Lord Henley
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Justice and Security Bill [HL]
Lord Henley Excerpts(12 years, 5 months ago)
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The Minister of State, Home Office (Lord Henley)
My Lords, I think that the final point made by the noble Baroness, Lady Smith, on the Bill of Rights is posed to the movers of the amendment, and I will leave them to respond to it when the noble Lord, Lord Butler, winds up the debate.
My noble friend Lord King said that he had been described as having a veneer of experience in these matters. All four speakers before the noble Baroness and me had far more than a veneer of experience in these matters. All four have served on this Committee or have been chairman, like my noble friend, and we are very grateful that they bring their expertise to this because it is a matter that requires a great deal of discussion and consideration by us.
I start by setting out what changes the Bill proposes to make to the ISC’s status. The new ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. In parallel with the Bill, the Government intend that the ISC will be funded by Parliament and accommodated on the Parliamentary Estate, and that its staff will have the status of parliamentary staff.
As both my noble friend Lord King and the noble Baroness, Lady Smith, have implied, the current ISC has been criticised for being a creature of the Executive—I think that was the word that the noble Baroness used. The intention of this measure is that the ISC should be brought much closer to Parliament. It will be a committee of Parliament created by statute in the same way as other bodies are, as listed by the noble Lord, Lord Butler, in response to the noble Lord, Lord Campbell-Savours.
The noble Lord, Lord Butler, said there were three examples. The Speaker’s committee for IPSA, created under Section 1 of the Parliamentary Standards Act 2009, is another. Like those other statutory committees of Parliament, the ISC will not have all the attributes of a departmental Select Committee. The question of whether such a committee would be the appropriate route to go down is another matter. We will deal with it when we debate Amendment 3, which the noble Lord will speak to immediately after this group.
The two amendments that we are considering concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. Some noble Lords will be aware that my right honourable friend the Lord Chancellor and Justice Secretary has written to the chairman of the ISC, Sir Malcolm Rifkind, stating that in principle the Government support such a change, or one that would have a like effect of making clear in the Bill the parliamentary character of the ISC. However, before we could accept the amendment that noble Lords proposed and which the Opposition support, we would need to be very clear that it would be the best means to achieve this end and what all the implications of such a change would likely be, including the very tricky issue of parliamentary privilege. Any change that has the possible impact of increasing the risk of unauthorised disclosure of sensitive information should be very carefully thought through.
My noble friend Lord Lothian described himself as a simple Scottish lawyer. I always get rather worried when noble friends describe themselves as simple, Scottish or a lawyer, and when all three come together I am even more alarmed. However, the amendment could affect the ISC’s status for other purposes. For example, it could bring the ISC within the ambit of the Freedom of Information Act 2000 by making it part of the House of Commons and the House of Lords for the purposes of the Act. It may also change the ISC’s status under the Data Protection Act 1998, as Section 63A of the Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC’s data-processing activities. I put it to my noble friend—the simple Scottish lawyer—that those consequential effects need to be examined in some detail.
It has been very helpful to debate the issues raised by the amendment. I hope I have gone some way to explaining why I am not in a position at this stage to say anything more. Certainly I can say that the ISC chairman, Sir Malcolm Rifkind, has responded to my right honourable friend’s letter, and that the Government would welcome further discussion with the ISC on this important issue.
The second amendment in the group deals with the very significant issue of parliamentary privilege and takes us back to the Bill of Rights. This is a matter that the House has considered on a number of occasions in recent years. The Government’s most recent consideration of the issue came in the Green Paper that was published in April this year. Noble Lords will be aware of the importance that privilege can play in the functioning of this House and of another place. Parliamentary privilege includes such fundamental concepts as the freedom of speech of Members of this House and of another place, and the prohibition on courts questioning proceedings in Parliament. Both Houses and their Select Committees benefit from that privilege. Freedom of speech in the context of the Bill of Rights is just one aspect of parliamentary privilege.
At present the Intelligence and Security Committee is a statutory committee of parliamentarians. However, it does not at present benefit from that parliamentary privilege. The amendment would provide that the proceedings of the ISC would be proceedings in Parliament for the purposes of Article 9. That would ensure that the committee’s proceedings were covered by parliamentary privilege. The question posed by the amendment is about the consequences of privilege attaching to the proceedings of the ISC, which would be that criminal or civil proceedings could not be brought in respect of statements made by ISC members, or witnesses before the ISC, in the course of ISC proceedings.
Noble Lords may say that this makes very little difference because the ISC members are all parliamentarians and can benefit from privilege when participating in parliamentary proceedings. However, it would be different for a witness, who at present would not benefit from privilege. Other consequences would be that disciplinary proceedings against witnesses, based on statements made in ISC proceedings, would be barred as such proceedings would constitute a contempt of Parliament.
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. I should be grateful if noble Lords accepted that and that it would probably be best at this stage to withdraw the amendments and to have further discussions, particularly in the light of the fact that my right honourable friend the Lord Chancellor has written to Sir Malcolm Rifkind about this and said that he is broadly content with the idea. However, as I have explained, we believe that more work is necessary. With that, I hope the noble Lord will feel able to withdraw his amendment.
Lord Butler of Brockwell
My Lords, I am grateful to the Minister for that reply and to the other Members who have taken part in the debate. Two clear points have come out of the debate that are agreed on all sides. First, the ISC should be able to fulfil its duties to Parliament as strongly as possible. It should be clear that it is a servant of Parliament and not of the Executive. That was the purpose of the first amendment.
We will debate in a moment the amendment tabled by the noble Lord, Lord Campbell-Savours, proposing that the ISC becomes a Select Committee, but, as I understand it, special safeguards are required for it, both in relation to appointments and in the nature of its reports: namely, that things that are genuinely secret should not accidentally be released in its reports. I think I am right in saying—this will no doubt come out in our next debate—that there will need to be a statute for that reason, so the statute will be necessary anyway. It would be difficult to apply those restrictions to a Select Committee of Parliament, but that will no doubt also come out in our next debate.
The purpose of the clauses in the Bill and of the amendments is exactly the same as the purpose that the noble Lord, Lord Campbell-Savours, is pursuing. I am very strongly in favour of Parliament’s effective control over the Executive. I have become more strongly in favour of that since I became a Member of Parliament rather than a member of the Executive. I believe in it very strongly, and I believe that of all the parts of the Executive, the security agencies need to be effectively controlled by people who are in a position to see and be trusted with information about what they are doing. So I do not think there is any difference about the ends.
The second thing is that witnesses to the ISC should have confidence in the security of the evidence they give. Again, I do not think there is any difference between us on that subject. As the Minister said, members of the ISC, as Members of Parliament, may be secure in that respect, but witnesses may not necessarily be so secure. If a situation arose in which the courts could question the proceedings in the ISC and enforce the revelation of evidence, the ISC would simply not be able to operate effectively. That is the purpose of seeking to apply in the statute that the ISC should have the benefit of parliamentary privilege as if it were a Select Committee of Parliament.
Again, it is clear from the Minister’s reply that the question here is about means rather than ends, and I entirely accept that those need to be carefully looked into and that the implications of the proposed amendments need to be carefully examined by those who are sufficiently expert to do so.
