Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012
Lord Henley Excerpts(11 years, 10 months ago)
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Lord Henley
That the draft Regulations laid before the House on 30 April be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 12 July
Olympic Games: Security
Lord Henley Excerpts(11 years, 10 months ago)
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The Minister of State, Home Office (Lord Henley)
My Lords, with the leave of the House, I shall repeat as a Statement an Answer given by my right honourable friend the Home Secretary to an Urgent Question in another place. It is as follows:
“Mr Speaker, since I updated the House on Olympic security last week there have been several allegations in the media, and I want to deal with each of them.
First, it was reported that Ministers knew there would be a shortfall in security staff last year. This is untrue. HMIC reported, at my request, on LOCOG’s security preparations last September, and it recommended several measures. HMIC reported again in February and concluded that LOCOG had plans in place to deliver the required number of security personnel. Neither HMIC report identified specific problems with G4S scheduling.
Secondly, it was reported that the Minister for Crime and Security had attended meetings in which he was told there was a security staff shortage. In fact, G4S repeatedly assured us that they would overshoot their targets. As I told the House on Thursday, G4S only told the Government that they would be unable to meet their contractual obligations last Wednesday and we took immediate action.
Thirdly, it was reported that we must have known about the shortfall because the military was put on standby in April. This is also not the case. Seven thousand five hundred troops have been part of the security plans since December. A further 1,000 were on standby in the event of flooding or other such civil emergencies, and we placed a further 2,000 on standby as a precaution in case the threat level increased. The 3,500 troops whose deployment I announced last Thursday are a direct response to the failure of G4S to meet its contractual obligations. A further contingency will remain.
The Government have strengthened the oversight of the security planning operation since we came to office. I would like to go through, briefly, what has happened since the bid for the Games in 2005.
From the beginning, the organisers planned to use private sector personnel for venue security. LOCOG confirmed they would be using private sector security personnel well before the 2008 Beijing Olympics. LOCOG started the procurement process for security personnel in April 2010.
When we entered government in May 2010 we instigated a comprehensive review of Olympic safety and security planning overseen by the then Security Minister the noble Baroness, Lady Neville-Jones.
That audit and review identified a shortfall in LOCOG’s venue security budget, which we addressed in the Comprehensive Spending Review, but we recognised that with a project of this size and scale, even this additional funding might not ensure the level of security we needed. So I also asked for outside assurance of LOCOG’s venue security planning.
In 2011, I commissioned Her Majesty’s Inspectorate of Constabulary to carry out an inspection of LOCOG’s venue security plans. As I have already said, this led to several recommendations that were acted upon by the Home Office, the police and LOCOG.
LOCOG and the Home Office monitored delivery throughout the following months. G4S assured LOCOG and the Government continuously that it would be able to deliver its contractual obligations, but on Wednesday 11 July, following the difficulties with scheduling which the company has acknowledged, G4S notified LOCOG and the Government that it would not be able to provide the numbers of security personnel specified in its contract.
I want to be clear that this was the first time that G4S admitted to any Minister that it would not be able to deliver the numbers of security personnel that it had promised. We acted immediately to make further contingency arrangements by agreeing the deployment of 3,500 further troops. That brings the total military contribution to the Games to 17,000, including personnel from all three services.
G4S has failed to deliver its contractual obligations, but we have the finest military personnel in the world—troops who are willing, ready and able to step in when their country calls—and we can be sure of their professionalism in helping to deliver a safe and secure Olympic Games”.
My Lords, that concludes the Statement.
Lord Henley
My Lords, I agree with the noble Baroness in her final remarks. I think that all of us want to ensure that this will be a great experience for all those not only taking part in but attending the Olympics. Across all parties, on all sides of this House and another place, we want to ensure that. We also want to ensure that we deal with security matters in the most appropriate manner. That is why I can give the noble Baroness an assurance, as I did in repeating the Statement, that we increased the amount of money available for security after reviews that took place just over a year ago. That was the right thing to do, and we made sure that we have the right plans in place. When these problems arose, as the noble Baroness should have acknowledged, our contingency plans came into effect very well, and there were ways to deal with these matters.
If I may, I will deal with the questions that the noble Baroness put to me one by one. She first asked how we were monitoring these matters. I could run through an extensive list of meetings that Ministers—both the Home Secretary and my honourable friend Mr Brokenshire—had with LOCOG and G4S, but I shall not delay the House at this stage by detailing every meeting, all of which I have listed here. I assure her that we can make public in due course how many meetings there were and when they took place. I will take advice as to whether minutes of those meetings can be made available, but I shall not answer that question for the moment.
I can say that G4S provided detailed data—as it should; that is part of the contractual arrangements—and detailed assurances. As my right honourable friend made clear in her Statement, it was only on 11 July, last week, that G4S admitted that the programme was not on track. I do not think that noble Lords opposite should try to suggest that there is some conspiracy going on. There has been, I will not say a cock-up, but let us say a failure of management, which was not quite what it should have been. I do not know whether the noble Baroness heard the comments made by the chairman of G4S this morning on the radio, but that became apparent from them.
The noble Baroness then asked what numbers G4S will be able to provide. Again, I cannot give her the exact number at this stage. It will depend on how many complete the training and make it through the accreditation process. G4S cannot yet provide a precise answer, but that is no different from other sporting events—although I appreciate that this is a much bigger sporting event—that take place regularly. Sporting events of this sort obviously have to be dealt with by firms of this sort because there is no way that the Government could do it on our own.
On the costs to the public purse, G4S has confirmed that it will meet any extra costs associated with the military deployment, including accommodation and compensating soldiers for any lost leave. On the noble Baroness’s last point, again, I cannot precisely answer what accommodation will be provided for the additional soldiers, but we will ensure that they are accommodated in the most appropriate manner. I can give the categoric assurance that none will be out of pocket in any way and there will not be any extra cost to the public purse, because that will be met by G4S.
Lord Higgins
My Lords, does my noble friend agree that the important thing now is to plan for the immediate future rather than to look further forward? Who is now in overall charge of the security operation? Is a single individual in charge for both those recruited by G4S and the troops who are now being brought in? Secondly, there are reports that the computer to be used to allocate people to their posts was not working properly. Is it working now? Finally, there have been questions whether those recruited have the necessary language qualifications. Is that a problem or not?
Lord Henley
My Lords, working backwards through my noble friend’s questions, if people do not have the appropriate language skills, they will not get accreditation to work. I cannot comment on whether the computer has not been working at the moment but I will make inquiries and let my noble friend know. As for who is in charge of the overall security operation, obviously, in the end, my right honourable friend the Home Secretary is in overall charge and that will cascade down through all the usual people below her. The Armed Forces will report to their individual officers, but others will be involved in the process working out. G4S employees will obviously be a responsibility for G4S, but they must be properly accredited before they begin to work on such matters.
Lord Elystan-Morgan
My Lords, I raise two questions of a legalistic nature. First, when the contract was placed with G4S, how many other bodies, agencies or companies were in any way shortlisted for consideration? Secondly, the Minister has assured the House that G4S intends to compensate in full any losses suffered. Is that a term of the contract? Was it a penal clause or is it an aspiration on the part of G4S?
Lord Henley
My Lords, I do not have the details of the contract in front of me, but I can once again give the assurance that G4S has made it quite clear that it will meet the extra costs resulting from the errors that it has made. I can categorically assure the noble Lord that there were others who bid, but I am not in a position at this stage to say who they were.
Lord Prescott
My Lords, this is the third time in eight days that Parliament has received assurances from this Government that the security of the Olympic Games will not be compromised. The Government’s desperation in drafting in not only the Armed Forces but now the police is an indication of the total failure of the private companies involved to deliver on their contractual requirements to ensure Olympic security. Have the Government investigated the question I raised with the Minister during the Statement last Thursday regarding the fact that there are other companies almost bound to collapse and not provide their contractual requirements on fire security matters? Can the Minister tell me?
The desperation involved in drafting in the armed services clearly shows that the Holy Trinity of the Government, LOCOG and G4S has contributed to the failure to provide proper security for the great experience of the Olympics to which the Minister refers. Will the Government reconsider the possibility, particularly with regard to G4S and the police, of the intention to privatise our police forces? G4S is already negotiating for both the West Midlands and Surrey police forces. Will the Minister support the police authority in the Surrey area, which has cancelled its G4S contract, and will he encourage the West Midlands authority to do the same? When will he recognise that public service cannot be replaced by private service?
Lord Henley
My Lords, the noble Lord overstates his case, and overstates it rather badly. There is no question of privatising the police force, as he claims, although obviously there are certain parts of police work that can be done by private sector companies. That does not mean we are privatising the police force, which is a separate issue and nothing to do with what is happening here.
We are talking today about the security of the Olympics and different bits of security that will be carried out by different people. As the noble Lord knows perfectly well, private companies are always brought in to provide most of the basic security at any major sporting event in terms of checking bags and checking people as they go in. This is what happens at Wembley, at test matches, at Wimbledon and on many other occasions. The Olympics are no different, except they are bigger.
We entered into a competitive process with a number of companies—G4S won and it has not delivered as it should have done. We have made this clear today and in earlier Statements. We have appropriate contingency plans in place to make sure that if G4S failed in part of its job we could meet our obligations to have an appropriately secure Olympics. That is what we are going to have, so I think the noble Lord going on a rant of this sort is not helpful and does not do any good. We had made sure that we have answered all relevant questions—that is what we hope to do to as well as providing a properly secure Olympics.
Lord Dannatt
My Lords, I am sure that the Members of this House want to see a safe and secure Games, and that the last-minute increase in the size of the Armed Forces participation in the security operation will help to guarantee this. It is sad that we have had to have these sharp discussions in advance of the Olympics, attracting negative publicity, but that is life. I am sure the Minister would agree that there should be an investigation after the Games as to how we got into this position. Not wishing to prejudge that, I would like to place it on record, as the Minister did in his Statement, that when the Games were awarded to London in 2005 it was said that they would be civilian-run. However, that defies recent history about very large sporting events such as other Olympic Games. Was it not complacent of the Government of the day not to have planned from the outset for considerable use of the military, which has experience of dealing with large numbers of people and of using a clear chain of command, and might well have prevented the situation that we find ourselves in now?
Lord Henley
My Lords, I am very grateful to the noble Lord for his words, particularly when he says that we should not at this stage be making negative comments about the Games. We want them to be a good set of Games—we want them to be secure, but not to be seen as “the security Games”. I am also grateful for his comments about what happened at earlier stages when we were not in government in terms of the original plans for the Games and how they were set up.
It is quite right that we are making use of contingency plans to bring in extra military service personnel to help out on some aspects of the Games, and that earlier on we brought in an extra 5,000 specialists from the Armed Forces to address security matters that only they could ever have dealt with, as we see from HMS “Ocean”, moored in the Thames, and other things that the private sector obviously cannot produce. We are talking here about providing some extra military personnel to deal with the problems created by the issues that G4S had. I am grateful to the noble Lord for his comments.
Baroness Hamwee
My Lords, can the Minister assure the House that adequate training will be available, given that so many individuals will be coming to the job so late, and that the right training will be given to people designated to particular jobs? There was an unfortunate item on the news last night when a young man who was said to have been put forward by G4S—I think it was more than he was set up than put forward—indicated his difficulties with language.
As a more general and principled question, will the G4S contract be published? Before I am told that it is commercial and in confidence, I raise the point that both parties to a contract can agree to vary that sort of clause and perhaps G4S can be persuaded that it would be in the public interest, in both senses of the word, that the contract should be published.
Lord Henley
My Lords, I can give my noble friend an assurance that everyone doing a job involving security will have adequate training and we shall make sure that people who do not have adequate training will not be accredited.
Regarding whether the G4S contract will be published, that might be a matter for both parties to consider after the event, so let us leave it until then. It might be that G4S wishes to publish it, or that some sort of post-mortem, as my noble friend is suggesting, might be appropriate after these Games. I do not think it is proper that we should create fears that are not necessarily there at this stage.
Baroness Billingham
My Lords, we are where we are, and I entirely agree with the Minister that this is not the time for looking retrospectively and trying to find out what happened. However, the fact of the matter is that every week, every day and almost every hour we hear things that are completely disconcerting to the general public and to the people who are going to be involved in the Games, both participants and spectators. The role of the Government should always be the safety of those people and it has to be their priority. I am sure that the more the general public read, the more they are losing confidence and faith in what the Home Secretary has been doing. Heaven knows how we got ourselves into this predicament. I do not want to put it too worryingly, but it looks as if we are almost in a national security crisis and I want to know how bad it has got to be before the Minister does something about that. Every single thing that we have heard today indicates that the security we have always promised to the people coming to watch these Games is not going to be in place. So what is the Minister’s next move—we want to know?
Lord Henley
My Lords, again, I suspect that the noble Baroness is exaggerating by saying that every day there is some new problem. There were problems last week and over the weekend there were further press reports that have now been dealt with by my right honourable friend in her Answer, where she made it quite clear that most of them are completely untrue. Although I appreciate that not many have been doing it in this House, when I listened to the debate in another place there was a great deal of unnecessary point-scoring on questions of security. It is very dangerous of the party opposite. I can assure the House that we take security as the absolute top priority but we do not want to turn these Games into the security Games. We want to ensure that there is appropriate protection of individuals, and that will happen. That is why we have reacted as we did and why we set up the contingency plans that we have. They have come into effect as a result of the failures of G4S.
Lord Glentoran
My Lords, I was part of the Bill team that worked with Tessa Jowell for several years, from the first time that we brought the Bill through all the way up until the election. We worked together to make sure that these Games were delivered by the British Parliament as a cross-party project. Up until today or yesterday, that has been so and I beg noble Lords not to start nitpicking on cross-party points.
Lord Henley
My Lords, I am very grateful for what my noble friend said, particularly about Tessa Jowell and all the work that she has done for the Olympics ever since she put that bid in some time back in 2002, or whenever it started. The point that she made, which again I think my noble friend will be aware of, is that this is not the time to start trying to point-score on a political basis, as has been happening. We want to ensure that we have a good and successful Games, and that they are secure Games. However, we do not want security to dominate them so that they become a security Games. We want a good, successful Games that everyone will enjoy.
Baroness Tonge
My Lords, could the Minister persuade our Government to talk to the Government of Israel about transferring, as a good-will gesture, the G4S personnel who are currently guarding—rather brutally—the illegal settlements in the Occupied Territories of Palestine? Could he persuade them to transfer those people, thus making the Games a great experience for Palestinians as well as for Londoners?
Lord Mackenzie of Framwellgate
My Lords, in asking this question I declare an interest that is in the Lords register. Is the Minister aware of the advanced technical means of securing large perimeter areas by means such as radar, which obviously reduce the manpower required for these purposes? Is he aware that some 18 months ago an approach was made to the Olympic security authorities by a company that secured Sydney harbour in Australia? Presentations were given and considerable interest was shown by those who received the presentation but, unfortunately, there does not appear to have been any follow-up by those in charge of security at the Olympic authorities.
Lord Henley
My Lords, I agree with the noble Lord that technology can obviously always play a very important part in security but it would be a very rash and foolish Government who relied only on technology. In the end, one needs to have feet on the ground and to have people there who are properly trained and accredited to do the right job.
Lord Patten
My Lords, in declaring my interest as a member of the advisory board of the British Olympic Association, whose foremost concern is for the training, welfare, health and, above all, security of British athletes, I congratulate my right honourable friend the Secretary of State for the Home Office very warmly on the action that she has taken. Is my noble friend the Minister convinced, looking forward not back at any post-mortem that might happen, that in the next few weeks—and indeed more than that—the chief executive and top management team of LOCOG have the capacity and capability to be good customers of the security that they are paying for and commissioning? They are in the front line, and have been for many years, in commissioning the security that we have had. Secondly, I also ask my noble friend for an absolute assurance that as the Olympic Games morph and transmogrify into the Paralympic Games there will be no diminution whatever in the level of security provided during the Paralympics as compared to the Olympics, because soft targets are easy targets.
Lord Henley
My Lords, I give an assurance to my noble friend that we will maintain security at whatever is the appropriate level on the advice that we receive from those who have an interest in security matters. It is therefore unlikely to be relaxed as the Olympics morph, as my noble friend put it, into the Paralympics. As regards the assurances that he would like from me personally about LOCOG, I have not been involved in any discussions with the officials and management of LOCOG but my right honourable friend the Secretary of State has, as has my honourable friend Mr James Brokenshire. I think they could give assurances to my noble friend that they are satisfied that it will ensure that we maintain the right level of security.
Lord Addington
My Lords, does my noble friend agree that this is probably the biggest mistake we have had in the preparation of the Games so far? Will he assure the House, and indeed Parliament, that when we review everything to try to get the soft legacy, which will probably be the biggest part of the legacy of this, we will get a full review of what happened, when and why, so that we can study it at leisure? There should not be any point-scoring now and we should make sure that we learn what has actually happened and ensure that the next Games or event does not repeat these mistakes. Let it make its new ones.
Lord Henley
My Lords, I think my noble friend was at the same meeting as me when a number of potential Olympic ambassadors were briefed, and he will then remember that the Secretary of State for Culture, Olympics, Media and Sport said that, however well things went, there were likely to be mistakes. That is in the nature of things and we will look at those mistakes afterwards and ensure that we resolve them so that they do not happen again. My noble friend asks that we ensure that we do not have any further mistakes the next time we have the Olympics. I appreciate that there are one or two Members of this House who might remember the previous Olympics back in 1948. I do not and I am not sure that I will be around for the next time.
