Justice and Security Bill [HL]

Lord King of Bridgwater Excerpts

Monday 19th November 2012 Lords Chamber

[Baroness Taylor of Bolton]

My Lords, I rise to speak with some hesitation because I have not been able to take part in these debates previously. However, I feel as a former chair of the Intelligence and Security Committee that I should echo some of the concerns that the noble Lord, Lord Butler, raised, particularly what he said about the Executive not being able to surrender responsibility for security.

On the other hand, I very much agree with what my noble friend Lord Campbell-Savours said about the importance of privilege for the Intelligence and Security Committee and I am not entirely convinced that this can be solved in any other way. I have a dilemma. There are conflicting things that we are all trying to do. We are trying to make the Intelligence and Security Committee as effective as possible. I am not convinced that a Select Committee would in any way be more effective. I think that the current arrangements work rather well, but I am struck by my noble friend’s desire to increase confidence on the part of the public in that committee and I know that that is what he is trying to do.

However, he has not gone into the practicalities of a Select Committee on this occasion as he has done on others. For example, every member of the House of Commons can attend a Select Committee, so the normal rules could not apply there. The practicalities of location could be met, I am sure. I am left with this dilemma because I do not think there is any way in which the Executive can give up their responsibility. I am not sure about the mechanisms that have been mentioned—for example, the Speaker giving authorisation—and I am worried about freedom of information, although I am worried about freedom of information on a raft of issues and not only on this one.

There are two groups of amendments and, in a sense, we are going on to the next group, which relates to parliamentary privilege and is absolutely essential to the issue of whether we need to go down the path of a Select Committee. My noble friend thinks however, that if there were to be a Select Committee as he envisages, with all the complications that exist, it would increase the confidence of the public. On the first occasion on which the ISC, as a Select Committee, refused to give information or agreed to redactions that people then probed and it was not able to give answers, the Select Committee would be criticised just as much as the ISC has been in the past. I hope that my noble friend will resist the temptation to raise expectations about any increase in accountability or transparency were this committee to become a Select Committee of the House because I do not think that it could function in that way.

Many of us who have been involved worry that the agencies took a little time to come round to giving information when the ISC was first established—I see the noble Lord, Lord King, who was chair at that time, nodding in agreement—and we could suffer a setback if this committee became a Select Committee. It might be recoverable, but we would have to re-establish a system of confidence once again. I hope my noble friend will not raise expectations that this would suddenly mean more accountability and transparency. The one issue that concerns me is making sure that the ISC has all the protection that it needs.

[Lord King of Bridgwater]

My Lords, the House is getting a surfeit of chairmen, members and former members of the ISC and I am delighted to follow the noble Baroness. She followed directly after me—I think that is right, if my memory is correct—and the noble Lord, Lord Campbell-Savours was a very diligent member of the committee during part of the time when I was chairman. I would like to welcome a promising new young member of the ISC in the shape of the noble Lord, Lord Butler—who, very unusually, has sat on both sides of the fence, as one might say, and speaks with all the authority of seeing it from both sides.

I respect the approach that the noble Lord, Lord Campbell-Savours, has taken. He has the credit of holding this view continuously for a considerable number of years and has pursued it very diligently, as is clear from the speech he has made in your Lordships’ House today and the detail into which he has gone. I am on record as saying that I have seen the evolution of this committee progressively over the years. The noble Baroness, Lady Manningham-Buller, made exactly the point that it was bound to evolve, has evolved, is continuing to evolve and will evolve in the future. The question that faces your Lordships today is whether we should now take a further major step forward and recommend it that it should go straight to a Select Committee.

I am very disappointed that the noble Lord, Lord Campbell-Savours, has tabled Amendment 1 because I thought the previous feeling of the debate in Committee was that it was right to consider Amendment 2—which had previously been Amendment 1—the proposal of the noble Lord, Lord Butler, and then, in the light of what the House thought about that, to move to the amendment of the noble Lord, Lord Campbell-Savours. The noble Lord is a very astute parliamentarian and his Amendment 1, if I may say so, is entirely a device to get in at number one, because if the House was to vote for it his subsequent amendments would abolish it. If the House agreed to Amendment 3, it would delete the clause in which he had just carried Amendment 1. It would then delete all the clauses that apply to the ISC. That, of course, is the position. He is saying that nothing should be set up under statute and therefore you do not need anything in this Bill about the ISC. You pass the responsibility for creating the appropriate committee over to the authorities in the House of Commons with the support of this House. We do not have the opportunity to consider the alternative approach yet, although the noble Lord, Lord Butler, has given us a good snapshot of what the House might be interested in doing.

