Justice and Security Bill [HL]

Lord Elystan-Morgan Excerpts

Monday 9th July 2012 Lords Chamber

[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.

[Lord King of Bridgwater]

My Lords, I agree very much with the noble Lord that—as the noble Lord, Lord Butler, said—there is no argument about the ends. We need to establish public confidence in a very important committee which has a very important role in overseeing the intelligence agencies and which clearly has to be regarded as being in a different world from the other areas of responsibility that Select Committees deal with. This is a difficult issue and a number of interesting points have come up during this debate which I had not anticipated. One point, made by my noble friend Lord Lothian, was the implication that this must involve, as I understood it, a majority of public hearings. My understanding is that the Defence Select Committee, particularly when discussing our nuclear deterrent, goes into secret session and there has never been any problem with that. I am not aware of any leaks from any of those proceedings. However, it is a challenge. The noble Lord, Lord Campbell-Savours, might remember that when we tried to meet totally in secret, as we did, I tried to see whether there was some way that we might at least have a public hearing. I certainly saw the risk, exactly as posed by my noble friend Lord Lothian, that if you were not careful you would end up with prepared questions and prepared answers—all planted—and it would be just a stage show, which would not carry much credibility.

As for the challenge about how we achieve this balance, I reflected on a bit of history. When Sir Anthony Blunt had to be outed at the beginning of the 1979 Administration of the Prime Minister Margaret Thatcher, there were considerable debates about whether it was time to have some sort of committee. Jonathan Aitken got quite a bit of publicity for being in this particular session when he stood up and said that,

“one debate and one Written Answer do not add up to adequate and continuing scrutiny of the Security Service”.—[Official Report, Commons, 21/11/79; col. 446.]

I think we would all agree with that. He said the Government should take the initiative and if they did not move to establish a “senior and more cautious” committee of privy counsellors, then in a different Parliament—perhaps one dominated by left-wing Back-Benchers—a more intrusive, less sympathetic Commons Select Committee might be set up.