Investigatory Powers Bill
Marquess of Lothian Excerpts(8 years, 4 months ago)
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The Marquess of Lothian (Con)
My Lords, I am sure the whole House is relieved to hear of this new-found friendship between their two noble Lordships. It is always a pleasure to follow the noble Lord, Lord Butler of Brockwell. He and I served together on the Intelligence and Security Committee in the last Parliament.
I am particularly pleased to take part in this Second Reading debate today, not least because the ISC—on which, along with the noble Lord, Lord Janvrin, I have the honour to represent your Lordships’ House—has over the past three years published two reports on investigatory powers. At the end of the last Parliament, the Intelligence and Security Committee, including the noble Lords, Lord Butler of Brockwell and Lord Campbell of Pittenweem, produced a substantial report entitled Privacy and Security: A Modern and Transparent Legal Framework. It covered in detail the gamut of the intrusive powers available to our security and intelligence agencies, and concluded that existing legislation was “unnecessarily complicated”, outdated and lacked transparency. It needed to be replaced by a modern, transparent legal framework fit for the internet age. Since that report, as well as the ones mentioned by the noble Lord, Lord Butler of Brockwell, from the Independent Reviewer of Terrorism Legislation and RUSI, the Government introduced the draft Investigatory Powers Bill. This was the subject of the ISC’s second report, which made many specific recommendations towards improving the Bill, especially in those areas relating to certain investigatory powers where the legal authorisations were opaque and the safeguards, in our view, insufficient.
This Bill is a significant step forward in clarity, transparency and enhanced safeguards. For the first time, it provides an explicit statutory footing and authorisation procedure for bulk personal datasets, equipment interference and bulk acquisition of communications data. Where authorisations and procedures already existed under RIPA, these have now, thankfully, been set out more clearly in this Bill. They will also now, under the Bill, be subject to the additional protection of judicial commissioner approval.
I readily acknowledge that the Government have engaged constructively with the ISC throughout the passage of this Bill. Several of our recommendations on the draft Bill were incorporated during its passage in the other place. We have also, helpfully and reassuringly, been provided with additional classified evidence regarding other matters raised in our report, most notably on the use of bulk equipment interference and the need for economic well-being as a ground for interception.
On the crucial operational purposes, which regulate the examination of material collected using bulk powers, we suggested that there was insufficient detail in the Bill as to how they would be regulated and managed. The Government have now committed themselves to include further detail on this which I look forward to seeing during the following stages of the Bill.
On bulk personal datasets, the Government have confirmed that they will introduce amendments adding extra safeguards where these contain sensitive data. Already, following changes in the other place, there are now welcome restrictions on the use of powers to investigate legitimate trade union activities and greater restrictions on bulk personal datasets containing medical records. These are welcome.
However, we continue to press for additional restrictions on the use of these powers in relation to sensitive personal data. I hope that we will in due course see government amendments to implement these additional protections.
Turning to thematic interception and equipment interference warrants which concerned the noble Lord, Lord Lester of Herne Hill, they also concern us in that we feel they can be drawn very widely, potentially catching a large number of people in a single warrant. These concerns have still not been completely met by the Government but the Home Secretary has told my committee that she is considering what more can be done to provide further assurance about how these thematic warrants will operate. Again, we look forward to seeing that.
The ISC still has concerns about provisions for criminal offences in relation to the misuse of powers. The Bill refers to already existing offences apparently necessary to avoid a confusing overlap. However, for the misuse of certain powers, the only criminal offence would be misconduct in public office, which, in my view certainly and in the view of others, is an old common law offence which prosecutors are often reluctant to pursue. For other abuses, the only criminal penalties would be fines under the Data Protection Act and the Wireless Telegraphy Act, almost certainly not sufficient for the most egregious cases of misuse.
This Bill has been introduced to this House in clearly better shape than when it was originally published, and for that I congratulate the Government. However, there are further improvements which can and should be made, hopefully by government amendments at the forthcoming stages of the consideration of the Bill.
At stake is the difficult balance between an individual’s right to privacy and society’s need for national security. There will, I fear, never be total consensus on that balance. While the ISC has consistently concluded that the agencies’ operational techniques are justified, we have equally been insistent on the right constraints being placed on their use. I hope that with the further revision to the Bill which will take place in this House, we will get these constraints right, without undermining the agencies’ vital work to keep us safe. That is the balance we seek to achieve. This Bill has the potential to achieve it.
Counter-Terrorism and Security Bill
Marquess of Lothian Excerpts(9 years, 10 months ago)
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Lord Hannay of Chiswick (CB)
My Lords, at Second Reading of this Bill I asked the Minister whether the Government had given any consideration to sunset clauses in the two provisions that are being discussed in this amendment. He did not reply in winding up the debate and so I look forward with great interest to his response now. Perhaps I may say that the principle of having a sunset clause on these two provisions is rather compelling because it is important to show that we do not believe that this state of affairs, to which we are now responding quite properly and proportionately, is there for ever. The signal that it is not a permanent part of our law is a good one to send, but I would certainly not attach any importance at all to the short period of two years that is suggested. That really is rather unrealistic in the circumstances we face. For me, it is the principle of having a sunset clause, not its duration, that matters. I would be grateful if the Minister, when he comes to reply to the amendment, could address this matter now.
The Marquess of Lothian (Con)
My Lords, I wonder whether my noble friend could help me because I have missed this somewhere else. When looking at the time factor here, what is the legal and international status of someone who has been subjected to a temporary exclusion order? Are they in fact stateless during that period?
Lord Hylton (CB)
My Lords, I would like to support the words of my two noble friends who have recently spoken. We will otherwise be faced with a situation where each new outbreak of terrorism somewhere or other will lead to a cutting back and diminution of traditional, well known and respected civil liberties.
Counter-Terrorism and Security Bill
Marquess of Lothian Excerpts(9 years, 10 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Bates)
My Lords, the emergence of ISIL and its territorial gains in Syria and Iraq present a clear and present threat to our national security. Noble Lords will be aware that nearly 600 people from the UK who are of interest to the security services are thought to have travelled to the region since the start of the conflict. It is estimated that almost half of them have since returned to the UK. On 29 August 2014, the independent Joint Terrorism Analysis Centre raised the terrorism threat level from substantial to severe, meaning that an attack is highly likely. On 1 September, my right honourable friend the Prime Minister announced that legislation would be brought forward.
The horrific events in Paris last week were the latest in a long line of shocking terrorist attacks, following the brutal beheading of Fusilier Lee Rigby, the murder of four civilians at the Jewish Museum in Brussels last May, the shootings at the Canadian Parliament in Ottawa and the Sydney hostage crisis. They all demonstrate the threat posed by ISIL and other terrorist organisations, such as al-Qaeda, across the democratic world.
I know that the whole House will join me in paying tribute to the incredible and courageous work of the men and women in our law enforcement and security and intelligence agencies. Their tireless efforts to keep us safe have thwarted around 40 attacks since 7 July 2005. Since April 2010, 210 people have been charged and more than 140 have been successfully prosecuted for terrorism-related offences. It is those security services that tell us that the nature of the threat has changed and so must our response. It is against that backdrop that we bring the Bill before your Lordships’ House.
