Lord Campbell of Pittenweem
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Justice and Security Bill [Lords]
Lord Campbell of Pittenweem Excerpts(11 years, 9 months ago)
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Steve Baker
I recognise that my right hon. and learned Friend is advancing that argument with the best possible intention, but we live in a time when, because of terrorism and the fear of terrorism in particular—to pre-empt my concluding remarks—there has been an encroachment on our fundamental principles of liberty and justice, which we see elsewhere in the Bill. It is in that context that we must make sure that the security services are held properly to account in a transparent and credible way.
Here is the crucial point: in other Select Committees, transparency can do the heavy lifting, but as has been mentioned, transparency is not available in relation to the ISC. Precisely because of that, we need an elected Chair. I appreciate that the Prime Minister might find himself in a position where he had to reject a candidate in advance of their election, but that is surely a better option than going forward with a Committee whose independence from prime ministerial patronage can be questioned. I appreciate that the Prime Minister might have to engage in some politics on this issue, but that is after all his job.
Sir Menzies Campbell (North East Fife) (LD)
Like others, I do not take offence at the argument, but I think the hon. Gentleman’s representation of the nature of those who serve on the Committee is a long way short of my experience, if I may put it that way. Am I to understand that no matter how well qualified a Member of the House of Lords might be to chair the Committee, the hon. Gentleman’s amendment would preclude that from ever happening?
Paul Murphy
Had I been inclined to support amendments 8 to 14, my inclination would have dropped dramatically over the past half hour as a consequence of hearing the speech made by the hon. Member for Wycombe (Steve Baker). I do not think for one second that the Committee’s significance depends on the Chair. The Chair is an important member of the Committee—the first among equals. During the two years I chaired the Committee, including the period when we considered extraordinary rendition, there was certainly unanimity among the members, as the hon. Member for New Forest East (Dr Lewis) has just mentioned, as there is now, so the Committee had to come to a consensus.
It is preposterous to argue that whether or not the Chair had been elected would have made the slightest difference to the report on rendition or to the Committee’s eventually recommendations. That issue can be dealt with in another place and at another time, although the hon. Member for Chichester (Mr Tyrie), who was supposed to move the amendment—we have had an explanation of why he cannot be here—had a particular interest in rendition, but Members of the House will know that the Committee dealt with a host of other important issues affecting this country’s intelligence services.
Twenty years ago, the Committee started on a journey. Before the law was changed, there was no Committee of this House—in the Commons or the Lords—to deal with the intelligence services. Indeed, just before the inauguration of the Committee, the very existence of MI6 was denied publicly by the Government. In those 20 years there has been a dramatic shift in how the intelligence services have been made more accountable. The latest of those shifts is proposed in this Bill, which is a very good Bill in that regard. The accountability and transparency that it requires—there is obviously a limit to how much transparency one can have when dealing with the intelligence services—is something that I am sure we all welcome and support.
I support the proposal that the members of the Committee—who, by the way, are themselves subject to approval by the House of Commons and the House of Lords—will decide on who the Chairman of the Committee is to be. The Prime Minister does not do that. The Prime Minister could have a say in who the members are, but ultimately the House of Commons makes that decision. Those members will know among themselves who they feel to be the best person for the job. We have to bear it in mind that this is not a Select Committee. If it were, it could be argued that its Chair should be elected in the same way as for a Select Committee, but it is not—it is a Joint Committee of both Houses of Parliament. The Chair of the Committee, who is usually, and should be, a Member of this House, reports to the House annually, and a debate is also held in the other place. Having the members themselves choose the Chair of the Committee is a very significant development.
The Committee can never be the same as a Select Committee, because if it were, it would not be doing its job. It has to command the trust and the confidence of the intelligence services because of the nature of the business they deal with. The only way to do that is to have people on the Committee who are trusted not only by their colleagues here and in the House of Lords but by the three agencies, so that they can ensure that there is the fullest flow of information of highly sensitive and secret detail that the Committee can deal with. That is why it is different from other Committees. I think that the proposals in the Bill, which have been refined over the past couple of years, are such that everybody will be able to support them today.
