National Security Bill

Debate between Lord West of Spithead and Lord Butler of Brockwell

Report stage
Tuesday 7th March 2023 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I support on behalf of the ISC Amendment 193 in the name of my noble friend Lord Coaker. This amendment would update the ISC’s remit to ensure it has the power effectively to scrutinise intelligence and security activity that will be taking place across government under the new national security regime.

The ISC already has the power to oversee much of the intelligence and security activity that will take place. However, as my noble friend Lord Coaker outlined very persuasively, the ISC’s oversight has generally been eroded due to intelligence and security activities often now being undertaken by policy departments which do not generally carry out national security-related activity. He mentioned a list of them and there are many. They were not included in the ISC’s remit and they can—I have to say, they have often—excluded the ISC from looking at the material that we think we should look at. If the Government establish new teams as part of this Bill which sit outside our remit, this amendment will make sure that the memorandum of understanding is updated, and we will be able to have access to do our job for Parliament scrutinising this highly classified material.

Updating the ISC’s MoU is vital, as effective oversight of intelligence and security can be undertaken effectively only by the Intelligence and Security Committee. Unlike Select Committees, the ISC’s purpose is to oversee these highly classified matters which relate to national security on behalf of Parliament. It is therefore the only parliamentary body with the necessary security infrastructure to scrutinise the material that often underpins national security decisions. This issue of having the right material affects the staff. For example, civil servants, who are working with regular access to “top secret” have to have DV. If one looks across government at the moment, I am not sure that that is the case in some departments. They also, including Ministers, have to be read into the STRAP material, and then there is the extra physical security to store “top secret” and STRAP material. It is considerable, and I am not convinced that this is the case across government.

As my noble friend Lord Coaker mentioned, the Government understandably provided a very clear commitment to Parliament, during the passage of the Justice and Security Act 2013, that the ISC’s MoU would be kept updated. Unfortunately—we noted this in our last annual report—this has not been done. They have not stood by this commitment. I cannot understand what difficulty the Government have with this, because I would have thought it was in the interests of the Government to ensure that Parliament has an ability to do this.

I can only repeat the words of the noble Lord, Lord Coaker:

“Each piece of new legislation devolving national security matters away from bodies already overseen by the ISC should come with commensurate expansion of the ISC’s MoU”.


This has been promised by the Government and it should be done. This amendment will seek to do that if, as a result of this Bill, the Government do indeed establish new teams outside the ISC’s current remit. However, as this amendment is linked to this Bill only, it understandably has limited scope; it will not fix the lack of effective oversight in other national security legislation, such as the Telecommunications (Security) Act, where, again pretty much across this House, people argued that the ISC should have the ability to scrutinise that. But it will be a very useful start to help embed the oversight provisions, and for that reason I support this amendment.

[Lord Butler of Brockwell (CB)]

My Lords, I want to support Amendment 193, moved by the noble Lord, Lord Coaker. He said that he felt the memorandum of understanding had not been renewed and brought up to date for no good reason. I believe it is worse than that. I think it has not been revised for a bad reason: because the Government have taken a dislike to the Intelligence and Security Committee. They have tried to restrict its activities, I believe for two reasons. First, the Government were piqued when there was pressure to publish the Russia report before the 2019 election and they did not want that. I suspect the reason they did not want it was that they did not want the discussion which the report introduced about the involvement of Russian apparatchiks in London politics. Secondly, I believe the Government were piqued because the committee did not elect as its chairman the person whom the Government wanted. It seems extraordinary that one could say of a responsible Government that these were their motives; they are childish motives. But the consequence is that in recent times the Intelligence and Security Committee of Parliament has not been used for the purpose for which it was set up.

