Justice and Security Bill [HL]

Lord Henley Excerpts

Monday 9th July 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I think that there is unanimity around the House about the questions that need to be addressed in connection with Amendment 24. Our concern is that the Government may have lowered the threshold for proving that information should be withheld. Under the Bill, the Secretary of State will decide whether information is too sensitive to disclose or is of such a nature that it would not be proper to disclose it to a departmental Select Committee. However, where the Intelligence Services Act 1994 prevents the Secretary of State vetoing the disclosure of information on grounds of national security alone, now national security is just one of the conditions under which the Secretary of State may use their veto. I support the amendment of the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler of Brockwell, because I share their curiosity about what a consideration that it is not proper to disclose information to a departmental Select Committee would mean in practice, and why the provision of it not being proper to do so is seen as a necessary alternative to non-disclosure on the grounds that the information is sensitive and affects national security. I would be grateful if the Minister would look at this again.

Amendment 25 in the name of the noble Baroness, Lady Hamwee, disallows the use of the ministerial veto on disclosure of information when it refers to conduct that would amount to a breach of international law. I am curious about how that would work in practice. Who would determine whether the conduct to which the information relates could amount to a breach of international law? I find it difficult to understand how a Secretary of State would make that judgment on the actions of her own Government. I understand the principle behind it but I am not clear how it would work in practice. If the Minister would explain what is meant by “proper”, that would be very helpful.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the noble Lord, Lord Campbell-Savours, suggested that this amendment was similar to the previous one. He is right, but we have been allowed to have a one-hour break to have something to eat between that previous amendment and this one. It is similar to that amendment. He also said that he was somewhat confused by it. He is not the simple Scottish lawyer that my noble friend Lord Lothian is, but my noble friend also got it right when he said that it was possible that the draftsman had got it wrong. If that is the case, obviously I will ask the appropriate officials to look at it again to ensure that we have got the drafting right.

Before I come to the substantive part of the amendment, may I also make it clear to my noble friend Lord Lester that we will try to address his points about general aspects of dealing with Select Committees between now and Report? I cannot give any guarantee of that but I certainly hope to do so.

There are a number of very long-standing conventions that have developed in Parliament in the relationship between Select Committees and successive Governments. Those conventions recognise that there are categories of information that may, in certain circumstances, be withheld from Select Committees on grounds of public policy.

The noble Lord, Lord Butler, asked for particular examples. All I can say at this stage is that examples of the type of information are given in the Cabinet Office guide Departmental Evidence and Response to Select Committees. Some noble Lords may know this guide by its other name, the Osmotherly Rules. I do not know those intimately but I look at the smile on the face of the noble Lord and I suspect that he was probably the one who drafted them some years ago. He shakes his head. But he knows them well. The categories of information set out in that guide include information about matters which are sub judice, information which could only be supplied after carrying out substantial research or at excessive cost, and papers of a previous Administration.

The sub-paragraph of the Bill that the noble Lords propose be left out and which my noble friend asks that we have the draftsmen look at again is a necessary part of the Bill. It provides a basis for withholding these categories of information from the ISC. If the relationship between the ISC and government is to reflect the relationship between a Select Committee and the Government, then it seems to the Government to be essential to have this significant aspect of the relationship.

The provision gives the Minister of the Crown discretion only to withhold material. In exercising that discretion the Minister would, of course, have regard to the provisions that the ISC has for keeping material confidential. For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. They have only been used sparingly in the past and we expect this to continue. However, it is important that those safeguards are retained.

My noble friend Lord Thomas also asked for the definition of “proper” in paragraph 3(3)(b). That is something I would ask that we look at again in relation to the concerns over the drafting of the Bill. With that explanation, I hope the noble Lord will feel it is not necessary to move his Amendment 24.

Amendment 25 would introduce a limitation on, or exception to, the powers of the Secretary of State or a Minister of the Crown to withhold information from the ISC, under paragraphs 3(1)(b) or 3(2)(b) of Schedule 1. The exception would apply wherever the information requested by the ISC relates to conduct which may amount to a breach of UK or international law.

