Justice and Security Bill [HL]

Lord Taylor of Holbeach Excerpts

Monday 19th November 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, this has been an extremely interesting debate, as was the debate we had in Committee. I am at something of a disadvantage—or perhaps it is an advantage—as the Minister and I are the only speakers in this debate who have not been members or indeed esteemed chairs of the ISC. I think I heard the noble Lord, Lord King of Bridgwater, say, “Good”—I hope it is.

I support the amendments tabled by my noble friend Lord Campbell-Savours, and I will explain the reasons why. I join the noble Lord, Lord King of Bridgwater, in paying tribute to my noble friend Lord Campbell-Savours because the way that he has brought forward this argument today does the House a great service.

In Committee, many Members of your Lordships’ House, who have had a lifetime’s experience of these matters, proposed a number of different ideas for reform of the Intelligence and Security Committee, ranging from the designation of parliamentary privilege through to issues such as public hearings. What was striking in that debate—and is again today—was that there was an overwhelming consensus on all sides of the House that the Bill could be significantly bolder. It has been evident throughout the debate that there is some dissatisfaction with the Government’s approach. Your Lordships’ House does not feel that what is before it today adequately addresses some of the concerns raised in Committee.

We fully support the Government’s stated aim, which is, as the noble and learned Lord, Lord Wallace of Tankerness, said at Second Reading,

“improved parliamentary and independent oversight of the security and intelligence agencies”.—[Official Report, 19/6/12; col. 1661.]

What we have in Part 1 of the Bill, as illustrated by this and the next group of amendments, is a missed opportunity. In Committee, we discussed a range of different options for strengthening the independence of the ISC beyond what is proposed in the Bill. What emerged were two different blueprints for achieving pretty much the same aims and objectives. First, the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, two distinguished members of the committee, proposed an arrangement along the lines of existing parliamentary committees established by statute, such as the Ecclesiastical Committee, the Public Accounts Committee, the Speaker’s Committee for the Independent Parliamentary Standards Authority, and the House of Commons Commission. The committee as envisaged would have the independence and powers afforded by being a creature of Parliament rather than the Executive, but would retain the security of checks and balances provided for in statute. The second way forward, proposed by my noble friend Lord Campbell-Savours, seeks to establish the Intelligence and Security Committee as a fully fledged Select Committee of Parliament, having all the privileges attached to that arrangement, but with safeguards or restrictions provided through resolutions of Parliament rather than statute. I think my noble friend Lord Campbell-Savours used the phrase “hermetically sealed”.

However, both these blueprints are seeking to achieve the same end point. They are both seeking a concept of the ISC as a creature of Parliament rather than the Executive; independence that is recognised by the public but still guarantees the absolute security of sensitive information disclosed to the committee; and maintaining the good relations and trust that have been established with the agencies. It seems that the choice between the two concepts is one less of principle and more of practicality: which proposal will best achieve this end? My noble friend Lord Campbell-Savours and the noble Lord, Lord Butler of Brockwell, have both confirmed that they are seeking to achieve the same ends.

As my noble friend Lord Campbell-Savours has already stated, chief among the advantages gained by being a parliamentary Select Committee is parliamentary privilege. This would grant the ISC, among other things, protection of members and witnesses by parliamentary privilege, which encourages free disclosure within the secure confines of the committee; the power to take evidence under oath; and the power to hold witnesses in contempt for deliberately misleading the committee.

I have listened carefully to my noble friend’s arguments about the designation of parliamentary privilege, and in Committee we debated and supported amendments moved by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, to grant the ISC parliamentary privilege by amending the Bill of Rights. Indeed, I have attached my name to similar amendments in the next group, because I fully support the ISC obtaining parliamentary privilege. However, if, as my noble friend Lord Campbell-Savours, has compellingly argued today, there are serious problems with seeking to designate privilege in this way, it would appear that a Select Committee arrangement is the only option that would satisfactorily guarantee the committee these powers. The notion that privilege, if gained in the way that has been proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, may be struck down by the courts, which I am absolutely clear is not what they are seeking, is hugely concerning. If witnesses and members of the committee had given evidence to that committee under the assumption that they had immunity, only later to have that immunity revoked, it would have huge implications for the work of the committee. The absolute and total guarantee of parliamentary privilege is therefore a compelling reason to support the ISC’s move to full Select Committee status.