The Counter-Terrorism and Security Bill will help us to disrupt people who intend to travel abroad to fight, as well as their ability to return here without ensuring adequate protection for our citizens. It will enhance our ability to monitor and control the actions of those in the UK who pose a threat, and it will help to challenge the pernicious underlying ideology that feeds, supports and sanctions terrorism. Part 1 of the Bill contains two powers that will enhance our ability to restrict the plans of those suspected of travelling overseas to engage in terrorism-related activity. The first is the power for the police, or a Border Force officer acting under their direction, to seize a passport and, in so doing, temporarily to disrupt the ability of an individual to travel. This will allow the agencies to investigate and decide whether further disruptive action is necessary—for instance, criminal prosecution or cancelling their passport under the existing royal prerogative.
Chapter 2 creates the power for the Home Secretary to issue temporary exclusion orders. This will allow us temporarily to disrupt the return of a British citizen suspected of involvement in terrorism-related activity abroad, ensuring that when individuals return it is on our terms. In the light of the comments of the Independent Reviewer of Terrorism Legislation, David Anderson QC, and following the debates in the House of Commons, the Government have committed to considering judicial oversight for this power. We will return to this issue in Committee should the Bill be successful at Second Reading.
Part 2 of the Bill enhances the existing terrorism prevention and investigation measures—or TPIMs—regime. Here, we are again acting on the recommendations of David Anderson QC in his most recent report on the operation of TPIMs. This includes allowing us to relocate an individual subject to a TPIM order up to 200 miles from his or her current residence, to help disrupt terrorist networks. It also involves raising the legal test for imposing a TPIM, providing further reassurance that they are used only where absolutely necessary.
Part 3 relates to data retention, specifically the problem of internet protocol address resolution. This is a technical issue and we will get into the details in Committee. However, these provisions will deliver vital additional capability to the police and intelligence agencies, helping to address the ongoing degradation in the availability of communications data.
Part 4 covers aviation, shipping and rail security. It includes measures in three broad areas: our authority-to-carry or no-fly arrangements; systems for providing advance passenger information to the UK authorities; and enhanced security and screening measures. Carriers will have to comply with our requirements if they are to operate to the UK.
Chapter 1 of Part 5 creates a duty on a range of authorities—listed in Schedule 3 to the Bill—to have due regard to preventing people being drawn into terrorism. The detail of what this duty will mean in practice for the schools, universities, police forces and prisons that will be subject to it will be set out in statutory guidance. We have published that guidance in draft for consultation alongside this Bill.
Chapter 2 of Part 5 also provides a statutory basis for the existing programmes for those at risk of being drawn into terrorism. As many noble Lords will be aware, in England and Wales this is known as the Channel programme. These provisions will ensure that such programmes are consistently available to all local areas.
Part 6 amends two provisions in the Terrorism Act 2000. The first ensures that UK insurance companies cannot reimburse the payment of a ransom to a terrorist organisation, putting the existing law beyond doubt. The second relates to the examination of goods at ports under Schedule 7 to the 2000 Act. It will clarify the law relating to where goods can be examined and the examination of goods comprising postal items.
Along with other miscellaneous provisions, Part 7 allows for the creation of a Privacy and Civil Liberties Board to support the work of the Independent Reviewer of Terrorism Legislation. We are at present conducting a further consultation on this proposal, prior to bringing forward regulations for Parliament to consider.
I welcome the cross-party support for this legislation in this House. I know that the Home Secretary has appreciated it in the House of Commons. I particularly want to thank the noble Baroness, Lady Smith of Basildon, and my noble friend Lady Hamwee for their constructive approach in negotiations about this legislation.
I am also aware that there is a very long and distinguished list of Peers seeking to speak in this debate. I am sure that noble Lords are particularly keen to hear the maiden speeches of the noble Lords, Lord Evans of Weardale and Lord Green of Deddington, who bring considerable knowledge and expertise to these matters. I do not, therefore, intend to detain the House any longer, but will of course respond in greater detail to the points which—
The Marquess of Lothian (Con)
I am grateful to my noble friend for giving way. I am intervening because I cannot stay for the rest of the debate. I welcome his statement that he will consider introducing judicial authority over control orders. Does he accept the general constitutional principle that, where such control orders are to be introduced, they should be under judicial control rather than under the control of politicians?
Lord Bates
I referred to that earlier. In another place, the Minister, James Brokenshire, said that we would look at it and seek to bring forward amendments, should the Bill go into Committee. We will do that.
I was saying, in conclusion, that I will address the points made in the course of this debate, perhaps at greater length, in my closing remarks.
We are in the middle of a generational struggle against a ruthless terrorist ideology that challenges the core values of our society. Those charged with our security must be properly equipped to do the job that we ask of them to maintain a free, open and tolerant nation. That is what the Bill is designed to do and I commend it to the House. I beg to move.
Intelligence and Security Committee: Annual Report 2011-12
Marquess of Lothian Excerpts(11 years, 10 months ago)
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The Marquess of Lothian
That the Grand Committee takes note of the Intelligence and Security Committee Annual Report 2011–12.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, we are hoping that the annunciator will be changed shortly so that we are not distracted by proceedings in the Chamber. I remind noble Lords that in the event of a Division in the Chamber, the Committee will adjourn for 10 minutes from the sound of the Division Bell.
The Marquess of Lothian
My Lords, the core work of the committee upon which the noble Lord, Lord Butler of Brockwell, and I have the honour to represent your Lordships’ House covers an important area of national interest, not least because of the amount of public money that the agencies consume each year, something over £2 billion. The nature of the work they do, and what they spend the money on, must, of course, for the large part, remain secret. However, the Intelligence and Security Committee ensures that there is parliamentary oversight of this work, and it is right that we have, as we have today, the opportunity to debate our findings.
The committee has had another busy year under the firm leadership of our chairman, Sir Malcolm Rifkind MP, to whom I readily pay tribute, as I do to the immensely hard-working staff of the committee, without whom our detailed and often complex scrutiny would not be possible. I would also like, at this early stage, to record my continuing admiration, gratitude and respect for the almost always unsung dedication and professionalism of those who serve our country in our intelligence and security agencies—SIS, MI5 and GCHQ. We owe them much as a country, and I am glad to pay tribute to them.
This annual report covers a wide range of issues, and we have made a number of recommendations. I shall, in the time available, concentrate on a few of those. First, resourcing—the agencies received a relatively generous settlement in the last spending review of 2010, with what is known as a flat cash budget, which nevertheless represented a significant real-terms cut over the four-year period. With a combination of pay freezes and concerted efforts to control other costs, the agencies are currently coping with this while apparently preserving front-line capabilities. All the same, the settlement commits the agencies, both individually and collectively, to achieve significant savings before 2015. The committee agrees that the efficiency savings need to be made, wherever possible, in administration and related areas. However, we are not convinced, as we say in our report, that sufficient progress is being made towards making them, and the Government have yet to convince us that the agencies will meet the targets that they have been set. If they do not, the agencies could be forced to cut front-line capabilities, and that, as I am sure your Lordships agree, would be extremely worrying. I hope that the Minister can assure us that the axe will not end up falling on the front-line capabilities that are so badly needed to protect our national interests.