There was common agreement in Committee that it is absolutely vital that the committee develops, as it has progressed significantly beyond the 1994 Act which limited its powers and responsibilities simply to the Secret Intelligence Service, the Security Service and Government Communications Headquarters—GCHQ. In those first few years, we extended progressively into the assessment staff in the Cabinet Office, the JIC organisation and the Defence Intelligence Staff. I brought in the NAO to oversee the finances and produce reports on financial aspects on which we needed further advice. We also took in evidence on police activities, including in the area of serious crime, and a whole series of different things which spread its range. I would like to think that, under successive memberships of the committee, it has commanded significant public confidence. Indeed, I remind noble Lords that it has been going for 18 years and I do not think there have been any serious allegations of leaks. There might have been, if not a nod, perhaps a suggestion of one, but I have to say that over the period there have been significantly more from the intelligence agencies, which are meant to be distrustful of our ability as parliamentarians to contain secrets. On this occasion I will not go into the details of Mr Shayler and Mr Tomlinson, both people who did not give great service to our country in particularly difficult times.

I did not realise that the noble Lord, Lord Butler, was going to mention this, but there is a role for the ISC that is quite outside Parliament, in the sense of being mandated by it, on which the Government did come to the committee. The Home Secretary at the time, Jack Straw, rang me and said, “We have a problem. Some very serious allegations are being made and it is not going to be dealt with simply by us issuing denials that they are true. Will the committee undertake to investigate the allegation of a failure by the Security Service in connection with the Secret Intelligence Service to root out serious Warsaw Pact Soviet espionage?”. If people do not know what I am talking about, it got into the tabloids as the “granny who came in from the cold”. A KGB archivist, Mr Mitrokhin, provided the most amazing fund of top secret intelligence. Having been turned down by the United States—I think he went to the US embassy in Vilnius, although at the time all sorts of people were turning up at US embassies, so they said that they had too many of them—but fortunately a suitably intelligent British agent spotted the potential value of the archive. It was top secret stuff and I said that we would undertake the investigation only on the condition that we had access not as circumscribed in the Act but to any secret information that was in any way relevant to the case. We took full evidence, including from Mr Mitrokhin himself, and many noble Lords will have seen the outcome of that. The report showed that although one or two mistakes were made, the more serious allegations against the intelligence and security agencies were not justified. I like to think that that report, from an all-party committee drawn from both Houses, investigating an absolutely top secret matter, commanded considerable public confidence.

It is important that this committee commands public confidence in this country. As the Foreign Secretary says in his article in the Times today—more in connection with Part 2 of this Bill—it is important, too, for this committee to have a role in maintaining international confidence. As a country, we depend enormously on our intelligence agencies and what they produce, but also considerably on a whole network of alliances of intelligence agencies. The difficulties of the world at present are such that one cannot be sure from where the next challenge, terrorist threat or any other sort of threat, such as that from organised crime, might emerge. We must maintain international confidence that our intelligence agencies and parliamentary oversight procedures are secure to the standards that our allies would expect for information that may be extremely sensitive as far as they are concerned.

As the noble Lord, Lord Campbell-Savours, made clear, that background is such that, whatever we come out with here, it cannot be an ordinary committee. The noble Lord, Lord Campbell-Savours, wants to abolish the ISC as it stands under statute and just create a select committee. He then, very properly, includes a whole range of extra requirements that would have to be added to a select committee for it to operate in this way. He very confidently said that all the necessary safeguards would be available. However, I do not know what authority he has for saying that, as it will be a matter for the House to decide which of those safeguards it wishes to impose. That is why the point made by the noble Lord, Lord Butler, is surely right: the Government cannot surrender or pass over responsibility for national security. The Government must maintain that responsibility; our duty in Parliament is to hold them to account for how they discharge that responsibility.

I wait to see whether the Minister can help us on the legal point made by the noble Lord, Lord Butler. We have managed to stumble along for 18 years without getting too worried about the issue of privilege, but it now seems to be becoming much more of a concern that we should have that protection, if it is necessary. Why can it not simply be put in the Bill and made quite clear what that privilege protection is? That would seem to be an entirely satisfactory way to deal with it.

