Justice and Security Bill [HL]

Debate between Lord King of Bridgwater and Lord Rosser

Wednesday 11th July 2012 Lords Chamber

[Lord King of Bridgwater]

I agree with my noble friend Lord Lothian. I do not have it in front of me, but I do not recall that “draft” ever appeared in the original 1994 Act that set up the Intelligence and Security Committee. For some reason it has crept into the drafting; he is absolutely right. It seems to me that subsection (7) then becomes redundant.

[Lord Rosser]

My Lords, we support the amendments tabled by the noble Lord, Lord Butler of Brockwell. Frankly, I cannot add anything to the points that have been made in support of them. The wording in the Bill does not do a great deal to show a degree of independence for the Intelligence and Security Committee from the Executive. That independence would be enhanced if the Government accepted the amendments.

Amendment 36 is basically a probing amendment. Its purpose is to seek to change the definition of the basis on which the Prime Minister may redact information from an ISC report. The Bill states that the Prime Minister may do so if the information is,

“prejudicial to the continued discharge of the functions of the Security Service”

and the other organisations mentioned. The amendment would provide that information should not be disclosed in the interests of national security or on the basis that the ISC report contained sensitive information as defined in Schedule 1(4). The reference in Schedule 1(4) to “sensitive information” refers to the basis on which a Minister of the Crown may decide under paragraph (1)(b) or (2)(b) that information should not be disclosed if the Minister considers that it is sensitive information, which is then as defined in Schedule 1(4), or information that, in the interests of national security, should not be disclosed to the Intelligence and Security Committee.

The criterion proposed in the Bill is either the same or basically the same as in the Intelligence Services Act 1994. The reason why this is a probing amendment is to try to find out why it is felt necessary to have what appears to be a fairly wide definition and not in fact to have a definition that would bring it in line with the criteria permitting the Government to veto the disclosure of certain information to the Intelligence and Security Committee, as set out in Schedule 1(4), which defines sensitive information that is referred to in Schedule 1(3)(a) and relates to the circumstances under which a Minister of the Crown may decide that information should not be disclosed.

Why does the definition need to be broader for the reports to Parliament from the Intelligence and Security Committee than it does for the disclosure of information to the Intelligence and Security Committee? It is not clear why there is that difference or indeed what its significance is. What, for example, would my amendment not include that would be included in the wording in the Bill? As I say, that appears to be a wider definition, and I am hopeful that the Minister will be able to explain why there is that difference in definitions and whether, in the Government’s view, what they are proposing in Clause 3(4) is wider than the definition of sensitive information that appears in Schedule 1(4) and relates to the definition that would be applied and that a Minister of the Crown would have to take into consideration if he was going to decline to agree that information should be released to the Intelligence and Security Committee.

In the amendment there is a further addition beyond the sensitive information; namely, that information should not be disclosed in the interests of national security.

Justice and Security Bill [HL]

Debate between Lord King of Bridgwater and Lord Rosser

Monday 9th July 2012 Lords Chamber

[Lord King of Bridgwater]

I am grateful to the noble Lord. He has cheered up the noble Lord, Lord Lamont, quite considerably if that is right because he was telling me of the committee session he must attend in the Recess. I simply say that I support this. I do not know quite what the first part of the amendment means or whether the Minister will explain it. I am not clear what the financial benefits are for Members of the House of Commons when they are on Select Committees. We asked for equivalent arrangements for the ISC. Perhaps somebody will clarify that point.

[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.

--- Later in debate ---

[Lord King of Bridgwater]

I am getting very flattered by the noble Lord, Lord Campbell-Savours. I think that there is a real problem in this area and I do not quite understand the amendments tabled here. I certainly do not understand this business in the Bill about what would be before a departmental Select Committee,

“on grounds that were not limited to national security”.

That is the point that the noble Lord, Lord Thomas of Gresford, made and I hope that the Minister will clarify that point to an extent.

I think that there is a point, though it may seem a bit extreme, in what the noble Lord, Lord Campbell-Savours, said. It may strike fear through all proper government structures that the suggestion should be left to the chairman of the committee. I think it is true that it is not just the chairman of the committee: initially, it is the heads of the agencies: they are the people who decide whether they wish to withhold information, then they have to make their case to the chairman.

This takes us into quite interesting country, because one of the arguments used in the past is, to whom are the heads of the agencies responsible? The answer is that they are responsible to the Prime Minister. That raises the question: how does a busy Prime Minister with a thousand problems on his plate really take direct ministerial involvement? One interesting study we did looked at the proposal—one or two members of the committee got quite interested in it—that there should be an intermediate Minister appointed who would have overall responsibility for the agencies at Minister of State level, answering to the Prime Minister. We thought that this was quite a good idea until we discovered that that was exactly what had happened in Germany. I do not remember the name of the Minister, but he became an intermediate and became carried away with his role in intelligence matters—he became a sort of super-M. At one stage he was flying to Iran and other places by private jet trying to negotiate the release of certain German hostages and other people. It had gone completely to his head and people suddenly realised that nobody had much control. One or two senior members of Her Majesty’s Civil Service pointed out the dangers of this role to the Prime Minister—one or two of them may be sitting here—saying that there were occasions when a previous Prime Minister thought that the intelligence agencies were out of control and trying to undermine him. Was it a good idea to pass this off to a junior Minister? The Prime Minister had better keep overall responsibility for it.

Having said all that, I think that there is an argument, for Ministers who are not—if it is the Prime Minister—entirely dependent on official advice on this, that a properly constituted, effective chairman will bear a heavy responsibility if he overrides the head of an agency and says that this information should be made public and then finds that it subsequently proves to be extremely damaging to national security. That would be enormously damaging not just to him or her personally, but, obviously, to the whole role of the ISC. On those grounds, it would not be an irresponsible chairman in this role; it would be somebody who, because of the involvement he has had already, over a period, with the heads of the agencies, could probably be expected to take a more informed and responsible response to representations made by the heads of the agencies.

[Lord Rosser]

My Lords, I shall be brief, as much of the subject matter has been covered already. I wish to speak to Amendments 21 and 23. The purpose of those two amendments is to ensure that the power to veto disclosure of departmental information can be exercised only by the Secretary of State and not by a Minister of the Crown. Paragraph 3(1)(b) of Schedule 1 requires that only the Secretary of State can decide that information required by the Intelligence and Security Committee can be withheld by the agencies. Moving down to paragraph 3(2)(b), in relation to other government departments, it appears that the Minister of the Crown can make that decision, which would appear to indicate, subject to the Minister’s response, that such a key decision can or would be made at a more junior level than Secretary of State in relation to disclosure of information in respect of a government department. If that is the case, no indication is given about a reason for that decision. Bearing in mind that withholding required information could thwart the Intelligence and Security Committee in its work to meet its statutory remit of strength and oversight of the intelligence and security activities of the Government, such a decision should be taken only at the highest ministerial and accountable level within the department concerned, namely, the Secretary of State. These amendments provide for that.