Various noble Lords spoke very strongly about this at Second Reading, and I know there are concerns to ensure that the new ISC can operate as effectively as possible in future. Other amendments would obviously have the effect of removing entirely the powers of the Secretary of State or a Minister of the Crown—we discussed that in an earlier amendment—to withhold information from the ISC. This amendment is an alternative, therefore, to those amendments.

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[Lord Lester of Herne Hill]

I understand all of that in the context of sub-paragraph (3)(a), which is carefully drafted and limited. However, I do not understand how it applies to the sub-paragraph that has been questioned by the noble Lord, Lord Butler of Brockwell, because that does not deal with sensitive information as defined in sub-paragraph (4) but simply states that,

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

Unless I am completely wrong, that seems entirely subjective. It certainly would not be subject to judicial review. It is a Humpty Dumpty: when I use a word it means whatever I say it means, nothing more. To use an example from Ring Lardner: “‘Shut up’, he explained”. It is standardless and would cover anything the Minister thought about propriety. Surely that cannot be a proportionate way of having a safeguard.

[Lord Henley]

I do not think that the noble Lord, dare I say it, listened to what I was saying earlier about this amendment. It may be that we need to look at the drafting. I have given a commitment to the Committee that we will deal with that in due course and look to see whether we have got it right. As I explained—I have to go back into my speech—I think that that is probably the right way to proceed. If the noble Lord is accusing me of taking a Humpty-Dumpty approach, well, Humpty Dumpty was not always that wrong with some of these things; certainty in terms of when one is speaking at the Dispatch Box and defining what words mean. Anyway, if I say it means that, that is what it does mean—that, I think, is what the Humpty-Dumpty approach is.

I do not think that I can add much more to my response to the noble Lord and other noble Lords. I appreciate the intention behind Amendment 25. I appreciate what my noble friend is doing but I hope that the noble Lord will feel able to withdraw his amendment at this stage.

[Lord Thomas of Gresford]

As the noble Lord, Lord Henley, was speaking I wondered whether the word, “proper” is supposed to mean “contrary to convention”. It would be impossible to have a convention across all departments where there are Select Committees so it was conventional in one department to release this information but it might be conventional in another to release more or less. It would be almost impossible to get a standard of disclosure of information across the board which it is proper to disclose. I am very grateful for what the Minister has said on that issue.

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[Lord Henley]

I can be very brief. I can offer an assurance to my noble friend that “information” includes documents and other material whether held in documentary, electronic or other form. I hope that with that reassurance my noble friend will accept that the term “information” in the Bill includes all the matters that she lists.

[Baroness Hamwee]

I beg leave to withdraw the amendment.

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[Lord King of Bridgwater]

My Lords, that was a rather savage attack on the Government, which was not entirely justified. I thought there was a general recognition in the House that what the Government are doing in this clause is recognising the situation that has already developed. The ISC started with a fairly limited remit under the Intelligence Services Act 1994. Progressively, through such things as the DIS in the Ministry of Defence, JIC and access to JIC assessments, bringing in the Comptroller and Auditor-General to assess the financial operations of the agencies—a whole lot of different ways—the committee expanded its role and activities in a way that was entirely sensible, in which people collaborated, and which was accepted by the agencies and the Government.

I do not know whether there is something frightfully subtle in the amendment that the Opposition have tabled and how far it is significantly different from what the Government have already put in the Bill. The Government are recognising, and it seems quite fair that it is set out in a memorandum of understanding, just what the area and remit of the committee will be. Certainly, in the end—I think it was the experience of the noble Lord, Lord Campbell-Savours, as well——whatever we sought to look into and in the range over which we sought to expand our activities, I do not recall any area in which we were significantly frustrated.

[Lord Henley]

My Lords, this is the first of a number of amendments that deal with a memorandum of understanding. I start by apologising to the noble Lord, Lord Rosser, who makes attacks on the Home Office for being somewhat remiss in the slowness with which it produces things, particularly in relation to the framework document. As the noble Lord is aware, I have promised that we will have a draft or an outline of that framework document before we get to Report stage of the Crime and Courts Bill. Since that is unlikely to take place in this House before the end of October, we have a certain amount of time.

