, Lady Shields. In all the hubbub about this matter, sight seems to have been lost of the fact that what these proposals involve is simply the retention of records of communications—not even retention by the Government, but retention by the providers. What that would allow is properly authorised access by the law enforcement agencies only to the communications of those whom they have reasonable grounds of suspecting as meaning to do us harm. When that is properly understood, it seems to me much less objectionable than some have represented.

That is a debate for another day. Meanwhile, as so many speakers have said, there is a considerable amount of work for your Lordships’ House to do on this Bill. Subject to those points, I support the Bill.

Data Retention and Investigatory Powers Bill

Lord Butler of Brockwell Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Taylor of Holbeach]

I am sorry but I have to ask the noble Lord to read in Hansard what I have just said if he fails to be convinced as to why the Government are legislating now. I will leave it at that because I do not suppose that I will convince him on the principle, whatever I say.

[Lord Butler of Brockwell (CB)]

My Lords, I rise in defence of the Minister because the Intelligence and Security Committee discussed this point with the director of GCHQ on Tuesday morning in the short time available. There have been developments since 2012 that have affected the attitude of the providers—for example, the activities of Mr Snowden. The committee was satisfied that there is a serious risk of loss of visibility of people who ought to be under observation and that the Government’s arguments that this is an urgent matter were justified.

[Baroness Smith of Basildon (Lab)]

My Lords, I rise briefly because I think that perhaps my noble friend Lord Davies has been misunderstood. I do not think that he doubts for one instant the emergency situation that necessitates this legislation. His argument is that the Government could have acted sooner. I will not enter into a debate as we had a long debate yesterday, but it remains our contention that the Government could have acted sooner on this issue. But there is a time imperative now on this legislation.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, having supported the Minister on the point made by the noble Lord, Lord Davies, may I now say to him that he is being unnecessarily negative about this? He has explained why he thinks the amendment is unnecessary, but he has not explained what the positive arguments are against it. It seems to me that it can only be helpful. Unless there is some positive reason for rejecting the amendment, I would urge him to consider again before Report. The problem is that we cannot repeat this amendment exactly on Report, and it would be difficult to improve on the wording already suggested by the noble and learned Lord, Lord Hope. I ask the Minister whether he could consider again the idea that this amendment is designed to be very helpful to the Government. The fact that it may not, in the Government’s view, be strictly necessary, does not seem to me a convincing argument as to why it should be rejected.

[Lord Armstrong of Ilminster (CB)]

My Lords, we are talking about what the Secretary of State considers. I wonder whether the difficulty could be resolved if the Minister were to state formally, on the record in Hansard, that the Secretary of State must consider that,

“for objective reasons the requirement is strictly”

necessary.

--- Later in debate ---

[Lord West of Spithead]

My Lords, the noble Lord, Lord Phillips, spoke to me before the debate to ask if I would be supporting this amendment, so I have thought about it in some depth, and the answer is that I cannot. I am very supportive of my noble friend Lord Rooker’s comments. What he said about that toxic word “snooper” is exactly what I said in my speech yesterday at Second Reading. It is a very bad and emotive term, for the reasons that I gave then. I support a number of the other things that my noble friend said as well.

Both Houses are clearly in accord that the maintenance of these powers is critical for the safety and security of our people. Removing this provision before something has replaced it is an absolute nonsense. Having been involved over a number of years in this sort of legislation and this sort of work, it is clear to me that, in reviewing something like RIPA, if we are to do it properly, there is no way that we can achieve something in place of this provision in such a short time, because it will be removed. As the noble Lord, Lord Carlile, mentioned, it will have gone before we could do it. Actually, it will be tight to achieve it even by December 2016. We need to do a proper review. We will need something like a new communications data Bill. We so nearly got one before political shenanigans stopped it happening, but we need to look at this and go into great detail in reviewing RIPA. All this has to be done. It is extremely dangerous to try to shorten these timescales. It would be a dreadful mistake to make it any earlier than December 2016.

[Lord Butler of Brockwell]

My Lords, having supported the Minister in response to the noble Lord, Lord Davies, and having criticised him in response to the noble and learned Lord, Lord Hope, in this case I support the Government and agree with those who oppose this amendment.

If we pass this amendment we would find ourselves in exactly the same danger as we are with the provision of this Bill. We would be presented with a Bill in the latter part of 2016 that would be very urgent and the House would have inadequate time to consider. Although two and half years seems a long time, let us consider what is going to happen in the mean time. The independent reviewer of terrorism legislation has been asked to carry out a thorough review of the RIPA legislation. I understand that his timetable is to try to complete that by the time of the Dissolution of this Parliament, by May of next year.

The Intelligence and Security Committee is similarly carrying out a review. This autumn we plan to have public hearings where those who are critical of the legislation can have their say. I hope that that will generate a public debate and allow these issues to be widely discussed; that will be very valuable. We also hope to reach a conclusion by the end of the Parliament. Indeed, we had better, because there will be a new committee after that. The election will be in May of next year. The new Government will come in with quite a short time before the Summer Recess, when there will be other urgent things to do. It has been suggested that there should be a Joint Committee of the two Houses to look at the conclusions of the reviewer of terrorism legislation, and those of the Intelligence and Security Committee. It will want to have time to consider that. It really will not be practicable to reach a position where properly considered legislation can be introduced until we are well into 2016.

Two and a half years may seem a long time, but when one considers that those are the sensible and necessary steps before legislation is introduced and passed, it follows that the end of 2016 really is the earliest possible date when we can expect to have properly considered and satisfactory legislation in place of the Bill that we are passing today.

[The Earl of Erroll (CB)]

My Lords, I have not intervened earlier because I have been doing lots of other things, but I wanted to intervene on this amendment and say that I think that this is a sensible approach. I cannot believe that you can produce this Bill within a couple of weeks and then say that we cannot do something better in a year and a half. It seems that we are trying just to push the boundaries out, and the question is why. It tends to be the people who can see the challenges, who come from a senior executive background, who are trying to get this sorted out, and I can see their point.

We need to consider some of the principles behind the amendment, which is why I fully support it, and we need to discuss those principles very early on. The issue is not the technicalities in the Bill, the definitions of communication data and metadata; we know that we need to do this for the purposes of finding terrorists, enforcing the law and stuff like that. The real challenge is posed by that old bit of Latin—which I might as well use, as we are now using Latin—sed quis custodiet ipsos custodes? Who watches the watchers? Who guards the guardians? We should remember the line that is supposed to come after that, which I will say in English: they keep quiet about the girl’s secrets and get her as their payment. Everyone hushes things up. That is the trouble. If corruption runs high enough, you get the Cambridge set—was it four or five by the end of it all? You get J Edgar Hoover.

That sounds as if I am painting a hugely black picture, but there is danger there, even more so now that we have rolled together—for the purpose of catching terrorists and people in serious and organised crime, which we have had to do—what used to be our external forces, GCHQ and MI6, responsible to the Foreign Office, and our internal police, which was MI5 and is now basically the NCA. In America the CIA and the FBI were kept separate. We have started to bring our forces together because of things falling between the cracks. This means that we are potentially giving huge powers to internal police. Therefore, how those at the top are to be watched is of vital importance.

Data Retention and Investigatory Powers Bill

Lord Butler of Brockwell Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I should say at the outset that I am satisfied that the Government need the legislation before the House today. But like the noble Baroness, Lady Smith of Basildon, and others, I am very critical of the way in which Parliament has been treated on this matter. Taken with the subject discussed in the Private Notice Question earlier, this is a bad day for the relationship between Government and Parliament.

The Intelligence and Security Committee, on which the noble Marquess, Lord Lothian, and I represent this House, was warned a week ago today—last Wednesday, the day before the Home Secretary’s Statement—that this emergency legislation was to be introduced. The imminence of that Statement was widely reported in the next morning’s media, ahead of the Home Secretary’s Statement, so it appears that the media were briefed at the same time.

Why has Parliament been given so little time to consider this Bill? The two issues that it addresses have been apparent for weeks, indeed months. The ruling of the European Court of Justice was issued on 8 April. It was clear from that moment that the regulations that the intelligence agencies and the police in the United Kingdom use to seek details of communications from providers had become vulnerable to challenge. So the need for action, which this Bill addresses, has been known about for three months.

The second issue that the Bill addresses is the assertion that powers to require data from providers abroad have extraterritorial effect. But several of the communications providers based outside the United Kingdom have made no secret of the fact that they are willing to respond to requests for communications data only if they are required to do so by legislation. There is nothing new in that. Nor did it only become apparent last week that some of the major providers were based outside United Kingdom jurisdiction, or were about to move there. That, again, has been known for a long time.

The House may remember that following the Home Secretary’s Statement last week, which the Minister repeated, I raised this issue with him. He gave me a reply that at the time seemed good to me. However, on reflection, I find that I am not persuaded by it. The Minister explained that the delay between the ECJ judgment and the announcement of this legislation was due to the fact that the Government had been working with the law enforcement agencies and the data providers to get the details right. That is very understandable. Therefore the Government were discussing this problem with Microsoft, Yahoo! and other providers. Why were they not willing to discuss the issue similarly with Select Committees of Parliament when they were already discussing it outside the House? If the Government could reach a conclusion about the necessity for this legislation one week before the House of Commons went into recess, it beggars belief that they could not have reached that conclusion three weeks before the Recess, thus giving Parliament proper time to consider the Bill.

In 2012, when faced with the growing difficulty of getting access to communications data, the Government published a draft communications data Bill, as the House will remember. That Bill provided for a substantial extension of the Government’s powers, and the Government, very properly, provided the opportunity for a Joint Committee of both Houses and the Intelligence and Security Committee to examine the Bill and report on it. Both committees made some criticisms of the draft Bill, and the coalition decided not to go ahead with it as a result of the reservations of the Liberal Democrat members of the coalition. Unlike that Bill, this Bill does not break new ground, so the Government’s failure to give Parliament longer notice of it and enable Parliament to satisfy itself about its details is more difficult to explain. Those who take a conspiracy view of government might be tempted to speculate that having burned their fingers through consultation on the communications data Bill, the Government thought it wiser to bounce Parliament rather than to run the same risk again. The Minister owes the House an explanation of that.

I criticised the Government for their delay in consulting Parliament about the Bill. I have also asked myself whether the Bill is so urgent that it has to be treated as emergency legislation in the few days remaining before the Summer Recess. On this I believe the Government have a more convincing story to tell. I understand that the Government take the view that the UK regulations based on the European directive do not automatically lapse as a result of the ECJ judgment. One might therefore take the view that it could be several months before they could be challenged in a UK court, which would enable Parliament to consider the Bill properly in the autumn. However, I am advised that following the ECJ judgment, and ahead of a challenge, communications providers might feel obliged to destroy data that are no longer needed for their own operational purposes, and that evidence valuable for the prosecution of crime or prevention of terrorism might be lost. Similarly, the co-operation of communications providers outside the jurisdiction is sufficiently valuable in the prevention of serious crime and terrorism that I accept that the assertion of extraterritorial coverage should not be delayed. Therefore on the substance of the legislation, as I said at the outset, the powers in the Bill are necessary, subject always to the reservation that there has not been time to study its provisions in the detail that would have been desirable.

When the Intelligence and Security Committee examined the communications data Bill, which extended the Government’s powers, we were satisfied with the case in principle for extended powers, subject to important issues of detail. Although our committee has not had as much opportunity as it would have wished to examine the present Bill, it would be odd to cavil at the maintenance of existing powers which have been shown to be very important for the investigation and prevention of serious crime. Therefore, with regret that the Government have not given Parliament the time to examine the Bill properly in detail, I support the legislation.

