Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 9th July 2012 Lords Chamber

[Lord Rosser]

My Lords, I shall be brief, as much of the subject matter has been covered already. I wish to speak to Amendments 21 and 23. The purpose of those two amendments is to ensure that the power to veto disclosure of departmental information can be exercised only by the Secretary of State and not by a Minister of the Crown. Paragraph 3(1)(b) of Schedule 1 requires that only the Secretary of State can decide that information required by the Intelligence and Security Committee can be withheld by the agencies. Moving down to paragraph 3(2)(b), in relation to other government departments, it appears that the Minister of the Crown can make that decision, which would appear to indicate, subject to the Minister’s response, that such a key decision can or would be made at a more junior level than Secretary of State in relation to disclosure of information in respect of a government department. If that is the case, no indication is given about a reason for that decision. Bearing in mind that withholding required information could thwart the Intelligence and Security Committee in its work to meet its statutory remit of strength and oversight of the intelligence and security activities of the Government, such a decision should be taken only at the highest ministerial and accountable level within the department concerned, namely, the Secretary of State. These amendments provide for that.

[Lord Lester of Herne Hill]

My Lords, perhaps I could briefly explain the problem that arises with the Joint Committee on Human Rights. It is very important that parliamentary committees are well informed. From time to time, under the previous Government and under the present one, the committee has considered inviting someone from the intelligence and security service to provide it with a proper context when it is considering something such as detention without trial for a long period or, for example, the Justice and Security Bill. Under the previous Government, when we tried, we were told that it would not be possible and, therefore, we were not given the benefit of that material. Therefore, we have not tried in relation to the Justice and Security Bill because we are certain that we would find the same refusal.

It seems to me that it ought to be possible for the intelligence and security service to assist a parliamentary committee, on whatever terms are needed, to protect its own position, whether giving evidence in private or in some other way because it is a real handicap. It means that when we produce reports, for example, on this Bill, we are deprived of information that would be very helpful. It makes us look as though we are looking at problems through one eye instead of both. I do not think that we should be put in blinkers. I mention this because it seems to be something that extends to committees other than the one that we are now considering.

[Lord Campbell-Savours]

Could I ask the noble Lord to attend the debate on one of my later amendments, which deals precisely with that matter?

--- Later in debate ---

[Lord Lester of Herne Hill]

I will be here.

[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.