Justice and Security Bill [HL]

Lord Campbell-Savours Excerpts

Monday 19th November 2012 Lords Chamber

Moved by

[Lord Campbell-Savours]

1: Clause 1, page 1, line 5, leave out “body” and insert “Select Committee of Parliament to be”

[Lord Campbell-Savours]

My Lords, I hope that Members, wherever they are in the Palace of Westminster, will make a point of listening to this debate as it is a very important one and raises an issue which has been under continuing discussion, certainly in the House of Commons but outside it as well, over the past 14 years. The issue is very simple: the Intelligence and Security Committee—the ISC—which comprises Members of the Commons and of the Lords and which monitors the agencies responsible for national security, is to be reorganised. The Government propose that it should comprise a committee of parliamentarians constitutionally detached from Parliament: that is, an arm’s-length committee.

My Amendment 1 proposes full Select Committee status for the ISC, thus enabling it to enjoy the absolute protection of privilege conveyed under Article 9 of the Bill of Rights 1689. Amendments 2 and 4 in the next group in the name of the noble Lord, Lord Butler, seek to graft on to the Government’s arm’s-length committee proposal all the rights and privileges of a full Select Committee. The Government claim that they can do this under some highly controversial statutory provision which lawyers believe could be overturned in the courts.

The issue for the House today is simple: why is there all this ducking and weaving by the Government to avoid giving the ISC full Select Committee status, which is what my amendment seeks to do? The noble Lord, Lord Henley, who was the Minister when these matters were considered in Committee, argued that the Government’s proposal for the arm’s-length committee was to ensure that safeguards are in place to protect against the disclosure of sensitive information, retain a statutory ability to prevent publication of sensitive material, ensure that the most sensitive material can be withheld from the committee and to ensure that safeguards exist so there is adequate provision for those exceptional circumstances where the disclosure of information even to the chairman would be damaging to national security. I find that quite remarkable. The Government also seek to ensure that, as regards appointments to that committee, there is little risk of unauthorised disclosure. I argue that all these safeguards are fully and equally available under Select Committee status without any potential challenge on parliamentary privilege.

There are three issues to be considered: the confidence of the public in the new arrangements; the practicality in terms of protecting national security; and, finally, privilege itself. On the confidence of the public I can do no more than quote the very wise words of the noble Lord, Lord Deben, in Committee. He said:

“The issue is the confidence of the public in this committee”.

He added:

“The advantage of a Select Committee is primarily that it is something that people know and it has, over the years, established a position, as a concept, of independence”.

He asked:

“Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special?”.—[Official Report, 9/7/12; cols. 925-6.]

I could not put it better myself.

On practicality, my amendments provide a choice. We could put this whole arrangement into statute with the consequential deletions of Clauses 1 to 4, or we could proceed by way of a series of parliamentary resolutions, which is my preferred option. Let me explain.

I believe that Parliament could carry resolutions that would make the committee as hermetically sealed as the structure that currently exists. We are told that such a committee could not be prevented from taking evidence in public session. In response, I argue that a resolution of both Houses could introduce a general prohibition on the Select Committee taking evidence in public. It could further place a requirement on the committee to seek the permission of the appropriate agencies and the Prime Minister in conditions of dispute. As prime ministerial appointees, members are currently responsible for reporting collectively to the Prime Minister. It is argued that such limited powers to report would not be possible if the committee were appointed by the legislature. There is no reason why the resolutions of both Houses should not stipulate the procedure to be used in the publication of reports. They could require the committee to publish its report subject to sidelining by the Prime Minister, as happens today, for reasons of national security. A resolution of both Houses could require that the committee sought the approval of the appropriate agency before reporting to the House. The resolutions could further provide that, in the event of a dispute arising between the agency and the committee over reports to the House, the matter could be referred again to the Prime Minister and the committee could be required to comply with his or her decision.