Communications Data and Interception

Lord Butler of Brockwell Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Taylor of Holbeach]

Yes. I think that sometimes the arguments become focused on particular issues. I agree with the noble Baroness. I know that she speaks from experience and I am grateful for her support. There is an important communications exercise in making sure that people realise why we are involved in the fight against crime and the fight against sexual exploitation. These are all factors in our need to have this capability. I am grateful for the noble Baroness’s support.

[Lord Butler of Brockwell (CB)]

My Lords, I know that the Intelligence and Security Committee, of which I am a member, will now look at this legislation very urgently, as is necessary. However, that committee has to deal all the time with highly classified matters. Does the Minister agree that it would have made the task of the committee easier, and its task of advising the two Houses easier, if the Government had consulted the committee at an earlier stage?

[Lord Taylor of Holbeach]

Had that been possible, it might have been done. Clearly, the Bill is a complicated piece of legislation and getting it right has not been easy. I think the noble Lord will understand the background against which the Bill will be presented to the House of Commons and to your Lordships’ House. In such circumstances, it was important that the Government got their own position right first. Having done that, we are very grateful for the scrutiny and advice that we will receive from the Intelligence and Security Committee.

Intelligence and Security Committee: Annual Report 2011-12

Lord Butler of Brockwell Excerpts

Monday 21st January 2013 Grand Committee

[Lord Butler of Brockwell]

My Lords, it has been a privilege to serve for a second year as one of your Lordships’ two representatives on the parliamentary Intelligence and Security Committee, along with the noble Marquess, Lord Lothian.

The intelligence and security agencies of the state continue to have a high profile in government. New requirements and threats arise, which the intelligence agencies have a vital role in addressing. As the noble Marquess, Lord Lothian, said, technology develops very fast, providing new tools both for the agencies and for those who threaten us. New issues arise in striking the balance between transparency and secrecy, and between the effectiveness of the agencies, on the one hand, and the freedom of individuals on the other. It is evidence of the prominence of these issues that a major element of the programme of this parliamentary Session is the Justice and Security Bill as well as pre-legislative scrutiny of the proposed legislation to require mobile telephone and internet providers to retain data for the use of the intelligence and law enforcement agencies. The Intelligence and Security Committee has been, and is, closely involved in all these matters.

As the ability of the state to intrude on the privacy of citizens has increased over the years, so successive Governments and Parliament have rightly put in place means of scrutinising the activities of the agencies to provide protection against abuse. Since the activities of the agencies have to be conducted in secrecy if they are to be effective, so the scrutineers on behalf of the public have to be admitted within the ring of secrecy. What is more, if the public are to have confidence that they will have effective protection, they also have to have confidence in the independence and integrity of the scrutineers.

Our legislation gives judges the duty to enter the ring of secrecy and ensure that the intelligence agencies are operating within the constraints of the law. Since 1994 it has given the parliamentary Intelligence and Security Committee the duty of exercising a more general scrutiny on behalf of the public and Parliament. The judicial commissioners—and we have two very distinguished former commissioners present today—have carried the confidence of the public. However, the Intelligence and Security Committee has appeared to be the creation of the Government and, because it operates within highly constraining legislation, it has carried less public confidence.

I believe that this criticism of the committee has been largely unfair. Although the ISC has not had the power to require information from the agencies, the track record of the committee in protecting secrecy has given the agencies increasing confidence to provide information fully and frankly to the committee. The committee’s scrutiny has extended well beyond the limits of policy, administration and expenditure—which were the limits on it set out in the 1994 legislation. In the Justice and Security Bill now before Parliament, the legislation is catching up with reality and carrying it forward by making the committee more genuinely a committee of Parliament and by giving it the power to require information from the agencies and not just request it.

Of the matters which the committee has examined this year and which are covered in the annual report, there are many which have had a high salience in public consciousness. Perhaps chief among these, as the noble Marquess, Lord Lothian, and the noble Baroness, Lady Hamwee, said, was the role of the agencies, police and Army in protecting the security of the Olympic Games, or perhaps I should say the security of the nation during the Olympic Games. Like others, the committee was worried last year that the Games would necessarily be such a preoccupation of the security agencies that they would open the way to attacks elsewhere. In the event, the actions which the agencies took to pre-empt and deter attacks were so effective that the efforts directly devoted to the Games themselves, although large, did not drain other areas of the resource to the extent feared, and protection in those areas remained in place. Overall, I echo the comments of others that that aspect of the Games, like other aspects, was a spectacular success.

Overseas, the greatest challenge to the agencies, in addition to the ongoing requirement to support our Armed Forces in Afghanistan and to monitor the breeding grounds of al-Qaeda terrorism, was the upheaval created by the Arab spring. As the noble Marquess, Lord Lothian, and the noble Baroness, Lady Hamwee, pointed out, recent events in Mali and Algeria have tragically demonstrated that overseas eruptions of this sort, even when they occur in areas known to be volcanic, are often unpredicted—and perhaps unpredictable—by intelligence, but they create a requirement for urgent action to catch up with events. The fact that such unexpected events have happened at various times in our history emphasises the need for the agencies to maintain at least some capacity in all areas where British interests are involved. Of all the agencies, GCHQ has the potential flexibility to respond quickly in such situations, and overall the committee was impressed by the rapidity and effectiveness of the response that it and the Defence Intelligence Service were able to make to the events in Libya.

Another area where the Government have been devoting substantial effort—and need to do so—is cybersecurity, as has already been mentioned. The committee has been monitoring the way in which the Government have been using the £650 million they devoted to the National Cyber Security Programme in the most recent public expenditure settlement. It appears that the publicity given to this issue, not least by the welcome initiative of the Foreign Secretary in holding the London Conference on Cyberspace in November 2011, has been effective in drawing attention to the danger that this form of espionage presents to the UK and in alerting companies to the need to take action to protect their commercial interests. Much more needs to be done, but within Government there are still only hand-to-mouth arrangements for funding the protective action necessary and the committee has had to repeat the recommendation it made last year that a more stable long-term funding mechanism is needed for this vital work.

Because of my personal background, I have taken a particular interest in the ISC’s work in looking at how the central machinery for handling and using intelligence has been developing. I think it is generally accepted that the establishment of the National Security Council, bringing the heads of the agencies to the top table with senior Ministers in planning the UK’s defence and security priorities, is a welcome development. I follow the noble Marquess, Lord Lothian, and the noble Baroness, Lady Hamwee, in saying that it also has its dangers, by bringing the purveyors of intelligence directly into contact with senior policymakers without the sieving mechanism that the country so wisely put in place in the form of the assessment staff and the Joint Intelligence Committee. It risks bringing the intelligence moths too close to the policy-making flame. That risk was increased by the fact that the operations of the Joint Intelligence Committee had become, as the National Security Adviser himself admitted to the ISC, a little “stately and formal”.

In this fast moving situation, particularly when British troops are engaged in active military operations, it is all the more important that policymakers have the use of immediate—but properly assessed—intelligence: the very purpose for which the Joint Intelligence Committee was established in the Second World War. It is therefore welcome that the new chairman of the JIC, Jon Day, who has extensive experience of assessment, has taken steps to make the assessment machinery more fleet-footed in meeting the day-to-day needs of senior Ministers, as well as producing longer-term assessments to meet the requirements of the NSC.

I will end with two more general remarks. First, it is striking how much the challenge of dealing with internationally based terrorism has had the effect of requiring all the agencies to work more closely together, as the noble Baroness, Lady Hamwee, noted. The work of detecting and pre-empting al-Qaeda attacks on the British homeland requires the co-operation of the Security Service, SIS and GCHQ as well as the police and, in some cases, military assets. I believe that they have responded to the challenge very well.

It would be idle to deny that tensions occasionally arise between the services, but on the whole they are rare. Would it be better if we had a unified intelligence service to deal with these interrelated threats? The noble Baroness, Lady Hamwee, hinted at this question. I think that the answer is no. As things are, each of our agencies and services brings to bear its own skills, traditions and roles, which are separate. As long as they work closely together, and the ISC both monitors and encourages the agencies in that area, they are more effective as a partnership than as a single entity.

That brings me to another point. Intelligence work has always raised ethical issues, and again the noble Baroness, Lady Hamwee, referred to these, but modern intelligence work, requiring extensive international co-operation, raises such issues acutely. Our intelligence and security agencies find themselves from time to time working with uncomfortable bedfellows. As the de Silva report brought out clearly in the Finucane case, agents who penetrate terrorist organisations inevitably sail close to the wind. But working with other Governments also brings our agencies into co-operation with those who may have different standards and different methods. It is therefore essential, as the noble Baroness, Lady Hamwee, said, that our agencies have clear guidelines about boundaries which they should not cross. I believe that the agencies and Ministers have given much attention in recent years to creating such guidelines. However, it would be foolish not to recognise that difficulties will sometimes arise, for example, when a partner at one moment turns out to be a rogue at another. This is just one of the many risks that members of our agencies and security forces have to run. In general, what I have seen as a member of the ISC and previously reassures me that we can have confidence in the ethical standards to which our agencies and security forces seek to operate.

The world in which we are living has all sorts of instabilities and dangers that are made greater by the power of technology in creating new and ever more potent threats. It is the job of our intelligence and security agencies to defend us against them without crossing lines that would infringe the very liberties they are there to protect. They have continuously to make hard decisions about priorities in using resources, and those resources are necessarily limited. The agencies welcome the scrutiny to which they are subjected because they know that it helps to keep them honest and defends them against criticisms which are unfounded or unjust. I believe that the Intelligence and Security Committee and the commissioners are necessary to that scrutiny and I am proud to take part in that work. I endorse everything the noble Marquess, Lord Lothian, has said about the contribution of the staff of the ISC and the need to give them the necessary resources as the committee’s work expands. I am very glad to support the noble Marquess in his Motion that the House takes note of the committee’s report.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Monday 19th November 2012 Lords Chamber

It is only too easy to challenge these matters in the courts—as we have experienced over the years. We all agree that the ISC needs the protection of privilege. The issue is how we do it. I appeal to the House that if we are to do it, we should do it properly. I fear that there will be a last-minute attempt, on a whipped vote in the Commons, perhaps on a Thursday afternoon when they have all gone home, to graft on to the Bill some statutory provisions covering privilege, or some means of protecting the ISC. All that will do is lead to future problems in the courts. Let us sort this out here today. I beg to move.

[Lord Butler of Brockwell]

My Lords, the Intelligence and Security Committee has considered very carefully the amendments tabled by the noble Lord, Lord Campbell-Savours, to which the Opposition have given their support. As he said, they have some advantages. The committee is as enthusiastic as anybody about displaying the fact that it is a servant of Parliament and not just of the Executive. As the noble Lord said, if the committee were to become a Select Committee, that would automatically confer the protections that it needs to protect its proceedings in the interests of national security. However, I regret that, for reasons that I will explain, we cannot recommend that the House goes down the avenue that the noble Lord has recommended. We believe that the objectives can be achieved in other ways.

There is no difference in the House about the requirements that we need. We want to demonstrate that the Intelligence and Security Committee is a servant of Parliament. We all agree that on most occasions its evidence will need to be taken in private. We all agree that there will have to be safeguards in relation to appointments to the committee, and that both the evidence and the witnesses need protection from judicial intrusion or from the Freedom of Information Act 2000. There must also be safeguards against the committee inadvertently compromising national security in its published reports. There is no difference between us on any of these matters. The only question is how they should be achieved.

The noble Lord, Lord Campbell-Savours, would like the committee to become a Select Committee of Parliament, which would automatically confer privilege. He also wants the safeguards that I mentioned to be protected and conferred by parliamentary resolution. Safeguards secured by such resolution would confer privilege but would not automatically protect the proceedings of the committee from the Freedom of Information Act. As I understand it, if such protection from a Freedom of Information Act request is to be given, it has to be considered by, and depends on a certificate from, the Speaker. I see that the noble Lord is nodding his head at that.

