Justice and Security Bill [HL]

Lord Rosser Excerpts

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.

[Lord Campbell-Savours]

My Lords, this amendment should be of great interest to present and former members of the committee because there is a problem in the legislation which they should be well aware of. As I read it, Clause 3(4) is a catch-all, whereby if one cannot block the provision of information to the committee under paragraph 3(4) of Schedule 1, one can block the information under the catch-all provision of it being,

“prejudicial to the continued discharge of the functions”,

of the services. This is a catch-all provision whereby the Prime Minister might want to block certain information which does not necessarily meet the criterion set down under sensitive information in paragraph 4 of Schedule 1. To my mind, the only defence for the committee under such arbitrary arrangements is the extent to which the committee is consulted. Clause 3(4) states:

“The ISC must exclude any matter from any report to Parliament if the Prime Minister, after consultation with the ISC”.

What form would that consultation take in the event that he wished to exercise a veto on the provision of that information under what I call this catch-all provision? I suppose that, in theory, it could be looked at the other way. The Prime Minister might, in certain circumstances, not wish to be tied down to the detailed criterion in the sensitive information provisions of Schedule 1. He might want to release information that was sensitive but would not be prejudicial to the services carrying out their functions. It will be interesting to see what the Minister says in response.