It is argued that although a Select Committee is neither more nor less likely than the ISC to leak, as a Select Committee it would have the right to publish reports in a way that could prove prejudicial to the interests of national security. A resolution of the House could introduce in response to that problem a general prohibition on the Select Committee publishing reports without approval. It could further place a requirement on the committee to seek the permission of the appropriate agency and the Prime Minister in conditions of dispute. Safeguards would be available for every eventuality in the event that it were to be created a full Select Committee of Parliament. If, in unforeseen circumstances, the committee, or any member of it, threatened to breach the committee’s rules and procedure, as agreed by the House in resolutions, it would always be open to the Leader of the House, on the instructions of the Prime Minister, to dissolve the committee or remove any member of it on a resolution, if managed with caution.

It is also argued that a move to a parliamentary arrangement could lead to greater pressure on Ministers to be accountable as witnesses with less emphasis on agency heads giving evidence. The argument is not supported by an examination of practices in some of the other committees of the House. All that is possible by way of resolutions in the House of Lords and House of Commons. I also argue that the committee needs increased powers to call persons and papers and to communicate with other committees. There are times when the information that comes before the committee should, in certain circumstances, be referred to other Select Committees, but, of course, with the permission of the agencies.

The ISC also needs the power to take evidence under oath. Select Committees have that power. It would not take all evidence under oath but it should at least have the power to do so. As I say, Select Committees have that power but the ISC does not. Without going into any details, there are times when the committee, if assurances were given under oath, might have the confidence, with the approval of the Prime Minister, to make statements that would be extremely helpful during the course of public debate and in the exercise of reassuring public opinion, which in my view is a very important consideration. Again, all that is possible by way of parliamentary resolution or statute, if that be the will of Parliament.

To nail my case to the mast, I call in aid the wise words of that old parliamentary sage, the former clerk of the House of Commons, Mr W R McKay, who, in a letter to me of 21 July 1998—14 years ago—told me:

“You asked for my comments on the attached paper about a possible Select Committee on Security and Intelligence. The general premise in the paper, that select committees are creatures of the House is correct, and the House may, either in the committee’s order of reference or by instruction, require a committee to sit in private or to take evidence or report in a particular manner. Thus the House could, if it so decided, require a committee to obtain the consent of an external body (you suggest the Prime Minister, or a relevant agency) before publishing particular evidence or, conceivably, before publishing a report … the interpretation of the order of reference of a select committee is a matter for the committee itself to decide”.

He quotes page 633 of Erskine May, the 2012 edition of which is updated on page 635—I checked this morning. He then sets the precedents for such a committee, going back to 1837: to name but a few, the Joint-stock Banks Select Committee of 1837, the National Expenditure Select Committee of 1939-40, and the Special Commission on Oil Sanctions of 1978-79. This is a former clerk to the House of Commons indicating to me that this is possible

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[Lord Taylor of Holbeach]

My noble friend may well be quite right.

[Lord Campbell-Savours]

If Amendment 1 were to be carried, there would be discussions in the House of Commons. It would probably come back with a decision and an announcement to the House that it intended to set up a committee by way of parliamentary resolutions, so none of those issues would arise.

[Lord Taylor of Holbeach]

I hope that I can reassure my noble friend and the noble Lord that I intend to use my eloquence so that the House is not presented with this issue of confusion. That must be my task, and I will pray in aid the words of the noble Lord, Lord Butler of Brockwell. I hope that the House will not mind if I quote him at length. In Committee, he said:

“I think we all agree that the ultimate purpose is that the public should have confidence in the committee’s scrutiny of the intelligence services. However, it was clear from the speech of the noble Lord, Lord Campbell-Savours, that if this were to be a Select Committee, it would have to be hedged around by a very large number of parliamentary resolutions, and that would have the same effect as the constraints that are written into the Bill. The question is: would that make it more convincing if it were a Select Committee when it was a Select Committee unlike any other because it would be so inhibited by those restraints?

They say that something which looks like a duck and quacks like a duck can be regarded as being a duck, but this would not look like or quack like a Select Committee; it would be something completely separate”.—[Official Report, 9/7/12; cols. 933-34.]

I hope noble Lords understand why I wished to quote the noble Lord; it was such a brilliant précis of the position.

I can see much force in that argument. It was reinforced today by the noble Lord and by the former chairman of the ISC, the noble Baroness, Lady Taylor of Bolton, and my noble friend Lord King of Bridgwater.