That illustrates the difficulty. The noble Lord is recommending that the safeguards for national security in the proceedings of the Intelligence and Security Committee would no longer be a matter for the Executive but would be protected by a resolution of Parliament. In other words, responsibility for protecting national security would be transferred to Parliament, but I submit to the House that that is objectionable in principle. The Executive cannot surrender their responsibility for protecting the work of the intelligence agencies and national security. That, in the last resort, must be a matter for the Government. That is the fundamental objection to the noble Lord’s proposal.

There is another objection. There can be circumstances in which the Government ask the Intelligence and Security Committee to inquire into a very secret matter in order to satisfy the Government that the intelligence agencies have not been behaving wrongly. That is not something that a Select Committee could be used for. That sort of secret request, where something needs to be looked at in confidence, is not something that the Executive could require a Select Committee to do on their behalf. The Intelligence and Security Committee simply would not be able to fulfil the functions that it needed to fulfil if it became a Select Committee of Parliament. I say that with regret, because there are many advantages to that route.

The noble Lord made a big point of saying that to proceed by way of giving the Intelligence and Security Committee—a committee created by statute—parliamentary privilege has disadvantages. I acknowledge that. When it comes to my amendment, which seeks to confer the advantages of privilege on the Intelligence and Security Committee, I acknowledge that point and I will not be pressing that way of doing things. But of course it is perfectly possible, and indeed more desirable, to put those protections in the Bill without any reference to parliamentary privilege at all. That would overcome the objections that the noble Lord has legitimately raised. I suggest to the House that that is the better route.

For those reasons, I regret that I and my noble friend Lord Lothian, who regrets that he cannot be here today, and the Intelligence and Security Committee cannot advise the House to take the route that the noble Lord has proposed.

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Moved by

[Lord Butler of Brockwell]

2: Clause 1, page 1, line 5, after “Committee” insert “of Parliament”

[Lord Butler of Brockwell]

In moving Amendment 2, I wish to speak also to Amendment 4, with which it is grouped. I hope that I can deal with this group of amendments shortly because the Minister, rather unusually, dealt with them in his response to the previous group of amendments and asked me to withdraw them, which I will do.

However, if I have a complaint against the Government, it is that I moved these two amendments in Committee, seeking that the Intelligence and Security Committee should be described as the Intelligence and Security Committee of Parliament to emphasise its role as a servant of Parliament rather than as a servant of the Executive. I also moved Amendment 4 in Committee, which seeks to confer privilege on the committee. On that occasion the Minister—the noble Lord, Lord Henley—spoke sympathetically in response to both amendments, as, indeed, has the Minister today. The noble Lord, Lord Henley, said on 9 July, some four months ago:

“Noble Lords will understand from what I have said that there is a degree of sympathy for both amendments, and particularly the first, but more work needs to be done”.—[Official Report, 9/7/12; col. 918.]

Four months have passed and it seems that the Government have not done that work and reached a conclusion in amendments that they could put before the House today. That is a pity.

These are probing amendments. The Minister has said again that he is sympathetic to the addition of the words “of Parliament”. A more substantial issue is Amendment 4, which seeks to confer privilege on the Intelligence and Security Committee. As has come out in the earlier debate, there are genuine difficulties about that. I acknowledge that in response to the noble Lord, Lord Campbell-Savours. I understand that the clerks of the two Houses of Parliament see difficulty in extending parliamentary privilege in this way.

On behalf of the Intelligence and Security Committee, I want to make it clear that the safeguards that are provided by parliamentary privilege are essential—not parliamentary privilege itself. Provided those safeguards can be in the Bill—in other words, the protection of witnesses and the protection of the proceedings of the committee from judicial intrusion or the Freedom of Information Act—that is equally satisfactory. The noble Lord, Lord Campbell-Savours expressed some doubts about that and the Minister, in reply, said that there were aspects to be considered. It seems to me that it cannot be impossible for those protections to be provided statutorily in the Bill. Provided that is done, I would not seek, nor would the Intelligence and Security Committee seek, to press Amendment 4. I hope to hear from the Minister, if he does not mind repeating himself a little, that the Government will seek to provide those protections that the Intelligence and Security Committee needs in an alternative way from that of privilege. I beg to move.

[Lord Campbell-Savours]

I wish to intervene only very briefly, perhaps to rephrase the question about the ministerial certificate that I put during the course of my previous intervention. Is it true that the ministerial certificate could be overturned by a tribunal? Perhaps those in the Box can advise the Minister. If that is the case, it means that the responsibility has been transferred from the Executive to the tribunal, as against being transferred from the Executive to the Speaker. We should know whether that is the case.

If I am correct, the noble Lord, Lord Butler of Brockwell, is suggesting that somehow that to which I am referring could be dealt with in the legislation whereby there would not be a right to challenge a ministerial certificate, as is the case with a Speaker’s certificate. When he talked about judicial intervention, perhaps he was referring specifically to that. As I understand the freedom of information legislation, it is not possible for a challenge to be mounted against a certificate granted by the Speaker. That is why I always felt that it was far better that the Speaker had that role, because the Speaker of the House of Commons would always uphold national security. It is inconceivable that a Speaker could not be trusted in these circumstances. It seemed to be being suggested that because this power was being transferred from the Executive to Parliament, it was placing something in jeopardy. On the contrary, I should have thought that the Speaker of the House of Commons—whoever that might be at any stage, now or in the future—could be thoroughly relied on to be as secure as the intelligence services themselves in protecting national security.

In one of his amendments, the noble Lord seeks to add the words “of Parliament”. Where we have a committee set up outside of Parliament—at arm’s length—are we saying that, in order to make it look as if it represents Parliament in some way, we simply tag “of Parliament” onto the end to give it the imprimatur of Parliament? As a concept, it is ridiculous and it abuses the institution. What other organisations or statutory bodies of such notable importance are going to be set up with these words simply added onto the end in order to give them some extra credibility? I am opposed to an amendment of that nature.

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[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.

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[Lord Taylor of Holbeach]

My Lords, I have every confidence that a solution to the issues and challenges of providing the necessary protection will be found. However, I was not intending to use this debate to present those conclusions to Parliament. I am sure the noble Lord will look forward with interest to hearing them in due course.

I thank the noble Lord, Lord Butler of Brockwell, for tabling these amendments. I hope he will feel able to withdraw this amendment in the light of my reassurances on progress.

[Lord Butler of Brockwell]

My Lords, I am grateful to the Minister for his reply and to other noble Lords who have spoken in the debate. I wish to make two points. First, the noble Lord, Lord Campbell-Savours, is being a little unfair in describing the Intelligence and Security Committee, even in its present form, as detached from Parliament. We do not feel detached from Parliament and, certainly in the circumstances described by the Minister, when we are more closely appointed by and report to Parliament, we will be even less detached. So there is some point in adding the words “of Parliament”.

Secondly, the Minister raised a point about the certificate of exemption under the Freedom of Information Act. He said that a Minister’s decision can be challenged at a tribunal whereas, on his understanding, the Speaker’s certificate cannot, and so the committee would be safer in the hands of the Speaker than in the hands of the Minister. I had hoped, when he raised this point in the previous debate, that a lawyer would intervene and advise us. My understanding is that the Executive always has the last say on this. The Minister is quite right that a tribunal can overrule a Minister but, in the end, a Minister can overrule a tribunal. An example which the House will remember is the risk register on the Health Bill where, in the end, the Minister overruled the tribunal. My understanding is that a Minister always has the last word. I pause for a moment in case there is a lawyer in the House who can correct me but, if not, I offer that as my belief.

On the basis of what the Minister said and in the expectation that a solution can be found to providing the protections that the Intelligence and Security Committee needs other than by means of conferring parliamentary privilege, I am happy to withdraw the amendment.

Amendment 2 withdrawn.

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Moved by

[Lord Butler of Brockwell]

5: Clause 1, page 1, line 17, at end insert “and the Chair shall be remunerated in line with arrangements for Chairs of Departmental Select Committees of the House of Commons”

[Lord Butler of Brockwell]

My Lords, again I can speak quite briefly to the amendment, which provides that the chair of the Intelligence and Security Committee should be remunerated on a basis similar to that of chairs of Select Committees of the House of Commons.

I emphasise that the present chair of the Intelligence and Security Committee has not asked for this amendment to be brought forward. However, the members of the committee feel strongly that the chair has to do a large amount of work—as I am sure the noble Lord, Lord King, and the noble Baroness, Lady Taylor, also did—and that it is an anomaly that, whereas other Members of the House of Commons who are chairs of Select Committees receive remuneration, the chair of the Intelligence and Security Committee does not.

As I understand it, the Government’s position is that this is, in these days, a matter for IPSA. However, I hope that they will be willing to put this issue to IPSA with their recommendation that it should consider it sympathetically. If the Minister is prepared to go as far as that, my colleagues and I on the Intelligence and Security Committee will be happy not to press the amendment.

[Lord Campbell-Savours]

My Lords, I vigorously support this amendment because it has always been my view that the chairman should be remunerated. I served under the chairmanship of the noble Lord, Lord King of Bridgwater, and he should have been remunerated, as indeed should my noble friend Lady Taylor of Bolton. However, what worries me a little is that the matter is to be left to IPSA. That is a very controversial proposition to put, not because IPSA is as unpopular in the Commons as we know it to be, but why should an organisation established to deal with parliamentary allowances and expenditure be required to deal with the expenditure of an outside body? This is the first body, but are we to presume that in the future IPSA will extend its tentacles to managing the financial arrangements of more bodies that are established under statute? Is this the beginning of the growth of IPSA into something even larger than the current organisation which is causing so much grief to Members of Parliament? I simply put the question. If a mechanism is to be found, perhaps I may suggest that IPSA is not the ideal organisation to proceed with this responsibility.

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[Lord Taylor of Holbeach]

I am not at all doubting the value, for example, of the Public Accounts Committee, to which the noble Lord referred. However, it is up to this committee to decide whether to establish its own tradition. To predetermine its traditions, as suggested by the noble Lord, gives a false description of what “tradition” really represents.

I hope that the noble Lord will allow me to move on, because I was going to suggest another scenario: of course, there is no reason why the chairman of this committee should be a member of another place. It is a Joint Committee of both Houses, and although noble Lords may consider it unlikely that a Member of this House would be elected its chairman, that may indeed happen, and it probably would not be appropriate for the salary to be determined by IPSA in that respect. It would be a question of us seeking to resolve the issue should the occasion arise.

I understand what noble Lords and the noble Baroness are trying to achieve; that is, some sort of established practice within existing committee procedure. I have some sympathy with the argument. The ISC is an important committee, carrying out a very valuable oversight function, and the chairman of that committee has a critical role in that respect. However, deciding on the appropriate level of financial support for the chair of the ISC is very much a matter for existing mechanisms within the two Houses and would be best resolved in that way. It is for Members of the House of Commons and, for Peers, the House Committee to resolve this issue, not the Government. I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Butler of Brockwell]

My Lords, on the basis that Members of your Lordships’ House receive no remuneration for being chairs of Select Committees, I am happy to have removed any incentive to run for this position. On the basis that it would be within the power of the House of Commons to move a resolution referring this to IPSA, and that the Government would give a favourable recommendation and support that matter, I am happy to withdraw the amendment.

Amendment 5 withdrawn.