The second area, also related to resources, is the ability of the agencies to respond to unexpected events. We have seen—here I include Defence Intelligence, whose role was, and continues to be, crucial—how the agencies had to divert resources to the events of the Arab uprising, which is a subject to which I will shortly and briefly return.
The committee is concerned that, inevitably, these resources will have to be switched from other areas. In these straitened times, particularly for Defence Intelligence which has suffered round after round of cuts, our ability to maintain sufficient coverage of all the areas of the globe—the importance of which has been graphically and painfully illustrated in Algeria over these past few days—is becoming increasingly fragile. Yet our agencies need to be able to respond to events anywhere and at any time. We may be able in the short term to plug the gap but only by robbing Peter to pay Paul. If we do not examine this more closely, sooner or later we will be caught out—if that has not already happened.
More generally, we welcome the fact the central intelligence structures are now aligned beneath the National Security Council. However, from past experience, we are concerned to ensure that analytical judgments and policy recommendations remain separate when advice is presented to Ministers. As we have seen in the past, it has been easy for this distinction to become blurred and it is crucial that it does not do so in the future.
Earlier I referred to the agencies’ swift and commendable response to the Arab spring—or, as I prefer to call it, the Arab awakening. That presented a real challenge to the intelligence community which had to reprioritise quickly and redirect its resources towards the region. Of course, it is often impossible to predict such events. However, the question remains as to whether, once events began to unfold, the agencies should have anticipated the possibility that the unrest would quickly spread across the region and should have recognised the Islamist nature of much of it and the crucial distinction between national and universal Islamism, which is of such importance to our security. We are seeing this clearly in what is happening in the Maghreb and the Sahel and potentially even more dangerously, in Syria.
Although the capability of al-Qaeda and its affiliates has been weakened in Afghanistan, in the tribal regions of Pakistan and increasingly in the Arabian Peninsula and Somalia, it has demonstrated that it is still resilient, capable of regrouping and recruiting elsewhere, of mounting an attack on western interests and of posing a serious terrorist threat to the United Kingdom and its citizens. This danger needs to be further and urgently pursued. Above all, this demonstrates the risks inherent in drawing down effort on lower priority areas, and of the importance of the agencies, working with allies where necessary, maintaining global intelligence coverage.
In Northern Ireland we welcome the intention of the Security Service to maintain its resources at current levels. From my own experience, this is a ball we can never afford to take our eye completely off.
Finally, there is cybersecurity which remains the most rapidly growing threat that we face. Every day citizens and businesses in this country face attacks on their computers and networks from criminals, hacktivist groups—that is spelt with an “h”—and state actors, ranging from actions which cause mere irritation to the compromise of financial details and, at the most extreme end, the theft of intellectual property and sensitive national security material. This is a threat to the security and prosperity of the United Kingdom and, in its report, the committee has welcomed the seriousness with which the Government have addressed this. The additional resource—£650 million over four years—is a significant sum in these straitened financial times.
While the committee’s interest has been primarily in the 20% of more sophisticated attacks where national security has been affected, the wider issues remain the same. We have noted the work of the Communications-Electronics Security Groups and the Centre for the Protection of the National Infrastructure, which are increasing their efforts to educate government and business about the vulnerabilities and weaknesses of their systems and how improving behaviour will strengthen defences and benefit the entire country at the least cost. However, it is more than two years since the Government announced increased funding for work against cybercrime. While there has been some progress in developing new capabilities, this does not appear to have been as swift as might have been expected. In a fast paced field, where new technologies are emerging all the time, we cannot afford delays in our national response. The committee will keep this issue under close review.
There are many other important matters mentioned in our annual report, including counterterrorism work, staffing and diversity in the agencies, and access to communications data—to name but a few—which other noble Lords may wish to raise. I will now turn to broader issues. When we held this debate last year, the Government had just published a Green Paper covering reform of the Intelligence and Security Committee and increased protection for intelligence material involved in civil cases. Since then, this House has debated the Justice and Security Bill, which is currently being considered in another place. I will not repeat the arguments that were deployed in Committee and on Report in your Lordships’ House, but there are one or two areas that I wish to raise briefly.
As noble Lords will be aware, Part 1 of the Bill concerns reforms to the Intelligence and Security Committee itself. It is intended to formalise many of its practices, which have evolved beyond the limitations of the statute under which the committee was originally established in 1994, and gives the committee greater powers to access information held by the agencies. It will also make clear the committee’s responsibilities to Parliament as well as to the Prime Minister, which have not always been clear in the past, and underline that it is an independent committee, which has also not always been clear in the past to outside observers. These are important changes that originated from within the committee and we are pleased that the Government and others, both in your Lordships’ House and, I understand, in another place as well, have in principle accepted them as being necessary.
However, there is more work to be done to bridge the final remaining gaps between the committee and the Government and I hope the Minister can reassure me that agreement on these issues is near. I think we are all agreed on the need to strengthen the committee’s link to Parliament but there are implications from formalising this relationship. While I understand the Government’s nervousness around such issues as parliamentary privilege, can the Minister confirm today that the work of the committee will be adequately protected in future?
Secondly, for the first time the committee is being given explicit powers to investigate operational matters, subject to certain clear provisions. These are that the matters are agreed between the Prime Minister and the committee as being retrospective—that is, not part of any ongoing operation—and of significant national interest. These principles are not controversial and the committee has no intention of becoming involved in the day-to-day operations of the agencies.
However, we must ensure that the legislation does not inadvertently tie the committee’s hands. After all, the committee often investigates matters relating to operations, sometimes even at the Prime Minister’s request; its report into the 7/7 bombings is a case in point. It would be a significant step backwards if the legislation did not allow for such inquiries in future.
My final point relates to the resources available to the committee. Our admirable staff provide all our research, analysis, briefing and drafting in-house. If the committee is to be able to continue its work, let alone take on the increased role that the Bill envisages, the Government must ensure that we have adequate support to do so. Our resources are meagre compared to those of our overseas counterparts, as noble Lords who have been on the committee and have visited other countries will readily agree, I am sure. They are also meagre in comparison with inquiries such as that on the detainees or the Iraq inquiry, the report of which we still await, or indeed of the Committee on Climate Change, to name just a few. If the Government are serious about supporting the measures in the Bill, this committee must be funded correctly and adequately so as to be able to carry out its responsibilities properly in the future.
My very last point on the Justice and Security Bill is about the necessity of introducing closed proceedings in civil cases where the protection of national security material is involved. This was debated at length in your Lordships’ House and I am pleased that the core of the Government’s proposals has survived that consideration. The reputational damage to our agencies of legally unjustified financial settlement with those questionably claiming mistreatment cannot be allowed to continue. The public perception is that the agencies have something to hide and we should not allow the situation to continue where a judge is unable to rule on such allegations. In addition, our relations with allies will suffer if we are unable to guarantee that we can protect their secrets, especially as we expect the same when we share our intelligence with partners overseas.