Lord Henley
I appreciate that my noble friend is now saying that there will be the Commonwealth Games in Scotland in two years’ time. I am sure that the Scottish Government will be taking all possible advice on these matters and will learn as much as they can from any possible mistakes that may or may not have happened.
Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012
Lord Henley Excerpts(11 years, 10 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments.
The Minister of State, Home Office (Lord Henley)
My Lords, the purpose of the regulations and the Security and Travel Bans Authority to Carry Scheme 2012 is to prevent specific foreign national individuals who pose a terrorist threat flying to the UK. The objective is to enhance the protection of aircraft flying to the UK and to prevent certain individuals doing harm on board the aircraft or on arrival in the United Kingdom.
Aviation remains a target for terrorists. On Christmas Day 2009, we saw an attempted terrorist attack on board an aircraft over Detroit. The recently foiled plot by al-Qaeda in the Arabian Peninsula to repeat that type of attack demonstrates an enduring intent to attack commercial aircraft. This Government gave a commitment in the strategic defence and security review to,
“make changes to pre-departure checks to identify better the people who pose a terrorist threat and prevent them flying to or from UK”.
The provision under which the regulations and the scheme are being made is Section 124 of the Nationality, Immigration and Asylum Act 2002. The regulations and accompanying scheme will, first, require carriers to which the scheme applies to provide advance passenger information to the e-Borders system and seek authority to carry to the UK certain foreign national passengers specified in the scheme before. Secondly, they will make carriers liable to a civil penalty of up to £10,000 if, without reasonable excuse, they carry a passenger without seeking authority or if they carry a passenger for whom that authority was denied.
I do not anticipate the scheme having a dramatic impact on aviation industry operations. Our current estimate is that refusal of authority to carry might occur two or three times a year. Preventing just one terrorist attack must justify its introduction. The scheme will apply to all air carriers operating to the UK issued with an IS72 form. This is a written notice requiring the submission of passenger data to e-Borders. The scheme does not apply to British nationals. It applies to passengers on flights to the UK who are third-country nationals, EEA nationals who have been excluded or deported from the UK because they pose a threat to public security, and individuals who are the subject of an UN or EU terrorist-related travel ban.
Individuals in respect of whom authority to carry will be refused and who would be refused leave to enter the UK are those EEA nationals who are the subjects of travel bans; third-country nationals who have been excluded or deported from the UK on grounds of national security; and third-country nationals who have been or would be refused a visa because of national security. The scheme will not affect the free-movement rights of EAA nationals and carriers will not be required to seek authority to carry in respect of any EEA national exercising those rights.
The regulations and the scheme concern inbound foreign nationals only. The strengthening of pre-departure checks also extends to outbound journeys and the threat posed by British nationals. For outbound journeys, the National Border Targeting Centre will use e-Borders data to alert ports police to intercept any individuals travelling from the UK who pose a terrorist threat and are subject to legal restrictions preventing them from travelling internationally.
There is a power to make directions under the Aviation Security Act 1982 to prevent the boarding of British nationals who are assessed to pose a direct threat of terrorism to aircraft. I commend the order to the Committee.
Lord Rosser
And that will be for some or all of their routes. In the hope that it does not breach national security, can the Minister say a little more about the considerations that would determine whether an airline was going to be issued with an IS72 form?
Queries have already been raised about the length of time it will take to give authority, and I appreciate that that is dealt with in the documentation. But what is the maximum length of time it is expected to take for authority to be given one way or the other to an airline? And is one to assume that until that authority has been given or refused, the flight concerned cannot leave its point of departure for the UK?
Finally, I have one question about the fine of up to £10,000. How will the Secretary of State decide what level to impose? Will there be clear criteria laid down which all occupants of the Secretary of State’s position over the years will be required to adhere to? Or will it be an entirely subjective decision with the approach potentially varying from one Secretary of State for the Home Department to another?
Lord Henley
That is a very interesting question given the range of Home Secretaries under the previous Government. I will have to come back to it at the end of my remarks.
First were the questions put by the noble Lord, Lord Berkeley, about the purpose of the regulations. I can give him assurance that, although the risks are pretty small, it is all about security. As I said in opening, the objective is to enhance the protection of aircraft flying to the United Kingdom and to prevent certain individuals from arriving here and doing harm on board the aircraft or on arrival in the United Kingdom. The purpose is to prevent such individuals boarding aircraft to the United Kingdom in the first place, both for the protection of that airplane and of the United Kingdom.
The noble Lords, Lord Rosser and Lord Berkeley, asked about the process and how quickly the airlines would get a response. Our aim is to give a response to the airlines within 15 minutes, which is relatively easy with modern communications. Airlines are required as of now to submit passenger information no later than 30 minutes before departure. We encourage airlines to provide that earlier if they possibly can but we are offering an assurance that we will be able to respond within 15 minutes.
The noble Lord, Lord Berkeley, also had some concerns about the consultation. He cited the fact that there was one response from a member of the public. I am very grateful that at least one member of the public put their name forward.
Lord Henley
The noble Lord says that it was not himself. This is one of the problems with consultations; not necessarily everyone with an interest responded. I can say, with regard to the important people in the airline industry, that we had respondents from three representative groups with a total membership of 161 different airlines. I cannot remember how many airlines there are in the world, but that number probably means that most of those who have an interest and who had concerns about this made an effort to respond.
The noble Lord, Lord Rosser, asked about IS72s. These are being rolled out across carriers and ultimately we envisage making sure that they are served on all of them, but that is not the case at the moment. He also asked whether imposing fines—as the order says, the level is up to £10,000—was purely a matter for the Home Secretary. The important thing is not the level of fines; obviously, for some of the big airlines a fine of £10,000 is neither here nor there, although I imagine that if there were a lot of fines they might begin to worry about them. We want to work with the airlines and prevent harm to their aircraft and to the UK. I think that I can say to the noble Lord that fines will be imposed only in fairly extreme circumstances.
If I may consider the matter of the level of the fines, which was the other matter that he asked about, I would prefer to write to him. As I said, though, at the moment there is a fairly free discretion that might allow, thinking of the different sorts of Home Secretary that we had between 1997 and 2010, for a fairly broad range of penalties being imposed.
My noble friend Lord Bradshaw also asked a simple, straightforward question: if a passenger is refused leave to enter the UK, is the carrier responsible for removing them from the UK? I assure him that that is the case. Whether or not the passenger has any appeal rights will depend on the circumstances of the case itself.
On this occasion, I think that I have answered every single point that the noble Lord, Lord Rosser, and other noble Lords have put. However, I see that the noble Lord, Lord Berkeley, wants to intervene again.
Lord Berkeley
I am grateful to the Minister for his explanation of the purpose, because it is important that we understand it. However, I then said to myself, “Well, if people are going to do harm, they can come in by ferry or small boat or across the land frontier from Ireland, and can still do harm in this country, although they’d have more of a job in sorting out an aeroplane because they haven’t got an airport”. Ours is not a completely secure boundary from that point of view. I am assuming that the real purpose of this is the problem of the aircraft itself, and I support that.
Lord Henley
My Lords, obviously we have certain advantages in that we are an island entire unto ourselves—I think I could probably quote a bit more from John of Gaunt’s death speech in “Richard II”. There are easier ways in and harder ways in. We will continue to look at all different routes and at what is possible—what we can and cannot do. Airlines are important. That is why we are doing this.
Lord Rosser
Perhaps I could ask the Minister one more question in the light of the response he gave. I wonder whether I heard that correctly. He confirmed that it was the case that an IS72 would be issued to some carriers, which might apply to all or some of their routes. Did he go on to say—or did I mishear this?—that eventually it might be applied to all carriers? If that is the case, would it then become in effect a blanket requirement for every carrier flying people into the UK?
Lord Henley
Ultimately we envisage the IS72 being rolled out to all carriers—so yes, that is the case.
Police and Crime Panels (Modification of Functions) Regulations 2012
Lord Henley Excerpts(11 years, 10 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Police and Crime Panels (Modification of Functions) Regulations 2012.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments.
The Minister of State, Home Office (Lord Henley)
My Lords, I will come to the regulations in a moment. First, I will set the context and talk about police and crime panels more generally. The introduction of directly elected police and crime commissioners is the most significant policing reform in a generation. It was set out in the coalition agreement and is now enshrined in the Police Reform and Social Responsibility Act. Forty-one directly elected police and crime commissioners will take office across England and Wales on 22 November this year, having been elected by the public the week before. The first commissioner is, of course, already up and running in London: in January 2012, the Mayor of London took over responsibility for oversight of the Metropolitan Police.
The Act lays out the framework for the strict checks and balances that will be fundamental to the reform. A key element of this is the introduction of police and crime panels, comprising local councillors and independent members. Panels will be established in every force area and will undertake an important scrutiny function, providing both support and challenge to police and crime commissioners as they perform their duties. It is vital that there are no barriers to panels being established. Every force area must have a panel, with arrangements in place to ensure that police and crime commissioners are appropriately scrutinised once they are elected in November.
I turn to the secondary legislation that is intended to provide this safeguard, which is the subject matter of today’s debate: that is, the regulations before us. They provide that, where a local authority defaults on its duty to nominate and appoint one or more councillors to the police and crime panel, the authority will no longer be required to agree the arrangements that govern the establishment and operation of the panel. As we have constantly emphasised, local leaders, not politicians or bureaucrats in Whitehall, will know what works best for them. Local negotiations are critical and the Act requires that all local authorities across the force area should work together to establish and maintain their panel, including agreeing panel arrangements and membership.
We understand that local government is rising to this challenge and we anticipate that panels will be established in all areas across England and Wales. However, in the event that a local authority chooses not to engage or is deliberately obstructive, it is important that it is not able to frustrate the efforts of the remaining local authorities in that force area to establish the police and crime panel. To this end, the regulations provide that where a local authority defaults on its statutory duty to nominate and appoint one or more councillors to the police and crime panel, that authority will no longer be required to agree the panel arrangements. This will allow the remaining local authorities to establish a police and crime panel and, crucially, will ensure that panels are in place in time for the arrival of the police and crime commissioners in November.
The regulations have been developed by the Home Office in consultation with key stakeholders representing those who will be affected by the proposals set out in the regulations. The regulations provide clarity and necessary safeguards while minimising bureaucratic burdens and central prescription relating to the panels. They will help ensure that police and crime panels are established later this month and that they are in full flow by November, in time to provide vital support and scrutiny to the new police and crime commissioners when they take office.
In conclusion, as I said earlier, Parliament has spoken on the police and crime commissioner model. The Government’s focus is now on making the model a reality and maintaining progress in local areas. The regulations before us are an important part of the legislative jigsaw that will make this happen. I commend them to the Committee.
Lord Shipley
My Lords, the purpose of the regulations is to stop a defaulting local authority from preventing the making of panel arrangements. This is understandable and should be supported. However, there are two issues of detail that I would appreciate the Minister’s clarification of in order to avoid doubt.
First, the Secretary of State has the power to nominate and appoint the appropriate number of members in the event of a failure by a relevant local authority to exercise its power to nominate or to appoint. It would be essential for the Secretary of State, in exercising this duty, to have due regard to the opinions of the other local authorities and to maintain due political and/or geographical balance in making such appointments. I say that because during the passage of the Bill there was significant discussion about the importance of geographical balance and political balance and, where there are two-tier authorities, of lower-tier councils having representation on the panels.
Secondly, will the Minister clarify the meaning of the words in paragraph 2:
“In the case of a multi-authority police area, all the relevant local authorities, with the exception of a defaulting local authority … must agree to the making or modification of the panel arrangements”?
I seek clarification of the words “must agree”. Do they mean that the relevant local authorities are compelled to agree by the decision of the Secretary of State—that is, they must agree to what the Secretary of State wants—or do they mean that only with the agreement of those authorities can the panel arrangements proceed? I took the Minister to mean that it was the latter, but I seek confirmation of my interpretation. If it is the former, I seek the Minister’s reassurance that due regard will be had by the Secretary of State to full consultation with the remaining local authorities and balance being secured in any nominations or appointments that the Secretary of State deems it necessary to make.
Lord Henley
My Lords, a number of questions have been put to me. First, I shall deal with those asked by my noble friend Lord Shipley. I can assure him that, yes, the Secretary of State will take note of views from other local authorities and will want to take account of political and geographical differences. That is the point behind what we are trying to set up in these authorities. The noble Lord will know as well as I do how police areas vary very much from authority to authority.
My part of the world, Cumbria, has a county council and six regional councils. Thames Valley Police has something rather complicated with, I think, 18 authorities, which are all single tier. I cannot remember whether I am right on that. However, it is very different from the traditional county district. In areas such as the noble Lord’s in the north-east, there are other set-ups. Obviously, we will want to take account of political and geographical differences. My noble friend’s second question was about what was meant by the words “must agree”. As regards the second part, obviously it is only with the agreement of all the local authorities, as he said.
The noble Lord, Lord Rosser, asked whether the LGA had any concerns. I can assure him that, as always, it has been closely involved in the development of the policy and regulations, and is working with us very much on the transition programme. As regards any monitoring of the effectiveness of the panels, I do not believe that that is a role for central government. I believe that local authorities will be key to ensuring the success of panels. If those panels turn out to be toothless, or whatever, it will be for local authorities to challenge that. I think that the noble Lord and others will be the first to raise their concerns should that be the case.
Lord Harris of Haringey
My Lords, perhaps the Minister can clarify his answer to the noble Lord, Lord Shipley, about political balance. Is he talking about the political balance of the entire police force area or of the defaulting authority? As I understand the construction of the police and crime panels, there is one representative from each authority and the purpose of this order is to deal with a situation in which one local authority has failed to put forward a suitable nomination. Is the intention under those circumstances that the Secretary of State will appoint someone to achieve some form of political balance across the whole area or simply to reflect whatever is regarded as the political majority within that particular local authority area? They are very different things.
Lord Henley
My Lords, we are trying to achieve some sort of balance across the whole area of panels covering a police force. I can think of some areas where every local authority is Labour or every local authority is Conservative. That does not mean that one would want every member of the panel to be Labour or Conservative—to take those two extremes—as obviously a vast number of voters would not be represented. We hope that there will be negotiations between local authorities, even if—dare I say?—some Tory authorities want to push forward a Labour candidate for the panel to make sure that overall, throughout the entire area, there is a proper balance that represents the views of the electors of that area. That might be despite the authorities being red in one case or blue in another. Does the noble Lord follow what I am getting at? We are trying to achieve genuine cross-party representation with a balance that represents the constabulary in a proper manner.
Lord Harris of Haringey
I am grateful to the noble Lord for that clarification. I am not sure it completely helps me. In a two-tier area, with which he is familiar, you will have a county council that will be elected on a specific date. You will then have district councils either elected in thirds or possibly on specific dates but not the same date as the county council. Are we talking about a political balance that relates to the county or to the districts? They will not necessarily be the same thing—they might be by chance, but not necessarily.
The Local Government Association spent many happy years devising a system that is supposed to balance elections held at different times and the different status of counties, districts, unitary authorities and so on. That sort of formula might be the approach that is taken. But I had understood that this legislation did not necessarily prescribe for political balance but simply for area balance.
Lord Henley
I do not want to be overprescriptive on these matters, particularly as every authority varies quite dramatically. I will use my own county, Cumbria, as an example because I happen to know it well. Cumbria County Council coincides with the police authority and so it is quite an easy one to do. There is a county council that has elections every four years. There are six district councils, one or possibly two of which have an election every four years while the other four have elections in the three years when there are not county elections. So everyone is electing at different times in different ways. All we are trying to do is ensure that local authorities act together to try to produce something that is reasonably practical. Possibly the model that the noble Lord is suggesting is not a bad one. He was taking it from the Local Government Association. We are not demanding anything absolutely precise; we are just trying to make sure that, as far as is reasonably practical, all views can be taken into account.
Lord Shipley
Can I just explain further my concern about political balance? There are existing committees, joint boards and so on that cross council boundaries and there are clear rules that apply to political balance in those cases. I hope that in the regulation it will be made absolutely clear that one-party control of panels would not be acceptable, even if all the councils in a given geographical area belong to one party.
Lord Henley
That is what we are saying in the regulations. As far is practical, we want to make sure that there is this cross-party control. This does not happen in Cumbria, but even if all six councils happened to be Labour-controlled, we would not envisage that all the members of the panel should be Labour. We should get the appropriate balance that broadly reflects how people voted. The same will be true in the north-east and here, there and everywhere. It is balance—a word that I have been using a great deal since I came to the Home Office—that we are seeking, and balance is not just in the regulations but in the Act itself, set down there in letters of stone.
Police and Crime Commissioner Elections Order 2012
Lord Henley Excerpts(11 years, 10 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Police and Crime Commissioner Elections Order 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 3rd Report from the Secondary Legislation Scrutiny Committee.
Police and Crime Commissioner Elections (Functions of Returning Officers) Regulations 2012
Lord Henley Excerpts(11 years, 10 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Police and Crime Commissioner Elections (Functions of Returning Officers) Regulations 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 3rd Report from the Secondary Legislation Scrutiny Committee.
The Minister of State, Home Office (Lord Henley)
My Lords, these instruments will ensure that all necessary preparations are in place for 15 November 2012 when the public go to the polls to elect their first police and crime commissioner. I know that the House has always taken a keen interest in shaping electoral law and we have drawn from that existing body of tried and tested law wherever possible.