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[Baroness Hamwee]

My Lords, no, but I am aware of that. I am seeking to push the boundaries a little further. The noble Lord tuts quietly that I have not been there. Last year, I read the Hansard report when I began to take an interest in these matters. I sense a feeling that this would enhance the reputation of the Intelligence and Security Committee. Amendment 11 would be a broader arrangement than could take place in a debate in either House, whatever its venue, given that it provides for giving evidence before the ISC in a session open to the public. Therefore, it is more extensive.

I am very much alive to the danger to which some noble Lords pointed that questions asked in public can be so feeble, as can the answers, that it can have the opposite effect of just appearing to be completely stage managed and uninformative. I believe that we should give the ISC the scope to do the job that it is doing, and is capable of doing, in private to take it as far as it can go.

I have tabled Amendment 12 about access to meetings and I am aware that I take a different view on this from a number of other noble Lords. That is not because I want all or very many meetings with the ISC to be held in public. My point is that it should direct its mind to the issue. At the previous stage, from those with experience of the current arrangements, we heard ideas of what might be considered in public. Those ideas included recruitment to the agencies, issues of diversity, language, and recruitment from all sections of society. I would add to that retention, which generally goes along with recruitment, and a number of human resources matters, such as sickness rates and diversity at different levels of seniority. The noble Lord, Lord Butler of Brockwell, told us that today the ISC had been considering certain of these amendments. It might have been quite interesting to hear some of that debate in public. As regards financial matters, the cost of the GCHQ facility was mentioned.

All those issues quite properly can be debated, with care that the mark into dangerous territory is not overstepped. I have confidence that that would be possible and that those debating the issues would be very alert to that. However, it also would be proper that issues of that sort—I am sure that there are others—should be heard and dealt with in public to add to the credibility of the committee. I beg to move.

[Lord Butler of Brockwell]

My Lords, commenting on what the noble Baroness, Lady Hamwee, said at the end of her remarks, perhaps I may say that it was not today that the Intelligence and Security Committee considered amendments. The committee has not had the opportunity to consider the amendments she has put down. Therefore, in offering a comment, it will be personal rather than on behalf of the committee.

I have no objection to Amendment 9 because it is a permissive amendment. However, Amendment 11 states:

“The ISC shall each year call the heads of the Agencies and the Secretary of State to give evidence before them in a session open to the public”.

In principle, there is no objection to that. Indeed, the chairman of the Intelligence and Security Committee says that it is the committee’s intention to have a public hearing. The arrangements for that are being considered at the moment. However, one would not want this to be a public hearing that is too staged, which would be worse than useless. I would counsel against passing an amendment which makes it compulsory for the Intelligence and Security Committee to have a public meeting each year. That may well be the outcome but there may be times when the work programme simply is not consistent with it. That is my only cavil against that.

I would not be in favour of Amendment 12, which states that the committee,

“shall conduct its proceedings in public, save when it determines that members of the public shall be excluded”.

There would be so many meetings for which that resolution would have to be moved that it would be a matter of public comment and derision, which would reduce confidence in the ISC rather than increase it.

[Lord Foulkes of Cumnock]

My Lords, I have made a mental note never to tut tut silently in future, especially since that silent tut tutting can be observed by noble Baronesses even about 10 yards away. So I will be careful. The reason why I asked whether the noble Baroness, Lady Hamwee, had been able to attend the debates that we have had in the Moses Room is because, when I served, as I did for four years, on the Intelligence and Security Committee, I had the privilege of introducing and replying to those debates. We had great difficulty in encouraging people to attend and participate. If more Members of the House had attended and participated, it might have added to the information available in the debates that we have had at different stages.

A few years ago, when we had a Labour Government, before the Conservative Government came in, the Intelligence and Security Committee reported to the House on almost all, if not all, the issues that the noble Baroness, Lady Hamwee, has raised—on diversity and all the other points that she raised. We had indications and reports about it, and people raised it during the course of the debate. Even all those years ago, we discussed holding hearings in public; we discussed that in the debate in the Moses Room, along with the problems and opportunities that might be available if we held them in public. I hope that I am not giving any secrets away in saying this, but I was in favour of moving towards holding a meeting or two in public if we could do that. It is the right thing to do.

It would help and inform the debates that we have on legislation if Members came along to the annual debate. I presume that either the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler, will introduce the report and reply to the debate. Noble Lords would find it a very interesting and educational experience.

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Moved by

[Lord Butler of Brockwell]

13: Schedule 1, page 14, line 31, leave out paragraph (b)

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, Amendment 13 stands in my name and in the name of my colleague, the noble Marquess, Lord Lothian. I move it only to give the Minister the opportunity to move government Amendment 14. Amendment 13 seeks to leave out paragraph 3(3)(b) of the schedule which states that a Minister may decide that information should not be disclosed if,

“it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.

This was rather a wide power for the Government to withhold information from the Intelligence and Security Committee.

Since that amendment was tabled, the Government have tabled an amendment making it clear that, in exercising this power, the Minister must be guided by regard to what are known as the Osmotherly rules—that is, the normal rules about what a civil servant can disclose to a Select Committee. My colleagues on the Intelligence and Security Committee and I are content with that limitation of this power. I beg to move.

[The Deputy Speaker (Lord Geddes)]

I believe that the noble Lord will now want to withdraw the amendment.

[Lord Butler of Brockwell]

My Lords, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

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[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.

[Baroness Smith of Basildon]

My Lords, I should like to test the opinion of the House.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Monday 9th July 2012 Lords Chamber

Moved by

[Lord Butler of Brockwell]

24: Schedule 1, page 14, line 31, leave out paragraph (b)

[Lord Butler of Brockwell]

My Lords, this is a probing amendment. Before the dinner break, we were discussing the circumstances in which information might be withheld from the Intelligence and Security Committee on grounds of national security. Paragraph 3(3)(b) refers to the withholding of information other than on grounds of national security, and the purpose of the amendment is to inquire of the Minister what sort of other information this sub-paragraph has in mind.

A characteristic of the Intelligence and Security Committee is that the agencies convey to it a good deal of information which would not be confided to a normal Select Committee. The ISC would be dismayed if that practice were to cease because this provision was in the Act. Therefore, I ask the Minister to give an example or examples of the sort of information that this sub-paragraph is included in the Bill in order to protect. If the box were empty, it would be a pity to have it in the Bill—indeed, doing so would make it poor legislation. However, if the Government have in mind information other than security information which should not be confided to the Intelligence and Security Committee, I know that the ISC would be very happy to consider that point.

[The Marquess of Lothian]

My Lords, I wish to add briefly to what the noble Lord, Lord Butler of Brockwell, has said. I am puzzled by this sub-paragraph because it does not say “information other than national security”; it says,

“not limited to national security”.

That suggests that anything that cannot be allowed to go to another Select Committee should not be given to the Intelligence and Security Committee. We debated earlier why the ISC should not be a Select Committee, and one reason is so that it can receive information which cannot be passed to an ordinary Select Committee. It may be that this provision is very well meaning and that it touches on advice given to Ministers or on other matters where I think we would all accept there have to be limitations. However, I wonder whether the draftsman has this slightly wrong. One reason for asking for the sub-paragraph to be deleted is in the hope that the Minister, along with the draftsman, will look at it again and come back with something which meets what I think the sub-paragraph is trying to achieve in meaning but which it does not achieve at the moment.

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[Lord Thomas of Gresford]

As the noble Lord, Lord Henley, was speaking I wondered whether the word, “proper” is supposed to mean “contrary to convention”. It would be impossible to have a convention across all departments where there are Select Committees so it was conventional in one department to release this information but it might be conventional in another to release more or less. It would be almost impossible to get a standard of disclosure of information across the board which it is proper to disclose. I am very grateful for what the Minister has said on that issue.

[Lord Butler of Brockwell]

I am grateful to the Minister for saying that he will, with counsel, look at the drafting of this again, because it is clear from the contributions that were made to the debate that many of us do not understand entirely what is meant. I do, indeed, remember the Osmotherley Rules very well. I did not draft them myself—not surprisingly they were drafted by an official called Edward Osmotherley—but I do remember invoking them before Select Committees on various occasions and I do recognise as valid categories the categories that the Minister has mentioned. However, I think that the noble Lords, Lord Lester and Lord Thomas, have a good point when they say that, as drafted, this appears to be entirely subjective on the part of the Minister and the Minister, under this power, would be able to withhold anything which in his opinion was not proper. The Osmotherley Rules were instructions from Ministers to officials, but were, I think, generally accepted by Select Committees—not always; they were sometimes challenged—and were certainly the rules by which officials were guided. They were known and became accepted. The way that this is drafted introduces a more subjective element.

On the basis that the Minister has said he will look at the drafting and also that he assured the House that it is intended that the Minister will use this discretion sparingly, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

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Moved by

[Lord Butler of Brockwell]

30: Clause 2, page 2, line 12, leave out from “as” to end of line 13

[Lord Butler of Brockwell]

My Lords, Amendments 30 and 32, in my name and that of my colleague the noble Marquess, Lord Lothian, raise substantial points.

Amendment 30 deals with the point where the Bill cannot mean what it presently says. I will read it out and that will be the best way of making it clear. Clause 2(3) states:

“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest”.

The Intelligence and Security Committee accepts entirely that those are the two categories of operation that the committee should—and does—normally look at. I note that the amendment tabled by the noble Lord, Lord Campbell-Savours, seeks to remove the ban on looking at any ongoing intelligence operation. The committee agrees that its oversight of operations should be retrospective and on matters “of significant national interest”.

However, the effect of the drafting is that when an operation “of significant national interest” is over, the agencies should have to get clearance from the Prime Minister as well as the ISC before discussing those matters with the committee. That is not only bureaucratically very intensive but a step backwards from what happens now. What happens now is that when an operation involving important matters is over, the intelligence agencies, of their own accord, report on it to the ISC, which looks into it and discusses it with them. The committee has had access to that sort of material for a number of years. In some cases the agencies volunteer it and in other cases the ISC asks to see it. I cannot believe that it is the intention in such cases, which have been routinely going on, that the Bill should require the Prime Minister to be consulted whenever the agencies wish to report such matters to the committee.

That having been said, the ISC is content that its normal purview should be of operations retrospectively where there are significant national interests. Amendment 32 would add a new subsection saying:

“The ISC may, notwithstanding subsection (3), consider any particular operational matter if the relevant Minister of the Crown agrees to the consideration of the matter”.

That is simply to give flexibility. As I said, there is no difference from the Government’s view that the purview should normally be retrospective. However, if it suited the Government that the committee should look at an ongoing security operation—this would be at the discretion of the Government—clearly it would be unfortunate if the Bill ruled that out. This is simply to allow flexibility on a matter where in general the committee and the Government are in agreement.

[The Marquess of Lothian]

If I may, I will quickly add a word to what the noble Lord, Lord Butler of Brockwell, said. He talked about this provision creating bureaucracy. In my view it could be worse. It could create an enormous logjam in Downing Street if every single item needed the consent of the Prime Minister. The danger then is that the logjam will continue to grow until you get to a stage where information that should have been looked at either will not be looked at or will be looked at so late in the day that it is not worth looking at.

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[Lord Henley]

My Lords, first, if there are any drafting concerns about this Bill, as I hope I made clear at an earlier stage, we will be more than happy to look at them. This is what this House does very well and the debates that we have been having this afternoon are indicative of that. We will take these points on board and the similar drafting points made by my noble friend Lord Lothian.

Secondly, I understand that the noble and learned Lord, Lord Lloyd, tried to table an amendment earlier today but I think that he missed the boat. I suppose that he could still have put down a manuscript amendment—fortunately, he decided not to—but he will come back to that in greater detail on Report. Certainly we will listen to his remarks in due course about the Security Commission, which he said that he chaired and which was later chaired by the noble and learned Baroness, Lady Butler-Sloss.

