Justice and Security Bill [HL]

Lord Campbell-Savours Excerpts

Monday 19th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I have tabled Amendments 16, 17, 20 and 21 in this group, of which the substantive amendment is Amendment 21. Taken together, these four amendments would ensure that although the Secretary of State may, through a memorandum of understanding, alter the provisions concerning the ISC, a memorandum of understanding could not limit the functions of the ISC.

I hope that the Minister can give me an assurance that Clause 2 does not intend that the ISC’s functions could be limited in this way and that the Government are not seeking the opportunity to restrict its functions. If that is not wholly clear, perhaps the Government can look at it, but the Minister may well be able to persuade me that it is wholly clear. In any event, I am sure that he understands the short but important point that I am making. I beg to move.

[Lord Campbell-Savours]

I wonder if we might be told when we can expect to see this memorandum of understanding.

[Baroness Smith of Basildon]

My Lords, we have tabled Amendment 22, which replicates the one tabled in Committee by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Thomas of Gresford, and is very similar to one tabled by my noble friend Lord Campbell-Savours.

This amendment requires a memorandum of understanding that will further define the remit of the ISC and other elements of its functioning. We consider that this should be approved by Parliament. Throughout the debate we have been arguing for greater ties between the ISC and Parliament in order to underline its accountability to Parliament rather than the Executive. This is an important example of how we can assist in effecting such change.

If the ISC is ultimately accountable to Parliament, it seems right that Parliament should approve the MoU that governs the ISC’s relationship with the Government over and above that which is set out in the Bill. I am sure that we will replicate this debate next week in the Crime and Courts Bill about the framework document for the National Crime Agency. If something is outside the remit of what is in the legislation, it is very helpful to have sight of that and Parliament should have the opportunity to debate and approve it.

The Government have argued against the establishment of the ISC as a full Select Committee of Parliament. One of the arguments is that it is necessary to circumscribe in statute the rules under which the committee may operate. It seems justified and very reasonable that the MoU should be subject to greater scrutiny and formalisation by coming before the House and having formal parliamentary scrutiny and approval before it can be acted upon.

--- Later in debate ---

In answer to the question posed by the noble Lord, Lord Campbell-Savours, the Government expect before Third Reading to publish a document setting out the areas that the Government expect the memorandum of understanding to cover. In other words, it will be a framework document premised on the assumption that the ISC-related provisions in the Bill are enacted, substantially, in their current form. I should make it clear that the document which we will publish can at this stage record only the Government’s intention, as the memorandum of understanding itself needs to be agreed between the Prime Minister and the ISC and we cannot presume on the ISC’s reaction to that document. However, it is our intention to publish that document before Third Reading.

[Lord Campbell-Savours]

First, on this preliminary document, which will not be the final document, will there be anything more in front of the Commons when they consider this in Committee than what is provided to us before Third Reading? Secondly, why should not preliminary drafting work, which I presume is going on now, be made available to the House—or certainly to the Commons—at an earlier stage?

[Lord Taylor of Holbeach]

I think I can reassure the noble Lord that I am doing my best to make sure that this House is informed before Third Reading of the nature of the document and the context in which it is being presented. I hope that the same document would indeed be available to the House of Commons. Until the Bill is enacted, the document cannot of course be laid before the House other than in a framework format. I hope that I have reassured the noble Lord that he and his colleagues in another place will have the information on which to see how this aspect of the Bill—the memorandum of understanding—is designed to bring flexibility into the procedures of the ISC.

Indeed, we wish to ensure that the memorandum of understanding is not used to restrict in any way the ISC’s remit or its functions as set out in the Bill. As we explained in our memorandum to the Delegated Powers Committee—another memorandum—the purpose of this clause is to enable provisions to be included in the memorandum of understanding to ensure that the ISC’s oversight of operational matters does not: interfere with the statutory accountability of the intelligence services to their Ministers; overlap with the roles of other independent oversight bodies, such as the Intelligence Services Commissioner; or lessen the effectiveness of the intelligence services and other intelligence and security bodies, or place any undue resource burden upon them. We believe that a clear understanding between the Government and the ISC as to how the ISC can most effectively oversee operational matters without compromising these imperatives is best achieved in a flexible instrument agreed between them. These amendments would, I fear, seem to preclude that. On that basis, I hope that the noble Baroness will see fit to withdraw the amendment.

