Justice and Security Bill [Lords]

Debate between Diana Johnson and Malcolm Rifkind

Tuesday 18th December 2012 Commons Chamber

[Diana Johnson (Kingston upon Hull North) (Lab)]

The Bill has implications for liberty, security and justice. The fact that those are serious matters has been reflected in the number of reasoned and considered contributions that we have heard today. We have heard 22 speeches, in addition to those from the Front Benches, many of which have been informed by Members’ experience in government and on the Intelligence and Security Committee. The whole House welcomes those contributions. In particular, I would like to mention those made by the Chair of the Intelligence and Security Committee, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind); the Chair of the Joint Committee on Human Rights, my hon. Friend the Member for Aberavon (Dr Francis); and the Chair of the Treasury Select Committee, the hon. Member for Chichester (Mr Tyrie), as well as those made by several former senior Ministers, including my right hon. Friends the Members for Wythenshawe and Sale East (Paul Goggins), for Salford and Eccles (Hazel Blears), for Blackburn (Mr Straw) and for Knowsley (Mr Howarth). The leader of the Welsh nationalists, the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), also made one of his usual considered contributions.

The Bill has already been the subject of considerable debate in the other place, where many Members were able to draw on their considerable experience to scrutinise it and suggest improvements. We in this House are grateful for their efforts and the improvements that have been made. In particular, I want to pay tribute to the work of my noble Friends Baroness Smith and Lord Beecham. I am also pleased that the Minister without Portfolio said today that the Government would not seek to overturn some of the amendments made during the Bill’s passage through the House of Lords, and I look forward to hearing further details from the Minister in Committee as to why they disagree with certain others.

The matters in the Bill are sensitive and complex, and the Opposition will work with the Government to reach consensus, wherever possible, based on the evidence available. The introduction of closed material proceedings is undoubtedly the most controversial part of this legislation, and the Opposition accept that there are rare occasions when their use will be necessary. We cannot continue to accept a situation in which the Government are forced to settle claims because they are unable to adduce evidence without compromising vital national security evidence.

In the other place, the noble Baroness Manningham-Buller spoke passionately about the need for the security services to be able to protect their standing in the eyes of the public and for dedicated security staff not to have their reputation traduced because there was no mechanism for challenging allegations. However, as my right hon. Friend the Member for Tooting (Sadiq Khan) explained earlier, we had serious concerns about the scope of closed material proceedings as proposed in the Green Paper and again in the Bill as it was first presented to the Lords. We are pleased that the Government have listened to the strength of feeling expressed in the other place and by the Opposition, and that they have now indicated they will not seek to overturn all the Lords amendments. As I said earlier, we look forward to the debate in Committee.

The Bill also introduces limits on the courts’ ability to demand the release of information, following on from the principles developed in the case of Norwich Pharmacal. That case established the principle that an innocent third party could be forced to disclose information to enable an action to be taken against another party. In the case of Binyam Mohamed, this principle was extended to cover issues of national security. We know that the then Foreign Secretary stated that the release of such information was likely to cause real damage to both national security and international relations. The Independent Reviewer of Terrorism, David Anderson, QC, has now presented several examples where evidence has not been freely given to the United Kingdom because of the danger of its being released into the public domain. Several members of the Intelligence and Security Committee have raised this and confirmed that it is a problem, too.

I think there is an acceptance on both sides of the House, although not by all Members on either side, that this situation is unacceptable. The Opposition accept there is a pressing need to reassert the control principle, to ensure that foreign Governments can be confident that any information passed to the UK Government will remain in the hands of the Executive. We will therefore support the Government in their attempts to prevent the disclosure of information under the Norwich Pharmacal principles where the information is sensitive, and where its release might compromise our relations with foreign allies. The Opposition have concerns, however, about the breadth of the current definition of sensitive information and we hope to persuade the Government in Committee that the control principle can be protected within a narrower definition.

