Justice and Security Bill [HL]

Baroness Stowell of Beeston Excerpts

Monday 19th November 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, the amendment concerns the power to withhold information from the ISC and at what level the decision should be taken. The Bill states that the decision should be taken by a “Minister of the Crown”. The amendment proposes that it should be at the level of Secretary of State in the relevant department and not just a Minister of the Crown. The response I was given in Committee was that the Cabinet Office does not have a Secretary of State and therefore it would be the Minister of State. As somebody who was the Minister of State at the Cabinet Office, that did not seem appropriate. Every department has a Minister who sits in the Cabinet. The reason for putting the amendment before the House today is to propose that, as a minimum, it should be a Minister who is at the equivalent level of Secretary of State. That would be justified because the explanation given by the Minister in Committee for lowering the threshold was not adequate given such a change in power.

We have sought to tighten up the drafting to make it clear in the Bill that in all but exceptional circumstances the power to withhold information from the ISC should be exercised only by a Secretary of State unless there is no Secretary of State in that department. In that case, it should be exercised by a Minister of comparable rank such as the current Paymaster-General who is a member of the Cabinet as well as the most senior member in the Cabinet Office. The amendment is simply to specify that a reference to a Minister of the Crown should be interpreted as a Secretary of State for that department except where there is no Secretary of State where it should be someone of the equivalent rank.

I hope that that is clear and I hope that the Minister can accept or at least reflect on this because it would be a significant change if it was not the Secretary of State seeking to withhold information. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I hope in responding to the noble Baroness, Lady Smith of Basildon, that I can give her some assurance so that she feels able to withdraw her amendment.

The Bill provides that Ministers may decide that information should be withheld from the ISC on two grounds. First, the Minister may consider that it is “sensitive information” as defined in the Bill, which in the interests of national security should not be disclosed to the ISC, and secondly for the reasons that we just discussed.

Currently, under the provisions of the Intelligence Services Act 1994, information can be withheld from the ISC on the same grounds, but the decisions to withhold are taken, in part, by agency heads rather than Ministers. These powers to withhold information from the ISC have been used very rarely in the past, and we would expect the equivalent powers in the Bill to continue to be used sparingly, only in exceptional circumstances; however it is important that these safeguards are retained as there will continue to be material the nature of which is so sensitive that access to it must be very narrowly restricted in the interests of national security.

Where agencies’ material is concerned, the Bill provides that decisions to withhold information from the ISC must be taken by the Secretary of State. However, where the ISC requests information from another government department, a decision to withhold is taken by the,

“relevant Minister of the Crown”.

That means, for these purposes, such a Minister as is identified in the memorandum of understanding between the Prime Minister and the ISC or, where no Minister is so identified, any Minister of the Crown.

The effect of the noble Baroness’s amendment would be that in circumstances where the Bill enables a Minister of the Crown to withhold information from the ISC, that power would rest with the Secretary of State for the department whose information is to be withheld, or for departments without a Secretary of State, a Minister of the equivalent level, identified in the memorandum of understanding.

The reason that we have included provision for the exercise of the power by a Minister of the Crown rather than a Secretary of State in respect of material held by government departments is that there may be some departments where there is no Secretary of State. The noble Baroness referred to this. For example, the post of Minister for the Cabinet Office is a Minister of State position rather than a Secretary of State position.

The current ISC has, over its history, taken evidence on, and made recommendations relating to, the Joint Intelligence Organisation and the central intelligence functions of the Cabinet Office. The Bill formalises the ISC’s oversight role for bodies such as the Joint Intelligence Organisation so the Cabinet Office can expect more requests from the ISC for disclosure of information in future. It is therefore important that a Minister of the Crown should be able to make decisions about when and what information should be withheld from the ISC. This may not just be about the Cabinet Office. It may be that, in the future, other government departments involved in security and intelligence functions will not have a Secretary of State. This provision would also cover those circumstances.

I appreciate the intention of the amendment, which is to ensure that the Minister of the Crown making the decision to withhold information from the ISC is of appropriate seniority. I hope that I can reassure the noble Baroness that that is also the Government’s intention. We hope to publish, before Third Reading, a document which sets out the areas that the Government expect the memorandum of understanding to cover, premised on the assumption that the ISC-related provisions in the Bill are enacted, substantially, in their current form.

In that document, we will state that it is the Government’s intention that the Minister making such decisions should be of appropriate seniority and should have sufficient knowledge of the work of the department in question. The document will state that it is the Government’s intention that, for the Home Office, the Minister making such decisions should be the Home Secretary, for the Foreign Office the Foreign Secretary, for the Ministry of Defence the Defence Secretary and for the Cabinet Office a Minister of State. As I said, I hope that that gives the noble Baroness enough assurance for her to withdraw the amendment.

[Lord Gilbert]

I apologise for interrupting the Minister, but surely the more important question is whether or not the Minister is required to let the committee know that he is not telling them something. If he does not tell them that he is not telling them something they will not know that they have not been told something. Anyone with any experience of ministerial office at all knows perfectly well that that is the principal work of civil servants when they want to undermine Ministers and they do not like government policy. They do not tell Ministers things. We are entering an opaque area and I cannot see any answer to those questions in what the noble Baroness said.

[Baroness Stowell of Beeston]

The point of this debate and the amendment that we are discussing right now is the authority of the relevant Minister to decide whether or not to withhold information from the committee. It is not about whether the committee has the right to request information. The committee has under its wider remit the ability to request information from government departments, but it is for the relevant Minister to have the authority to be able to decide whether to agree to that request. This is about the authority of the Minister.

[Lord Gilbert]

On the same point, is there an obligation on the Minister anywhere in the legislation to inform the committee that he is withholding information from it?

[Baroness Stowell of Beeston]

That is not the issue that we are debating right now. If I may, I will have to come back to the noble Lord. I would think that that detail will be covered.

[Lord Campbell-Savours]

Can I help the Minister? Surely, if the committee has asked a department for information, it will know if it does not get it back that it has been refused. The issue is whether it will know which Minister refused the information.

[Baroness Stowell of Beeston]

I am grateful to the noble Lord for his assistance. That is absolutely right. If the committee requests the information, because the MoU will make it clear which Minister within a department is responsible for responding or deciding whether or not the department should provide that information, obviously the Minister has an obligation to respond to that request.

[Baroness Smith of Basildon]

My Lords, I am not sure that the noble Baroness has understood the central point that I am making and if she has, she has not answered it to my satisfaction. The query that I have with this amendment is the level of the Minister who can exercise a veto. I entirely agree that it is an exceptional measure that will be used only in exceptional circumstances. It takes the power from the agency’s head so that it rests with the elected representatives of the Government who are ultimately accountable to Parliament. But I have not heard from the noble Baroness an adequate justification from the Government as to why they have chosen to downgrade the level at which the veto is held from a Secretary of State to a Minister of State.

I mentioned the Cabinet Office because that was the department mentioned by the Minister previously. The noble Baroness responded and said that it could be another department that does not have a Secretary of State. The point being made is the level of Minister who can withhold information and exercise a veto against the ISC. It is entirely reasonable that it should be the Secretary of State or a Minister at the same level, not downgraded to a Minister of State level.