The noble Lord, Lord Campbell-Savours, raised the question of parliamentary privilege. It may be possible to give the committee bespoke statutory immunities that would provide it with protections which would replicate aspects of privilege. The noble Lord said that that might well be what the Government are proposing, but it would not be the same as legislating to provide the same privileges for the committee. If the ISC were given privilege by statute, as the noble Lord, Lord Campbell-Savours, said, that might encourage courts to rule on proceedings in Parliament. Courts already rule on this question. The Supreme Court judgment in the recent Regina v Chater case is an example of that. For instance, it might be possible to give protection for witnesses before the ISC so that the evidence they give to the ISC in good faith cannot be used against them in criminal, civil or disciplinary proceedings. The Government are considering whether that is a viable approach and whether it is the best approach to tackle this issue. We may bring forward amendments to deal with this issue at a later date.

The addition of the “of Parliament” amendment, proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian—accepted in principle by the Government and to which we will come presently—would have a number of consequences. One possible consequence is that the ISC would have the power to take evidence on oath. This, in turn, raises the possibility that those who intentionally mislead the committee, while giving evidence under oath, would be subject to the same sort of sanctions which might apply in similar circumstances to a witness before a Select Committee. If, on further analysis, that is not a consequence of that amendment, we would be content to look at whether there is the need for a provision in the Bill to make clear that the ISC may take evidence on oath. I hope that the noble Lord, Lord Butler of Brockwell, will be happy not to move his amendment in the light of what I have described of the Government’s position on these matters of privilege.

I turn to Amendment 30, which again is tabled by the noble Lord, Lord Campbell-Savours, and relates to the role of the Intelligence Services Commissioner.

[Lord Campbell-Savours]

That is an error on my behalf. I tabled it over the weekend when we were not here. I will not move that amendment.

[Lord Taylor of Holbeach]

My Lords, I apologise for that and will move on to deal with the substantive issue. The work of the commissioner is a different role from that of the committee. Of course, it complements it. I hope that we will be able to use our ability to enhance it and ensure that it continues to meet our needs. The Government believe in strengthening oversight and, clearly, the commissioner has a role in that.

On the basis of the arguments that I have presented, I hope that the noble Lord will withdraw his amendment.

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[Lord Campbell-Savours]

My Lords, I am grateful to all those who have participated in this debate. In my response, I want to dwell on something that the noble Lord, Lord Taylor of Holbeach, slipped into the middle of a sentence. He used the word “aspects” of privilege. The distinction between what I am calling for here—Article 9 protection under the 1689 Act—as against what he is proposing, is full privilege for a Select Committee of Parliament to be known as the intelligence and security services Select Committee.

When I talk about full privilege, I am not talking about some qualification of freedom of information legislation, which I suspect is what the Government and perhaps even the noble Lord, Lord Butler, have in mind, but about full privilege under the Act: rights of access to documents covered by privilege; rights to call Ministers covered by privilege; rights to hold in contempt covered by parliamentary privilege; rights to insist on evidence being taken under oath, if necessary, under parliamentary privilege; rights to have witnesses protected from the courts; rights to have Members protected from assault on free speech; and protection of Members against a threat of intimidation or any undue pressure which prejudices their rights to act freely as Members of Parliament.

These are rights contained in Article 9 of the Bill of Rights, which I do not believe that it will be possible for the Government to allocate as they propose, whether under the statutory provision which we have been talking about up until today or the amendment of the freedom of information legislation, which is the debate going on behind the scenes.

I would like to deal with the issue raised by the noble Lord, Lord Butler of Brockwell, when he talked about transfer of responsibility from the Executive to the Speaker. As I understand it, under the arrangements that the Government propose, instead of a Speaker’s Certificate being required in an FOI case there would be a ministerial certificate. This House is full of lawyers, and I am not a lawyer—but am I mistaken in thinking that a ministerial certificate can be overturned by an information tribunal? That is what the law says, although I am not a lawyer and am ready to stand corrected. But if that is the case, it means that this is not an argument over whether you are simply transferring the responsibility from the Executive to the Speaker, potentially you are transferring it from the Executive, on matters of national security, to the information tribunal. Perhaps I am wrong but, even as a barrack-room lawyer, I think that I have got that right.