A number of complications arise, whichever route we take. When the noble Lord, Lord Henley, summed up the debate in Committee on this point, he made clear that the Government would go away and reflect on the comments that had been made. We were privileged at that time to have the noble Lord, Lord Carlile, here, who, as your Lordships will know, of course has considerable experience in the security field with the responsibility that he had. He said that he respected and welcomed what the noble Lord, Lord Henley, had said and that he would wait to hear the Minister’s conclusions when he came back—we welcome the noble Lord, Lord Taylor, who has now taken over that responsibility—but he did not actually, as the noble Lord, Lord Campbell-Savours, knows, support the Select Committee route. I do not support it at this stage either but do support the steps that need to be taken. I think the noble Baroness and I are pretty much in step on this: we should ensure that the committee is recognised to have as parliamentary a status as is possible, while retaining for the Executive the overall responsibility for national security and ensuring that the ISC—which I would like to think has made a reasonably promising start—can continue to evolve and serve the nation as it has sought to do in the past.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I thank the noble Lord, Lord Campbell-Savours, for presenting his amendments in such a typically articulate way. He draws to our attention the challenge that faces us in achieving confidence—the word that was used by many noble Lords and spoken of by my noble friend Lord King of Bridgwater. In a nutshell, this is about the scrutiny of Parliament and the responsibility of government, and how those two can be reconciled. Although the noble Baroness, Lady Smith of Basildon, talked about not wishing to create a special committee, this is a special committee because it deals with matters that are self-evidently outside normal public scrutiny.

This group of amendments, which I thank the noble Lord, Lord Campbell-Savours, and others for bringing to the House, concern the status of the ISC and, although we have not talked about it much, the remit of the Intelligence Services Commissioner. As my noble friend Lord Henley previously noted, the Bill proposes a number of important changes to the ISC’s status. Members of the ISC would be appointed by Parliament, rather than as at present by the Prime Minister, and those members would be free to choose their own chair. The ISC is created by statute to ensure that there are safeguards in place to protect against the disclosure of sensitive information and therefore the Government do not consider it appropriate for the ISC to be a full Joint Committee established under the Standing Orders of each House, as other Joint Committees are. I hope that noble Lords will find it useful for me to expand on this reasoning.

It is essential that the ISC operates within a framework that protects the highly sensitive material to which it has access. In particular, the Government must be able to prevent the publication of sensitive material by the ISC. They must be able to withhold the most sensitive material from the committee—albeit that those powers are rarely used currently and can be expected to be rarely used in future—and must have some role in the appointment of members of the ISC. Without guarantees in those three areas, the risk of disclosure of information that might damage national security would be increased. That might, in turn, lead to a situation where agency heads found it hard to reconcile their statutory duties to protect information with their duty to facilitate oversight. That could therefore lead to the sharing of less sensitive information and a corresponding reduction in the effectiveness and credibility of oversight.

The Bill provides the necessary guarantees in each of those three areas. The Prime Minister would be able to require matters be excluded from the ISC’s reports if the matter would be prejudicial to the discharge of the functions of the agencies or the wider intelligence community. Ministers would be able to withhold information from the ISC in the limited circumstances provided for in paragraphs 3 and 4 of Schedule 1. A Member of this House or of another place would not be eligible to become a member of the ISC unless they had first been nominated for membership by the Prime Minister.

Although it may be possible to replicate those safeguards in Standing Orders of this House and another place, Standing Orders can be amended at any time, as noble Lords will know, and can be suspended for a specific period, or dispensed with for a specific purpose, by a Motion in the relevant House. Standing Orders do not therefore have the same permanence, or provide the same level of protection to sensitive information, as statutory provisions to the same effect.

It seems to me that we can divide the noble Lord’s amendments into two sets. Both are concerned with the same aim—that the new ISC should be a Select Committee—but they get there by different routes and with different consequences. It is not absolutely clear what the effect of the noble Lord’s first two amendments would be. If we were to accept them and the amendment that he proposes to Schedule 2, the ISC would still be created by statute in the Bill and safeguards would still exist to protect national security in the three areas that I have listed. My noble friend Lord King of Bridgwater drew attention to the inconsistency of the amendments, but we accept the noble Lord’s wish to draw the issue to the attention of the House in the way that he has by tabling Amendment 1.