The question then rests on whether a Select Committee arrangement could be relied on to act in a way that absolutely guaranteed, without qualification, the protection of our national security. The Opposition would support the establishment of the ISC as a Select Committee only where such a guarantee could be satisfied. Under no circumstances should any change in the structure of the ISC result in sensitive information being disclosed that could put at risk our national security or the safety of intelligence sources or operations. Restrictions or safeguards on the committee’s powers could include a number of areas—we have heard of some of them today—and others that may be agreed by Parliament. For example, the Prime Minister could veto the publication of material by the committee for reasons of national security; proceedings of the committee could be closed to the public unless agreed by the Executive and/or provided for under its own terms of reference, such as annual public hearings of the heads of the agencies; there could be an executive prerogative to instruct the Leader of the House to dissolve the committee or to remove one of its members by a resolution of Parliament; or there could be a veto or agreement of a nomination to the committee. I use those just as examples— there will be others that I am sure will occur to your Lordships, particularly those who have been members of the ISC—but providing for such safeguards in legislation, as in the Bill before us, is perhaps the clearest way of ensuring that they are met.

In Committee, the noble Marquess, Lord Lothian, argued against a Select Committee structure on the basis that it would necessitate public evidence sessions. He rightly said that,

“there are many occasions when to attempt to take evidence in public would create an even less high regard for the committee that it maybe has at the moment, because questions would be answered by the agency heads with the words, ‘We cannot answer that question’”.—[Official Report, 9/7/12; col. 923.]

I completely agree with the noble Marquess on that point. In the majority of cases, the committee must sit in private. To do otherwise would not only damage the reputation of the committee, as I have said, but, most seriously, undermine its core function of effective oversight over the intelligence services. However, as has been argued by my noble friend, the mechanism by which Select Committee powers and terms of reference are constituted are sufficiently flexible conceivably to provide for any one of those concerns.

I understand from my noble friend Lord Campbell-Savours that he has it on the authority of clerks of both this House and the other place that Parliament may, either through the committee’s order of reference or by instruction, specify the terms under which the committee may sit, may take evidence and report, including requiring the consent of another body including the Government. Indeed, there are already known precedents for such restrictions. The Defence Select Committee already holds evidence sessions in private in order to hear classified and national security-sensitive information. For its recent report on maritime surveillance, published in September this year, it held part of its first evidence session in private. As my noble friend has indicated, there have been instances in the past where the House has resolved that a committee report to the Prime Minister and it may even be precluded from publishing certain material on the grounds of national security. Given those assurances, a Select Committee arrangement would both guarantee the ISC parliamentary privilege and ensure the necessary safeguards for our national security.

My understanding is that, if the House were today to pass my noble friend’s amendment and the Government accepted the will of your Lordships’ House, the Government could seek to withdraw Clauses 1 to 4 of the Bill in the Commons and then issue a statement that they would seek agreement through a resolution of the House to establish the ISC as a Select Committee of Parliament. If the Government and the Opposition were unable to reach agreement over the terms of such a resolution—including all the necessary safeguards that I have referred to and others—then presumably the ISC would continue under its present arrangements.

We have heard a compelling argument from my noble friend Lord Campbell-Savours that it is not possible to designate a body of parliamentary privilege such as the ISC simply by amending the Bill of Rights or by other statutory means. If this is indeed correct, it is undeniably a compelling reason for pursuing the Select Committee route rather than the statutory one. However, even if it were possible to do so, there is a further reason why we believe that the Select Committee should be the model that we aim for. That reason was expressed by the noble Lord, Lord Deben. I am sorry that he is not here today as his contribution in Committee was valuable. In Committee, the noble Lord, Lord Deben, was supported by the noble Lord, Lord King, and the noble Baroness, Lady Manningham-Buller, when he asked:

“Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special”?—[Official Report, 9/7/12; col. 926.]

This is more than just a cosmetic change. The parliamentary Select Committee structure is one widely recognised as being capable of serious and robust scrutiny. It is a concept that is familiar to the public and one that they understand as being independent. While I agree with the noble Lord, Lord King of Bridgwater, about public confidence in the committee I do not think that most of the public know of the existence of the ISC, whereas they are aware of the structure and work of Select Committees. Even if it were possible to guarantee the committee watertight parliamentary privilege, as I now seriously doubt, it would still ultimately be a hybrid committee. A halfway house would undeniably be better than what we have in the Bill but it would still be a peculiar body. If we are to go to all the effort of dressing up the ISC to look and sound like a parliamentary Select Committee, although with question marks over parliamentary privilege, why not simply have a Select Committee to do the job fully?

[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.

[Lord Campbell-Savours]

If Amendment 1 were to be carried, there would be discussions in the House of Commons. It would probably come back with a decision and an announcement to the House that it intended to set up a committee by way of parliamentary resolutions, so none of those issues would arise.