In the belief that our objectives in this are the same, that we are talking about means and not ends, and that the Government will now look at ways of achieving those ends, I am very happy to beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, the noble Lord, Lord Campbell-Savours, has done this Committee a service in degrouping his amendments. It is a broader and deeper debate than the one we had on the first two amendments. It has been extremely helpful. The noble Lord, Lord Elystan-Morgan, hit the nail on the head when he described it as a useful debate with a lot of consensus. I disagree with the noble Baroness, Lady Hamwee, who said this was a polarised debate. I am not convinced that it is. This is less about what we expect the ISC to do and how we expect to do it than the structure that can best achieve those objectives. There seems to be a fair amount of agreement on the kind of objectives we are seeking. I wrote down a couple. The idea of a veneer of expertise has now been firmly laid to rest. I hope that we will not hear that expression again either in your Lordships’ House or outside. I was intrigued when the noble Lord, Lord Deben, mentioned to the Minister the comments from civil servants. I felt the ghost of “Yes Minister” creeping into our debates. Civil Service Ministers sometimes have to make a decision and challenge civil servants on some issues.
The areas of broad agreement were the independence from the Executive and the issue of parliamentary privilege. I thought the comment of the noble Lord, Lord Campbell-Savours, about the power to take evidence under oath was a powerful one. Security of information caused considerable concern for those who are not keen on having a Select Committee structure but who also, like the noble Lord, Lord Campbell-Savours, want to protect security of information if there is any question on that. There is the same point even if the structures are different.
The issue of public hearings came up. I am not sure how relevant that is in terms of structure in that amendments have been tabled about the kind of public hearings there could be and what form they could take. My own view is that they are valuable. They certainly should never be automatic but we have that debate coming up. I am unclear whether a Select Committee would have to have public sessions unless the Committee wanted to have it. It is the best structure for achieving that.
We have also heard from a number of noble Lords about ensuring public confidence in whatever structure the Government decide to go ahead with. It was helpful that in the last debate the Minister, if I understood his words correctly, said he wanted to look at the best means of achieving these ends and consider all implications. I hope he can say that in the context of this debate as well. It has been a broader debate in that noble Lords have been thinking carefully about powers, independence and structure, and I hope the Minister finds that debate and those comments and views helpful.
Public confidence is an issue to take into account. It can be well served by public hearings or it can be badly served by public hearings, and we will debate that further today. Public confidence does have an impact on how sensitive or highly confidential information that is relevant to national security is dealt with. So I am interested in what the Minister has to say. I hope that he will take on board all the comments made in the last debate and in this debate. I hope that he is smiling because he agrees with me rather than because he is amused by what I said. I hope that he will say—as I hope I would say if I were sitting in his seat—that he will take this away and take into account not only the comments that were made in the previous debate but the wide range of views expressed in this debate. They are moving in the same direction and seek that, whatever structure the Government want to proceed with, the comments of the House should be taken into account to ensure that the Government get it right, protect national security, safeguard sensitive information and also secure parliamentary independence and public confidence.
Lord Henley
My Lords, I was smiling at the noble Baroness only because I thought that she was trying to write my speech, which was not necessarily her job at this stage. I agree with her about several things. It has been a very useful debate. The 11 speakers—12 including myself—expressed a range of views. As the noble Lord, Lord Elystan-Morgan, said, we are all heading in the same direction and all trying to ensure, as a number of speakers put it, that there will be an appropriate degree of public confidence in whatever we set up.
I was very interested in the opening remarks of the noble Lord, Lord Campbell-Savours. He talked about the position of many colleagues in his party in 1989. Many of them are now distinguished members of his party. He stressed that all of them, to a man and woman, were in favour of Select Committee status for what became the ISC in 1994 under the chairmanship of my noble friend, and what is now being developed by the Bill. I was looking forward to hearing the official view of the Opposition on whether Select Committee status was the appropriate road to go down, but I heard no answer on this from the noble Baroness later in the debate, nor on what the collective view of the party was. It might be that there are now different views, because 1989 is a considerable time ago.
Lord King of Bridgwater
The view about a Select Committee is rather easier to hold if you are in opposition than if you are in government. The history of this was that the entire shadow Cabinet in 1989 voted in favour of it. When the prospect of office loomed, Jack Straw, who was then I think shadow Home Secretary, was asked the same question and was much more cautious about the whole matter. Of course, when they came into government there were no moves to introduce a Select Committee. However, times have moved on and I hope that there will be moves in that direction.
Lord Henley
My Lords, obviously my noble friend is right to say that times have moved on. All of us can remember as far back as 1989. Things have obviously changed since then. I was merely trying to tease out the official view of the Opposition at this stage, but it does not matter because as we all know, and as a very distinguished Cross-Bencher, the noble Lord, Lord Elystan-Morgan, made clear, we are all heading in the same direction and at least trying to make sure that we achieve the right thing—a committee that has the appropriate degree of public confidence.
I do not want to re-emphasise what I said earlier about the ISC being appointed by Parliament rather than the Prime Minister, and about its members being free to choose their own chair. That will be debated later, in the context of another amendment tabled by the noble Lord. In parallel with these statutory changes, it is the Government’s intention that the ISC will be funded and accommodated by Parliament. The amendment sets up the ISC as a Select Committee of Parliament. The noble Lord could have achieved that by the simpler means of leaving out the whole of Part 1 and making sure that the appropriate authorities in another place created the Select Committee—but he went down a different route and we are having this debate for the very good reasons that all speakers in the debate made clear.
I will explain why we believe that the ISC should be created by statute. It is to ensure that safeguards are in place to protect against the disclosure of sensitive information. Therefore, the Government do not consider it appropriate for that body to be a full Joint Committee established merely under the Standing Orders of each House, as other Select Committees are.
I hope that the Committee will bear with me if I expand on those reasons. First, in that scenario, the Government would not have a statutory ability to prevent the publication of sensitive material. There are two main problems with this. The risk of disclosure of information that might damage national security could be increased. This might lead to a situation where agency heads find it hard to reconcile their duty to protect information with their duty to facilitate oversight. This could lead to a sharing of less sensitive information and therefore a corresponding reduction in the effectiveness and credibility of oversight.
Secondly, it would not be possible for the most sensitive information to be withheld from the Committee. It is important that safeguards exist so there is adequate provision for those exceptional circumstances where the disclosure of information, even to the Chairman of the Committee, would be damaging to national security and/or would jeopardise vital agency operations or sources of information. The equivalent grounds on which information can be withheld from the Committee under the Intelligence Services Act 1994, have been used very rarely, as those former or current members of the Committee will know. We would expect the similar powers in the Bill also to be used sparingly—only in exceptional circumstances.
Thirdly, there is the appointments process. Again we will deal with that in greater detail later on. Here the Prime Minister has a role, and the noble Lord, Lord Campbell-Savours, in a later amendment proposes a much stronger role for him. That role is important. The ISC is unique in that members of the Committee have access to very important and extremely sensitive information, and it is important that the appointments process has sufficient safeguards to ensure there is as little risk as possible of unauthorised disclosure of sensitive information and the consequences that could do significant damage to national security.