Another matter covered in this group of amendments is the way in which the ISC is financed. Under the Bill, the Committee is no longer a statutory Committee—it becomes a Committee of Parliament. As a consequence, the Government will pay Parliament for the workings and expenses of the Committee. I fully support the Government amendment. My hon. Friend the Member for Kingston upon Hull North (Diana Johnson) is going to discuss the remuneration of the members of the ISC—more particularly, that of its Chair. Of course, all of us who have held these positions over the years have had no remuneration. I welcome and support this development and only wish that it were retrospective so that I could claim two years’ back pay, but that is not going to happen. My hon. Friend’s amendment refers to the Independent Parliamentary Standards Authority, which I hope will support this measure. I also hope that the Chair of the ISC will get the same remuneration as is paid to the equivalent Chairs of Select Committees: in this case, I imagine, the Foreign Affairs, Home Affairs and Defence Committees. The right hon. and learned Member for Kensington (Sir Malcolm Rifkind) is extremely hard working in his position, and I believe that this is a right and proper thing to do.
Sir Menzies Campbell
I have the good fortune, in the interests of brevity, to be able to acknowledge all that has been said on both sides of the House, but I would like to add a thought or two of my own.
This Committee is sui generis; there is nothing else like it. To seek to bring it within a certain structure runs the risk of ignoring the fact that it has particular characteristics. The Chair of the Committee has particular characteristics, too, because by convention the Committee does not talk to the press. When any request is made for information from the print or electronic media, the proper course of action, which, if I may say so, I have studiously followed since my election, is to refer the matter to the Chair of the Committee. The Chair then finds himself in a very difficult and sensitive position regarding the extent to which he is able to respond to possibly legitimate inquiries about the work of the Committee, in so far as that is consistent with the fact that he, like all of us, signs the Official Secrets Act. No member of any other Select Committee in the House of Commons does that. Particular skills are therefore essential for the chairmanship of this Committee that are not necessarily required in the chairmanship of other Committees. I respectfully suggest that those who are best able to assess those skills are the members of the Committee themselves. Of course, they must have confidence in their Chair.
Sir Menzies Campbell
I will finish this point, if I may.
The amendment contains a contradiction in saying that we must elect the Chair in accordance with general circumstances while adding an extra requirement. That would make it a little difficult to maintain the unqualified democratic support that the mover of the amendment sought to persuade us to accept would be part of the process.
Steve Baker
I admire the way in which the right hon. and learned Gentleman is attacking my amendment and seeking to show a contradiction. We all agree that this Committee is different because of its need to access classified information, and that is the reason for having a different provision that does not exist in the case of other Select Committee Chairs.
Sir Menzies Campbell
First, I had a concession on the peers and now I have a concession on what appears to be an inherent contradiction.
It seems to me that these provisions meet the necessary requirements of a Committee that is sui generis and that they are entirely in accord with the extension of scrutiny and responsibility that the rest of the Bill provides.
Mr David Winnick (Walsall North) (Lab)
Let it be stated from the beginning—this should be made absolutely clear—that this is not about the integrity of any member, past or present, of the Intelligence and Security Committee. I am certain that the hon. Member for Wycombe (Steve Baker), who moved the amendment, is under no illusions, because it would be defeated in a vote. I hope there will be a vote, but am not sure that there will be.
I think that this has been a useful debate, however brief, because we rarely have the opportunity to debate how ISC members are appointed. My right hon. Friend the Member for Torfaen (Paul Murphy) has reminded us that until about 25 years ago there were no statutory regulations on the security agencies. I remember clearly my attempts to have debates on M15 and so on in the 1980s, but they were not welcomed, to say the least. In so far as M15 and M16 are accountable to Parliament, I thought it only right and proper that we should have the opportunity now and again to discuss their role.
As I stated many years ago, let me make it clear—in case anyone thinks otherwise—that I am not against the security agencies. Even when there was no acute terrorist threat such as that which we face now, I made the point time and again that every democracy has a right to protect itself and should have some sort of agency against those who want to do harm to it.
What we are discussing today is not, as I have said, a matter of integrity, but whether the House should have an opportunity to elect those who serve on the ISC. I see no reason why we should not do that. I do not like the view that has been expressed, more or less, that the security agencies could veto people whom they do not particularly like.
