Justice and Security Bill [Lords]

Lord Beith Excerpts

Tuesday 18th December 2012 Commons Chamber

[Mr Clarke]

It was he, as Home Secretary, who introduced them. They arose partly at the behest of human rights lobbyists who are now vehemently opposing the Bill. It was the intervention of human rights activists in the case of Chahal in the late 1990s that saw the system of closed hearings develop, but some of the same people are now arguing that closed material proceedings put the Government above the rule of law.

As I have already said and as the right hon. Gentleman has with authority confirmed, people have been successful in fighting the Government in these civil actions under the closed material proceedings, as the number of claims goes—

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

rose—

[Mr Edward Leigh (Gainsborough) (Con)]

rose—

[Mr Clarke]

Let me move on, because I am probably moving on to the point of concern—

[Sir Alan Beith]

On this point.

[Mr Clarke]

All right.

[Sir Alan Beith]

My right hon. and learned Friend referred to the ability of the special advocate to challenge the evidence. Lord Kerr, in the remarks quoted earlier, talked about gisting and whether it was possible for the special advocate to confirm or correct with the other party whether he was in a particular place at a particular time, because that had come up in the evidence. We need to consider a little more carefully that ability to check back with the person who would normally be instructing the advocate but cannot because he is a special advocate.

[Mr Clarke]

I shall turn to some of this detail, but gisting is allowed under the Bill. The judge will have all the powers he requires to recommend gisting once he has heard the secret evidence.

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[Sir Alan Beith]

I point out to my right hon. and learned Friend that that situation means that refusal is possible and is too easy in circumstances where embarrassment is involved. I can think of at least one case in which I feel that that happened during my time on the Committee.

[Sir Malcolm Rifkind]

I agree with my right hon. Friend. There has to be an ultimate right for the Prime Minister to decline to allow the Committee to receive certain information. However, until now, the agencies have been able to exercise that power. To be fair to them, they have rarely, if ever, tried to do so.

On operations, the statutory basis is crucial. The Committee has accepted that our oversight of operations should be retrospective. We do not wish to interfere in ongoing operations. That would be unreasonable and would put an intolerable burden on the agencies. As long as the oversight is retrospective and there is a significant national interest—we will have debates over what that phrase means—I believe that there is a sound basis.

Thirdly, until now, the Intelligence and Security Committee has been able only to request information from the agencies, not require it. To be fair to the agencies, they have not, for all practical purposes, ever refused us information, but they have been in control of the information that has been provided. Real problems have emerged over the years. On some occasions, it has been found, subsequent to the publication of a report, that important documents had simply not been made available to the Committee. That may not have been done in bad faith, but the consequence was embarrassment for the agencies and for the system of independent oversight. That cannot be allowed to continue.

We have also found that when the agencies have responded to a requirement of the courts, the resources and the time that they have devoted to finding every relevant document have been slightly greater than for a Committee that can only request information and not require it. That is going to change. I pay tribute to the agencies for accepting the need to make this change. The Committee will now have the power to require information from the agencies, including information on operations, subject to one or two important safeguards.

I come now to the crucial difference. Until now, the problem has been that although the agencies hold vast amounts of information on any given subject, we do not expect them, when we request information, to fill several forklift trucks with information and dump it at our offices. That would be absurd, and we will not expect that when we require information in the future. However, until now, the agencies have done the editing themselves. Even if it is done entirely in good faith, that does not enable the Committee to be confident that it has seen all the information that it would wish to see before it brings forward its proposals.

We have proposed that we will appoint additional staff—assistants to the Committee, who will be our employees and be answerable to us—who will go to the agencies when we require information on a particular subject from them and discuss all the information, including the raw material, that they have in their files. I pay tribute again to the Government and the agencies for agreeing to that. I hope that there will be a process of agreement and discussion, but at the end of the day, it will be our staff who decide which parts of the available material the Committee is likely to want to see. We, Parliament and the public will therefore be able to have confidence that the decision will be taken by the Committee itself, not by the agencies, however much they would be trying to do their best in good faith.

That is an enormous culture change for MI6, MI5 and GCHQ to accept. For the first time in their history they will be not just providing information to people who are not employees of the agencies or part of the Government—we are not part of the Government, and in future we will be part of Parliament—but allowing them to come into their offices, see material and discuss what the ISC would like to evaluate. I pay tribute to the agencies for accepting that. Of course they have some reservations and concerns, and a memorandum of understanding is being discussed. It is referred to in the Bill and will be published in due course. It will explain in greater detail how the system will work on a day-to-day basis. We may have to review it in a year or two in the light of experience.

I pay tribute also to both Her Majesty’s Government and Her Majesty’s Opposition, because such a change is not just a potential rod for the back of the agencies but will occasionally create problems for the Government of the day. Both Front-Bench teams know that the Bill will mean that intelligence oversight will have the teeth that it has not had in the past, because it will be on a statutory basis and include the real powers that I have described. That is why I and the Committee feel confident in saying that we will have a tougher, more effective and more reliable system of oversight than we have ever had in our history or than can currently be found in almost any country in the western world or globally.

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[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Having served on the Intelligence and Security Committee for more than a decade after it was first established, I warmly welcome the action of Ministers in introducing these new provisions. I have some slight reservations about improvements that are needed, but the measure is a good indication of the importance that the Government attach to the effective oversight of intelligence.

