Justice and Security Bill [HL]

Lord Carlile of Berriew Excerpts

Monday 9th July 2012 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I welcome the opportunity to say a few words on this amendment, mainly because I always listen with great respect to the noble Lord, Lord Campbell-Savours. His knowledge of parliamentary procedure is second to none and he is probably the most skilful of anyone I have observed in what one might call the parliamentary maze. However, I disagree with his proposal that there should be a Select Committee for the following and other reasons.

First, intelligence is not created in a vacuum but for a reason. Sometimes it is found to be created for a reason that proves to be suspect but not necessarily to be followed. It is not completely free of scrutiny; far from it. A little later in the Bill there are references to the Intelligence Services Commissioner. I am bound to say—I said this before when I was independent reviewer of terrorism legislation—that the Government and the security services could give a more coherent and fuller narrative of what they do. I pay tribute to the noble Baroness, Lady Manningham-Buller. She started the process in a convincing way of giving at least some narrative that enabled not only the public but, perhaps more importantly, parliamentarians in the first instance to understand why certain things were being done and certain actions taken. It is subject to oversight and it is necessarily subject to confidentiality. Accountability is very important but we have to face up to the fact that full transparency can never be achieved, and indeed should never be achieved for it runs the risk of exposing those who do very difficult tasks for our intelligence service to risks to which we would not wish them to be exposed.

Furthermore, a Select Committee of either the other place or both Houses involves the normal Select Committee procedures. It is very difficult to limit those procedures because Parliament makes its own rules. Those of us such as the noble Lord, Lord Campbell-Savours, a number of others present and me—derided as we are by some for having been in the House of Commons before coming here—know something that possibly not everyone else knows, which is that Erskine May is not like a legal textbook. The rules of parliamentary procedure are often made up as you go along and one cannot anticipate clearly what they will be. Sometimes the mood of the nation changes those rules. Think back to what happened in London on 7 July 2005 to see the emotion that followed those events and how easy it would have been for parliamentary procedure to have been changed, either to make a Select Committee much more secretive in its approach— inappropriately so perhaps—or to go the other way and open up everything to public scrutiny.

If Members of this House or another place are appointed to Select Committees by the normal route, it exposes much of what is given to them to their staff. The Government should be entitled to look at the ability of the proposed members of a committee to retain and hold to confidential material and the reliability of their staff. The one thing one cannot afford in this area is inadvertent leaks or the innocently meant, but foolish, acts of the unwise.

What the Government propose in this Bill is, in my judgment, appropriate. We have a committee that is accountable but not wholly transparent for perfectly good reasons. It has the capacity to look at secrets in detail but within an appropriate context—as limited, for example, by Clause 2(3), which means that the Prime Minister and the ISC must be satisfied as to the part that anything that might be inquired into plays in any ongoing national security operation.

My judgment, for what it is worth, is that what the Government propose in this Bill creates a prudent and carefully thought-out structure for the proper and rigorous scrutiny of how secret material is dealt with by Her Majesty’s Government. There is a danger that we play into the hands of those who believe that because something is secret there is some kind of ghastly Executive conspiracy going on. That is completely untrue. Of course, mistakes are made; there are people in the secret services who have to delve into the most difficult things that face our society, and they are bound to make mistakes. I hope that occasionally they do make the odd mistake in the protection of the public, because overcaution is not a bad thing if it saves lives—sometimes large numbers of lives. But the menu provided in this Bill allows the proper balance, and I shall, if necessary, not support the noble Lord’s amendment.

[Lord King of Bridgwater]

The noble Lord has great experience in these areas, and I take it from the tenor of his argument that he is not advocating a Select Committee approach. He said that he was in favour of what the Government have in the Bill, but since then the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, have produced amendments. What is his view on those?

[Lord Carlile of Berriew]

At the moment I am dealing with the amendment proposed by the noble Lord, Lord Campbell-Savours. I listened with great care to my noble friend Lord Henley from the Front Bench, and I am very content with the approach that he has taken. We should wait and see what the Government come up with in answer to the noble Lord, Lord Butler, who has great wisdom and experience in these things—I am completely open-minded about that. But I am not happy with the idea that we should have a conventional Select Committee or, even worse, a Select Committee whose rules have been fiddled with for this purpose.

[Lord Elystan-Morgan]

My Lords, like many Members I have been greatly impressed by the contribution made by the noble Lords, Lord Campbell-Savours and Lord Carlile. Both have the gift of being able to articulate their views with awesome clarity and very great force. If one had to, I should find it somewhat difficult to decide which one is correct in this matter. However, in respect of this debate and the earlier Amendments 1 and 2, it seems that everybody’s objectives point very much in the same direction.

In the first instance is the desire for sovereignty and independence for this particular body. By sovereignty one means that it is an organ, extension and delegation of Parliament, to such a degree that, as far as the Bill of Rights is concerned, it would be unchallengeable in the courts. I think that we are all agreed on that matter. At the same time, it has to be independent of the Executive and Prime Minister, which means that it should be, to use a canine expression, the watchdog of Parliament rather than the poodle of the Prime Minister. It is much easier to enunciate that principle than to work it out exactly because, by definition, the Prime Minister and to a large extent the Home Secretary has a constant flow of intelligence information, which will simply not be disseminated generally.

My other point relates to Select Committees. I listened carefully to the noble Marquess, Lord Lothian, and believe that the concept of a Select Committee is sufficiently broad and flexible to allow a great deal to be done of the nature suggested by the noble Lord, Lord Campbell-Savours. I would have thought that a Select Committee could always decide whether to sit in public or not and, if so, on exactly what terms. A Select Committee can decide whether a single word of its report is to be published or whether there is to be general publication, subject to sidelining. Sidelining, of course, can be a severe sanction. I will never forget the day, in about 1967, when I was a Member of the House of Commons and that flamboyant and splendid Member of Parliament Tam Dalyell was hauled before the House to answer a serious charge of contempt. It related to a Select Committee that was looking into the affairs of Porton Down, a most delicate situation as we all appreciate. There was an awesome hush; it was almost like a public flogging. There was the miscreant standing ashen-faced at the Bar of the House. It taught me a lesson about the tremendous and terrible jurisdiction that the House of Commons has, if it wishes to use it in a situation like that.

Where do we arrive? First, at a body that is not appointed by the Prime Minister; secondly, a body that is unchallengeable in the courts; and thirdly, a body—possibly a Select Committee—that is able to do its work with the confidence of the public, and yet able to maintain an absolute confidentiality which is so important to its very function.