Diana Johnson (Kingston upon Hull North) (Lab)
I plan to speak to amendments 8 to 14, which deal with the election of the ISC Chairman, and then Government amendment 58, which deals with the broad proposals for the financing and resources required by the ISC. After that, I shall speak to amendment 58(a), which stands in my name and that of my right hon. Friend the shadow Home Secretary and would make provision for payment to members of the ISC.
It has been helpful having this debate and hearing the experiences of past and serving members of the ISC and other hon. Members who have taken an interest in the area for many years. It was important to hear the historical context and the explanation of why we are in this position. My right hon. Friend the Member for Torfaen (Paul Murphy) explained that when the ISC was set up in 1994 it represented a huge change in the relationship between Parliament and the security services and that we have been on a journey ever since—this is part of that journey. It was also interesting to hear what my hon. Friend the Member for Walsall North (Mr Winnick) said about the fight to get the ISC set up. It is important that we understand the history and why we are in this position, but we must also recognise the important work that the ISC does, and I pay tribute to all its members, who put an enormous amount of time and effort into their roles. It is vital that the public have confidence in the security services, and that demands confidence in their oversight.
In our debates in the other place and here in Committee, there were extensive exchanges between the Government and the Opposition about how to strengthen the role of the ISC. Since inception, the ISC has been composed of Members of Parliament, yet because of its unique nature, it has often been portrayed more like a component of the Executive, not least because its secretariat is provided by the Cabinet Office. The Government have now finally decided, however, formally to constitute the ISC as a Committee of Parliament. Changing its name to the “Intelligence and Security Committee of Parliament” emphasises not only that the ISC is composed of parliamentarians, but that they are doing the work of Parliament while serving on the ISC.
In Committee, we debated whether to move to a full Select Committee status for the ISC, and there was lengthy debate about what it would mean and how it would operate. I think there was clear recognition from both sides of the House that the special nature of the role of the ISC and the sensitive and secret information it routinely dealt with made its constitution worthy of separate and special consideration. Many parliamentarians are calling for reform to be hastened. I would like to set out the Opposition’s view. My right hon. Friend the shadow Home Secretary has called for the ISC to become a Select Committee. We recognise that, were that to happen and because of the special nature of its work, we would have to consider the most appropriate way of appointing a Chair.
We think that amendment 8 gets the matter the wrong way around: it would deal with the election or appointment of the Chair, whereas we need to deal first with the fundamental issue about the status of the Committee. The Bill provides for a Committee of Parliament, with the rules for its operation and procedure laid down in statute. Hon. Members will know that Select Committees are not created by statute, but formed by a resolution of the House and governed through Standing Orders. I recently reread the chapter in the book by the hon. Member for Chichester (Mr Tyrie) about the ISC and what reforms were needed. Of course, he referenced the Wright Committee recommendations about the ISC’s becoming a Select Committee and having an elected Chair, just like other Select Committees.
The problem is, however, that in the Bill the Government are establishing the ISC as a Committee of Parliament, not a Select Committee. We are, then, in a very different place from the established Select Committee structures. I note the comments of the hon. Member for Wycombe (Steve Baker), but amendment 8 would give the ISC the partial look of a Select Committee, when it actually is not a Select Committee. I also note that setting out in a Bill how the Commons should elect a Chair is problematical, because the House is governed by Standing Orders. Will the Minister say whether it is in order to put in a Bill a mechanism for how the House should operate?
My second problem with the amendment, which has been touched on by right hon. and hon. Members, is that it would require the Prime Minister to give written consent to any Member wishing to stand as Chair. As has been recognised, that does not happen with any other candidate for a Select Committee position, although it goes some way to recognising the special nature of the Committee. It would present lots of problems, however, as it would mean that the Prime Minister could decide not to endorse a candidate—an elected MP—as not suitable for a role, which would put the Prime Minister in a difficult position. I am not sure it is one we want to move to.
Sir Menzies Campbell
Let us imagine that, say, half a dozen people wanted to apply. Has the hon. Lady considered what would happen if the Prime Minister took the view that only one of them was suitable? What would happen to the element of choice lying behind the views expressed today?
Diana Johnson
The right hon. and learned Gentleman highlights yet another problem with supporting amendment 9 at this stage. He is right that it would take away the element of choice if only one candidate was endorsed.
