Counter-Terrorism and Security Bill

Debate between Lord Butler of Brockwell and Lord Thomas of Gresford

Wednesday 4th February 2015 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I will not follow my noble friend Lady Hamwee and the noble Baroness, Lady O’Loan, on Amendment 16A but will turn to Amendments 18 and 19 in this group.

The Minister may recall that in Committee I asked what the Privacy and Civil Liberties Oversight Board was for and I think that Amendment 19, particularly in paragraph (b), is a rather elegant solution to the question I posed in that, obviously, the board will be chaired by the independent reviewer and he can decide in which direction he wishes to take the board and to what degree it should cover the ground that he feels to be necessary. I welcome Amendments 18 and 19 and thank the Government for thinking again on these issues.

There is only one outstanding issue—the degree to which the board would have access to sensitive material. That will have to await another day when, no doubt, the independent reviewer will be able to transfer to the Minister concerned at the appropriate time the degree to which he feels the board requires access and is inhibited by the fact that it does not see the same papers as he will see. The board would clearly be much more efficient if it was cleared for security purposes to the same degree as the independent reviewer.

The issue in Committee was whether the board was for oversight or support. That question has been soundly answered. Clearly the board is there to support the independent reviewer and I am grateful to the Minister for making that clear.

[Lord Butler of Brockwell (CB)]

My Lords, I too am grateful for the consideration that the Government have given to this matter and, in particular, to the powers of the independent reviewer. I am also grateful to the Minister for the frankness of his speech and for the way he has reported the reactions of the independent reviewer, which are obviously not an absolutely wholehearted welcome. I think it is excellent that the powers have been extended in the way that they have been.

I have an open mind on the amendment of the noble Baronesses, Lady Hamwee, Lady O’Loan and Lady Ludford. I think that it would be good if the independent reviewer had the power—not the sole responsibility—to look at any provision of immigration and nationality law to the extent that it is used for counterterrorism purposes. That is clearly within his remit. The Minister himself said that it might very well be that Mr Anderson will be asked to be the person to report on the operation of the closed procedures in Part 2 of the Justice and Security Act. Therefore, I am rather sympathetic to those amendments and I do not think it would be very difficult for the Government to accept them.

However, I am sympathetic to the Government’s wish not to have too much duplication in this area. As a member of the Intelligence and Security Committee, which also roams over this area, I would like to say that we, too, have no problem with Mr Anderson. His co-operation with us is very good. We have no difficulty with the fact that we are looking at things which he is also looking at.

On his reservation about access to secret material, I am afraid that this intensifies my concerns about the very existence of the Privacy and Civil Liberties Board. I think it is an improvement that Mr Anderson is to be consulted on and will have influence over the appointment of the members of the board and that it is there to support him. He has asked that he should have a written assurance that he should have access to all the secret material that he wants. I am sure that the Government would not have the slightest difficulty in giving Mr Anderson that assurance. But it complicates his relationship with the board, because, as the noble Lord has just said, the Government might well have reservations about that very secret material—the freedom to have the most secret material there is extended to the members of the board. I think that may be unnecessary. Clearly it would be difficult for Mr Anderson if he has access to material and the board has not.

All this leaves me with doubts about the utility of the board. I am glad that it is there to support Mr Anderson. I know that he needs more support. In responding to this, can the Minister say whether it is intended that the secretariat of the board should be the extra support that Mr Anderson needs? I do think that he needs extra support, but I would like to see the support there without the existence of the board, the utility of which I greatly doubt.

Justice and Security Bill [HL]

Debate between Lord Butler of Brockwell and Lord Thomas of Gresford

Monday 9th July 2012 Lords Chamber

[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.