Justice and Security Bill [HL]

Debate between Lord King of Bridgwater and Baroness Taylor of Bolton

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.