The effect of the noble Lord’s amendment to create a Select Committee is not clear to me. He says it could take evidence under oath. In the Bill, even if we were to accept all the noble Lord’s amendments, the ISC would still be created by statute and safeguards would still exist to protect national security in those three areas I have listed, although admittedly altered to some degree. Unless the noble Lord pursues this suggested alternative policy of deleting the whole of Part 1, his amendment would not create a full Joint Committee because that can be done only by the Standing Orders of each House. It would create an entirely novel body, a Select Committee established by statute.
To what extent would such a body share the characteristics of the other Select Committees? The Bill makes it clear that, even were it amended in other respects according to noble Lords’ wishes, the ISC is different from other Select Committees in fundamental respects—for instance, in relation to appointments and reporting. That being so, I believe it is unclear whether or to what extent changing the ISC in this way would give it the other characteristic of a Select Committee. Indeed, I believe the risk is that describing the ISC as a Select Committee when it has characteristics not shared by other such committees could positively mislead as to the ISC’s true character.
I hope that that explanation is sufficient for the noble Lord. I wait to see what he says. This has been a useful debate and there will no doubt be further discussions on this matter, but I believe that it is appropriate for the noble Lord to withdraw his amendment.
Lord Campbell-Savours
My Lords, perhaps I may say a few words in winding up the debate. I say to the noble Lord, Lord Henley, that I recognise the wording I have used could not be put in the Bill. My amendment is simply my attempt to ensure that there is a debate. I recognise perfectly well that if we were to go down this route, while there would be, as the noble Lord, Lord Butler of Brockwell, said, a requirement for something in statute, the body of the change would be incorporated into parliamentary resolutions.
Lord Rosser
My Lords, the names of my noble friends Lady Smith of Basildon and Lord Beecham are associated with Amendment 9 and we support the proposal that the chair of the Intelligence and Security Committee should be remunerated in line with chairs of departmental Select Committees of the House of Commons. As has already been said clearly, the commitment required by future occupants of this post is likely to be extensive, bearing in mind that the whole purpose of the Bill is to strengthen oversight of the intelligence and security activities of the Government by extending the statutory remit of the Intelligence and Security Committee. The committee, as we know, will be drawn from Members of the House of Commons and your Lordships’ House. It would seem appropriate to determine remuneration as part of the Bill, and to relate it to a not dissimilar position in one of the Houses of Parliament from which the membership of the committee is to be drawn.
A departmental Select Committee in the House of Commons has a different but not widely dissimilar role to that of the Intelligence and Security Committee under the Bill. The chair of a departmental Select Committee in the House of Commons also takes on a considerable additional level of commitment and responsibility. There are a number of such posts and they are not held by Ministers of the Crown. The officeholders, like the Select Committees themselves, are drawn from Back-Benchers, as would be the case with the Intelligence and Security Committee and the chair of that committee. It would therefore seem that the chair of a departmental Select Committee in the House of Commons is the appropriate benchmark, as provided for in Amendment 9, which we support.
Lord Henley
My Lords, we can deal with these amendments fairly briefly. The noble Lord, Lord Butler, described them as a simple point of equity. On that basis, I hope the debate has been—or will be—listened to in due course by IPSA in the case of the Commons and, in the case of Members of this House, the House Committee, because in the end decisions have to be made by those appropriate committees. It is not really a matter for legislation.
To underline that, I remind the Committee that Commons Members’ pay is entirely a matter for IPSA and it makes decisions in accordance with resolutions of the House. The relevant resolutions make no provision for additional financial support for ordinary members of Select Committees so it would be a matter only for the chairmen of committees. I will get to the question about the chairman of this committee later. IPSA may determine that MPs who hold a position or office specified in a resolution of the House of Commons should receive a higher salary than ordinary Members. IPSA will have no say as to which positions are on the list—that is obviously a matter for Parliament; once it has decided on that list, it will be for IPSA to set the rate. Again, it is for IPSA to listen to this debate.
Lord Rosser
My Lords, I wish to talk about Amendments 5 and 7 in particular. Amendment 5, as the noble Lord, Lord Butler of Brockwell, said, lays down what happens if a person nominated for membership of the Intelligence and Security Committee is not then appointed by the House of Parliament from which they are drawn. The amendment lays down that in this situation,
“the Prime Minister shall nominate an alternative person”.
The Explanatory Notes to the Bill say that the purpose of the procedure in the Bill for nominating and appointing members of the committee,
“is to ensure that the Government retains some control over those eligible to access”,
highly sensitive information.
Many might feel that the use of the words “some control” in the Explanatory Notes rather understates the position from the government perspective. This amendment does at least make it clear that the relevant House of Parliament is not obliged to accept the Prime Minister’s nominee and that the Prime Minister cannot simply keep resubmitting the same name, or do nothing, but has to nominate an alternative person.
Amendment 7, to which the noble Lord, Lord King of Bridgwater, has already referred, is, certainly at this stage, rather more a probing amendment in the light of the enhanced role that the committee will have and the need for it to be seen as clearly separate from the Executive. It provides, as has already been said, for the chair of the Intelligence and Security Committee to be not only a member of the ISC, chosen by its members, but a member of the ISC from the opposition party. The Public Accounts Committee, for example, is chaired by a senior opposition MP.
It must surely be important that the Intelligence and Security Committee, bearing in mind its strength and oversight of the Government’s intelligence and security activities, and its role in this sensitive and potentially controversial area, is an all-party committee that is not only not open to pressure from government or the intelligence and security agencies in the work it undertakes but perceived as being not open to such pressure.
The Prime Minister has, under the terms of this Bill, considerable influence over the appointments to the committee. He or she is required to consult, not reach agreement with, the leader of the Opposition on nominations, and the two Houses of Parliament can only decline to accept a nomination and cannot appoint someone of their own choosing. Neither does the Intelligence and Security Committee have unchallenged powers to require information from the intelligence and security agencies, even though the members of the committee will all have been nominated through the Prime Minister, as the Secretary of State can veto the giving of information to the committee.
If the chair of the committee were to be not only a nominee of the Prime Minister but from the same party as the Prime Minister and from the same party as the Secretary of State, who could veto the use by the committee in carrying out its statutory oversight remit of the use of its power to require information from the intelligence and security agencies, that might well lead to a perception, no doubt unfairly, that the leadership of the committee and its most influential member was a little too close to the Government of the day, particularly bearing in mind that the objective of the Bill, as explained in paragraph 3 of the Explanatory Notes is to provide,
“for strengthened oversight of the intelligence and security activities of the Government”.
Lord Henley
My Lords, we have four amendments in front of us, all slightly different but all covering appointments to the committee. I will deal with them in turn. Amendment 5 seeks to ensure that if someone is turned down by Parliament the Prime Minister will have to make another nomination. This is something with which the Government entirely agree. However, the amendment is not necessary as it will be achieved by the current drafting of the Bill. If, under the appointments process in the Bill, the Prime Minister’s nominees are rejected by either House, the Prime Minister will have to make another nomination or nominations after consultation with the Leader of the Opposition. This is clear from the fact that the Bill requires the ISC to consist of nine members so if one is turned down another would have to be found. I hope that deals with the point made by my noble friend Lord Lothian, who asked what would happen in such cases. Where we differ is that the amendment in the name of the noble Lord, Lord Butler of Brockwell, insists that an alternative person should have to be nominated and we would like to keep the flexibility because there are occasions where it is possible for the Prime Minister to be able to renominate. It might be that one reached some sort of impasse in due course but it should be possible on occasions to renominate and that renomination might be rejected. Whatever happens, as the Bill is drafted, a ninth person would have to be put forward.