If the Government are not going to use the Intelligence and Security Committee properly, they should save money and abolish it. But, of course, they will not do that because Parliament set it up, Parliament thinks it is important that this House and the House of Commons should have some insight into intelligence operations, and it would be unacceptable for the Government to abolish it. But they must choose either to abolish it or to use it properly. If they are to use it properly, they must update the memorandum of understanding and, as the noble Lord, Lord West, said, use it for the purpose for which Parliament intended: to give oversight by people who are fully screened within the ring of secrecy to report to Parliament. I think this is a much more important amendment than the face of it suggests.

National Security and Investment Bill

Debate between Lord West of Spithead and Lord Butler of Brockwell

Committee stage
Tuesday 16th March 2021 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, the noble Lord, Lord Rooker, has added his name to this amendment, although he is not able to speak today. I shall also speak to other amendments in this group.

Something strange is happening here. The Bill gives the Government extraordinary powers to intervene in, and possibly prevent, private sector commercial transactions. I accept that there may be occasions on which the Government need to protect British industries against incursions from foreign companies, particularly if those companies are under the control of unfriendly states, but these powers are extraordinary and their exercise, and the justification for that exercise, will often depend on intelligence information that the Government cannot, naturally, make public. How then is Parliament going to scrutinise and the Government to justify the use of these powers in those circumstances?

In the Intelligence Services Act 1994, the Conservative Government established a parliamentary mechanism precisely for this purpose, by setting up the Intelligence and Security Committee of Parliament. The coalition Government reinforced the committee’s powers in the Justice and Security Act 2013. That committee comprises Members of both Houses of Parliament with experience of intelligence who are admitted within the ring of secrecy so that they can have access to highly classified information and advise the Government and Parliament on its use. I declare an interest, having served on the committee for five years. Yet the Government have refused to provide, in the Bill, for the ISC to have a role in scrutinising the use of the powers in it. It is as if the Government have acquired a watchdog, yet are unwilling to let it bark just when it is needed.

This point was raised by the Opposition parties in the other place, and the Minister produced repeated excuses for denying the ISC an explicit role. Ultimately, the Minister said that the ISC could review the annual report which the investment security unit established by the Bill is required to make to Parliament. That made it necessary for the chairman of the ISC, Dr Julian Lewis, to intervene and say that the annual report would be a public document, which could not, by definition, contain classified information. The Minister’s reply to that was that the ISC could subsequently ask the Secretary of State for such classified information.

The noble Baroness, Lady Hayter, with the support of the noble Lord, Lord Fox, and the noble Baroness, Lady Bennett, has tabled Amendment 82, requiring that the Secretary of State should publish a separate annual report to the ISC which can include classified information. The noble Lord, Lord West, who is your Lordships’ current representative on the ISC, has put down an amendment, with the support of the noble Lords, Lord Rooker and Lord Campbell of Pittenweem, requiring classified information to be contained in a confidential annexe to the annual report of the investment security unit, to be made available only to the ISC. I will support these amendments if my own amendment is not acceptable, but if I may respectfully say so, an annual report after the event involves examining the operation of the stable door after several horses may have bolted.

My own amendment requires that, when a transaction is called in, any relevant intelligence should be made available to the ISC, and the ISC should make a report to Parliament before the Secretary of State makes a final order. The assessment period of 30 days under the Bill, extendable to 45 days, provides adequate time for the ISC to assess the intelligence provided to it, take evidence and give its opinion to Parliament. It seems to me unlikely that there will be so large a volume of transactions actually called in as to make this an unsustainable burden. In this House, we are used to Select Committees such as the Delegated Powers Committee and the Constitution Committee scrutinising Bills in short order and reporting on them to the House before the Bills go forward. If Parliament is to have any effective scrutiny of the use of the powers in the Bill, this seems preferable—if it is practicable—to an annual report after final orders have been made.

It is a matter for speculation why the Government have been so coy about giving the ISC an explicit role in the Bill. Paragraph 8 of the memorandum of understanding agreed between the Government and the ISC after the 2013 Act, says that

“only the ISC is in a position to scrutinise effectively the work of the Agencies and of those parts of Departments whose work is directly concerned with intelligence and security matters.”

