Justice and Security Bill [HL]

Lord Reid of Cardowan Excerpts

Monday 19th November 2012 Lords Chamber

[Baroness Williams of Crosby]

The noble Lord would not expect me to agree with him, and I do not. However, in our forthcoming discussion on Report, both today and on Wednesday, he will have the opportunity to consider further whether it is not now high time that we accept a greater degree of accountability—one that has to carry with it an ability to limit, in extreme cases, people who would be wholly unsuitable as members of the Intelligence and Security Committee.

[Lord Reid of Cardowan]

Perhaps I might respond to those two very rational and articulate contributions promoting the idea of a popular vote, as it were, in the House of Commons. I can see the benefits of that and those of ownership. The noble Baroness, Lady Williams, mentioned stakeholding in the House of Commons. However, it seems that at least four problems need to be thought through.

First, the amendment would explicitly exclude anyone from the House of Lords ever chairing this committee. In the previous debate, while not seeking it for this House, we envisaged the possibility that at some stage there might be someone appropriate in this House to chair it. As I read it, the amendment would effectively preclude anyone from the House of Lords—unless it is envisaged that there be a nomination process for this House but that nobody in this House has a vote; only the House of Commons has a vote. The noble Lord, Lord Hodgson, may have been about to suggest that that was possible. It would be a peculiarly quaint electoral procedure for those who were nominating candidates to be precluded from voting on them.

Secondly, it would almost inevitably undermine the possibility of another envisaged benefit of convention: of the place going to the Opposition. It would not preclude it but would make it much less likely that the tradition of the position going to a member of the Opposition would be carried through, if for no other reason than the Opposition being, by definition, a minority in the House of Commons. Anyone from the majority party would therefore have an enhanced ability to achieve the post.

Thirdly, I entirely agree with the noble Lord, Lord Gilbert. As someone who has held relatively recent ministerial experience, I can tell your Lordships that there is no way that the Prime Minister could veto a nomination for the chairmanship of this committee without it becoming a major issue—not least because the person thus vetoed would make it a major issue. Once that was out, there would be all sorts of demands, in terms of natural justice and fairness, to put into the public domain the reasons why a Prime Minister should think them so serious that he or she should veto a Member of Parliament—an honourable Member—who was considered unworthy or somehow deficient in integrity or in other skills from being chairman of this committee.

The fourth reason is that, having known the House of Commons relatively recently, I am not sure that this is a position on which we should envisage political campaigning, but I assure noble Lords that that is what we will get if this position is put up for a 100% franchise in the Commons. Therefore, having listened to what has been said, and appreciating what lies beneath the suggestion that there be an electoral college for this composed of the whole House of Commons, I think that before going down this road we would have to think very carefully about the consequences that would arise in the dynamism of real politics from such a decision.

[Lord Campbell-Savours]

My Lords, I want to argue both ways on this issue because I am of a very mixed mind. I shall start by taking on the case put by my noble friend Lord Reid, who said that it would become controversial and difficulties would arise if it were to be subsequently known by the wider public that there had been some dispute over whether the Prime Minister had been prepared to endorse the candidature of a particular candidate. I would have thought that these matters would be dealt with by the usual channels. The amendment refers to seeking,

“in advance of the ballot the formal consent of the Prime Minister”.

In other words, the Prime Minister would be asked discreetly through the usual channels whether he or she might be minded to endorse the candidature of a particular candidate or candidates, and in the event that there were to be a refusal I would not have thought that the candidate who had been refused would want it generally known that the Prime Minister of the day had turned down their prospective nomination for chairman.

[Lord Reid of Cardowan]

I entirely disagree with my noble friend. Not only would the candidate want it to be known, they might well have a particular reason for wanting to be chairman of the intelligence committee and indeed might even, in a rather covert fashion, be pleased to have been refused the endorsement of the Prime Minister. I do not want to mention any particular such candidates in the House of Commons, but off the top of my head I can think of half a dozen.

[Lord Campbell-Savours]

If we go back to the speech of the noble Lord who moved the amendment, he never said that any Member of the House of Commons could stand. I had to disappear outside the Chamber for medical reasons, but I understand that the noble Baroness, Lady Williams, argued that any Member of the Commons should be able to stand. However, I do not think that that was the noble Lord’s suggestion. I am presuming that he was moving the amendment on the basis that there would be a membership of the committee that was put to the House on the recommendation of the Prime Minister, and from those members there would then be a person who, with the endorsement of the Prime Minister, could be chairman of the committee. We may be speaking at cross purposes and I stand to be corrected. If the noble Lord is indeed suggesting that any Member of the House could stand to be chairman of the ISC, then I would completely oppose that.

