Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Monday 19th November 2012 Lords Chamber

It is only too easy to challenge these matters in the courts—as we have experienced over the years. We all agree that the ISC needs the protection of privilege. The issue is how we do it. I appeal to the House that if we are to do it, we should do it properly. I fear that there will be a last-minute attempt, on a whipped vote in the Commons, perhaps on a Thursday afternoon when they have all gone home, to graft on to the Bill some statutory provisions covering privilege, or some means of protecting the ISC. All that will do is lead to future problems in the courts. Let us sort this out here today. I beg to move.

[Lord Butler of Brockwell]

My Lords, the Intelligence and Security Committee has considered very carefully the amendments tabled by the noble Lord, Lord Campbell-Savours, to which the Opposition have given their support. As he said, they have some advantages. The committee is as enthusiastic as anybody about displaying the fact that it is a servant of Parliament and not just of the Executive. As the noble Lord said, if the committee were to become a Select Committee, that would automatically confer the protections that it needs to protect its proceedings in the interests of national security. However, I regret that, for reasons that I will explain, we cannot recommend that the House goes down the avenue that the noble Lord has recommended. We believe that the objectives can be achieved in other ways.

There is no difference in the House about the requirements that we need. We want to demonstrate that the Intelligence and Security Committee is a servant of Parliament. We all agree that on most occasions its evidence will need to be taken in private. We all agree that there will have to be safeguards in relation to appointments to the committee, and that both the evidence and the witnesses need protection from judicial intrusion or from the Freedom of Information Act 2000. There must also be safeguards against the committee inadvertently compromising national security in its published reports. There is no difference between us on any of these matters. The only question is how they should be achieved.

The noble Lord, Lord Campbell-Savours, would like the committee to become a Select Committee of Parliament, which would automatically confer privilege. He also wants the safeguards that I mentioned to be protected and conferred by parliamentary resolution. Safeguards secured by such resolution would confer privilege but would not automatically protect the proceedings of the committee from the Freedom of Information Act. As I understand it, if such protection from a Freedom of Information Act request is to be given, it has to be considered by, and depends on a certificate from, the Speaker. I see that the noble Lord is nodding his head at that.

That illustrates the difficulty. The noble Lord is recommending that the safeguards for national security in the proceedings of the Intelligence and Security Committee would no longer be a matter for the Executive but would be protected by a resolution of Parliament. In other words, responsibility for protecting national security would be transferred to Parliament, but I submit to the House that that is objectionable in principle. The Executive cannot surrender their responsibility for protecting the work of the intelligence agencies and national security. That, in the last resort, must be a matter for the Government. That is the fundamental objection to the noble Lord’s proposal.

There is another objection. There can be circumstances in which the Government ask the Intelligence and Security Committee to inquire into a very secret matter in order to satisfy the Government that the intelligence agencies have not been behaving wrongly. That is not something that a Select Committee could be used for. That sort of secret request, where something needs to be looked at in confidence, is not something that the Executive could require a Select Committee to do on their behalf. The Intelligence and Security Committee simply would not be able to fulfil the functions that it needed to fulfil if it became a Select Committee of Parliament. I say that with regret, because there are many advantages to that route.

The noble Lord made a big point of saying that to proceed by way of giving the Intelligence and Security Committee—a committee created by statute—parliamentary privilege has disadvantages. I acknowledge that. When it comes to my amendment, which seeks to confer the advantages of privilege on the Intelligence and Security Committee, I acknowledge that point and I will not be pressing that way of doing things. But of course it is perfectly possible, and indeed more desirable, to put those protections in the Bill without any reference to parliamentary privilege at all. That would overcome the objections that the noble Lord has legitimately raised. I suggest to the House that that is the better route.

For those reasons, I regret that I and my noble friend Lord Lothian, who regrets that he cannot be here today, and the Intelligence and Security Committee cannot advise the House to take the route that the noble Lord has proposed.

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Moved by

[Lord Butler of Brockwell]

2: Clause 1, page 1, line 5, after “Committee” insert “of Parliament”

[Lord Butler of Brockwell]

In moving Amendment 2, I wish to speak also to Amendment 4, with which it is grouped. I hope that I can deal with this group of amendments shortly because the Minister, rather unusually, dealt with them in his response to the previous group of amendments and asked me to withdraw them, which I will do.

