Justice and Security Bill [HL]

Baroness Hamwee Excerpts

Monday 9th July 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I have Amendment 25 in this group but I had not given much thought to sub-paragraph (b), the subject of Amendment 24, other than to note it in general terms. A question occurs to me, however, as it is being discussed, as to whether it is normal—perhaps I should not say “appropriate” as I do not want to be judgmental—for primary legislation to refer to a procedural matter in this way and incorporate it into primary legislation. I will leave that there.

My Amendment 25 proposes an exclusion if we are to have decisions by Ministers as to what should not be disclosed. My noble friend Lord Thomas put his name to the amendment without realising, as he has just now prompted me, that my drafting is sloppy and it should have started “or (c)” and not just “(c)”. I apologise to the Committee for that. The information which could not be disclosed would be information relating to conduct which might be a,

“breach of UK or international law”.

I refer specifically to,

“the European Convention on Human Rights, the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment”.

The wording is not original to me. It was suggested by Amnesty International. It was a good suggestion. I know that there are other noble Lords in the Chamber who have far more experience of these issues than I do. It occurred to me that the Minister might say that any such breach should not be dealt with in this way and if there was a claim by an individual about a breach that would be a matter for the court. Perhaps this amendment needs further thought. I would be concerned to be sure that the Government did not withhold such information. This at any rate might be a start and we will get the Minister’s comments.

[Lord Lester of Herne Hill]

My Lords, I rise as probably the least knowledgeable and competent person to say much about this but I do so because of my experience as a member of the Joint Committee on Human Rights. I am glad that the noble Lord, Lord Butler of Brockwell, has raised the issue. I do not expect an answer to my question this evening but it would be helpful if before Report stage what I am about to ask could be answered.

I am mystified about the principles that should apply not to the ISC but to parliamentary Select Committees generally. When we come to consider the Norwich Pharmacal matter, we will be considering the extent to which courts should not be able to order the disclosure of documents that might show serious wrongdoing of the kind indicated in the amendment of my noble friend Lady Hamwee because of the harm to national security or international relations. To that extent, the Executive would be less accountable to the courts than at present. The question then arises of the extent to which the Executive should be accountable to Parliament and especially to parliamentary committees. I understand why the committee we are concerned with should be treated differently from the ordinary parliamentary Select Committee for very good reasons to do with Clause 2 of the Bill. My question is: what ought to be the position with other parliamentary Select Committees? The noble Lord, Lord Campbell-Savours, has tabled an amendment dealing with that general issue.

It would be very desirable if there were a practice direction of some kind, whether in the Ministerial Code or elsewhere, that indicated what needs to be done when a Select Committee seeks evidence of a non-sensitive kind and a security service gives an informed view not about policy but about other matters to the committee. I do not understand whether any practice is laid down on how that should be done and what the limits are when a Select Committee seeks such evidence.

Under the previous Government, when Andrew Dismore was chairman of the committee, we dealt with administrative detention without trial. We tried to get help from the security services. We were helped to some extent by the police service and we took evidence in camera from the police on some matters to do with counterterrorism. However, we were told that we could not do that with the intelligence and security services.

As I said, I do not expect an answer now, but it would be helpful if, between now and Report, we could be informed by letter of what the Government consider to be the general position on those issues. Certainly, if there is wrongdoing of a serious kind involving the sorts of issues covered by the amendment of my noble friend Lady Hamwee, and if that sort of material is not to be shown either to this or any other parliamentary committee, and is to be barred from, or limited in, legal proceedings, I am troubled by the lack of accountability of the Executive to the judicial branch of government as well as to Parliament itself.

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Moved by

[Baroness Hamwee]

27: Schedule 1, page 14, line 46, at end insert—
“(6) In this paragraph “information” includes documents and other material whether held in documentary, electronic or other form.”

[Baroness Hamwee]

Amendment 27 will not take long —under a minute. The amendment seeks confirmation that in this paragraph in Schedule 1 “information” includes the items listed. I cannot believe that it does not. Perhaps the Minister can even reply within the minute. I beg to move.

[Lord Henley]

I can be very brief. I can offer an assurance to my noble friend that “information” includes documents and other material whether held in documentary, electronic or other form. I hope that with that reassurance my noble friend will accept that the term “information” in the Bill includes all the matters that she lists.

[Baroness Hamwee]

I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

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[Lord Campbell-Savours]

This has nothing to do with the courts. This will be a discussion in the committee with the chairman and the agencies, which is where we may well end up having an argument. The agencies may say no, or Ministers may say, “No, you cannot have it because it is part of some ongoing operation”. They will not know the point at which operations have merged into a long extended operation that might go on for a long time. I am quite worried about this section. I am beginning to believe that the agencies might have conceded on this fact because they knew that they would be able to use this issue of merged operations as a way of avoiding giving information to the committee. The Minister is saying nothing here to reassure me. Perhaps he will give us more detail on Report about what constitutes “ongoing” in the way which the noble Lord, Lord King, has suggested.

[Baroness Hamwee]

My Lords, on that subject, when the Minister considers the word “ongoing”, will he tell the House whether it covers a longer period than “current”? I think I would have understood “current” investigations.

[Lord King of Bridgwater]

Or currently ongoing.

[Baroness Hamwee]

Maybe. The Minister says it has not been traditionally considered and is one of those words that only recently has come into normal use. It probably means slightly different things to different people.