--- Later in debate ---

[Lord Campbell-Savours]

When I originally read this wording in the Bill prior to the Committee stage, alarm bells immediately rang. When I saw the reference to ongoing operations, I tabled the original amendment. The noble Lord, Lord Butler of Brockwell, in his contribution, really set out the case very much in the way that I would wish to argue it and I do not wish to repeat what he said.

However, he referred to one operation, which perhaps illustrates where the problem might arise. I refer to the issue of what happened in Libya. I did not know the detail of what happened there but I presume, from what the noble Lord said, that it was reported to a committee. I should have thought that that is a typical example of something which fell under the description of these matters given by the noble Baroness, Lady Manningham-Buller, in Committee when she referred to operations being—if I recall correctly—finite and coded. Am I right in saying finite and coded?

[Baroness Manningham-Buller]

Yes.

[Lord Campbell-Savours]

I should have thought that that operation in Libya was a typical example of something that was finite and coded but which, as we know, was referred to the committee prior to the operation being completed. One wonders whether that operation would have fallen foul of what is in the Bill as it stands. I have no doubt that the Minister has in his brief, in very large red letters, “resist at all costs”—perhaps more than many of the other amendments that we have considered today. I would imagine that the services are particularly worried about this area. However, I would say to them that they must go away and reconsider this issue.

This is classic House of Commons debating material. I should have thought that the House of Commons will latch on to this wording and really drive it in Committee very hard. The Government should get a better line in dealing with these matters than we have heard hitherto.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I am grateful to the noble Lords, Lord Butler and Lord Campbell-Savours, and the noble Baroness, Lady Smith, for introducing these amendments, three of which concern the ISC’s ability to oversee operational matters and the fourth concerns the relationship between the ISC and Select Committees. It is worth reminding ourselves that one of the purposes of the Bill is to extend the ISC’s statutory remit. It makes clear its ability to oversee the operational work of the security and intelligence agencies and of other parts of the Government’s intelligence machinery.

With this formalisation, we certainly expect that the ISC will provide such an oversight on a more regular basis. The provisions of the Bill allow the ISC to consider,

“any particular operational matter but”—

as the noble Lord, Lord Butler, quite properly indicated by quoting from the Bill—

“only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest”.

The starting point is that the ISC’s oversight in this area ought to be retrospective and, so as not to cut across the role of Ministers, should not involve, for instance, prior knowledge of approval of agency activity. It is important that when there is an ongoing operation, or indeed a future operation, the responsibility for national security lies with Ministers. The noble Lord, Lord Butler, made it clear that the ISC is not seeking to intervene in that and accepts that the primary and principal responsibility lies with Ministers.

The ISC’s consideration of an operational matter must also,

“be consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

The first amendment would have the effect of leaving it solely to the judgment of the ISC to decide when the criteria for considering a particular operational matter are met. It is our intention that the memorandum of understanding will set out the factors that should be taken into account in assessing whether a particular operation is still ongoing or is of significant national interest. None the less, while fully accepting that the committee does not have ambition or aspiration to extend beyond what is said, I am sure that even reasonable people could come to a different view about whether those particular criteria are met or not in a particular instance.

I hope that noble Lords will agree that the judgment as to whether an operational matter meets the criteria is one that should properly be for both the ISC and the Government and not just for one or the other. It is important that the judgment is got right; I do not think that anyone is suggesting in any way whatever that there will be any deliberate attempt to intrude in circumstances where it has not previously been anticipated that the ISC should, but the last thing that anyone wants is for a different judgment to be struck that could lead to impeding the operational effectiveness of the intelligence agencies.