The Committee will recognise the provisions in respect of electoral registers, the timetable for nominations and the ability to vote by post or by a proxy. It will also recognise the provisions for elections offences and for the combination of PCC elections with others held on the same day, such as the mayoral elections in Bristol. Your Lordships will recall the processes for counting the supplementary vote from mayoral elections. PCC elections will be part of the framework under the Political Parties, Elections and Referendums Act 2000—with which, again, I think the Committee will be familiar. Your Lordships will also see that our police area returning officers, or PAROs, are similar to regional returning officers in European parliamentary elections.
However, there are some notable differences from existing practice. For example, while candidates’ campaign spending limits will be based on the existing rules for mayoral candidates, these limits will be set out numerically for each area rather than requiring each candidate to calculate the formula themselves. We are grateful to the Electoral Commission for its advice on this.
PCC candidates will need to obtain 100 nominations and tender a deposit of £5,000, which is more than most elections but less than London mayoral elections. We have worked closely with the Electoral Commission and others to design ballots and forms that are more user-friendly, with a special focus on those who may find it more difficult to read, or to read English.
Rather than a paid-for mailing, the Government will offer every PCC candidate the chance to have a page on a new website and will offer a freephone line for the public to order a free hard copy. This will be the best approach in the circumstances. Both the web address and phone number will appear in all Home Office and Electoral Commission literature, in all advertising on PCC elections, and on poll cards delivered to every elector. Electors will know where to go to find information on candidates.
This policy is primarily driven by cost, but there are other advantages. The fact that hard copies will be provided on request means that they can be tailored to the needs of the individual. For example, we can provide copies in formats such as Braille, and under our plans electors will be able to choose the address to which the information should be sent. They might find that a work address is more convenient, or an address where they are staying temporarily.
This is very different from the position in 2000, when your Lordships’ House considered the rules for the London mayoral elections. The then Government proposed offering no candidate information, whereas we are confident that everybody who wants candidate information will be able to access it under our proposals. The order and the regulations before the Committee are the culmination of months of work and close consultation with expert planners, including the Electoral Commission, the Society of Local Authority Chief Executives and the Association of Electoral Administrators. I will echo the thanks to them of the Minister for Policing and Criminal Justice in another place. They are the foundation of an entirely new model of policing that will connect the police directly with the public they serve. I commend the order and regulations to the Committee.
Lord Kennedy of Southwark
My Lords, I am a member of the Electoral Commission and have been for nearly two years. Will the noble Lord tell the Grand Committee why the Home Office has been involved in this? It is as if we have tried to reinvent the wheel and ended up back where we started. There is expertise in the Cabinet Office. We may have National Park Authority elections in future and there is another unit in Defra. There seems to be complete duplication, with different units doing the same thing. Would it not be more sensible if all these things were contained in one unit which had expertise in the nuts and bolts of elections?
Lord Henley
My Lords, before I respond to the rant of the noble Lord, Lord Rosser, I will answer some questions from the noble Lord, Lord Kennedy, who is rather worried about why it was not the Cabinet Office that was dealing with this matter, particularly in light of the fact that there were other elections coming along in due course which Defra, my former department, and DCLG might have an interest in. I would very much welcome the Cabinet Office dealing with all of these things, in which case I would be able to deal with the Statement on home affairs business that is taking place in the Chamber at the moment and which my noble friend Lady Stowell has to do on my behalf. It is for the Home Office to develop policy on elections for PCCs, so I am dealing with this, and that is why I am here. I can assure the noble Lord that the Cabinet Office, DCLG and all the other interested parties have been involved in all these matters from the beginning. Obviously we will continue to consult them as and when appropriate.
As I said, I listened to the rant of the noble Lord, Lord Rosser, if I can put it like that. I think that we know what his party’s views on PCCs are. We have had yet again, as we had in another place, this rather confusing message saying, “We oppose PCCs on the grounds of cost. But having opposed them on the grounds of cost, we now think that we should spend yet more money on providing more information to the public than is necessary”. I find that a confusing line to put forward.
I say to the noble Lord that the only significant cost of PCCs is the cost of the elections. I appreciate that the cost is £75 million. However, I again give an assurance—which I and my colleagues have given on other occasions—that it will not come from funds that would have gone to forces. We believe that democracy is a justifiable cost, making the police more accountable to the public.
I can also assure the noble Lord, Lord Rosser, that we are not making information on these matters available solely by the website, as he said. Although we are making it available on the website, there will also be other ways of accessing that information—by means of a telephone call or having the information sent to any address that people particularly want to have it sent to. The noble Lord and his party are really coming on a bit rich by demanding yet further expenditure on these grounds—sending out leaflets to all electors—particularly when, as he will remember, his party refused to provide any such information on candidates for the London mayoral elections until there was opposition pressure on them to do so.
The noble Lord also asked what we would consider a successful turnout level. Obviously I will not give any estimate of what the turnout is likely to be—it would be a very foolish Minister who did so. However, we expect that the public will be enthusiastic about having their first elected PCCs. We hope that that enthusiasm will build over the years and that we will see more commissioners elected. Some might be from the noble Lord’s party and some might be from others. Certainly the hits on the police.uk website seem to demonstrate an interest in this. It certainly demonstrates that the interest in PCCs is much greater than the interest in the current system of police authorities.
I am not sure that I have dealt with every question put by the noble Lord but I think that I have dealt with the vast majority of them. I hope that he will accept that. My final point concerns his remarks about regional variations and the access of the less well-off to the website. That point was dealt with earlier. There will be other means of accessing information—I hope that the noble Lord will accept that. The Electoral Commission, of which the noble Lord, Lord Kennedy, is a member, also agreed that all the information it will make available, such as poll cards, will go to all households. I hope that the noble Lord will accept that the appropriate information will go out and that everyone will have access to information regardless of whether they can access the website.
Lord Kennedy of Southwark
Apart from saying that the Home Office is doing it, the Minister has not answered my point. The Home Office will look at the regulations. I suspect that there will be very little difference between these regulations and what the Cabinet Office would have produced. Perhaps the Minister can come back to me and point out what is different. I suspect that it will be next to nothing. If that is so, why has it not been done by the Cabinet Office? It is nonsense that we have different units in different departments doing this. It is a complete waste of taxpayers’ money.
Lord Henley
My Lords, I am more than happy to write to the noble Lord on the matter of whether the Cabinet Office should do this or whether, if the Home Office does it, it will merely replicate what happens in other elections. I will look very carefully at what the noble Lord said.
Lord Rosser
I think that the Minister claimed that he had answered the questions that had been asked—and of course he did nothing of the sort. I asked him whether an equality assessment had been done and what the outcome was, or whether the Government had dared not do such an exercise. I got no answer to that question. I also asked him whether he would clarify what the Parliamentary Secretary at the Cabinet Office meant when he said on 18 June that the Government,
“may consider a similar procedure for a general election, with an eye on overseas voters”.—[Official Report, Commons, 18/6/12; col. 652.]
I asked the Minister if he could clarify whether that meant that the Government were considering a similar procedure for overseas voters in a general election, or for all voters in a general election.
I also asked the Minister what the cost would be of holding elections in November, compared to the cost of holding them at the same time as local elections. As I recall, I received no response. I also asked him if it was true that the Home Secretary, as was reported in the newspapers, had asked the Treasury for money to fund an advertising campaign to encourage stronger candidates to come forward. I do not think that I got an answer to that question either. I am not surprised. I always know when I am on to a good thing because the Minister stands up and announces that what I said was a “rant”. One always knows that this means one will get no answers to the questions one has asked or the points one has raised.
The Minister sought to argue that somehow we had opposed the police and crime commissioner elections on the grounds of cost. That is true; that was our ground for opposing it. However, the game has changed now. The Government have got their Bill through and we are going to hold the elections. What we are saying is that now that the decision has been made to hold the elections, we should do it properly—in the same way, for example, as the Bristol mayoral election. Doing it in this way, with its emphasis on a website, will make it much harder for many people to find out about the candidates and what they are saying. I do not share the Minister’s apparently complacent view that they will all phone the free telephone number to ask for a copy of the information on candidates to be sent to them.
Lord Henley
Oh dear. Possibly I described the noble Lord’s speech as a rant because most of his speeches are a rant, but let me answer just one or two of the points that he has made. We have already published the equality assessment and it is available on our website. I invite the noble Lord to have a look at it there. I also have a copy here. On the cost of having the elections in November rather than May, that figure has been out in the public domain for some time, as the noble Lord well knows, but I will repeat it: it is going to cost some £25 million more—so £75 million rather than £50 million—than if we could have had the election in May. I think that the noble Lord has some understanding of the reasons why it was delayed, because he may have been part of the opposition Home Office team that was dealing with the matters that caused some delays to the relevant Bill. He also asked about tailoring the website for overseas voters. Let us just get through the PCC elections; we are not considering general elections at the moment but we can look at that in the future.
I hope that I have now answered the noble Lord’s points, but if I have not, I will no doubt write to him in due course.
Lord Rosser
I asked whether it was true, as was claimed in the newspapers, that the Secretary of State had asked the Treasury for money to fund an advertising campaign to encourage stronger candidates to come forward.
Lord Henley
My Lords, I do not comment on what I read in the press; I leave it to the noble Lord to look at these matters.
Alcohol Strategy: Role of Drinks Industry
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The Minister of State, Home Office (Lord Henley)
My Lords, I join other speakers in offering my congratulations to the noble Baroness, Lady Coussins, on securing this debate and on the contributions that we have heard during it from other speakers. We have had a range of views and I think we could say that we are all agreed on one thing: the damage that alcohol can cause. However, as to the solutions, I think it was the noble Lord, Lord Roberts of Llandudno, who said that he did not know what they were and that there might be a whole range of them. The solutions seemed to vary from more regulation to self-regulation and a bit of both. I want to set out roughly where the Government are in relation to these matters.
We believe, and I think the House is in agreement with this, that drinking alcohol to excess is a key cause of societal harm, including crime, family breakdown and poverty, as well as being a leading cause of health harm. At odds with the trends across Europe, alcohol consumption in the United Kingdom has increased quite dramatically over the past 50 years, although there has been a positive reduction in overall alcohol consumption over the past few years. That is a good thing but we believe that it is still too high and that it causes misery and pain to individuals, destroys families and undermines communities. Binge drinking accounts for half of all the alcohol consumed in this country and the crime and violence that causes generates mayhem on the streets, spreads fear in our communities and drains hospital resources. I was grateful to the noble Baroness, Lady Finlay, for reminding noble Lords just what A and E can look like on a Friday or Saturday night.
The Government are therefore convinced that tackling the problems of alcohol is a priority, which is why we launched our alcohol strategy in March. We have witnessed a dramatic change in people’s attitude to alcohol over the past decade. We have seen a culture grow where it has become acceptable to be excessively drunk in public and for people to cause nuisance and harm to themselves and, equally importantly, to others. A combination of ignorance, irresponsibility and poor habits have led to alcohol-related harm across crime, health and all other areas costing society an estimated £21 billion per year, which I think was the figure that the noble Baroness, Lady Coussins, quoted. Some 44% of all violent crime is carried out by individuals under the influence of alcohol. There were almost 1 million alcohol-related violent crimes in 2010-11 alone, and alcohol is one of the three biggest lifestyle risk factors for disease and death in the United Kingdom, after smoking and obesity.
I assure the noble Lord, Lord Brooke of Alverthorpe, that we take the health side of this very seriously. The alcohol strategy that we published in March might have emanated from the Home Office, but it had input from all other departments. The Department of Health takes these matters very seriously. In his foreword to the alcohol strategy, my right honourable friend the Prime Minister made it very clear that we will not tolerate this level of alcohol-related harm.
The Government’s alcohol strategy therefore sends out a strong message that we will crack down on the binge-drinking culture in our country; cut the alcohol-fuelled violence and disorder that still affects many of our communities; and cut the number of people drinking irresponsibly. If I take that original figure I gave, £21 billion per year, for all the costs of alcohol-related harm, the cost of crime alone is estimated to be in the order of £11 billion per year. That is simply unsustainable.
The strategy sets out a wide range of actions to tackle the excessive consumption of alcohol, including the introduction of minimum unit pricing. I remind the noble Lord, Lord Roberts, and the noble Baroness, Lady Finlay, that although Scotland has announced its intention to bring in minimum unit pricing, it has not been brought in yet. In our strategy for England and Wales we announced that we will bring in a consultation on the level of minimum unit pricing, not on whether we should have it. We will be doing that in the autumn; we shall put forward a range of options as to what would be appropriate. There will also be a commitment to consult on a ban on multi-buy promotions. I assure the noble Lord, Lord Brooke of Alverthorpe, that we have rebalanced the Licensing Act to enable local agencies to take the right action, including giving local councils the power to use early morning alcohol restriction orders and charge a levy for late-night licences to contribute to the cost of extra policing. Last week we published our response to the consultation, Dealing with the Problems of Late Night Drinking, and I commend that to noble Lords.
I am grateful, again, to the noble Lord, Lord Brooke of Alverthorpe, that he offered praise for the changes we have made in licensing. I imagine that he was one of those, along with the noble Baroness, Lady Coussins, who took part in the Police Reform and Social Responsibility Act that my noble friend, my predecessor, took through this House last year, which dealt with some of these matters.
The noble Baroness, Lady Coussins, also asked about the Government’s spending on alcohol awareness, and claimed that it was comparatively low compared to what the industry itself was spending. The strategy sets out how the Government and industry will work together to tackle alcohol-related harms and will help to give individuals the information that they need to drink responsibly. We launched a fully-integrated Change for Life campaign in February this year, communicating the health harms of drinking. Our intention is to extend this social marketing campaign if the evidence shows that it improves health outcomes and is good value for money. We all know that advertising does not always work; one remembers the story of the late Lord Leverhulme, who said he knew that half his advertising worked and half did not but that the trouble was that he did not know which half worked. We want to look at our advertising, therefore, and see what works and what does not.
On the subject of advertising, again there have been differing views from noble Lords. I appreciate what my noble friend Lord Clement-Jones said about there possibly not being a case for further regulation in this field, whereas others—I think it was the noble Lord, Lord Rosser—would prefer a greater degree of regulation. Extensive regulatory regimes are already in place to control advertising and marketing of alcohol products, which are pretty robust, despite what has been said, especially in relation to the protection of young people and vulnerable groups. Obviously, as I said, we will have to look at the evidence on that and at the evidence of the effect of that advertising. We would prefer to continue down a route of self-regulation but, obviously, if we find that advertising is causing problems, we might have to consider that as an area for regulation in future. My gut instinct would be not to go for further regulation at this stage, when we have a pretty robust regulatory regime as it is, with a great deal of self-regulation and co-regulation.
It is also acknowledged, and I think that most noble Lords would agree with this, that alcohol consumption in moderation can have a positive impact on adults’ well-being, especially where this encourages sociability. Well run community pubs and other businesses form a key part of the fabric of neighbourhoods, providing employment and social opportunities in our local communities. At a time of austerity and global economic pressures, the alcohol industry and the wider retail and hospitality sectors play a key role in our economy, contributing some £29 billion each year and playing an important part in our exports. In total it is estimated that some 1.8 million jobs in the UK are related to the alcohol industry, so a profitable alcohol industry enhances the UK economy.
The strategy puts a strong focus on a responsible industry that has a direct and powerful influence on consumer behaviours. It is the responsibility of the entire industry, alcohol producers and retailers in both the on-trade and the off-trade, to promote, market, advertise and sell their products responsibly, and that is what we want. We know that growth and responsibility can exist well together. The Government welcome self- regulation and active initiatives, driven by the licensing trade in partnership with the police and local authorities. I was very glad that both the noble Baroness, Lady Coussins, my noble friend Lord Clement-Jones and others mentioned Best Bar None, Purple Flag and businesses joining together to form business improvement districts.
The noble Baroness also mentioned Durham. I have visited the project in Durham; I did so partly because I had been at university there many years ago, and things have changed somewhat now. I was taken around by the Chief Constable of the Durham constabulary and I was very impressed with what they were doing. We have seen in Durham that a thriving and growing night-time economy can operate where excessive drinking is tackled consistently and robustly by business, the police and local authorities. As the noble Lord, Lord Bilimoria, said, over the three-year period of taking part in a Best Bar None scheme in Durham, licensees reported an estimated 75% cumulative increase in trade; a 50% increase in town-centre footfall and an expected 87% reduction in violent crime, and we should all note that last figure. As well as sending out clear messages that crime and disorder will not be tolerated in pubs, clubs and wider locations, such schemes have been proven to increase footfall and stimulate other businesses, whether cinemas, restaurants or whatever.
The Portman Group, which the noble Baroness knows well from her past—I believe that she was chief executive—introduced a Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks in 1996. All alcohol products sold or marketed in the UK are subject to the rules of the code, which prevent alcohol being marketed to children in a way that would encourage excessive or irresponsible consumption. We are working with the Portman Group to ensure that, where unacceptable marketing occurs, it results in the removal of offending brands from retailers.
The Government’s Public Health Responsibility Deal also taps into the potential for businesses to work with the Government and public health organisations to improve public health through their influence over food, physical activity, alcohol and health in the workplace. The responsibility deal recognises that there are areas where doing nothing simply is not an option, but the something to be done is not always necessarily best done by the Government.
I see that my time is coming to an end. We are beginning to make progress in this area: the fall in alcohol consumption over the past few years is something that we should welcome, as we should the further progress that we hope to make as a result of the alcohol strategy. While progress continues to be made, there is still more to be done. That is why the strategy sets a new challenge to industry on product labelling, unit content, actions on advertising and product placement. We all agree, as I think my noble friend Lord Roberts of Llandudno said, that there are no simple solutions. However, we accept that we should rightly be challenged on our policies, and there is no better place for that than this House.