James Brokenshire
I hear the point that the right hon. Lady makes. The intent of the changes in the Bill is to underline the greater scrutiny and the import of the ISC as a Committee of Parliament in fulfilling its work, and therefore ensuring that it has an appropriate mechanism for the publication of information relating to its deliberations. As we have already discussed, sometimes there are challenges on evidence given, perhaps in private, and we had some useful debates in Committee on public hearings. We hope that we will be able to work with the newly formed ISC to have public evidence hearings for some evidence that has previously always been held in private. I acknowledge that most evidence would probably still continue to be heard in private because of the very nature of the materials provided, but we want to look at ways to make hearings more public to show the important scrutiny that is provided by the ISC, and thus to enhance visibility, transparency and confidence in the scrutiny role.
Sir Menzies Campbell
Perhaps I might endorse the Minister’s enthusiasm for the public hearings, which would constitute a complete departure from what has previously been the case and provide an interesting opportunity for that greater degree of public interest and public understanding. My right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) has had to leave because of another commitment, but it is my understanding that he has been in informal discussions with the Minister about the issues raised by amendment 73. Am I right in understanding that it is possible for those discussions to continue and that consideration may be given in another place to an amendment that would satisfy both the Government and the Committee?
James Brokenshire
Informal discussions have taken place to work through the detailed and technical issues that need proper consideration and ensure we strike the right balance. I welcome that dialogue. Before I return to the substance of my right hon. and learned Friend’s point and respond formally, I will take an intervention from my hon. Friend the Member for Cities of London and Westminster (Mark Field).
James Brokenshire
I thank my hon. Friend for his comments. There is scope to deal with this further in the memorandum of understanding. I reiterate that it is not the Government’s intention to try and stop the ISC from continuing to do things in the way that it does at the moment as a consequence of the changes contemplated in the Bill, and I am content to reflect on providing further clarity in the memorandum of understanding to address some of those technical points. We have a framework in the legislation. While we may have found it challenging to get the precise legal wording right for an amendment because of those technical areas, I am willing to reflect on how we can seek to encapsulate the existing arrangements, under which the ISC conducts its affairs, in the memorandum of understanding.
These exchanges highlight some of the difficulties in putting changes in the Bill in a rigid way. In some ways, because of the nature of the evidence, they probably lend themselves to being addressed more effectively in the memorandum of understanding. If it will help the House, I am happy to give that commitment on how we may best address those challenges in greater detail in the memorandum of understanding. I hope right hon. and hon. Members will accept the spirit in which that commitment is given.
Sir Menzies Campbell
In the absence of my right hon. and learned Friend the Member for Kensington, may I say how grateful the Committee is for the attitude displayed by the Minister? We await the resolution with interest. We have a common intention; it is just a question of making sure we frame it in a way that satisfies all other criteria.
James Brokenshire
I understand. I look forward to continuing informal discussions, and hope that agreement on the memorandum of understanding on the operations of the ISC in Parliament will be resolved quickly.
Government amendment 59 is a technical, clarificatory amendment that makes clear how paragraph 5(2) of schedule 1 will operate. The insertion of the word “otherwise” puts beyond doubt certain technical issues that have been highlighted, so I will not take up the House’s time and go through it in detail.
On Government amendments 61, 62 and amendment 76, in Committee, a Government amendment was agreed to provide protection to witnesses before the ISC. It will prevent evidence given by a witness before the ISC from being used against them in any criminal, civil or disciplinary proceedings, unless it was given in bad faith. The provision, now in paragraph 6 of schedule 1, replicates an important part of the protection that witnesses before a Select Committee would have, by virtue of a Select Committee’s proceedings being subject to parliamentary privilege. In doing so, that will encourage witnesses appearing before the ISC to be full and frank in the evidence that they provide. It is perhaps worth stressing that witnesses before the ISC currently enjoy no special protections with regard to the subsequent use of their evidence.
The amendment made in Committee was therefore an important change to ensure that the ISC is able to perform its oversight function even more effectively, because the fuller and more candid the evidence the ISC receives, the more effective it is likely to be in supervising the security and intelligence community. During the debate in Committee, my hon. Friend the Member for New Forest East and the hon. Member for Kingston upon Hull North (Diana Johnson) questioned whether the protection went far enough. In response, I made a commitment to reflect carefully on the points that were made. I have considered whether further protection could be given to witnesses’ evidence, preventing its disclosure for the purposes of any legal proceedings; in other words, not merely legal proceedings where the evidence would be used against the particular witness. I am happy to confirm to the House that, while we concluded that such a protection would be problematic in terms of compatibility with the European convention on human rights in relation to criminal proceedings, we are satisfied that it will be compatible for civil and disciplinary proceedings.