[Lord Taylor of Holbeach]

I hope that I can reassure my noble friend and the noble Lord that I intend to use my eloquence so that the House is not presented with this issue of confusion. That must be my task, and I will pray in aid the words of the noble Lord, Lord Butler of Brockwell. I hope that the House will not mind if I quote him at length. In Committee, he said:

“I think we all agree that the ultimate purpose is that the public should have confidence in the committee’s scrutiny of the intelligence services. However, it was clear from the speech of the noble Lord, Lord Campbell-Savours, that if this were to be a Select Committee, it would have to be hedged around by a very large number of parliamentary resolutions, and that would have the same effect as the constraints that are written into the Bill. The question is: would that make it more convincing if it were a Select Committee when it was a Select Committee unlike any other because it would be so inhibited by those restraints?

They say that something which looks like a duck and quacks like a duck can be regarded as being a duck, but this would not look like or quack like a Select Committee; it would be something completely separate”.—[Official Report, 9/7/12; cols. 933-34.]

I hope noble Lords understand why I wished to quote the noble Lord; it was such a brilliant précis of the position.

I can see much force in that argument. It was reinforced today by the noble Lord and by the former chairman of the ISC, the noble Baroness, Lady Taylor of Bolton, and my noble friend Lord King of Bridgwater.

The noble Lord, Lord Campbell-Savours, raised the question of parliamentary privilege. It may be possible to give the committee bespoke statutory immunities that would provide it with protections which would replicate aspects of privilege. The noble Lord said that that might well be what the Government are proposing, but it would not be the same as legislating to provide the same privileges for the committee. If the ISC were given privilege by statute, as the noble Lord, Lord Campbell-Savours, said, that might encourage courts to rule on proceedings in Parliament. Courts already rule on this question. The Supreme Court judgment in the recent Regina v Chater case is an example of that. For instance, it might be possible to give protection for witnesses before the ISC so that the evidence they give to the ISC in good faith cannot be used against them in criminal, civil or disciplinary proceedings. The Government are considering whether that is a viable approach and whether it is the best approach to tackle this issue. We may bring forward amendments to deal with this issue at a later date.

The addition of the “of Parliament” amendment, proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian—accepted in principle by the Government and to which we will come presently—would have a number of consequences. One possible consequence is that the ISC would have the power to take evidence on oath. This, in turn, raises the possibility that those who intentionally mislead the committee, while giving evidence under oath, would be subject to the same sort of sanctions which might apply in similar circumstances to a witness before a Select Committee. If, on further analysis, that is not a consequence of that amendment, we would be content to look at whether there is the need for a provision in the Bill to make clear that the ISC may take evidence on oath. I hope that the noble Lord, Lord Butler of Brockwell, will be happy not to move his amendment in the light of what I have described of the Government’s position on these matters of privilege.

I turn to Amendment 30, which again is tabled by the noble Lord, Lord Campbell-Savours, and relates to the role of the Intelligence Services Commissioner.

[Lord Campbell-Savours]

That is an error on my behalf. I tabled it over the weekend when we were not here. I will not move that amendment.

[Lord Taylor of Holbeach]

My Lords, I apologise for that and will move on to deal with the substantive issue. The work of the commissioner is a different role from that of the committee. Of course, it complements it. I hope that we will be able to use our ability to enhance it and ensure that it continues to meet our needs. The Government believe in strengthening oversight and, clearly, the commissioner has a role in that.

On the basis of the arguments that I have presented, I hope that the noble Lord will withdraw his amendment.

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[Baroness Smith of Basildon]

I do not know whether that is better or worse. It is disappointing that the Government have not been able to reach a conclusion, given the overwhelming desire on all sides of the House to get this right and to ensure that the committee has the privilege that it will need to do its job properly. I remain concerned about the process that is being used. I wait with interest to hear what the noble Lord will say about the consequences of pursuing parliamentary privilege in this way. Without assurances that the committee will have full privilege, I will have serious reservations about the viability of the proposed amendments, despite the fact that I fully support the aims behind them.

[Lord Taylor of Holbeach]

My Lords, I was tempted to make a relatively short summary for this debate, but the amendments tabled by the noble Lord, Lord Butler, give me the chance to elaborate on certain matters to which other noble Lords alluded. As we know, the proposal of the Government in the Bill is to change the ISC’s status. It will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The two amendments in this group concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. The Government’s intention is that the ISC will be a committee of Parliament created by statute. It will not be a classic Select Committee that covers departmental bodies, but a statutory committee of Parliament.