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[Lord Hodgson of Astley Abbotts]

My Lords, I am extremely grateful to all noble Lords who have contributed to the debate. I think I am probably the only person who has not served on the ISC. I think all the other speakers have served on it, so I am probably slightly blind-sided on some of this. The noble Lord, Lord Reid of Cardowan, said that the problem is that it would exclude Members of the House of Lords. It may possibly do so, but not necessarily. Secondly, he said that it would prevent the chairmanship going to a member of the Opposition. Again, it may possibly do so, but not necessarily. Both he and the noble Lord, Lord Gilbert, talked about the political fallout. Yes, but this is a very important committee, and it will be even more significant when we pass the rest of the provisions of the Bill. If the price of that is a little political disturbance, I do not think that is necessarily a bad thing. I understand his fourth argument, which was about political campaigning. At this end of the Palace, the arrangements for electing chairmen of Select Committees have gone pretty well. They have been shared out and fought over, and both parties have ended up with some chairmanships, but not all of them.

The issues are answerable. I am not saying that they are not challenging. I say to the noble Lord, Lord Martin of Springburn—

[Lord Reid of Cardowan]

Just to set the record straight, I have never been a member of the Intelligence and Security Committee, although I have been at the end of some of its pertinent inquiries.

[Lord Hodgson of Astley Abbotts]

I am happy to withdraw that allegation, if allegation it is. As for what the noble Lord, Lord Martin of Springburn, said about heavy weather, I ask the House to consider that the committee will play an increasingly important role. The Justice and Security Bill, when it becomes an Act, takes us into new territory with closed material procedures in courts. The chairman of the ISC will have a very important determinant role in this. Having a chairman who is selected from a narrow body of people pre-selected by the Prime Minister and the leader of the Opposition is perhaps just a little too cosy. I leave that thought with the House, perhaps for reflection when the Bill continues its passage through the other place. In the mean time, I beg leave to withdraw the amendment.

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[Lord Foulkes of Cumnock]

My Lords, I have made a mental note never to tut tut silently in future, especially since that silent tut tutting can be observed by noble Baronesses even about 10 yards away. So I will be careful. The reason why I asked whether the noble Baroness, Lady Hamwee, had been able to attend the debates that we have had in the Moses Room is because, when I served, as I did for four years, on the Intelligence and Security Committee, I had the privilege of introducing and replying to those debates. We had great difficulty in encouraging people to attend and participate. If more Members of the House had attended and participated, it might have added to the information available in the debates that we have had at different stages.

A few years ago, when we had a Labour Government, before the Conservative Government came in, the Intelligence and Security Committee reported to the House on almost all, if not all, the issues that the noble Baroness, Lady Hamwee, has raised—on diversity and all the other points that she raised. We had indications and reports about it, and people raised it during the course of the debate. Even all those years ago, we discussed holding hearings in public; we discussed that in the debate in the Moses Room, along with the problems and opportunities that might be available if we held them in public. I hope that I am not giving any secrets away in saying this, but I was in favour of moving towards holding a meeting or two in public if we could do that. It is the right thing to do.

It would help and inform the debates that we have on legislation if Members came along to the annual debate. I presume that either the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler, will introduce the report and reply to the debate. Noble Lords would find it a very interesting and educational experience.

[Lord Reid of Cardowan]

My Lords, there are two issues covered in this group of amendments. The first is the process of appointment of the heads of the intelligence services and agencies and, secondly, the degree to which their proceedings are held in public. Amendment 9 refers to the possibility of the ISC—enshrined in the word “may”—considering,

“the proposed appointment of the following, including … the Head of the Security Service … the Head of the Secret Intelligence Service”,

and so on. I find that an attractive idea; I see no reason why it should impede, and many reasons why it might enhance, the appointment. It would be useful for the Prime Minister, before final ratification, to know the views of the ISC. It would be useful for Parliament to know that the proposed appointee had the endorsement, as it were, of the ISC, given that it will be elected on a wider franchise than Parliament and it contributes towards the ownership by Parliament itself.

The vagueness as to what happens with regard to the committee’s deliberations when such a discussion or questioning of the prospective appointee has taken place is an advantage and a serious disadvantage. I am not quite sure whether the proposal is permissive of communicating negative views on any appointment to the Prime Minister. Does it amount in effect to a de facto veto? It is delightfully vague on those issues.

There is another issue to consider. At the moment there is a relative independence of the heads of the security service and the ISC. If the ISC is being sought as an endorser of the appointment of a particular head of a particular service, in future it may feel more inclined to defend the action of the person that it has appointed. That is not a major concern; it would certainly not undermine the perceived benefits of such a system, which is used elsewhere in the democratic world to no apparent disadvantage—and to advantage with regard to the solidity of the appointment.