On the view expressed by my noble friend Lady Taylor of Bolton, I regard perception as extremely important in this whole discussion. Is a halfway house committee, detached from Parliament, more credible in terms of public perception than a full Select Committee of Parliament, circumscribed in the ways that I have suggested to the House in the course of moving my amendment?

I am sorry that the noble Lord, Lord King of Bridgwater, cannot support me today, but we are on the route. As I said to him before, privately, inevitably we will end up with a Select Committee—the question is when.

My noble friend Lady Smith of Basildon pointed to the precedent of a Select Committee on Defence in the House of Commons handling these matters in conditions of secrecy and dealing with them as if they were matters of national security, and secret. I understand that committees of this House have dealt in exactly the same way with very sensitive material and have not leaked; all I am asking is that those committees be replicated in a wider Select Committee, comprising Members of both Houses.

Finally, this is not a precedent. Countries throughout the western world have Parliaments that have Select Committees on intelligence. Some on occasion even meet in public—I have not advocated that. They do not leak, and when the members of our ISC travel abroad, as I did when I was on the committee for five years we often met Members of other Parliaments who sat on Select Committees in their Parliaments dealing with these matters. In the United States of America, in the Congress and the Senate, they have Select Committees. If they can do it, why cannot we? It is on that basis that I wish to test the opinion of the House on this amendment.

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[Lord Butler of Brockwell]

In moving Amendment 2, I wish to speak also to Amendment 4, with which it is grouped. I hope that I can deal with this group of amendments shortly because the Minister, rather unusually, dealt with them in his response to the previous group of amendments and asked me to withdraw them, which I will do.

However, if I have a complaint against the Government, it is that I moved these two amendments in Committee, seeking that the Intelligence and Security Committee should be described as the Intelligence and Security Committee of Parliament to emphasise its role as a servant of Parliament rather than as a servant of the Executive. I also moved Amendment 4 in Committee, which seeks to confer privilege on the committee. On that occasion the Minister—the noble Lord, Lord Henley—spoke sympathetically in response to both amendments, as, indeed, has the Minister today. The noble Lord, Lord Henley, said on 9 July, some four months ago:

“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”.—[Official Report, 9/7/12; col. 918.]

Four months have passed and it seems that the Government have not done that work and reached a conclusion in amendments that they could put before the House today. That is a pity.

These are probing amendments. The Minister has said again that he is sympathetic to the addition of the words “of Parliament”. A more substantial issue is Amendment 4, which seeks to confer privilege on the Intelligence and Security Committee. As has come out in the earlier debate, there are genuine difficulties about that. I acknowledge that in response to the noble Lord, Lord Campbell-Savours. I understand that the clerks of the two Houses of Parliament see difficulty in extending parliamentary privilege in this way.

On behalf of the Intelligence and Security Committee, I want to make it clear that the safeguards that are provided by parliamentary privilege are essential—not parliamentary privilege itself. Provided those safeguards can be in the Bill—in other words, the protection of witnesses and the protection of the proceedings of the committee from judicial intrusion or the Freedom of Information Act—that is equally satisfactory. The noble Lord, Lord Campbell-Savours expressed some doubts about that and the Minister, in reply, said that there were aspects to be considered. It seems to me that it cannot be impossible for those protections to be provided statutorily in the Bill. Provided that is done, I would not seek, nor would the Intelligence and Security Committee seek, to press Amendment 4. I hope to hear from the Minister, if he does not mind repeating himself a little, that the Government will seek to provide those protections that the Intelligence and Security Committee needs in an alternative way from that of privilege. I beg to move.

[Lord Campbell-Savours]

I wish to intervene only very briefly, perhaps to rephrase the question about the ministerial certificate that I put during the course of my previous intervention. Is it true that the ministerial certificate could be overturned by a tribunal? Perhaps those in the Box can advise the Minister. If that is the case, it means that the responsibility has been transferred from the Executive to the tribunal, as against being transferred from the Executive to the Speaker. We should know whether that is the case.