[Baroness Manningham-Buller]

I think the problem is the word “operation”. Certainly in the security and intelligence world, an operation is something finite, with a code name, that will come to an end. I think that is what the legislation is trying to get at. It certainly would not be a merged operation such as a jihadist threat or Iraq, which would not be seen in those terms. That may be the difficulty. If we can make that clear in defining it, that might be helpful to the Minister.

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[Lord Campbell-Savours]

My Lords, I shall be very brief as the hour is late. I cannot see what the problem is with the Government accepting this amendment, which would simply require that the memorandum of understanding under this clause should be approved by Parliament. It is not as if the memorandum of understanding would include security sensitive information. As I understand it, it is simply about structures. The parliamentary debate would be about the structures that have been established in the detail of the memorandum of understanding. In addition, if Parliament were to give approval during the debate, Members might want to raise issues not covered in the memorandum of understanding. One of these might be regarding the investigator. There was once an investigator to the ISC. If I remember correctly, his name was Mr Morrison, and for reasons I have never understood his employment was terminated. Many Members called for the investigator to be in place and I should have thought this is an example of an area where Members of Parliament might want to question Ministers.

There is also the issue of access to individual officers within the service. When I was on the committee, the arrangement was that it was primarily the directors of the services who gave evidence to the committee, although on occasion it was one or two others. It might be that the memorandum of understanding should be considered by Parliament in the context that there needs to be some flexibility on whether people other than agency directors—perhaps officers from lower down within the ranks—should be called upon to give evidence to the committee. I do not know because this is an area I do not know a lot about. All I am saying is that I think there is room here for a debate in Parliament to consider the detail of the structure, and it is something that we have not debated here today.

My noble friend Lord Rosser dealt in some detail with these issues during the debate on one of his amendments and he sought assurances. I do hope that the Minister can explain today why Parliament will not be approving these matters. I understand that the document will be laid before Parliament, but that there will be no parliamentary debate. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendment 34 in this group, which uses the formal language of the affirmative procedure but comes to the same thing as the noble Lord’s Amendment 33. I tabled the amendment in part because I wanted to seek more information about the memorandum of understanding. The noble Lord may not have seen it, but the Government have today circulated a long note responding to a number of points raised by noble Lords at Second Reading, for which I thank them. The note includes a paragraph on the memorandum of understanding in response to my question about whether we will be able to see a draft of it, or of a framework, to enable further debate.

[Lord Campbell-Savours]

Did the noble Baroness say that she had seen a draft document or memorandum of understanding? Perhaps I misheard. Could she clarify what she said? I am sorry I could not hear.

[Baroness Hamwee]

No, I said a note from the Government responding to points made by noble Lords at Second Reading.

[Lord Henley]

Perhaps I may assist the noble Lord. It was a note sent out by myself and my noble and learned friend Lord Wallace of Tankerness, which I hope went to all Peers who spoke at Second Reading. If the noble Lord has not received his, he should have done and I can only blame the post.

[Baroness Hamwee]

My Lords, the Minister should not blame the post; it came to me by e-mail this morning. The post may follow in about three days. I want to put on the record what the note told me and other noble Lords who have seen it about the memorandum of understanding. It states:

“The MoU needs to be agreed between the ISC and the Prime Minister”.

We know that. It continues:

“We are starting this process of drafting and agreeing this document, and will do so in parallel”—

I stress those words—

“with the Bill’s passage ... Once we have an agreed draft … it is our intention that it is published, to help inform debate”.

The thrust of my amendment is that it should be subject to debate. The Ministers who sent the letter then told us:

“The matters covered … may include … The factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing and/or of significant national interest … A description of the arrangements by which the ISC will request, be provided with and hold information, including the circumstances in which the ISC will be able to access primary source materials … A description of the role of investigative staff in the ISC’s work; and … A description of the process for producing an ISC report”.

As the noble Lord said, the memorandum of understanding will be a public document, so it cannot be so sensitive that that is a reason for it not to be debated. I say to the Committee that today’s debates have shown how much Parliament—and this House in particular—has to contribute to consideration of the criteria that will be applied. We are told in Clause 2(4)(a) that the memorandum of understanding,

“may include other provision … which is not of the kind envisaged in subsection (2) or (3)”.

That is very wide. I realise that “envisaged” is another term that I have not come across in legislation before. I do not know whether it means more than “not within”, “not as described” or “not subject to” subsections (2) and (3). I am beginning to feel like an awful old fogey in raising these points but legislation should be completely clear. I believe that the criteria should be matters for debate and not simply for the draft, although we look forward to it as it will inform debate. Reading this note, it seems to me that the approach is more top-down than I should like to have seen.

[Lord Rosser]

My Lords, perhaps I may make one brief comment. I have already expressed our views about the memorandum of understanding and I think that in return I was told by the noble Lord, Lord King of Bridgwater, that I was being savage.

I just wish to pursue the point that the noble Baroness, Lady Hamwee, made about other references in Clause 2 to the kind of content that will be included in the memorandum of understanding, which we will not get an opportunity to debate and which does not have to be approved by Parliament. Clause 2(3) says:

“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, and … the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

One has to bear in mind that this is not a document that we will be able to debate and discuss and it will not need to be approved by Parliament unless the Minister is going to move on this amendment. What are these principles that will be set out in the memorandum of understanding which we are not going to be told about when discussing the Bill and which we are not going to be allowed to discuss?