Justice and Security Bill [HL]

Debate between Lord Butler of Brockwell and Lord Henley

Wednesday 11th July 2012 Lords Chamber

[Lord Henley]

It does appear in it. Well, I got that wrong. Under the existing Intelligence Services Act, the ISC makes an annual report on the discharge of its functions to the Prime Minister. The Prime Minister lays before each House of Parliament a copy of that report, together with a statement as to whether anything has been excluded from it by the Prime Minister on the grounds of its sensitivity. Under the Bill, the ISC will for the most part report to Parliament but will still be able to report to the Prime Minister on matters that would be excluded from any report. It would remain for the Prime Minister to decide whether grounds exist for excluding matters from the report after, of course, consulting. That is the important thing: the consultation with the ISC. That will continue to happen.

If, as I said, the word “draft” is not appropriate, I am sure that we can make arrangements. I am obviously not a draftsman. One way of doing that would be just to delete subsection (3) from Clause 3. We will have a look at it. We have, as we know, any amount of time because we have a long summer ahead of us with other matters to deal with.

The second amendment in this group of three, Amendment 36, spoken to by the noble Lord, Lord Rosser, changes the criteria—or definition, as the noble Lord, Lord Rosser, put it—whereby the Prime Minister might exclude any matter, if that report without that matter excluded would contain sensitive information as defined in Schedule 1, or information which should not be disclosed in the interests of national security.

The ISC must be able to report candidly to the Prime Minister on sensitive matters. Inevitably, the full contents of its reports cannot always be published because of the nature of the material contained within them. We are all agreed on that; it is quite clear. It follows, therefore, that there must be an ability to redact information before the ISC reports can be published or laid before Parliament. I must make it clear that the test in the Bill is modelled on the one in the 1994 Act. That has worked well and it is well understood by both the committee and by the Government. It has allowed material to be excluded where it should be excluded but it has also allowed the Government and the ISC to ensure that as much of the ISC’s reports that can be published are published. I do not believe that it is overly restrictive but it does cover certain categories of information which would not be covered were the Bill to be amended as is suggested in the noble Lord’s amendment.

The noble Lord, Lord Campbell-Savours, from a sedentary position, and the noble Lord, Lord Rosser, have put this point. They want to know why the criteria are different. If the noble Lord will allow me, I will explain that in due course. There is no need for him to make an intervention as he has already asked that point. The ISC needs to know what can be published and there are two different tests—one for publication and one for disclosure to the ISC. The tests therefore should be different. Tests for withholding from the ISC should be at a much higher threshold.

As both noble Lords will be aware, the functions of the agency are not solely exercisable in the interests of national security. It also has functions exercisable in the interests of economic well-being, United Kingdom fraud protection or prevention of serious crime. For those instances where including a matter in an ISC report to Parliament could cause prejudice to those functions of the agency but not to its functions in relation to national security, the existing Clause 3(4) would give the Prime Minister the power to require that that matter should be excluded from the ISC’s report whereas, unless the information in question fell within the definition of sensitive information under paragraph 4 of Schedule 1, the formulation of the clause proposed by this amendment would not.

With that, the noble Lord’s amendment is not necessary and in fact would not take us much further. I hope therefore that he will consider not moving it when it is called. I trust that my assurance that we will consider Amendments 35 and 38 in the names of the noble Lord, Lord Butler, and my noble friend Lord Lothian will enable the noble Lord to withdraw his amendment.

[Lord Butler of Brockwell]

I am grateful for the Minister’s assurance that the drafting points raised in Clauses 35 and 38—or a little more than drafting points, as my noble friend Lord Lothian said—will be looked at. With that assurance, I am happy to withdraw the amendment.

Justice and Security Bill [HL]

Debate between Lord Butler of Brockwell and Lord Henley

Monday 9th July 2012 Lords Chamber

[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.

--- 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.

Justice and Security Bill [HL]

Debate between Lord Butler of Brockwell and Lord Henley

Monday 9th July 2012 Lords Chamber

[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.

--- Later in debate ---

[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.

Protection of Freedoms Bill

Debate between Lord Butler of Brockwell and Lord Henley

Tuesday 24th April 2012 Lords Chamber

[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?

Higher Education White Paper

Debate between Lord Butler of Brockwell and Lord Henley

Tuesday 28th June 2011 Lords Chamber

[Lord Henley]

I am very grateful for the noble Lord’s admission on behalf of his party that it does not deny the deficit. I am also grateful that he has recognised that funding must come from the beneficiaries of education as well as from the taxpayer—from both sides.

The noble Lord turned to the Browne report which, as noble Lords will remember, did not recommend a maximum. However, we felt that it was probably right to fix it at £9,000, particularly as the noble Lord, Lord Browne, suggested that he did not see why universities could not provide a good education for a figure of, I think he said, round about £8,000. The noble Lord, Lord Young, says that the reports are that virtually all institutions are going for the maximum of £9,000. We will not know the final figure until it has all been confirmed next month, but I can assure him that although a lot of them are going for £9,000, that does not mean that everything in that university, that institution, will be £9,000. There might be different rates for different courses and, as the noble Lord knows, there are a number of waivers, and they will be offering bursaries and other things that will help to bring the cost down, particularly for some of the less well off.

The noble Lord also asked the very valid question: are we worried that the perceived level of debt might put off a number of individuals because they see themselves ending up with a debt of £27,000-plus? That is a genuine fear and we must address it. That is why only last week my right honourable friends Vince Cable and David Willetts sent a letter setting out what we are doing to get information across. They have set up a new independent task force on student finance information, headed by Martin Lewis and Wes Streeting, a former president of the National Union of Students, to try to get the information over that it should not be looked at as a debt but, in effect, as a sort of graduate tax, except that it is not a graduate tax; you start paying only when you start earning above a certain amount and you pay at quite a low rate over a long period of time. It is not the burden that people have when taking on other forms of debt.

[Lord Butler of Brockwell]

If I heard the Minister aright, he said that the purpose of strengthening the role of OFFA would be to ensure that the universities fulfilled their obligations about outreach. That will create no difficulties for the universities because I am convinced that all the universities I know want to widen the area of society from which they draw children of talent. However, he also said, if I heard him correctly, that there will be no interference in the academic freedom to make that selection on the basis of merit. Can he therefore assure us that the quotas that have been talked about for students to be drawn from different areas of society or different backgrounds in education will not now be pursued?

[Lord Henley]

My Lords, I am very grateful for that intervention from the noble Lord, who speaks with considerable authority as a former master of University College, Oxford. I must add that I have enjoyed his hospitality there on a number of occasions; I declare that as an interest. I am also grateful that he welcomes the fact that there is encouragement to fulfil greater opportunities for outreach, which is what all institutions should be doing. I also stress that there will be no interference in academic freedom. As I said earlier, I bear on my back scars from the late Lord Russell about alleged attacks on academic freedom, and I do not want to reincur them. Quotas are not the right way to set about this. Each institution in discussions with OFFA, after it has proposed a level of fees above £6,000, should look at what it can do to try to improve fair access to all areas of society.