On the memorandum of understanding, as set out in the Bill, I am grateful for the support of my noble friend Lord King on this. It is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the memorandum of understanding can make provision at a level of detail that is not appropriate for primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may well be engaged in other activities besides, which would not properly fall within the remit of the ISC.

Clearly, things change over time. Departments reorganise. The functions done by one department one year may be done by another the following year. The noble Lord will remember when his party was in Government, how frequently they changed the names and the functions of departments. I have completely lost track of the number of changes there were to departments. One of the things we did very firmly when we came back into office was not to change the names or functions of departments, except in the most marginal capacity.

I believe the intelligence world is no different to any other part of government. For example, as with the recent Levene report, we could find that future reorganisations of defence may change organisational boundaries that affect the MoD’s intelligence activities. A memorandum of understanding is a flexible document. It can be changed much more easily than primary legislation. It will enable the intention of the Government that the ISC should have oversight of substantively all of central government’s intelligence and security activities to be realised now and, more importantly, in the future should they change. The amendment seeks to limit that. For that reason I cannot offer any support to the amendment. I hope the noble Lord will feel able to withdraw it.

[Lord Rosser]

I thank the Minister for the reply. Of course, my amendment does not refer to any government department by name because it lifts the wording from paragraph 4 of Schedule 1, which refers to,

“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.

From what the noble Lord has said, I am still not quite sure how extensive the areas will be that might be included in the memorandum of understanding that would not be included in the definition that I have given in this amendment, when that is also allied to Clause 2(1). So I am not sure I have had a very direct answer to that question.

Nor has the Minister addressed the fact that putting it in a memorandum of understanding means that it will not be subject to prior discussion as part of this Bill. It is a document that the ISC has to agree with the Prime Minister and, as I understand it, it will not have to be approved subsequently by Parliament. The more reliance that is put on that memorandum of understanding and the more information that is put in it, the less opportunity this House has to discuss the issue.

I would have thought that since the wording I used has been lifted from another part of his own Bill, the Minister might at least have accepted that that was worth considering because it would, at the very least, reduce the amount that had to be covered in the memorandum of understanding, and thus reduce the amount that could not be debated as part of this Bill and which would not require the approval of Parliament. There has been no offer from the Minister even to look at this issue from that aspect. It is just a straight dismissal of the terms of this amendment. I express my disappointment at the Minister’s reply—he could have been much more sympathetic and helpful—but I note his reply and beg leave to withdraw the amendment.

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[Baroness Smith of Basildon]

My Lords, this certainly seems a very sensible and practical group of amendments. Amendment 30 would remove the Prime Minister’s involvement in the assessment of whether a matter that the ISC wished to consider satisfied the criteria of being of significant national interest and not part of an ongoing operation. I fully support the extension of the ISC’s statutory remit to include particular operational matters; it is a function that the committee, in practice, already performs. We also understand the necessity of constraining this remit. I think that the noble Lord, Lord Campbell-Savours, in speaking to his amendment, made that point, too. It is necessary to ensure that the committee’s work is focused on areas of significant national interest and does not jeopardise ongoing operations. The determination of whether an operation is of significant national interest and whether it is not currently ongoing are objective judgments. One is a decision about what is of interest to the public, which the committee is surely best placed to judge, and the other is a statement of fact, which would simply involve consultation with the relevant government agencies. It is not a process of negotiation with the Prime Minister.

It is unclear to me why this assessment cannot be left to the discretion of the committee without needing the involvement of the Prime Minister. If the key point of the reforms in this legislation is to establish a clearer independence of the committee from the Prime Minister and a closer connection with Parliament, then requiring the ISC to seek the permission and the agreement of the Prime Minister before determining whether a specific operational matter lies in its remit sends a completely wrong signal about the independence of the ISC.