Justice and Security Bill [HL]
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The Minister of State, Home Office (Lord Henley)
My Lords, I think that the final point made by the noble Baroness, Lady Smith, on the Bill of Rights is posed to the movers of the amendment, and I will leave them to respond to it when the noble Lord, Lord Butler, winds up the debate.
My noble friend Lord King said that he had been described as having a veneer of experience in these matters. All four speakers before the noble Baroness and me had far more than a veneer of experience in these matters. All four have served on this Committee or have been chairman, like my noble friend, and we are very grateful that they bring their expertise to this because it is a matter that requires a great deal of discussion and consideration by us.
I start by setting out what changes the Bill proposes to make to the ISC’s status. The new ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. In parallel with the Bill, the Government intend that the ISC will be funded by Parliament and accommodated on the Parliamentary Estate, and that its staff will have the status of parliamentary staff.
As both my noble friend Lord King and the noble Baroness, Lady Smith, have implied, the current ISC has been criticised for being a creature of the Executive—I think that was the word that the noble Baroness used. The intention of this measure is that the ISC should be brought much closer to Parliament. It will be a committee of Parliament created by statute in the same way as other bodies are, as listed by the noble Lord, Lord Butler, in response to the noble Lord, Lord Campbell-Savours.
The noble Lord, Lord Butler, said there were three examples. The Speaker’s committee for IPSA, created under Section 1 of the Parliamentary Standards Act 2009, is another. Like those other statutory committees of Parliament, the ISC will not have all the attributes of a departmental Select Committee. The question of whether such a committee would be the appropriate route to go down is another matter. We will deal with it when we debate Amendment 3, which the noble Lord will speak to immediately after this group.
The two amendments that we are considering concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. Some noble Lords will be aware that my right honourable friend the Lord Chancellor and Justice Secretary has written to the chairman of the ISC, Sir Malcolm Rifkind, stating that in principle the Government support such a change, or one that would have a like effect of making clear in the Bill the parliamentary character of the ISC. However, before we could accept the amendment that noble Lords proposed and which the Opposition support, we would need to be very clear that it would be the best means to achieve this end and what all the implications of such a change would likely be, including the very tricky issue of parliamentary privilege. Any change that has the possible impact of increasing the risk of unauthorised disclosure of sensitive information should be very carefully thought through.
My noble friend Lord Lothian described himself as a simple Scottish lawyer. I always get rather worried when noble friends describe themselves as simple, Scottish or a lawyer, and when all three come together I am even more alarmed. However, the amendment could affect the ISC’s status for other purposes. For example, it could bring the ISC within the ambit of the Freedom of Information Act 2000 by making it part of the House of Commons and the House of Lords for the purposes of the Act. It may also change the ISC’s status under the Data Protection Act 1998, as Section 63A of the Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC’s data-processing activities. I put it to my noble friend—the simple Scottish lawyer—that those consequential effects need to be examined in some detail.
It has been very helpful to debate the issues raised by the amendment. I hope I have gone some way to explaining why I am not in a position at this stage to say anything more. Certainly I can say that the ISC chairman, Sir Malcolm Rifkind, has responded to my right honourable friend’s letter, and that the Government would welcome further discussion with the ISC on this important issue.
The second amendment in the group deals with the very significant issue of parliamentary privilege and takes us back to the Bill of Rights. This is a matter that the House has considered on a number of occasions in recent years. The Government’s most recent consideration of the issue came in the Green Paper that was published in April this year. Noble Lords will be aware of the importance that privilege can play in the functioning of this House and of another place. Parliamentary privilege includes such fundamental concepts as the freedom of speech of Members of this House and of another place, and the prohibition on courts questioning proceedings in Parliament. Both Houses and their Select Committees benefit from that privilege. Freedom of speech in the context of the Bill of Rights is just one aspect of parliamentary privilege.
At present the Intelligence and Security Committee is a statutory committee of parliamentarians. However, it does not at present benefit from that parliamentary privilege. The amendment would provide that the proceedings of the ISC would be proceedings in Parliament for the purposes of Article 9. That would ensure that the committee’s proceedings were covered by parliamentary privilege. The question posed by the amendment is about the consequences of privilege attaching to the proceedings of the ISC, which would be that criminal or civil proceedings could not be brought in respect of statements made by ISC members, or witnesses before the ISC, in the course of ISC proceedings.
Noble Lords may say that this makes very little difference because the ISC members are all parliamentarians and can benefit from privilege when participating in parliamentary proceedings. However, it would be different for a witness, who at present would not benefit from privilege. Other consequences would be that disciplinary proceedings against witnesses, based on statements made in ISC proceedings, would be barred as such proceedings would constitute a contempt of Parliament.
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. I should be grateful if noble Lords accepted that and that it would probably be best at this stage to withdraw the amendments and to have further discussions, particularly in the light of the fact that my right honourable friend the Lord Chancellor has written to Sir Malcolm Rifkind about this and said that he is broadly content with the idea. However, as I have explained, we believe that more work is necessary. With that, I hope the noble Lord will feel able to withdraw his amendment.
Lord Butler of Brockwell
My Lords, I am grateful to the Minister for that reply and to the other Members who have taken part in the debate. Two clear points have come out of the debate that are agreed on all sides. First, the ISC should be able to fulfil its duties to Parliament as strongly as possible. It should be clear that it is a servant of Parliament and not of the Executive. That was the purpose of the first amendment.
We will debate in a moment the amendment tabled by the noble Lord, Lord Campbell-Savours, proposing that the ISC becomes a Select Committee, but, as I understand it, special safeguards are required for it, both in relation to appointments and in the nature of its reports: namely, that things that are genuinely secret should not accidentally be released in its reports. I think I am right in saying—this will no doubt come out in our next debate—that there will need to be a statute for that reason, so the statute will be necessary anyway. It would be difficult to apply those restrictions to a Select Committee of Parliament, but that will no doubt also come out in our next debate.
The purpose of the clauses in the Bill and of the amendments is exactly the same as the purpose that the noble Lord, Lord Campbell-Savours, is pursuing. I am very strongly in favour of Parliament’s effective control over the Executive. I have become more strongly in favour of that since I became a Member of Parliament rather than a member of the Executive. I believe in it very strongly, and I believe that of all the parts of the Executive, the security agencies need to be effectively controlled by people who are in a position to see and be trusted with information about what they are doing. So I do not think there is any difference about the ends.
The second thing is that witnesses to the ISC should have confidence in the security of the evidence they give. Again, I do not think there is any difference between us on that subject. As the Minister said, members of the ISC, as Members of Parliament, may be secure in that respect, but witnesses may not necessarily be so secure. If a situation arose in which the courts could question the proceedings in the ISC and enforce the revelation of evidence, the ISC would simply not be able to operate effectively. That is the purpose of seeking to apply in the statute that the ISC should have the benefit of parliamentary privilege as if it were a Select Committee of Parliament.
Again, it is clear from the Minister’s reply that the question here is about means rather than ends, and I entirely accept that those need to be carefully looked into and that the implications of the proposed amendments need to be carefully examined by those who are sufficiently expert to do so.
In the belief that our objectives in this are the same, that we are talking about means and not ends, and that the Government will now look at ways of achieving those ends, I am very happy to beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, the noble Lord, Lord Campbell-Savours, has done this Committee a service in degrouping his amendments. It is a broader and deeper debate than the one we had on the first two amendments. It has been extremely helpful. The noble Lord, Lord Elystan-Morgan, hit the nail on the head when he described it as a useful debate with a lot of consensus. I disagree with the noble Baroness, Lady Hamwee, who said this was a polarised debate. I am not convinced that it is. This is less about what we expect the ISC to do and how we expect to do it than the structure that can best achieve those objectives. There seems to be a fair amount of agreement on the kind of objectives we are seeking. I wrote down a couple. The idea of a veneer of expertise has now been firmly laid to rest. I hope that we will not hear that expression again either in your Lordships’ House or outside. I was intrigued when the noble Lord, Lord Deben, mentioned to the Minister the comments from civil servants. I felt the ghost of “Yes Minister” creeping into our debates. Civil Service Ministers sometimes have to make a decision and challenge civil servants on some issues.
The areas of broad agreement were the independence from the Executive and the issue of parliamentary privilege. I thought the comment of the noble Lord, Lord Campbell-Savours, about the power to take evidence under oath was a powerful one. Security of information caused considerable concern for those who are not keen on having a Select Committee structure but who also, like the noble Lord, Lord Campbell-Savours, want to protect security of information if there is any question on that. There is the same point even if the structures are different.
The issue of public hearings came up. I am not sure how relevant that is in terms of structure in that amendments have been tabled about the kind of public hearings there could be and what form they could take. My own view is that they are valuable. They certainly should never be automatic but we have that debate coming up. I am unclear whether a Select Committee would have to have public sessions unless the Committee wanted to have it. It is the best structure for achieving that.
We have also heard from a number of noble Lords about ensuring public confidence in whatever structure the Government decide to go ahead with. It was helpful that in the last debate the Minister, if I understood his words correctly, said he wanted to look at the best means of achieving these ends and consider all implications. I hope he can say that in the context of this debate as well. It has been a broader debate in that noble Lords have been thinking carefully about powers, independence and structure, and I hope the Minister finds that debate and those comments and views helpful.
Public confidence is an issue to take into account. It can be well served by public hearings or it can be badly served by public hearings, and we will debate that further today. Public confidence does have an impact on how sensitive or highly confidential information that is relevant to national security is dealt with. So I am interested in what the Minister has to say. I hope that he will take on board all the comments made in the last debate and in this debate. I hope that he is smiling because he agrees with me rather than because he is amused by what I said. I hope that he will say—as I hope I would say if I were sitting in his seat—that he will take this away and take into account not only the comments that were made in the previous debate but the wide range of views expressed in this debate. They are moving in the same direction and seek that, whatever structure the Government want to proceed with, the comments of the House should be taken into account to ensure that the Government get it right, protect national security, safeguard sensitive information and also secure parliamentary independence and public confidence.
Lord Henley
My Lords, I was smiling at the noble Baroness only because I thought that she was trying to write my speech, which was not necessarily her job at this stage. I agree with her about several things. It has been a very useful debate. The 11 speakers—12 including myself—expressed a range of views. As the noble Lord, Lord Elystan-Morgan, said, we are all heading in the same direction and all trying to ensure, as a number of speakers put it, that there will be an appropriate degree of public confidence in whatever we set up.
I was very interested in the opening remarks of the noble Lord, Lord Campbell-Savours. He talked about the position of many colleagues in his party in 1989. Many of them are now distinguished members of his party. He stressed that all of them, to a man and woman, were in favour of Select Committee status for what became the ISC in 1994 under the chairmanship of my noble friend, and what is now being developed by the Bill. I was looking forward to hearing the official view of the Opposition on whether Select Committee status was the appropriate road to go down, but I heard no answer on this from the noble Baroness later in the debate, nor on what the collective view of the party was. It might be that there are now different views, because 1989 is a considerable time ago.
Lord King of Bridgwater
The view about a Select Committee is rather easier to hold if you are in opposition than if you are in government. The history of this was that the entire shadow Cabinet in 1989 voted in favour of it. When the prospect of office loomed, Jack Straw, who was then I think shadow Home Secretary, was asked the same question and was much more cautious about the whole matter. Of course, when they came into government there were no moves to introduce a Select Committee. However, times have moved on and I hope that there will be moves in that direction.
Lord Henley
My Lords, obviously my noble friend is right to say that times have moved on. All of us can remember as far back as 1989. Things have obviously changed since then. I was merely trying to tease out the official view of the Opposition at this stage, but it does not matter because as we all know, and as a very distinguished Cross-Bencher, the noble Lord, Lord Elystan-Morgan, made clear, we are all heading in the same direction and at least trying to make sure that we achieve the right thing—a committee that has the appropriate degree of public confidence.
I do not want to re-emphasise what I said earlier about the ISC being appointed by Parliament rather than the Prime Minister, and about its members being free to choose their own chair. That will be debated later, in the context of another amendment tabled by the noble Lord. In parallel with these statutory changes, it is the Government’s intention that the ISC will be funded and accommodated by Parliament. The amendment sets up the ISC as a Select Committee of Parliament. The noble Lord could have achieved that by the simpler means of leaving out the whole of Part 1 and making sure that the appropriate authorities in another place created the Select Committee—but he went down a different route and we are having this debate for the very good reasons that all speakers in the debate made clear.
I will explain why we believe that the ISC should be created by statute. It is to ensure that safeguards are in place to protect against the disclosure of sensitive information. Therefore, the Government do not consider it appropriate for that body to be a full Joint Committee established merely under the Standing Orders of each House, as other Select Committees are.
I hope that the Committee will bear with me if I expand on those reasons. First, in that scenario, the Government would not have a statutory ability to prevent the publication of sensitive material. There are two main problems with this. The risk of disclosure of information that might damage national security could be increased. This might lead to a situation where agency heads find it hard to reconcile their duty to protect information with their duty to facilitate oversight. This could lead to a sharing of less sensitive information and therefore a corresponding reduction in the effectiveness and credibility of oversight.
Secondly, it would not be possible for the most sensitive information to be withheld from the Committee. It is important that safeguards exist so there is adequate provision for those exceptional circumstances where the disclosure of information, even to the Chairman of the Committee, would be damaging to national security and/or would jeopardise vital agency operations or sources of information. The equivalent grounds on which information can be withheld from the Committee under the Intelligence Services Act 1994, have been used very rarely, as those former or current members of the Committee will know. We would expect the similar powers in the Bill also to be used sparingly—only in exceptional circumstances.
Thirdly, there is the appointments process. Again we will deal with that in greater detail later on. Here the Prime Minister has a role, and the noble Lord, Lord Campbell-Savours, in a later amendment proposes a much stronger role for him. That role is important. The ISC is unique in that members of the Committee have access to very important and extremely sensitive information, and it is important that the appointments process has sufficient safeguards to ensure there is as little risk as possible of unauthorised disclosure of sensitive information and the consequences that could do significant damage to national security.
The effect of the noble Lord’s amendment to create a Select Committee is not clear to me. He says it could take evidence under oath. In the Bill, even if we were to accept all the noble Lord’s amendments, the ISC would still be created by statute and safeguards would still exist to protect national security in those three areas I have listed, although admittedly altered to some degree. Unless the noble Lord pursues this suggested alternative policy of deleting the whole of Part 1, his amendment would not create a full Joint Committee because that can be done only by the Standing Orders of each House. It would create an entirely novel body, a Select Committee established by statute.
To what extent would such a body share the characteristics of the other Select Committees? The Bill makes it clear that, even were it amended in other respects according to noble Lords’ wishes, the ISC is different from other Select Committees in fundamental respects—for instance, in relation to appointments and reporting. That being so, I believe it is unclear whether or to what extent changing the ISC in this way would give it the other characteristic of a Select Committee. Indeed, I believe the risk is that describing the ISC as a Select Committee when it has characteristics not shared by other such committees could positively mislead as to the ISC’s true character.
I hope that that explanation is sufficient for the noble Lord. I wait to see what he says. This has been a useful debate and there will no doubt be further discussions on this matter, but I believe that it is appropriate for the noble Lord to withdraw his amendment.
Lord Campbell-Savours
My Lords, perhaps I may say a few words in winding up the debate. I say to the noble Lord, Lord Henley, that I recognise the wording I have used could not be put in the Bill. My amendment is simply my attempt to ensure that there is a debate. I recognise perfectly well that if we were to go down this route, while there would be, as the noble Lord, Lord Butler of Brockwell, said, a requirement for something in statute, the body of the change would be incorporated into parliamentary resolutions.
Lord Rosser
My Lords, the names of my noble friends Lady Smith of Basildon and Lord Beecham are associated with Amendment 9 and we support the proposal that the chair of the Intelligence and Security Committee should be remunerated in line with chairs of departmental Select Committees of the House of Commons. As has already been said clearly, the commitment required by future occupants of this post is likely to be extensive, bearing in mind that the whole purpose of the Bill is to strengthen oversight of the intelligence and security activities of the Government by extending the statutory remit of the Intelligence and Security Committee. The committee, as we know, will be drawn from Members of the House of Commons and your Lordships’ House. It would seem appropriate to determine remuneration as part of the Bill, and to relate it to a not dissimilar position in one of the Houses of Parliament from which the membership of the committee is to be drawn.
A departmental Select Committee in the House of Commons has a different but not widely dissimilar role to that of the Intelligence and Security Committee under the Bill. The chair of a departmental Select Committee in the House of Commons also takes on a considerable additional level of commitment and responsibility. There are a number of such posts and they are not held by Ministers of the Crown. The officeholders, like the Select Committees themselves, are drawn from Back-Benchers, as would be the case with the Intelligence and Security Committee and the chair of that committee. It would therefore seem that the chair of a departmental Select Committee in the House of Commons is the appropriate benchmark, as provided for in Amendment 9, which we support.
Lord Henley
My Lords, we can deal with these amendments fairly briefly. The noble Lord, Lord Butler, described them as a simple point of equity. On that basis, I hope the debate has been—or will be—listened to in due course by IPSA in the case of the Commons and, in the case of Members of this House, the House Committee, because in the end decisions have to be made by those appropriate committees. It is not really a matter for legislation.
