Justice and Security Bill [HL]

Lord Foulkes of Cumnock Excerpts

Monday 19th November 2012 Lords Chamber

I support Amendment 11 in the name of the noble Baroness, Lady Smith of Basildon, which proposes annual hearings. In Committee, it seemed clear that there was quite a concern around the House to consider in public what can be considered in public without danger to national security. I sensed an underlying view that this would enhance the reputation of the ISC.

[Lord Foulkes of Cumnock]

My Lords, is the noble Baroness aware that every year there is a debate, usually in the Moses Room, about the annual report? Has she been able to attend any of those?

[Baroness Hamwee]

My Lords, no, but I am aware of that. I am seeking to push the boundaries a little further. The noble Lord tuts quietly that I have not been there. Last year, I read the Hansard report when I began to take an interest in these matters. I sense a feeling that this would enhance the reputation of the Intelligence and Security Committee. Amendment 11 would be a broader arrangement than could take place in a debate in either House, whatever its venue, given that it provides for giving evidence before the ISC in a session open to the public. Therefore, it is more extensive.

I am very much alive to the danger to which some noble Lords pointed that questions asked in public can be so feeble, as can the answers, that it can have the opposite effect of just appearing to be completely stage managed and uninformative. I believe that we should give the ISC the scope to do the job that it is doing, and is capable of doing, in private to take it as far as it can go.

I have tabled Amendment 12 about access to meetings and I am aware that I take a different view on this from a number of other noble Lords. That is not because I want all or very many meetings with the ISC to be held in public. My point is that it should direct its mind to the issue. At the previous stage, from those with experience of the current arrangements, we heard ideas of what might be considered in public. Those ideas included recruitment to the agencies, issues of diversity, language, and recruitment from all sections of society. I would add to that retention, which generally goes along with recruitment, and a number of human resources matters, such as sickness rates and diversity at different levels of seniority. The noble Lord, Lord Butler of Brockwell, told us that today the ISC had been considering certain of these amendments. It might have been quite interesting to hear some of that debate in public. As regards financial matters, the cost of the GCHQ facility was mentioned.

All those issues quite properly can be debated, with care that the mark into dangerous territory is not overstepped. I have confidence that that would be possible and that those debating the issues would be very alert to that. However, it also would be proper that issues of that sort—I am sure that there are others—should be heard and dealt with in public to add to the credibility of the committee. I beg to move.

[Lord Butler of Brockwell]

My Lords, commenting on what the noble Baroness, Lady Hamwee, said at the end of her remarks, perhaps I may say that it was not today that the Intelligence and Security Committee considered amendments. The committee has not had the opportunity to consider the amendments she has put down. Therefore, in offering a comment, it will be personal rather than on behalf of the committee.

I have no objection to Amendment 9 because it is a permissive amendment. However, Amendment 11 states:

“The ISC shall each year call the heads of the Agencies and the Secretary of State to give evidence before them in a session open to the public”.

In principle, there is no objection to that. Indeed, the chairman of the Intelligence and Security Committee says that it is the committee’s intention to have a public hearing. The arrangements for that are being considered at the moment. However, one would not want this to be a public hearing that is too staged, which would be worse than useless. I would counsel against passing an amendment which makes it compulsory for the Intelligence and Security Committee to have a public meeting each year. That may well be the outcome but there may be times when the work programme simply is not consistent with it. That is my only cavil against that.

I would not be in favour of Amendment 12, which states that the committee,

“shall conduct its proceedings in public, save when it determines that members of the public shall be excluded”.

There would be so many meetings for which that resolution would have to be moved that it would be a matter of public comment and derision, which would reduce confidence in the ISC rather than increase it.

[Lord Foulkes of Cumnock]

My Lords, I have made a mental note never to tut tut silently in future, especially since that silent tut tutting can be observed by noble Baronesses even about 10 yards away. So I will be careful. The reason why I asked whether the noble Baroness, Lady Hamwee, had been able to attend the debates that we have had in the Moses Room is because, when I served, as I did for four years, on the Intelligence and Security Committee, I had the privilege of introducing and replying to those debates. We had great difficulty in encouraging people to attend and participate. If more Members of the House had attended and participated, it might have added to the information available in the debates that we have had at different stages.

A few years ago, when we had a Labour Government, before the Conservative Government came in, the Intelligence and Security Committee reported to the House on almost all, if not all, the issues that the noble Baroness, Lady Hamwee, has raised—on diversity and all the other points that she raised. We had indications and reports about it, and people raised it during the course of the debate. Even all those years ago, we discussed holding hearings in public; we discussed that in the debate in the Moses Room, along with the problems and opportunities that might be available if we held them in public. I hope that I am not giving any secrets away in saying this, but I was in favour of moving towards holding a meeting or two in public if we could do that. It is the right thing to do.

It would help and inform the debates that we have on legislation if Members came along to the annual debate. I presume that either the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler, will introduce the report and reply to the debate. Noble Lords would find it a very interesting and educational experience.

[Lord Reid of Cardowan]

My Lords, there are two issues covered in this group of amendments. The first is the process of appointment of the heads of the intelligence services and agencies and, secondly, the degree to which their proceedings are held in public. Amendment 9 refers to the possibility of the ISC—enshrined in the word “may”—considering,

“the proposed appointment of the following, including … the Head of the Security Service … the Head of the Secret Intelligence Service”,

and so on. I find that an attractive idea; I see no reason why it should impede, and many reasons why it might enhance, the appointment. It would be useful for the Prime Minister, before final ratification, to know the views of the ISC. It would be useful for Parliament to know that the proposed appointee had the endorsement, as it were, of the ISC, given that it will be elected on a wider franchise than Parliament and it contributes towards the ownership by Parliament itself.

