Intelligence and Security Committee Annual Report for 2010-11

Lord Howell of Guildford Excerpts

Monday 12th December 2011 Grand Committee

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, this has been an extremely well informed debate, as one would expect. I am sorry if the noble Lord, Lord Triesman, found the Government’s response—

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[Lord Howell of Guildford]

My Lords, as I was saying, this has been a highly informed and expert debate conducted by many expert people. I was regretting that the noble Lord, Lord Triesman, found the Government’s response a little lacking in sharpness and focus or perhaps lacking flavour; I shall use my best endeavours to add a bit of pepper and salt to the meal and perhaps make it a little more tasty.

Before turning to address a range of detailed points, which I intend to do, first let me thank the noble Marquess, Lord Lothian, for opening this debate and the two Members of our House, the noble Marquess and the noble Lord, Lord Butler, who are the representatives of the House of Lords on the Intelligence and Security Committee. The words before me are to thank in a rather formal way all the other members of the Committee, but I would like to go a bit further than that. First, I would like to thank the staff as well as the committee members, and secondly, I would like to say frankly that I am awed by the amount of expertise and the work and dedication that are put into the committee’s work. In a sordid world of gain and loss, this committee has no obvious reward and there is no dose of the elixir of publicity that politicians like—it is toiling in solitude, and it is magnificent work. One sometimes half-wishes that the media would pick up on the fact that all this work is done, because they are oblivious of the amount of effort involved. They may comment on the results and the things that titivate the public, the media and so on, but they are rather oblivious of the amount of work that it is put in by people such as the noble Marquess, the noble Lord and the committee. I can see that too much publicity is not desirable, but a little greater recognition in the media of what is being done in the national interest would sometimes be appreciated.

It is vital that we have a strong framework for overseeing the work of the security and intelligence agencies. The ISC’s annual report is of the highest quality and underlines the unique and valuable role in this framework that the committee plays; I do not think there is any question about that. We should also think about the subject matter: the agencies. We should be proud of them. Their staff work day in, day out, often at very great personal risk to themselves, to keep the nation and its people safe. We owe them an enormous debt of gratitude and, as the committee notes, those working in this field continue to excel at a very challenging task. Again, those words are inadequate for the sheer danger often involved in the task. I remind noble Lords of the very striking speech made by my right honourable friend the Foreign Secretary on 16 November about the work of the intelligence services, in which he highlighted the extreme, often fatal, danger faced by those working in those agencies. I am sure that noble Lords will join with me in sending them our thanks and our praise for the work they do for our nation.

As my right honourable friend said in that speech, these agencies not only defend us from threats to our national security and to the lives of British citizens but they also provide vital support to British military operations and diplomatic intelligence which gives us a key national advantage in foreign and security policy. It is precisely because of the vital importance of the agencies’ role—and much of it must inevitably be kept away from the public gaze—that their work should be, and is, properly scrutinised.

Now let me turn to the detailed issues raised, after which I will turn to the detailed points made by individual Members in this debate. First, the Government’s Justice and Security Green Paper—it is white, but never mind—has generally been recognised as a very striking and strong contribution to the evolution of thinking in this area. The Government’s aims were set out in the Green Paper. These are: to better equip our courts to pass judgment in cases involving sensitive information; to protect UK national security by preventing damaging disclosure of genuinely national security-sensitive material—I will come in a moment to how that balance is to be struck; and to modernise judicial, independent and parliamentary scrutiny of the security and intelligence agencies to improve public confidence that executive power is held fully to account.

The Green Paper is one part of a package of measures announced by the Prime Minister in July 2010 aimed at restoring confidence in our security and intelligence services and allowing them to get on with the crucial job of keeping us safe. The Prime Minister also announced the establishment of the Detainee, or Gibson, inquiry. He published the consolidated guidance issued to intelligence officers and service personnel on engaging with detainees held overseas by third parties. He also announced the intention to reach a mediated settlement of the civil claims brought by former detainees of Guantanamo Bay because those claims could not be properly tried. This was achieved in November 2010 and was touched on by the noble Lord, Lord Butler, in his very sagacious intervention.