I hope that the Committee will bear with me if I explain in some detail just what we are trying to do and what we think is wrong with the amendments. I hope that noble Lords will also accept that, as I just said, we are more than happy to look at matters relating to drafting again, because we want to get this right.

The Bill extends the ISC’s statutory remit and makes clear its ability to oversee the operational work of the security and intelligence agencies. This is an important and significant change and will be key to ensuring that the ISC continues to perform an effective oversight role. With this formalisation of its role in oversight of operational matters, we would expect the new ISC to provide such oversight on a more regular basis.

In the Bill, the ISC may consider any particular operational matter, but only so far as the ISC and the Prime Minister are satisfied that the matter is not part of any ongoing intelligence or security operation and is of significant national interest. The ISC’s oversight in this area must be retrospective and should not involve, for instance, prior knowledge or approval of agency activity. Consideration of the matter must also be consistent with any principles set out in, or other provision made by, a memorandum of understanding. We will discuss that again in due course.

Of course, the ISC is not the only body that oversees the operational activity of the agencies. The Prime Minister has overall responsibility within government for intelligence and security matters and for the agencies. Day-to-day ministerial responsibility for the Security Service lies with the Home Secretary and, for the Secret Intelligence Service and GCHQ, with the Foreign Secretary. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service; similarly, the Foreign Secretary has his accountability.

The Intelligence Services Commissioner provides oversight of the use of a number of key investigatory techniques employed by the agencies and by members of Her Majesty’s forces and Ministry of Defence personnel outside Northern Ireland. The Interception of Communications Commissioner’s central function is to keep under review the issue of warrants for the interception of communications.

On Amendments 30, 31 and 32, the first amendment would have the effect of leaving it solely to the judgment of the ISC to decide when the criteria for considering a particular operational matter are met. The noble Lord, Lord Butler, is a current member of the Intelligence and Security Committee and, as such, speaks from a position of great knowledge. However, I hope that he would agree that the judgment as to whether an operational matter meets the criteria is one that should be for both the ISC and the Government and not just for one or the other. It is very important that we get this judgment right.

[Lord Butler of Brockwell]

It may be worth making the point that the amendment does not leave it solely to the judgment of the ISC; it just says, as a matter of fact, that the operation has concluded or is of national significance. So it would not just be the ISC that decided that—it would be the fact. If I may say so, the Minister misunderstands the purpose of the amendment.

[Lord Henley]

I apologise to that extent if I have misunderstood what the noble Lord was getting at in his amendment and I hope that I did not mislead the House in so doing. The Government’s intention, on that memorandum of understanding, which has to be agreed by the Government and the ISC, is that it will be the appropriate vehicle for agreeing the process to ensure that the information is provided to the committee in an appropriately prompt manner.

The amendment in the name of the noble Lord, Lord Campbell-Savours, would remove one of the key restrictions on the ISC’s new power to oversee agency operations, namely the requirement that its oversight of operations should be retrospective. The extension in the Bill of the ISC’s statutory remit into the agencies’ operational work is a significant deepening of the committee’s powers. While the ISC has in the past conducted inquiries into operational matters with the agreement of the Prime Minister, such as its inquiries into the London bombings of 7 July 2005 and into rendition, the provisions in the Bill provide a formal remit for the committee in this area. We anticipate that the new ISC will provide such oversight on a more regular basis.

We have worked with the current ISC to develop the new arrangements, and the committee agrees with the Government that its oversight of operations should be retrospective in nature. In other words, the ISC should not oversee operations that are ongoing. There are a number of very good reasons for this.

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[Lord Henley]

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

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

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

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

[Lord Butler of Brockwell]

My Lords, I am grateful to the Minister and to other noble Lords who have taken part in this debate. It has brought to light matters that need to be clarified before Report. I emphasise again—and I apologise for rudely interrupting the Minister—that there is no difference between the ISC and the Government on what the committee’s purview should be. The ISC accepts that its purview should normally be retrospective and that it should be confined to matters of significant national interest. What is new about the way the clause is drafted is the interpolation of the Prime Minister in deciding that that is the case. That is unnecessary, and as my colleague, the noble Marquess, Lord Lothian, said, it would produce the most tremendous logjam and would be a backward step from where we are now. That is the only difference, but I hope that that issue can be looked at again.

If I may say so, the discussion on the amendment of the noble Lord, Lord Campbell-Savours, brings out the ambiguity of the word “operations”. As the noble Baroness, Lady Manningham-Buller, said, it is perhaps because it is a term of art in intelligence speak and means something specific rather than an ongoing exercise. If I may do the draftsman’s work and join the noble Baroness, Lady Hamwee, it may be that “specific operation” might be more helpful than “current” or “ongoing”. However, that is a matter for consideration.

On Amendment 32, I am fortified by a whispered conversation with the noble Baroness, Lady Manningham- Buller. One can imagine a situation in which it might be useful to Parliament and the nation, and to the agencies themselves, if the ISC is asked to look at an ongoing, even specific, operation. Let us imagine that something is going on that has got into the media, is creating great concern, there are great sensitivities to it, but it is urgent that someone should look at the matter and provide a report to Parliament. That is the sort of circumstance in which my proposal might be helpful. It is discretionary and the decision would be with the approval of the Minister, but it seems a pity not to allow for that sort of situation by making provision for it in the Bill.

Those are the considerations that I would urge on the Minister and the Government. With the assurance that he will look at them before Report, I am content to withdraw the amendment and not move Amendment 32. I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Monday 9th July 2012 Lords Chamber

Moved by

[Lord Butler of Brockwell]

1: Clause 1, page 1, line 5, after “Committee” insert “of Parliament”

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[Lord Butler of Brockwell]

My Lords, I will speak also to Amendment 2. These two amendments are in my name and that of my noble colleague on the Intelligence and Security Committee, the noble Marquess, Lord Lothian, as well as those of the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Beecham. I can introduce the amendments quite briefly, and I hope that we are pushing at an open door. It is, I think, common ground with the Government that the Intelligence and Security Committee will serve Parliament and the public better if it is made clear that it is indeed a committee of Parliament and not a creature of the Government. Since its creation in 1994 the committee has played an independent part, but because the committee is appointed by the Government, it has often been difficult to convince outside observers of its independence. I again pay tribute to the committee, as I did in my Second Reading speech to earlier members of the committee. It is now common ground that it has behaved in such a way that it has come of age and its independence and duty to Parliament can be made clear by adding the words that it is indeed a committee of Parliament. I hope that that is agreed with the Government.

Amendment 2 would have the effect that the Intelligence and Security Committee would enjoy the same rights and privileges as a departmental Select Committee in respect of having parliamentary privilege. Perhaps I may just explain that. Because the Intelligence and Security Committee is created by statute and is not a Select Committee of Parliament, it does not automatically receive the same rights and privileges as, for example, a departmental Select Committee. That is the purpose of writing in the Bill that it should have parliamentary privilege. This issue is important, because the committee’s work has to be conducted in confidence and those who give evidence to it, including not only the intelligence agencies but also others, must have confidence that the security of their evidence will be protected. This is necessary not only for future evidence but for past evidence, because in this litigious age there needs to be assurance that evidence previously given cannot be sought to be disclosed as evidence in any proceedings. To make that clear, this amendment proposes that privilege should apply to the proceedings of the Intelligence and Security Committee as it does to Select Committees of Parliament.

[Lord Campbell-Savours]

Is there a precedent for this form of committee anywhere within the constitution?

[Lord Butler of Brockwell]

There are indeed committees that are set up by statute. I can give the noble Lord three examples: the Ecclesiastical Committee of Parliament, the Public Accounts Commission and the Speaker’s Committee on the Electoral Commission. Those are all similar committees which have been set up by statute but are not Select Committees.

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[Lord King of Bridgwater]

My Lords, if I may intervene in this discussion, I seek to bring to it the “veneer of experience”—to quote the Deputy Prime Minister, as the noble Baroness on the Front Bench did on Second Reading—that this House can contribute on these matters. I am delighted to follow the noble Lord, Lord Campbell-Savours, who is an excellent member of the committee that I had the privilege to chair for a number of years. In listening to this debate I am absolutely sure that we have reached the time to move forwards. However, I am torn between Amendment 1, the significance of which I have to admit I do not fully understand, and Amendment 3, which proposes moving to Select Committee status. Early in our committee’s discussions we considered the role of a Select Committee, and—if I can stop the noble Lord mucking up my papers—I shall find a quote from a report that our committee produced in 1998 or 1999. We said:

“There are arguments for and against such a status, and we have not as yet formed a view on the issue … Even if thought desirable, however, such changes would take time to introduce, and could alter significantly the structure of relationships between the Committee and the intelligence community”.

I think that, as time has moved on, we have established that sort of relationship.

It is important to remember where we have come from. Although the noble Baroness, Lady Manningham-Buller, rightly points out that the agencies were not resistant to the establishment of a committee—that certainly matches my own impression, and she knows the situation much better than I do—many serving in the agencies wanted not only an Intelligence and Security Committee but, in their own interest, for that committee to be as thorough and active as possible so that it could carry credibility. As one of the big problems facing the agencies was false allegation and rumour, an independent and credible body would be seen to address and deal effectively with those issues—in secrecy if necessary, and without disclosure of operational information or other evidence, some of which might come from other countries.

My feeling at that time was that it was critical that we should establish credibility, because although many of the agencies were in favour of the committee, others were nervous about whether parliamentarians could be trusted, whether information would be secure or whether it would be leaked—all the problems that one might advance. There was a lot of hostility. I recall that, way back in the early 1980s, Jonathan Aitken was an original proposer of an intelligence and security committee, and he was interrupted by an old colleague, Ray Whitney—a distinguished former member of the foreign service, and a Member of Parliament at the time—who said that whatever one says about the Senate intelligence committee, there is general agreement that it has destroyed the American intelligence capability. That was an exaggeration of the sort of strong feeling common at the time. Having had the privilege of serving under the noble Baroness, Lady Thatcher, who was not the first outspoken advocate of this particular approach, I can attest that there was a lot of resistance to it.

When our committee started out it was very important to establish its credibility. I felt at that time—and members of the committee shared this view; I think that the noble Lord, Lord Campbell-Savours, was a keen advocate of it—that it was more important to establish the trust of the agencies, to make sure that they were forthcoming with information, because they could switch us off at any time. After all, we were into the “don’t-know don’t knows”, so establishing that trust was important. I believe that that trust, confidence and relationship have been established now—more than established, I hope, given the passage of time. I am therefore very torn between these amendments, Amendment 1 or 2, which propose setting up a Committee of Parliament, or whether there is not an argument for going straight to a Select Committee. I have learnt something today from the noble Lord, Lord Butler. After spending a brief period of 30 years in the House of Commons, I had not understood that the PAC was set up under a different arrangement. One learns something every day. It sounds attractive for the IC to be on the same wavelength.

[Lord Butler of Brockwell]

It is confusing but what is set up under statute is the Public Accounts Commission, not the Public Accounts Committee.

[Lord King of Bridgwater]

I have now unlearnt something which I thought I had learnt, and I am grateful to the noble Lord for his intervention. I certainly think that when we come to Amendment 3 there are strong arguments for moving in that direction, provided that the arrangements can be established to ensure security of intelligence. I think that the noble Lord, Lord Campbell-Savours, was with us when we went to Washington. One is struck by the number of Senate committees there. The Senate Select Committee on Intelligence is held in a totally secure room, and there are badges for all 19 government agencies that the committee oversees as part of its various responsibilities. It is a completely different facility. If, as I understand it, the proposal is that the facilities will now be provided by Parliament, as opposed to the separate facilities that existed in the Cabinet Office, it will be necessary to think about what sort of facilities will match up to the requirement for total security and the proper safeguarding of intelligence.

