Justice and Security Bill [HL]

Lord Henley Excerpts

Wednesday 11th July 2012 Lords Chamber

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

My Lords, I will deal first with Amendments 35 and 38 standing in the name of the noble Lord, Lord Butler, and my noble friend Lord Lothian, supported by noble Lords on the Front Bench opposite. The noble Lord, Lord Butler, described these amendments as purely drafting amendments. My noble friend, a self-described simple Scottish lawyer, thought that they went beyond that. I take his point in that one of the points of the noble Lord, Lord Butler, is that using “draft” in Clause 3(3) could be seen to impugn the independence of the committee. I give some assurance that we will look at that in due course and whether “draft” is necessary. However, it might be worth my setting out the current arrangements and then the arrangements in the Bill

Under the current reporting arrangements, I think that I can give my noble friend Lord King an assurance that “draft” does not appear in the Intelligence Services Act 1994.

[Lord King of Bridgwater]

It does.

[Lord Henley]

It does appear in it. Well, I got that wrong. Under the existing Intelligence Services Act, the ISC makes an annual report on the discharge of its functions to the Prime Minister. The Prime Minister lays before each House of Parliament a copy of that report, together with a statement as to whether anything has been excluded from it by the Prime Minister on the grounds of its sensitivity. Under the Bill, the ISC will for the most part report to Parliament but will still be able to report to the Prime Minister on matters that would be excluded from any report. It would remain for the Prime Minister to decide whether grounds exist for excluding matters from the report after, of course, consulting. That is the important thing: the consultation with the ISC. That will continue to happen.

If, as I said, the word “draft” is not appropriate, I am sure that we can make arrangements. I am obviously not a draftsman. One way of doing that would be just to delete subsection (3) from Clause 3. We will have a look at it. We have, as we know, any amount of time because we have a long summer ahead of us with other matters to deal with.

The second amendment in this group of three, Amendment 36, spoken to by the noble Lord, Lord Rosser, changes the criteria—or definition, as the noble Lord, Lord Rosser, put it—whereby the Prime Minister might exclude any matter, if that report without that matter excluded would contain sensitive information as defined in Schedule 1, or information which should not be disclosed in the interests of national security.

The ISC must be able to report candidly to the Prime Minister on sensitive matters. Inevitably, the full contents of its reports cannot always be published because of the nature of the material contained within them. We are all agreed on that; it is quite clear. It follows, therefore, that there must be an ability to redact information before the ISC reports can be published or laid before Parliament. I must make it clear that the test in the Bill is modelled on the one in the 1994 Act. That has worked well and it is well understood by both the committee and by the Government. It has allowed material to be excluded where it should be excluded but it has also allowed the Government and the ISC to ensure that as much of the ISC’s reports that can be published are published. I do not believe that it is overly restrictive but it does cover certain categories of information which would not be covered were the Bill to be amended as is suggested in the noble Lord’s amendment.

The noble Lord, Lord Campbell-Savours, from a sedentary position, and the noble Lord, Lord Rosser, have put this point. They want to know why the criteria are different. If the noble Lord will allow me, I will explain that in due course. There is no need for him to make an intervention as he has already asked that point. The ISC needs to know what can be published and there are two different tests—one for publication and one for disclosure to the ISC. The tests therefore should be different. Tests for withholding from the ISC should be at a much higher threshold.

As both noble Lords will be aware, the functions of the agency are not solely exercisable in the interests of national security. It also has functions exercisable in the interests of economic well-being, United Kingdom fraud protection or prevention of serious crime. For those instances where including a matter in an ISC report to Parliament could cause prejudice to those functions of the agency but not to its functions in relation to national security, the existing Clause 3(4) would give the Prime Minister the power to require that that matter should be excluded from the ISC’s report whereas, unless the information in question fell within the definition of sensitive information under paragraph 4 of Schedule 1, the formulation of the clause proposed by this amendment would not.

With that, the noble Lord’s amendment is not necessary and in fact would not take us much further. I hope therefore that he will consider not moving it when it is called. I trust that my assurance that we will consider Amendments 35 and 38 in the names of the noble Lord, Lord Butler, and my noble friend Lord Lothian will enable the noble Lord to withdraw his amendment.

[Lord Butler of Brockwell]

I am grateful for the Minister’s assurance that the drafting points raised in Clauses 35 and 38—or a little more than drafting points, as my noble friend Lord Lothian said—will be looked at. With that assurance, I am happy to withdraw the amendment.