However, if I have a complaint against the Government, it is that I moved these two amendments in Committee, seeking that the Intelligence and Security Committee should be described as the Intelligence and Security Committee of Parliament to emphasise its role as a servant of Parliament rather than as a servant of the Executive. I also moved Amendment 4 in Committee, which seeks to confer privilege on the committee. On that occasion the Minister—the noble Lord, Lord Henley—spoke sympathetically in response to both amendments, as, indeed, has the Minister today. The noble Lord, Lord Henley, said on 9 July, some four months ago:

“Noble Lords will understand from what I have said that there is a degree of sympathy for both amendments, and particularly the first, but more work needs to be done”.—[Official Report, 9/7/12; col. 918.]

Four months have passed and it seems that the Government have not done that work and reached a conclusion in amendments that they could put before the House today. That is a pity.

These are probing amendments. The Minister has said again that he is sympathetic to the addition of the words “of Parliament”. A more substantial issue is Amendment 4, which seeks to confer privilege on the Intelligence and Security Committee. As has come out in the earlier debate, there are genuine difficulties about that. I acknowledge that in response to the noble Lord, Lord Campbell-Savours. I understand that the clerks of the two Houses of Parliament see difficulty in extending parliamentary privilege in this way.

On behalf of the Intelligence and Security Committee, I want to make it clear that the safeguards that are provided by parliamentary privilege are essential—not parliamentary privilege itself. Provided those safeguards can be in the Bill—in other words, the protection of witnesses and the protection of the proceedings of the committee from judicial intrusion or the Freedom of Information Act—that is equally satisfactory. The noble Lord, Lord Campbell-Savours expressed some doubts about that and the Minister, in reply, said that there were aspects to be considered. It seems to me that it cannot be impossible for those protections to be provided statutorily in the Bill. Provided that is done, I would not seek, nor would the Intelligence and Security Committee seek, to press Amendment 4. I hope to hear from the Minister, if he does not mind repeating himself a little, that the Government will seek to provide those protections that the Intelligence and Security Committee needs in an alternative way from that of privilege. I beg to move.

[Lord Campbell-Savours]

I wish to intervene only very briefly, perhaps to rephrase the question about the ministerial certificate that I put during the course of my previous intervention. Is it true that the ministerial certificate could be overturned by a tribunal? Perhaps those in the Box can advise the Minister. If that is the case, it means that the responsibility has been transferred from the Executive to the tribunal, as against being transferred from the Executive to the Speaker. We should know whether that is the case.

If I am correct, the noble Lord, Lord Butler of Brockwell, is suggesting that somehow that to which I am referring could be dealt with in the legislation whereby there would not be a right to challenge a ministerial certificate, as is the case with a Speaker’s certificate. When he talked about judicial intervention, perhaps he was referring specifically to that. As I understand the freedom of information legislation, it is not possible for a challenge to be mounted against a certificate granted by the Speaker. That is why I always felt that it was far better that the Speaker had that role, because the Speaker of the House of Commons would always uphold national security. It is inconceivable that a Speaker could not be trusted in these circumstances. It seemed to be being suggested that because this power was being transferred from the Executive to Parliament, it was placing something in jeopardy. On the contrary, I should have thought that the Speaker of the House of Commons—whoever that might be at any stage, now or in the future—could be thoroughly relied on to be as secure as the intelligence services themselves in protecting national security.

In one of his amendments, the noble Lord seeks to add the words “of Parliament”. Where we have a committee set up outside of Parliament—at arm’s length—are we saying that, in order to make it look as if it represents Parliament in some way, we simply tag “of Parliament” onto the end to give it the imprimatur of Parliament? As a concept, it is ridiculous and it abuses the institution. What other organisations or statutory bodies of such notable importance are going to be set up with these words simply added onto the end in order to give them some extra credibility? I am opposed to an amendment of that nature.

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[Baroness Smith of Basildon]

My Lords, much of the debate regarding this amendment was covered in the debate on the previous group of amendments. I will therefore keep my comments brief. We put our names to the amendments proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. We considered that the arrangements that they are proposing for the ISC, which is a variation of a statutory parliamentary committee, to be the next best option were the Select Committee option to fail.