Those were the words agreed between the Government and the ISC. The irony is that the ISC’s role is potentially helpful to the Government. Only the ISC can have access to the intelligence information justifying the Government’s intention to intervene. To give an example, I recall that, when I was a member of the ISC, there was a press story that GCHQ was piggybacking on the American NSA to obtain intelligence that it could not obtain under its own powers. The ISC examined the records and was able to reassure Parliament and the public that the reports were false.

Is the reluctance on the part of the Government a hangover from their embarrassment over publication of the ISC’s report on Russian interference before the 2017 election, or is it a result of government pique about the committee’s appointment of its own chairman in place of the Government’s nominee? Whatever it is, it is difficult to understand what the Intelligence and Security Committee is there for if not to have a role on behalf of Parliament and the public in sensitive matters of this sort. I beg to move.

[Lord West of Spithead (Lab)]

My Lords, I am speaking to my Amendment 78 and will touch on Amendment 70 in the name of the noble Lord, Lord Butler, to which he has just spoken, as well as Amendment 82 in the name of my noble friend Lady Hayter and Amendment 86 in the name of the noble Lord, Lord Lansley. All relate to the same concern and try to resolve it in slightly different ways. I also thank the noble Lords, Lord Campbell of Pittenweem and Lord Rooker, for their support, and the noble Lords, Lord King and Lord Janvrin, for having expressed support for the measure in broad terms. It is rather good that this is the first amendment this afternoon being raised from this side rather than from the Government; that is quite interesting I think.

Noble Lords will be aware it was the Intelligence and Security Committee of Parliament which first raised the fact—and the alarm—that when the Government were considering major investment decisions, national security concerns were not being taken into account. There are those in this House who served on the committee at that time and should be thanked for their work bringing this issue to light. This was some seven years ago, and noble Lords will know from my previous interventions on this topic that I strongly support the need for this Bill, as I think all of us do in this Chamber.

However, there is a glaring hole in the legislation which the Government have not yet resolved: namely, there is no meaningful oversight. This Bill has national security at its heart, yet the Government will not let anyone oversee this secretive heart. The Minister has said that the ISC—the one body Parliament expressly established to oversee secret matters on its behalf—will not be given proper oversight of this secret activity. The offer that the ISC can scrutinise the public report and ask for any further information it wants is not good enough. The public annual report is just that, as the noble Lord, Lord Butler, said—it is public. Parliament itself can therefore scrutinise it, so there is no role for the ISC, which is designed to look at secret reports, not public ones. The Minister says that the ISC can request further information. But there is no obligation for that information to be provided. The ISC can only require information from those bodies that fall within its remit, and the investment security unit is not one of those bodies.

Without specific provision, there is a possibility that, even if this Government are well intentioned—which I am sure they are—future Governments may refuse to provide such information to the ISC. Consequently, I am afraid the Minister’s proposals do not meet the requirement for proper oversight. Worse than that, they represent a step backwards from the current oversight provisions. The unit that currently takes these decisions—the investment security group in the Cabinet Office—is overseen by the ISC. By moving this activity to the investment security unit in BEIS, the Government are actively removing it from ISC oversight. I am sure that this cannot be what the Government intend. This is the glaring hole in the Bill that we must fix, and my amendment does that. I thank the noble Lords, Lord Rooker and Lord Campbell of Pittenweem, for putting their names to this amendment.

Clause 61 mandates the Secretary of State to produce an annual report to Parliament. The information in that report is limited and obviously will not include any sensitive security information. My amendment to Clause 61 will add to that annual report further categories of information: details about the jurisdiction of acquirers; the nature of national security concerns raised; the particular technological or sectoral expertise being targeted; and any other information that the Secretary of State deems instructive on the nature of national security threats uncovered in the new regime.