It is been an extremely busy year for the intelligence agencies, primarily due to the burdens placed on them by the Olympic and Paralympic Games. That these events not only passed off without incident but were such a widely acknowledged success was in no small measure due to the enormous behind-the-scenes efforts of the agencies to ensure that terrorists did not take advantage of the situation. This took a significant effort on the part of the Security Service in particular, and we have noted the disruption that staff had to endure with long or unsocial working hours and bans on leave—and this was all in addition to the range of their other work that continued as normal.
The agencies do not often get the public recognition they deserve, so it is important to put this on the record when the opportunity arises. They are a credit to this country and we owe them all a debt of gratitude. I commend the report to the Committee and I beg to move.
The Marquess of Lothian
My Lords, I can and will be brief. I just want to make a number of comments in relation to what I thought was a very sensible and insightful debate. The remarks made today have reflected the essentially non-partisan nature of the ISC, which is one of its great strengths. I start by thanking the Minister for his remarks. I will not go into them in detail. He has given a number of indications of amendments in another place and assurances as to adequate funding, and we look forward to seeing those amendments and hearing the outcome of those discussions on funding. It has been helpful to have those remarks.
With regard to what has happened recently in Algeria and the lessons that can be learned—we have missed the Statement so I do not know what was said—it strikes me that something we should be looking to for the future is a proper analysis of what happens to arms when they disappear. We know that in Libya Gaddafi’s arms disappeared, and we have indications that some may have reappeared in Algeria this week. I have a great concern at the moment that some of the arms that have been provided to the rebels in Syria, vicariously or directly, may end up in the hands of al-Nusra and other Islamist organisations, which would not be in the interests of this Government in the future. I hope that area will be looked at.
I mentioned retention last year and made a very strong point about it. One of the reasons for talking about the retention of staff within the agencies generally, but specifically within GCHQ, is that the nature of GCHQ’s work means that the people who operate there are highly skilled in IT. They are recruited because they are what the director-general described in our report last year as “whizzes”. He said, “How do I hold on to my whizzes when the outside world is trying to recruit them at far greater expense than I could ever meet in order to keep them?”. It is an unresolved problem that I hope the Government will go on wrestling with. I am glad it was raised by a number of noble Lords here today.
The noble Baroness, Lady Hamwee, raised the issue of redactions. This is something that comes up every year. Redactions irritate us all. When I was the shadow Foreign Secretary in another place, I used to enjoy the debates because I would read out pages of redactions and it always got a laugh. It was only when I joined the committee that I realised how essential they are. The committee does not write its own redactions. The committee writes its report as it sees things and that report is to be seen by the Prime Minister. It is the Prime Minister who will come back and say, “We feel there are certain areas here that should not be in the report that is published”. In my experience—and I may be wrong—I do not think there has ever been a redaction, which can only be allowed on grounds of national security, that has not eventually been agreed between the committee and the Prime Minister, because if it is a matter of national security there is no question in the committee’s mind that that should not be redacted. We could write reports without redactions, but they would not be as valuable to the Prime Minister or, indeed, the general public.
My final point is in relation to the speech of the noble Lord, Lord Hennessy. Once again, we have heard an interesting and thought-provoking speech. I cannot undertake that the committee will look at everything he has raised but I can undertake to personally ensure that his remarks are brought to the attention of the committee and that copies of his speech are made available to the members of the committee so that they can consider some of the very relevant remarks he made.
We have had an important debate. I am grateful to the noble Lord, Lord Butler, whose speech I totally endorse. I think he and I feel that we are part of a committee that works very closely and proactively together. I am grateful, too, as I said earlier, to those who serve us on that committee. I thank this Committee for this debate.
Justice and Security Bill [HL]
Marquess of Lothian Excerpts(12 years, 4 months ago)
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The Marquess of Lothian
My Lords, I rise briefly in support of the noble Lord, Lord Butler of Brockwell, on both amendments, to which my name is also attached. I do so because I am also a member of the Intelligence and Security Committee. I was first appointed to the committee in 2006 and therefore have some years of experience of it.
In looking at the first amendment I feel very strongly that we need to make it clear that this is more than just a committee. The problem that we have faced in terms of credibility until now, as the noble Lord said, is that we were a committee created by statute but appointed by the Prime Minister and reporting to the Prime Minister—who could report to Parliament in due course. Although we exercised what we thought was the maximum independence possible, the public perception was that we were actually a creation of, and therefore a tool of, the Executive. In that regard, less confidence was put in the reports that we produced. My belief has been that if this committee is to work properly—which is what I believe the Bill is about now—we need to make it clear that this is not just a committee hanging in the ether but a committee of Parliament: it is composed of parliamentarians, exercises its oversight of the intelligence agencies on behalf of Parliament and reports to Parliament, although the Prime Minister will ultimately have a veto over appointments and also have access to the reports that we produce. I believe that the simple addition of the words “of Parliament” will make it clear that what I am looking for can be achieved.
I have been told in the past that there may be difficulties about the words “Committee of Parliament”. I am a simple Scottish lawyer, and I have worked very hard to understand what these possible difficulties can be given that, as I said at Second Reading, a committee of Parliament is what we are effectively becoming. I hope, therefore, that the Government will accept that, because I think that the committee’s credibility in exercising parliamentary oversight of the intelligence agencies is an important part of our developing constitution.
I turn briefly to the second amendment spoken to by the noble Lord, Lord Butler of Brockwell. I have very little to add to what he said other than this. He talked about the need for those who give evidence to the Committee to be able to do so in the knowledge that their evidence will not suddenly be made public. That is a very important part of the way in which the Intelligence and Security Committee works. It is particularly important in one respect. When the intelligence agencies give evidence to us they will naturally take account of how secure their evidence will be. If they feel that that evidence is not secure then they quite simply will not give us that evidence. We rely on their confidence in us to ensure that they give us the maximum amount of information upon which we can exercise our oversight. Unless we have the protection which is the purpose of the second amendment I believe that that confidence will not be there. I hope, therefore, that the Government will accept both amendments.
Lord Campbell-Savours
My Lords, I have reservations which I will deal with when I speak to my amendment arguing the case for a Select Committee to take on these responsibilities. Parliament is being required to approve wording which suggests that this committee is controlled by Parliament, but without recognising what the Justice and Security Green Paper of October 2011 says at paragraph 3.19. It states:
“However, under such arrangements”—
that is, the arrangements of a Select Committee—
“the Government would clearly have no veto on publication of sensitive material”.
I repeat:
“no veto on publication of sensitive material”.
In other words, the provision is being introduced as a way for the Government to secure control outside of Parliament, through this half-measure of a committee, over the publication of sensitive material. My view is very simple. If they want to do that, let it be done through a full Select Committee structure. That is the substance of my amendment which will come later.
Lord Campbell-Savours
My Lords, I welcome this debate on an issue that I have pursued now for 14 years since 1998. As I foresaw the response that the Minister has given today—that he was unable to give undertakings on privilege—I asked for my amendment to be taken separately. He will now understand why I had it moved from the group containing Amendment 1.