If I am correct, the noble Lord, Lord Butler of Brockwell, is suggesting that somehow that to which I am referring could be dealt with in the legislation whereby there would not be a right to challenge a ministerial certificate, as is the case with a Speaker’s certificate. When he talked about judicial intervention, perhaps he was referring specifically to that. As I understand the freedom of information legislation, it is not possible for a challenge to be mounted against a certificate granted by the Speaker. That is why I always felt that it was far better that the Speaker had that role, because the Speaker of the House of Commons would always uphold national security. It is inconceivable that a Speaker could not be trusted in these circumstances. It seemed to be being suggested that because this power was being transferred from the Executive to Parliament, it was placing something in jeopardy. On the contrary, I should have thought that the Speaker of the House of Commons—whoever that might be at any stage, now or in the future—could be thoroughly relied on to be as secure as the intelligence services themselves in protecting national security.

In one of his amendments, the noble Lord seeks to add the words “of Parliament”. Where we have a committee set up outside of Parliament—at arm’s length—are we saying that, in order to make it look as if it represents Parliament in some way, we simply tag “of Parliament” onto the end to give it the imprimatur of Parliament? As a concept, it is ridiculous and it abuses the institution. What other organisations or statutory bodies of such notable importance are going to be set up with these words simply added onto the end in order to give them some extra credibility? I am opposed to an amendment of that nature.

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As I have already said, we have considered whether it is possible, instead, to give the committee bespoke statutory immunities that would provide the committee with protections that would replicate certain aspects of parliamentary privilege. For instance, it might be possible to give protection to witnesses before the ISC, so that evidence they give to the ISC in good faith could not be used in criminal, civil or disciplinary proceedings. We are considering whether this is a viable approach and whether it is the best approach to tackling this issue, and we may bring forward amendments.

[Lord Campbell-Savours]

The noble Lord has repeatedly said, “We are considering”, and “It might be possible”. There is an element of doubt. It may be possible, but if it is not possible, are they then ruling out Select Committee status?

[Lord Taylor of Holbeach]

My Lords, I have every confidence that a solution to the issues and challenges of providing the necessary protection will be found. However, I was not intending to use this debate to present those conclusions to Parliament. I am sure the noble Lord will look forward with interest to hearing them in due course.

I thank the noble Lord, Lord Butler of Brockwell, for tabling these amendments. I hope he will feel able to withdraw this amendment in the light of my reassurances on progress.

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[Lord Butler of Brockwell]

My Lords, again I can speak quite briefly to the amendment, which provides that the chair of the Intelligence and Security Committee should be remunerated on a basis similar to that of chairs of Select Committees of the House of Commons.

I emphasise that the present chair of the Intelligence and Security Committee has not asked for this amendment to be brought forward. However, the members of the committee feel strongly that the chair has to do a large amount of work—as I am sure the noble Lord, Lord King, and the noble Baroness, Lady Taylor, also did—and that it is an anomaly that, whereas other Members of the House of Commons who are chairs of Select Committees receive remuneration, the chair of the Intelligence and Security Committee does not.

As I understand it, the Government’s position is that this is, in these days, a matter for IPSA. However, I hope that they will be willing to put this issue to IPSA with their recommendation that it should consider it sympathetically. If the Minister is prepared to go as far as that, my colleagues and I on the Intelligence and Security Committee will be happy not to press the amendment.

[Lord Campbell-Savours]

My Lords, I vigorously support this amendment because it has always been my view that the chairman should be remunerated. I served under the chairmanship of the noble Lord, Lord King of Bridgwater, and he should have been remunerated, as indeed should my noble friend Lady Taylor of Bolton. However, what worries me a little is that the matter is to be left to IPSA. That is a very controversial proposition to put, not because IPSA is as unpopular in the Commons as we know it to be, but why should an organisation established to deal with parliamentary allowances and expenditure be required to deal with the expenditure of an outside body? This is the first body, but are we to presume that in the future IPSA will extend its tentacles to managing the financial arrangements of more bodies that are established under statute? Is this the beginning of the growth of IPSA into something even larger than the current organisation which is causing so much grief to Members of Parliament? I simply put the question. If a mechanism is to be found, perhaps I may suggest that IPSA is not the ideal organisation to proceed with this responsibility.

