Justice and Security Bill [HL]

Lord Campbell-Savours Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Rosser]

My Lords, we support the amendments tabled by the noble Lord, Lord Butler of Brockwell. Frankly, I cannot add anything to the points that have been made in support of them. The wording in the Bill does not do a great deal to show a degree of independence for the Intelligence and Security Committee from the Executive. That independence would be enhanced if the Government accepted the amendments.

Amendment 36 is basically a probing amendment. Its purpose is to seek to change the definition of the basis on which the Prime Minister may redact information from an ISC report. The Bill states that the Prime Minister may do so if the information is,

“prejudicial to the continued discharge of the functions of the Security Service”

and the other organisations mentioned. The amendment would provide that information should not be disclosed in the interests of national security or on the basis that the ISC report contained sensitive information as defined in Schedule 1(4). The reference in Schedule 1(4) to “sensitive information” refers to the basis on which a Minister of the Crown may decide under paragraph (1)(b) or (2)(b) that information should not be disclosed if the Minister considers that it is sensitive information, which is then as defined in Schedule 1(4), or information that, in the interests of national security, should not be disclosed to the Intelligence and Security Committee.

The criterion proposed in the Bill is either the same or basically the same as in the Intelligence Services Act 1994. The reason why this is a probing amendment is to try to find out why it is felt necessary to have what appears to be a fairly wide definition and not in fact to have a definition that would bring it in line with the criteria permitting the Government to veto the disclosure of certain information to the Intelligence and Security Committee, as set out in Schedule 1(4), which defines sensitive information that is referred to in Schedule 1(3)(a) and relates to the circumstances under which a Minister of the Crown may decide that information should not be disclosed.

Why does the definition need to be broader for the reports to Parliament from the Intelligence and Security Committee than it does for the disclosure of information to the Intelligence and Security Committee? It is not clear why there is that difference or indeed what its significance is. What, for example, would my amendment not include that would be included in the wording in the Bill? As I say, that appears to be a wider definition, and I am hopeful that the Minister will be able to explain why there is that difference in definitions and whether, in the Government’s view, what they are proposing in Clause 3(4) is wider than the definition of sensitive information that appears in Schedule 1(4) and relates to the definition that would be applied and that a Minister of the Crown would have to take into consideration if he was going to decline to agree that information should be released to the Intelligence and Security Committee.

In the amendment there is a further addition beyond the sensitive information; namely, that information should not be disclosed in the interests of national security.

[Lord Campbell-Savours]

My Lords, this amendment should be of great interest to present and former members of the committee because there is a problem in the legislation which they should be well aware of. As I read it, Clause 3(4) is a catch-all, whereby if one cannot block the provision of information to the committee under paragraph 3(4) of Schedule 1, one can block the information under the catch-all provision of it being,

“prejudicial to the continued discharge of the functions”,

of the services. This is a catch-all provision whereby the Prime Minister might want to block certain information which does not necessarily meet the criterion set down under sensitive information in paragraph 4 of Schedule 1. To my mind, the only defence for the committee under such arbitrary arrangements is the extent to which the committee is consulted. Clause 3(4) states:

“The ISC must exclude any matter from any report to Parliament if the Prime Minister, after consultation with the ISC”.

What form would that consultation take in the event that he wished to exercise a veto on the provision of that information under what I call this catch-all provision? I suppose that, in theory, it could be looked at the other way. The Prime Minister might, in certain circumstances, not wish to be tied down to the detailed criterion in the sensitive information provisions of Schedule 1. He might want to release information that was sensitive but would not be prejudicial to the services carrying out their functions. It will be interesting to see what the Minister says in response.

[The Marquess of Lothian]

Before the noble Lord sits down, I would like to raise a question with him. He has been a member of this committee and I have been on it since 2006. My understanding is that once the report is complete there are matters, such as the amounts of money spent on various parts of the services, which have to be in the report, but which should not be in the published version and therefore are redacted. That is the difference between those two types of information and it is quite right that they are redacted.

I am sure the noble Lord remembers that the process of redaction is that the full report goes to the Prime Minister and comes back with suggestions for redactions. The committee then goes through them with a great deal of care and independence. Certainly, in my recollection, we have never had a redaction without the committee having consented to it.

[Lord Campbell-Savours]

Yes, but the thrust of the amendment moved by my noble friend Lord Rosser is that for some reason, which I cannot understand and he clearly does not understand either, the Government have picked another set of criteria for refusing to provide information to the committee, instead of simply using the provisions set out under Schedule 1. Again, I shall be interested in the Minister’s response.

[Lord Lester of Herne Hill]

My Lords, the reason why I am sympathetic to Amendment 36 has already been explained. My difficulty with the Bill as it stands is that its wording is very subjective with regard to the Prime Minister. I like the way in which Amendment 36 seeks to spell out some criteria which are echoed in the Bill itself rather than leaving the matter entirely at large.