--- Later in debate ---

[Lord Henley]

My Lords, I assure my noble friend that I will always reflect on all points that are put to me in the course of these debates between now and Report. I appreciate the intention behind the amendments of the noble Lord, Lord Campbell-Savours, which is simply to create stronger links between the ISC and other committees. I appreciate that he has discussed this matter with former chairmen of the Home Affairs Select Committee such as Chris Mullin, whose diaries I have recently been reading and greatly enjoyed, as I imagine all of us have.

It is certainly our intention that the ISC should be a strong and effective committee and cover in its work matters of public and parliamentary interest and national importance relating to the agencies. Equally, an important feature of the committee is that it is party, as I have said on many occasions, to the most sensitive material and will scrutinise matters that are secret, some of which Parliament and the public will not have sight of for very good reasons.

While on the face of it the proposed changes seem helpful, I have some concerns about them. At the moment, obviously it is open to any Select Committee to write to the ISC and request that it focuses its work on a particular area. There is nothing in the new arrangements to prevent it from doing so and I am sure that the ISC will continue to take any such requests seriously, particularly if the noble Lord, Lord Campbell-Savours, was a member of the ISC, although I imagine it would be equally true with any other membership of that committee.

My concern is really about the idea of creating a formal statutory mechanism for making and considering these requests, with a requirement on the ISC to report on its decision-making process, which is what the noble Lord is seeking to do. I will give three very brief reasons why I do not think it is necessary to create a formal process, although, as I say, we shall take this away and consider it. First, I am concerned that the ISC could become overwhelmed with the number of requests to report on particular matters. If it acceded to all requests, its programme of work could be overwhelmed with matters that are of interest to other committees, taking its focus away from its core work of scrutinising matters that it alone should identify itself with.

Secondly, there is the question of what the ISC would be able to say in response to those requests, given the highly sensitive nature of the agencies’ work. Thirdly, if the ISC did not accede to all requests from Select Committees, tensions could develop between the ISC and those committees. That could undermine and damage the ISC’s reputation when the reality is that the ISC is carrying out important scrutiny, determining the priorities for that scrutiny in the light of its expertise and access to the relevant information in line with its remit.

With my assurance that other committees are welcome to make requests to the ISC, along with my explanation as to why I do not think it is necessary to make this into a statutory obligation and the fact that I have concerns about setting it down in that way, I hope that the noble Lord will be more than happy to withdraw his amendment. However, as I said at the beginning in response to my noble friend, we are always prepared to reflect on such points.

[Lord Lester of Herne Hill]

I quite understand the Minister not wishing this amendment to be in statutory form, but would it be beyond the wit of man or woman to embody the idea behind these amendments in a protocol, a memorandum of understanding or something of that kind? I have in mind just such an agreement between the Law and Institutions Sub-Committee of the European Union Select Committee and the Joint Committee on Human Rights as to how one deals with overlaps and so on. Could the Minister perhaps reflect on whether there are other ways of achieving this aim that are not simply an assurance from him but something short of statute?

[Lord Henley]

My Lords, I have served on one of the two committees that the noble Lord refers to—and felt considerably out of my depth—but not on the other. I note what he says about the memorandum of understanding between them. This might be something that the ISC and other committees could reflect upon between themselves and decide how they want to proceed. Again, however, I do not think that this is best set out in statute, although obviously we will reflect on these matters. That is the point of this House and why we are going through a Committee process. I have set out why I do not think that this is the best way of going about it, but I shall listen to the noble Lord, Lord Campbell-Savours, and trust that he will feel able to withdraw his amendment at this stage.

[Lord Campbell-Savours]

In some ways, that may be a helpful response. Following the intervention of the noble Lord, Lord Lester, and his reference to the memorandum of understanding, and on the basis of what the Minister said the other day—that there would be an ongoing process over the next few months during which this memorandum of understanding was to be drawn up—

[Lord Henley]

It is one thing if we are talking about a memorandum of understanding between the Government and the ISC. I think my noble friend was referring to a memorandum of understanding between the ISC and other Select Committees. That, obviously, would not be a matter for the Government.

[Lord Campbell-Savours]

It might not be a matter directly for the Government but it could well be incorporated into the document. The memorandum of understanding might deal with the whole question of the principle of the relationship that should or might exist between this halfway-house committee and Parliament.

I am grateful to the noble Lord, Lord Lester, for his intervention. I listened to the three reasons that he gave and I am not altogether sure that, apart from the last one, the first two would really register with members of the ISC. There may be some argument for the last one. On the basis of further consideration of these matters, I beg leave to withdraw this amendment.