In the previous debates, I referred to a committee being strengthened in its independence by the privileges and status afforded by being a creature of Parliament rather than a creature of the Executive, while retaining robust safeguards over the constitution and the work of the committee in the interests of national security. The idea of a security committee that is covered by parliamentary privilege and also bound by safeguards established by statute is of course attractive, as it would give the absolute guarantee needed on issues such as the disclosure of sensitive information and the appointment of members. However, my concerns lie—the noble Lord, Lord Butler, also acknowledged these deficiencies—with the argument raised by my noble friend Lord Campbell-Savours that parliamentary privilege conferred in this way would be suspect and potentially challengeable in the courts. That makes me nervous and I am sure that it makes other Members of the House nervous. If my noble friend is right that the present statutory committees of Parliament are not covered by privilege, it is difficult to see how statute can provide for it in this case, for the fundamental reason that the committee will not be a fully fledged body of Parliament.

In Committee, the noble Lord, Lord Henley, said that discussions would take place. The noble Lord, Lord Butler, referred to that. I am very concerned that, if I understand correctly, the noble Lord, Lord Butler, said that no discussions on the issue have taken place with the Government. There is an overwhelming desire on all sides of the House to get the issue right.

[Lord Butler of Brockwell]

Perhaps I may do justice to the Government. There have been discussions. My complaint is that they do not seem to have reached a conclusion.

[Baroness Smith of Basildon]

I do not know whether that is better or worse. It is disappointing that the Government have not been able to reach a conclusion, given the overwhelming desire on all sides of the House to get this right and to ensure that the committee has the privilege that it will need to do its job properly. I remain concerned about the process that is being used. I wait with interest to hear what the noble Lord will say about the consequences of pursuing parliamentary privilege in this way. Without assurances that the committee will have full privilege, I will have serious reservations about the viability of the proposed amendments, despite the fact that I fully support the aims behind them.

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[Lord Taylor of Holbeach]

My Lords, I have every confidence that a solution to the issues and challenges of providing the necessary protection will be found. However, I was not intending to use this debate to present those conclusions to Parliament. I am sure the noble Lord will look forward with interest to hearing them in due course.

I thank the noble Lord, Lord Butler of Brockwell, for tabling these amendments. I hope he will feel able to withdraw this amendment in the light of my reassurances on progress.

[Lord Butler of Brockwell]

My Lords, I am grateful to the Minister for his reply and to other noble Lords who have spoken in the debate. I wish to make two points. First, the noble Lord, Lord Campbell-Savours, is being a little unfair in describing the Intelligence and Security Committee, even in its present form, as detached from Parliament. We do not feel detached from Parliament and, certainly in the circumstances described by the Minister, when we are more closely appointed by and report to Parliament, we will be even less detached. So there is some point in adding the words “of Parliament”.

Secondly, the Minister raised a point about the certificate of exemption under the Freedom of Information Act. He said that a Minister’s decision can be challenged at a tribunal whereas, on his understanding, the Speaker’s certificate cannot, and so the committee would be safer in the hands of the Speaker than in the hands of the Minister. I had hoped, when he raised this point in the previous debate, that a lawyer would intervene and advise us. My understanding is that the Executive always has the last say on this. The Minister is quite right that a tribunal can overrule a Minister but, in the end, a Minister can overrule a tribunal. An example which the House will remember is the risk register on the Health Bill where, in the end, the Minister overruled the tribunal. My understanding is that a Minister always has the last word. I pause for a moment in case there is a lawyer in the House who can correct me but, if not, I offer that as my belief.

On the basis of what the Minister said and in the expectation that a solution can be found to providing the protections that the Intelligence and Security Committee needs other than by means of conferring parliamentary privilege, I am happy to withdraw the amendment.

Amendment 2 withdrawn.

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Moved by

[Lord Butler of Brockwell]

5: Clause 1, page 1, line 17, at end insert “and the Chair shall be remunerated in line with arrangements for Chairs of Departmental Select Committees of the House of Commons”

[Lord Butler of Brockwell]

My Lords, again I can speak quite briefly to the amendment, which provides that the chair of the Intelligence and Security Committee should be remunerated on a basis similar to that of chairs of Select Committees of the House of Commons.

I emphasise that the present chair of the Intelligence and Security Committee has not asked for this amendment to be brought forward. However, the members of the committee feel strongly that the chair has to do a large amount of work—as I am sure the noble Lord, Lord King, and the noble Baroness, Lady Taylor, also did—and that it is an anomaly that, whereas other Members of the House of Commons who are chairs of Select Committees receive remuneration, the chair of the Intelligence and Security Committee does not.

As I understand it, the Government’s position is that this is, in these days, a matter for IPSA. However, I hope that they will be willing to put this issue to IPSA with their recommendation that it should consider it sympathetically. If the Minister is prepared to go as far as that, my colleagues and I on the Intelligence and Security Committee will be happy not to press the amendment.