The amendment then provides a mechanism for the Secretary of State to redact any of this information from the public report, should it be deemed damaging to national security. That information must be moved into a classified annexe, ensuring that, if Parliament cannot scrutinise it, the ISC can, on behalf of Parliament. This is an approach already used by organisations such as the Investigatory Powers Commissioner’s Office under the Investigatory Powers Act 2016.

The amendment proposed by the noble Baroness, Lady Hayter, and the noble Lord, Lord Fox, provides for a second separate annual report to the ISC. It seeks to achieve the same outcome as mine—namely, oversight of the security matters at the heart of the Bill. My understanding was that Ministers in the other place had found the annexe solution more palatable, in that it would minimise the reporting burden on the new unit. However, the ISC itself is ambivalent as to whether there is a secret annexe or a separate report; the key is that there is reporting on the security aspects, in whatever form that takes.

This is not a power grab by the ISC—far from it; we have more than enough work to do as it is, and nor do we have any interest in the wider work of BEIS. It is only the intelligence and security work of the new unit, which is, after all, our job. The ISC was expressly established to scrutinise the intelligence and security activities of government—as the noble Lord, Lord Butler, said—initially, within the three intelligence agencies, and then from 2013, throughout the full national security apparatus. That change in 2013 was a result of the Justice and Security Act. The long title of that Act refers to

“activities relating to intelligence or security matters”,

and these are set out in a memorandum of understanding under the Act, which was then deemed to be a practical vehicle for listing those bodies overseen by the committee, since it could be easily kept up to date. This was best explained by the then Security Minister, who, during the passage of the Act, said:

“Things change over time. Departments reorganise. The functions undertaken by a Department one year may be undertaken by another the following year.”—[Official Report, Commons, Justice and Security Bill Committee, 31/1/13; col. 98.]


And that is exactly what has happened.

Under this Bill, intelligence and security activity is moving from the Cabinet Office to BEIS, yet the Government have not updated the MoU to include it. They have not honoured their clearly stated intention that the ISC should have oversight of all government intelligence and security activities, and it is not just this unit; other units have been set up in other departments to carry out national security and they have not yet been added to the ISC’s MoU. This is not good enough.

Counter-Terrorism and Security Bill

Debate between Lord West of Spithead and Lord Butler of Brockwell

Tuesday 20th January 2015 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I strongly support the inclusion of a sunset clause, for the very good reasons that have been given. The only debate is, really, how long. Two years is possibly too short. We need to think about how quickly we will be able to gain information about how it is working, what the full implications are and so on. Equally, however, we do not want it to be too long. So how long is a piece of string? I would think perhaps three or four years. However, I believe absolutely that we should have a sunset clause.

[Lord Butler of Brockwell (CB)]

My Lords, while I agree with noble Lords who have argued that two years would otherwise be too long, one merit of the proposal is that the Data Retention and Investigatory Powers Act 2014 has to be renewed, and there might be something to be said for considering these powers in the context of that, so that we get a comprehensive anti-terrorism Act at the same time. That might argue for a shorter sunset period.

[Lord West of Spithead]

I think that has to be done by the end of this year—which I believe is too short.

Data Retention and Investigatory Powers Bill

Debate between Lord West of Spithead and Lord Butler of Brockwell

Thursday 17th July 2014 Lords Chamber

[Lord West of Spithead]

My Lords, the noble Lord, Lord Phillips, spoke to me before the debate to ask if I would be supporting this amendment, so I have thought about it in some depth, and the answer is that I cannot. I am very supportive of my noble friend Lord Rooker’s comments. What he said about that toxic word “snooper” is exactly what I said in my speech yesterday at Second Reading. It is a very bad and emotive term, for the reasons that I gave then. I support a number of the other things that my noble friend said as well.