The Government are in principle supportive of the amendments tabled by the noble Lord, Lord Butler, to change the name of the committee to the Intelligence and Security Committee of Parliament. While we are not in a position to support the amendment at this stage, we will be in a position to do so later. I hope that in what I say I will give the House reassurance that the time since July has not been totally wasted, and that the Government are quite a long way down the road of sorting out the particular issues to which noble Lords quite rightly drew the attention of the House. If the ISC becomes a committee of Parliament, it may even be necessary to make some consequential amendments. The amendment may bring the ISC within the ambit of the Freedom of Information Act 2000 by making it a part of the House of Commons and the House of Lords for the purposes of the Act, which was alluded to by the noble Lord, Lord Campbell-Savours. It may change the ISC’s status under the Data Protection Act 1998, as Section 63A of that Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC’s data-processing activities.

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[Lord Campbell-Savours]

The noble Lord has repeatedly said, “We are considering”, and “It might be possible”. There is an element of doubt. It may be possible, but if it is not possible, are they then ruling out Select Committee status?

[Lord Taylor of Holbeach]

My Lords, I have every confidence that a solution to the issues and challenges of providing the necessary protection will be found. However, I was not intending to use this debate to present those conclusions to Parliament. I am sure the noble Lord will look forward with interest to hearing them in due course.

I thank the noble Lord, Lord Butler of Brockwell, for tabling these amendments. I hope he will feel able to withdraw this amendment in the light of my reassurances on progress.

[Lord Butler of Brockwell]

My Lords, I am grateful to the Minister for his reply and to other noble Lords who have spoken in the debate. I wish to make two points. First, the noble Lord, Lord Campbell-Savours, is being a little unfair in describing the Intelligence and Security Committee, even in its present form, as detached from Parliament. We do not feel detached from Parliament and, certainly in the circumstances described by the Minister, when we are more closely appointed by and report to Parliament, we will be even less detached. So there is some point in adding the words “of Parliament”.

Secondly, the Minister raised a point about the certificate of exemption under the Freedom of Information Act. He said that a Minister’s decision can be challenged at a tribunal whereas, on his understanding, the Speaker’s certificate cannot, and so the committee would be safer in the hands of the Speaker than in the hands of the Minister. I had hoped, when he raised this point in the previous debate, that a lawyer would intervene and advise us. My understanding is that the Executive always has the last say on this. The Minister is quite right that a tribunal can overrule a Minister but, in the end, a Minister can overrule a tribunal. An example which the House will remember is the risk register on the Health Bill where, in the end, the Minister overruled the tribunal. My understanding is that a Minister always has the last word. I pause for a moment in case there is a lawyer in the House who can correct me but, if not, I offer that as my belief.

On the basis of what the Minister said and in the expectation that a solution can be found to providing the protections that the Intelligence and Security Committee needs other than by means of conferring parliamentary privilege, I am happy to withdraw the amendment.

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[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.

[Lord Taylor of Holbeach]

My Lords, we turn now to the remuneration of the ISC chairmanship. I have to say that the loyalty which members of that committee have shown to the chairmen and the work they undertake reflects the commitment that those who have held that office have demonstrated to the security services. I note the widespread view that this position should be properly remunerated in some way or another, and the Government support that view. There is no real consistency in the way that Select Committees are treated and no absolute rule that all Select Committee chairmen will be paid. In the Commons at present, not all Select Committee chairman receive a salary for those functions. In the Lords, there is only one such salaried chair, the chairman of the EU Select Committee, who is paid a salary—not by virtue of holding that position but by virtue of also being the Principal Deputy Chairman of Committees.

--- Later in debate ---

[Lord Gilbert]

I apologise for interrupting the Minister. Have the Government given any serious consideration to the possibility that the chairman of this committee, like the chairman of the PAC, should always be a member of the Opposition?

[Lord Taylor of Holbeach]

I have indicated to noble Lords that the chairman of this committee will actually be elected by the members of the committee itself, from within the membership of the committee. It is a matter for the members who they choose, in the customary manner. The chairman does not have to be a member of the Opposition or a member of the Government; he has to command the confidence of the members of the committee, who vote for the position.

[Lord Gilbert]

We have a long-standing convention that the chairman of the PAC is a member of the Opposition. I think that is thoroughly healthy and am just trying to find out—or tease out of the Minister—whether the Government have a view one way or another whether it would be appropriate to have a similar arrangement for this committee.

[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.

[Lord Butler of Brockwell]

My Lords, on the basis that Members of your Lordships’ House receive no remuneration for being chairs of Select Committees, I am happy to have removed any incentive to run for this position. On the basis that it would be within the power of the House of Commons to move a resolution referring this to IPSA, and that the Government would give a favourable recommendation and support that matter, I am happy to withdraw the amendment.