[Lord Campbell-Savours]

My Lords, I vigorously support this amendment because it has always been my view that the chairman should be remunerated. I served under the chairmanship of the noble Lord, Lord King of Bridgwater, and he should have been remunerated, as indeed should my noble friend Lady Taylor of Bolton. However, what worries me a little is that the matter is to be left to IPSA. That is a very controversial proposition to put, not because IPSA is as unpopular in the Commons as we know it to be, but why should an organisation established to deal with parliamentary allowances and expenditure be required to deal with the expenditure of an outside body? This is the first body, but are we to presume that in the future IPSA will extend its tentacles to managing the financial arrangements of more bodies that are established under statute? Is this the beginning of the growth of IPSA into something even larger than the current organisation which is causing so much grief to Members of Parliament? I simply put the question. If a mechanism is to be found, perhaps I may suggest that IPSA is not the ideal organisation to proceed with this responsibility.

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[Lord Taylor of Holbeach]

I am not at all doubting the value, for example, of the Public Accounts Committee, to which the noble Lord referred. However, it is up to this committee to decide whether to establish its own tradition. To predetermine its traditions, as suggested by the noble Lord, gives a false description of what “tradition” really represents.

I hope that the noble Lord will allow me to move on, because I was going to suggest another scenario: of course, there is no reason why the chairman of this committee should be a member of another place. It is a Joint Committee of both Houses, and although noble Lords may consider it unlikely that a Member of this House would be elected its chairman, that may indeed happen, and it probably would not be appropriate for the salary to be determined by IPSA in that respect. It would be a question of us seeking to resolve the issue should the occasion arise.

I understand what noble Lords and the noble Baroness are trying to achieve; that is, some sort of established practice within existing committee procedure. I have some sympathy with the argument. The ISC is an important committee, carrying out a very valuable oversight function, and the chairman of that committee has a critical role in that respect. However, deciding on the appropriate level of financial support for the chair of the ISC is very much a matter for existing mechanisms within the two Houses and would be best resolved in that way. It is for Members of the House of Commons and, for Peers, the House Committee to resolve this issue, not the Government. I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Butler of Brockwell]

My Lords, on the basis that Members of your Lordships’ House receive no remuneration for being chairs of Select Committees, I am happy to have removed any incentive to run for this position. On the basis that it would be within the power of the House of Commons to move a resolution referring this to IPSA, and that the Government would give a favourable recommendation and support that matter, I am happy to withdraw the amendment.

Amendment 5 withdrawn.

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[Baroness Hamwee]

My Lords, no, but I am aware of that. I am seeking to push the boundaries a little further. The noble Lord tuts quietly that I have not been there. Last year, I read the Hansard report when I began to take an interest in these matters. I sense a feeling that this would enhance the reputation of the Intelligence and Security Committee. Amendment 11 would be a broader arrangement than could take place in a debate in either House, whatever its venue, given that it provides for giving evidence before the ISC in a session open to the public. Therefore, it is more extensive.

I am very much alive to the danger to which some noble Lords pointed that questions asked in public can be so feeble, as can the answers, that it can have the opposite effect of just appearing to be completely stage managed and uninformative. I believe that we should give the ISC the scope to do the job that it is doing, and is capable of doing, in private to take it as far as it can go.

I have tabled Amendment 12 about access to meetings and I am aware that I take a different view on this from a number of other noble Lords. That is not because I want all or very many meetings with the ISC to be held in public. My point is that it should direct its mind to the issue. At the previous stage, from those with experience of the current arrangements, we heard ideas of what might be considered in public. Those ideas included recruitment to the agencies, issues of diversity, language, and recruitment from all sections of society. I would add to that retention, which generally goes along with recruitment, and a number of human resources matters, such as sickness rates and diversity at different levels of seniority. The noble Lord, Lord Butler of Brockwell, told us that today the ISC had been considering certain of these amendments. It might have been quite interesting to hear some of that debate in public. As regards financial matters, the cost of the GCHQ facility was mentioned.

All those issues quite properly can be debated, with care that the mark into dangerous territory is not overstepped. I have confidence that that would be possible and that those debating the issues would be very alert to that. However, it also would be proper that issues of that sort—I am sure that there are others—should be heard and dealt with in public to add to the credibility of the committee. I beg to move.

