Scotland Bill

Debate between Lord Foulkes of Cumnock and Marquess of Lothian

Tuesday 24th November 2015 Lords Chamber

[The Marquess of Lothian (Con)]

My Lords, it is a pleasure to follow the interesting speech of the noble Lord, Lord Turnbull. It will certainly deserve re-reading tomorrow to get its full impact and I shall certainly be doing so.

My family’s Latin motto is “Sero sed serio” which, translated into English, means “Late but in earnest”. That is fairly appropriate for my position in this debate. This does, however, have its disadvantages because I had written a speech for this occasion before I knew the running order. During the course of the debate, every line of my speech has been delivered in one part or other of the House, so I am going to restrict myself to a number of observations. Before I do, I should like to congratulate the two maiden speakers. The noble Lord, Lord Campbell of Pittenweem, is an old colleague of mine at the Bar in Scotland and served with me for a long time in the other place. My noble friend Lady McIntosh of Pickering made another very fine maiden speech. She was also at the Bar in Scotland, as I was, and also served with me in another place. We had two excellent maiden speeches. I look forward to hearing much more from them.

It has been 17 years since I last spoke on devolution at all, let alone in a devolution debate—I will explain why a little later—so coming to this debate has been rather nostalgic. There are the same faces and quite a lot of the same points are being made all over again. One of the things I enjoyed most, which was fairly novel in these debates, was listening to my old friend the noble Lord, Lord Foulkes, fulminating against the success of the nationalists over the years since devolution was introduced. I wonder whether at some stage he might apologise for the enthusiasm with which he embraced the concept that devolution would kill nationalism stone dead, but—Oh! Perhaps I will get that apology.

[Lord Foulkes of Cumnock]

It was another George, my noble friend Lord Robertson, who used that particular phrase. I am sure he will explain that away himself. I have gone as near as I can—the noble Lord, Lord Forsyth, recognised this earlier on—in recanting some of the things I said when I was a bit younger.

[The Marquess of Lothian]

I think I will have to take that as being as near to an apology as I will get from the noble Lord, Lord Foulkes.

Intelligence and Security Committee Annual Report for 2010-11

Debate between Lord Foulkes of Cumnock and Marquess of Lothian

Monday 12th December 2011 Grand Committee

[The Marquess of Lothian]

My Lords, I understand that these proceedings may be interrupted. Having served for many years in the other place, I am quite used to being interrupted and to coming back to where I was at the start. I think this is perhaps the best way to get our business done.

This is the first opportunity I have had to speak in this House on the work of the Intelligence and Security Committee, on which, both in the other place and in this House, I have had the great privilege to sit since January 2006. I am not the longest serving member of it—George Howarth remains the longest serving member—but I am one of the longest serving members.

I note that when the previous report was considered by your Lordships on 30 March 2010, a number of representations, including one from the noble Lord, Lord Foulkes of Cumnock, were made for an increase in the number of representatives from this House on the committee. At that time, there was only one, the noble Lord, Lord Foulkes of Cumnock—a much valued colleague on the committee—who on that occasion moved consideration of the report, as I am doing today. I am delighted that those representations were heeded and that there are now two Members of this House on the committee. I am even more delighted that the other, who has not yet joined us—but I am sure he will shortly—is my noble colleague, the noble Lord, Lord Butler, who represents the Cross Benches and brings with him the broad knowledge and unique insight that come from not only having been Cabinet Secretary but having conducted the 2004 review of intelligence on weapons of mass destruction.

[Lord Foulkes of Cumnock]

I was going to raise this point in my speech, but it is perhaps better raised now. The noble Marquess is right, we argued on both sides of the House that the number should increase. He is also right that the noble Lord, Lord Butler, will bring a unique and interesting perspective to the work of the Intelligence and Security Committee. However, is it not strange, ridiculous and unacceptable that there is no Member of the Opposition in the House of Lords on the committee? It is quite ridiculous. The total number of members of the committee, including those from the House of Commons, is nine, of which only three are Members of the Official Opposition. This is a scrutiny committee which challenges the work of the intelligence agencies from time to time, and to have such a poor representation of Labour members—and not one from the House of Lords—is quite unacceptable. That point was made by the Opposition Chief Whip of this House at the time and, unfortunately, was not accepted by No. 10 Downing Street.