Combined with the proposals in the Green Paper aimed at improving the courts’ ability to handle intelligence and other sensitive material, this represents a comprehensive package to address these difficult issues and to enable our security and intelligence agencies to get on with the vital task of keeping the nation safe. The Green Paper consultation process is under way and closes on 6 January. In answer to the query raised by the noble Lord, Lord Foulkes, the aim is to go for legislation as soon as practicable, or thereafter. The comments in this debate will also receive full attention as part of that process, along with the range of responses from the public, which have been fairly extensive and substantial.

There are two distinct parts to the Green Paper proposals: reform of judicial scrutiny of intelligence and other government-held sensitive material, and reform of the non-judicial scrutiny of the intelligence community by independent and parliamentary bodies. I am going to deal with both of these. Reform in each area in its own right is required and necessary.

On judicial reform, the Government favour legislation to make closed material procedures available in civil legal proceedings where they are not currently available and in the rare instances in which sensitive information is centrally relevant to the case. The role of special advocates to represent the interests of the excluded individual is central to ensuring a sufficient degree of procedural fairness in closed hearings. The Government will ensure that this, and all other legislative proposals in the Green Paper, are consistent with our domestic and international legal obligations. The two drivers in this whole process are to increase fairness to all parties in civil proceedings, and to ensure that sensitive material is adequately safeguarded from public disclosure. That is the balance that has to be struck. This last point is critical, especially the importance of keeping safe information passed to us by other Governments, which several noble Lords, including the noble Marquess, Lord Lothian, referred to. We expect other Governments to keep our material safe when we pass it to them, and of course they expect the same of us. This goes to the heart of the control principle. Where it has in the past been offended—one instance was quoted—the repercussions were serious, sensitive and difficult to handle.

On non-judicial reform, the Intelligence and Security Committee has put forward in its excellent report, and indeed in the debates that took place in another place, reform proposals that the Green Paper largely supports. We have here a concurrence of support. The Green Paper proposes: changing the ISC’s status to a statutory committee of Parliament, answerable to Parliament as well as to the Prime Minister—a point that almost all noble Lords have raised; formalising the ISC’s role in overseeing the work of the wider intelligence community—that is, defence intelligence and the OSCT central intelligence machinery in the Cabinet Office; reforming the ISC appointments process to give Parliament a more substantial role; reviewing the ISC’s resourcing and accommodating the ISC on the Parliamentary Estate—a matter raised by my noble friend Lord Lothian—and the Government are reviewing the central question of resources for the ISC as distinct from resources for intelligence operations generally; and the question of the ISC having the power to require information from the agencies, subject only to a veto exercisable by the relevant Secretary of State. That is our positive and detailed response to the Green Paper, which coincides with what noble Lords have been saying.

On a more sensitive and difficult area, the Government are giving careful consideration to the ISC’s proposal, reinforced by the noble Lord, Lord Butler, and I think by my noble friend Lord Lothian, to extend its remit to include operational aspects of the work of the agency. At the risk of too much repetition, I can only repeat the words of the Green Paper about how far one can go on this front. The consequences of creating a general power are significant and need careful thought to ensure that the implications have been understood. The principles that the Government believe are important in considering this issue include safeguarding the integrity of ministerial responsibilities, avoiding overlap with the roles of other independent oversight bodies and ensuring that there is no lessening in the effectiveness of the work of the agencies or undue resource burdens placed on them. In addition, any such oversight of operational work would need to be clearly retrospective and, in the Government’s view, would need to be focused on matters of significant national interest. The point was rightly made, I think by the noble Lord, Lord Butler, that we do not want to go down the path of our American allies or the Washington procedures, which go into areas where we would not want necessarily to follow. Any change of the kind that we suggest or has been suggested would therefore need to be based on a clear understanding between the Government and the committee on how this should work in practice, articulated either in legislation or possibly in a supporting document such as a memorandum of understanding.

Before I come to the detailed points that have been made, let me refer to cybersecurity, an issue raised by the noble Lord, Lord Alderdice, and several others. Of course there are concerns and of course the Government share them. The Government have recognised the real and increasing risk to the UK’s national security from cyberattack. The National Security Council has assessed cyberattack as a tier 1 threat in the national security strategy and has allocated additional funding of £650 million over four years to respond effectively to threats from cyberspace through a transformative national cybersecurity programme.