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[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.

[Lord Taylor of Holbeach]

My Lords, I have a very full response to give to this amendment, but we have had a very full debate. It has been a very useful debate. I know that it is customary for Ministers to thank noble Lords who have presented amendments, but I thank my noble friends because they have brought to the Report stage an interesting idea about the relationship between the ISC, Parliament and the Prime Minister. Having said that, with even the noble Lord, Lord Campbell-Savours, having some doubts about the efficacy of this amendment, I am at one with the noble Lords, Lord Reid and Lord Gilbert, and my noble friend Lord King in seeing the great difficulties that this election might present. It was interesting to listen to the noble Lord, Lord Reid, analysing the motives that people might have for seeking to be rejected by the Prime Minister as being a suitable candidate. I have little doubt that some people would seek to exploit that situation.

I shall reiterate the Government’s position on this matter. This committee will be elected by Parliament and nominations will be provided by the Government. Parliament will be the final arbiter of who sits on the committee. The Government propose that the chairman of the committee will be elected by the members of the committee. That represents a sufficiently practical solution to the particular task that this committee undertakes. We have had some speculation about whether the chairman of the committee should be drawn from the Opposition. I have given the Government’s position, which is that it is for the committee to decide who should be the chairman of the committee. I do not believe that it can be done by an election by another place or by this House electing the chairman. For that reason, I ask my noble friend to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I am extremely grateful to all noble Lords who have contributed to the debate. I think I am probably the only person who has not served on the ISC. I think all the other speakers have served on it, so I am probably slightly blind-sided on some of this. The noble Lord, Lord Reid of Cardowan, said that the problem is that it would exclude Members of the House of Lords. It may possibly do so, but not necessarily. Secondly, he said that it would prevent the chairmanship going to a member of the Opposition. Again, it may possibly do so, but not necessarily. Both he and the noble Lord, Lord Gilbert, talked about the political fallout. Yes, but this is a very important committee, and it will be even more significant when we pass the rest of the provisions of the Bill. If the price of that is a little political disturbance, I do not think that is necessarily a bad thing. I understand his fourth argument, which was about political campaigning. At this end of the Palace, the arrangements for electing chairmen of Select Committees have gone pretty well. They have been shared out and fought over, and both parties have ended up with some chairmanships, but not all of them.

The issues are answerable. I am not saying that they are not challenging. I say to the noble Lord, Lord Martin of Springburn—

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[Baroness Smith of Basildon]

My Lords, we have had an interesting debate, and Amendments 9 and 11, in my name and that of my noble friend Lord Rosser, seem to have gained a significant degree of support from around your Lordships’ House. In response to the concern of the noble Lord, Lord King, about the televising of proceedings, I suspect that if this debate were being televised at 4.30 am it would not get a great deal of viewership. Having said that, we will probably now receive letters from those who watch TV at 4.30 am.

Amendment 9 would provide the committee with a remit to hold pre-appointment hearings for the heads of agencies. The noble Baroness, Lady Hamwee, spotted my tabling of her amendment from Committee, when she convinced me that having a permissive amendment was a good way forward. She has now tabled a further amendment that would make the proposed hearings compulsory, but I do not think that that has found favour with your Lordships. We are very much in favour of pre-appointment hearings by Select Committees; indeed, the Labour Government in 2007 pioneered them. This Government have suggested that they are equally keen on pre-appointment hearings. The coalition agreement contains a specific plan to strengthen the powers of Select Committees to scrutinise major public appointments as part of improving government transparency. This seems to be one of those areas that would benefit from such hearings.

I take on board the wisdom, as usual, of the noble Lord, Lord Reid, on these matters and the concerns he raised. However, as to what he said about there being a veto on information, the committee would use its customary wisdom in passing on advice or information to the Prime Minister as it saw fit.

As regards Amendment 11 on annual public hearings, I must admit that I had not envisaged many separate hearings but perhaps one or two hearings a year at which heads of agencies could be questioned. There is an issue of public confidence, and the noble Baroness, Lady Manningham-Buller did a huge amount during her time as head of MI6 to open up the so-called secret services and increase public understanding of and trust in what the agency and other agencies do. She, more than anyone, understood how important it was that the public needs to have confidence in those at the head of organisations that have to, by necessity, operate outside the public view.

I also do not disagree with those who said in Committee or in this debate that the credibility of the ISC would be undermined by farcical staged hearings, as we have seen on TV elsewhere when the only answer to questions has been, “I’m sorry I can’t answer that or provide that information”. Obviously, we would want any hearings to be genuine, give confidence to the public and not have a block that would provide a lack of confidence.