Both Houses are clearly in accord that the maintenance of these powers is critical for the safety and security of our people. Removing this provision before something has replaced it is an absolute nonsense. Having been involved over a number of years in this sort of legislation and this sort of work, it is clear to me that, in reviewing something like RIPA, if we are to do it properly, there is no way that we can achieve something in place of this provision in such a short time, because it will be removed. As the noble Lord, Lord Carlile, mentioned, it will have gone before we could do it. Actually, it will be tight to achieve it even by December 2016. We need to do a proper review. We will need something like a new communications data Bill. We so nearly got one before political shenanigans stopped it happening, but we need to look at this and go into great detail in reviewing RIPA. All this has to be done. It is extremely dangerous to try to shorten these timescales. It would be a dreadful mistake to make it any earlier than December 2016.

[Lord Butler of Brockwell]

My Lords, having supported the Minister in response to the noble Lord, Lord Davies, and having criticised him in response to the noble and learned Lord, Lord Hope, in this case I support the Government and agree with those who oppose this amendment.

If we pass this amendment we would find ourselves in exactly the same danger as we are with the provision of this Bill. We would be presented with a Bill in the latter part of 2016 that would be very urgent and the House would have inadequate time to consider. Although two and half years seems a long time, let us consider what is going to happen in the mean time. The independent reviewer of terrorism legislation has been asked to carry out a thorough review of the RIPA legislation. I understand that his timetable is to try to complete that by the time of the Dissolution of this Parliament, by May of next year.

The Intelligence and Security Committee is similarly carrying out a review. This autumn we plan to have public hearings where those who are critical of the legislation can have their say. I hope that that will generate a public debate and allow these issues to be widely discussed; that will be very valuable. We also hope to reach a conclusion by the end of the Parliament. Indeed, we had better, because there will be a new committee after that. The election will be in May of next year. The new Government will come in with quite a short time before the Summer Recess, when there will be other urgent things to do. It has been suggested that there should be a Joint Committee of the two Houses to look at the conclusions of the reviewer of terrorism legislation, and those of the Intelligence and Security Committee. It will want to have time to consider that. It really will not be practicable to reach a position where properly considered legislation can be introduced until we are well into 2016.

Two and a half years may seem a long time, but when one considers that those are the sensible and necessary steps before legislation is introduced and passed, it follows that the end of 2016 really is the earliest possible date when we can expect to have properly considered and satisfactory legislation in place of the Bill that we are passing today.

[The Earl of Erroll (CB)]

My Lords, I have not intervened earlier because I have been doing lots of other things, but I wanted to intervene on this amendment and say that I think that this is a sensible approach. I cannot believe that you can produce this Bill within a couple of weeks and then say that we cannot do something better in a year and a half. It seems that we are trying just to push the boundaries out, and the question is why. It tends to be the people who can see the challenges, who come from a senior executive background, who are trying to get this sorted out, and I can see their point.

We need to consider some of the principles behind the amendment, which is why I fully support it, and we need to discuss those principles very early on. The issue is not the technicalities in the Bill, the definitions of communication data and metadata; we know that we need to do this for the purposes of finding terrorists, enforcing the law and stuff like that. The real challenge is posed by that old bit of Latin—which I might as well use, as we are now using Latin—sed quis custodiet ipsos custodes? Who watches the watchers? Who guards the guardians? We should remember the line that is supposed to come after that, which I will say in English: they keep quiet about the girl’s secrets and get her as their payment. Everyone hushes things up. That is the trouble. If corruption runs high enough, you get the Cambridge set—was it four or five by the end of it all? You get J Edgar Hoover.

That sounds as if I am painting a hugely black picture, but there is danger there, even more so now that we have rolled together—for the purpose of catching terrorists and people in serious and organised crime, which we have had to do—what used to be our external forces, GCHQ and MI6, responsible to the Foreign Office, and our internal police, which was MI5 and is now basically the NCA. In America the CIA and the FBI were kept separate. We have started to bring our forces together because of things falling between the cracks. This means that we are potentially giving huge powers to internal police. Therefore, how those at the top are to be watched is of vital importance.