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[The Minister of State, Home Office (Lord Henley)]

My Lords, I think that the final point made by the noble Baroness, Lady Smith, on the Bill of Rights is posed to the movers of the amendment, and I will leave them to respond to it when the noble Lord, Lord Butler, winds up the debate.

My noble friend Lord King said that he had been described as having a veneer of experience in these matters. All four speakers before the noble Baroness and me had far more than a veneer of experience in these matters. All four have served on this Committee or have been chairman, like my noble friend, and we are very grateful that they bring their expertise to this because it is a matter that requires a great deal of discussion and consideration by us.

I start by setting out what changes the Bill proposes to make to the ISC’s status. The new ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. In parallel with the Bill, the Government intend that the ISC will be funded by Parliament and accommodated on the Parliamentary Estate, and that its staff will have the status of parliamentary staff.

As both my noble friend Lord King and the noble Baroness, Lady Smith, have implied, the current ISC has been criticised for being a creature of the Executive—I think that was the word that the noble Baroness used. The intention of this measure is that the ISC should be brought much closer to Parliament. It will be a committee of Parliament created by statute in the same way as other bodies are, as listed by the noble Lord, Lord Butler, in response to the noble Lord, Lord Campbell-Savours.

The noble Lord, Lord Butler, said there were three examples. The Speaker’s committee for IPSA, created under Section 1 of the Parliamentary Standards Act 2009, is another. Like those other statutory committees of Parliament, the ISC will not have all the attributes of a departmental Select Committee. The question of whether such a committee would be the appropriate route to go down is another matter. We will deal with it when we debate Amendment 3, which the noble Lord will speak to immediately after this group.

The two amendments that we are considering concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. Some noble Lords will be aware that my right honourable friend the Lord Chancellor and Justice Secretary has written to the chairman of the ISC, Sir Malcolm Rifkind, stating that in principle the Government support such a change, or one that would have a like effect of making clear in the Bill the parliamentary character of the ISC. However, before we could accept the amendment that noble Lords proposed and which the Opposition support, we would need to be very clear that it would be the best means to achieve this end and what all the implications of such a change would likely be, including the very tricky issue of parliamentary privilege. Any change that has the possible impact of increasing the risk of unauthorised disclosure of sensitive information should be very carefully thought through.

My noble friend Lord Lothian described himself as a simple Scottish lawyer. I always get rather worried when noble friends describe themselves as simple, Scottish or a lawyer, and when all three come together I am even more alarmed. However, the amendment could affect the ISC’s status for other purposes. For example, it could bring the ISC within the ambit of the Freedom of Information Act 2000 by making it part of the House of Commons and the House of Lords for the purposes of the Act. It may also change the ISC’s status under the Data Protection Act 1998, as Section 63A of the Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC’s data-processing activities. I put it to my noble friend—the simple Scottish lawyer—that those consequential effects need to be examined in some detail.

It has been very helpful to debate the issues raised by the amendment. I hope I have gone some way to explaining why I am not in a position at this stage to say anything more. Certainly I can say that the ISC chairman, Sir Malcolm Rifkind, has responded to my right honourable friend’s letter, and that the Government would welcome further discussion with the ISC on this important issue.

The second amendment in the group deals with the very significant issue of parliamentary privilege and takes us back to the Bill of Rights. This is a matter that the House has considered on a number of occasions in recent years. The Government’s most recent consideration of the issue came in the Green Paper that was published in April this year. Noble Lords will be aware of the importance that privilege can play in the functioning of this House and of another place. Parliamentary privilege includes such fundamental concepts as the freedom of speech of Members of this House and of another place, and the prohibition on courts questioning proceedings in Parliament. Both Houses and their Select Committees benefit from that privilege. Freedom of speech in the context of the Bill of Rights is just one aspect of parliamentary privilege.

At present the Intelligence and Security Committee is a statutory committee of parliamentarians. However, it does not at present benefit from that parliamentary privilege. The amendment would provide that the proceedings of the ISC would be proceedings in Parliament for the purposes of Article 9. That would ensure that the committee’s proceedings were covered by parliamentary privilege. The question posed by the amendment is about the consequences of privilege attaching to the proceedings of the ISC, which would be that criminal or civil proceedings could not be brought in respect of statements made by ISC members, or witnesses before the ISC, in the course of ISC proceedings.

Noble Lords may say that this makes very little difference because the ISC members are all parliamentarians and can benefit from privilege when participating in parliamentary proceedings. However, it would be different for a witness, who at present would not benefit from privilege. Other consequences would be that disciplinary proceedings against witnesses, based on statements made in ISC proceedings, would be barred as such proceedings would constitute a contempt of Parliament.

Noble Lords will understand from what I have said that there is a degree of sympathy for both amendments, and particularly the first, but more work needs to be done. I should be grateful if noble Lords accepted that and that it would probably be best at this stage to withdraw the amendments and to have further discussions, particularly in the light of the fact that my right honourable friend the Lord Chancellor has written to Sir Malcolm Rifkind about this and said that he is broadly content with the idea. However, as I have explained, we believe that more work is necessary. With that, I hope the noble Lord will feel able to withdraw his amendment.

[Lord Butler of Brockwell]

My Lords, I am grateful to the Minister for that reply and to the other Members who have taken part in the debate. Two clear points have come out of the debate that are agreed on all sides. First, the ISC should be able to fulfil its duties to Parliament as strongly as possible. It should be clear that it is a servant of Parliament and not of the Executive. That was the purpose of the first amendment.

We will debate in a moment the amendment tabled by the noble Lord, Lord Campbell-Savours, proposing that the ISC becomes a Select Committee, but, as I understand it, special safeguards are required for it, both in relation to appointments and in the nature of its reports: namely, that things that are genuinely secret should not accidentally be released in its reports. I think I am right in saying—this will no doubt come out in our next debate—that there will need to be a statute for that reason, so the statute will be necessary anyway. It would be difficult to apply those restrictions to a Select Committee of Parliament, but that will no doubt also come out in our next debate.

The purpose of the clauses in the Bill and of the amendments is exactly the same as the purpose that the noble Lord, Lord Campbell-Savours, is pursuing. I am very strongly in favour of Parliament’s effective control over the Executive. I have become more strongly in favour of that since I became a Member of Parliament rather than a member of the Executive. I believe in it very strongly, and I believe that of all the parts of the Executive, the security agencies need to be effectively controlled by people who are in a position to see and be trusted with information about what they are doing. So I do not think there is any difference about the ends.

The second thing is that witnesses to the ISC should have confidence in the security of the evidence they give. Again, I do not think there is any difference between us on that subject. As the Minister said, members of the ISC, as Members of Parliament, may be secure in that respect, but witnesses may not necessarily be so secure. If a situation arose in which the courts could question the proceedings in the ISC and enforce the revelation of evidence, the ISC would simply not be able to operate effectively. That is the purpose of seeking to apply in the statute that the ISC should have the benefit of parliamentary privilege as if it were a Select Committee of Parliament.

Again, it is clear from the Minister’s reply that the question here is about means rather than ends, and I entirely accept that those need to be carefully looked into and that the implications of the proposed amendments need to be carefully examined by those who are sufficiently expert to do so.

In the belief that our objectives in this are the same, that we are talking about means and not ends, and that the Government will now look at ways of achieving those ends, I am very happy to beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Lord Lea of Crondall]

My Lords, I wonder whether we are missing a major point in all this, which is why my instinct is strongly to support my noble friend Lord Campbell-Savours. I refer to public confidence in the work of MI5 and MI6 and what we know about them.

There is a sort of closed shop mentality at the moment, as I see it, what some people call the “secret state”. People have the right to write their books and put titles on them, but when I want to find out how many of the e-mails that I write could possibly be hacked by one of the agencies, there is no way of knowing, obviously. But should there be some way of knowing the categories of e-mails that can be hacked? Is it part of national defence and security that we do not know an awful lot about what is going on? This has a tangential bearing on whether it is a parliamentary committee or whether it is the committee that we have at the moment. Incidentally, as I understand it—I will be corrected if I am wrong—there is no Labour Member of the Lords on this committee at present. Is that correct?

[Lord Butler of Brockwell]

There are Labour members, but not Labour Members of the House of Lords. There are two Members from the Lords, my noble friend and a Cross-Bencher, but there are Labour Members from the House of Commons.

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[Baroness Manningham-Buller]

My Lords, I declare what I hope is an obvious interest—my membership of the Security Service for 33 years—although I should warn the Committee that I retired five years ago and so am out of date.

I should like to reiterate a couple of points. I listened with great interest to the points made by both former members of the ISC, current members and others with a close interest in this matter. It is certainly the case—and I do not think that I am out of date in saying this—that it is in the interests of the security and intelligence community to have either a Select Committee or the present committee as it stands seeking to give reassurance to Parliament and the public that these agencies are properly run, obeying the law and doing a reasonable job. As the noble Lord, Lord Carlile, said, they will make mistakes—it would be a delusion to suggest that any organisation was free from making mistakes—but certainly when I was reporting to the ISC I hoped to own up to and discuss those mistakes.

The support of members of the public is necessary not only in terms of general support for the organ of government but because, to do their work, the agencies require that support every day of the week. They need the public to join them as recruits—they want to attract high-quality recruits—they need them as sources of information, and they need them to help in whatever way possible. Someone might be asked, “Can I come and sit in your bedroom with a camera?”. I might say no but people say yes to the officers of the Security Service daily. Therefore, when we talk about public opinion, the services require the help of the public to do their job and, in my experience, they get it.

When we talk about whether to go for a Select Committee—a proposal with which I have a lot of sympathy—or an improvement on, or development of, the last one, I share the view of the noble Lord, Lord King of Bridgwater, that we will get there at some stage, although whether we will do so at the speed at which the noble Lord, Lord Campbell-Savours, would like, I do not know.

I am sorry but I feel that I must take slight issue with the noble Lord, Lea of Crondall, about the amount of information on the services that is available in the public domain. For certain, my service took its heart in its hands and commissioned a centenary history of the Security Service. We made the professor of contemporary history at Cambridge a temporary member of the service and allowed him into our records. We said, “You can make any judgment you like. We won’t seek to query it. There will be a few things that you can’t publish for national security reasons but we will keep those to a minimum”. If you look at our website—I must stop saying “our”; I left the organisation. If you look at the Security Service’s website, you will see quite extensive amounts of information.

Why do these organisations exist? They exist to try to protect the United Kingdom and its citizens, and it is in their interests that as far as possible the confidence in them is well founded and, as far as it can be, widely and publicly known. To that extent, I should like to say how much I welcome the arrival of the ISC and how much I look forward to its continuing evolution.

[Lord Butler of Brockwell]

My Lords, I wish to make a brief point. In doing so, I know that I risk being regarded by the noble Lord, Lord Deben, as the siren voice of cautious officialdom—or, in my case, cautious former officialdom. However, I want to raise a question on what the noble Lords, Lord Campbell-Savours and Lord Deben, said.

The argument of the noble Lord, Lord Deben, was that the badging of the security committee would be improved if it were called a Select Committee. I can see the case for that. I think we all agree that the ultimate purpose is that the public should have confidence in the committee’s scrutiny of the intelligence services. However, it was clear from the speech of the noble Lord, Lord Campbell-Savours, that if this were to be a Select Committee, it would have to be hedged around by a very large number of parliamentary resolutions, and that would have the same effect as the constraints that are written into the Bill. The question is: would that make it more convincing if it were a Select Committee when it was a Select Committee unlike any other because it would be so inhibited by those restraints?