As has been pointed out in Committee, the ISC already has the power to sit in public if it so chooses. Amendment 12, which proposes that there be a presumption that the ISC would meet in public unless it were to meet in private, could create the kind of difficulties that have already been outlined. A presumption that the ISC would meet in public would be difficult for that committee to manage, but hearings taking place in public from time to time are useful and have a large part to play. We have to recognise the sensitive nature of the committee’s work and information that cannot be made public.

When considering the amendments and the support for them, I hope that the Minister will accept Amendment 9. He has heard that it has significant support from around the House. If he is unable to accept that amendment, I will consider testing the view of the House.

[Lord Taylor of Holbeach]

My Lords, we have an opportunity to consider this group of five amendments. Although Amendments 9 and 10 are similar, the noble Baroness has pointed out the difference between them. Under Amendment 9, the ISC “may” consider the proposed appointment of individuals to the posts of director-general of the Security Service, the chief of the Secret Intelligence Service, the director of GCHQ and other such persons as the Prime Minister may direct. The committee would do this by questioning the prospective appointee at one of its meetings. Under Amendment 10, the ISC “must” consider the proposed appointments.

Pre-appointment hearings are a relatively new phenomenon in the United Kingdom. Since 2008, Select Committees have conducted pre-appointment hearings for a list of posts. There is guidance published by the Cabinet Office on the process followed for such pre-appointment hearings, which includes the list of posts. In general, this process has been a welcome development and gives departmental Select Committees a role in questioning proposed appointees. However, the important thing to note about the list of pre-appointment posts is that the posts concern public bodies—for example, the chairs of Ofcom and the Social Security Advisory Committee. The pre-appointments process has never been used concerning the appointment of civil servants. The heads of the intelligence and security agencies are civil servants at Permanent-Secretary level, and the recruitment process is therefore expected to follow the process for the appointment of civil servants of such seniority.

Noble Lords may find it helpful if I provide some detail on the present process for appointing the agency heads and their status. The agencies are excluded from the provisions of Part 1 of the Constitutional Reform and Governance Act 2010, as my noble friend Lady Hamwee mentioned. That legislation places the management of most of the Civil Service of the state on a statutory footing. Exclusion from the provisions of that Act merely reflects the specific nature of the agencies’ operations. The agencies’ staff, including their heads, are and always have been part of the Civil Service of the state. This is clear from the Act. If it were not so, the specific exemption for the agencies in Section 1(2) of that Act would not be necessary. Staff of the agencies are not, however, part of what is generally referred to as “the Civil Service”, with a capital C and a capital S—that is, the Home Civil Service—nor are they part of Her Majesty’s Diplomatic Service. They form a separate category of civil servants, but civil servants they are. They are also “Crown servants”, but that is a wider term, covering, for example, members of Her Majesty’s Armed Forces and non-civilians in the service of the Crown.

While the agencies are not bound by the Civil Service recruitment principles, I can reassure noble Lords that they do, in practice, follow the spirit of the principles, and the Civil Service Commission is expected to be involved in the process. Pre-appointment scrutiny by Parliament is not appropriate given that these roles are Permanent-Secretary level roles, and in practice those who fill them will be recruited by a process involving a Civil Service commissioner to ensure that the appointment is made on merit. In particular, I see no reason why agency heads should be treated differently from any other Permanent Secretary appointment.

Certainly, the roles that the agency heads play are very important and the appointments must be the right ones, but all Permanent Secretaries in the UK Government play very important roles. There is thus no reason for singling out this particular group for special treatment. The fact that all these posts are posts within the Civil Service of the state, serving successive Administrations, means that the pre-appointment process is not appropriate.

I hope I have given the noble Lord and the noble Baroness reassurance that the process which presently exists—

[Lord Reid of Cardowan]

Unfortunately, the noble Lord has given me anything but reassurance. To argue partly on bureaucratic grounds, partly on the grounds of process and partly on the one substantive contention that there is no difference between a Permanent Secretary and the head of MI5, MI6 or GCHQ, is to me entirely unpersuasive. I have known, I think, 14 Permanent Secretaries in my relatively brief ministerial career, all of whom were excellent and very able Permanent Secretaries. They fulfilled a role, had a function and an importance in the life of this nation which was not the same as that of the heads of MI5, MI6 or GCHQ, on whom the very security of the nation depends. I hope that the Government will at least say that they will go away and reflect on this matter because, if there is a political will, all the apparent obstacles to procedure can be overcome. However, if the Government are saying that there are insurmountable bureaucratic obstacles to the ISC carrying out pre-appointment interviews, which are carried out in many countries of the world, I am afraid that they will be seen to be hiding behind process and lacking a real understanding of how substantial these positions are.