We also give full support to Amendment 32, which would provide important flexibility to the committee’s powers to view specific operational matters. We have consistently argued that the ISC should be given the power to review specific operational matters, such as control orders, while recognising that limitations may apply with respect to ongoing operations where the committee’s work may jeopardise the integrity of those operations. An absolute ban on considering any ongoing operational matters seems to us to be unnecessarily heavy-handed. It is easy to imagine particular cases of significant public interest, perhaps where the majority of the operation has been concluded but there is still some ongoing activity that cannot be reviewed by the committee, even if the Government agree that there is no risk. Amendment 32 would be a highly sensible alternative to the blanket ban by allowing the committee, with the agreement of the Secretary of State, to review certain ongoing operations. I agree with the noble Lord, Lord King of Bridgwater, that there seems to be a drafting deficiency. I hope that the Minister can give a more positive response to this group of amendments than he was able to for the last one.

[Lord Henley]

My Lords, first, if there are any drafting concerns about this Bill, as I hope I made clear at an earlier stage, we will be more than happy to look at them. This is what this House does very well and the debates that we have been having this afternoon are indicative of that. We will take these points on board and the similar drafting points made by my noble friend Lord Lothian.

Secondly, I understand that the noble and learned Lord, Lord Lloyd, tried to table an amendment earlier today but I think that he missed the boat. I suppose that he could still have put down a manuscript amendment—fortunately, he decided not to—but he will come back to that in greater detail on Report. Certainly we will listen to his remarks in due course about the Security Commission, which he said that he chaired and which was later chaired by the noble and learned Baroness, Lady Butler-Sloss.

I hope that the Committee will bear with me if I explain in some detail just what we are trying to do and what we think is wrong with the amendments. I hope that noble Lords will also accept that, as I just said, we are more than happy to look at matters relating to drafting again, because we want to get this right.

The Bill extends the ISC’s statutory remit and makes clear its ability to oversee the operational work of the security and intelligence agencies. This is an important and significant change and will be key to ensuring that the ISC continues to perform an effective oversight role. With this formalisation of its role in oversight of operational matters, we would expect the new ISC to provide such oversight on a more regular basis.

In the Bill, the ISC may consider any particular operational matter, but only so far as the ISC and the Prime Minister are satisfied that the matter is not part of any ongoing intelligence or security operation and is of significant national interest. The ISC’s oversight in this area must be retrospective and should not involve, for instance, prior knowledge or approval of agency activity. Consideration of the matter must also be consistent with any principles set out in, or other provision made by, a memorandum of understanding. We will discuss that again in due course.

Of course, the ISC is not the only body that oversees the operational activity of the agencies. The Prime Minister has overall responsibility within government for intelligence and security matters and for the agencies. Day-to-day ministerial responsibility for the Security Service lies with the Home Secretary and, for the Secret Intelligence Service and GCHQ, with the Foreign Secretary. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service; similarly, the Foreign Secretary has his accountability.

The Intelligence Services Commissioner provides oversight of the use of a number of key investigatory techniques employed by the agencies and by members of Her Majesty’s forces and Ministry of Defence personnel outside Northern Ireland. The Interception of Communications Commissioner’s central function is to keep under review the issue of warrants for the interception of communications.

On Amendments 30, 31 and 32, the first amendment would have the effect of leaving it solely to the judgment of the ISC to decide when the criteria for considering a particular operational matter are met. The noble Lord, Lord Butler, is a current member of the Intelligence and Security Committee and, as such, speaks from a position of great knowledge. However, I hope that he would agree that the judgment as to whether an operational matter meets the criteria is one that should be for both the ISC and the Government and not just for one or the other. It is very important that we get this judgment right.

[Lord Butler of Brockwell]

It may be worth making the point that the amendment does not leave it solely to the judgment of the ISC; it just says, as a matter of fact, that the operation has concluded or is of national significance. So it would not just be the ISC that decided that—it would be the fact. If I may say so, the Minister misunderstands the purpose of the amendment.

[Lord Henley]

I apologise to that extent if I have misunderstood what the noble Lord was getting at in his amendment and I hope that I did not mislead the House in so doing. The Government’s intention, on that memorandum of understanding, which has to be agreed by the Government and the ISC, is that it will be the appropriate vehicle for agreeing the process to ensure that the information is provided to the committee in an appropriately prompt manner.