[Lord King of Bridgwater]

My Lords, I support what the noble Lord, Lord Campbell-Savours, has just said—in the knowledge that there is no back pay in this world. It does seem very weird to be considering this. I am not sufficiently familiar with the remit of IPSA, but although we have been arguing about the extent to which this committee is or is not part of Parliament, in the area of pay and rations it appears to have been put right inside it.

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[Lord Reid of Cardowan]

Perhaps I might respond to those two very rational and articulate contributions promoting the idea of a popular vote, as it were, in the House of Commons. I can see the benefits of that and those of ownership. The noble Baroness, Lady Williams, mentioned stakeholding in the House of Commons. However, it seems that at least four problems need to be thought through.

First, the amendment would explicitly exclude anyone from the House of Lords ever chairing this committee. In the previous debate, while not seeking it for this House, we envisaged the possibility that at some stage there might be someone appropriate in this House to chair it. As I read it, the amendment would effectively preclude anyone from the House of Lords—unless it is envisaged that there be a nomination process for this House but that nobody in this House has a vote; only the House of Commons has a vote. The noble Lord, Lord Hodgson, may have been about to suggest that that was possible. It would be a peculiarly quaint electoral procedure for those who were nominating candidates to be precluded from voting on them.

Secondly, it would almost inevitably undermine the possibility of another envisaged benefit of convention: of the place going to the Opposition. It would not preclude it but would make it much less likely that the tradition of the position going to a member of the Opposition would be carried through, if for no other reason than the Opposition being, by definition, a minority in the House of Commons. Anyone from the majority party would therefore have an enhanced ability to achieve the post.

Thirdly, I entirely agree with the noble Lord, Lord Gilbert. As someone who has held relatively recent ministerial experience, I can tell your Lordships that there is no way that the Prime Minister could veto a nomination for the chairmanship of this committee without it becoming a major issue—not least because the person thus vetoed would make it a major issue. Once that was out, there would be all sorts of demands, in terms of natural justice and fairness, to put into the public domain the reasons why a Prime Minister should think them so serious that he or she should veto a Member of Parliament—an honourable Member—who was considered unworthy or somehow deficient in integrity or in other skills from being chairman of this committee.

The fourth reason is that, having known the House of Commons relatively recently, I am not sure that this is a position on which we should envisage political campaigning, but I assure noble Lords that that is what we will get if this position is put up for a 100% franchise in the Commons. Therefore, having listened to what has been said, and appreciating what lies beneath the suggestion that there be an electoral college for this composed of the whole House of Commons, I think that before going down this road we would have to think very carefully about the consequences that would arise in the dynamism of real politics from such a decision.

[Lord Campbell-Savours]

My Lords, I want to argue both ways on this issue because I am of a very mixed mind. I shall start by taking on the case put by my noble friend Lord Reid, who said that it would become controversial and difficulties would arise if it were to be subsequently known by the wider public that there had been some dispute over whether the Prime Minister had been prepared to endorse the candidature of a particular candidate. I would have thought that these matters would be dealt with by the usual channels. The amendment refers to seeking,

“in advance of the ballot the formal consent of the Prime Minister”.

In other words, the Prime Minister would be asked discreetly through the usual channels whether he or she might be minded to endorse the candidature of a particular candidate or candidates, and in the event that there were to be a refusal I would not have thought that the candidate who had been refused would want it generally known that the Prime Minister of the day had turned down their prospective nomination for chairman.

[Lord Reid of Cardowan]

I entirely disagree with my noble friend. Not only would the candidate want it to be known, they might well have a particular reason for wanting to be chairman of the intelligence committee and indeed might even, in a rather covert fashion, be pleased to have been refused the endorsement of the Prime Minister. I do not want to mention any particular such candidates in the House of Commons, but off the top of my head I can think of half a dozen.

[Lord Campbell-Savours]

If we go back to the speech of the noble Lord who moved the amendment, he never said that any Member of the House of Commons could stand. I had to disappear outside the Chamber for medical reasons, but I understand that the noble Baroness, Lady Williams, argued that any Member of the Commons should be able to stand. However, I do not think that that was the noble Lord’s suggestion. I am presuming that he was moving the amendment on the basis that there would be a membership of the committee that was put to the House on the recommendation of the Prime Minister, and from those members there would then be a person who, with the endorsement of the Prime Minister, could be chairman of the committee. We may be speaking at cross purposes and I stand to be corrected. If the noble Lord is indeed suggesting that any Member of the House could stand to be chairman of the ISC, then I would completely oppose that.