In fact, my right honourable friend William Hague, the Foreign Secretary, hosted a conference on cyberspace at the beginning of last month, which looked at how Governments, businesses, individuals and non-governmental organisations can maintain the economic and social benefits of the internet and guard against criminal and security threats posed in cyberspace. All delegates agreed that immediate steps must be taken to develop practical measures and shared understanding, and to agree common approaches and confidence building through the UN group of government experts and through the Organisation for Security and Co-operation in Europe and other regional organisations. The UK is taking a leading role in initiating these important international discussions and we are pleased that the London agenda will be carried forward at a further session, which will be held in Hungary, and after that in South Korea. So we will continue to be very vigilant on that front in both overseas fora and at home.

I was going to add something on the Olympics, which did not come up in this debate but was certainly a matter aired in the debate in the other place. Therefore, for reassurance and for the record, I say that the Government are committed to a safe and secure Olympic and Paralympic Games. With less than eight months to go, safety and security activity is on track and well advanced, including within the intelligence community. Funding for Games security has been protected. The Government remain confident that the core safety and security programme can be delivered within the £475 million announced in the spending review of last December. The venue security budget is separate from the budget for policing the Games. We are confident that the 2012 Games will be delivered within the £9.3 billion public sector funding package. These costs are an appropriate investment in the safety and security of the public and our international visitors.

I have covered some of the points raised but let me turn in more detail to the excellent and informed comments of various Members during this debate. I repeat: the ISC report is excellent. My noble friend Lord Lothian made a number of central points about status and so on. I have already mentioned that. He asked about funding changes if the nature of the threat changes. This is something that can and does happen. The nature of the threat changes and there needs to be flexibility. Where unforeseen emerging threats place new demands on the SIA, the first response has been and will be to reprioritise within existing work. Agility and flexibility to redirect effort towards emerging threats and away from receding ones are core established strengths of the British intelligence community. That is splendid language for saying, “Don’t go on spending on things that have been solved and have passed. Focus on the new challenges and switch your resources to them”. There are mechanisms in place for doing that. The Government’s top requirements are given the priority and resources that they need. The point that there is a need for flexibility and that things can change rapidly is well taken, and the operational systems are in place to meet it.

My noble friend also mentioned the overseeing of operations by the ISC and closed material procedures, which I have already covered. He also mentioned a rebuttable statutory presumption. With a statutory presumption against disclosure, it must be possible for the courts to rebut the presumption if necessary. The Government’s analysis is that such a rebuttable presumption, while carrying the weight of Parliament’s opinion, would not alter the decision-making process of the court, which is anyway already deferential to the Executive on national security-related decisions. That is the Government’s comment on that point, which my noble friend Lord Lothian raised.

The noble Lord, Lord Foulkes, spoke about a number of relevant issues. He talked about the composition of the committee. The obvious answer is that party politics and the balance between parties are not relevant to the nomination of individuals to the committee. It is not seen as a political matter at all. It is a matter of gaining people with first-class experience. It might well be that in one Parliament or one set of membership there would be two or three members of the Opposition and one or two on the Government’s side. The people who serve on the committee are not connected to the balance between the parties. I have to say that to the noble Lord. He may say that he wishes it was but that is just not the way it is.

Should it be a committee of Parliament? The answer is yes. That is what the Green Paper proposes and that is what we are moving towards. We will work out how to do that. I have answered the noble Lord’s question about the timing of legislation.

The noble Lord turned to the national security adviser, and I do not think I am going to make any personal comments here, except to agree with him that of course all departments put up their defences—he used the word “blinkers”. All institutions put up their defences and fight their corners, and they are right to do so, just as Ministers are right to try to remove the blinkers. They do not always do so to roars of applause, but these things have to go on, and if Ministers do not do that, they are not doing their job. That is the remedy for his concerns.

As for co-ordination and who co-ordinates what, the whole point is that the National Security Council, which, as the noble Lord, Lord Hennessy, said, is an amazingly important innovation, co-ordinates. It is under the chairmanship of the Prime Minister, and it is the co-ordinating body. That is the way the new system works and is the whole point of the National Security Council in its developed role under this Government. It is a very significant change. There is co-ordination right under the Prime Minister. He has advisers and that committee, and there is a relationship with the JIC as well, which is charged with looking at, responding to or putting into effect the kind of agenda that the NSC establishes and lays down.

