National Security and Investment Bill

Lord Janvrin Excerpts

Committee stage
Tuesday 16th March 2021 Lords Chamber

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord King of Bridgwater. Unlike him and other noble Lords who have spoken on this issue, I do not have any particular expertise in the ISC or in intelligence and security matters. None the less, it is a privilege to follow the noble Lord, who, as a former Secretary of State for Northern Ireland, was fully aware of many of the intelligence and security issues. I will refer later to one which I think arose during his tenure as Secretary of State for Northern Ireland.

Notwithstanding that, I support the amendments in this group, the context of which was initially addressed at Second Reading by many of their movers: the noble Lords, Lord West of Spithead and Lord Rooker, and the noble Baroness, Lady Hayter. They all revolve around the need for parliamentary oversight and accountability, and thus the involvement of the Intelligence and Security Committee in Parliament.

I am concerned about the impact of inappropriate takeovers and dual ownership of firms that are key to the development of the UK’s infrastructure, including the digital sector. The gaping hole in parliamentary scrutiny and oversight needs to be examined and legislative provision made for it. That is where the hole lies in this legislation.

All noble Lords who have spoken have elaborated on the sensitive nature of investment issues involving other countries which may have a strategic or other ulterior interest in the UK. Those need to be subject to parliamentary scrutiny, particularly decisions on notifications that will be taken by BEIS. A strong case was made in the Commons for the Intelligence and Security Committee to be given an explicit role in scrutinising the outworking of the Bill, but unfortunately the Government rejected it. I thank noble Lords who have spoken and I agree with them. The Intelligence and Security Committee could do a proper and adequate job if it was given a report on how the powers in the Bill are or are not being used.

There is currently no provision for oversight of national security material on which decisions will be taken, hence my support for these amendments as they would expand the current reporting requirements to include reporting to the ISC, incorporating details of the national security decision-making process into the existing annual report in Clause 61, an issue already referred to by the noble Lord, Lord West of Spithead. It is vital that there is oversight of matters that Parliament cannot itself oversee. Oversight and parliamentary scrutiny are key in this respect.

The ISC was established in 1994. I recall that in 1987-88 a company in Northern Ireland that was allocated a demolition contract for Northern Ireland Electricity Service had its contract and its ability to act as a subcontractor withdrawn on national security grounds. It never found out the nature of those national security grounds. No doubt various views were attributed to it. This case was subject to legal proceedings, and the European Court of Justice eventually sided with the inappropriateness of the actions that the Government had taken. I honestly believe that if the ISC had been established at that time, it would have been able to examine papers associated with that case and to judge the appropriateness of the actions and the company. That parliamentary oversight was unfortunately not available at that time, but it is now available and should be utilised to scrutinise global contracts and notifications within the unit in BEIS.

Parliamentary scrutiny is not something that should be feared. It allows engagement, consultation and a degree of transparency, subject to the rules of confidentiality. I support the amendments in this group.

[Lord Janvrin (CB) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Ritchie of Downpatrick. I speak as yet another former member of the Intelligence and Security Committee of Parliament. I strongly support the Bill, but there is a scrutiny gap which has been well identified in this short debate. Other speakers have made the key point in support of explicit oversight by the Intelligence and Security Committee of decisions taken under the Bill based on classified evidence from secret intelligence sources, and I strongly endorse those arguments.

I want to underline very briefly the important point of principle underlying these amendments. The ISC is a vital part of the intelligence agencies’ licence to operate in a democracy by making the agencies accountable to Parliament. It helps maintain public trust and confidence in the secret activities of the state. This obviously includes maintaining trust in government decisions about the activities of the intelligence community. Those broad decisions are taken in the interests of the nation as a whole, but maintaining public trust will surely be just as important when it comes to government decisions that may be narrower but could directly affect the future of individual British companies and the livelihoods of their employees.

The Bill will set up a regime that could materially change people’s lives in the wider interest of national security. However, as drafted, it does so without those people knowing for certain that any decisions based on secret evidence are not automatically subject to scrutiny and examination by the one committee of Parliament specifically set up to be able to do this: the ISC. This seems wrong in principle.

There is then the point of practice. I think we would all argue that effective scrutiny leads to better decision-making. The Minister in another place said that there is nothing to stop the ISC calling for evidence on a specific decision. That may be true, but is it practical? It calls to mind Donald Rumsfeld’s “unknown unknowns”: how does the ISC know which decisions to examine in detail? I question whether such a hit-or-miss approach to scrutiny would lead to better decision-making.

Amendments 70, 78, 79 and 82 all suggest means to provide effective ISC scrutiny. As has been pointed out, Amendment 70, in the name of my noble friend Lord Butler, has the merit of real-time accountability. This should be examined carefully, but the other amendments ensuring regular and automatic classified reporting to the ISC will, I believe, do much to ensure public trust in the processes of the Bill. As the noble Lord, Lord West, said, without one of these amendments, there would be no effective oversight.

I very much look forward to the Minister’s reply, and I hope he will be sympathetic to some kind of movement on this important issue. As I said at the beginning, this is a matter of trust.

[Lord Fox (LD)]

My Lords, it is a huge pleasure to follow such assembled knowledge and experience. I shall do my best to sum up from these Benches.

On a previous Committee day, we debated an amendment, tabled by the noble Baroness, Lady Hayter, on defining national security. In his answer to that amendment, the Minister—the noble Lord, Lord Callanan —responded that enshrining national security in law would be an inflexible response and the Government sought the ability to have a “flexible” response to future threats. I found this reasonably persuasive. However, who in the Government and department is defining, at that point in time, what the threat to national security is? Where does the expertise lie? Herein come the amendments before us—all except for Amendment 90, look towards the ISC for that expertise.

In his speech, the noble Lord, Lord Butler of Brockwell, set out what is at stake. These are extraordinary powers that the Government are taking upon themselves to stop private sector activity. That has been the concern of many of us throughout all the amendments that we have been putting forward. A lot of those powers are being kept very close to the Minister and very flexible, as my noble friend Lord Clement-Jones said when speaking on a previous group today.

One of the problems that has concerned those of us speaking about the investment part of the Bill is mission creep. Having a role for the ISC at the heart of it would ensure that this really is about security, rather than other issues that can creep into the picture.