[Lord Hodgson of Astley Abbotts]

My purpose at this stage, and clearly the amendment has aroused a good deal of interest around the Chamber, was to ensure that we have the widest possible opportunity for people to stand. There are already provisions within the Bill about consultation between the Prime Minister and the Leader of the Opposition and about the procedure, and I did not see those falling away. As to whether anyone would be absolutely precluded—probably not.

[Lord Campbell-Savours]

If it were indeed the whole House, then I would oppose the amendment, and I will explain why. I sat on the committee for five years when the chairman was the noble Lord, Lord King of Bridgwater. In my experience, and this will be the experience of those members of the committee who now serve under the chairmanship of Malcolm Rifkind, I noticed that this relationship was very special. I balance the openness of the Select Committee with, on the other hand, the special nature of that relationship between the agencies and the chairman. There are circumstances in which I can imagine that relationship breaking down. That is why it is an extremely sensitive appointment. You must therefore have a narrower shortlist, to put it bluntly, than simply the membership of the whole House of Commons.

I have another argument as well, although perhaps I am doing somersaults here. I have a reservation. Subject to the shortlist that I have just referred to, I have argued in the past that not only is the relationship between the chairman and the agencies very special, but I would take it far further than the Government propose to provide for in the legislation. I believe that the chairman of the ISC should have access to everything that goes on within the agency—everything operational or whatever—and should be the only person on that committee who has total access. The legislation before us will provide a qualified element of access to operational material, but it will not provide for looking at the activities of the agencies in future. It will essentially be about retrospective operations. Ideally, in the committee that I would like to see constructed, the chairman would have access to everything—future, prospective, current and past operations—but would be the only member of the committee to do so. In those circumstances, the idea that any Member of the House of Commons could stand as chairman of the committee would be ludicrous.

As I say, I have very mixed views. If it comes to a vote, I shall probably vote for the amendment, in the hope that it is much harder to overturn a resolution in the House of Commons when it has come from the House of Lords than simply to initiate a debate on an amendment in the Commons. On that basis, I hope that the amendment is carried.

[Lord King of Bridgwater]

My Lords, I share some confusion over this amendment. The noble Lord, Lord Campbell-Savours, has asked whether it is intended that the chairman should come from a group that has already been put forward and proposed, while the noble Lord, Lord Reid, made the point about the membership of the House of Lords. As I read the Bill, you could end up with one Member of the Commons and eight Members of the Lords. That is pretty unlikely, but I can certainly see that we have moved from having one Member of the Lords as a member of the committee to having two. I can see a situation in which the new Opposition do extremely badly in an election and are very short of membership in the Commons but still have to man all the committees and so on. In those circumstances, they might well prefer it if they had one or two extremely well qualified members, perhaps recent Members who had lost their seat and moved into your Lordships’ House and who would be very useful members of the ISC.

Against that background, there would then be the problem, as the noble Lord, Lord Reid, has said, of whether or not the Commons should vote for Lords. I would trust the members of the committee, knowing the ways in which they have arrived on it, to be well capable of deciding who should be their chairman. That is well established practice, as we know from elsewhere. I therefore feel that, subject only to the qualification that the noble Lord, Lord Gilbert, raised, I support the idea that the chairman should be a member of the Opposition. I feel an amendment coming on at Third Reading, and that is one that the Government might like to prepare for.

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[Baroness Stowell of Beeston]

That is not the issue that we are debating right now. If I may, I will have to come back to the noble Lord. I would think that that detail will be covered.

[Lord Campbell-Savours]

Can I help the Minister? Surely, if the committee has asked a department for information, it will know if it does not get it back that it has been refused. The issue is whether it will know which Minister refused the information.

[Baroness Stowell of Beeston]

I am grateful to the noble Lord for his assistance. That is absolutely right. If the committee requests the information, because the MoU will make it clear which Minister within a department is responsible for responding or deciding whether or not the department should provide that information, obviously the Minister has an obligation to respond to that request.