Turning to Amendment 6 from the noble Lord, Lord Campbell-Savours, he suggests that it should no longer be necessary to consult the Prime Minister. He said that he would never have been appointed if it had been left purely to my noble friend Lady Thatcher if she had been in opposition. Obviously, if we accepted the amendment proposed by the noble Lord, Lord Campbell-Savours, and removed the necessity to consult the Leader of the Opposition, there would be even less likelihood that he would be appointed, because my noble friend—or Mrs Thatcher, as she then was—would have made the decision entirely by herself, without consulting the Leader of the Opposition. We believe that it will be important in retaining cross-party support, just as it was when the original 1994 Act went through, requiring that the committee should be appointed by the Prime Minister after consultation with the Leader of the Opposition. For that reason, the Prime Minister should continue to consult the Leader of the Opposition before he nominates any such person.
Lord Campbell-Savours
This is quite an important issue. The question is very simple. If the Prime Minister, Margaret Thatcher, had been Leader of the Opposition, would she have allowed someone like me, with my record at that time, to go on this committee? The answer is no, which is why I believe that this provision is wrong.
Lord Henley
But the noble Lord is also saying that he wants to delete the ability to consult the Leader of the Opposition and leave it entirely to the Prime Minister. I have to say that the Prime Minister probably would not have appointed him either, so the issue does not arise. What we suggest is that, to maintain cross-party support—I suspect that everyone agrees on this except the noble Lord himself—there should be a degree of consultation between the Prime Minister and the Leader of the Opposition on this issue. The simple fact is that consultation did take place and we are all very happy, my noble friend Lord King included, that he was taken on to that committee.
Rather than dealing with the amendments sequentially, I come to Amendment 8 before Amendment 7. It comes from the noble Lord, Lord Campbell-Savours, and relates to the election of the chairman. The noble Lord raises concerns about the Government’s proposals for appointing the chair, arguing that the chair’s appointment should again be made with the agreement of the Prime Minister and the Leader of the Opposition. I notice that the effect of the amendment would be for the chair to be appointed by the Prime Minister and that there would be no requirement to consult the Leader of the Opposition. So I suppose that the chances of the noble Lord having got on to the committee or being appointed as chairman would be even more remote, but that is something that he can consider in due course.
As we explained earlier, we believe that the changes that we are making to the ISC status are designed to bring it closer to Parliament and increases public confidence in it. That is why the Government propose that the chairman of the ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The noble Lord seemed to suggest that with a new Parliament, the new Members would not know each other. I suspect that with the experience of the members on that committee, as has happened in the past, it will normally be the case that the committee will know who is the appropriate person as well as anyone. It is quite right, therefore, that those members should make the appointment.
Lord King of Bridgwater
I am trying to remember how many new Members came on to the committee. There was a big upheaval. I remember that the noble Lord, Lord Gilbert, for example, was a member of the previous committee; he was whisked off to be a Minister. It was a pretty major change of cast. With great respect to my noble friend, who says that new members of the committee might be expected to know about these things, a number of them might have had no previous experience whatever of the committee.
Lord Henley
My Lords, I will look very carefully at the point that my noble friend has made and at the statistics relating to 1997 in particular, which was one of those years in which there would have been a big upheaval, with that particular new Parliament. Off the cuff, I do not know who was on the committee and who came on, although perhaps my noble friend can remember. But in the main, with the relatively experienced parliamentarians who will be on this committee, I think that it is well suited to making the decision itself.
Lord Campbell-Savours
You might, as a Member of Parliament who had been in the House for years but had no contact with intelligence, not understand the vital nature of the relationship between the agencies and the chairman. It is critical to the whole operation. I cannot see how someone who goes newly on to that committee could have any understanding of that relationship. If the relationship is wrong because the wrong person has been appointed, the committee could be denied information. If the objective behind the Bill is to secure more access to more operational material, we are undermining the whole arrangement. Ministers should reconsider this point. It is all right saying that it is more democratic and accountable and that Parliament is more involved—but if it does not work, do not do it.
The Marquess of Lothian
My noble friend Lord King of Bridgwater was talking about the noble Lord, Lord Gilbert, leaving the committee. Between 2007 and 2009, two chairmen of the committee were promoted to being Ministers and left the committee. I wonder how the committee would have been able to elect successors to those two when we needed someone of sufficient seniority to carry out that task.
Lord Henley
I think that my noble friend possibly means that two members of the committee were promoted to being Ministers, rather than two chairmen.
The Marquess of Lothian
No, they were two chairmen. The first was Paul Murphy and the second was Margaret Beckett.
Lord Henley
Yes, my noble friend is correct in that. I was looking at the wrong dates—he means between 2007 and 2009. I will obviously have to examine this and, as I promised my noble friend Lord King, examine the statistics in relation to the 1997 Parliament, when there would have been the biggest change in the membership, rather than the subsequent Parliaments. In brief, I stick to my position that it would be better for Parliament to make this decision, rather than the Prime Minister, but I note the concerns put forward by colleagues from all sides, or both sides, of the House.
I turn to Amendment 7, which presents the idea that, whatever happened, the chairman of the committee should be drawn from an opposition party. Again, my noble friend Lord King had some sympathy for this amendment, but when one looks at the history of the committee and the distinguished service of my noble friend, who served as chairman when our party was in government, and as chairman in opposition, from 1994 to 2001, it is obvious that one can do it from either side. To make a statutory requirement that a chairman had to come from the opposition party would unnecessarily limit the available candidates for that job. My noble friend rightly pointed to the problems that might have arisen in 1997 when, after a very long period in opposition, all the more senior members of the then opposition party going into government were likely to become Ministers, and there might not have been suitable people around. To curtail who could be chosen would reduce unnecessarily the pool from which the appropriate chairman could be taken.
Having said that I would listen to comments made on Amendment 8, proposed by the noble Lord, Lord Campbell-Savours, I hope that the explanations that I have given on the other Amendments 5, 6 and 7, as well as Amendment 8, will be sufficient for the noble Lord to withdraw his amendment.
Lord Butler of Brockwell
My Lords, on the basis of what the Minister has said, I am happy to withdraw Amendment 5.
Lord Campbell-Savours
My Lords, I want to speak to Amendments 11 and 12, standing in my name. Amendment 11 deals with the words in Schedule 1, paragraph 1(2)(c), which states that,
“a resolution for the person’s removal is passed in the House of Parliament by virtue of which the person is a member of the ISC”.
In other words, there has to be a resolution of Parliament to exclude someone from the ISC. Have those who wrote this Bill thought that through? A resolution in the House of Commons, or even in this House, would mean that the person who is being removed from the ISC, with all the material that they have gained over the years on matters relating to national security and who may well be angry with the chairman and the system, is given free rein to get up on the Floor of the House of Commons and, in their defence on the back of the resolution, say why they should not be removed from the Intelligence and Security Committee. This is a very silly proposal. It is highly dangerous and has clearly been worked up by someone who did not understand the implications of what a resolution of the House of Commons means for public debate. It should be removed.