[The Marquess of Lothian]

I am sure that what the noble Lord, Lord Foulkes, has said will be heard more widely. I would answer him in this way: as he will see from the report, we are at the moment seeking to have the nature of the committee reformed in a fundamental way. That process is being undertaken at the moment through the Green Paper and I shall come on to it later in my remarks. However, it would be premature to get involved on this before the process has at least got under way and the kind of points made by the noble Lord can be considered.

Even though he is not in his place, I must say that it is a great pleasure for me—as I hope it is for other noble Lords—to have the noble Lord, Lord Butler, on the committee. It means that I can speak more briefly in this debate than otherwise might have been the case because I am confident that he will, with far greater skill, cover all the areas which I fail to cover and may indeed correct me on those areas where I get it wrong.

This is the first annual report of this committee produced under the chairmanship of Sir Malcolm Rifkind, who I am sure all other members of the committee would also like to thank for his excellent leadership over the past year. I should also like to thank the members of the committee from the other place.

As the noble Lord, Lord Foulkes, knows, the ISC is unique in many ways, but perhaps the one that strikes you most when you first join it is the level of consensus on the committee and the absence of party politics from our discussions. That is an important part of the nature of the committee and makes serving on it an even greater pleasure. The abiding ethos of the committee, as noble Lords here today who have served on it in the past know, is one of trust—trust between members, of course, but also, and more importantly, between the committee and those who it is the committee’s responsibility to oversee. We work in an environment where secrecy is often required by the national interest and where, if oversight and scrutiny are to be comprehensive and effective, trust in that secrecy is of the essence.

The same stricture of secrecy also means that the full report, which we are required to submit to the Prime Minister, has to be redacted in certain areas before it is more widely published, to protect that same national interest. As noble Lords will know, these redactions appear as asterisks in the report before your Lordships and have in the past—I must plead guilty of this myself in a previous political incarnation—been the cause of not just complaint but often ridicule. However, in truth, redactions are inevitable and necessary if the committee is to produce a comprehensive report for the Prime Minister. We have conscientiously striven this year to keep redactions to the minimum consistent with the production of that comprehensive report.

This year we have also preceded our report with a section on key themes, which we hope will provide a more structured introduction to the rest of the report by indicating those areas of particular interest to the committee and explaining why they were of such interest. In the past, I always found that these reports tended to be very piecemeal and quite difficult to follow. We felt that it would be for the benefit not just of this House and the other place but of the wider public as well if we produced an introduction of themes that at least gave some shape to the rest of the committee.

I am delighted to see that my colleague, the noble Lord, Lord Butler, has now joined us. At the risk of repeating myself, I said earlier that it is a pleasure to have him on the committee. It makes my speech today shorter, and I am sure he will fill in the gaps and correct me where I have got things wrong.

In general, noble Lords will see from our report that it has been a very busy year for the committee. Indeed, we made a record number of conclusions and recommendations. The report covers several important issues. I do not want to take too much time today; I just want to highlight a few of them.

The first relates to funding for the single intelligence account. In the current economic climate, the committee recognised that the flat cash settlement that the intelligence agencies received in the spending review was fair. This was reflected in what the agencies themselves told us. They will, in broad terms, be able to maintain their key coverage and capabilities. Nevertheless, the committee has recommended that the settlement must be kept under review. The Government must be willing to revisit the funding available to the agencies if there is a significant change in the threat. We cannot prioritise budgets in advance if the security of the country is at stake. The Government’s response to the committee report responded to this and mentioned agility, flexibility and reprioritisation—wonderful words, but I am not certain what exactly they mean in practical terms. It did not mention the possibility of an adjustment in the settlement should that be necessary. In the light of events that are coming over the next 12 months and beyond, we believe that this is important. I would therefore welcome the Minister’s confirmation that, should the threat change significantly—that is the condition—there is scope to revisit the single intelligence account.

I should also like to draw the Committee’s attention to the recommendations on cybersecurity. The threats that exist in cyberspace are familiar ones: theft, fraud, exploitation of the vulnerable and espionage, to name just a few. However, the internet provides criminals and spies with a new avenue of activity, where these deeds can increasingly be carried out with greater anonymity behind a cloak of binary digits and encryption. It is a rapidly growing threat to our security and prosperity, and the ISC in previous reports had urged the Government to increase the funding and priority of this work. Therefore, we welcome the Government’s decision to list cybersecurity as a top-tier threat in their national security strategy, and we welcome the new funding that has been made available to fund cyber-related work. Half of this new money will go to the intelligence agencies, which is very much in our view to be welcomed. However, there is still a great deal of work to be done in this area.