The noble Lord’s 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 other Select Committees? The Bill makes clear, even were it amended in other respects according to the noble Lord’s wishes, that the ISC is quite different from other Select Committees in fundamental respects—for instance, in relation to appointments and reporting. That being so, it is unclear whether or to what extent changing the ISC in this way would give it the other characteristics of a Select Committee. Indeed, the risk is that describing the ISC as a Select Committee when it has characteristics that are not shared by such committees could mislead as to the ISC’s true character. For these reasons, I hope that the noble Lord will see fit to withdraw his amendment and that the noble Baroness, Lady Smith of Basildon, will reconsider her position on it.

The noble Lord’s next four amendments would, together, remove the first four clauses, which deal with the ISC. It is to be assumed that the noble Lord’s intention with those amendments is that a new ISC should be created solely by the Standing Orders of each House. Indeed, the noble Lord said so in his speech introducing his amendment. I have already listed the vital safeguards relating to appointments, reporting and provision of information contained in the Bill. Without these safeguards, we will increase the risk of unauthorised disclosure of the sensitive information to which the committee has access. As I have already said, Standing Orders cannot adequately replicate the safeguards against disclosure of information that might damage national security contained in the Bill. It is only by enshrining these safeguards in statute that we can ensure that they are sufficiently robust and enduring.

[Lord King of Bridgwater]

My noble friend has put much more clearly what I tried to allude to. The only correct position that would seem to emerge from the noble Lord, Lord Campbell-Savours, and the noble Baroness who speaks for the Opposition is that nobody should vote in favour of Amendment 1. If they vote for it and do not carry Amendment 6, we will have a complete muddle. What is involved here is actually not voting on Amendment 1; the issue about the Select Committee should properly be addressed under Amendment 6.

[Lord Taylor of Holbeach]

My noble friend may well be quite right.

--- Later in debate ---

[Lord Campbell-Savours]

My Lords, I vigorously support this amendment because it has always been my view that the chairman should be remunerated. I served under the chairmanship of the noble Lord, Lord King of Bridgwater, and he should have been remunerated, as indeed should my noble friend Lady Taylor of Bolton. However, what worries me a little is that the matter is to be left to IPSA. That is a very controversial proposition to put, not because IPSA is as unpopular in the Commons as we know it to be, but why should an organisation established to deal with parliamentary allowances and expenditure be required to deal with the expenditure of an outside body? This is the first body, but are we to presume that in the future IPSA will extend its tentacles to managing the financial arrangements of more bodies that are established under statute? Is this the beginning of the growth of IPSA into something even larger than the current organisation which is causing so much grief to Members of Parliament? I simply put the question. If a mechanism is to be found, perhaps I may suggest that IPSA is not the ideal organisation to proceed with this responsibility.

[Lord King of Bridgwater]

My Lords, I support what the noble Lord, Lord Campbell-Savours, has just said—in the knowledge that there is no back pay in this world. It does seem very weird to be considering this. I am not sufficiently familiar with the remit of IPSA, but although we have been arguing about the extent to which this committee is or is not part of Parliament, in the area of pay and rations it appears to have been put right inside it.

[Baroness Smith of Basildon]

My Lords, my name and that of my noble friend Lord Rosser have been added to this amendment, as was the case in Committee. We argued then, and argue again now on Report, for the establishment of the ISC along lines similar to that of a Select Committee, and indeed preferably the same lines. It would therefore be inconsistent not to argue that the chair of this committee should be remunerated in much the same way as the chair of a Select Committee. The work that is undertaken is enormously serious and therefore the role should be recognised and fairly compensated on par with that of a chair of a Select Committee.

We have just heard comments about whether IPSA is the appropriate body for this role, and in Committee it was the Minister who said that it was. I have been involved in politics both in your Lordships’ House and in the other place for a good many years and I still enjoy irony, which is much underused in politics, so I find the argument of the Government rather ironic given the debate over Select Committee status which has underscored the difference between this committee and a committee of Parliament. Perhaps the Minister can change the Government’s position and we will accept the amendment.

The details of the committee’s arrangements are to be established in statute, but when it comes to discussing remuneration, it will be for IPSA to decide. It really does not seem appropriate for that body to do so, and the Government cannot have it both ways. If the ISC is to remain a body provided for in statute and ultimately accountable to the Executive, which is the case in this Bill, then regardless of any closer ties to Parliament it remains a creature of the Executive. It therefore seems completely illogical for IPSA to be the body which decides on the remuneration of the committee’s chair. I support the amendment. If the Government think that IPSA is the way forward, they have got it wrong, and I hope that the Minister will be able to accept the amendment.