The noble Lord, Lord Butler, indicated what was perhaps at the crux of his concern. He mentioned the case of Libya. I understand that there may be a concern that the requirement that both the ISC and the Prime Minister should be satisfied that the criteria are met will slow down responses to more routine requests from the ISC for information about operational matters. The noble Lord used the word “cumbersome”. I assure your Lordships’ House that that is not the Government’s intention, nor do we believe that it will be the effect of the clause. However, I further assure your Lordships that we are looking very closely at this and it may well be that a memorandum of understanding to be agreed by the Government and the ISC is the right vehicle for agreeing a process that will allow the information that the noble Lord indicated to be provided to the committee, and in an appropriately prompt manner. Alternatively, it may be that there are other approaches that might make the position clearer, and I suspect that as this Bill progresses through Parliament we may return to it. But I indicate that it is a matter to which we will give further consideration. It may be that the memorandum of understanding is a better way to address it—and I hope that, on that basis, the noble Baroness will not press that amendment.

The noble Lord, Lord Campbell-Savours, said that he would wish to remove one of the key restrictions on the ISC’s new power to oversee agency operations—namely, the requirement that its oversight of operations should be retrospective. There is nothing in red in my briefing, but there is an indication that the amendment should be resisted. We have worked with the current committee to develop the new arrangements, and it is the committee’s view, as the noble Lord, Lord Butler, made clear in his speech to his amendment, that the committee agrees with the Government that it should not oversee ongoing operations.

There are clear lines of ministerial responsibility for authorising agency operations, and we believe that they could be undermined by the ISC having prior, even contemporaneous, knowledge of particular operations. Secondly, once a particular operation has commenced, it may well be that things move very quickly, and it is essential that the agencies can focus fully on the task on hand. It is better to bring the committee in and have retrospective oversight of a particular operation. Indeed, some operations will be so sensitive, with perhaps highly sensitive sources in play, that the details are kept within a very small, need-to-know circle, even within the agencies. The committee fully understands this; it is part and parcel of the work that it does, and which it recognises that the agencies do on our behalf. Once an operation has concluded, the ISC will then be well placed to carry out its work, which will no doubt include making strategic and policy recommendations, and giving views on any lessons learnt. The noble Lord’s concern expressed in Committee, which he has reflected this evening, on how operations might be defined, particularly if there is a long-running set of activities, was whether that could be defined by the Government as a single operation. I certainly understand where the noble Lord is coming from, but that is not an appropriate or proper interpretation of the clause. The nature of operations varies, and this is one of the reasons why we have provided in the Bill detailed consideration as to how the ISC’s operational oversight remit should operate and should be set out in a memorandum of understanding, which the Government will agree with the ISC.

[Lord Campbell-Savours]

Would it not be better simply to remove the whole section on ongoing operations and deal with the whole thing in the memorandum of understanding?

[Lord Wallace of Tankerness]

No, my Lords. One of our purposes is to ensure that this is put on a statutory basis. That has not been the case hitherto and this is a step forward. I can reassure the noble Lord that it is not the Government’s intention that a long-running operation be outside the scope of the ISC’s oversight for its entire duration. As the noble Baroness, Lady Manningham-Buller, explained in Committee, a long-running operation could, for instance, be broken down into discrete phases of operational activity, parts of which could be judged to be no longer ongoing and, on that basis, could be subject to the oversight of the Intelligence and Security Committee. I very much hope that on that basis the noble Lord will see fit not to press his amendment.

The third amendment in the group, Amendment 23, would allow the ISC to oversee an operational matter that does not meet the criteria in Clause 2(3) if the relevant Minister of the Crown agrees to the consideration of the matter. It is difficult to see the circumstances in which the provisions of that amendment would need to be used, although I listened carefully to what the noble Lord, Lord Butler, said. His concern was that there may be a circumstance whereby both the Government and the committee agreed that it was proper that there should be an investigation, but that it would be statutorily barred from that. The concern is that that amendment is aimed at allowing both to agree on what the ISC could consider. I am sympathetic to the kind of situation that the noble Lord described. The Government are not convinced that there is a need for this amendment, but we appreciate the intention behind it, which is to introduce a degree of flexibility that might prove useful in the future. It is certainly a matter that we would want to keep under review as work continues on drafting the memorandum. We would be willing to look at that again because, as the noble Lord indicated, it would relate to an issue on which there was agreement between the Government and the committee. It is just a question of how we can get that right without opening up to some unintended consequences.