The vagueness as to what happens with regard to the committee’s deliberations when such a discussion or questioning of the prospective appointee has taken place is an advantage and a serious disadvantage. I am not quite sure whether the proposal is permissive of communicating negative views on any appointment to the Prime Minister. Does it amount in effect to a de facto veto? It is delightfully vague on those issues.

There is another issue to consider. At the moment there is a relative independence of the heads of the security service and the ISC. If the ISC is being sought as an endorser of the appointment of a particular head of a particular service, in future it may feel more inclined to defend the action of the person that it has appointed. That is not a major concern; it would certainly not undermine the perceived benefits of such a system, which is used elsewhere in the democratic world to no apparent disadvantage—and to advantage with regard to the solidity of the appointment.

--- Later in debate ---

[Lord Taylor of Holbeach]

I do not wish to prevent the noble Lord intervening but we are on Report. Therefore, I remind noble Lords—

[Lord Foulkes of Cumnock]

I agree with the Minister, who I think has made a good case, and disagree with my noble friend Lord Reid of Cardowan. Members of the Joint Committee on National Security Strategy have already had a report that the line management of the heads of the various intelligence and security services is the responsibility of the Permanent Secretary. That has been made absolutely clear to us. We raised some concerns about that point and I am sure that the noble Baroness, Lady Manningham-Buller, will comment on it. If the Permanent Secretary has that line management responsibility, it would seem strange if these post holders were considered for appointment by a committee rather than by the procedure that the Minister has described. I know that my noble friend on the Front Bench is a bit irritated at what I have said, but I am glad to say that on this side of the House we have the freedom to say what we think.

[Lord Taylor of Holbeach]

Although I am encouraged by what the noble Lord had to say, I should remind noble Lords that we are on Report and it would probably be as well if I was allowed to finish what I was saying. The key thing is that the coalition agreement expressly says that we want to strengthen the role of committees in scrutinising public appointments. The Government are committed to doing that. However, the coalition agreement does not refer to Civil Service appointments. The pre-appointment scrutiny process, which we have in place for public appointments, is not the same as appointments to the Civil Service. Therefore, although the Government have made important progress in meeting the commitment on public appointments, that is not relevant to these appointments if they are Civil Service appointments.

I know that the roles that the agency heads play are very important and the appointments must be right. That is why I hope that I have given the noble Baroness and the noble Lord the reassurance that the process that presently exists for appointing the heads of these agencies is appropriate to the nature of the posts. It would not be appropriate to adopt the pre-appointment process that exists for posts in public bodies. On that basis, I hope that the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and my noble friends Lady Hamwee and Lord Marks will respectively see fit to withdraw their amendments.

I now address Amendments 11 and 12 which concern the ISC holding an annual hearing with the agency heads and the Secretary of State giving evidence before the committee in public. I can appreciate the intention behind the amendment but I have a number of concerns about the idea of creating a duty to hold annual public hearings. As noble Lords will know, The Governance of Britain Green Paper in 2007 made a series of reform proposals aimed at bringing the ISC as far as possible into line with other Select Committees. One of those proposals was for some hearings of the ISC to be structured to allow unclassified evidence to be heard in open session. Those sessions did not subsequently happen. Building on this, the Justice and Security Green Paper noted that while the ISC’s meetings will still have to take place, as a rule, in private, both the Government and the committee were committed to the concept of public evidence sessions where they can be held without compromising national security or the safety of individuals.

The noble Baroness, Lady Smith, spoke powerfully in Committee on the issue of public hearings and she has done so again today. We fully agree that they can be valuable but she noted that public hearings should never be automatic for the ISC but argued that they should become more routine as public confidence is taken into account. We fully agree that public hearings may improve public confidence in the ISC and its work.

The Bill does not need a specific provision for this; the existing ISC, created by the Intelligence Services Act 1994, has power enough to determine its own procedures and that is sufficient for its purposes—the ISC is provided for in the Bill. In that way, there is actually very little difference between the position that we take on the Bill and the position proposed by the noble Baroness. However, there are significant practical issues that have to be addressed before public evidence sessions can take place. I am sure that noble Lords will appreciate introducing public evidence sessions for a committee whose work is mostly concerned with sensitive and highly classified information. That will be challenging.

The Government remain committed to making public hearings work better in practice, and are currently in discussions with the committee about how to do so—for instance, on issues such as appropriate subject matter, timing and having appropriate safeguards against unauthorised disclosure of sensitive information. In Committee, my noble friend Lord Lothian, a current member of the ISC, made the valuable point that public hearings would be counter-productive so far as public confidence in the committee is concerned. If either the majority of the questions posed are met with a response, “I cannot answer that”, or the subject matter for the hearing is anodyne and the process completely rehearsed, I am sure that noble Lords will feel that the process has not been worth while. The ISC will already have the power to hold public hearings with agency heads and with relevant Secretaries of State without any of these amendments. Leaving it to the ISC’s discretion to determine when and how frequently to hold such meetings will enable it to make the best use of its available resources. I hope that I have convinced noble Lords that that is the right approach. I hope, on the basis of this information, that my noble friend Lady Hamwee will withdraw her amendment, and that the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and my noble friend Lord Marks will not move theirs.