I corresponded with and made direct representations to Prime Minister Blair and others in Downing Street over a number of years. I was supported in doing so by the overwhelming majority of Labour Members of the other House and members of other political parties, with whom I had conversations in the late 1990s. There was overwhelming support for the principle of a Select Committee. I do not believe that oversight is fully credible while the committee remains a creature of the Executive or some halfway house that lacks parliamentary privilege. Privilege is the central issue in this debate—this was raised in the debate on the previous amendment—and that is why I am driven down the Select Committee route.
The problem at the moment is that the committee considers its relationship with the Prime Minister more important to its operations than its relationship with Parliament. The Government’s proposal seeks to address that but, in reality, it will make little difference to the nature of the relationship. I strongly dissent from the view that this relationship with the Prime Minister is more important than the relationship with Parliament, and that is why I favour Select Committee status.
We live on the threshold of an era in which civil liberties and freedoms will be subjected to increasing pressure. In such conditions, one has to beef up systems of regulation, safeguard and oversight. Those systems need to command public support, confidence and trust. I do not believe that, despite the good intentions of its membership and the witnesses who come before it, the ISC, as a creature of the Executive, can possibly meet those tests. What is proposed will in reality make little difference.
The committee needs new and increased powers to call persons and papers and to communicate with other committees. There are times when the information that comes before the committee should, in certain circumstances, be referred to other Select Committees. I shall deal with that in later amendments. This would enable it to carry out its inquiries. It does not mean that security will be in any way breached because mechanisms could be introduced to ensure that that does not happen with the release of material.
It is already acknowledged that the committee needs the power to report directly to Parliament and the argument has been well rehearsed over the years. The ISC needs the power to take evidence under oath: Select Committees have that power. It would not be that it took all evidence under oath but it should have the power to do so. As I say, Select Committees have that power but the ISC does not.
Without going into any details, there are times when the committee might receive assurances on issues where, if those assurances were given under oath, the committee might have the confidence, with the approval of the Prime Minister, to make statements that would be extremely helpful during the course of public debate and in the exercise of reassuring public opinion.
The ISC needs the power to take evidence under privilege. Technically, if a person appeared before the committee today, he could libel another person because he would not be protected by privilege. The committee has none of the powers that are afforded to witnesses giving evidence to parliamentary Select Committees. Above all, the committee should have the power to hold witnesses in contempt if they deliberately mislead the committee, which is what happens in the Commons. If Parliament knew that the committee had the ability to take evidence under oath and to hold witnesses in contempt in the event that they were deliberately to mislead, it would substantially increase the credibility of any reassuring statement that the committee makes.
The arguments are not new. They have been rehearsed at length on a number of occasions in the past, most notably during the passage of the 1989 and 1994 legislation—we go back a long way in this discussion. Those supporting Select Committee status included the noble Lord, Lord Hattersley, then speaking from the Labour Front Bench, the future Secretary of State for Trade, the noble Lord, Lord Mandelson, and the future Minister at the Cabinet Office, now the noble Lord, Lord Cunningham of Felling. All made positive speeches in favour of Select Committee status. In 1989, the entire Labour shadow cabinet, including the shadow Home Secretary and Foreign Secretary voted for full Select Committee status and not a halfway house. I have a copy of the Division List and the entire Labour membership in the House of Lords at the time voted for Select Committee status. We are not arguing new principles today.
Some say that legislation is required if the decision is taken to accord Select Committee status, but that is not altogether clear, as the noble Lord, Lord Butler of Brockwell, was saying. It is argued by many that, although some tinkering with the law might be necessary, resolutions establishing the committee—effectively a Joint Committee—carried in both Houses with simple resolutions could cover all the functions of the committee.
I recognise that there is some opposition to the whole proposal. Some argue that the fact that the committee reports directly to the Prime Minister gives individual members of it additional clout, kudos, weight or importance in the political world. That was the view of some on the committee when I was a member. I strongly reject that view. Others argue that no way can be found to restructure the practices and the procedure of the Select Committee so as to ensure executive influence for reasons of national security over material that it may seek to publish. That is simply untrue. A resolution of both Houses could require that the committee sought the approval of the appropriate agency before reporting to the House. The resolutions could further provide that, in the event of a dispute arising between the agency and the committee over the publication of information or evidence in a report to the House, the matter at dispute could be referred to the Prime Minister for his decision and the committee could be required to comply with the decision of the Prime Minister. That is what I referred to during my Second Reading speech as the override.
If in unforeseen circumstances, the committee, or any member of it, were to threaten to breach the committee’s rules and procedure, as agreed by the House in these resolutions, it would always be open to the Leader of the House, on the instructions of the Prime Minister, to dissolve the entire committee or to remove any member of it on a resolution tabled on one day which took effect on the next. There are adequate provisions, although I shall argue on a later amendment that this power would need to be exercised with great caution.
I believe that Parliament could carry resolutions that make the committee as hermetically sealed as any structure that currently exists. We are told that such a committee could not be prevented from taking evidence in public session, if that were the wish of the committee. In response, I argue that a resolution of the House could introduce a general prohibition on the Select Committee taking evidence in public session—resolutions of the Commons can be carried to deal with the issue. It could further place a requirement on the committee to seek the permission of the appropriate agencies and the Prime Minister in conditions of dispute, if it wished to take evidence in public in particular circumstances. It is argued that although a Select Committee is neither more nor less likely than the ISC to leak, as a Select Committee it would have the right to publish reports in a way that could prove prejudicial to the interests of national security. A resolution of the House could introduce a general prohibition on the Select Committee publishing reports without approval. It could further place a requirement on the committee to seek the permission of the appropriate agency and the Prime Minister in conditions of dispute, if it wished to publish a report. Safeguards would be available for every eventuality in the event that it were to be created a full Select Committee of Parliament.
As prime ministerial appointees, members are currently responsible for reporting collectively to the Prime Minister. It is argued that such limited powers to report would not be possible if the committee were appointed by the legislature. There is no reason why the resolution of the House should not stipulate the procedure to be used in the publication of reports. It could require the committee to publish its reports subject to sidelining by the Prime Minister for reasons of national security, as currently happens.
It is also argued that a move to a parliamentary arrangement could lead to greater pressures on Ministers to be accountable as witnesses, with less emphasis on agency heads giving evidence. That argument is not supported by an examination of practices in some of the House’s other committees. In my 11 years on the Public Accounts Committee, Ministers never attended as witnesses. I am not advocating a prohibition on Ministers attending the ISC, but Ministers would be no more likely to attend a House Intelligence Committee than the ISC. With hearings being held in private, there will be no additional pressure on Ministers to attend. I believe that with the right membership, a parliamentary committee is as secure as the ISC. I reject the statement in the Green Paper as I said in an earlier intervention; if the right people are selected there will not be a problem.
I remind the Committee that this is the first real open debate we have had in Parliament on this issue in 14 years. I welcome this debate. We need now to grasp the mettle and not muck around with some interim or secondary arrangement. There is an expectation among colleagues that the system should work. We must be satisfied that the structure we create is going to work so that we have a system that is credible with the public.
The Marquess of Lothian
My Lords, I have long been an admirer of the persistence of the noble Lord, both in this House and in the other place. Certainly, in regard to his amendment, that is no exception. I wish to correct him on one point he made at the end. There is no prohibition on relevant Ministers attending the ISC and they have done so on a number of occasions. That is simply a matter of fact.