Government amendment 61 therefore introduces a statutory protection for evidence given by witnesses to the ISC, preventing its disclosure for the purposes of any civil or disciplinary proceedings. That protection applies not merely to civil and disciplinary proceedings where the evidence would be used against the particular witness, but to all such proceedings. As a result, the existing prohibition on the use of evidence against the witness needs only to deal with use of evidence in criminal proceedings, since the wider protection given by the provision introduced by Government amendment 61 will cover use of evidence against a witness in civil or disciplinary proceedings. Government amendment 62 makes the necessary consequential changes.
As amended, paragraph 6 of schedule 1 will therefore provide a statutory protection for evidence given by witnesses to the ISC, preventing its disclosure for the purposes of any civil or disciplinary proceedings. In addition, evidence given by a witness before the ISC will not be able to be used against that witness in criminal proceedings. Of course, evidence that is deliberately misleading is of no assistance to the ISC. Accordingly, the protections do not apply to evidence given in bad faith. It is important to explain the context in which the drafting has been framed.
It may be that others will argue that this further protection, while welcome, does not go far enough. Indeed, I note that the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) has tabled an amendment that would extend the protection even further, and no doubt the hon. Member for Kingston upon Hull North will wish to speak to that. All I will say at this stage—obviously, I will listen to what the hon. Lady says in her speech—is that we believe there is a significant issue of compatibility with the European convention on human rights. For example, it is possible that criminal proceedings against an individual could hinge on the testimony of a particular witness who has given inconsistent evidence to the ISC about broadly the same matters. If approved, this protection in the proposed amendment would prevent the inconsistent evidence given before the ISC from being used by the defence in the criminal proceedings to discredit the witness.
That would lead to obvious unfairness for the defendant in criminal proceedings. We do not believe that our preferred protection on this issue runs into that problem, because of the nature of its framing and the protections against self-incrimination. The ECHR has recognised that the privilege against self-incrimination lies at the heart of the notion of a fair trial. By providing the accused with protection against improper compulsion by the authorities and thereby avoiding miscarriages of justice, the existing protection secures the aims of article 6, whereas we judge that amendment 76 would run into challenges and issues in that way.
James Brokenshire
I fully respect what my hon. Friend has said. We have given careful consideration, at length, to the statutory protections afforded to the ISC through this Bill. He will remember the debates we had in Committee about issues under the Data Protection Act and the Freedom of Information Act, along with a number of other statutory provisions, which we believed needed to be addressed to afford the ISC a number of additional protections. Although I very much hear what he says, the Government believe that we have taken this as far as we can through our amendments—and within the remit of article 6 of the ECHR, for example—to afford those protections and frame the provisions. I note the concern he has raised; all I would say is that the Government have taken some additional steps—on things that the existing Committee does not currently have—in how the Bill is framed to move the Committee as close as we can, within the framework of law, to provide the relevant protections.
As members of the ISC who are here today will recognise, consideration was given to how one might approach the issue of parliamentary privilege. Indeed, there was a lengthy debate in the other place on that issue. There is a broad recognition that trying to define parliamentary privilege in statute would open a whole new array of issues. Indeed, I do not think this House would welcome an attempt to frame the privileges that reside in this place by way of an Act of Parliament, which might be subject to further litigation and challenge, which not only might have an effect simply on the ISC but could have a limiting effect on parliamentary privilege for broader issues in this House. When considering this issue, everyone involved in the examination of the Bill thought that that would be a very unfortunate step to take. Therefore, the Government have thereafter sought to approach the issue by framing matters within existing legislative frameworks.
Sir Menzies Campbell
I just want to advise the Minister—who might not need advising—and the House that there is a Joint Committee of both Houses wrestling with precisely the problem he has just outlined, and it would not have made a great deal of sense for this Bill to proceed in a way that pre-empted any conclusions reached by the Committee.
James Brokenshire
I entirely agree with the right hon. and learned Gentleman; hence the reason the Government have taken the approach they have.
