Intelligence and Security Committee Annual Report for 2010-11

Lord Butler of Brockwell Excerpts

Monday 12th December 2011 Grand Committee

[Lord Butler of Brockwell]

My Lords, it is an honour to represent your Lordships’ House on the Intelligence and Security Committee, not least because I share the view which has been expressed that the committee’s work is very important. It is also a pleasure to serve on such a distinguished and experienced committee, which is very ably chaired by Sir Malcolm Rifkind, with his experience as a former Foreign Secretary and Defence Secretary, and is supported by a first-rate secretariat. I was glad to hear the noble Lord, Lord Foulkes, refer to that. The committee also contains others with ministerial and Front-Bench experience in the Home Office and the Northern Ireland Office, including, notably, the noble Marquess, Lord Lothian, with whom it is a special pleasure for me to share the representation of your Lordships’ House.

As the noble Lord, Lord Foulkes, has referred to the chairmanship of the committee, I see the argument that such committees should have a chairman drawn from an opposition party. However, I am absolutely confident that I speak for the whole committee when I say that when we have the good fortune to have a chairman of the calibre, energy and experience of Sir Malcolm Rifkind, that trumps every other argument.

[Lord Foulkes of Cumnock]

Perhaps I may make two things clear. First, I was repeating the argument that the noble Lord, Lord King of Bridgwater, made last year; it was not I but he who was arguing for an opposition chairman. Secondly, having known Malcolm Rifkind since we served together on Edinburgh City Council, I wholly endorse what the noble Lord, Lord Butler, has said.

[Lord Butler of Brockwell]

My Lords, the importance of the work of the committee has grown because of the greatly increased salience that the intelligence services have gained in our national life. It is a long time—many decades—since their activities were directed only against foreign antagonists of this country. Sadly, the growth of terrorism—first Irish and then other forms of criminality and terrorism, not only Islamic—has meant that the activities of the intelligence services have had also to involve citizens of our own country. It is therefore right that the agencies should no longer operate wholly in the shadows but that legislation should have been passed to put them on a statutory basis, to regulate them and to hold them accountable to Parliament.

At the same time, much of their activity has to remain secret. On that secrecy their effectiveness and the trust and co-operation of allied countries and those who would help them depends. We have to combine accountability with the protection of legitimate secrecy, and that is where a committee of parliamentarians has an important role to play.

Two other circumstances have affected the role of the intelligence agencies in today’s world. One—and this point has not been made this afternoon—is that their work has become much more international. Terrorism, espionage and criminality no longer respect national boundaries, if they ever did. This means not only that we have to work much more closely with allies and other countries with shared interests, but that the agencies within our own country—both outward-looking and inward-looking—have to work much more closely together. The committee has seen that development and it welcomes and encourages it.

The second development is that the advance of technology means that the methods and instruments of intrusion into the lives of individuals and institutions have greatly expanded. The noble Marquess, Lord Lothian, and the noble Lord, Lord Alderdice, rightly referred to cybercrime and the threat that it presents to public and private institutions in our country. Other examples are the extraordinary development of satellite imagery and the more mundane but equally intrusive proliferation of close-circuit television cameras, through which those pursuing their legitimate business around the streets of London may these days be recorded several hundred times in a single day. Quite rightly, the Protection of Freedoms Bill before your Lordships’ House provides for regulation of the uses to which such recordings can be put.

I mention these developments because it must be the responsibility of those who supervise the agencies on behalf of Parliament, within the ring of secrecy, to ensure not only that the agencies are efficient and effective in their vital work, but that they use the instruments of intelligence-collection available to them both proportionately and responsibly. I want to refer to a point made by the noble Lord, Lord Alderdice, picking up on the report, about the remuneration and character of those who work within the agencies. On the character of those people I think that I can reassure him. When one has the privilege of meeting staff of the agencies, one can be certain that it never has been the case that they are conventional, like any other civil servants. There are a lot of unconventional personalities.

Two other things hold them to the agencies—in addition to remuneration, which is very important. One is the importance with which they regard their work, which is a very important factor in morale, and the other is the excitement, originality and opportunities for enterprise within the law. They are the sort of people who can be relied on to operate in that way.

I was Cabinet Secretary when the legislation establishing the Intelligence and Security Committee was passed in 1994. I well remember the hesitation and anxiety with which the Government and agencies regarded the admission of parliamentarians into the ring of secrecy at that time—hesitation and anxiety which I confess I wholly shared. The committee has come a very long way since then in building the confidence of successive Governments and the intelligence community. The fact that it has done so has been due to the responsibility and wisdom shown by successive members of the committee, and I pay tribute to them. Over the past 17 years, there really has not been a major incident to damage that confidence, and that is essential to the work of the committee. The committee needs to be prepared to be a frank critic of the intelligence community when criticism is justified, but also—as was said earlier—its champion when external criticism and antagonism from those who know little of the agencies’ work is unjustified.