The noble Lord, Lord Foulkes, also asked about Scotland and the security implications of Scottish independence. I am not sure I am in a position to give an answer to that, or even want to, but one can safely assume that the relevant departments are assessing it, and if such a thing were to occur, the machinery would go forward to examine all the implications for all aspects of UK policy of Scottish independence. I do not think I can say more than that. The noble Lord very generously reminded us again to thank the intelligence services for their skill, professionalism, integrity and, I would add, sheer courage as well.

The noble Lord, Lord Alderdice, said that he had been a customer of the services. So was I for a time in the past, and I suppose we were good customers because we are here to tell the tale. He mentioned BBC Monitoring, which is important, and I have a note on it that I would like to share with him about the real cuts that had to be applied when the new Government came in. We did not have any choice. The cuts were discussed with BBC Monitoring in principle before the start of the financial year, and we have worked closely with BBC Monitoring, and continue to do so, on the best ways of minimising the impact of reduced funding. I am advised that the Cabinet Office is currently working with stakeholders and BBC Monitoring to agree the form and structure of BBC Monitoring during the transition period and after it has joined the BBC, which will be in April 2013. That is what is going on there. That is what I wanted to tell the noble Lord about that.

The recruitment of people who are not conventional civil servants, in the phrase used by the noble Lord, Lord Butler, brought back memories—and I suspect it does to a number of noble Lords—about life in university days when people appeared from unmarked offices in London and wanted to have tea to look you up and down to see whether you were suitable material for their purposes. A number of my friends went off for long strolls with those gentlemen and may even have received invitations afterwards. I waited eagerly to be asked to go on a long stroll or to have tea, but an invitation never came my way, so I was obviously considered unsuitable material, much too conventional or wrong in some sense, right from the start. The eye was clearly out, and is always out, for the original person, the non-conforming, challenging, questioning person, man or woman, and they are the people with the flair and the ability for quick lateral thinking that the intelligence services clearly need.

From my experience in and out of ministries over almost half a century, the old phrase “the conventional civil servant” is vanishing. The officials that I encounter are anything but conventional. They are a lively, original and disparate group of people who are bringing to bear ingenious minds on the increasingly complex world of government—which, of course, it is. The internet now empowers the individual and challenges the data monopoly of government, and the whole business of government is infinitely more difficult than it was 20, 30 or 40 years ago.

I would like to say a number of things on training, which is a very important aspect that was raised by the noble Lord, Lord Triesman, the noble Lord, Lord Alderdice, and others. Policies for the recruitment and retention of specialist staff are the responsibility of individual departments—that is rather obvious—but under the national cybersecurity programme the Government are supporting individual departments and agencies in developing cybersecurity training and skills capabilities for their staff. In addition, the Cabinet Office and GCHQ are both supporters of initiatives such as the cybersecurity challenge, which promotes careers in cybersecurity by annual competitions and events while providing advice and opportunities to individuals who wish to learn how to start a career in the information security field. This is a busy area and we recognise that technologists specialising in internet security, especially with experience at GCHQ, are very highly prized within a competitive external industry. GCHQ, therefore, has a retention payments system to retain its competitiveness with industry where it can. This is reviewed from time to time to ensure it remains competitive and these bonuses—because that is what they are—and the appeal of GCHQ’s mission help to keep leaver rates low compared with industry peers. That is the position; that is what we are doing. Obviously, not everything works, but the main thrust is there and will continue to deliver requirements.

On psychological training—even if I knew a great deal about it, I would not be sure whether it was right to reveal it—it would pass belief if there was not a very heavy emphasis on psychological training inside the intelligence services. One is dealing with psychological situations, so training of that kind is necessary. I would take a bet—it should perhaps be an assurance—that such training is in place.

The noble Lord, Lord Alderdice, asked about research sources. Yes, a great deal of research is carried out internally, but we also turn to independent external research support to an extensive degree. That will certainly continue.

The noble Lord, Lord Alderdice, shared with us a fascinating thought about anti-government street protests, political instability and so on arising in Europe: are we informed about where the next so-called Arab spring phenomenon is going to occur? It might occur anywhere. The intelligence services tend to keep as much of an eye on this as well-informed politicians and journalists. It does not necessarily need an exclusive monopoly of experts in secrecy to assess when the next riot in the next capital, the next burning of flags, the next raiding of buildings, or anything else, is going to be.