To underline that, I remind the Committee that Commons Members’ pay is entirely a matter for IPSA and it makes decisions in accordance with resolutions of the House. The relevant resolutions make no provision for additional financial support for ordinary members of Select Committees so it would be a matter only for the chairmen of committees. I will get to the question about the chairman of this committee later. IPSA may determine that MPs who hold a position or office specified in a resolution of the House of Commons should receive a higher salary than ordinary Members. IPSA will have no say as to which positions are on the list—that is obviously a matter for Parliament; once it has decided on that list, it will be for IPSA to set the rate. Again, it is for IPSA to listen to this debate.
Lord Rosser
My Lords, I wish to talk about Amendments 5 and 7 in particular. Amendment 5, as the noble Lord, Lord Butler of Brockwell, said, lays down what happens if a person nominated for membership of the Intelligence and Security Committee is not then appointed by the House of Parliament from which they are drawn. The amendment lays down that in this situation,
“the Prime Minister shall nominate an alternative person”.
The Explanatory Notes to the Bill say that the purpose of the procedure in the Bill for nominating and appointing members of the committee,
“is to ensure that the Government retains some control over those eligible to access”,
highly sensitive information.
Many might feel that the use of the words “some control” in the Explanatory Notes rather understates the position from the government perspective. This amendment does at least make it clear that the relevant House of Parliament is not obliged to accept the Prime Minister’s nominee and that the Prime Minister cannot simply keep resubmitting the same name, or do nothing, but has to nominate an alternative person.
Amendment 7, to which the noble Lord, Lord King of Bridgwater, has already referred, is, certainly at this stage, rather more a probing amendment in the light of the enhanced role that the committee will have and the need for it to be seen as clearly separate from the Executive. It provides, as has already been said, for the chair of the Intelligence and Security Committee to be not only a member of the ISC, chosen by its members, but a member of the ISC from the opposition party. The Public Accounts Committee, for example, is chaired by a senior opposition MP.
It must surely be important that the Intelligence and Security Committee, bearing in mind its strength and oversight of the Government’s intelligence and security activities, and its role in this sensitive and potentially controversial area, is an all-party committee that is not only not open to pressure from government or the intelligence and security agencies in the work it undertakes but perceived as being not open to such pressure.
The Prime Minister has, under the terms of this Bill, considerable influence over the appointments to the committee. He or she is required to consult, not reach agreement with, the leader of the Opposition on nominations, and the two Houses of Parliament can only decline to accept a nomination and cannot appoint someone of their own choosing. Neither does the Intelligence and Security Committee have unchallenged powers to require information from the intelligence and security agencies, even though the members of the committee will all have been nominated through the Prime Minister, as the Secretary of State can veto the giving of information to the committee.
If the chair of the committee were to be not only a nominee of the Prime Minister but from the same party as the Prime Minister and from the same party as the Secretary of State, who could veto the use by the committee in carrying out its statutory oversight remit of the use of its power to require information from the intelligence and security agencies, that might well lead to a perception, no doubt unfairly, that the leadership of the committee and its most influential member was a little too close to the Government of the day, particularly bearing in mind that the objective of the Bill, as explained in paragraph 3 of the Explanatory Notes is to provide,
“for strengthened oversight of the intelligence and security activities of the Government”.
Lord Henley
My Lords, we have four amendments in front of us, all slightly different but all covering appointments to the committee. I will deal with them in turn. Amendment 5 seeks to ensure that if someone is turned down by Parliament the Prime Minister will have to make another nomination. This is something with which the Government entirely agree. However, the amendment is not necessary as it will be achieved by the current drafting of the Bill. If, under the appointments process in the Bill, the Prime Minister’s nominees are rejected by either House, the Prime Minister will have to make another nomination or nominations after consultation with the Leader of the Opposition. This is clear from the fact that the Bill requires the ISC to consist of nine members so if one is turned down another would have to be found. I hope that deals with the point made by my noble friend Lord Lothian, who asked what would happen in such cases. Where we differ is that the amendment in the name of the noble Lord, Lord Butler of Brockwell, insists that an alternative person should have to be nominated and we would like to keep the flexibility because there are occasions where it is possible for the Prime Minister to be able to renominate. It might be that one reached some sort of impasse in due course but it should be possible on occasions to renominate and that renomination might be rejected. Whatever happens, as the Bill is drafted, a ninth person would have to be put forward.
Turning to Amendment 6 from the noble Lord, Lord Campbell-Savours, he suggests that it should no longer be necessary to consult the Prime Minister. He said that he would never have been appointed if it had been left purely to my noble friend Lady Thatcher if she had been in opposition. Obviously, if we accepted the amendment proposed by the noble Lord, Lord Campbell-Savours, and removed the necessity to consult the Leader of the Opposition, there would be even less likelihood that he would be appointed, because my noble friend—or Mrs Thatcher, as she then was—would have made the decision entirely by herself, without consulting the Leader of the Opposition. We believe that it will be important in retaining cross-party support, just as it was when the original 1994 Act went through, requiring that the committee should be appointed by the Prime Minister after consultation with the Leader of the Opposition. For that reason, the Prime Minister should continue to consult the Leader of the Opposition before he nominates any such person.
Lord Campbell-Savours
This is quite an important issue. The question is very simple. If the Prime Minister, Margaret Thatcher, had been Leader of the Opposition, would she have allowed someone like me, with my record at that time, to go on this committee? The answer is no, which is why I believe that this provision is wrong.
Lord Henley
But the noble Lord is also saying that he wants to delete the ability to consult the Leader of the Opposition and leave it entirely to the Prime Minister. I have to say that the Prime Minister probably would not have appointed him either, so the issue does not arise. What we suggest is that, to maintain cross-party support—I suspect that everyone agrees on this except the noble Lord himself—there should be a degree of consultation between the Prime Minister and the Leader of the Opposition on this issue. The simple fact is that consultation did take place and we are all very happy, my noble friend Lord King included, that he was taken on to that committee.
Rather than dealing with the amendments sequentially, I come to Amendment 8 before Amendment 7. It comes from the noble Lord, Lord Campbell-Savours, and relates to the election of the chairman. The noble Lord raises concerns about the Government’s proposals for appointing the chair, arguing that the chair’s appointment should again be made with the agreement of the Prime Minister and the Leader of the Opposition. I notice that the effect of the amendment would be for the chair to be appointed by the Prime Minister and that there would be no requirement to consult the Leader of the Opposition. So I suppose that the chances of the noble Lord having got on to the committee or being appointed as chairman would be even more remote, but that is something that he can consider in due course.
As we explained earlier, we believe that the changes that we are making to the ISC status are designed to bring it closer to Parliament and increases public confidence in it. That is why the Government propose that the chairman of the ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The noble Lord seemed to suggest that with a new Parliament, the new Members would not know each other. I suspect that with the experience of the members on that committee, as has happened in the past, it will normally be the case that the committee will know who is the appropriate person as well as anyone. It is quite right, therefore, that those members should make the appointment.
Lord King of Bridgwater
I am trying to remember how many new Members came on to the committee. There was a big upheaval. I remember that the noble Lord, Lord Gilbert, for example, was a member of the previous committee; he was whisked off to be a Minister. It was a pretty major change of cast. With great respect to my noble friend, who says that new members of the committee might be expected to know about these things, a number of them might have had no previous experience whatever of the committee.
Lord Henley
My Lords, I will look very carefully at the point that my noble friend has made and at the statistics relating to 1997 in particular, which was one of those years in which there would have been a big upheaval, with that particular new Parliament. Off the cuff, I do not know who was on the committee and who came on, although perhaps my noble friend can remember. But in the main, with the relatively experienced parliamentarians who will be on this committee, I think that it is well suited to making the decision itself.
Lord Campbell-Savours
You might, as a Member of Parliament who had been in the House for years but had no contact with intelligence, not understand the vital nature of the relationship between the agencies and the chairman. It is critical to the whole operation. I cannot see how someone who goes newly on to that committee could have any understanding of that relationship. If the relationship is wrong because the wrong person has been appointed, the committee could be denied information. If the objective behind the Bill is to secure more access to more operational material, we are undermining the whole arrangement. Ministers should reconsider this point. It is all right saying that it is more democratic and accountable and that Parliament is more involved—but if it does not work, do not do it.
The Marquess of Lothian
My noble friend Lord King of Bridgwater was talking about the noble Lord, Lord Gilbert, leaving the committee. Between 2007 and 2009, two chairmen of the committee were promoted to being Ministers and left the committee. I wonder how the committee would have been able to elect successors to those two when we needed someone of sufficient seniority to carry out that task.
Lord Henley
I think that my noble friend possibly means that two members of the committee were promoted to being Ministers, rather than two chairmen.
The Marquess of Lothian
No, they were two chairmen. The first was Paul Murphy and the second was Margaret Beckett.
Lord Henley
Yes, my noble friend is correct in that. I was looking at the wrong dates—he means between 2007 and 2009. I will obviously have to examine this and, as I promised my noble friend Lord King, examine the statistics in relation to the 1997 Parliament, when there would have been the biggest change in the membership, rather than the subsequent Parliaments. In brief, I stick to my position that it would be better for Parliament to make this decision, rather than the Prime Minister, but I note the concerns put forward by colleagues from all sides, or both sides, of the House.
I turn to Amendment 7, which presents the idea that, whatever happened, the chairman of the committee should be drawn from an opposition party. Again, my noble friend Lord King had some sympathy for this amendment, but when one looks at the history of the committee and the distinguished service of my noble friend, who served as chairman when our party was in government, and as chairman in opposition, from 1994 to 2001, it is obvious that one can do it from either side. To make a statutory requirement that a chairman had to come from the opposition party would unnecessarily limit the available candidates for that job. My noble friend rightly pointed to the problems that might have arisen in 1997 when, after a very long period in opposition, all the more senior members of the then opposition party going into government were likely to become Ministers, and there might not have been suitable people around. To curtail who could be chosen would reduce unnecessarily the pool from which the appropriate chairman could be taken.
Having said that I would listen to comments made on Amendment 8, proposed by the noble Lord, Lord Campbell-Savours, I hope that the explanations that I have given on the other Amendments 5, 6 and 7, as well as Amendment 8, will be sufficient for the noble Lord to withdraw his amendment.
Lord Butler of Brockwell
My Lords, on the basis of what the Minister has said, I am happy to withdraw Amendment 5.
Lord Campbell-Savours
My Lords, I want to speak to Amendments 11 and 12, standing in my name. Amendment 11 deals with the words in Schedule 1, paragraph 1(2)(c), which states that,
“a resolution for the person’s removal is passed in the House of Parliament by virtue of which the person is a member of the ISC”.
In other words, there has to be a resolution of Parliament to exclude someone from the ISC. Have those who wrote this Bill thought that through? A resolution in the House of Commons, or even in this House, would mean that the person who is being removed from the ISC, with all the material that they have gained over the years on matters relating to national security and who may well be angry with the chairman and the system, is given free rein to get up on the Floor of the House of Commons and, in their defence on the back of the resolution, say why they should not be removed from the Intelligence and Security Committee. This is a very silly proposal. It is highly dangerous and has clearly been worked up by someone who did not understand the implications of what a resolution of the House of Commons means for public debate. It should be removed.
How could someone be removed from the Intelligence and Security Committee? First, one would go to them privately and explain the reasons why they should resign. I am sure that the Whips and the system have all sorts of ways for removing Members of Parliament without allowing them free rein to get up on the Floor of the House of Commons on the back of the resolution to defend themselves. That is my case for Amendment 11. I seek the exclusion of what I regard as a highly irresponsible proposition.
I now turn to Amendment 12, which deals with sub-paragraph (3), which states:
“A member of the ISC may resign at any time by notice given to … in the case of the member who is the Chair of the ISC, the Speaker of the House of Parliament by virtue of which the person is a member of the ISC”.
Why should the Speaker be informed? This is not a parliamentary committee; the Speaker is not a member of the committee and has no relationship with it. The committee is external to Parliament, however we want to describe it. I cannot see any explanation why, other than the fact that those who devised these sections of the Bill believe that it is necessary to have a model where they have the imprimatur of Parliament on the label. I think it is ludicrous, unnecessary, and again it should be removed from the Bill. It is trying to lead the public to believe that this is truly some committee of Parliament. It is not, because it lacks the privileges and the powers that a parliamentary committee has as a Select Committee. That is my case.
Lord Henley
My Lords, I will return to the noble Lord’s amendments in due course, but I will start with Amendment 10 in the name of my noble friend Lady Hamwee. This seeks, in effect, to continue the committee’s existence for a period of days after Dissolution until a new Parliament is created. It must be remembered that the absence of the ISC for that short period of Dissolution does not mean that the agencies are unaccountable. There are other mechanisms for agency accountability, not least through their accountability to Ministers, who obviously continue in their role throughout that Dissolution. The absence of the more considered work of the ISC during that relatively short period will not result in some sort of accountability deficit. Naturally, continuity between Parliaments is very important, but it is not necessary to have the old ISC stretch into the next Parliament to achieve this. I assure my noble friend that we do not need legislative provision for a new incarnation of the ISC to inherit the documents, for example, of its predecessor. Under the existing regime this has happened without any difficulty. Furthermore, the provisions in sub-paragraphs (6) and (7) of paragraph 1 of Schedule 1 allow the ISC in a new Parliament to pick up work that was ongoing at the time of Dissolution of the previous Parliament.
I turn to the amendments of the noble Lord, Lord Campbell-Savours, who seems particularly worried about mechanisms for removing individuals from that committee. He seemed to suggest some sort of equivalent to the idea of the Whips giving them a bottle of whisky and a revolver and telling them to sit quietly in a room until they have resolved matters by themselves. I do not know if that was quite what he was suggesting, but we believe that if Parliament appoints, it is plain that Parliament should also have the power to remove. That fits the broad thrust of what we are doing. That is the reason for the provision that the noble Lord seeks to leave out, ensuring that an ISC member can be removed involuntarily from the committee only by virtue of a resolution passed by Parliament. Again, this is an important safeguard to the ISC’s independence and means that the final say on its membership is with Parliament.
Lord Campbell-Savours
Does the Minister foresee circumstances in which an angry young man or woman who was excluded from the committee on the back of a resolution would, under privilege in the House of Commons, argue a case that might even breach national security? If he, or those who have devised this provision, can foresee such circumstances, does he not think that this provision bears further responsibility, despite what the noble Lord said?
Lord Henley
My Lords, the same could apply to whoever was removing that person. We are saying that Parliament should, in conjunction with the Prime Minister, have the responsibility for appointing, and therefore that Parliament should therefore have the duty to remove. If we accepted the noble Lord’s amendment, can he not see possible occasions where there was no possibility of removing a member of the ISC from office, no matter what they had done, unless they ceased to be a Member of their House of Parliament—this place or another place? I do not therefore accept the noble Lord’s amendment.
As regards his second amendment and the idea that the Speaker of either House has to be notified, I really do not see why notifying the Speaker as a means of resigning from the committee causes any problems at all. Both the Government and the committee are of the view that the chair should no longer be removed by, or required to resign by giving notice to, the Prime Minister. Again, the committee has previously been criticised for being a creature of the Executive. If the committee is to be a creature of, or belong to, Parliament, it seems far more appropriate that a person should have to resign by the means proposed rather than tendering their resignation to the Prime Minister.
I therefore hope that my noble friend will withdraw her amendment, and I am sure that the noble Lord will not want to move his amendments.
Baroness Hamwee
My Lords, I clearly did not explain my amendment adequately. My noble friend responded on one point, the continuity of the committee, but he has not dealt with my concern about delay in appointing members in a new Parliament. Can he help the Committee on that and give any assurances?
Lord Henley
My Lords, both Houses are normally reasonably speedy about these matters and we will obviously take the issue very seriously. I do not think that there has previously been a delay in appointing the nine members after appropriate discussions, and I cannot see that there would be any dangers of delay in the future, but whoever is in government will obviously have to bear in mind the importance of these matters and ensure that a new committee is created as quickly as possible.
Baroness Hamwee
My Lords, I have no idea about the appointment of the ISC but I discussed this matter with a Member of the Commons who has considerable experience of membership of Select Committees. It was from him that I heard that in one case there was a delay of almost six months in appointing the committee. It is that situation that I am seeking to avoid. I do not expect the Minister at this point to say anything other than what he has said, but the issue is serious in my head.
He said that legislation is not needed for the continuity of work of the committee or of the transfer of documents. I was not arguing that point at all. As I said, this is a probing amendment. I am not sure that I have probed quite far enough, but of course I beg leave to withdraw the amendment.
Baroness Williams of Crosby
My Lords, let me say right away that I come to this issue completely as a laywoman because I have never been a member of the Intelligence and Security Committee, I have never been asked to be a member and I do not purport to have the arcane wisdom that is obviously involved in the intelligence committee. I speak simply as a laywoman puzzled about this point.
I find it strange that the quorum is as low as three—that is to say, one-third of a committee of nine. It puzzles me for two reasons. The first is perhaps best summed up by the rather agreeably brusque remarks of the noble Lord, Lord King of Bridgwater, who explained, when referring to Australia, that an “awkward squad” had decided to take over that country’s intelligence and security committee, and that it would therefore be open to the possibility of a small group effectively influencing the ISC in ways that might be troubling over the long term.
However, I have a rather different thought in mind. Sadly, many Parliaments around us are increasingly polarised, whereby the Government of the day and the opposition find it very hard to work together. The United States is just one example of that. If you have in a polarised parliament or congress a party that decides it will not co-operate with other parties even on such an important committee as an intelligence and security committee, the committee would be nullified by itself and it would be hard to reach overall decisions. Clearly, on a matter of such importance, it is important that a consensus, if one can be found, should be sought.