They say that something which looks like a duck and quacks like a duck can be regarded as being a duck, but this would not look like or quack like a Select Committee; it would be something completely separate. I suspect that this might reduce, rather than increase, public confidence in it because people would see that it was a Select Committee that did not operate like any other Select Committee and could not really be regarded as a Select Committee in the true sense in which the public understand it.

[Lord Campbell-Savours]

Could I draw attention again to the noble Lord’s own argument over privilege? The issue of privilege will not arise in the event that it is a full Select Committee because by definition it has everything that the noble Lord proposes in his amendments.

[Lord Butler of Brockwell]

I accept that, and we will be coming to some other amendments where I will be arguing that we should have our cake and eat it. We are entitled, however, to have our cake and eat it. For the reasons I have been arguing, I do not think that it is advantageous to have this as a Select Committee because I do not think it can be like any other Select Committee. I do think, however, that it requires special arrangements to give it the privileges of a Select Committee, and I do not withdraw that argument.

[Baroness Smith of Basildon]

My Lords, the noble Lord, Lord Campbell-Savours, has done this Committee a service in degrouping his amendments. It is a broader and deeper debate than the one we had on the first two amendments. It has been extremely helpful. The noble Lord, Lord Elystan-Morgan, hit the nail on the head when he described it as a useful debate with a lot of consensus. I disagree with the noble Baroness, Lady Hamwee, who said this was a polarised debate. I am not convinced that it is. This is less about what we expect the ISC to do and how we expect to do it than the structure that can best achieve those objectives. There seems to be a fair amount of agreement on the kind of objectives we are seeking. I wrote down a couple. The idea of a veneer of expertise has now been firmly laid to rest. I hope that we will not hear that expression again either in your Lordships’ House or outside. I was intrigued when the noble Lord, Lord Deben, mentioned to the Minister the comments from civil servants. I felt the ghost of “Yes Minister” creeping into our debates. Civil Service Ministers sometimes have to make a decision and challenge civil servants on some issues.

The areas of broad agreement were the independence from the Executive and the issue of parliamentary privilege. I thought the comment of the noble Lord, Lord Campbell-Savours, about the power to take evidence under oath was a powerful one. Security of information caused considerable concern for those who are not keen on having a Select Committee structure but who also, like the noble Lord, Lord Campbell-Savours, want to protect security of information if there is any question on that. There is the same point even if the structures are different.

The issue of public hearings came up. I am not sure how relevant that is in terms of structure in that amendments have been tabled about the kind of public hearings there could be and what form they could take. My own view is that they are valuable. They certainly should never be automatic but we have that debate coming up. I am unclear whether a Select Committee would have to have public sessions unless the Committee wanted to have it. It is the best structure for achieving that.

We have also heard from a number of noble Lords about ensuring public confidence in whatever structure the Government decide to go ahead with. It was helpful that in the last debate the Minister, if I understood his words correctly, said he wanted to look at the best means of achieving these ends and consider all implications. I hope he can say that in the context of this debate as well. It has been a broader debate in that noble Lords have been thinking carefully about powers, independence and structure, and I hope the Minister finds that debate and those comments and views helpful.

Public confidence is an issue to take into account. It can be well served by public hearings or it can be badly served by public hearings, and we will debate that further today. Public confidence does have an impact on how sensitive or highly confidential information that is relevant to national security is dealt with. So I am interested in what the Minister has to say. I hope that he will take on board all the comments made in the last debate and in this debate. I hope that he is smiling because he agrees with me rather than because he is amused by what I said. I hope that he will say—as I hope I would say if I were sitting in his seat—that he will take this away and take into account not only the comments that were made in the previous debate but the wide range of views expressed in this debate. They are moving in the same direction and seek that, whatever structure the Government want to proceed with, the comments of the House should be taken into account to ensure that the Government get it right, protect national security, safeguard sensitive information and also secure parliamentary independence and public confidence.

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Moved by

[Lord Butler of Brockwell]

4: Clause 1, page 1, line 9, at end insert—
“( ) Financial support shall be available to members of the ISC who are members of the House of Commons as if they were members of a Select Committee of that House; and to those who are members of the House of Lords as if they were members of a Select Committee of that House.”

[Lord Butler of Brockwell]

My Lords, I shall speak also to Amendment 9.

It is right and customary to declare an interest in these amendments. I certainly do so in this case because I have a direct financial interest in Amendment 4. The purpose of the amendments is that the chairman of the Intelligence and Security Committee should be treated in the same way as the chairmen of Select Committees in terms of remuneration. The purpose of Amendment 4 is that the members of the Intelligence and Security Committee should, similarly, be treated in the same way as members of Select Committees.

I wish to make it absolutely clear that Amendment 9 is not tabled at the behest of the current chairman of the ISC, the right honourable Malcolm Rifkind, who does a great deal of work for the committee on an entirely voluntary basis. I think that my colleague the noble Marquess, Lord Lothian, will agree that this committee chairman certainly does not do less work than the chairman of a Select Committee. He works many more days of the week than the days on which the ISC meets. For financial purposes—and leaving aside the particular individual, Sir Malcolm Rifkind—the chairman of the ISC should, as a matter of justice, be treated similarly to the chairmen of Select Committees and receive remuneration accordingly. I think I can say that that is the view of the other members of the ISC, who are similarly grateful for and deeply impressed by the work that our chairman does.

As regards Amendment 4, the House of Lords is kind enough to provide that attendance at meetings of the Intelligence and Security Committee should qualify for half the daily allowance—£150—but only on the days when this House is sitting. There seems to be no logic in that. We do exactly the same amount of work regardless of whether this House happens to be sitting at the same time. If one day should qualify for the £150 allowance then it seems that the other day should. This point arises because, these days, and as we will see in the next couple of weeks, the sittings of the House of Commons and the House of Lords do not always coincide with each other. I regret that. It may happen in September that the House of Commons will sit and the House of Lords will not. If there is a meeting of the ISC on those days, my noble colleague and I will not be eligible for the daily allowance. There is a greater injustice as a result of the unevenness of the sittings of the House of Commons and the House of Lords.

I have, as I say, a personal interest in this perfectly simple point of equity, which ought to be put right. It can easily be put right in the rules on the financial support of the House. In order to draw attention to it and try to ensure that it is put right, I have put down Amendment 4.

[The Marquess of Lothian]

My Lords, I support the noble Lord, Lord Butler of Brockwell, in both of his amendments, to which I have attached my name. Like him, I declare an interest in Amendment 4—on which I shall say no more than he has said. He has argued the case with great eloquence and I hope that the Government will listen to his argument.

In general terms, I say to the noble Lord, Lord Campbell-Savours, that these amendments are slightly ironic, given what I was saying in answer to his previous amendment. We are asking to be treated like a Select Committee and, once more, this underlines the fact that the argument on that is not polarised. It is not about the theory of a Select Committee but about the practice of one. We may well return to this matter in the future.

I strongly endorse the proposal in Amendment 9 that the chair of the committee should be remunerated in line with the chair of departmental Select Committees. I have served under four Intelligence and Security Committee chairmen, I think, and in each case I have been amazed at the amount of work they are required to do compared with the ordinary members of the committee. The ordinary members do preparation behind closed doors in secure surroundings for an afternoon and then we have the meeting the next day, but the chairman is in almost every day, going through issues, deciding whether they should be brought to the committee. The chairman has a major piece of work. It is therefore only fair that the chairman should be properly remunerated, as he would be if he were a chairman of a Select Committee.

[Lord King of Bridgwater]

I intervene very briefly. I thank the noble Lord, Lord Campbell-Savours, for his comments and for those that he made at Second Reading, for which I am grateful. I am not sure whether this amendment can be made retrospective, but it seems an excellent idea. I do support it—it seems logical if a Select Committee chairman in the House of Commons now has it. I understand my noble friend Lord Lamont made the point. The point the noble Lord, Lord Butler, raised is pretty fundamental because it applies to every Select Committee of this House. If the House is not sitting, people do not get any allowance even if those committees are working. The issue goes a bit broader than just changing it for the ISC.

[Lord Butler of Brockwell]

If I may correct the noble Lord, it is worse than that. Under the arrangements for other Select Committees of this House, the members qualify even if the House is not sitting. The noble Lord shakes his head but if he looks up the rules he will find—I see the noble Baroness, Lady Hamwee, agrees with me—that for Select Committees the allowance is available on days when the House is not sitting, but for the ISC it is not.

[Lord King of Bridgwater]

I am grateful to the noble Lord. He has cheered up the noble Lord, Lord Lamont, quite considerably if that is right because he was telling me of the committee session he must attend in the Recess. I simply say that I support this. I do not know quite what the first part of the amendment means or whether the Minister will explain it. I am not clear what the financial benefits are for Members of the House of Commons when they are on Select Committees. We asked for equivalent arrangements for the ISC. Perhaps somebody will clarify that point.

--- Later in debate ---

We also hope that Amendment 9 can be addressed in the appropriate manner in due course. As all noble Lords have said, the amount of work involved is considerable, and the noble Lord, Lord King, speaks from experience. Simply doing it in line with the arrangements for chairs of departmental Select Committees in the House of Commons obviously would not work because the chairman could come from this House. As I said at Second Reading, there is no reason why eight out of nine members of the committee could not come from this House if that was necessary. If the chairman is in the House of Commons, again, that is a matter for the appropriate resolutions of the House and for IPSA. If the chairman is a Member of this House, again, that will have to be taken up with the House Committee. As I said, I hope that both committees will listen to this debate and to the various comments that have been made. I hope, therefore, that the noble Lord will feel able to withdraw his amendment.

[Lord Butler of Brockwell]

My Lords, I am grateful to the Minister for his sympathetic response and to other Members of the House for their comments. I just want to make clear to the noble Lord that it is not a question of feeling adequately or inadequately remunerated. There may be different views in the House about whether payment of £150 for a day’s work on the committee is adequate or inadequate, but that is not my point. My point is that there is an obvious inequity between the treatment of members of the Intelligence and Security Committee and the members of Select Committees, and that is what I would like to see put right. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Moved by

[Lord Butler of Brockwell]

5: Clause 1, page 1, line 14, at end insert—
“( ) If the House of Parliament from which a member of the ISC is to be drawn declines to appoint a person nominated by the Prime Minister, the Prime Minister shall nominate an alternative person.”

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, Amendment 5 is an amendment to Clause 1(4). It seeks simply to fill out an obvious point that is not currently covered by the Bill.

Under the arrangements proposed in the Bill, the Prime Minister will propose members of the committee but it will be for Parliament to agree to the appointment or not. Therefore, we need to provide for the situation in which Parliament does not agree to an appointment. At the moment the Bill says nothing about that. The purpose of this amendment is to make clear that in those circumstances, if either the House of Commons or the House of Lords does not agree to the nomination of a Member of that House to the Intelligence and Security Committee, the Prime Minister would have to nominate somebody else for the appointment for the approval of the respective House. I think that is obvious and that is what would happen. It is not provided for in the Bill and this amendment is therefore just to fill that gap.

[The Marquess of Lothian]

My Lords, once again I rise to support the noble Lord, Lord Butler of Brockwell, on this amendment, to which my name is also attached. I will not add much to what he said. I think that the real purpose here is to remind the House that the committee has nine members. That is written in to the statute. It is one of the smaller committees involved in the sort of work that this committee is doing and it is very important, in my view, that we retain that number at least. In the absence of this amendment it is theoretically possible that this House might decide that it did not want the two nominations from this House made by the Prime Minister and that the Prime Minister might decide to leave it at that—have a committee of seven in total from the House of Commons and nobody from this House. This amendment would make sure that that cannot happen by ensuring that, were this House or, indeed, the other House to say no to nominations by the Prime Minister to this committee from those Houses, the Prime Minister would be required to make another nomination.