--- Later in debate ---

[Lord Taylor of Holbeach]

The noble Lord is persistent but he is more persistent than the committee has been long standing. The committee in its present form has not yet been set up. The new committee will establish its own traditions and it is not for me standing here at the Dispatch Box as a member of the Government to say how the committee should conduct its affairs when I, and the Government, have said that the committee will elect its own chairman. It is a matter for the committee to decide.

[Lord King of Bridgwater]

My noble friend will recognise that this is a long-standing issue that has been raised by the noble Lord, Lord Gilbert. I happen to strongly support what he said and believe that it would be in the interests of the reputation and credibility of the ISC—which is of great advantage to the Government and the nation—if it is seen to be a committee that is in no sense government-led, or led by a member or supporter of the Government, but is chaired by a member of the Opposition.

[Lord Taylor of Holbeach]

I am not at all doubting the value, for example, of the Public Accounts Committee, to which the noble Lord referred. However, it is up to this committee to decide whether to establish its own tradition. To predetermine its traditions, as suggested by the noble Lord, gives a false description of what “tradition” really represents.

I hope that the noble Lord will allow me to move on, because I was going to suggest another scenario: of course, there is no reason why the chairman of this committee should be a member of another place. It is a Joint Committee of both Houses, and although noble Lords may consider it unlikely that a Member of this House would be elected its chairman, that may indeed happen, and it probably would not be appropriate for the salary to be determined by IPSA in that respect. It would be a question of us seeking to resolve the issue should the occasion arise.

I understand what noble Lords and the noble Baroness are trying to achieve; that is, some sort of established practice within existing committee procedure. I have some sympathy with the argument. The ISC is an important committee, carrying out a very valuable oversight function, and the chairman of that committee has a critical role in that respect. However, deciding on the appropriate level of financial support for the chair of the ISC is very much a matter for existing mechanisms within the two Houses and would be best resolved in that way. It is for Members of the House of Commons and, for Peers, the House Committee to resolve this issue, not the Government. I hope that the noble Lord will feel able to withdraw his amendment.

--- Later in debate ---

[Lord Campbell-Savours]

If it were indeed the whole House, then I would oppose the amendment, and I will explain why. I sat on the committee for five years when the chairman was the noble Lord, Lord King of Bridgwater. In my experience, and this will be the experience of those members of the committee who now serve under the chairmanship of Malcolm Rifkind, I noticed that this relationship was very special. I balance the openness of the Select Committee with, on the other hand, the special nature of that relationship between the agencies and the chairman. There are circumstances in which I can imagine that relationship breaking down. That is why it is an extremely sensitive appointment. You must therefore have a narrower shortlist, to put it bluntly, than simply the membership of the whole House of Commons.

I have another argument as well, although perhaps I am doing somersaults here. I have a reservation. Subject to the shortlist that I have just referred to, I have argued in the past that not only is the relationship between the chairman and the agencies very special, but I would take it far further than the Government propose to provide for in the legislation. I believe that the chairman of the ISC should have access to everything that goes on within the agency—everything operational or whatever—and should be the only person on that committee who has total access. The legislation before us will provide a qualified element of access to operational material, but it will not provide for looking at the activities of the agencies in future. It will essentially be about retrospective operations. Ideally, in the committee that I would like to see constructed, the chairman would have access to everything—future, prospective, current and past operations—but would be the only member of the committee to do so. In those circumstances, the idea that any Member of the House of Commons could stand as chairman of the committee would be ludicrous.

As I say, I have very mixed views. If it comes to a vote, I shall probably vote for the amendment, in the hope that it is much harder to overturn a resolution in the House of Commons when it has come from the House of Lords than simply to initiate a debate on an amendment in the Commons. On that basis, I hope that the amendment is carried.

[Lord King of Bridgwater]

My Lords, I share some confusion over this amendment. The noble Lord, Lord Campbell-Savours, has asked whether it is intended that the chairman should come from a group that has already been put forward and proposed, while the noble Lord, Lord Reid, made the point about the membership of the House of Lords. As I read the Bill, you could end up with one Member of the Commons and eight Members of the Lords. That is pretty unlikely, but I can certainly see that we have moved from having one Member of the Lords as a member of the committee to having two. I can see a situation in which the new Opposition do extremely badly in an election and are very short of membership in the Commons but still have to man all the committees and so on. In those circumstances, they might well prefer it if they had one or two extremely well qualified members, perhaps recent Members who had lost their seat and moved into your Lordships’ House and who would be very useful members of the ISC.