How could someone be removed from the Intelligence and Security Committee? First, one would go to them privately and explain the reasons why they should resign. I am sure that the Whips and the system have all sorts of ways for removing Members of Parliament without allowing them free rein to get up on the Floor of the House of Commons on the back of the resolution to defend themselves. That is my case for Amendment 11. I seek the exclusion of what I regard as a highly irresponsible proposition.
I now turn to Amendment 12, which deals with sub-paragraph (3), which states:
“A member of the ISC may resign at any time by notice given to … in the case of the member who is the Chair of the ISC, the Speaker of the House of Parliament by virtue of which the person is a member of the ISC”.
Why should the Speaker be informed? This is not a parliamentary committee; the Speaker is not a member of the committee and has no relationship with it. The committee is external to Parliament, however we want to describe it. I cannot see any explanation why, other than the fact that those who devised these sections of the Bill believe that it is necessary to have a model where they have the imprimatur of Parliament on the label. I think it is ludicrous, unnecessary, and again it should be removed from the Bill. It is trying to lead the public to believe that this is truly some committee of Parliament. It is not, because it lacks the privileges and the powers that a parliamentary committee has as a Select Committee. That is my case.
Lord Henley
My Lords, I will return to the noble Lord’s amendments in due course, but I will start with Amendment 10 in the name of my noble friend Lady Hamwee. This seeks, in effect, to continue the committee’s existence for a period of days after Dissolution until a new Parliament is created. It must be remembered that the absence of the ISC for that short period of Dissolution does not mean that the agencies are unaccountable. There are other mechanisms for agency accountability, not least through their accountability to Ministers, who obviously continue in their role throughout that Dissolution. The absence of the more considered work of the ISC during that relatively short period will not result in some sort of accountability deficit. Naturally, continuity between Parliaments is very important, but it is not necessary to have the old ISC stretch into the next Parliament to achieve this. I assure my noble friend that we do not need legislative provision for a new incarnation of the ISC to inherit the documents, for example, of its predecessor. Under the existing regime this has happened without any difficulty. Furthermore, the provisions in sub-paragraphs (6) and (7) of paragraph 1 of Schedule 1 allow the ISC in a new Parliament to pick up work that was ongoing at the time of Dissolution of the previous Parliament.
I turn to the amendments of the noble Lord, Lord Campbell-Savours, who seems particularly worried about mechanisms for removing individuals from that committee. He seemed to suggest some sort of equivalent to the idea of the Whips giving them a bottle of whisky and a revolver and telling them to sit quietly in a room until they have resolved matters by themselves. I do not know if that was quite what he was suggesting, but we believe that if Parliament appoints, it is plain that Parliament should also have the power to remove. That fits the broad thrust of what we are doing. That is the reason for the provision that the noble Lord seeks to leave out, ensuring that an ISC member can be removed involuntarily from the committee only by virtue of a resolution passed by Parliament. Again, this is an important safeguard to the ISC’s independence and means that the final say on its membership is with Parliament.
Lord Campbell-Savours
Does the Minister foresee circumstances in which an angry young man or woman who was excluded from the committee on the back of a resolution would, under privilege in the House of Commons, argue a case that might even breach national security? If he, or those who have devised this provision, can foresee such circumstances, does he not think that this provision bears further responsibility, despite what the noble Lord said?
Lord Henley
My Lords, the same could apply to whoever was removing that person. We are saying that Parliament should, in conjunction with the Prime Minister, have the responsibility for appointing, and therefore that Parliament should therefore have the duty to remove. If we accepted the noble Lord’s amendment, can he not see possible occasions where there was no possibility of removing a member of the ISC from office, no matter what they had done, unless they ceased to be a Member of their House of Parliament—this place or another place? I do not therefore accept the noble Lord’s amendment.
As regards his second amendment and the idea that the Speaker of either House has to be notified, I really do not see why notifying the Speaker as a means of resigning from the committee causes any problems at all. Both the Government and the committee are of the view that the chair should no longer be removed by, or required to resign by giving notice to, the Prime Minister. Again, the committee has previously been criticised for being a creature of the Executive. If the committee is to be a creature of, or belong to, Parliament, it seems far more appropriate that a person should have to resign by the means proposed rather than tendering their resignation to the Prime Minister.
I therefore hope that my noble friend will withdraw her amendment, and I am sure that the noble Lord will not want to move his amendments.
Baroness Hamwee
My Lords, I clearly did not explain my amendment adequately. My noble friend responded on one point, the continuity of the committee, but he has not dealt with my concern about delay in appointing members in a new Parliament. Can he help the Committee on that and give any assurances?
Lord Henley
My Lords, both Houses are normally reasonably speedy about these matters and we will obviously take the issue very seriously. I do not think that there has previously been a delay in appointing the nine members after appropriate discussions, and I cannot see that there would be any dangers of delay in the future, but whoever is in government will obviously have to bear in mind the importance of these matters and ensure that a new committee is created as quickly as possible.
Baroness Hamwee
My Lords, I have no idea about the appointment of the ISC but I discussed this matter with a Member of the Commons who has considerable experience of membership of Select Committees. It was from him that I heard that in one case there was a delay of almost six months in appointing the committee. It is that situation that I am seeking to avoid. I do not expect the Minister at this point to say anything other than what he has said, but the issue is serious in my head.
He said that legislation is not needed for the continuity of work of the committee or of the transfer of documents. I was not arguing that point at all. As I said, this is a probing amendment. I am not sure that I have probed quite far enough, but of course I beg leave to withdraw the amendment.
Baroness Williams of Crosby
My Lords, let me say right away that I come to this issue completely as a laywoman because I have never been a member of the Intelligence and Security Committee, I have never been asked to be a member and I do not purport to have the arcane wisdom that is obviously involved in the intelligence committee. I speak simply as a laywoman puzzled about this point.
I find it strange that the quorum is as low as three—that is to say, one-third of a committee of nine. It puzzles me for two reasons. The first is perhaps best summed up by the rather agreeably brusque remarks of the noble Lord, Lord King of Bridgwater, who explained, when referring to Australia, that an “awkward squad” had decided to take over that country’s intelligence and security committee, and that it would therefore be open to the possibility of a small group effectively influencing the ISC in ways that might be troubling over the long term.
However, I have a rather different thought in mind. Sadly, many Parliaments around us are increasingly polarised, whereby the Government of the day and the opposition find it very hard to work together. The United States is just one example of that. If you have in a polarised parliament or congress a party that decides it will not co-operate with other parties even on such an important committee as an intelligence and security committee, the committee would be nullified by itself and it would be hard to reach overall decisions. Clearly, on a matter of such importance, it is important that a consensus, if one can be found, should be sought.
There is also another objection that I feel strongly about. The decision of a committee as important as the ISC should at least have to depend upon some level of attendance in addition to the three who may represent one party in order to give the committee the kind of credibility that the noble Lord, Lord Campbell-Savours, and many others referred to when they were talking about public attitudes towards the ISC. I should therefore have expected a larger quorum of at least four or five, rather than three, as stated in the Bill.
The main point of the amendment is to persuade the Minister to think about whether that quorum is not a little too small. There is a real danger that a faction could dominate the committee in a way that would be completely destructive of its credibility over a period of time. I therefore ask him to consider this issue, explain why the figure in the Bill is as low as three—for all I know, it always has been three and I do not know if changing it would be a bad precedent—and to say whether we could have a figure more convincing in terms of carrying public opinion with it.