--- Later in debate ---

[Lord Henley]

Yes, my noble friend is correct in that. I was looking at the wrong dates—he means between 2007 and 2009. I will obviously have to examine this and, as I promised my noble friend Lord King, examine the statistics in relation to the 1997 Parliament, when there would have been the biggest change in the membership, rather than the subsequent Parliaments. In brief, I stick to my position that it would be better for Parliament to make this decision, rather than the Prime Minister, but I note the concerns put forward by colleagues from all sides, or both sides, of the House.

I turn to Amendment 7, which presents the idea that, whatever happened, the chairman of the committee should be drawn from an opposition party. Again, my noble friend Lord King had some sympathy for this amendment, but when one looks at the history of the committee and the distinguished service of my noble friend, who served as chairman when our party was in government, and as chairman in opposition, from 1994 to 2001, it is obvious that one can do it from either side. To make a statutory requirement that a chairman had to come from the opposition party would unnecessarily limit the available candidates for that job. My noble friend rightly pointed to the problems that might have arisen in 1997 when, after a very long period in opposition, all the more senior members of the then opposition party going into government were likely to become Ministers, and there might not have been suitable people around. To curtail who could be chosen would reduce unnecessarily the pool from which the appropriate chairman could be taken.

Having said that I would listen to comments made on Amendment 8, proposed by the noble Lord, Lord Campbell-Savours, I hope that the explanations that I have given on the other Amendments 5, 6 and 7, as well as Amendment 8, will be sufficient for the noble Lord to withdraw his amendment.

[Lord Butler of Brockwell]

My Lords, on the basis of what the Minister has said, I am happy to withdraw Amendment 5.

Amendment 5 withdrawn.

Protection of Freedoms Bill

Lord Butler of Brockwell Excerpts

Tuesday 24th April 2012 Lords Chamber

[Lord Scott of Foscote]

My Lords, I rise to support the proposed amendment. It relates to the circumstances in which a statutory instrument or legislation can give authority to regulators—not the police as their powers are enshrined in statute and are not in question—to enter private property without the consent of the owner or occupier of the property or the authority of a warrant granted by a judge.

This goes to the view that one takes of the importance of the rule of law in considering what powers the Executive ought to have to interfere with rights of private property. Clause 40 provides that the Government may place fetters on rights to enter private property. That is a discretionary power that the Government may or may not exercise, and in relation to a number of statutory instruments that I have seen, some quite recently, the safeguard provided by Clause 40 has not been adopted. The obligation on government to obtain the consent of the owner or occupier or to obtain a warrant ought, in my opinion, to be the rule.

Of course, there may be exceptions. The noble Lord’s amendment provides for them. I suggest that they are ample and adequate, but the rule ought to be that the consent of the occupier or a warrant is obtained and that the case has to fall within one of the recognised exceptions. At the moment, the legislation is the other way round so that the rule makes the addition of safeguards to protect the rights of property dependent on the discretion of the Government. That is not acceptable as a basis on which rights of property can be interfered with.

I do not wish to take up your Lordships’ time by repeating what I said during previous debates on this topic and, moreover, today is my wife’s birthday and I have agreed to take her out to dinner at 6 pm. I hope, therefore, that the Minister will forgive me if I do not stay to hear his reply to this amendment.

[Lord Butler of Brockwell]

My Lords, I, too, rise to support the amendment. I do it on the basis of practical experience. I do the Government the credit of saying that their heart is in the right place on this. Indeed, on all sides of the House, it would be agreed that powers of entry without permission or warrant should be kept to a minimum. However, as the noble Lord, Lord Marlesford, said, the crux is where the initiative for reviewing these regulations should lie.

Here, I speak on the basis of long experience in the Cabinet Office and successive initiatives to reduce regulation in government. Those who have been Ministers will be familiar with this. In this matter, the Cabinet Office was on the side of the angels. It wanted to see —indeed, it was a duty imposed on it by Governments—that regulations were reduced. There were successive deregulation bodies. The Minister in another place, Mr Francis Maude, led one of them. The experience of asking departments to make the case for the existence of regulations showed that doing it that way round was not successful because they could always make a case that the regulation might at some time be necessary or useful. For that reason, I was always in favour of having a sunset clause on regulations, a provision that from time to time a department that wanted to maintain regulations should have to make the case for them again. That is what, in effect, the amendment proposed by the noble Lord does. If the Government want to make progress in this, the onus should be on departments to make the case for the power to be renewed. Otherwise, the power should lapse. I am quite sure that if the onus is left as it is and the regulations are reviewed by the departments, very little progress will be made.

I support the noble Lord’s amendment particularly because, as he has said previously, this is a historic opportunity for the Government to set a sunset clause on these powers and oblige departments to make the case anew. I am not sure whether the noble Lord’s amendment is technically correct, but it would be wise for the Government, whose heart, I believe, is in the right place, to think about this again. I hope that they will do so. I am afraid that if they do not, the objectives that they seek to achieve will not be effectively achieved.

[Lord Lester of Herne Hill]

My Lords, I am a member of the Joint Committee on Human Rights that reported on this matter. In paragraph 116 of our report, we welcomed,

“the recognition in the Bill that powers of entry should be strictly limited to those circumstances in which such a power is justified, necessary and accompanied by appropriate safeguards”.

I would be grateful for acknowledgement by my noble friend the Minister that it is common ground that these powers should be in existence and exercised only where the power is,

“justified, necessary and accompanied by appropriate safeguards”.

When this matter was raised previously by the noble Lord, Lord Marlesford, I spoke critically of his amendment and what he was seeking to do on the grounds that the matter was already covered by the European Convention on Human Rights and the Human Rights Act. On reflection, not only having listened to the debate so far but having looked at the Commons Reason for disagreeing, I am now tending to be much more supportive of this amendment. With respect, I cannot understand how the other place can disagree, in considering that,

“the imposition of general restrictions of this nature on the exercise of powers of entry could undermine actions to protect public safety”.

That seems an extraordinary statement.

The purpose of the amendment moved by the noble Lord, Lord Marlesford, is to write into this important Bill a constitutional safeguard, which, for example, in the American Bill of Rights, is contained in the Fourth Amendment: the prohibition on unreasonable search and seizure. Within the past three months, the American Supreme Court gave a judgment on that guarantee, referring to English doctrine against unreasonable search and seizure, which, of course, we in this country trace back in common law to the great case of Entick v Carrington. The noble Lord, Lord Marlesford, is seeking to use not just the European Convention or the Human Rights Act but the statute itself to contain a general restriction against the abuse of powers of entry by the retention of unnecessary powers.

I perfectly appreciate that the Government have undertaken to carry out a two-year review of the detail, and that is highly desirable and has been welcomed by the Joint Committee on Human Rights. However, I cannot see any objection to a general constitutional restriction against the retention or use of unnecessary powers of search or seizure. I shall listen carefully to how this is dealt with in reply, but at the moment, like others who have spoken so far, I have become much more sympathetic to this than I was on the previous occasion.

--- Later in debate ---

[Lord Henley]

I would hope that, as and when each power of entry is looked at, we will remove it as appropriate. I can assure my noble friend that we have already moved about 30 or so as part of the review. Most of those will require only secondary legislation to do that. It will be an ongoing process. As I made clear earlier, we will give a six-monthly update to Parliament on how we are doing this. At the end of that process I cannot give a commitment as to exactly what we will do. Certainly I am sure that my noble friend and others will hold us to account if we do not keep to that two-year programme. As I said, we want to do it more quickly if we can.

[Lord Butler of Brockwell]

My Lords, I agree with a great deal of what the Minister has said, but would the Government’s objectives not be better achieved if they proceeded on the basis that powers would lapse unless a positive case could be made for them, rather than that they should remain unless a case is made to remove them?

Protection of Freedoms Bill

Lord Butler of Brockwell Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Borrie]

My Lords, first, I declare an interest as having been honorary president of the Trading Standards Institute, the trading standards officers’ professional body, for a period of five years, since which I have also been one of several vice-presidents.

Secondly, I congratulate the noble Lord, Lord Marlesford, on two things. The first is his persistence, both through the work on this Bill and earlier, in questioning the rights and powers of entry by numerous public officials. He has correctly congratulated his noble friend Lord Selsdon on the massive amount of work that he put in over the years in working out how many powers of entry exist. The second thing I congratulate the noble Lord, Lord Marlesford, on is his evident willingness, both in Committee, which I regret I was not able to attend, and at this stage, to compromise, especially by reference to trading standards officers, whose powers of entry are obviously in the public interest. The powers of entry of trading standards officers are, to my mind, a necessary complement to powers to prosecute traders of all kinds, big and small, for misleading claims and descriptions, including pricing and the selling of unsafe and counterfeit goods. Trading standards officers could hardly do a decent job for the consumer unless they were able to make unannounced visits. However, local authority trading standards officers are undoubtedly proud of the fact that good relations with traders in their locality enables them to make, by agreement, many visits and changes in the descriptions and so on of goods being sold. The power of entry—unannounced, from time to time—is a necessary complement to those occasions. I hope that trading standards officers’ need to enter premises without previous agreement would be on a minority of occasions.

In Committee, the noble Lord, Lord Marlesford, was willing to say that trading standards officers should not need the agreement of the occupier of the premises or a warrant if they could demonstrate that that would frustrate their powers. The noble and learned Lord, Lord Scott of Foscote, also spoke in Committee, and I hope that we will hear from him in the debate this afternoon. He was rather less amenable to compromise than was the noble Lord, Lord Marlesford, and seemed to suggest that it was so easy to get a magistrate’s warrant that there should never be any real problem—warrants would be forthcoming as and when they were needed. The noble Lord, Lord Marlesford, realised that trading standards officers would still be weakened in their work unless, today, on Report, a further concession or compromise was made—hence his new amendment. He realised that they are in a special position, as I have sought to indicate myself. He sets that out in Amendment 37ZC.

There is a slightly odd reference to a “Constable”, with a capital letter. The noble Lord probably meant any police officer, not just someone with the honorific title “Constable of Dover Castle” or those who have capital letters to describe their particular job. If he meant a trading standards officer and any member of the police force or Security Service acting under legislation that permits a person to exercise power of entry, then that would have no restriction. My worry here is why trading standards officers have been picked out. As I explained in my declaration, I have a special interest in their consumer protection powers and so on. Most of us know that local authorities also have, for example, environmental health officers concerned with health and safety in their area. They have powers of entry and they are not specially mentioned.

I understand and value the real willingness of the noble Lord, Lord Marlesford, to compromise, but reference to the Home Office to tidy things up before Third Reading does seem to have some merit. From what I know of trading standards officers—and I know them quite well—I have no doubt that they have been assiduous in discussing matters with the noble Lord. However, that does not necessarily suggest that they ought to be picked and others, thereby, just as obviously left out. I welcome what the noble Lord is doing but would not wish to support him in any vote that we might have today on the unamended, or not fully amended, version of what he has concerned himself with.

[Lord Butler of Brockwell]

Before the noble Lord sits down, could he give the House an example of a situation in which a trading standards officer would need to enter premises without a warrant?

[Lord Borrie]

One has to examine the word need. Trading standards officers are given powers by various statutes for the public benefit—usually consumer protection—and the benefit of other legitimate traders who are not engaging in what appears to be illegal conduct. The trading standards officer wants to examine that. He needs to do it to fulfil his duty.

The noble and learned Lord, Lord Scott of Foscote, has suggested that because magistrates are available literally night and day in order to get warrants when needed, there is no problem. However, the trading standards officer still has to prove something. No magistrate worth his salt is going to accept what a public official says without question in all circumstances. Therefore the amendment that the noble Lord, Lord Marlesford, seeks to introduce is good for trading standards. It might also be good for other equally legitimate work done by other public officials.