Over the years that I have been a member of the ISC, I was one of those who thought very carefully about the future of the committee and whether it should be a Select Committee. Although I understand many of the points made by the noble Lord, particularly in relation to privilege, I shall say why ultimately I do not agree with him on making this committee a full Select Committee of Parliament.
Over a long—probably overlong—if broken career in the other place, I served on two Select Committees. Their purpose—I refer to the Select Committee on Energy and the Public Accounts Committee—was to openly take evidence that was available to the public on matters of relevance in terms of energy and of public accounting. The culture of a Select Committee is based on being able to take open evidence. There is no compunction on witnesses at a Select Committee to give full answers; there is no evidence given on oath. But normally a Select Committee is not dealing with confidential information that cannot be disclosed in that forum.
Lord Butler of Brockwell
My Lords, I shall speak also to Amendment 9.
It is right and customary to declare an interest in these amendments. I certainly do so in this case because I have a direct financial interest in Amendment 4. The purpose of the amendments is that the chairman of the Intelligence and Security Committee should be treated in the same way as the chairmen of Select Committees in terms of remuneration. The purpose of Amendment 4 is that the members of the Intelligence and Security Committee should, similarly, be treated in the same way as members of Select Committees.
I wish to make it absolutely clear that Amendment 9 is not tabled at the behest of the current chairman of the ISC, the right honourable Malcolm Rifkind, who does a great deal of work for the committee on an entirely voluntary basis. I think that my colleague the noble Marquess, Lord Lothian, will agree that this committee chairman certainly does not do less work than the chairman of a Select Committee. He works many more days of the week than the days on which the ISC meets. For financial purposes—and leaving aside the particular individual, Sir Malcolm Rifkind—the chairman of the ISC should, as a matter of justice, be treated similarly to the chairmen of Select Committees and receive remuneration accordingly. I think I can say that that is the view of the other members of the ISC, who are similarly grateful for and deeply impressed by the work that our chairman does.
As regards Amendment 4, the House of Lords is kind enough to provide that attendance at meetings of the Intelligence and Security Committee should qualify for half the daily allowance—£150—but only on the days when this House is sitting. There seems to be no logic in that. We do exactly the same amount of work regardless of whether this House happens to be sitting at the same time. If one day should qualify for the £150 allowance then it seems that the other day should. This point arises because, these days, and as we will see in the next couple of weeks, the sittings of the House of Commons and the House of Lords do not always coincide with each other. I regret that. It may happen in September that the House of Commons will sit and the House of Lords will not. If there is a meeting of the ISC on those days, my noble colleague and I will not be eligible for the daily allowance. There is a greater injustice as a result of the unevenness of the sittings of the House of Commons and the House of Lords.
I have, as I say, a personal interest in this perfectly simple point of equity, which ought to be put right. It can easily be put right in the rules on the financial support of the House. In order to draw attention to it and try to ensure that it is put right, I have put down Amendment 4.
The Marquess of Lothian
My Lords, I support the noble Lord, Lord Butler of Brockwell, in both of his amendments, to which I have attached my name. Like him, I declare an interest in Amendment 4—on which I shall say no more than he has said. He has argued the case with great eloquence and I hope that the Government will listen to his argument.
In general terms, I say to the noble Lord, Lord Campbell-Savours, that these amendments are slightly ironic, given what I was saying in answer to his previous amendment. We are asking to be treated like a Select Committee and, once more, this underlines the fact that the argument on that is not polarised. It is not about the theory of a Select Committee but about the practice of one. We may well return to this matter in the future.
I strongly endorse the proposal in Amendment 9 that the chair of the committee should be remunerated in line with the chair of departmental Select Committees. I have served under four Intelligence and Security Committee chairmen, I think, and in each case I have been amazed at the amount of work they are required to do compared with the ordinary members of the committee. The ordinary members do preparation behind closed doors in secure surroundings for an afternoon and then we have the meeting the next day, but the chairman is in almost every day, going through issues, deciding whether they should be brought to the committee. The chairman has a major piece of work. It is therefore only fair that the chairman should be properly remunerated, as he would be if he were a chairman of a Select Committee.
Lord Campbell-Savours
My Lords, I wholeheartedly support the amendment. My parting speech in the House of Commons in 2001 was on the very issue of the payment of chairmen of Select Committees. I wanted to see the development of what you might call a separate career structure in the legislature as opposed to the Executive. When I was a member, the chairman, the noble Lord, Lord King of Bridgwater, did excellent work. When I think of the amount of work that he took on, it is inconceivable that we should now push through legislation without taking full account of that work and the need to ensure that it is remunerated.
Lord Butler of Brockwell
My Lords, Amendment 5 is an amendment to Clause 1(4). It seeks simply to fill out an obvious point that is not currently covered by the Bill.
Under the arrangements proposed in the Bill, the Prime Minister will propose members of the committee but it will be for Parliament to agree to the appointment or not. Therefore, we need to provide for the situation in which Parliament does not agree to an appointment. At the moment the Bill says nothing about that. The purpose of this amendment is to make clear that in those circumstances, if either the House of Commons or the House of Lords does not agree to the nomination of a Member of that House to the Intelligence and Security Committee, the Prime Minister would have to nominate somebody else for the appointment for the approval of the respective House. I think that is obvious and that is what would happen. It is not provided for in the Bill and this amendment is therefore just to fill that gap.
The Marquess of Lothian
My Lords, once again I rise to support the noble Lord, Lord Butler of Brockwell, on this amendment, to which my name is also attached. I will not add much to what he said. I think that the real purpose here is to remind the House that the committee has nine members. That is written in to the statute. It is one of the smaller committees involved in the sort of work that this committee is doing and it is very important, in my view, that we retain that number at least. In the absence of this amendment it is theoretically possible that this House might decide that it did not want the two nominations from this House made by the Prime Minister and that the Prime Minister might decide to leave it at that—have a committee of seven in total from the House of Commons and nobody from this House. This amendment would make sure that that cannot happen by ensuring that, were this House or, indeed, the other House to say no to nominations by the Prime Minister to this committee from those Houses, the Prime Minister would be required to make another nomination.
Lord Campbell-Savours
My Lords, I shall speak to Amendment 6 in this group. My amendment deals with the wording in Clause 1(5) of the Bill, which states:
“Before deciding whether to nominate a person for membership, the Prime Minister must consult the Leader of the Opposition”.
I have great reservations about this, and I will explain why. I think that this is the product of muddled thinking. This is an appointment of trust. The appointment requires the Prime Minister’s knowledge of opposition politicians. I think that Ministers very often do not understand what motivates opposition politicians.
As an example I take my own appointment. It is utterly inconceivable that the then Prime Minister, Margaret Thatcher, now the noble Baroness, Lady Thatcher, would have appointed me to that committee. She would have referred to my record in the 1980s when I was running with the hounds on the issue of Peter Wright and we caused some considerable difficulty, I was informed, in the House of Commons. I had endless arguments with the Table Office over the tabling of Questions. On a number of occasions my Questions, which, it was thought, would have breached national security had they been tabled, were submitted to the Speaker of the House of Commons under the appeal procedure. If, in the 1980s, I had applied to be a member of this committee, I feel quite sure that if it had been left to the Prime Minister of the day—I am arguing the converse—the Prime Minister of the day might well have objected to a person like me being a member of that committee.