[Lord Butler of Brockwell]

My Lords, commenting on what the noble Baroness, Lady Hamwee, said at the end of her remarks, perhaps I may say that it was not today that the Intelligence and Security Committee considered amendments. The committee has not had the opportunity to consider the amendments she has put down. Therefore, in offering a comment, it will be personal rather than on behalf of the committee.

I have no objection to Amendment 9 because it is a permissive amendment. However, Amendment 11 states:

“The ISC shall each year call the heads of the Agencies and the Secretary of State to give evidence before them in a session open to the public”.

In principle, there is no objection to that. Indeed, the chairman of the Intelligence and Security Committee says that it is the committee’s intention to have a public hearing. The arrangements for that are being considered at the moment. However, one would not want this to be a public hearing that is too staged, which would be worse than useless. I would counsel against passing an amendment which makes it compulsory for the Intelligence and Security Committee to have a public meeting each year. That may well be the outcome but there may be times when the work programme simply is not consistent with it. That is my only cavil against that.

I would not be in favour of Amendment 12, which states that the committee,

“shall conduct its proceedings in public, save when it determines that members of the public shall be excluded”.

There would be so many meetings for which that resolution would have to be moved that it would be a matter of public comment and derision, which would reduce confidence in the ISC rather than increase it.

[Lord Foulkes of Cumnock]

My Lords, I have made a mental note never to tut tut silently in future, especially since that silent tut tutting can be observed by noble Baronesses even about 10 yards away. So I will be careful. The reason why I asked whether the noble Baroness, Lady Hamwee, had been able to attend the debates that we have had in the Moses Room is because, when I served, as I did for four years, on the Intelligence and Security Committee, I had the privilege of introducing and replying to those debates. We had great difficulty in encouraging people to attend and participate. If more Members of the House had attended and participated, it might have added to the information available in the debates that we have had at different stages.

A few years ago, when we had a Labour Government, before the Conservative Government came in, the Intelligence and Security Committee reported to the House on almost all, if not all, the issues that the noble Baroness, Lady Hamwee, has raised—on diversity and all the other points that she raised. We had indications and reports about it, and people raised it during the course of the debate. Even all those years ago, we discussed holding hearings in public; we discussed that in the debate in the Moses Room, along with the problems and opportunities that might be available if we held them in public. I hope that I am not giving any secrets away in saying this, but I was in favour of moving towards holding a meeting or two in public if we could do that. It is the right thing to do.

It would help and inform the debates that we have on legislation if Members came along to the annual debate. I presume that either the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler, will introduce the report and reply to the debate. Noble Lords would find it a very interesting and educational experience.

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Moved by

[Lord Butler of Brockwell]

13: Schedule 1, page 14, line 31, leave out paragraph (b)

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[Lord Butler of Brockwell]

My Lords, Amendment 13 stands in my name and in the name of my colleague, the noble Marquess, Lord Lothian. I move it only to give the Minister the opportunity to move government Amendment 14. Amendment 13 seeks to leave out paragraph 3(3)(b) of the schedule which states that a Minister may decide that information should not be disclosed if,

“it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.

This was rather a wide power for the Government to withhold information from the Intelligence and Security Committee.

Since that amendment was tabled, the Government have tabled an amendment making it clear that, in exercising this power, the Minister must be guided by regard to what are known as the Osmotherly rules—that is, the normal rules about what a civil servant can disclose to a Select Committee. My colleagues on the Intelligence and Security Committee and I are content with that limitation of this power. I beg to move.

[The Deputy Speaker (Lord Geddes)]

I believe that the noble Lord will now want to withdraw the amendment.

[Lord Butler of Brockwell]

My Lords, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

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[Baroness Smith of Basildon]

My Lords, as ever, my noble friend Lord Reid has summed up the point I was making. The Minister did not refer to an emergency situation but to departments that would not have a Secretary of State and therefore it would be downgraded. It is entirely appropriate to ask that a decision as serious as to withhold information from the ISC should be taken only at the highest levels in government, and that means the level of Secretary of State.

[Lord Butler of Brockwell]

My Lords, I also support the amendment. It is no answer to say that if the information is held by the Cabinet Office, where there is not a Secretary of State, it should be at some other level. Any intelligence information held by the Cabinet Office will belong either to the Home Office, the Foreign Office or some other department where a Secretary of State is responsible. It is not the case that provision ought to be made for an exception where the Cabinet Office is involved. I support the amendment moved by the Opposition.

[Baroness Smith of Basildon]

My Lords, I should like to test the opinion of the House.