Let me turn briefly to amendment 55, which concerns the ISC’s ability to oversee operational matters. With the amendments, the Bill now provides for three routes by which the ISC may consider particular operational matters. The first is where the Prime Minister and the ISC are agreed that the matter is of significant national interest and not part of any ongoing intelligence and security operations. The second route is where the Government request the ISC to consider a matter notwithstanding the fact that those criteria are not met. The third is where the ISC’s consideration of an operational matter is limited to considering information provided to it voluntarily by the agencies or another Department.
That additional route was provided to meet a further concern of the ISC—that the requirement that both the ISC and the Prime Minister should be satisfied that the criteria for oversight of operational matters had been met risked slowing the provision of information to the ISC on routine operational matters. Obviously that already happens now; the concern was that not framing the third limb might hinder it. We therefore made an amendment in Committee to address that third point. The key issue is that, as has been highlighted, for the first two categories there is the ability to require further information to be given, whereas for the third limb—because, in essence, information is provided without being compelled—those further requirements did not operate. That is why the structure has been framed in this way.
My hon. Friend the Member for New Forest East expressed some concern about the term “voluntarily”. I think his point was that this was in some way a presentational issue—that we understood what we were talking about when it came to information that would ordinarily be provided to the Committee. We have reflected on that point; hence the reason for a further amendment to try to clarify rights of access.
Caroline Lucas
In the interests of time, I will leave the matter there and pursue it via other avenues. I am grateful for the opportunity to have aired this really important case.
Sir Menzies Campbell
I am entirely sympathetic to what the hon. Member for Brighton, Pavilion (Caroline Lucas) has said about that case. However, a statutory avenue is already available under the Regulation and Investigatory Powers Act 2000, which set up the Investigatory Powers Tribunal. Further to the intervention by the right hon. Member for Knowsley (Mr Howarth), a fellow member of the Committee, one might not be able to describe the proposed power that she wishes to provide as quasi-judicial, but it might possess a hybrid relationship in being both investigative and judicial, or in a position of seeking to create redress.
Apart from that, there is a fundamental statutory point. The hon. Lady’s proposed subsection (4A) refers to a situation in which
“a plausible claim has been made by or on behalf of an individual to the ISC that the Security Service…has disseminated any information to any recipient concerning any person that appears to be…materially false; and…harmful to the person defamed.”
The breadth of that goes far beyond even the jurisdiction of any court in the United Kingdom of which I am aware. Proposed subsection (4B) says that
“the ISC shall fully and expeditiously investigate the claim”—
so it does involve an investigative function—
“and, where the claim appears to be well founded, shall ensure that the misinformation is expeditiously corrected.”
But by what means? The ISC is not in a position to implement any such action. The amendment is not legally well-founded. In any event, as has been pointed out, its scope goes far beyond anything that the Committee’s staff and resources would permit. Moreover, there is no indication of how the powers would be exercised or how they could ever be implemented.
Sir Alan Beith
I want to consider briefly the restrictive wording of parts of clause 2 and the voluntary issue that has been raised by a number of Members.
I served on the Intelligence and Security Committee for about 11 years from its very beginning. It was a slow and painful task to get the first generation of heads of agencies and civil servants from Departments to understand the Committee’s need for a deep understanding of the relevant matters in order for us to do our job effectively. Subsequent generations of heads of agencies were ready to involve the Committee more closely and to bring up operational matters, whatever the statute said. It did not take me long to realise that it was not possible for members of the Committee to do their job properly unless they understood how various kinds of operations were conducted and the constraints and problems faced by the agencies. In particular, it was not possible to discharge an important responsibility without an understanding of operational matters.
One of the purposes of the ISC, where Members of both Houses of Parliament look closely at the work of agencies, is to give people on the outside—both in this place and in the community at large—a sense that Members who are there by democratic means are observing the agencies sufficiently closely to give confidence that their work is within the framework not only of the law, but of the ethics and principles by which we try to run our country. The background is that agencies were often accused of doing precisely the opposite in years gone by. Unless we can give people that confidence and say, “Yes, I have looked very closely at this matter and I do not think you need to be concerned about it,” the Committee will not be discharging properly one of its most important roles. We found that we had to look very closely at operational matters and that became easier as time went on.