Finally, I turn to the amendment of the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, which raises some important points relating to the relationship between the ISC and Select Committees. The first part of that amendment would mean that Select Committees could ask the ISC to consider any request to review any particular issue related to national security. The second part would mean that a Select Committee could request that the ISC transfer information to it that the Select Committee,

“has stated it needs to carry out its function”.

The third part states:

“The terms of any consideration … are to be set out in a memorandum of understanding between the ISC and the Select Committee in question”.

Again, I recognise and appreciate the intentions underlying that amendment—an intention expressed by the noble Baroness to create a stronger link between the ISC and other committees. It certainly would be our intention that the new ISC should be closer to Parliament than its predecessor and that it should be a strong and effective committee. Equally, an important feature is that the ISC operates within a framework that enables its members safely to be party to highly sensitive material and that it can scrutinise matters that are secret and of which the rest of Parliament and the public, for good reason, do not have sight. Of course, at the moment it is open to Select Committees to write to the ISC requesting it to review a particular matter. There is nothing in the new arrangements that will stop that. I am sure that any such requests will be treated seriously by the committee.

However, I have a number of concerns about the idea of creating a formal statutory mechanism for making and considering the requests. First, I am concerned that the ISC could become overwhelmed with requests to report on particular matters. If it acceded to all requests, the programme of work could be overtaken with matters that are of interest to other committees, which would take the focus away from the core work of the ISC. Secondly, there is the question of what the ISC would be able to say in response, given the highly sensitive nature of the agency’s work. Members of the ISC are of course bound by the obligations of the Official Secrets Act. Thirdly, if the ISC regularly refuses to action requests from Select Committees, an inevitable tension could arise between the ISC and those committees. I fear that that might undermine the perceived effectiveness of the new ISC and its closeness to Parliament.

On the requesting of information to help Select Committees with their work, it will be clear that there will be real limitations on what the ISC could provide, given that much of the material that is provided to the ISC is, by necessity, extremely sensitive.

[Lord Campbell-Savours]

Have civil servants and the Minister considered the comments of the noble Lord, Lord Lester of Herne Hill, when he intervened in Committee on these matters? If they have not, why do they not meet him prior to Third Reading so that he can discuss with them his concerns arising from his experience as a member of the Joint Committee on Human Rights?

[Lord Wallace of Tankerness]

I recall having read, in the past 24 hours, a particular phrase from the contribution of the noble Lord, Lord Lester, to which the noble Lord, Lord Campbell-Savours, refers. I could take the Joint Committee on Human Rights in isolation but numerous other Select Committees could start making requests and the point I am trying to make is that if the ISC started to receive requests—indeed, it is possible at the moment and no doubt the committee considers them—but on a statutory basis, the concern would be that if the committee decided to respond positively to those requests, that would detract from its core function and purpose. Equally, the point I was making was that if it regularly refused action, that could lead to tension and detract from what we are trying to achieve by way of a greater closeness between the new committee and Parliament.

There is also the point that I was making about the information. By its very nature, some of that information will be extremely sensitive and will be classified as secret or top secret, according to the government system of protective markings, but the ISC, in its accommodation, staffing and procedures is set up to handle sensitive information. The ISC secretariat is vetted and its accommodation is secure. However, other committees are not set up to deal with such information, nor are they, we believe, in a proper position to assess the damage that disclosure could cause. If the ISC refuses to provide information, again, that could lead to tensions between committees.

The new ISC will need to consider how it works with Select Committees and with Parliament more broadly, but I am concerned that the provision suggested in this amendment might serve to skew or disrupt the ISC’s work programme and its reputation could be damaged by refusals to take forward work or pass on information. It is important that the ISC can direct its own work programme as far as possible and focus its efforts on issues that it, with its unique perspective, thinks are most important. I appreciate the intention behind the amendment in the name of the noble Baroness and the noble Lord, but I hope that they will reflect on the concerns that have been expressed and feel able to withdraw it.