There is also another objection that I feel strongly about. The decision of a committee as important as the ISC should at least have to depend upon some level of attendance in addition to the three who may represent one party in order to give the committee the kind of credibility that the noble Lord, Lord Campbell-Savours, and many others referred to when they were talking about public attitudes towards the ISC. I should therefore have expected a larger quorum of at least four or five, rather than three, as stated in the Bill.
The main point of the amendment is to persuade the Minister to think about whether that quorum is not a little too small. There is a real danger that a faction could dominate the committee in a way that would be completely destructive of its credibility over a period of time. I therefore ask him to consider this issue, explain why the figure in the Bill is as low as three—for all I know, it always has been three and I do not know if changing it would be a bad precedent—and to say whether we could have a figure more convincing in terms of carrying public opinion with it.
I have no wish to delay the House but I am surprised that no other amendment has been tabled about the size of the quorum. That may be because I am not part of this wise and arcane group, and I am delighted now to see the noble Lord, Lord King of Bridgwater, to whom I have just referred in relation to the quorum being as low as three, which makes it possible for an awkward or fanatical club effectively to control the discussions of the ISC. The noble Lord quoted the case of Australia, as regards the danger that the committee, if there were a low quorum, could be dominated by a small faction or extreme group of some kind. I hope that he will not mind that I referred to him. I beg to move.
Lord Henley
My Lords, I start by being faintly flippant. I remind my noble friend that the quorum for this House and this Committee is only three—one to speak, one to listen and one to sit either in the Chair or on the Woolsack. Even with the crowded House that we have at the moment, we represent probably well below a third or even a tenth of the membership of the House. I should also remind my noble friend that my understanding is that it is the practice of most Select Committees to have a quorum of three or a quarter of the committee’s membership. Three is therefore the number that we have picked. Bearing in mind that the ISC is a relatively small committee with a membership of only nine, three represents a third of the membership.
Having said that, one should take my noble friend’s amendment seriously but we have not, as far as I am aware, had any problems with the quorum. A quorum of five might be overly restrictive, particularly if you take the view that the function of a quorum should be to provide protection against the possibility of a small number of persons on a body taking actions or decisions that could be unrepresentative of that body as a whole.
Lord King of Bridgwater
I think it fair to say that this is a Committee that, quite exceptionally, has a remarkably high attendance level, and this is something we are quite proud of and which, I am sure, has continued. I do not ever recall any problem about a quorum. In fact, I recall very few occasions when the whole Committee was not on parade and, as anyone familiar with House of Commons Select Committees will know, that is often far from being the case.
Lord Henley
I am very grateful to my noble friend for giving me that assurance. I remember when, many years ago, I was first put on a Committee—the Joint Committee on Statutory Instruments, possibly the outer Siberia of committees. I think there were seven Members from each House and a quorum of two from each House. On a committee of that sort it was often quite difficult to reach the quorum of both Houses, but some of us manfully attended week in, week out, to preserve it. I am very grateful to my noble friend for making the more serious point that the Committee does, in the main, have not just a quorum but is normally fully attended by virtually all Members; that really answers the points of the noble Baroness, Lady Williams.
Baroness Williams of Crosby
With great respect, I do not think that what the noble Lord, Lord King of Bridgwater, said went very far towards supporting the argument that because there is such good attendance at this extremely important committee there is a case for a very low quorum. On the contrary, it seems to me that Members take their duties so seriously—and rightly so, given the importance of the subject matter—that it would not be disruptive to increase the quorum, at least to some extent, from the present three.
Again with great respect, the fact that around 5% of the possible attendance of the House of Lords is present at this particular discussion is not really the point because, of course, noble Lords attend when they are expert or knowledgeable on a particular subject and do not come when this is not the case. In the case of the Intelligence and Security Committee, one assumes from its very careful appointments process that most members are people with a strong commitment and very considerable knowledge of the fields in which they operate.
Lord Henley
My Lords, I hope my noble friend heard in my opening remarks that I was being faintly flippant when talking about this House. I agree that this is a very important committee. I am very happy that attendance is well above its quorum number—that it is always fully quorate. However, I do not think it is necessary to restrict it in such a manner by bringing in an artificially high quorum, which would be completely unlike all other committees. I think that three out of nine is a perfectly effective number and I hope, therefore, that my noble friend will feel able to withdraw her amendment.
Baroness Williams of Crosby
I beg leave to withdraw the amendment in the knowledge that I shall certainly return to this issue on Report.
Lord Henley
My Lords, we have three amendments in this group, all of which are concerned with the ISC meeting in public and how that should operate. I appreciate the concerns behind the amendments but similarly I have a number of concerns about the idea of creating any formal power and, in the case of annual hearings, a duty to hold public hearings. I am sympathetic to the noises made by the noble Lord, Lord Campbell-Savours, when in relation to Amendment 14 he suggested it might put the fear of God into some of the agencies involved to see such an amendment down.
Perhaps I may go back through the history of these matters to set things in context. In The Governance of Britain Green Paper of 2007, a series of reform proposals were made aimed at bringing the ISC as far as possible in line with other Select Committees. One proposal was for some hearings of the ISC to be structured to allow unclassified evidence to be heard in open session. However, as Members of the Committee will know, those sessions did not happen with any frequency. As my noble friend Lord Lothian pointed out, the committee has the power to have open sessions if it so wishes.
Building on this, the Justice and Security Green Paper stated that while the ISC’s meetings would still as a rule have to take place in private, both the Government and the committee were committed to the concept of public evidence sessions where these could be held without compromising national security or the safety of individuals. The Bill does not need to include a specific provision to enable public evidence sessions. Both the existing ISC, created by the 1994 Act, and the ISC that is provided for in the Bill have the power to determine their own procedures. That is sufficient for these purposes. In this way, there is very little difference between the position in the Bill and that proposed by the noble Baroness, and for that matter by Amendment 17. The crucial difference from Amendment 14 is that we do not start with the default position that sessions must be in public unless certain conditions are met.
There are very significant practical issues that must be addressed before public evidence sessions can take place. As I am sure the Committee will appreciate, introducing public evidence sessions for a committee that will in the vast majority of its work be concerned with very sensitive and highly classified information will be very challenging. The Government are in discussion with the committee and remain committed to making this work in practice—for instance, on issues such as appropriate subject matter, timing and having appropriate safeguards against unauthorised disclosure of sensitive information. I have already argued that the work of the ISC must be done largely in private. As only a very small amount of the evidence that it hears, whether written or oral, is unclassified, the default position suggested in Amendment 14 that it should meet in public is neither appropriate nor practical.
On Amendment 15 there are a number of different models for what could be considered a public question time. In one model, members of the public could ask questions directly to members of the ISC on their oversight role. That format is sometimes used in local government. Naturally it is in everyone’s interests that there is an understanding among members of the public of the ISC and the valuable function that it performs. However, the Government have concerns that a question time of the nature suggested by Amendment 15 would pose significant risks and would be ultimately unworkable. Again we make it clear that the committee has access to extremely sensitive intelligence information, public disclosure of which could cause significant damage to national security. Therefore, the way it operates will inevitably be different from that of departmental Select Committees, and it must not necessarily be conducted in public. I hope that that explanation will satisfy my noble friend Lady Hamwee on her Amendments 14 and 15.
On Amendment 17, I appreciate that the noble Baroness, Lady Smith, was probing. The answers that I gave on what we want to do following the 2007 Green Paper and the more recent one indicate that where possible we would like openness in order to allow public confidence in the committee to be maintained and enhanced. However, it is not necessary to go down the route suggested by the noble Baroness in her amendment. As I made clear, it is available to the ISC to do that should it so wish. Of course, we will continue to have discussions with the committee about the most appropriate manner in which to deal with that. I hope that my noble friend will feel able to withdraw Amendment 14.
Baroness Smith of Basildon
My Lords, the issues that have been raised are the very ones that I listened to the noble Baroness to hear as she moved her amendment and to try to see what the aim was. Her amendment does not mention public or private, although in her original comments she spoke of public hearings. It was not until the noble Lord, Lord King of Bridgwater, intervened that she conceded that there could be private hearings, which have more value than a public hearing would. I am no wiser and very interested to hear what the Minister has to say. I assume that he will accept the principle. My favourite bedtime reading, the coalition agreement, includes a specific commitment to strengthen the powers of Select Committees to scrutinise major public appointments. I should have thought that this comes under the remit of a major public appointment. The noble Baroness might have done the House a service to tease out whether the Government intend to honour that part of the coalition agreement.
Lord Henley
The noble Baroness is right: there was that commitment. She also knows that pre-appointment hearings are a relatively new phenomenon. Since 2008, Select Committees have conducted pre-appointment hearings for a number of posts, and there is Cabinet Office guidance on the process and on who should be heard. The important thing to note about the list of pre-appointment posts is that the posts concern public bodies, such as the chair of Ofcom and the chair of the Social Security Advisory Committee. The most recent one that my department had an interest in was Her Majesty’s Inspectorate of Constabulary. There is no suggestion that the pre-appointment process has been used to appoint civil servants. Indeed, the noble Baroness is not suggesting that before appointment each Permanent Secretary should go before the appropriate Select Committee.
The heads of the intelligence and security agencies are Permanent Secretary-level civil servants.
Baroness Manningham-Buller
They are not civil servants; they are Crown servants.
Lord Henley
I stand corrected by the noble Baroness, but it makes little odds; Crown servants are in fact at Permanent Secretary-level, although I accept that rebuke.
The recruitment process is therefore expected to follow the process for the appointment of Crown servants of such seniority. I could go through the details of the Constitutional Reform and Governance Act, but I can give an assurance that they are exempt from that. They will necessarily follow the spirit of the civil servant recruitment principles, which we consider to be the best process. We do not consider it to be the appropriate mechanism for recruitment to public bodies, whether the process is conducted in public or in private. It might be appropriate for the other posts that I mentioned but not for the public bodies that we are talking about.
Lord King of Bridgwater
I apologise to the Minister for intervening, as he has been extremely co-operative with the Committee in every respect. It seems to me that, on the whole principle of this pre-appointment hearing—we left open the question about public or private hearings—it is an important asset for the person about to be appointed if he has a successful hearing before the committee. It reinforces his position at the start of his work if the principle is accepted elsewhere.
We then have the argument about Crown servants and their exact role, and we go through a range of bodies, including Ofcom. I do not even know what Ofcom’s position is—whether it is in government or outside it—and exactly what its relationship is. However, I think that the principle of holding hearings has merit, and—to use a phrase I have used before—I have a feeling that they will come.
Lord Henley
I am afraid that on this occasion I have to disagree with my noble friend. There it is quite a distinction between Her Majesty’s Inspectorate of Constabulary or the chair of the Social Security Advisory Service on the one hand and, for that matter, the Permanent Secretary of the Home Office or the Permanent Secretary of any other department on the other. We suggest that the heads of the intelligence and security agencies fit in more appropriately with that later group rather than with the former group.
Baroness Hamwee
My Lords, I am not clear whether the Minister is saying that they fit in with that group or that they are exempt under the legislation, which he mentioned. Either way, process moves forward. It is not so very long ago that we did not have the Nolan principles, but they are completely accepted now. I, too, think that this may come, although it may not come in the Justice and Security Act 2012. However, we are in Committee, and I beg leave to withdraw the amendment.
Lord Campbell-Savours
My Lords, I have great sympathy with the speech of the noble Lord, Lord Thomas of Gresford. It addresses a fundamental flaw in the Bill.
I shall speak to Amendments 22 and 26. Amendment 22 deals with sub-paragraph (3), which states:
“A Minister of the Crown may decide under sub-paragraph (1)(b) … that information should not be disclosed only if the Minister considers that”—
as the noble Lord, Lord Thomas of Gresford, said—
“(b) it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.
If I remember rightly, that is currently the position under the present ISC, notwithstanding the statement in the Bill. I have not always understood exactly what such circumstances are. I have often wondered what would be the circumstances in which Ministers would take that action. Perhaps the Minister will give an explanation today.
The noble Lord, Lord Thomas of Gresford, referred to decisions being taken on a whim. Now that that provision in paragraph 3(3) is be enshrined in the Bill and subsequently become law, we need something more substantial so that we know exactly what is intended by it.
I turn now to the part of the Bill that really worries me—the phrase,
“relevant Minister of the Crown”.
As the noble Lord, Lord Thomas of Gresford, said, we are not given an indication of who is to be involved. Are we talking about Parliamentary Under-Secretaries or Ministers of State? The noble Lord, Lord Henley, is, I understand, a Parliamentary Under-Secretary.
Lord Campbell-Savours
He is a Minister of State. Forgive me. However, the point is that for a long time he was a Parliamentary Under-Secretary and, in my view, if he had been in the House of Commons he would have been in the Cabinet. We are not merely talking about the quality of Ministers that we have here in the House of Lords; we are talking about some of the Ministers that we see at the Dispatch Box in the House of Commons. It would be an error of judgment to include in the Bill a provision which would give some of these Parliamentary Under-Secretaries in the House of Commons the power to block information being brought before the ISC. However, that is what I understand the Bill means to do. It means that any Minister, in any department, in any circumstances, could decide that information was not to be made available to the committee.
Why do I have concerns that go up even as far as Secretaries of State? I referred at Second Reading to a particular incident in the committee when the late Robin Cook—I am sorry that he is not here to answer me today—was, in my view, very obstructive before the Intelligence and Security Committee in that he did not want to have certain information brought before that committee. There was quite a discussion in the committee about the fact that he was resisting having that information made available. I quoted the example of the noble Lord, Lord Heseltine, for whom I have great regard. Imagine the mindset of the noble Lord, Lord Heseltine, in the early 1980s when he had it in for CND and all that, and giving him the responsibility or the power to decide, on his personal consideration, that this information, which the ISC wanted, should be denied to the Select Committee. I believe that it is wrong that Ministers should be in that position. Indeed, as I said at Second Reading, I would trust the heads of the agencies more than I trust Ministers.
For a start, many Ministers lack confidence in this area. As they would have very little experience of how the system works and what goes on inside the agencies, their experience of the agencies may be far less that that of even members of the committee, yet they are to be given the right to decide whether information is to be blocked. It might well be that a junior Minister, lacking confidence, would be unwilling to take a decision to provide information, or allow information to be provided, for career considerations. He or she might worry that by providing that information and taking that risk, because they had not had that experience, they might be damaging their own career prospects. They may well simply be unable to quantify the risk on the basis of their very limited experience and, furthermore, some Ministers might simply make a straight political judgment about whether information should be made available to the committee. That is the very area about which I think considerations should not be made.
I have concerns and I do not believe that Ministers should be involved in this process at all. We go back to my very controversial model, which I put to the House at Second Reading—I put it in the same way that I put the argument for Select Committee status in 1998 and 1999. At that time it was simply ruled out of the question, so I recognise that it will probably be regarded as out of the question today, but I put forward the model that I put forward at Second Reading. First, the ISC should have Select Committee status. Secondly, the chair should be decided by the approval of the Prime Minister, not election by the committee. Thirdly, the chairman should be the critical person in this process.
The chairman of the Intelligence and Security Committee should have unrestricted access to all operational material within the agency on operations that have taken place. The chairman should be in a privileged position in the committee and it should be for him to decide whether information should be made available to the committee. That is why I do not want election of the chair. I want the Prime Minister to pick the chair, because I believe that the Prime Minister will know exactly who is capable of handling the material and deciding on the circumstances in which the membership of the committee is given access to the information. I would have—I have to be very careful how I phrase this—trusted the chairman, the noble Lord, Lord King of Bridgewater, to take that decision on my behalf, as a member of that committee, long before I would have trusted Labour Ministers, who might not have had the experience that he had gained as chairman of the committee.
It is a very serious area and what we are doing now, by going down this route and letting the politicians decide what information gets through, will create problems for the future which we may well regret. In other words, my answer is very simple: keep the Ministers out of it. Let the agencies influence the chairman of the committee. Let them go to the chairman and say, “Chairman, we do not believe that this information should be made available”. If Ministers want to get involved they can go to the chairman and say, “Chairman, we do not believe that this information should be made available”; but give the chairman the final decision. The committee, in those circumstances, would have far more confidence in the arrangement for scrutiny of the services, et al, than is presently the case, or, indeed, will be the case under the provisions in the Bill.
Lord Henley
My Lords, I believe that the noble Lord, Lord Lester, is waiting for some later amendments beyond Part 1, so I am sure that he will be here for the amendments in the name of the noble Lord, Lord Campbell-Savours. I can advise the noble Lord, Lord Lester, that Amendment 37 is the one that he should stay for.
We have eight amendments in this group, which all deal with the power of Ministers to withhold information from the ISC. It might be helpful if I start by going back to where we are now. Currently, the agency heads can make a decision not to disclose information to the ISC on the basis that it is sensitive information which they consider it would be unsafe to disclose to the ISC. Information which agency heads consider should be withheld on this basis must, none the less, be disclosed if the Secretary of State considers disclosure to be desirable in the public interest. It is a matter for the agency heads, but the Secretary of State can order the disclosure if she thinks it is in the public interest.
The Justice and Security Bill removes the ability not to disclose from the agency heads; this will now rest solely with the appropriate Secretary of State according to specific conditions. Where the information in question is held by a government department, as opposed to the agencies, a Minister of the Crown—rather than a Secretary of State—will be able to withhold information on the same specific grounds applied to agency material. In other words, the Bill makes the decision on withholding information from the ISC one exclusively for democratically accountable representatives.