The work sometimes involves what are, in effect, ongoing intelligence operations. In some fields, the work never stops and an operation to do with a particular recurrent problem does not have a simple end, so the provision in clause 2(3)(a)(i) is restrictive.
I fully understand how the Government have arrived at the word “voluntarily”. It would have been absurd if the wording had prevented the Committee from continuing to work closely with the agencies in the way it has done in recent years. That would have been ridiculous, so the word is there for a perfectly respectable reason. Indeed, things have been improved by the insistence that, if the Committee requests something, that does not by definition make it involuntary. However, I still think, as the hon. Member for New Forest East (Dr Lewis) said, that that is not the kind of language we want to see in the Bill. Nor does it give people outside the confidence that this Committee will be able to find out whether something is going wrong when it needs to do so, or that it can be relied on when it seeks to give assurance that all is reasonably well.
The task of getting this right is by no means over. The memorandum of understanding may be able to deal with those issues better, but, even then, words are being put on paper and when that happens, as we have discovered, simple, practical and sensible ways of doing things may appear to be precluded. Moreover, when there is friction or tension, it becomes easier for the head of an agency or, at least as often—indeed, perhaps more often—a Minister or civil servant to say, “This goes beyond the memorandum of understanding. It is outwith the terms of the statute.” We have heard such language and the right hon. Member for Torfaen (Paul Murphy), who is a previous Chairman of the Committee, will remember how rigid some people in the relevant Departments could be from time to time.
Ministers need to make it clear, as they have done to some extent in these discussions, that it is in the interests of the democratic accountability of these extremely important and valuable agencies that the public have confidence, not only in the agencies, but in that process of democratic accountability, circumscribed as it is by the need to protect the work of those agencies.
Sir Menzies Campbell
Part 1 of this Bill is a logical extension of a process that began approximately 20 years ago. The development of the relationship between the Intelligence and Security Committee and the services, based on respect but also on a clear understanding of their respective responsibilities, has been a substantial and important constitutional development, and nothing should take away from that.
The Minister without Portfolio described me as a heavyweight. It is a description I have been trying to avoid as I get older, for reasons he will readily understand, but there is no doubt that the matter we are discussing causes considerable controversy, and let me begin by saying I do not like part 2 of the Bill. Quite often we have to pass legislation that we do not like, however, because in our judgment it is necessary to do so, as the balance favours having the legislation. That is the principle on which I base my conclusion in this case, for which I will not be the darling of the Liberal Democrat conference in Brighton, not least because I am going back to my constituency—not to prepare for government, but to explain the consequences of the Government’s decision to close the Royal Air Force base there, which has been a source of great pride and has made an enormous contribution to the life of the community. What I will say and do is contrary to the expressed—and potential—views of the Liberal Democrat conference. I respect those views, but I think I am entitled to expect in return that my party colleagues will respect mine.
I base my views on this difficult matter on three influences: first, the fact that I have been a member of the ISC for some years; secondly, my experience as a Member of this House; and, thirdly, the fact that the law has been my trade since 1968 and I believe I know and understand it as well as any other Member of this House. I also believe that I have done as much as anyone to pursue the objectives of ensuring the protection of the citizen and the preservation of human rights.
The implication that those of us who support this legislation do so out of a slavish willingness to advance the interests of the United States has caused me some resentment, as has the suggestion that we are a cat’s-paw of the intelligence services. Not only are these claims insulting, but in my case they are palpably wrong. In recent years, for example, I have argued very strongly for an alteration in the extradition arrangements between our two countries, and 10 years ago almost to the day I and the then leader of my party were leading the opposition to the too-close association with George W. Bush and the United States in the unhappy venture into Iraq.
However, when senior officials in the current American Administration look us in the eye and tell us that their apprehension about the confidentiality of their sources is influencing the quality of the intelligence they are willing to share with the United Kingdom, should we ignore or dismiss that? If that position is then supported by American agencies themselves, should we ignore or dismiss it? When the UK’s agencies confirm under cross-examination their impression that the quality of shared intelligence with the United States has diminished, should we ignore or dismiss that? When the Americans say they are concerned about the risk to the lives of their agents or the revealing of techniques and procedures, should we ignore or dismiss that?