The noble Lord, Lord Butler, touched on the fundamental issues, as one would expect, and said that the combination had to be between accountability on the one hand and the proper requirements of secrecy on the other—that is the challenge. He referred to new spying technologies, and there are plenty of those. One tends to learn about them mostly in racy novels and then, a few years later, you discover that the intelligence services have either caught up or have been practising these things all the time. I commend particularly to your Lordships the Swedish novels by a gentleman whose name I have forgotten at the moment, but they are very popular and have been made into films. They contain hair-raising matters, broadly to the effect that nothing, but nothing, that we put onto our mobile telephones or computers is private or inaccessible to the right kind of technologies. He reinforced that we must move from a committee of parliamentarians to a Committee of Parliament, and he discussed the operational role issue which I have already commented on in considerable detail to your Lordships.

The question of the interaction between judges and courts and the need to guard sensitive material is very difficult. The noble Lord outlined the difficulty. Whether it can be met in general or whether there will be recurring individual instances where we are in difficulties, I do not know, but it is a matter that must be examined and watched acutely and very carefully. It is partly covered by what I said earlier about the control principle, access to courts for more sensitive material and closed material procedures.

The noble Viscount, Lord Slim, mentioned the American links, which are very important. No-one questions the importance of all our international links, and it may be that we need to develop—this is not a report of what is happening but an opinion by a Minister—links with intelligence in unconventional areas. The truth is that the world’s power, wealth and technological and security capabilities are moving, like everything else, to Asia, to rising Africa and to Latin America. These are the places where we will need to seek services and information. It is not merely a question of us providing them. We will also need to seek an input of new technologies, methods and information from those countries as well. This is an international scene, as the noble Lord, Lord Butler, emphasised.

The noble Lord, Lord Triesman, mentioned the response of the Government, and I have done my best to add to it. He returned to the central issue of training up a suitable cadre of people, and I have described what the Government are doing. He asked about resources and the National Security Secretariat and asked for a list of things that it does. I will give him the following list that may help. It provides support to the national security adviser by co-ordinating the development and implementation of policy for decision-making at the National Security Council; it is responsible for providing policy advice on national security and foreign policy matters to the Prime Minister, the Deputy Prime Minister and Cabinet Office Ministers; and it has a wide range of other functions including the co-ordination of the Government’s response during civil emergencies and international crises, overseeing the delivery of the Government’s cybersecurity programme and its overseas single intelligence account, that we have discussed. The secretariat has also delivered a number of cross-departmental projects, including the national security strategy and strategic defence and security review. If I may add my opinion as an old hand, I think that that is a pretty good, detailed answer to the question that the noble Lord asked. I hope he feels that it meets his needs.

We have had a very important and wide-ranging debate this evening which illustrates that it is very important that the public have confidence that the Government’s national security work is being robustly scrutinised. The first duty and the overriding priority of any Government is the protection of the British public. Great progress has been made in counterterrorism and in other areas in recent years, but serious threats to our national security remain on all sides and there are always the new surprises, the unpredictability and the variation of threats which noble Lords have referred to, which we have to be ready to meet. That is why it is vital that we have security and intelligence agencies that can continue to reduce those threats and help to keep us all safe. Their work is among the most important carried out by anyone, so it is right that they should have robust oversight. That is why we are modernising and strengthening the oversight arrangements in the way that the counsel of the debate this evening, the debate in the other place, the ISC report and the Green Paper from the Government have all emphasised. I warmly welcome the latest annual report which we have debated tonight. Its recommendations are informing change as we speak. I look forward to future annual reports being even more useful in helping our world-class intelligence and security agencies to get even better.

I end with one small anecdote. About 47 years ago—no, let me be more accurate; it was 41 years ago—when I first entered the Government as a junior Minister, a Permanent Under-Secretary of great eminence who I will not name slipped into my room one day. I eagerly expounded on the virtues of a freedom of information Act—transparency, better scrutiny, accountability and all the things that young Ministers are keen on, to which he replied, “Very interesting, but just remember, Minister, too bright a light often deepens the surrounding darkness”. That left me thinking, and I am still thinking about that statement now.