Against that background, there would then be the problem, as the noble Lord, Lord Reid, has said, of whether or not the Commons should vote for Lords. I would trust the members of the committee, knowing the ways in which they have arrived on it, to be well capable of deciding who should be their chairman. That is well established practice, as we know from elsewhere. I therefore feel that, subject only to the qualification that the noble Lord, Lord Gilbert, raised, I support the idea that the chairman should be a member of the Opposition. I feel an amendment coming on at Third Reading, and that is one that the Government might like to prepare for.

[Lord Martin of Springburn]

My Lords, the amendment makes heavy weather of finding a chairman. Most, if not all, members of this committee will have a long history and reputation in both Houses. I do not see where the difficulty would be if at the first meeting the members chose a chairman. I do not see anything wrong with that. That is a tradition that I found in local government. The first time we met after we were elected, we picked a leader of the group. That happens in the House of Lords and in the House of Commons, where I used to belong.

--- Later in debate ---

In general, this group of amendments has much to commend it, provided that there is a sensible application of the public process. Certainly, as regards the questioning of appointees to high positions in the intelligence services, and the heads of intelligence service, it has a great deal to commend it.

[Lord King of Bridgwater]

I very much share many of the views expressed by the noble Lord, Lord Reid. I am not quite sure where the United States stands on advise and consent now, with the well established practice over there, or whether a strong lobby is still in favour, or whether there are the problems that the noble Lord has identified—I think that he is absolutely correct—in that deciding to consent and back people inhibits in some way the critical faculty that might otherwise apply.

I am pretty sympathetic to the noble Baroness’s amendment. In a permissive sense they have great merit—and, as has been indicated, public hearings certainly could be done. It is something that we have talked about for some time. It might be pretty disappointing for a public expecting some startling revelations to emerge. Also, I assume that if they were public they would probably be televised as well. While I am very grateful to the tribute paid by my noble friend to our former colleague, Lord St John of Fawsley, there is one great problem about Select Committees when they are televised, which I certainly appreciated not having to bother about when I chaired the ISC. Every member of the committee wishes to appear on television; they are only allowed to ask two or three questions before it is the next chap’s turn, but other members of the committee do not follow their line of argument because they have worked out exactly what they want to say to catch their headline. When I was chairing the ISC, with the absence of television and all that, we were able to have consistent follow-up arguments, and people could follow up with reasonably penetrating questioning at times—as I believe that the noble Baroness may have experienced. We did not have that problem.

One therefore has to recognise the apparent attractiveness of public hearings but I certainly agree that the bulk of the work will have to be done overwhelmingly in secret, as it is at the moment. I would not wish this proposal for public hearings to be put in legislation as a compulsion, but I hope that there will be an opportunity for them. Without embarrassing the noble Baroness, Lady Manningham-Buller, she was very willing during her time in office to appear in public, make speeches and stand up and talk as widely as she could about the activities of the Security Service. The more that that can be done and the more publicity they receive, whereby they are not seen as rather sinister secret undertakings, the more it would be in the interests of the agencies themselves. These amendments are good ideas but compulsion needs to be avoided in the Bill.

[Lord Gilbert]

My Lords, the situation is considerably more complex than your Lordships have heard this afternoon. One has the impression from the debate that the only intelligence-gathering agencies are MI5, MI6 and GCHQ, and that is far from the case. We have the Defence Intelligence Agency and the intelligence work of the individual services, and a lot of other people in this country handle high-security intelligence by acquiring, analysing and distributing it. If we think that we have covered the waterfront just by approving the heads of MI5, MI6 and GCHQ, we are deluding ourselves.

--- Later in debate ---

[Lord Taylor of Holbeach]

I thank the noble Lord for that intervention but, as I have explained, the reality is that these posts are special and important. They are exactly as a Permanent Secretary’s post is in terms of the continuity of Government over changes of Government. There is nothing bureaucratic about this. This is the way in which public servants are appointed. I hope that what I am describing is clarifying the Government’s argument—namely, that these posts, important though they are, are Civil Service posts occupied by servants of the Crown performing the duties of particular posts. Procedures are in place for making sure that those appointments are made on merit. They are not political appointments subject to political scrutiny. I hope noble Lords will accept that argument.