[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.

[Lord Reid of Cardowan]

I am very grateful to the Minister for giving way. He devoted almost all his argument against my noble friend Lord Campbell-Savours, to stressing the uniqueness of these particular positions and organisations and explaining why, because of that uniqueness, you could not involve a Select Committee, as was being suggested, and that his argument had many benefits. Now, in order to defend the status quo, he is stressing not the uniqueness of these posts but their similarity with other departments and departmental heads. However, this is not a matter of what we have done in the past but of what we might do in the future. If the Government had the will to see the benefits in the suggestions of the noble Lord, Lord King, and in what I have said, a way could be found in the future to allow the ISC, at least in a permissive sense, to interview appointees prior to final ratification. That would have enormous benefits for everyone involved in the process. The uniqueness of these positions has been recognised in a previous debate. However, that is now apparently being put aside and they are being compared with other appointments in the Civil Service.

[Lord Taylor of Holbeach]

I do not wish to prevent the noble Lord intervening but we are on Report. Therefore, I remind noble Lords—

[Lord Foulkes of Cumnock]

I agree with the Minister, who I think has made a good case, and disagree with my noble friend Lord Reid of Cardowan. Members of the Joint Committee on National Security Strategy have already had a report that the line management of the heads of the various intelligence and security services is the responsibility of the Permanent Secretary. That has been made absolutely clear to us. We raised some concerns about that point and I am sure that the noble Baroness, Lady Manningham-Buller, will comment on it. If the Permanent Secretary has that line management responsibility, it would seem strange if these post holders were considered for appointment by a committee rather than by the procedure that the Minister has described. I know that my noble friend on the Front Bench is a bit irritated at what I have said, but I am glad to say that on this side of the House we have the freedom to say what we think.

[Lord Taylor of Holbeach]

Although I am encouraged by what the noble Lord had to say, I should remind noble Lords that we are on Report and it would probably be as well if I was allowed to finish what I was saying. The key thing is that the coalition agreement expressly says that we want to strengthen the role of committees in scrutinising public appointments. The Government are committed to doing that. However, the coalition agreement does not refer to Civil Service appointments. The pre-appointment scrutiny process, which we have in place for public appointments, is not the same as appointments to the Civil Service. Therefore, although the Government have made important progress in meeting the commitment on public appointments, that is not relevant to these appointments if they are Civil Service appointments.

I know that the roles that the agency heads play are very important and the appointments must be right. That is why I hope that I have given the noble Baroness and the noble Lord the reassurance that the process that presently exists for appointing the heads of these agencies is appropriate to the nature of the posts. It would not be appropriate to adopt the pre-appointment process that exists for posts in public bodies. On that basis, I hope that the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and my noble friends Lady Hamwee and Lord Marks will respectively see fit to withdraw their amendments.

I now address Amendments 11 and 12 which concern the ISC holding an annual hearing with the agency heads and the Secretary of State giving evidence before the committee in public. I can appreciate the intention behind the amendment but I have a number of concerns about the idea of creating a duty to hold annual public hearings. As noble Lords will know, The Governance of Britain Green Paper in 2007 made a series of reform proposals aimed at bringing the ISC as far as possible into line with other Select Committees. One of those proposals was for some hearings of the ISC to be structured to allow unclassified evidence to be heard in open session. Those sessions did not subsequently happen. Building on this, the Justice and Security Green Paper noted that while the ISC’s meetings will still have to take place, as a rule, in private, both the Government and the committee were committed to the concept of public evidence sessions where they can be held without compromising national security or the safety of individuals.

The noble Baroness, Lady Smith, spoke powerfully in Committee on the issue of public hearings and she has done so again today. We fully agree that they can be valuable but she noted that public hearings should never be automatic for the ISC but argued that they should become more routine as public confidence is taken into account. We fully agree that public hearings may improve public confidence in the ISC and its work.

The Bill does not need a specific provision for this; the existing ISC, created by the Intelligence Services Act 1994, has power enough to determine its own procedures and that is sufficient for its purposes—the ISC is provided for in the Bill. In that way, there is actually very little difference between the position that we take on the Bill and the position proposed by the noble Baroness. However, there are significant practical issues that have to be addressed before public evidence sessions can take place. I am sure that noble Lords will appreciate introducing public evidence sessions for a committee whose work is mostly concerned with sensitive and highly classified information. That will be challenging.

