Justice and Security Bill [HL]

Lord Campbell-Savours Excerpts

Monday 9th July 2012 Lords Chamber

[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.

[Lord Campbell-Savours]

My Lords, this concerns precisely the same query as I had during our debate on the previous amendment—that is, I cannot understand what the provision is referring to, although I recognise the wording. The wording comes from the draft of something else that I have read and it must already be known to the agencies. Therefore, some briefing must have been given to the Minister regarding the source and why its inclusion in the Bill is warranted. Perhaps even now at this late stage I can, on a second occasion, ask for the same information. I should like to know the answer. It may be that the provision should simply be redrafted in language which simpletons such as myself can understand. However, at the moment I do not understand what it means.

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[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.

[Lord Campbell-Savours]

My Lords, I have proposed Amendment 31 not because I want to remove completely the intent behind the words,

“is not part of any ongoing intelligence or security operation”;

but because it needs qualifying further. Under the proposals in this clause, it is possible to block much operational material being brought before the Committee. As I read it, the agencies need only declare that a matter is,

“part of any ongoing intelligence or security operation”,

and they can block it and deny access to the committee. What is the danger in that? It could close the door on a large volume of information.

Let us take as an example operations in Iraq. Because of the merging of operations, one could simply group an operation, which the committee might regard as one that it should be considering, with other operations in Iraq but merge them under a single operation heading and, by taking that action, avoid bringing information about those operations before the committee. Therefore, merged operations may well hide information from the committee to which it should have access. The same would apply to operations in Afghanistan. It could certainly apply to operations relating to drugs in Colombia and, without doubt, it could refer to operations in Northern Ireland. Simply the declaration that they were merged under one operation would mean that the committee could be denied information. I wondered whether the services were aware of this when they were making their submissions during the drawing up of the Bill, so that they were prepared to concede the principle of access to operational information.

That brings me back to my model, because it is only if the chairman of the committee has access to everything that that possible problem can be avoided. The chairman would be in a position to argue with the agency about whether the merging of operations was denying information to the committee.

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[Lord Campbell-Savours]

This has nothing to do with the courts. This will be a discussion in the committee with the chairman and the agencies, which is where we may well end up having an argument. The agencies may say no, or Ministers may say, “No, you cannot have it because it is part of some ongoing operation”. They will not know the point at which operations have merged into a long extended operation that might go on for a long time. I am quite worried about this section. I am beginning to believe that the agencies might have conceded on this fact because they knew that they would be able to use this issue of merged operations as a way of avoiding giving information to the committee. The Minister is saying nothing here to reassure me. Perhaps he will give us more detail on Report about what constitutes “ongoing” in the way which the noble Lord, Lord King, has suggested.

[Baroness Hamwee]

My Lords, on that subject, when the Minister considers the word “ongoing”, will he tell the House whether it covers a longer period than “current”? I think I would have understood “current” investigations.

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Moved by

[Lord Campbell-Savours]

33: Clause 2, page 2, line 24, at end insert—
“(d) must be approved by Parliament”

[Lord Campbell-Savours]

My Lords, I shall be very brief as the hour is late. I cannot see what the problem is with the Government accepting this amendment, which would simply require that the memorandum of understanding under this clause should be approved by Parliament. It is not as if the memorandum of understanding would include security sensitive information. As I understand it, it is simply about structures. The parliamentary debate would be about the structures that have been established in the detail of the memorandum of understanding. In addition, if Parliament were to give approval during the debate, Members might want to raise issues not covered in the memorandum of understanding. One of these might be regarding the investigator. There was once an investigator to the ISC. If I remember correctly, his name was Mr Morrison, and for reasons I have never understood his employment was terminated. Many Members called for the investigator to be in place and I should have thought this is an example of an area where Members of Parliament might want to question Ministers.

There is also the issue of access to individual officers within the service. When I was on the committee, the arrangement was that it was primarily the directors of the services who gave evidence to the committee, although on occasion it was one or two others. It might be that the memorandum of understanding should be considered by Parliament in the context that there needs to be some flexibility on whether people other than agency directors—perhaps officers from lower down within the ranks—should be called upon to give evidence to the committee. I do not know because this is an area I do not know a lot about. All I am saying is that I think there is room here for a debate in Parliament to consider the detail of the structure, and it is something that we have not debated here today.

My noble friend Lord Rosser dealt in some detail with these issues during the debate on one of his amendments and he sought assurances. I do hope that the Minister can explain today why Parliament will not be approving these matters. I understand that the document will be laid before Parliament, but that there will be no parliamentary debate. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendment 34 in this group, which uses the formal language of the affirmative procedure but comes to the same thing as the noble Lord’s Amendment 33. I tabled the amendment in part because I wanted to seek more information about the memorandum of understanding. The noble Lord may not have seen it, but the Government have today circulated a long note responding to a number of points raised by noble Lords at Second Reading, for which I thank them. The note includes a paragraph on the memorandum of understanding in response to my question about whether we will be able to see a draft of it, or of a framework, to enable further debate.

[Lord Campbell-Savours]

Did the noble Baroness say that she had seen a draft document or memorandum of understanding? Perhaps I misheard. Could she clarify what she said? I am sorry I could not hear.

[Baroness Hamwee]

No, I said a note from the Government responding to points made by noble Lords at Second Reading.

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[Lord Henley]

My Lords, again I do not think that my noble friend followed what I said. We will not agree the final memorandum until after the Bill has completed. However, I make it clear that we want to produce a draft of it at an earlier stage as we complete our discussions with the ISC. Once we have an agreed draft, it is our intention to publish it to help inform debate. I hope that this will happen before Report. The Bill is only just starting in this House. It has to go through another place as well. As discussions on this will be ongoing—I must not use the word “ongoing”—as the Bill is considered by Parliament, it would not be appropriate to share the first draft before at least it has been agreed by both parties.

My other point is what I said at the beginning of my remarks: the memorandum of understanding, having been agreed by the Prime Minister and the ISC, can be altered and replaced by agreement at any time. Since it is a working document that can move on and be altered and agreed by the two parties, it would not be appropriate to constantly put it back to both Houses of Parliament for debate and agreement. That is not the position with other memorandums of understanding. Normally there is no parliamentary approval process. That is why I mentioned that this had been to the Lords Delegated Powers Scrutiny Committee, which, as far as I know, is perfectly happy with the process.

[Lord Campbell-Savours]

I will not delay the Committee. I am grateful to the noble Lord, Lord King, who clearly understands exactly what is being said—namely, that Parliament will be denied the right to approve the memorandum of understanding. I am sorry that I did not see a copy of the letter that the noble Baroness, Lady Hamwee, was fortunate to receive. It may have truncated my comments during debate on a number of amendments this evening. However, I suspect that we will have rich pickings in the memorandum and that we will come back to it on Report. I beg leave to withdraw the amendment.

Amendment 33 withdrawn.