The problem was that, at the time, people did not know what we were campaigning about. It was about reform of Section 2 of the Official Secrets Act and about the need to introduce freedom of information legislation. In both areas we were successful. All I am saying is that, before we go down this route and require the Prime Minister to consult with whomever, we should have in mind that it is possible that people might be blocking appointments in an unfair manner.
Amendment 8 deals with the issue that the chair of the ISC is to be chosen by its members. This is the product of muddled thinking among those who fail to understand the internal dynamics of the committee. It is as if someone has sat down to devise systems of greater accountability that enable them to avoid taking the big question on going for full Select Committee status. In my view, the chairman needs the respect of the agencies, and new members appointed in a new Parliament will have no knowledge of the relationship between the chairman or any member of that committee and the agencies. There is a real danger that the Whips will seek to influence members’ decision about whom to appoint as chairman. It might be that there is an exercise in handing out the jobs going on. I feel that it is wrong that the committee should be placed in a position where it has to choose its chairman at the beginning of a Parliament. New members might be unduly influenced by previous members against their better judgment. As I said at Second Reading, if when I was selected to sit on the committee, I had been asked to vote for the chairman, I would never have voted for the noble Lord, Lord King of Bridgwater, because he was not top of my list of popular Secretaries of State, but within a matter of months I realised that he was ideal for the job. You need the experience of being on the committee before you start picking the chairman. What we are doing here is establishing a procedure whereby a chairman will be selected by new members going on to a committee without any knowledge of who they might be appointing.
If a chairman does not fully enjoy the trust of the agencies, there is a danger that that lack of trust may impede the work of the committee by denying access to material that is on the margins of the memorandum of understanding. There will be material on the margins of the memorandum of understanding to which the committee wants access, and it is vital that the chairman is someone who has been picked not by members of the committee but by the Prime Minister.
The Marquess of Lothian
My noble friend Lord King of Bridgwater was talking about the noble Lord, Lord Gilbert, leaving the committee. Between 2007 and 2009, two chairmen of the committee were promoted to being Ministers and left the committee. I wonder how the committee would have been able to elect successors to those two when we needed someone of sufficient seniority to carry out that task.
Lord Henley
I think that my noble friend possibly means that two members of the committee were promoted to being Ministers, rather than two chairmen.
The Marquess of Lothian
No, they were two chairmen. The first was Paul Murphy and the second was Margaret Beckett.
Lord Henley
Yes, my noble friend is correct in that. I was looking at the wrong dates—he means between 2007 and 2009. I will obviously have to examine this and, as I promised my noble friend Lord King, examine the statistics in relation to the 1997 Parliament, when there would have been the biggest change in the membership, rather than the subsequent Parliaments. In brief, I stick to my position that it would be better for Parliament to make this decision, rather than the Prime Minister, but I note the concerns put forward by colleagues from all sides, or both sides, of the House.
I turn to Amendment 7, which presents the idea that, whatever happened, the chairman of the committee should be drawn from an opposition party. Again, my noble friend Lord King had some sympathy for this amendment, but when one looks at the history of the committee and the distinguished service of my noble friend, who served as chairman when our party was in government, and as chairman in opposition, from 1994 to 2001, it is obvious that one can do it from either side. To make a statutory requirement that a chairman had to come from the opposition party would unnecessarily limit the available candidates for that job. My noble friend rightly pointed to the problems that might have arisen in 1997 when, after a very long period in opposition, all the more senior members of the then opposition party going into government were likely to become Ministers, and there might not have been suitable people around. To curtail who could be chosen would reduce unnecessarily the pool from which the appropriate chairman could be taken.
Having said that I would listen to comments made on Amendment 8, proposed by the noble Lord, Lord Campbell-Savours, I hope that the explanations that I have given on the other Amendments 5, 6 and 7, as well as Amendment 8, will be sufficient for the noble Lord to withdraw his amendment.
The Marquess of Lothian
I am grateful to the noble Baroness for giving way. Could she perhaps outline to the House what sort of meetings of this committee should be held in public?
Baroness Hamwee
I am saying that the committee should consider whether there is a reason not to hold a meeting in public. My approach to this would be to say that each move into closed session should be considered quite positively. I look at it the other way round; it is a different philosophy and I accept that.
I have provided in Amendment 14—these are probing amendments—that a determination could be made to apply to more than one meeting. I cannot believe, given the committee’s obligation to the public, that every meeting should be held privately unless there is a good reason to hold it in public. As I say, it is a difference in philosophy. Amendment 14 is, as I say, probing, and I accept that a decision could be taken to cover more than one meeting.
Amendment 15 is rather different. I think that there is a place for something like a public question time. The noble Baroness’s amendment suggests annual hearings with the heads of the agencies and the Secretary of State, and I think that that is a good idea. In both of our amendments, we suggest that the public should have a hand in setting the agenda of the committee. I beg to move.
Lord Campbell-Savours
My Lords, perhaps I may intervene briefly. Amendment 14 says that,
“the ISC shall meet in public save when it determines that members of the public shall be excluded”.
I think that that would put the fear of God into the agencies and I am afraid it would create a climate of suspicion which the committee does not deserve. I am not saying that it should not meet in public on occasion, as I shall explain in a minute, but putting words such as that into the Bill would be very unpopular within the agency. It needs to have confidence that Parliament is able to handle the material with the necessary safeguards.
Amendment 15 says:
“The ISC shall not less than once in each calendar year hold a public question time for which it shall determine applicable procedures”.
In a curious way, there may be something in that amendment. I remember—and the noble Lord, Lord King of Bridgwater, may recall—that we did occasionally meet in public. After the Mitrokhin inquiry, we invited journalists in to ask us questions. Therefore, in a way, the structure is there to do it. The question is: what is on the agenda? I can foresee circumstances in which there may well be an item of some controversy or just a general report where the committee may want to meet in public, and the public—basically, journalists—ask questions. However, Ministers may want to ponder over the exact wording of the amendment.
Finally, Amendment 17 says:
“The ISC may decide to hold some of its proceedings in public, subject to sub-paragraph (2) … The ISC may not hold public hearings under sub-paragraph (1) if it might lead to the disclosure of”.
The problem is that if members of the agencies, or indeed Ministers, are brought in as witnesses to answer questions, their refusal to answer, for perfectly legitimate reasons of national security, might send a hare running in the media which gets completely out of control. Although I accept that there are conditions in which the public or journalists should be able to ask questions, we have to be very careful about witnesses who might be called before the committee in those circumstances but who might feel that they cannot answers the questions in open session. The reason that parliamentary Select Committees meet in private is to avoid those very problems.
Therefore, again, I give qualified support but I think that there would be certain conditions under which it would be quite wrong for the committee to meet in public.
The Marquess of Lothian
My Lords, perhaps I may intervene briefly to say that there is nothing to prevent the ISC in its present form holding public hearings. Indeed, the Prime Minister in the previous Government, Gordon Brown, called on the committee to hold public hearings, and we have been looking very closely at ways in which this can be done. Therefore, there is nothing in Amendment 17 that I find very difficult because, first, there is the principle and, secondly, the restrictions on it which would be required for any public hearing.