Do I like closed material proceedings? I do not. But do I think public interest immunity certificates are the answer? I most certainly do not. I have re-read chapter 13 of the Scott inquiry into arms to Iraq. It is heavyweight reading, but if any Members wish to become advocates for the value and validity of PII, I recommend they read it and find out the true implications.
If one wants to avoid embarrassment, a PII certificate is one of the most effective ways of doing so. If one wants to prevent a litigant from accessing evidence that might assist that person in establishing a case, PII is a very convenient way of doing so. One thing that has interested me more than anything else in this rather controversial debate has been the fact that many of the interested parties that now express confidence in public interest immunity certificates have previously been the first to criticise them.
The Bill has improved. Has it improved as much as I would prefer? Of course not, but how many times can any one of us put our hand on our heart and say that the piece of legislation for which we have voted is precisely and exactly as we would have wished? We are at a crossroads between principle and necessity, and we have to ask whether the balance that has now been struck is acceptable. That, essentially, is a question of individual judgement and it is that individual judgement that our constituents send us to this place to exercise every time we are faced with a dilemma of the kind the Bill obviously creates. Why do I say that? The balance struck is sufficient because of the developed and controlling role of the judiciary or the judge in any case and because of the palpable independence of the judiciary in these matters. We need only consider the Binyam Mohamed case, the observations of the Master of the Rolls and the extent to which the Government of the day were unable to escape the consequences of the action raised against them.
As is often the case, distinguished lawyers of sound judgment take different views of these matters. Sometimes, it seems to me that it is like a game of political contract bridge: “If you play your 700 lawyers and my good friend Baroness Kennedy, I will play my Ken Clarke and my Lord Woolf in an attempt to outbid you.” Such decisions are often as much a matter of instinct as logic.
Closed material proceedings have been described as Kafkaesque, but I doubt that those who say so have read Kafka. Others have said that they illustrate a form of Soviet-style justice, but a many litigants and accused persons in the Soviet system would be perfectly happy to swap their arrangements for those in this country, both north and south of the border. I would prefer not to have closed material proceedings, but I am satisfied that in this case the protections are such that they are justified.
Mr Leigh
I very much respect the views of the right hon. and learned Gentleman, but is he satisfied, as a Liberal, with the notion that from now on a litigant will not be allowed to look at the evidence in their case and cross-examine it on the basis that it will be made available to them? After all, is that not quite a serious procedure that is quite different from the defence withdrawing a piece of evidence or not adducing it at all?
Sir Menzies Campbell
It is a procedure that already exists in our law. If my hon. Friend is concerned about the universal application of the principle, that argument was lost some time ago.
Jeremy Corbyn (Islington North) (Lab)
Yes, that argument was lost a long time ago, but is that a reason to pass the Bill into law when it makes the situation worse? Once again, it suggests that the view of Parliament is that somehow it is okay to go through a judicial process in which the defendant is not fully aware of the case against them and in which the public is totally unaware of the issue. It sets a dangerous precedent to have any avoidable secrecy in the judicial system.
Sir Menzies Campbell
Since the hon. Gentleman puts the point that way, let us turn it around and ask what he would do. Would he have elements of the conduct and the sources of the security services—sensitive, and perhaps at great risk to those who provide human intelligence—exposed in our courts? That seems to me the only possible alternative, or else, as has been suggested, we simply say there is a financial cost to be borne and we will settle any case that may have the consequence of causing such sensitive information to be revealed. That is not justice, as I understand it. That is the failure of the judicial system to reflect the reality of the proceedings which are brought before us.
Sir Menzies Campbell
But if the case raises the kind of issues that were raised in the case of Binyam Mohamed, what does my hon. Friend think the response would be if the state said, “We’re not producing any evidence at all”? What inference does he think people would draw if no defence was mounted? Of course the inference drawn would inevitably be one of guilt.
I finish by saying this: a lot has happened since the twin towers in New York were bombed and thousands of people died. Not all of it could be described as something of which we are proud, but the one thing that certainly happened then and which was reflected in many of the speeches that were made here on the special occasion when Parliament was summoned, and much of what has happened since then, has demonstrated that things were irretrievably and irrevocably changed as a result of that. We have only to look at the incidence of proceedings being taken in this country in relation to acts of terrorism or proposed acts of terrorism to realise the extent of that change. That is why, although I have no love for this legislation, I believe it is appropriate.