The Government remain committed to making public hearings work better in practice, and are currently in discussions with the committee about how to do so—for instance, on issues such as appropriate subject matter, timing and having appropriate safeguards against unauthorised disclosure of sensitive information. In Committee, my noble friend Lord Lothian, a current member of the ISC, made the valuable point that public hearings would be counter-productive so far as public confidence in the committee is concerned. If either the majority of the questions posed are met with a response, “I cannot answer that”, or the subject matter for the hearing is anodyne and the process completely rehearsed, I am sure that noble Lords will feel that the process has not been worth while. The ISC will already have the power to hold public hearings with agency heads and with relevant Secretaries of State without any of these amendments. Leaving it to the ISC’s discretion to determine when and how frequently to hold such meetings will enable it to make the best use of its available resources. I hope that I have convinced noble Lords that that is the right approach. I hope, on the basis of this information, that my noble friend Lady Hamwee will withdraw her amendment, and that the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and my noble friend Lord Marks will not move theirs.

--- Later in debate ---

Moved by

[Lord Taylor of Holbeach]

14: Schedule 1, page 14, line 34, at end insert—
“( ) In deciding for the purposes of sub-paragraph (3)(b) whether it would be proper not to disclose information, the Minister must have regard to any guidance issued by a Minister of the Crown or a government department concerning the provision of evidence by civil servants to Select Committees.”

[Lord Taylor of Holbeach]

My Lords, it may be useful if I start by explaining why paragraph 3(3)(b) of Schedule 1 is necessary. There are a number of long-standing conventions that have developed in the relationship between Parliament—in the form of its Select Committees—and successive Governments. These conventions recognise that there are categories of information that in certain circumstances may be withheld from Select Committees on grounds of public policy. Noble Lords may know a good deal about this. Examples of this type of information are given in the Cabinet Office guide, Departmental Evidence and Response to Select Committees. Some noble Lords will know this by another name: the Osmotherly rules. The categories of information set out in the guide include information about matters that are sub judice, information that could be supplied only after carrying out substantial research or research that would incur excessive costs, and papers of a previous Administration.

The provision in the Bill is necessary to safeguard the long-standing conventions that are reflected in the Osmotherly rules in the context of the relationship between government and the ISC. It provides a basis for withholding from the ISC the sorts of categories of information described in the rules. As I explained, we intend the ISC created by the Bill to be a committee of Parliament and not simply a committee of parliamentarians, so there is all the more reason for the ISC that the Bill would create to be subject to these conventions.

The provision gives only a Minister of the Crown the discretion to withhold material. In exercising that discretion, the Minister would of course have regard to the provision that the ISC has for keeping material confidential. The Osmotherley rules state:

“If the problem lies with disclosing information in open evidence sessions or in memoranda submitted for publication, Departments will wish to consider whether the information requested could be provided on a confidential basis”.

For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. As I said, the powers to withhold information from the ISC have been used only sparingly in the past, and we expect this to continue. However, it is important that the safeguards are retained.

In Committee, the debate focused in particular on the word “proper”. The noble Lord, Lord Thomas of Gresford, who is not in his place, queried the use and meaning of the word. In addition, the noble Baroness, Lady Smith of Basildon, was concerned that paragraph 3(3)(b) lowered the threshold for information being withheld from the committee compared with that which currently applies under the Intelligence Services Act. I assure the noble Baroness that that is not the case. The Intelligence Services Act contains a provision equivalent to paragraph 3(3)(b). In fact, the categories of information that can be withheld from the ISC, and the thresholds for withholding information, will be the same under the Bill’s provisions as they are currently under the 1994 Act.

The noble Lord withdrew his amendment. I hope that Amendment 14 clarifies the situation and addresses his anxieties in this respect. I beg to move.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for seeking to clarify the matter. As he said, I raised my concern on this in Committee. Perhaps I may ask one question. If he is unable to answer today, perhaps he would write to me. I am not 100% convinced that Amendment 14 is sufficient to prevent paragraph 3(3)(b) being used as a justification, as the Minister claimed. Amendment 14 stipulates merely that the Minister “must have regard to” the Osmotherly guidance, as set out in sub-paragraph (3)(b). Will the Minister tell us whether, after considering the guidance he referred to, the Government could still use the conditions set out in sub-paragraph (3)(b) to refuse disclosure of information to the ISC even if the guidance was not relevant to the material in question?

[Lord Taylor of Holbeach]

I am not in a position to answer that directly, but if the noble Baroness permits, I will write to her and place a copy of the letter in the Library of the House.

Amendment 14 agreed.