In passing, I shall deal with the question about Ministers of the Crown, rather than Secretaries of State, being referred to in paragraph 3. This is purely to deal with the question of the Cabinet Office, which noble Lords will be aware does not have a Secretary of State. Therefore, it would be down to one of two Ministers in the Cabinet Office to make that decision. If noble Lords look at paragraph 3(5), they will see that the,
“‘relevant Minister of the Crown’”,
will, in due course, be,
“identified, for the purposes of requests of that description, in a memorandum of understanding under section 2”.
We discussed the memorandum of understanding at Second Reading and noble Lords will be aware that we hope that that, or a draft of it, will be available at a later stage.
I now turn to Amendment 18. It is appropriate to go through the amendments in slightly more detail. This will have the effect that if any of the three heads of the intelligence and security agencies are asked by the ISC to disclose any information then, as to the whole or any part of the information, that person may arrange for it to be made available to a security-cleared adviser to the ISC who may then provide advice to the ISC on the information, including written material in redacted form. It is worth stressing the importance of the provisions in the Bill governing when information may be withheld from the ISC. These powers will be used sparingly only in very exceptional circumstances. It is important that we retain those safeguards. The ISC routinely sees very sensitive information, including that at the highest levels of classification. It would not be able to fulfil its oversight role if it did not. It is not clear from the amendment to whom the noble Baroness intends the term “advisers to the ISC” to apply. Does she have in mind the current staffing of the ISC or perhaps a completely new role? The type of material that a Secretary of State may decide cannot be shared with the ISC—a good example would be the names of agents—is likely to be of such a sensitive nature that, if the Secretary of State has made a judgment that it cannot be shared with the ISC, then it would not be possible to share it with “advisers to the ISC” either.
We should also think about the practical difficulties posed by an amendment of this nature. That is Amendment 18. The amendment is likely to lead to circumstances where an adviser to the ISC has access to information which he or she cannot share with the ISC. This could place the adviser concerned in an impossible position of conflict of interest. When next called on to advise the ISC, that person may know information relevant to the advice that he or she is being asked to give, which, because they cannot share it with the ISC, they have to try to put out of their mind. If harm to national security can be avoided by providing information requested in a redacted form, then the existing provisions of the Bill oblige the agencies to provide it in that form; that is the effect of including the words,
“or any part of the information”,
in paragraph 3(1) of Schedule 1. I hope that describing the way in which the ISC and its secretariat presently operate assists the Committee and explains why the Government resist Amendment 18. In short, the amendment seems to contemplate an intermediate level between disclosure to the ISC and non-disclosure, which I hope I have shown, in practice, does not usefully exist.
The effect of Amendments 19 and 20 would be that the Government would never be able to withhold information from the ISC, whether it is held by the agencies or a government department. As I have already said, the powers to withhold information in the Intelligence Services Act 1994 have been used very rarely in the past, and we would expect the equivalent powers in the Bill also to be used sparingly, and only in exceptional circumstances. However it is important that those safeguards are retained. In particular, although the ISC will clearly be a body that sees a great deal of very sensitive material, there will be circumstances in which it is not appropriate for even the ISC to see that information on the grounds of national security. For example, there may sometimes be information that is so sensitive that national security demands that it be shared only with a small number of people within the agencies, let alone with the ISC. This is why the sensitive information ground for withholding information is expressed in the Bill in the way it is. It is not enough that the information is sensitive; it must be in the interests of national security for that sensitive information not to be disclosed to the ISC.
Baroness Hamwee
My Lords, the Minister, who has been the subject of the many compliments flowing from the noble Lord, Lord Campbell-Savours, today, has given us quite a lot of material to think about. He has certainly given me some ideas about better drafting for my Amendment 18. Given the number of noble Lords who are here not to discuss this issue, I will do no more than end with a question. I am not sure that I expect the Minister to respond to it immediately. Under this paragraph, would a decision by the relevant Minister of the Crown—leaving aside the rank or position of that Minister—be judicially reviewable? Clearly it would have to be shown to be unreasonable and how one does that I do not know. Is this an administrative decision that would fall within the ambit of judicial review? The Minister is going to dare to respond.
Lord Henley
My Lords, I am not going to dare to respond. I am saying that there are a lot of very noble and learned Lords in this House and a lot of Members who are not necessarily noble and learned but know a great deal of law. I do not know the answer to that. I had better write to the noble Baroness. I am sure she will have a response before Report.
Baroness Hamwee
My Lords, I am not a noble and learned Member either, which is perhaps why I can dare to ask the stupid questions. I beg leave to withdraw Amendment 18.
Justice and Security Bill [HL]
Lord Henley Excerpts(11 years, 10 months ago)
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Baroness Smith of Basildon
My Lords, I think that there is unanimity around the House about the questions that need to be addressed in connection with Amendment 24. Our concern is that the Government may have lowered the threshold for proving that information should be withheld. Under the Bill, the Secretary of State will decide whether information is too sensitive to disclose or is of such a nature that it would not be proper to disclose it to a departmental Select Committee. However, where the Intelligence Services Act 1994 prevents the Secretary of State vetoing the disclosure of information on grounds of national security alone, now national security is just one of the conditions under which the Secretary of State may use their veto. I support the amendment of the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler of Brockwell, because I share their curiosity about what a consideration that it is not proper to disclose information to a departmental Select Committee would mean in practice, and why the provision of it not being proper to do so is seen as a necessary alternative to non-disclosure on the grounds that the information is sensitive and affects national security. I would be grateful if the Minister would look at this again.
Amendment 25 in the name of the noble Baroness, Lady Hamwee, disallows the use of the ministerial veto on disclosure of information when it refers to conduct that would amount to a breach of international law. I am curious about how that would work in practice. Who would determine whether the conduct to which the information relates could amount to a breach of international law? I find it difficult to understand how a Secretary of State would make that judgment on the actions of her own Government. I understand the principle behind it but I am not clear how it would work in practice. If the Minister would explain what is meant by “proper”, that would be very helpful.
The Minister of State, Home Office (Lord Henley)
My Lords, the noble Lord, Lord Campbell-Savours, suggested that this amendment was similar to the previous one. He is right, but we have been allowed to have a one-hour break to have something to eat between that previous amendment and this one. It is similar to that amendment. He also said that he was somewhat confused by it. He is not the simple Scottish lawyer that my noble friend Lord Lothian is, but my noble friend also got it right when he said that it was possible that the draftsman had got it wrong. If that is the case, obviously I will ask the appropriate officials to look at it again to ensure that we have got the drafting right.
Before I come to the substantive part of the amendment, may I also make it clear to my noble friend Lord Lester that we will try to address his points about general aspects of dealing with Select Committees between now and Report? I cannot give any guarantee of that but I certainly hope to do so.
There are a number of very long-standing conventions that have developed in Parliament in the relationship between Select Committees and successive Governments. Those conventions recognise that there are categories of information that may, in certain circumstances, be withheld from Select Committees on grounds of public policy.
The noble Lord, Lord Butler, asked for particular examples. All I can say at this stage is that examples of the type of information are given in the Cabinet Office guide Departmental Evidence and Response to Select Committees. Some noble Lords may know this guide by its other name, the Osmotherly Rules. I do not know those intimately but I look at the smile on the face of the noble Lord and I suspect that he was probably the one who drafted them some years ago. He shakes his head. But he knows them well. The categories of information set out in that guide include information about matters which are sub judice, information which could only be supplied after carrying out substantial research or at excessive cost, and papers of a previous Administration.
The sub-paragraph of the Bill that the noble Lords propose be left out and which my noble friend asks that we have the draftsmen look at again is a necessary part of the Bill. It provides a basis for withholding these categories of information from the ISC. If the relationship between the ISC and government is to reflect the relationship between a Select Committee and the Government, then it seems to the Government to be essential to have this significant aspect of the relationship.
The provision gives the Minister of the Crown discretion only to withhold material. In exercising that discretion the Minister would, of course, have regard to the provisions that the ISC has for keeping material confidential. For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. They have only been used sparingly in the past and we expect this to continue. However, it is important that those safeguards are retained.
My noble friend Lord Thomas also asked for the definition of “proper” in paragraph 3(3)(b). That is something I would ask that we look at again in relation to the concerns over the drafting of the Bill. With that explanation, I hope the noble Lord will feel it is not necessary to move his Amendment 24.
Amendment 25 would introduce a limitation on, or exception to, the powers of the Secretary of State or a Minister of the Crown to withhold information from the ISC, under paragraphs 3(1)(b) or 3(2)(b) of Schedule 1. The exception would apply wherever the information requested by the ISC relates to conduct which may amount to a breach of UK or international law.
Various noble Lords spoke very strongly about this at Second Reading, and I know there are concerns to ensure that the new ISC can operate as effectively as possible in future. Other amendments would obviously have the effect of removing entirely the powers of the Secretary of State or a Minister of the Crown—we discussed that in an earlier amendment—to withhold information from the ISC. This amendment is an alternative, therefore, to those amendments.
Lord Lester of Herne Hill
I understand all of that in the context of sub-paragraph (3)(a), which is carefully drafted and limited. However, I do not understand how it applies to the sub-paragraph that has been questioned by the noble Lord, Lord Butler of Brockwell, because that does not deal with sensitive information as defined in sub-paragraph (4) but simply states that,
“it is information of such a nature that, if the Minister were requested to produce it before a … Committee … the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.
Unless I am completely wrong, that seems entirely subjective. It certainly would not be subject to judicial review. It is a Humpty Dumpty: when I use a word it means whatever I say it means, nothing more. To use an example from Ring Lardner: “‘Shut up’, he explained”. It is standardless and would cover anything the Minister thought about propriety. Surely that cannot be a proportionate way of having a safeguard.
Lord Henley
I do not think that the noble Lord, dare I say it, listened to what I was saying earlier about this amendment. It may be that we need to look at the drafting. I have given a commitment to the Committee that we will deal with that in due course and look to see whether we have got it right. As I explained—I have to go back into my speech—I think that that is probably the right way to proceed. If the noble Lord is accusing me of taking a Humpty-Dumpty approach, well, Humpty Dumpty was not always that wrong with some of these things; certainty in terms of when one is speaking at the Dispatch Box and defining what words mean. Anyway, if I say it means that, that is what it does mean—that, I think, is what the Humpty-Dumpty approach is.
I do not think that I can add much more to my response to the noble Lord and other noble Lords. I appreciate the intention behind Amendment 25. I appreciate what my noble friend is doing but I hope that the noble Lord will feel able to withdraw his amendment at this stage.
Lord Thomas of Gresford
As the noble Lord, Lord Henley, was speaking I wondered whether the word, “proper” is supposed to mean “contrary to convention”. It would be impossible to have a convention across all departments where there are Select Committees so it was conventional in one department to release this information but it might be conventional in another to release more or less. It would be almost impossible to get a standard of disclosure of information across the board which it is proper to disclose. I am very grateful for what the Minister has said on that issue.
Lord Henley
I can be very brief. I can offer an assurance to my noble friend that “information” includes documents and other material whether held in documentary, electronic or other form. I hope that with that reassurance my noble friend will accept that the term “information” in the Bill includes all the matters that she lists.
Lord King of Bridgwater
My Lords, that was a rather savage attack on the Government, which was not entirely justified. I thought there was a general recognition in the House that what the Government are doing in this clause is recognising the situation that has already developed. The ISC started with a fairly limited remit under the Intelligence Services Act 1994. Progressively, through such things as the DIS in the Ministry of Defence, JIC and access to JIC assessments, bringing in the Comptroller and Auditor-General to assess the financial operations of the agencies—a whole lot of different ways—the committee expanded its role and activities in a way that was entirely sensible, in which people collaborated, and which was accepted by the agencies and the Government.
I do not know whether there is something frightfully subtle in the amendment that the Opposition have tabled and how far it is significantly different from what the Government have already put in the Bill. The Government are recognising, and it seems quite fair that it is set out in a memorandum of understanding, just what the area and remit of the committee will be. Certainly, in the end—I think it was the experience of the noble Lord, Lord Campbell-Savours, as well——whatever we sought to look into and in the range over which we sought to expand our activities, I do not recall any area in which we were significantly frustrated.
Lord Henley
My Lords, this is the first of a number of amendments that deal with a memorandum of understanding. I start by apologising to the noble Lord, Lord Rosser, who makes attacks on the Home Office for being somewhat remiss in the slowness with which it produces things, particularly in relation to the framework document. As the noble Lord is aware, I have promised that we will have a draft or an outline of that framework document before we get to Report stage of the Crime and Courts Bill. Since that is unlikely to take place in this House before the end of October, we have a certain amount of time.
On the memorandum of understanding, as set out in the Bill, I am grateful for the support of my noble friend Lord King on this. It is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the memorandum of understanding can make provision at a level of detail that is not appropriate for primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may well be engaged in other activities besides, which would not properly fall within the remit of the ISC.
Clearly, things change over time. Departments reorganise. The functions done by one department one year may be done by another the following year. The noble Lord will remember when his party was in Government, how frequently they changed the names and the functions of departments. I have completely lost track of the number of changes there were to departments. One of the things we did very firmly when we came back into office was not to change the names or functions of departments, except in the most marginal capacity.
I believe the intelligence world is no different to any other part of government. For example, as with the recent Levene report, we could find that future reorganisations of defence may change organisational boundaries that affect the MoD’s intelligence activities. A memorandum of understanding is a flexible document. It can be changed much more easily than primary legislation. It will enable the intention of the Government that the ISC should have oversight of substantively all of central government’s intelligence and security activities to be realised now and, more importantly, in the future should they change. The amendment seeks to limit that. For that reason I cannot offer any support to the amendment. I hope the noble Lord will feel able to withdraw it.
Lord Rosser
I thank the Minister for the reply. Of course, my amendment does not refer to any government department by name because it lifts the wording from paragraph 4 of Schedule 1, which refers to,
“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
From what the noble Lord has said, I am still not quite sure how extensive the areas will be that might be included in the memorandum of understanding that would not be included in the definition that I have given in this amendment, when that is also allied to Clause 2(1). So I am not sure I have had a very direct answer to that question.
Nor has the Minister addressed the fact that putting it in a memorandum of understanding means that it will not be subject to prior discussion as part of this Bill. It is a document that the ISC has to agree with the Prime Minister and, as I understand it, it will not have to be approved subsequently by Parliament. The more reliance that is put on that memorandum of understanding and the more information that is put in it, the less opportunity this House has to discuss the issue.
I would have thought that since the wording I used has been lifted from another part of his own Bill, the Minister might at least have accepted that that was worth considering because it would, at the very least, reduce the amount that had to be covered in the memorandum of understanding, and thus reduce the amount that could not be debated as part of this Bill and which would not require the approval of Parliament. There has been no offer from the Minister even to look at this issue from that aspect. It is just a straight dismissal of the terms of this amendment. I express my disappointment at the Minister’s reply—he could have been much more sympathetic and helpful—but I note his reply and beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, this certainly seems a very sensible and practical group of amendments. Amendment 30 would remove the Prime Minister’s involvement in the assessment of whether a matter that the ISC wished to consider satisfied the criteria of being of significant national interest and not part of an ongoing operation. I fully support the extension of the ISC’s statutory remit to include particular operational matters; it is a function that the committee, in practice, already performs. We also understand the necessity of constraining this remit. I think that the noble Lord, Lord Campbell-Savours, in speaking to his amendment, made that point, too. It is necessary to ensure that the committee’s work is focused on areas of significant national interest and does not jeopardise ongoing operations. The determination of whether an operation is of significant national interest and whether it is not currently ongoing are objective judgments. One is a decision about what is of interest to the public, which the committee is surely best placed to judge, and the other is a statement of fact, which would simply involve consultation with the relevant government agencies. It is not a process of negotiation with the Prime Minister.
It is unclear to me why this assessment cannot be left to the discretion of the committee without needing the involvement of the Prime Minister. If the key point of the reforms in this legislation is to establish a clearer independence of the committee from the Prime Minister and a closer connection with Parliament, then requiring the ISC to seek the permission and the agreement of the Prime Minister before determining whether a specific operational matter lies in its remit sends a completely wrong signal about the independence of the ISC.
We also give full support to Amendment 32, which would provide important flexibility to the committee’s powers to view specific operational matters. We have consistently argued that the ISC should be given the power to review specific operational matters, such as control orders, while recognising that limitations may apply with respect to ongoing operations where the committee’s work may jeopardise the integrity of those operations. An absolute ban on considering any ongoing operational matters seems to us to be unnecessarily heavy-handed. It is easy to imagine particular cases of significant public interest, perhaps where the majority of the operation has been concluded but there is still some ongoing activity that cannot be reviewed by the committee, even if the Government agree that there is no risk. Amendment 32 would be a highly sensible alternative to the blanket ban by allowing the committee, with the agreement of the Secretary of State, to review certain ongoing operations. I agree with the noble Lord, Lord King of Bridgwater, that there seems to be a drafting deficiency. I hope that the Minister can give a more positive response to this group of amendments than he was able to for the last one.
Lord Henley
My Lords, first, if there are any drafting concerns about this Bill, as I hope I made clear at an earlier stage, we will be more than happy to look at them. This is what this House does very well and the debates that we have been having this afternoon are indicative of that. We will take these points on board and the similar drafting points made by my noble friend Lord Lothian.