The amendment in the name of the noble Lord, Lord Campbell-Savours, would remove one of the key restrictions on the ISC’s new power to oversee agency operations, namely the requirement that its oversight of operations should be retrospective. The extension in the Bill of the ISC’s statutory remit into the agencies’ operational work is a significant deepening of the committee’s powers. While the ISC has in the past conducted inquiries into operational matters with the agreement of the Prime Minister, such as its inquiries into the London bombings of 7 July 2005 and into rendition, the provisions in the Bill provide a formal remit for the committee in this area. We anticipate that the new ISC will provide such oversight on a more regular basis.

We have worked with the current ISC to develop the new arrangements, and the committee agrees with the Government that its oversight of operations should be retrospective in nature. In other words, the ISC should not oversee operations that are ongoing. There are a number of very good reasons for this.

[Lord King of Bridgwater]

This is my concern about the drafting: what is an ongoing operation? Is it 7/7 and the follow-up; or is it the jihadist threat that exists and which we think possibly continues to exist at this time, with the Olympics coming up and the heightened security alert that will continue afterwards? What is an “ongoing” security operation?

[Lord Henley]

My Lords, I am not sure that the word “ongoing” has actually been tested in the courts. It is in the Bill, which is why I make this point. We have no judicial interpretation of “ongoing”, but I hope the courts would understand and interpret it as the words appear in the Bill.

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[Baroness Manningham-Buller]

I think the problem is the word “operation”. Certainly in the security and intelligence world, an operation is something finite, with a code name, that will come to an end. I think that is what the legislation is trying to get at. It certainly would not be a merged operation such as a jihadist threat or Iraq, which would not be seen in those terms. That may be the difficulty. If we can make that clear in defining it, that might be helpful to the Minister.

[Lord Henley]

I am grateful to the noble Baroness for her intervention. I am also grateful to my noble friend Lady Hamwee for her suggestion that “current” might be a better word than “ongoing”. “Ongoing” is not a word that I would necessarily have wanted to use and is not one that I have come across much before in legislation. “Current” might be a better term and might be one of the reasons why we need to look at the drafting of these matters, to make sure that we have got it absolutely right. For that reason, all I can say is that we will look again—the noble Lord, Lord Campbell-Savours, smiles—at that word “ongoing” and make sure that we have got it right. Again, as a layman and not a simple Scottish lawyer, it seems to me that “ongoing” is something that we can all understand relatively simply, so I hope we can get this right. That is the point of the processes that we are going through in this House. I hope that we can get it right in due course.

Amendment 32 is the third amendment in this group and the second in the name of the noble Lord, Lord Butler, and my noble friend Lord Lothian, and would allow the ISC to oversee an operational matter that does not meet the criteria in Clause 2(3) if the relevant Minister of the Crown agrees to consider the matter. Given that the requirement is that the Government and the ISC both need to agree, it is difficult to see circumstances in which the noble Lords’ amendment would ever need to be used. For example, we cannot presently foresee circumstances in which it would be appropriate to call on the ISC to put its resources towards examination of operational matters that were not of significant national interest.

Nor would it be appropriate for the ISC to have a role in approving future actions or decisions relating to the agencies, or to examine ongoing—again I use that word, but perhaps I ought to say current—operations. Such a role could cut across lines of ministerial accountability and could even have the potential to prejudice those operations. The amendment is therefore unnecessary.

I hope that that deals with most of the points. I am sure that it does not, but I have given a commitment that we will look again at the drafting of this part of Clause 2. I hope that the noble Lord will feel able to withdraw the amendment.

[Lord Butler of Brockwell]

My Lords, I am grateful to the Minister and to other noble Lords who have taken part in this debate. It has brought to light matters that need to be clarified before Report. I emphasise again—and I apologise for rudely interrupting the Minister—that there is no difference between the ISC and the Government on what the committee’s purview should be. The ISC accepts that its purview should normally be retrospective and that it should be confined to matters of significant national interest. What is new about the way the clause is drafted is the interpolation of the Prime Minister in deciding that that is the case. That is unnecessary, and as my colleague, the noble Marquess, Lord Lothian, said, it would produce the most tremendous logjam and would be a backward step from where we are now. That is the only difference, but I hope that that issue can be looked at again.