When I spoke last time in Committee, I briefly mentioned Humpty Dumpty to the Minister. I am not sure whether he got the import of what I was saying. I was referring to Liversidge v Anderson, the famous case in which the late Lord Atkin referred to Humpty Dumpty. The emergency legislation said, “If the Minister thinks”. The late Lord Atkin said, in dissenting in Liversidge, that that was similar to Lewis Carroll’s Humpty Dumpty. I, on the whole, prefer criteria to be spelt out in the Bill and I like the way in which that has been done in Amendment 36, unless there is some very good reason for the contrary.

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Moved by

[Lord Campbell-Savours]

37: Clause 3, page 2, line 41, at end insert—
“( ) The ISC shall consider any request from a Select Committee of Parliament to the ISC to make a report on any particular issue related to national security and shall report to Parliament whether it has agreed to make such a report.
( ) The ISC shall consider any request from a Select Committee of Parliament for the transfer of information which that Select Committee of Parliament has stated it needs to carry out its functions as a select committee.”

[Lord Campbell-Savours]

Amendment 37 derives directly from conversations I had with the former MP Chris Mullin, a good pal of mine, while he was chairman of the Home Affairs Select Committee in the House of Commons and also conversations with members of the Defence Select Committee in the Commons. They were denied access to the agencies for reasons that at that time I was able to accept. But there were occasions when they felt that we could secure on their behalf access to material which, following discussion with the agencies, could under certain conditions possibly be made available by the ISC to those parliamentary Select Committees. It was their way of trying to ensure that questions would be asked of agencies where they were unable to ask those same questions themselves. It was not that they always sought to have access to the material, but that they wanted to be assured that the ISC was prepared to ask the questions.

I recognise that in the past 11 years since I was a member of the committee the relationship between the Select Committees and the agencies has changed, although the noble Lord, Lord Lester of Herne Hill, in his two interesting interventions on Monday, raised difficulties that his committee had experienced with the Joint Committee on Human Rights—no doubt he will wish to speak during this debate.

My amendment is only a modest attempt to clarify the relationship. There are two parts to it. The first part would place a requirement on the ISC to consider a request from a Select Committee for it to make a report to Parliament. It would not require publication of that report or its transmission to the Select Committee which had made the original request. The only requirement would be for the ISC, if it had complied with the request, to report to Parliament that it had made such a report—in other words, that it had carried out an inquiry.

The second part of Amendment 37 would place a requirement on the ISC to consider a request from a Select Committee for information to be given to that committee where it could show that it needed the information to carry out its functions as a Select Committee. Both parts of the amendment have been carefully crafted—although I am an amateur in these matters—so as to avoid either intentional or inadvertent breaches of national security. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I support the amendment for the reason indicated by the noble Lord, Lord Campbell-Savours; that is, it seems to be a very practical way of solving the problem that I raised when we last discussed the Bill. It treats the ISC quite properly as within the inner ring of confidence and the best judge at that stage of the relationship between Parliament through its committees and the Intelligence and Security Service. I find the amendment attractive because it would mean, for example, that if the Joint Committee on Human Rights wished to be helped by the Intelligence and Security Service it could go to the ISC with a request instead of the awkwardness of writing and seeking direct help. The ISC could then act as the intermediary, decide what was appropriate and then come back to that committee. That seems a practical way of dealing with what would otherwise be an awkward situation. I am glad that the Minister has indicated that he will anyhow reflect on the points that I raise before Report, but the amendment seems an ingenious way of producing a practical answer which should not damage the work of the ISC, the Security and Intelligence Service or the public interest.

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[Lord Henley]

My Lords, I have served on one of the two committees that the noble Lord refers to—and felt considerably out of my depth—but not on the other. I note what he says about the memorandum of understanding between them. This might be something that the ISC and other committees could reflect upon between themselves and decide how they want to proceed. Again, however, I do not think that this is best set out in statute, although obviously we will reflect on these matters. That is the point of this House and why we are going through a Committee process. I have set out why I do not think that this is the best way of going about it, but I shall listen to the noble Lord, Lord Campbell-Savours, and trust that he will feel able to withdraw his amendment at this stage.

[Lord Campbell-Savours]

In some ways, that may be a helpful response. Following the intervention of the noble Lord, Lord Lester, and his reference to the memorandum of understanding, and on the basis of what the Minister said the other day—that there would be an ongoing process over the next few months during which this memorandum of understanding was to be drawn up—

[Lord Henley]

It is one thing if we are talking about a memorandum of understanding between the Government and the ISC. I think my noble friend was referring to a memorandum of understanding between the ISC and other Select Committees. That, obviously, would not be a matter for the Government.

[Lord Campbell-Savours]

It might not be a matter directly for the Government but it could well be incorporated into the document. The memorandum of understanding might deal with the whole question of the principle of the relationship that should or might exist between this halfway-house committee and Parliament.

I am grateful to the noble Lord, Lord Lester, for his intervention. I listened to the three reasons that he gave and I am not altogether sure that, apart from the last one, the first two would really register with members of the ISC. There may be some argument for the last one. On the basis of further consideration of these matters, I beg leave to withdraw this amendment.

Amendment 37 withdrawn.