The noble Marquess, Lord Lothian, made the point that, as the confidence of the intelligence community and the responsibility and discretion of successive members of the intelligence and security community have grown, the committee’s work has extended well beyond the restrictions in the original legislation. This has benefits for Parliament and the intelligence community itself. The committee’s surveillance is no longer restricted in practice to the administration, policy and expenditure of the Security Service, SIS and GCHQ, the terms in which the original legislation was expressed. It has extended more generally to the work of the intelligence community as a whole, including—retrospectively—specific operations. This has been of general benefit.

However, if the committee is to achieve its full value, it needs to command the confidence not only of the Government and the intelligence community but of Parliament and the public generally. What has happened de facto therefore now needs to be recognised in legislative changes while retaining the necessary safeguards. The committee should now become a parliamentary committee instead of a government-appointed committee of parliamentarians. The wider extent of its activities should be explicitly provided for. Picking up the point that the noble Lord, Lord Foulkes, made, this would increase the independence of the secretariat of the committee who would then become servants of Parliament and not simply members of the Executive. I agree that that would be valuable. The committee should be able to reassure the public that it can require information from the intelligence community and not just request it—require it subject to the veto of a Secretary of State, without being at the mercy of the agencies in respect of the information they can obtain. These are changes that the committee has proposed; in fact, successive committees have proposed them. It is very welcome that the Government have endorsed them in their Justice and Security Green Paper.

As the noble Marquess, Lord Lothian, said, the Government have so far reserved their position on the extent to which the committee should oversee the operational activity of the agencies. Like the noble Marquess, I urge the Government to have confidence about this. I make one point in particular. The committee has already shown itself to be competent in examining specific episodes, often at the Government’s request. However, the public are much more naturally concerned with the operational activities of the agencies—such as their part in the treatment of terrorist suspects or the events leading up to 7/7—than in the agencies’ financing and administration. If the committee is to command the public’s confidence in holding the intelligence community to account, it must reassure them that the agencies are being properly supervised by Parliament. It is essential that the Intelligence and Security Committee be able to play a role in that, as indeed it already has done. It is not as though we want to look at such operations currently; we will always look at them retrospectively. Nor do we want to go as far as the US congressional committees, which are required by legislation to be informed of the agencies’ current operations. Does the Lord Chairman think I am going on too long?

[The Deputy Chairman of Committees (Lord Faulkner of Worcester)]

I was waiting to see if the noble Lord had finished because a Division has been called and we will have to adjourn the Committee. We will look forward to hearing the remainder of his speech when we reconvene at 7 pm.

[Lord Butler of Brockwell]

It will not take very long.

Committee adjourned at 6.49 pm for a Division in the House.

[Lord Butler of Brockwell]

My Lords, I have only one other point to make, and it is the one that was covered by the noble Marquess, Lord Lothian. It is a very important part of the Government’s Justice and Security Green Paper and of the ISC’s annual report. It is the balance between the interests of justice and the protection of intelligence in court proceedings.

Civil litigation against the Government by those who claim to have been improperly treated at Guantanamo and elsewhere has introduced two new dimensions to this problem. One is the order of the judge in the Binyam Mohamed case referred to by the noble Marquess to disclose American-sourced material. As the noble Marquess said, it is difficult to overstress the effect that this has had on the attitude of the US authorities to sharing intelligence material with the UK. The other is the difficulty that the United Kingdom has had in defending actions against the Government when it can do so only by disclosing sensitive material. I fully understand the feelings of those who are reluctant to see the extension of closed material procedures or the greater use of special advocates. But I agree with the Government that the best interests of justice for all parties can be secured only by the extension of closed material procedures and the use of special advocates in those cases. But I also agree with the noble Marquess, Lord Lothian, that this needs to be buttressed by writing into the law a rebuttable presumption against the disclosure of sensitive material in such cases to provide guidance to judges about what is the will of Parliament. I agree with the noble Marquess about that as, indeed, I do on all the other points he made.

As has already been said, there are many other important matters covered by the ISC’s report: the creation of a National Security Council and its implications for the Joint Intelligence Committee and the rest of the Government’s central intelligence machinery; the security aspects of the Olympic Games and the challenges to the intelligence agencies in dealing with them at the same time as the other demands on their resources; the need to wake up government agencies and the private sector to the threat that cyber poses to them; and much else.

One of the great benefits of the ISC’s annual report is that it is a comprehensive annual report on current issues affecting our intelligence community. What is more, having had no part in drafting it, I think I can say that it is a good read. I feel grateful and privileged to be able to contribute to it in at least a small way.