I have no wish to delay the House but I am surprised that no other amendment has been tabled about the size of the quorum. That may be because I am not part of this wise and arcane group, and I am delighted now to see the noble Lord, Lord King of Bridgwater, to whom I have just referred in relation to the quorum being as low as three, which makes it possible for an awkward or fanatical club effectively to control the discussions of the ISC. The noble Lord quoted the case of Australia, as regards the danger that the committee, if there were a low quorum, could be dominated by a small faction or extreme group of some kind. I hope that he will not mind that I referred to him. I beg to move.
Lord Henley
My Lords, I start by being faintly flippant. I remind my noble friend that the quorum for this House and this Committee is only three—one to speak, one to listen and one to sit either in the Chair or on the Woolsack. Even with the crowded House that we have at the moment, we represent probably well below a third or even a tenth of the membership of the House. I should also remind my noble friend that my understanding is that it is the practice of most Select Committees to have a quorum of three or a quarter of the committee’s membership. Three is therefore the number that we have picked. Bearing in mind that the ISC is a relatively small committee with a membership of only nine, three represents a third of the membership.
Having said that, one should take my noble friend’s amendment seriously but we have not, as far as I am aware, had any problems with the quorum. A quorum of five might be overly restrictive, particularly if you take the view that the function of a quorum should be to provide protection against the possibility of a small number of persons on a body taking actions or decisions that could be unrepresentative of that body as a whole.
Lord King of Bridgwater
I think it fair to say that this is a Committee that, quite exceptionally, has a remarkably high attendance level, and this is something we are quite proud of and which, I am sure, has continued. I do not ever recall any problem about a quorum. In fact, I recall very few occasions when the whole Committee was not on parade and, as anyone familiar with House of Commons Select Committees will know, that is often far from being the case.
Lord Henley
I am very grateful to my noble friend for giving me that assurance. I remember when, many years ago, I was first put on a Committee—the Joint Committee on Statutory Instruments, possibly the outer Siberia of committees. I think there were seven Members from each House and a quorum of two from each House. On a committee of that sort it was often quite difficult to reach the quorum of both Houses, but some of us manfully attended week in, week out, to preserve it. I am very grateful to my noble friend for making the more serious point that the Committee does, in the main, have not just a quorum but is normally fully attended by virtually all Members; that really answers the points of the noble Baroness, Lady Williams.
Baroness Williams of Crosby
With great respect, I do not think that what the noble Lord, Lord King of Bridgwater, said went very far towards supporting the argument that because there is such good attendance at this extremely important committee there is a case for a very low quorum. On the contrary, it seems to me that Members take their duties so seriously—and rightly so, given the importance of the subject matter—that it would not be disruptive to increase the quorum, at least to some extent, from the present three.
Again with great respect, the fact that around 5% of the possible attendance of the House of Lords is present at this particular discussion is not really the point because, of course, noble Lords attend when they are expert or knowledgeable on a particular subject and do not come when this is not the case. In the case of the Intelligence and Security Committee, one assumes from its very careful appointments process that most members are people with a strong commitment and very considerable knowledge of the fields in which they operate.
Lord Henley
My Lords, I hope my noble friend heard in my opening remarks that I was being faintly flippant when talking about this House. I agree that this is a very important committee. I am very happy that attendance is well above its quorum number—that it is always fully quorate. However, I do not think it is necessary to restrict it in such a manner by bringing in an artificially high quorum, which would be completely unlike all other committees. I think that three out of nine is a perfectly effective number and I hope, therefore, that my noble friend will feel able to withdraw her amendment.
Baroness Williams of Crosby
I beg leave to withdraw the amendment in the knowledge that I shall certainly return to this issue on Report.
Lord Henley
My Lords, we have three amendments in this group, all of which are concerned with the ISC meeting in public and how that should operate. I appreciate the concerns behind the amendments but similarly I have a number of concerns about the idea of creating any formal power and, in the case of annual hearings, a duty to hold public hearings. I am sympathetic to the noises made by the noble Lord, Lord Campbell-Savours, when in relation to Amendment 14 he suggested it might put the fear of God into some of the agencies involved to see such an amendment down.
Perhaps I may go back through the history of these matters to set things in context. In The Governance of Britain Green Paper of 2007, a series of reform proposals were made aimed at bringing the ISC as far as possible in line with other Select Committees. One proposal was for some hearings of the ISC to be structured to allow unclassified evidence to be heard in open session. However, as Members of the Committee will know, those sessions did not happen with any frequency. As my noble friend Lord Lothian pointed out, the committee has the power to have open sessions if it so wishes.
Building on this, the Justice and Security Green Paper stated that while the ISC’s meetings would still as a rule have to take place in private, both the Government and the committee were committed to the concept of public evidence sessions where these could be held without compromising national security or the safety of individuals. The Bill does not need to include a specific provision to enable public evidence sessions. Both the existing ISC, created by the 1994 Act, and the ISC that is provided for in the Bill have the power to determine their own procedures. That is sufficient for these purposes. In this way, there is very little difference between the position in the Bill and that proposed by the noble Baroness, and for that matter by Amendment 17. The crucial difference from Amendment 14 is that we do not start with the default position that sessions must be in public unless certain conditions are met.
There are very significant practical issues that must be addressed before public evidence sessions can take place. As I am sure the Committee will appreciate, introducing public evidence sessions for a committee that will in the vast majority of its work be concerned with very sensitive and highly classified information will be very challenging. The Government are in discussion with the committee and remain committed to making this work in practice—for instance, on issues such as appropriate subject matter, timing and having appropriate safeguards against unauthorised disclosure of sensitive information. I have already argued that the work of the ISC must be done largely in private. As only a very small amount of the evidence that it hears, whether written or oral, is unclassified, the default position suggested in Amendment 14 that it should meet in public is neither appropriate nor practical.
On Amendment 15 there are a number of different models for what could be considered a public question time. In one model, members of the public could ask questions directly to members of the ISC on their oversight role. That format is sometimes used in local government. Naturally it is in everyone’s interests that there is an understanding among members of the public of the ISC and the valuable function that it performs. However, the Government have concerns that a question time of the nature suggested by Amendment 15 would pose significant risks and would be ultimately unworkable. Again we make it clear that the committee has access to extremely sensitive intelligence information, public disclosure of which could cause significant damage to national security. Therefore, the way it operates will inevitably be different from that of departmental Select Committees, and it must not necessarily be conducted in public. I hope that that explanation will satisfy my noble friend Lady Hamwee on her Amendments 14 and 15.
On Amendment 17, I appreciate that the noble Baroness, Lady Smith, was probing. The answers that I gave on what we want to do following the 2007 Green Paper and the more recent one indicate that where possible we would like openness in order to allow public confidence in the committee to be maintained and enhanced. However, it is not necessary to go down the route suggested by the noble Baroness in her amendment. As I made clear, it is available to the ISC to do that should it so wish. Of course, we will continue to have discussions with the committee about the most appropriate manner in which to deal with that. I hope that my noble friend will feel able to withdraw Amendment 14.