[Lord King of Bridgwater]

My noble friend has set out admirably and very clearly what the position is as seen from the Civil Service point of view. However, there is a serious point here. I think that a number of newly appointed heads of the agencies would have welcomed the opportunity to have this sort of a hearing, possibly even in public, given the importance of credibility for the Intelligence and Security Committee, as we discussed earlier. Given the importance of gaining public credibility and confidence for those who have been appointed to lead these critical national security agencies, this would be a very important opportunity. Therefore, although there may be technical reasons why such a procedure does not square with the Civil Service code, or whatever, I hope that my noble friend, who has manfully explained the current position, will consider whether there is an argument for establishing such a permissive arrangement in this area.

[Lord Taylor of Holbeach]

I note my noble friend’s guidance and assistance. However, I do not flinch from presenting the Government’s position in this respect. These are not conventional public appointments. They are Civil Service appointments which provide for political impartiality and, indeed, are outside the scope of Parliament. Once we start to argue for public scrutiny of an appointment, we argue for a political process. However, we have always sought to avoid such a political process in Civil Service appointments.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I am not sure that the noble Baroness has understood the central point that I am making and if she has, she has not answered it to my satisfaction. The query that I have with this amendment is the level of the Minister who can exercise a veto. I entirely agree that it is an exceptional measure that will be used only in exceptional circumstances. It takes the power from the agency’s head so that it rests with the elected representatives of the Government who are ultimately accountable to Parliament. But I have not heard from the noble Baroness an adequate justification from the Government as to why they have chosen to downgrade the level at which the veto is held from a Secretary of State to a Minister of State.

I mentioned the Cabinet Office because that was the department mentioned by the Minister previously. The noble Baroness responded and said that it could be another department that does not have a Secretary of State. The point being made is the level of Minister who can withhold information and exercise a veto against the ISC. It is entirely reasonable that it should be the Secretary of State or a Minister at the same level, not downgraded to a Minister of State level.

[Lord King of Bridgwater]

The answer my noble friend gave was extremely encouraging and recognised the importance of the seniority of the person. The only thing I do not understand is whether paragraph 3(5)(b) of Schedule 1, which reads,

“if no Minister of the Crown is so identified, any Minister of the Crown”,

will survive.

The noble Baroness appeared to be saying that if a particular Secretary of State is for some reason not available—which is perfectly possible, particularly if you are dealing with the Foreign Office—any other Secretary of State will do. Would it not be much better to have a Minister of State in the same department who is familiar with the matter to deal with it, rather than some other Secretary of State? Have I got the noble Baroness wrong?

[Baroness Smith of Basildon]

No. The noble Lord is absolutely right. At the moment it is a Secretary of State but the Bill proposes to downgrade that to any Minister of the Crown. I know the noble Baroness says that there will be a MoU that will identify certain Ministers of the Crown but these decisions should be taken at Cabinet level.

[Lord King of Bridgwater]

I understand what the noble Baroness is saying but if the information concerns the Foreign Secretary, who is responsible for SIS and GCHQ, or the Home Secretary, who is responsible for the Security Service, or, in certain circumstances, the Secretary of State for Defence, who is responsible for the DIS and so on, and if by chance that Secretary of State is not available to deal with an urgent matter on which a reply is requested, it would be much better that the Minister of State in that department deals with it and that we do not have the Secretary of State from Defra or from some other department shifted in merely because he is of equal seniority and that meets the requirement.

[Lord Reid of Cardowan]

Perhaps I may help. This is not a new problem—it happens with intercepts. The only people allowed to authorise an intercept are Secretaries of State and, if the Secretary of State is not available or is not in London, his officials will get it to him—and these are far more urgent than anything envisaged here. The point that is being made is that the refusal to supply information to the ISC is such an important decision, given the confidence we are placing in the ISC, that the level at which that decision should be taken is Secretary of State level or equivalent. The Government are envisaging extending not only to a Minister inside the Home Office when the Secretary of State is not available but to any Minister of the Crown, on any refusal, the power so to refuse. My noble friend is saying that this is such an important decision that it ought to be taken only at the level of Secretary of State or equivalent. That is an entirely reasonable suggestion and is looser than the intercept provision which applies to only four Secretaries of State.