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[Lord Reid of Cardowan]

Unfortunately, the noble Lord has given me anything but reassurance. To argue partly on bureaucratic grounds, partly on the grounds of process and partly on the one substantive contention that there is no difference between a Permanent Secretary and the head of MI5, MI6 or GCHQ, is to me entirely unpersuasive. I have known, I think, 14 Permanent Secretaries in my relatively brief ministerial career, all of whom were excellent and very able Permanent Secretaries. They fulfilled a role, had a function and an importance in the life of this nation which was not the same as that of the heads of MI5, MI6 or GCHQ, on whom the very security of the nation depends. I hope that the Government will at least say that they will go away and reflect on this matter because, if there is a political will, all the apparent obstacles to procedure can be overcome. However, if the Government are saying that there are insurmountable bureaucratic obstacles to the ISC carrying out pre-appointment interviews, which are carried out in many countries of the world, I am afraid that they will be seen to be hiding behind process and lacking a real understanding of how substantial these positions are.

[Lord Taylor of Holbeach]

I thank the noble Lord for that intervention but, as I have explained, the reality is that these posts are special and important. They are exactly as a Permanent Secretary’s post is in terms of the continuity of Government over changes of Government. There is nothing bureaucratic about this. This is the way in which public servants are appointed. I hope that what I am describing is clarifying the Government’s argument—namely, that these posts, important though they are, are Civil Service posts occupied by servants of the Crown performing the duties of particular posts. Procedures are in place for making sure that those appointments are made on merit. They are not political appointments subject to political scrutiny. I hope noble Lords will accept that argument.

[Lord Taylor of Holbeach]

I note my noble friend’s guidance and assistance. However, I do not flinch from presenting the Government’s position in this respect. These are not conventional public appointments. They are Civil Service appointments which provide for political impartiality and, indeed, are outside the scope of Parliament. Once we start to argue for public scrutiny of an appointment, we argue for a political process. However, we have always sought to avoid such a political process in Civil Service appointments.

[Lord Reid of Cardowan]

I am very grateful to the Minister for giving way. He devoted almost all his argument against my noble friend Lord Campbell-Savours, to stressing the uniqueness of these particular positions and organisations and explaining why, because of that uniqueness, you could not involve a Select Committee, as was being suggested, and that his argument had many benefits. Now, in order to defend the status quo, he is stressing not the uniqueness of these posts but their similarity with other departments and departmental heads. However, this is not a matter of what we have done in the past but of what we might do in the future. If the Government had the will to see the benefits in the suggestions of the noble Lord, Lord King, and in what I have said, a way could be found in the future to allow the ISC, at least in a permissive sense, to interview appointees prior to final ratification. That would have enormous benefits for everyone involved in the process. The uniqueness of these positions has been recognised in a previous debate. However, that is now apparently being put aside and they are being compared with other appointments in the Civil Service.

[Lord Taylor of Holbeach]

I do not wish to prevent the noble Lord intervening but we are on Report. Therefore, I remind noble Lords—

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[Lord King of Bridgwater]

I understand what the noble Baroness is saying but if the information concerns the Foreign Secretary, who is responsible for SIS and GCHQ, or the Home Secretary, who is responsible for the Security Service, or, in certain circumstances, the Secretary of State for Defence, who is responsible for the DIS and so on, and if by chance that Secretary of State is not available to deal with an urgent matter on which a reply is requested, it would be much better that the Minister of State in that department deals with it and that we do not have the Secretary of State from Defra or from some other department shifted in merely because he is of equal seniority and that meets the requirement.

[Lord Reid of Cardowan]

Perhaps I may help. This is not a new problem—it happens with intercepts. The only people allowed to authorise an intercept are Secretaries of State and, if the Secretary of State is not available or is not in London, his officials will get it to him—and these are far more urgent than anything envisaged here. The point that is being made is that the refusal to supply information to the ISC is such an important decision, given the confidence we are placing in the ISC, that the level at which that decision should be taken is Secretary of State level or equivalent. The Government are envisaging extending not only to a Minister inside the Home Office when the Secretary of State is not available but to any Minister of the Crown, on any refusal, the power so to refuse. My noble friend is saying that this is such an important decision that it ought to be taken only at the level of Secretary of State or equivalent. That is an entirely reasonable suggestion and is looser than the intercept provision which applies to only four Secretaries of State.

[Baroness Smith of Basildon]

My Lords, as ever, my noble friend Lord Reid has summed up the point I was making. The Minister did not refer to an emergency situation but to departments that would not have a Secretary of State and therefore it would be downgraded. It is entirely appropriate to ask that a decision as serious as to withhold information from the ISC should be taken only at the highest levels in government, and that means the level of Secretary of State.