While the committee has welcomed the increased priority being given to cyber, the downside has been the proliferation of new teams and units working in this area. There are at least 18 departments, units and agencies involved in this work in some way, and the committee remains concerned at the risk of duplication and lack of co-ordination in this essential field.

Many other important matters are mentioned in our annual report, including the very welcome establishment of the National Security Council itself, matters relating to detainees and rendition, counterterrorism work and Olympic security, to name but a few. I do not propose to cover them now, as the report sets out our views clearly, and no doubt your Lordships will wish to raise some of them during the course of the afternoon, as I am confident will my colleague, the noble Lord, Lord Butler.

I want to turn now to the wider issues that we mention in the report. One that has exercised the committee this year and which we touch on in our annual report is the future of the committee itself. The ISC has been in existence under statute for some 17 years now. Since it was established under the 1994 Act, the threats that we face have changed and, in response, the intelligence community has had to change as well. The work of the committee has evolved to take account of this. However, public expectation of transparency and openness has increased significantly during this time, and the committee must ensure that it has the powers and the remit necessary to provide reassurance to the public and to Parliament. We therefore made it a priority in the first year of this Parliament to review the committee’s role, structure, remit and powers. We concluded that the current arrangements are now significantly out of date. The committee therefore produced radical proposals for change designed to increase accountability, transparency and capacity for oversight of the intelligence community as a whole. The timing of our review was fortuitous; the Government were in the process of producing a Green Paper, now published, on the protection of intelligence material in the courts and were considering how, if they were to recommend changes in the power of courts, oversight of the agencies should be strengthened to compensate for that. The committee therefore put its proposals for change to the Prime Minister.

Noble Lords will have seen that the Government’s Justice and Security Green Paper for the most part reflects the committee’s recommendations. Under the proposals, the Intelligence and Security Committee will become a committee of Parliament, something that it has not been in the past; it has been a statutory committee of parliamentarians under the authority of the Prime Minister. We are seeking for it to become a committee of Parliament, with the necessary safeguards, reporting to Parliament and to the Prime Minister. The remit of the committee will reflect the fact that the ISC has for some years taken evidence from and made recommendations regarding the wider intelligence community and not just SIS, GCHQ and the security services, which were its statutory responsibility. It will also reflect the fact that the committee is not limited to examining just policy, administration and finances, which were also part of its statutory remit, but encompasses all the work of the agencies. Further, the committee will have the power to require information to be provided.

However, there are two issues on which the Green Paper does not entirely reflect the Government’s proposals, which I wish to raise now with the Minister. The first relates to oversight of operational activity. The work of the agencies cannot be understood fully, let alone scrutinised effectively, without regard to operational matters. The ISC has for many years had access to operational material and has reported on operations publicly and in confidence to the Prime Minister. That includes reports as far back as the 1999 inquiries into Sierra Leone and the Mitrokhin archive, when the committee was still relatively new, through to more recent examples, such as the 2007 inquiries into the 7/7 bombings and the 2009 inquiry into the Binyam Mohamed case. Some of these investigations were at the express request of the then Prime Minister, and others were instigated by the committee itself. They were all specific operations that gave rise to public concern and significant national interest. They were all inquiries in which the committee had access to specific, detailed operational material.

The committee considers that the arrangements that have taken place in practice should now be formalised and that this work should be placed on a statutory footing. However, the Green Paper is less than forthcoming in this regard. It states only that,

“the Government is giving careful consideration to the ISC’s proposal to extend its remit to include operational aspects of the work of the Agencies”.

I underline once again that this is not something new, but something that has been happening over the past few years. Access to operational information is fundamental to the work of the committee. The Government must recognise that to deny the committee access to operational material would be a major step backwards from the current arrangements at a time when the Government say that they are seeking to strengthen oversight. I would welcome my noble friend’s assurance that he and the Government will look forward in this respect and not backwards.

The second issue on which I would welcome clarification from my noble friend is the committee’s resources. Currently, it has limited personnel resources. However, the changes that are envisaged to its powers and remit will increase that requirement and will involve new ways of working. The key difference will be as a result of the committee’s new power to require information to be provided. At the moment, it is reliant on the agencies themselves considering and summarising their information.