Baroness Smith of Basildon
My Lords, the issues that have been raised are the very ones that I listened to the noble Baroness to hear as she moved her amendment and to try to see what the aim was. Her amendment does not mention public or private, although in her original comments she spoke of public hearings. It was not until the noble Lord, Lord King of Bridgwater, intervened that she conceded that there could be private hearings, which have more value than a public hearing would. I am no wiser and very interested to hear what the Minister has to say. I assume that he will accept the principle. My favourite bedtime reading, the coalition agreement, includes a specific commitment to strengthen the powers of Select Committees to scrutinise major public appointments. I should have thought that this comes under the remit of a major public appointment. The noble Baroness might have done the House a service to tease out whether the Government intend to honour that part of the coalition agreement.
Lord Henley
The noble Baroness is right: there was that commitment. She also knows that pre-appointment hearings are a relatively new phenomenon. Since 2008, Select Committees have conducted pre-appointment hearings for a number of posts, and there is Cabinet Office guidance on the process and on who should be heard. The important thing to note about the list of pre-appointment posts is that the posts concern public bodies, such as the chair of Ofcom and the chair of the Social Security Advisory Committee. The most recent one that my department had an interest in was Her Majesty’s Inspectorate of Constabulary. There is no suggestion that the pre-appointment process has been used to appoint civil servants. Indeed, the noble Baroness is not suggesting that before appointment each Permanent Secretary should go before the appropriate Select Committee.
The heads of the intelligence and security agencies are Permanent Secretary-level civil servants.
Baroness Manningham-Buller
They are not civil servants; they are Crown servants.
Lord Henley
I stand corrected by the noble Baroness, but it makes little odds; Crown servants are in fact at Permanent Secretary-level, although I accept that rebuke.
The recruitment process is therefore expected to follow the process for the appointment of Crown servants of such seniority. I could go through the details of the Constitutional Reform and Governance Act, but I can give an assurance that they are exempt from that. They will necessarily follow the spirit of the civil servant recruitment principles, which we consider to be the best process. We do not consider it to be the appropriate mechanism for recruitment to public bodies, whether the process is conducted in public or in private. It might be appropriate for the other posts that I mentioned but not for the public bodies that we are talking about.
Lord King of Bridgwater
I apologise to the Minister for intervening, as he has been extremely co-operative with the Committee in every respect. It seems to me that, on the whole principle of this pre-appointment hearing—we left open the question about public or private hearings—it is an important asset for the person about to be appointed if he has a successful hearing before the committee. It reinforces his position at the start of his work if the principle is accepted elsewhere.
We then have the argument about Crown servants and their exact role, and we go through a range of bodies, including Ofcom. I do not even know what Ofcom’s position is—whether it is in government or outside it—and exactly what its relationship is. However, I think that the principle of holding hearings has merit, and—to use a phrase I have used before—I have a feeling that they will come.
Lord Henley
I am afraid that on this occasion I have to disagree with my noble friend. There it is quite a distinction between Her Majesty’s Inspectorate of Constabulary or the chair of the Social Security Advisory Service on the one hand and, for that matter, the Permanent Secretary of the Home Office or the Permanent Secretary of any other department on the other. We suggest that the heads of the intelligence and security agencies fit in more appropriately with that later group rather than with the former group.
Baroness Hamwee
My Lords, I am not clear whether the Minister is saying that they fit in with that group or that they are exempt under the legislation, which he mentioned. Either way, process moves forward. It is not so very long ago that we did not have the Nolan principles, but they are completely accepted now. I, too, think that this may come, although it may not come in the Justice and Security Act 2012. However, we are in Committee, and I beg leave to withdraw the amendment.
Lord Campbell-Savours
My Lords, I have great sympathy with the speech of the noble Lord, Lord Thomas of Gresford. It addresses a fundamental flaw in the Bill.
I shall speak to Amendments 22 and 26. Amendment 22 deals with sub-paragraph (3), which states:
“A Minister of the Crown may decide under sub-paragraph (1)(b) … that information should not be disclosed only if the Minister considers that”—
as the noble Lord, Lord Thomas of Gresford, said—
“(b) 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”.
If I remember rightly, that is currently the position under the present ISC, notwithstanding the statement in the Bill. I have not always understood exactly what such circumstances are. I have often wondered what would be the circumstances in which Ministers would take that action. Perhaps the Minister will give an explanation today.
The noble Lord, Lord Thomas of Gresford, referred to decisions being taken on a whim. Now that that provision in paragraph 3(3) is be enshrined in the Bill and subsequently become law, we need something more substantial so that we know exactly what is intended by it.
I turn now to the part of the Bill that really worries me—the phrase,
“relevant Minister of the Crown”.
As the noble Lord, Lord Thomas of Gresford, said, we are not given an indication of who is to be involved. Are we talking about Parliamentary Under-Secretaries or Ministers of State? The noble Lord, Lord Henley, is, I understand, a Parliamentary Under-Secretary.
Lord Campbell-Savours
He is a Minister of State. Forgive me. However, the point is that for a long time he was a Parliamentary Under-Secretary and, in my view, if he had been in the House of Commons he would have been in the Cabinet. We are not merely talking about the quality of Ministers that we have here in the House of Lords; we are talking about some of the Ministers that we see at the Dispatch Box in the House of Commons. It would be an error of judgment to include in the Bill a provision which would give some of these Parliamentary Under-Secretaries in the House of Commons the power to block information being brought before the ISC. However, that is what I understand the Bill means to do. It means that any Minister, in any department, in any circumstances, could decide that information was not to be made available to the committee.
Why do I have concerns that go up even as far as Secretaries of State? I referred at Second Reading to a particular incident in the committee when the late Robin Cook—I am sorry that he is not here to answer me today—was, in my view, very obstructive before the Intelligence and Security Committee in that he did not want to have certain information brought before that committee. There was quite a discussion in the committee about the fact that he was resisting having that information made available. I quoted the example of the noble Lord, Lord Heseltine, for whom I have great regard. Imagine the mindset of the noble Lord, Lord Heseltine, in the early 1980s when he had it in for CND and all that, and giving him the responsibility or the power to decide, on his personal consideration, that this information, which the ISC wanted, should be denied to the Select Committee. I believe that it is wrong that Ministers should be in that position. Indeed, as I said at Second Reading, I would trust the heads of the agencies more than I trust Ministers.
For a start, many Ministers lack confidence in this area. As they would have very little experience of how the system works and what goes on inside the agencies, their experience of the agencies may be far less that that of even members of the committee, yet they are to be given the right to decide whether information is to be blocked. It might well be that a junior Minister, lacking confidence, would be unwilling to take a decision to provide information, or allow information to be provided, for career considerations. He or she might worry that by providing that information and taking that risk, because they had not had that experience, they might be damaging their own career prospects. They may well simply be unable to quantify the risk on the basis of their very limited experience and, furthermore, some Ministers might simply make a straight political judgment about whether information should be made available to the committee. That is the very area about which I think considerations should not be made.
I have concerns and I do not believe that Ministers should be involved in this process at all. We go back to my very controversial model, which I put to the House at Second Reading—I put it in the same way that I put the argument for Select Committee status in 1998 and 1999. At that time it was simply ruled out of the question, so I recognise that it will probably be regarded as out of the question today, but I put forward the model that I put forward at Second Reading. First, the ISC should have Select Committee status. Secondly, the chair should be decided by the approval of the Prime Minister, not election by the committee. Thirdly, the chairman should be the critical person in this process.