Secondly, I understand that the noble and learned Lord, Lord Lloyd, tried to table an amendment earlier today but I think that he missed the boat. I suppose that he could still have put down a manuscript amendment—fortunately, he decided not to—but he will come back to that in greater detail on Report. Certainly we will listen to his remarks in due course about the Security Commission, which he said that he chaired and which was later chaired by the noble and learned Baroness, Lady Butler-Sloss.
I hope that the Committee will bear with me if I explain in some detail just what we are trying to do and what we think is wrong with the amendments. I hope that noble Lords will also accept that, as I just said, we are more than happy to look at matters relating to drafting again, because we want to get this right.
The Bill extends the ISC’s statutory remit and makes clear its ability to oversee the operational work of the security and intelligence agencies. This is an important and significant change and will be key to ensuring that the ISC continues to perform an effective oversight role. With this formalisation of its role in oversight of operational matters, we would expect the new ISC to provide such oversight on a more regular basis.
In the Bill, the ISC may consider any particular operational matter, but 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 ISC’s oversight in this area must be retrospective and should not involve, for instance, prior knowledge or approval of agency activity. Consideration of the matter must also be consistent with any principles set out in, or other provision made by, a memorandum of understanding. We will discuss that again in due course.
Of course, the ISC is not the only body that oversees the operational activity of the agencies. The Prime Minister has overall responsibility within government for intelligence and security matters and for the agencies. Day-to-day ministerial responsibility for the Security Service lies with the Home Secretary and, for the Secret Intelligence Service and GCHQ, with the Foreign Secretary. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service; similarly, the Foreign Secretary has his accountability.
The Intelligence Services Commissioner provides oversight of the use of a number of key investigatory techniques employed by the agencies and by members of Her Majesty’s forces and Ministry of Defence personnel outside Northern Ireland. The Interception of Communications Commissioner’s central function is to keep under review the issue of warrants for the interception of communications.
On Amendments 30, 31 and 32, 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. The noble Lord, Lord Butler, is a current member of the Intelligence and Security Committee and, as such, speaks from a position of great knowledge. However, I hope that he would agree that the judgment as to whether an operational matter meets the criteria is one that should be for both the ISC and the Government and not just for one or the other. It is very important that we get this judgment right.
Lord Butler of Brockwell
It may be worth making the point that the amendment does not leave it solely to the judgment of the ISC; it just says, as a matter of fact, that the operation has concluded or is of national significance. So it would not just be the ISC that decided that—it would be the fact. If I may say so, the Minister misunderstands the purpose of the amendment.
Lord Henley
I apologise to that extent if I have misunderstood what the noble Lord was getting at in his amendment and I hope that I did not mislead the House in so doing. The Government’s intention, on that memorandum of understanding, which has to be agreed by the Government and the ISC, is that it will be the appropriate vehicle for agreeing the process to ensure that the information is provided to the committee in an appropriately prompt manner.
The amendment in the name of the noble Lord, Lord Campbell-Savours, would 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. The extension in the Bill of the ISC’s statutory remit into the agencies’ operational work is a significant deepening of the committee’s powers. While the ISC has in the past conducted inquiries into operational matters with the agreement of the Prime Minister, such as its inquiries into the London bombings of 7 July 2005 and into rendition, the provisions in the Bill provide a formal remit for the committee in this area. We anticipate that the new ISC will provide such oversight on a more regular basis.
We have worked with the current ISC to develop the new arrangements, and the committee agrees with the Government that its oversight of operations should be retrospective in nature. In other words, the ISC should not oversee operations that are ongoing. There are a number of very good reasons for this.
Lord King of Bridgwater
This is my concern about the drafting: what is an ongoing operation? Is it 7/7 and the follow-up; or is it the jihadist threat that exists and which we think possibly continues to exist at this time, with the Olympics coming up and the heightened security alert that will continue afterwards? What is an “ongoing” security operation?
Lord Henley
My Lords, I am not sure that the word “ongoing” has actually been tested in the courts. It is in the Bill, which is why I make this point. We have no judicial interpretation of “ongoing”, but I hope the courts would understand and interpret it as the words appear in the Bill.
Baroness Manningham-Buller
I think the problem is the word “operation”. Certainly in the security and intelligence world, an operation is something finite, with a code name, that will come to an end. I think that is what the legislation is trying to get at. It certainly would not be a merged operation such as a jihadist threat or Iraq, which would not be seen in those terms. That may be the difficulty. If we can make that clear in defining it, that might be helpful to the Minister.
Lord Henley
I am grateful to the noble Baroness for her intervention. I am also grateful to my noble friend Lady Hamwee for her suggestion that “current” might be a better word than “ongoing”. “Ongoing” is not a word that I would necessarily have wanted to use and is not one that I have come across much before in legislation. “Current” might be a better term and might be one of the reasons why we need to look at the drafting of these matters, to make sure that we have got it absolutely right. For that reason, all I can say is that we will look again—the noble Lord, Lord Campbell-Savours, smiles—at that word “ongoing” and make sure that we have got it right. Again, as a layman and not a simple Scottish lawyer, it seems to me that “ongoing” is something that we can all understand relatively simply, so I hope we can get this right. That is the point of the processes that we are going through in this House. I hope that we can get it right in due course.
Amendment 32 is the third amendment in this group and the second in the name of the noble Lord, Lord Butler, and my noble friend Lord Lothian, and 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 consider the matter. Given that the requirement is that the Government and the ISC both need to agree, it is difficult to see circumstances in which the noble Lords’ amendment would ever need to be used. For example, we cannot presently foresee circumstances in which it would be appropriate to call on the ISC to put its resources towards examination of operational matters that were not of significant national interest.
Nor would it be appropriate for the ISC to have a role in approving future actions or decisions relating to the agencies, or to examine ongoing—again I use that word, but perhaps I ought to say current—operations. Such a role could cut across lines of ministerial accountability and could even have the potential to prejudice those operations. The amendment is therefore unnecessary.
I hope that that deals with most of the points. I am sure that it does not, but I have given a commitment that we will look again at the drafting of this part of Clause 2. I hope that the noble Lord will feel able to withdraw the amendment.
Lord Butler of Brockwell
My Lords, I am grateful to the Minister and to other noble Lords who have taken part in this debate. It has brought to light matters that need to be clarified before Report. I emphasise again—and I apologise for rudely interrupting the Minister—that there is no difference between the ISC and the Government on what the committee’s purview should be. The ISC accepts that its purview should normally be retrospective and that it should be confined to matters of significant national interest. What is new about the way the clause is drafted is the interpolation of the Prime Minister in deciding that that is the case. That is unnecessary, and as my colleague, the noble Marquess, Lord Lothian, said, it would produce the most tremendous logjam and would be a backward step from where we are now. That is the only difference, but I hope that that issue can be looked at again.
If I may say so, the discussion on the amendment of the noble Lord, Lord Campbell-Savours, brings out the ambiguity of the word “operations”. As the noble Baroness, Lady Manningham-Buller, said, it is perhaps because it is a term of art in intelligence speak and means something specific rather than an ongoing exercise. If I may do the draftsman’s work and join the noble Baroness, Lady Hamwee, it may be that “specific operation” might be more helpful than “current” or “ongoing”. However, that is a matter for consideration.
On Amendment 32, I am fortified by a whispered conversation with the noble Baroness, Lady Manningham- Buller. One can imagine a situation in which it might be useful to Parliament and the nation, and to the agencies themselves, if the ISC is asked to look at an ongoing, even specific, operation. Let us imagine that something is going on that has got into the media, is creating great concern, there are great sensitivities to it, but it is urgent that someone should look at the matter and provide a report to Parliament. That is the sort of circumstance in which my proposal might be helpful. It is discretionary and the decision would be with the approval of the Minister, but it seems a pity not to allow for that sort of situation by making provision for it in the Bill.
Those are the considerations that I would urge on the Minister and the Government. With the assurance that he will look at them before Report, I am content to withdraw the amendment and not move Amendment 32. I beg leave to withdraw the amendment.
Baroness Hamwee
No, I said a note from the Government responding to points made by noble Lords at Second Reading.
Lord Henley
Perhaps I may assist the noble Lord. It was a note sent out by myself and my noble and learned friend Lord Wallace of Tankerness, which I hope went to all Peers who spoke at Second Reading. If the noble Lord has not received his, he should have done and I can only blame the post.
Lord Rosser
My Lords, perhaps I may make one brief comment. I have already expressed our views about the memorandum of understanding and I think that in return I was told by the noble Lord, Lord King of Bridgwater, that I was being savage.
I just wish to pursue the point that the noble Baroness, Lady Hamwee, made about other references in Clause 2 to the kind of content that will be included in the memorandum of understanding, which we will not get an opportunity to debate and which does not have to be approved by Parliament. Clause 2(3) says:
“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but 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, and … the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
One has to bear in mind that this is not a document that we will be able to debate and discuss and it will not need to be approved by Parliament unless the Minister is going to move on this amendment. What are these principles that will be set out in the memorandum of understanding which we are not going to be told about when discussing the Bill and which we are not going to be allowed to discuss?
Lord Henley
My Lords, first, I apologise to the noble Baroness, Lady Hamwee—who is great on drafting. She has picked out another word—envisaged—which she has not come across in legislation before. We will add that to “ongoing”. I suspect that, like her, I am probably an old fogey on these matters. These matters are new to drafting but develop in the way that they do. We will consult the draftsman on whether he is happy with “envisaged” or whether some other word could do it.
It would probably be helpful if I first explain the purpose of the memorandum. We believe that it will be an important document in the relationship between the ISC and the Government. It will define the precise extent of the ISC’s oversight of parts of the intelligence community other than the agencies. It will set principles or other criteria that must be met before the ISC can consider particular operational matters. It will describe the arrangements by which the agencies and other intelligence bodies will supply information to the ISC. We expect that it will also cover matters such as: the factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing, current—or whatever word we particularly wish to use—and/or of significant national interest; a description of the arrangements by which the ISC will request and hold information, including the circumstances in which the ISC will be able to access primary source materials; a description of the role of investigative staff in the ISC’s work; and a description of the process for producing an ISC report. That is what we intend that it should cover. There will no doubt be other matters that will also need to be covered.
The memorandum of understanding in the Bill must be agreed between the Prime Minister and the ISC and it can be altered or replaced at any time by agreement. It is intended that the first memorandum of understanding will be agreed immediately on the coming into force of the relevant provisions. As I said, however, we hope that we can give some idea of what it is going to look like by the time we reach Report.
As is usual for a memorandum of understanding—this is not an unusual procedure—there is no parliamentary approval procedure. This was looked at by the Delegated Powers and Regulatory Reform Committee and it was perfectly happy with this. While the memorandum of understanding itself will be an unclassified document which will be published and laid before Parliament, its precise terms are very likely to be shaped by matters which are sensitive in terms of national security and which therefore cannot be made public. In these circumstances, it is particularly appropriate that the memorandum of understanding can be concluded without the need for parliamentary approval.
Of course the terms of the memorandum of understanding must be agreed with the ISC. The Bill makes that clear—it is agreed between the Government and the ISC. The ISC, we must always remind ourselves, is a committee composed of parliamentarians—nine from both Houses. It could be eight members from this House and one from another, but it might be some other arrangement, as it is at the moment—seven from another place and two from this House. As a result of the changes that the Bill will bring about the committee will be appointed by and accountable to Parliament. In some ways, requiring these parliamentarians to seek the approval of the rest of Parliament is a restriction on the independence of the body. I think that it would be unusual for Parliament to have such control over the detailed way in which what amounts to a Select Committee—as the noble Lord, Lord Campbell-Savours, is looking for—has decided to conduct its business.
We have not yet published the memorandum for the simple reason that the memorandum of understanding does not exist. We are starting the process of agreeing this document with the ISC and will do so in parallel with the Bill’s passage through Parliament.
Lord King of Bridgwater
My Lords, I am a little confused about the memorandum of understanding. We seem to have slipped into an issue that arises in the second part of Clause 2: operational matters. The memorandum also refers to overseeing other activities of Her Majesty’s Government in relation to intelligence and security matters. I understand that that is a reference to the Ministry of Defence, to the CDI—who used to appear before the Intelligence and Security Committee—to the Home Office and to other people who gladly came and gave evidence. Presumably that is part of the memorandum of understanding. There is nothing controversial about this; it merely legitimises and puts into statute a situation that already exists.
If I understand correctly, the Minister is now saying that the memorandum of understanding will not appear before the end of the parliamentary process, and that then it will not be subject to any further parliamentary approval. While I entirely understand that necessarily secure issues in the memorandum may have to be dealt with separately, much of what is in the legislation and the memorandum of understanding are the rules under which the ISC will operate and the access that it will have. The Minister is very nobly taking on the first cut of the Bill, if I may put it like that. The memorandum of understanding will have to be looked at again. If it covers the first part of what I am talking about, certainly it should be available to Parliament. Either it should be under consideration while we debate the Bill or it should come up at a later stage, subject to parliamentary approval if it is subsequent to the passage of the legislation.
Lord Henley
My Lords, again I do not think that my noble friend followed what I said. We will not agree the final memorandum until after the Bill has completed. However, I make it clear that we want to produce a draft of it at an earlier stage as we complete our discussions with the ISC. Once we have an agreed draft, it is our intention to publish it to help inform debate. I hope that this will happen before Report. The Bill is only just starting in this House. It has to go through another place as well. As discussions on this will be ongoing—I must not use the word “ongoing”—as the Bill is considered by Parliament, it would not be appropriate to share the first draft before at least it has been agreed by both parties.
My other point is what I said at the beginning of my remarks: the memorandum of understanding, having been agreed by the Prime Minister and the ISC, can be altered and replaced by agreement at any time. Since it is a working document that can move on and be altered and agreed by the two parties, it would not be appropriate to constantly put it back to both Houses of Parliament for debate and agreement. That is not the position with other memorandums of understanding. Normally there is no parliamentary approval process. That is why I mentioned that this had been to the Lords Delegated Powers Scrutiny Committee, which, as far as I know, is perfectly happy with the process.
Lord Campbell-Savours
I will not delay the Committee. I am grateful to the noble Lord, Lord King, who clearly understands exactly what is being said—namely, that Parliament will be denied the right to approve the memorandum of understanding. I am sorry that I did not see a copy of the letter that the noble Baroness, Lady Hamwee, was fortunate to receive. It may have truncated my comments during debate on a number of amendments this evening. However, I suspect that we will have rich pickings in the memorandum and that we will come back to it on Report. I beg leave to withdraw the amendment.
Passports
Lord Henley Excerpts(11 years, 10 months ago)
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Lord Roberts of Llandudno
To ask Her Majesty’s Government what are their intentions regarding the future of passport personal interview offices.
The Minister of State, Home Office (Lord Henley)
My Lords, the interview forms part of the identity authentication process for first-time adult passport applicants and provides a deterrent against fraud. There are no current plans to alter the existing network of passport personal interview offices.
Lord Roberts of Llandudno
I thank the Minister for his response. Does he agree that, when we have had 1.5 million interviews in the past five or six years and only 12 rejections, there is something wrong with this legislation? Does he also agree that it might be an opportunity for those involved with personal passport interviews and the UK Border Agency to talk together, and that some of the personnel and resources in the personal passport interview process could be deployed to strengthen the work of the UK Border Agency?
Lord Henley
My Lords, I cannot confirm the precise figure that the noble Lord cites, but I can confirm that there are something of the order of a quarter of a million interviews a year. The noble Lord is right to say that very few are declined, but it is interesting to find that possibly about 1,000 people a year decide not to come to an interview when asked to do so. That might imply that their application was not quite as straightforward as it might have been. We think that these interviews are an important part of the authentication process, as did the previous Government, who brought this process in in 2006. As I said, we have no plans to change matters.
Baroness Royall of Blaisdon
My Lords, I am sure that all noble Lords will have read in the press over the weekend speculation about the Prime Minister’s views on student visas. Can the Minister give us any insight into how thinking is developing in this area?
Lord Henley
My Lords, I fail to see what that has to do with the Question on the Order Paper, which, as the noble Baroness the Leader of the Opposition will know, is about passport personal interview offices. I recommend that she does not believe everything that she reads in the press.
Lord Storey
The Minister will be aware that when you apply for a passport you have to have it countersigned by “a professional”. In my 30 years as a head, I have probably done 100 of these. No one has ever checked whether I am the person I am supposed to be. Can the Minister tell us how many people who countersign those passports are checked up on?
Lord Henley
I cannot give my noble friend a precise answer, but I will certainly make sure that the appropriate checks are made on him before he signs any future applications to ensure that he is the noble Lord he purports to be.
Lord Roberts of Llandudno
My Lords, I return to the Question. What has been the cost of these 1.5 million interviews? Is it true that it has been in the nature of a third of £1 billion? Is it not time that we looked at this situation?
Lord Henley
My Lords, there is a cost. That is why we made changes to the number of interview offices. As a result of that restructuring, we are achieving a saving of some £7.81 million a year. As I said in answer to the original Question, they are a very important part of the authentication process.
Lord Reid of Cardowan
In view of some of the comments that have been made, can the Minister confirm that one of the fastest-growing crimes in this country is based on identity theft and that, in the midst of identity theft, one of the largest areas is the theft of people’s passports as an entry to identity, which then leads to further crimes, running from intervention in personal details through to bank accounts and right up to terrorism? While we are reminding ourselves of the costs of this, let us remind ourselves of its benefits as well.
Lord Henley
The noble Lord makes a very valid point, and I suspect that he was Home Secretary at the time these changes were made in 2006. We support those changes, we stick by them and we have no plans to make any further changes.