Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 9th July 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I have Amendment 25 in this group but I had not given much thought to sub-paragraph (b), the subject of Amendment 24, other than to note it in general terms. A question occurs to me, however, as it is being discussed, as to whether it is normal—perhaps I should not say “appropriate” as I do not want to be judgmental—for primary legislation to refer to a procedural matter in this way and incorporate it into primary legislation. I will leave that there.

My Amendment 25 proposes an exclusion if we are to have decisions by Ministers as to what should not be disclosed. My noble friend Lord Thomas put his name to the amendment without realising, as he has just now prompted me, that my drafting is sloppy and it should have started “or (c)” and not just “(c)”. I apologise to the Committee for that. The information which could not be disclosed would be information relating to conduct which might be a,

“breach of UK or international law”.

I refer specifically to,

“the European Convention on Human Rights, the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment”.

The wording is not original to me. It was suggested by Amnesty International. It was a good suggestion. I know that there are other noble Lords in the Chamber who have far more experience of these issues than I do. It occurred to me that the Minister might say that any such breach should not be dealt with in this way and if there was a claim by an individual about a breach that would be a matter for the court. Perhaps this amendment needs further thought. I would be concerned to be sure that the Government did not withhold such information. This at any rate might be a start and we will get the Minister’s comments.

[Lord Lester of Herne Hill]

My Lords, I rise as probably the least knowledgeable and competent person to say much about this but I do so because of my experience as a member of the Joint Committee on Human Rights. I am glad that the noble Lord, Lord Butler of Brockwell, has raised the issue. I do not expect an answer to my question this evening but it would be helpful if before Report stage what I am about to ask could be answered.

I am mystified about the principles that should apply not to the ISC but to parliamentary Select Committees generally. When we come to consider the Norwich Pharmacal matter, we will be considering the extent to which courts should not be able to order the disclosure of documents that might show serious wrongdoing of the kind indicated in the amendment of my noble friend Lady Hamwee because of the harm to national security or international relations. To that extent, the Executive would be less accountable to the courts than at present. The question then arises of the extent to which the Executive should be accountable to Parliament and especially to parliamentary committees. I understand why the committee we are concerned with should be treated differently from the ordinary parliamentary Select Committee for very good reasons to do with Clause 2 of the Bill. My question is: what ought to be the position with other parliamentary Select Committees? The noble Lord, Lord Campbell-Savours, has tabled an amendment dealing with that general issue.

It would be very desirable if there were a practice direction of some kind, whether in the Ministerial Code or elsewhere, that indicated what needs to be done when a Select Committee seeks evidence of a non-sensitive kind and a security service gives an informed view not about policy but about other matters to the committee. I do not understand whether any practice is laid down on how that should be done and what the limits are when a Select Committee seeks such evidence.

Under the previous Government, when Andrew Dismore was chairman of the committee, we dealt with administrative detention without trial. We tried to get help from the security services. We were helped to some extent by the police service and we took evidence in camera from the police on some matters to do with counterterrorism. However, we were told that we could not do that with the intelligence and security services.

As I said, I do not expect an answer now, but it would be helpful if, between now and Report, we could be informed by letter of what the Government consider to be the general position on those issues. Certainly, if there is wrongdoing of a serious kind involving the sorts of issues covered by the amendment of my noble friend Lady Hamwee, and if that sort of material is not to be shown either to this or any other parliamentary committee, and is to be barred from, or limited in, legal proceedings, I am troubled by the lack of accountability of the Executive to the judicial branch of government as well as to Parliament itself.

[Lord Thomas of Gresford]

My Lords, my question to the Minister is: what is meant by “proper” in paragraph 3(3)(b) of Schedule 1? One has to postulate a situation where a Select Committee, for example on health, asks for disclosure from a Minister, who says, “I would love to give you the information but it would not be proper—it would be contrary to propriety”. What does the word mean? Proper in what sense? Would it be immoral or illegal? What is the word supposed to convey? I simply do not understand and would be grateful if the Minister would help me.

--- Later in debate ---

The ISC’s oversight role is not designed to supplant the role of the courts.

[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.