The chairman of the Intelligence and Security Committee should have unrestricted access to all operational material within the agency on operations that have taken place. The chairman should be in a privileged position in the committee and it should be for him to decide whether information should be made available to the committee. That is why I do not want election of the chair. I want the Prime Minister to pick the chair, because I believe that the Prime Minister will know exactly who is capable of handling the material and deciding on the circumstances in which the membership of the committee is given access to the information. I would have—I have to be very careful how I phrase this—trusted the chairman, the noble Lord, Lord King of Bridgewater, to take that decision on my behalf, as a member of that committee, long before I would have trusted Labour Ministers, who might not have had the experience that he had gained as chairman of the committee.
It is a very serious area and what we are doing now, by going down this route and letting the politicians decide what information gets through, will create problems for the future which we may well regret. In other words, my answer is very simple: keep the Ministers out of it. Let the agencies influence the chairman of the committee. Let them go to the chairman and say, “Chairman, we do not believe that this information should be made available”. If Ministers want to get involved they can go to the chairman and say, “Chairman, we do not believe that this information should be made available”; but give the chairman the final decision. The committee, in those circumstances, would have far more confidence in the arrangement for scrutiny of the services, et al, than is presently the case, or, indeed, will be the case under the provisions in the Bill.
Lord Henley
My Lords, I believe that the noble Lord, Lord Lester, is waiting for some later amendments beyond Part 1, so I am sure that he will be here for the amendments in the name of the noble Lord, Lord Campbell-Savours. I can advise the noble Lord, Lord Lester, that Amendment 37 is the one that he should stay for.
We have eight amendments in this group, which all deal with the power of Ministers to withhold information from the ISC. It might be helpful if I start by going back to where we are now. Currently, the agency heads can make a decision not to disclose information to the ISC on the basis that it is sensitive information which they consider it would be unsafe to disclose to the ISC. Information which agency heads consider should be withheld on this basis must, none the less, be disclosed if the Secretary of State considers disclosure to be desirable in the public interest. It is a matter for the agency heads, but the Secretary of State can order the disclosure if she thinks it is in the public interest.
The Justice and Security Bill removes the ability not to disclose from the agency heads; this will now rest solely with the appropriate Secretary of State according to specific conditions. Where the information in question is held by a government department, as opposed to the agencies, a Minister of the Crown—rather than a Secretary of State—will be able to withhold information on the same specific grounds applied to agency material. In other words, the Bill makes the decision on withholding information from the ISC one exclusively for democratically accountable representatives.
In passing, I shall deal with the question about Ministers of the Crown, rather than Secretaries of State, being referred to in paragraph 3. This is purely to deal with the question of the Cabinet Office, which noble Lords will be aware does not have a Secretary of State. Therefore, it would be down to one of two Ministers in the Cabinet Office to make that decision. If noble Lords look at paragraph 3(5), they will see that the,
“‘relevant Minister of the Crown’”,
will, in due course, be,
“identified, for the purposes of requests of that description, in a memorandum of understanding under section 2”.
We discussed the memorandum of understanding at Second Reading and noble Lords will be aware that we hope that that, or a draft of it, will be available at a later stage.
I now turn to Amendment 18. It is appropriate to go through the amendments in slightly more detail. This will have the effect that if any of the three heads of the intelligence and security agencies are asked by the ISC to disclose any information then, as to the whole or any part of the information, that person may arrange for it to be made available to a security-cleared adviser to the ISC who may then provide advice to the ISC on the information, including written material in redacted form. It is worth stressing the importance of the provisions in the Bill governing when information may be withheld from the ISC. These powers will be used sparingly only in very exceptional circumstances. It is important that we retain those safeguards. The ISC routinely sees very sensitive information, including that at the highest levels of classification. It would not be able to fulfil its oversight role if it did not. It is not clear from the amendment to whom the noble Baroness intends the term “advisers to the ISC” to apply. Does she have in mind the current staffing of the ISC or perhaps a completely new role? The type of material that a Secretary of State may decide cannot be shared with the ISC—a good example would be the names of agents—is likely to be of such a sensitive nature that, if the Secretary of State has made a judgment that it cannot be shared with the ISC, then it would not be possible to share it with “advisers to the ISC” either.
We should also think about the practical difficulties posed by an amendment of this nature. That is Amendment 18. The amendment is likely to lead to circumstances where an adviser to the ISC has access to information which he or she cannot share with the ISC. This could place the adviser concerned in an impossible position of conflict of interest. When next called on to advise the ISC, that person may know information relevant to the advice that he or she is being asked to give, which, because they cannot share it with the ISC, they have to try to put out of their mind. If harm to national security can be avoided by providing information requested in a redacted form, then the existing provisions of the Bill oblige the agencies to provide it in that form; that is the effect of including the words,
“or any part of the information”,
in paragraph 3(1) of Schedule 1. I hope that describing the way in which the ISC and its secretariat presently operate assists the Committee and explains why the Government resist Amendment 18. In short, the amendment seems to contemplate an intermediate level between disclosure to the ISC and non-disclosure, which I hope I have shown, in practice, does not usefully exist.
The effect of Amendments 19 and 20 would be that the Government would never be able to withhold information from the ISC, whether it is held by the agencies or a government department. As I have already said, the powers to withhold information in the Intelligence Services Act 1994 have been used very rarely in the past, and we would expect the equivalent powers in the Bill also to be used sparingly, and only in exceptional circumstances. However it is important that those safeguards are retained. In particular, although the ISC will clearly be a body that sees a great deal of very sensitive material, there will be circumstances in which it is not appropriate for even the ISC to see that information on the grounds of national security. For example, there may sometimes be information that is so sensitive that national security demands that it be shared only with a small number of people within the agencies, let alone with the ISC. This is why the sensitive information ground for withholding information is expressed in the Bill in the way it is. It is not enough that the information is sensitive; it must be in the interests of national security for that sensitive information not to be disclosed to the ISC.
Baroness Hamwee
My Lords, the Minister, who has been the subject of the many compliments flowing from the noble Lord, Lord Campbell-Savours, today, has given us quite a lot of material to think about. He has certainly given me some ideas about better drafting for my Amendment 18. Given the number of noble Lords who are here not to discuss this issue, I will do no more than end with a question. I am not sure that I expect the Minister to respond to it immediately. Under this paragraph, would a decision by the relevant Minister of the Crown—leaving aside the rank or position of that Minister—be judicially reviewable? Clearly it would have to be shown to be unreasonable and how one does that I do not know. Is this an administrative decision that would fall within the ambit of judicial review? The Minister is going to dare to respond.
Lord Henley
My Lords, I am not going to dare to respond. I am saying that there are a lot of very noble and learned Lords in this House and a lot of Members who are not necessarily noble and learned but know a great deal of law. I do not know the answer to that. I had better write to the noble Baroness. I am sure she will have a response before Report.
Baroness Hamwee
My Lords, I am not a noble and learned Member either, which is perhaps why I can dare to ask the stupid questions. I beg leave to withdraw Amendment 18.