Finally, let me return to part 1. Although it is perhaps not as controversial as part 2, it is equally important, strengthening both the oversight and the public standing of the security services—aims behind which the whole House can unite. In emphasising why public support is so important to the security agencies, I refer again to the noble Baroness Manningham-Buller who drew on her own considerable experience to say in the other place:

“The support of members of the public is necessary not only in terms of general support for the organ of government but because, to do their work the agencies require that support every day of the week. They need the public to join them as recruits…they need them as sources of information, and they need them to help in whatever way possible...Therefore, when we talk about public opinion, the services require the help of the public to do their job and, in my experience, they get it.”—[Official Report, House of Lords, 9 July 2012; Vol. 738, c. 932-33.]

Like the noble Baroness, the Opposition believe that public support for the security agencies will be enhanced by greater openness and scrutiny. For this reason, the Opposition support the Government in what they are attempting to do in strengthening the role of the Intelligence and Security Committee. Indeed, we would like to see the Government be far bolder in recasting the role of the ISC to improve public understanding and scrutiny.

Let me deal with two further issues. One is about the Bill’s wording in respect of ongoing oversight, and I am sure we will spend some time in Committee looking at whether that wording is correct. The second is the call for further resources to allow the ISC to take on these additional roles. We also hope that we will be able to work with the Government in Committee to extend the Bill’s provisions in three ways.

First, we would like to see annual public hearings with the head of each security agency. In the US, such hearings are a well-established part of the congressional oversight of the security agencies, and perform a vital role in educating the public about the work the intelligence services carry out. I do not see why the same role could not be performed in the UK.

[Sir Malcolm Rifkind]

The hon. Lady and the House may be interested to know that the ISC has decided—it has the agreement of both the Government and the agencies—to hold its first public hearing, probably some time in the early part of next year. If it is seen to be successful, it should indeed become a regular event.

[Diana Johnson]

I am grateful to the Chairman of the Intelligence and Security Committee for giving us that information. It seems very positive that the first item on our shopping list is going to happen.

[Sir Malcolm Rifkind]

What is the second item?

[Diana Johnson]

Ah! Secondly, we would like to see the ISC hold pre-appointment hearings for the agency heads. The Labour Government pioneered such hearings for other public appointments, including permanent secretaries, and we now feel it is right to extend these hearings to security agencies.

Thirdly, we would like to see the ISC operate under the protection of parliamentary privilege and be able to take evidence under oath. The Opposition believe that the only way to guarantee parliamentary privilege is to make the ISC a Select Committee. To confer parliamentary privilege by means of an Act of Parliament would make it subject to legal challenge. That is unacceptable, particularly as witnesses might divulge sensitive information to the Committee, believing it to be subject to privilege, only for that to be overruled by the courts.

We accept that there would be practical problems in the creation of the ISC as a Select Committee, and that foremost among them is the need for its members to be vetted and approved. We hope to work with the Government to find a solution to that problem during the Bill’s Committee stage.

In the other place, the Government’s further reasons for opposing the creation of the Select Committee were unconvincing. Lord Taylor’s arguments seemed to focus on the difference between statute and Standing Orders. If the ISC were recast as a Select Committee, the rules and procedures needed to safeguard the special nature of its proceedings would be determined by Standing Order. If it were created as a new type of quasi-parliamentary entity, its rules would be enshrined in statute. The Minister said that that extra protection was essential, as a Standing Order could be amended by a single vote in the House. The implication seemed to be that that would enable the rules to be altered on a whim.

I think that it does Parliament a great disservice to suggest that either House might make such a serious decision without proper consideration. On the basis of my experience of pushing for the modernisation of Parliament and for reform of its sitting hours, I can say that I have found it extremely reluctant to alter any of its Standing Orders without very good reason and evidence; and I hope that the Minister has been convinced by the serious nature of today’s debate, and the series of debates in the other place, that it cannot possibly be said that Parliament does not afford these matters the full seriousness that they deserve.

Let me finally reiterate the Opposition’s support for the aims that the Government are pursuing. We think that the Bill is far better as a result of the amendments made in the other place. In Committee, we will work to extend the provisions of part 1 to protect the amendments to part 2 that were made in the other place, and to restrict the definition of sensitive information. I look forward to working with the Minister. I know how seriously he takes the views of other Members, and I hope that we shall be able to reach a consensus on the best way to proceed.