Much of my time on the Committee was deeply rewarding, and gave me a great deal of respect for the people who work in our intelligence services or assist them. Sometimes, however, it was like drilling into hard rock, and the drill had not got through the rock by the time I left the Committee. There were still many areas where the Committee did not have the information that it ought to have had to make the right kinds of judgment.

The value of the Committee rests only partly on its reports, which it makes to the Prime Minister. In future, it will make reports to Parliament. There has been reference to an annual report: the Committee makes numerous reports on different matters, and occasionally it has to make a report exclusively to the Prime Minister because none of the content can be revealed, so provision is made for that. The Committee’s value also rests on the fact that it gives confidence to the House and to colleagues that there are people who have enough access to know whether there is likely to be incompetence, illegality or unacceptable behaviour going on. The Committee provides reassurance that if that were the case, it would challenge it. To do so, it needs depth of knowledge, which means being aware of what is going on operationally.

Some of the definitions in the Bill are capable of benign use, but could also be put to hostile use, and could be used to restrict information. I do not think that that is the intention, but they could be improved significantly. The right hon. Member for Salford and Eccles (Hazel Blears) made a point about ongoing operations, and I think that that is a limiting provision. When does an operation end? Many of our operations against terrorism are ongoing for as long as we think there is a threat, but we have to know what is happening. If we look back to the period leading up to the Finucane murder, for example, it would have been wrong, if the ISC had existed then, for it not to have had some understanding of the relationship between the Security Service and military units such as the force research unit and the basis on which information might be released by agencies and get into the hands of paramilitary organisations. The Committee needs that level of understanding to meet the test I described, so the wording needs to be adapted. It would be wrong, and a terrible mistake, if the Committee knew who was serving as agents and what handlers were finding in particular cases at particular times. That information should be kept as narrowly as possible, but allowing understanding of the operation, why it is being conducted and on what lines is significant.

[Sir Malcolm Rifkind]

My right hon. Friend may like to know that part of the intention of the reforms is to ensure that we receive regular—probably quarterly— reports on the spectrum of agency activity, including operations, subject to retrospection and significant national interest. That gives us a broader awareness of the totality of agencies’ activities than has been possible in the past.

[Sir Alan Beith]

That is very helpful. There is a success story here: the Committee is still building the relationships necessary to give the confidence I described earlier. I pay tribute to those who have been involved in this on the Committee side as well as on the Government side. There will be occasions, as there have been in the past, when the public fear that power within the intelligence sphere is being used inappropriately or, indeed, not effectively. A democratically elected body must therefore be able to provide reassurance that if something goes wrong it will know about it and try to do something about it.

The other part of the Bill deals with closed proceedings, which are also closely related to intelligence. I emphasise that we are discussing civil proceedings, not prosecutions. Closed material proceedings are unwelcome, but it is difficult to see an alternative. They are necessary to protect the operational effectiveness of intelligence services, including the secrecy of sources. The control principle of foreign intelligence is fundamental to intelligence operations: people do not give away their country’s intelligence unless they know it will not be misused.

That is not a one-way process—other nations sometimes forget the control principle. I recall a rendition case in which our US allies did not observe the principle. Indeed, the Committee reported on it because the intelligence was provided on the basis that action would not be taken, yet it was used to provide the basis for an action. That was an example of the control principle not being applied, but we must apply it; otherwise, we will not gather the intelligence we need to protect our citizens.

I pay tribute to the work of the Joint Committee on Human Rights, which the Justice Committee decided was doing the work and should be allowed to get on with it. Boundary lines between our two Committees are often drawn, but the Joint Committee’s excellent work contributed hugely to their lordships making the Bill more acceptable to those of us who come at it from a more liberal standpoint. Their lordships made it quite clear that although the Executive apply for closed material proceedings, the judge decides.

The original subsection (2) of clause 11, which would have allowed the extension of closed material proceedings into other areas, was removed by a welcome Government amendment. Their lordships passed an amendment on considering alternatives such as public interest immunity and a strict necessity test. The amendment appeared to be desirable, although my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) today indicated that it could lead to some cumbersome processes, so it will be appropriate for the Committee to look a little more closely at it.

A court will be required to balance national security with fairness, transparency and the need for open justice. The amendment that was unsuccessfully proposed to bring that process continuously into closed material proceedings was unrealistic—it is pretty difficult to satisfy foreign allies that we will apply the control principle if the question is being reopened in proceedings daily. The Government have indicated that they will accept the provision under which either side will be able to invoke closed material proceedings. I find it hard to envisage the circumstances in which a plaintiff would do so, but equality of arms requires that provision. I do not know why the Government resist the amendment proposing an annual report on the use of closed material proceedings—a fairly simple requirement—but perhaps such proceedings will not be so frequent and only a biennial report will be necessary.

As a result of proceedings in the other place we are now close to achieving a reasonably satisfactory balance in using difficult and unwelcome powers to ensure that information can be put before a court. None of us would want to have to use the process, but without it we will not be able to decide cases on the evidence available.

Another matter with which the Bill deals is the more general application of the Norwich Pharmacal principle to intelligence, on which the Government are right to act. I note the Intelligence and Security Committee’s suggestion, which the Justice Committee can look at, on how we limit its application so that we more specifically refer to foreign intelligence and the control principle or information that would impair the effectiveness of our security operations. The Government must act to defend our ability to acquire intelligence from elsewhere.

Further improvements might be possible to make it clear that a gisting process can work in cases where the special advocate realises that he cannot effectively challenge or assess evidence without more information that is in the possession of only the plaintiff. We must find some way of resolving that. We cannot allow the present position to continue, but we must get the Bill into the best state possible.