If I may say so, the discussion on the amendment of the noble Lord, Lord Campbell-Savours, brings out the ambiguity of the word “operations”. As the noble Baroness, Lady Manningham-Buller, said, it is perhaps because it is a term of art in intelligence speak and means something specific rather than an ongoing exercise. If I may do the draftsman’s work and join the noble Baroness, Lady Hamwee, it may be that “specific operation” might be more helpful than “current” or “ongoing”. However, that is a matter for consideration.

On Amendment 32, I am fortified by a whispered conversation with the noble Baroness, Lady Manningham- Buller. One can imagine a situation in which it might be useful to Parliament and the nation, and to the agencies themselves, if the ISC is asked to look at an ongoing, even specific, operation. Let us imagine that something is going on that has got into the media, is creating great concern, there are great sensitivities to it, but it is urgent that someone should look at the matter and provide a report to Parliament. That is the sort of circumstance in which my proposal might be helpful. It is discretionary and the decision would be with the approval of the Minister, but it seems a pity not to allow for that sort of situation by making provision for it in the Bill.

Those are the considerations that I would urge on the Minister and the Government. With the assurance that he will look at them before Report, I am content to withdraw the amendment and not move Amendment 32. I beg leave to withdraw the amendment.

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[Baroness Hamwee]

No, I said a note from the Government responding to points made by noble Lords at Second Reading.

[Lord Henley]

Perhaps I may assist the noble Lord. It was a note sent out by myself and my noble and learned friend Lord Wallace of Tankerness, which I hope went to all Peers who spoke at Second Reading. If the noble Lord has not received his, he should have done and I can only blame the post.

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[Lord Rosser]

My Lords, perhaps I may make one brief comment. I have already expressed our views about the memorandum of understanding and I think that in return I was told by the noble Lord, Lord King of Bridgwater, that I was being savage.

I just wish to pursue the point that the noble Baroness, Lady Hamwee, made about other references in Clause 2 to the kind of content that will be included in the memorandum of understanding, which we will not get an opportunity to debate and which does not have to be approved by Parliament. Clause 2(3) says:

“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest, and … the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

One has to bear in mind that this is not a document that we will be able to debate and discuss and it will not need to be approved by Parliament unless the Minister is going to move on this amendment. What are these principles that will be set out in the memorandum of understanding which we are not going to be told about when discussing the Bill and which we are not going to be allowed to discuss?

[Lord Henley]

My Lords, first, I apologise to the noble Baroness, Lady Hamwee—who is great on drafting. She has picked out another word—envisaged—which she has not come across in legislation before. We will add that to “ongoing”. I suspect that, like her, I am probably an old fogey on these matters. These matters are new to drafting but develop in the way that they do. We will consult the draftsman on whether he is happy with “envisaged” or whether some other word could do it.

It would probably be helpful if I first explain the purpose of the memorandum. We believe that it will be an important document in the relationship between the ISC and the Government. It will define the precise extent of the ISC’s oversight of parts of the intelligence community other than the agencies. It will set principles or other criteria that must be met before the ISC can consider particular operational matters. It will describe the arrangements by which the agencies and other intelligence bodies will supply information to the ISC. We expect that it will also cover matters such as: the factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing, current—or whatever word we particularly wish to use—and/or of significant national interest; a description of the arrangements by which the ISC will request and hold information, including the circumstances in which the ISC will be able to access primary source materials; a description of the role of investigative staff in the ISC’s work; and a description of the process for producing an ISC report. That is what we intend that it should cover. There will no doubt be other matters that will also need to be covered.

The memorandum of understanding in the Bill must be agreed between the Prime Minister and the ISC and it can be altered or replaced at any time by agreement. It is intended that the first memorandum of understanding will be agreed immediately on the coming into force of the relevant provisions. As I said, however, we hope that we can give some idea of what it is going to look like by the time we reach Report.