However, following on from what the noble Lord, Lord Campbell-Savours, has just said, the first point to bear in mind is that a public hearing should not end up as a farce in which, because of the subject matter, every significant question that is asked is answered by the famous phrase, “I can’t answer that question”. The credibility of the committee would suffer very quickly if we went down that road. Secondly, it has to be an honest process. We cannot have a subject which is so anodyne and so completely rehearsed that in the end the public see through it. That, again, would be to the disadvantage of the committee.
We are looking closely, whether under this Bill or even before the Bill goes through, at whether we can identify subjects that are of genuine public interest and where the agencies or the sponsoring Ministers will feel able to answer at least the majority of the questions. We are looking at holding a public hearing in which the members of the committee, in its normal form, ask the questions and the answers are given. I think that that is slightly different from the sort of press conference to which the noble Lord, Lord Campbell-Savours, referred, which we have also undertaken on a number of occasions. This would be a case of the committee asking questions of the agencies, which is, after all, the true role of the committee.
Justice and Security Bill [HL]
Marquess of Lothian Excerpts(12 years, 4 months ago)
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Lord Butler of Brockwell
My Lords, this is a probing amendment. Before the dinner break, we were discussing the circumstances in which information might be withheld from the Intelligence and Security Committee on grounds of national security. Paragraph 3(3)(b) refers to the withholding of information other than on grounds of national security, and the purpose of the amendment is to inquire of the Minister what sort of other information this sub-paragraph has in mind.
A characteristic of the Intelligence and Security Committee is that the agencies convey to it a good deal of information which would not be confided to a normal Select Committee. The ISC would be dismayed if that practice were to cease because this provision was in the Act. Therefore, I ask the Minister to give an example or examples of the sort of information that this sub-paragraph is included in the Bill in order to protect. If the box were empty, it would be a pity to have it in the Bill—indeed, doing so would make it poor legislation. However, if the Government have in mind information other than security information which should not be confided to the Intelligence and Security Committee, I know that the ISC would be very happy to consider that point.
The Marquess of Lothian
My Lords, I wish to add briefly to what the noble Lord, Lord Butler of Brockwell, has said. I am puzzled by this sub-paragraph because it does not say “information other than national security”; it says,
“not limited to national security”.
That suggests that anything that cannot be allowed to go to another Select Committee should not be given to the Intelligence and Security Committee. We debated earlier why the ISC should not be a Select Committee, and one reason is so that it can receive information which cannot be passed to an ordinary Select Committee. It may be that this provision is very well meaning and that it touches on advice given to Ministers or on other matters where I think we would all accept there have to be limitations. However, I wonder whether the draftsman has this slightly wrong. One reason for asking for the sub-paragraph to be deleted is in the hope that the Minister, along with the draftsman, will look at it again and come back with something which meets what I think the sub-paragraph is trying to achieve in meaning but which it does not achieve at the moment.
Lord Campbell-Savours
My Lords, this concerns precisely the same query as I had during our debate on the previous amendment—that is, I cannot understand what the provision is referring to, although I recognise the wording. The wording comes from the draft of something else that I have read and it must already be known to the agencies. Therefore, some briefing must have been given to the Minister regarding the source and why its inclusion in the Bill is warranted. Perhaps even now at this late stage I can, on a second occasion, ask for the same information. I should like to know the answer. It may be that the provision should simply be redrafted in language which simpletons such as myself can understand. However, at the moment I do not understand what it means.
Lord Butler of Brockwell
My Lords, Amendments 30 and 32, in my name and that of my colleague the noble Marquess, Lord Lothian, raise substantial points.
Amendment 30 deals with the point where the Bill cannot mean what it presently says. I will read it out and that will be the best way of making it clear. Clause 2(3) states:
“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest”.
The Intelligence and Security Committee accepts entirely that those are the two categories of operation that the committee should—and does—normally look at. I note that the amendment tabled by the noble Lord, Lord Campbell-Savours, seeks to remove the ban on looking at any ongoing intelligence operation. The committee agrees that its oversight of operations should be retrospective and on matters “of significant national interest”.
However, the effect of the drafting is that when an operation “of significant national interest” is over, the agencies should have to get clearance from the Prime Minister as well as the ISC before discussing those matters with the committee. That is not only bureaucratically very intensive but a step backwards from what happens now. What happens now is that when an operation involving important matters is over, the intelligence agencies, of their own accord, report on it to the ISC, which looks into it and discusses it with them. The committee has had access to that sort of material for a number of years. In some cases the agencies volunteer it and in other cases the ISC asks to see it. I cannot believe that it is the intention in such cases, which have been routinely going on, that the Bill should require the Prime Minister to be consulted whenever the agencies wish to report such matters to the committee.
That having been said, the ISC is content that its normal purview should be of operations retrospectively where there are significant national interests. Amendment 32 would add a new subsection saying:
“The ISC may, notwithstanding subsection (3), consider any particular operational matter if the relevant Minister of the Crown agrees to the consideration of the matter”.
That is simply to give flexibility. As I said, there is no difference from the Government’s view that the purview should normally be retrospective. However, if it suited the Government that the committee should look at an ongoing security operation—this would be at the discretion of the Government—clearly it would be unfortunate if the Bill ruled that out. This is simply to allow flexibility on a matter where in general the committee and the Government are in agreement.
The Marquess of Lothian
If I may, I will quickly add a word to what the noble Lord, Lord Butler of Brockwell, said. He talked about this provision creating bureaucracy. In my view it could be worse. It could create an enormous logjam in Downing Street if every single item needed the consent of the Prime Minister. The danger then is that the logjam will continue to grow until you get to a stage where information that should have been looked at either will not be looked at or will be looked at so late in the day that it is not worth looking at.
Lord Campbell-Savours
My Lords, I have proposed Amendment 31 not because I want to remove completely the intent behind the words,
“is not part of any ongoing intelligence or security operation”;
but because it needs qualifying further. Under the proposals in this clause, it is possible to block much operational material being brought before the Committee. As I read it, the agencies need only declare that a matter is,
“part of any ongoing intelligence or security operation”,
and they can block it and deny access to the committee. What is the danger in that? It could close the door on a large volume of information.
Let us take as an example operations in Iraq. Because of the merging of operations, one could simply group an operation, which the committee might regard as one that it should be considering, with other operations in Iraq but merge them under a single operation heading and, by taking that action, avoid bringing information about those operations before the committee. Therefore, merged operations may well hide information from the committee to which it should have access. The same would apply to operations in Afghanistan. It could certainly apply to operations relating to drugs in Colombia and, without doubt, it could refer to operations in Northern Ireland. Simply the declaration that they were merged under one operation would mean that the committee could be denied information. I wondered whether the services were aware of this when they were making their submissions during the drawing up of the Bill, so that they were prepared to concede the principle of access to operational information.
That brings me back to my model, because it is only if the chairman of the committee has access to everything that that possible problem can be avoided. The chairman would be in a position to argue with the agency about whether the merging of operations was denying information to the committee.