As is usual for a memorandum of understanding—this is not an unusual procedure—there is no parliamentary approval procedure. This was looked at by the Delegated Powers and Regulatory Reform Committee and it was perfectly happy with this. While the memorandum of understanding itself will be an unclassified document which will be published and laid before Parliament, its precise terms are very likely to be shaped by matters which are sensitive in terms of national security and which therefore cannot be made public. In these circumstances, it is particularly appropriate that the memorandum of understanding can be concluded without the need for parliamentary approval.

Of course the terms of the memorandum of understanding must be agreed with the ISC. The Bill makes that clear—it is agreed between the Government and the ISC. The ISC, we must always remind ourselves, is a committee composed of parliamentarians—nine from both Houses. It could be eight members from this House and one from another, but it might be some other arrangement, as it is at the moment—seven from another place and two from this House. As a result of the changes that the Bill will bring about the committee will be appointed by and accountable to Parliament. In some ways, requiring these parliamentarians to seek the approval of the rest of Parliament is a restriction on the independence of the body. I think that it would be unusual for Parliament to have such control over the detailed way in which what amounts to a Select Committee—as the noble Lord, Lord Campbell-Savours, is looking for—has decided to conduct its business.

We have not yet published the memorandum for the simple reason that the memorandum of understanding does not exist. We are starting the process of agreeing this document with the ISC and will do so in parallel with the Bill’s passage through Parliament.

[Lord King of Bridgwater]

My Lords, I am a little confused about the memorandum of understanding. We seem to have slipped into an issue that arises in the second part of Clause 2: operational matters. The memorandum also refers to overseeing other activities of Her Majesty’s Government in relation to intelligence and security matters. I understand that that is a reference to the Ministry of Defence, to the CDI—who used to appear before the Intelligence and Security Committee—to the Home Office and to other people who gladly came and gave evidence. Presumably that is part of the memorandum of understanding. There is nothing controversial about this; it merely legitimises and puts into statute a situation that already exists.

If I understand correctly, the Minister is now saying that the memorandum of understanding will not appear before the end of the parliamentary process, and that then it will not be subject to any further parliamentary approval. While I entirely understand that necessarily secure issues in the memorandum may have to be dealt with separately, much of what is in the legislation and the memorandum of understanding are the rules under which the ISC will operate and the access that it will have. The Minister is very nobly taking on the first cut of the Bill, if I may put it like that. The memorandum of understanding will have to be looked at again. If it covers the first part of what I am talking about, certainly it should be available to Parliament. Either it should be under consideration while we debate the Bill or it should come up at a later stage, subject to parliamentary approval if it is subsequent to the passage of the legislation.

[Lord Henley]

My Lords, again I do not think that my noble friend followed what I said. We will not agree the final memorandum until after the Bill has completed. However, I make it clear that we want to produce a draft of it at an earlier stage as we complete our discussions with the ISC. Once we have an agreed draft, it is our intention to publish it to help inform debate. I hope that this will happen before Report. The Bill is only just starting in this House. It has to go through another place as well. As discussions on this will be ongoing—I must not use the word “ongoing”—as the Bill is considered by Parliament, it would not be appropriate to share the first draft before at least it has been agreed by both parties.

My other point is what I said at the beginning of my remarks: the memorandum of understanding, having been agreed by the Prime Minister and the ISC, can be altered and replaced by agreement at any time. Since it is a working document that can move on and be altered and agreed by the two parties, it would not be appropriate to constantly put it back to both Houses of Parliament for debate and agreement. That is not the position with other memorandums of understanding. Normally there is no parliamentary approval process. That is why I mentioned that this had been to the Lords Delegated Powers Scrutiny Committee, which, as far as I know, is perfectly happy with the process.

[Lord Campbell-Savours]

I will not delay the Committee. I am grateful to the noble Lord, Lord King, who clearly understands exactly what is being said—namely, that Parliament will be denied the right to approve the memorandum of understanding. I am sorry that I did not see a copy of the letter that the noble Baroness, Lady Hamwee, was fortunate to receive. It may have truncated my comments during debate on a number of amendments this evening. However, I suspect that we will have rich pickings in the memorandum and that we will come back to it on Report. I beg leave to withdraw the amendment.