Justice and Security Bill [HL]

Lord Rosser Excerpts

Monday 9th July 2012 Lords Chamber

[Lord King of Bridgwater]

I am grateful to the noble Lord. He has cheered up the noble Lord, Lord Lamont, quite considerably if that is right because he was telling me of the committee session he must attend in the Recess. I simply say that I support this. I do not know quite what the first part of the amendment means or whether the Minister will explain it. I am not clear what the financial benefits are for Members of the House of Commons when they are on Select Committees. We asked for equivalent arrangements for the ISC. Perhaps somebody will clarify that point.

[Lord Rosser]

My Lords, the names of my noble friends Lady Smith of Basildon and Lord Beecham are associated with Amendment 9 and we support the proposal that the chair of the Intelligence and Security Committee should be remunerated in line with chairs of departmental Select Committees of the House of Commons. As has already been said clearly, the commitment required by future occupants of this post is likely to be extensive, bearing in mind that the whole purpose of the Bill is to strengthen oversight of the intelligence and security activities of the Government by extending the statutory remit of the Intelligence and Security Committee. The committee, as we know, will be drawn from Members of the House of Commons and your Lordships’ House. It would seem appropriate to determine remuneration as part of the Bill, and to relate it to a not dissimilar position in one of the Houses of Parliament from which the membership of the committee is to be drawn.

A departmental Select Committee in the House of Commons has a different but not widely dissimilar role to that of the Intelligence and Security Committee under the Bill. The chair of a departmental Select Committee in the House of Commons also takes on a considerable additional level of commitment and responsibility. There are a number of such posts and they are not held by Ministers of the Crown. The officeholders, like the Select Committees themselves, are drawn from Back-Benchers, as would be the case with the Intelligence and Security Committee and the chair of that committee. It would therefore seem that the chair of a departmental Select Committee in the House of Commons is the appropriate benchmark, as provided for in Amendment 9, which we support.

[Lord Henley]

My Lords, we can deal with these amendments fairly briefly. The noble Lord, Lord Butler, described them as a simple point of equity. On that basis, I hope the debate has been—or will be—listened to in due course by IPSA in the case of the Commons and, in the case of Members of this House, the House Committee, because in the end decisions have to be made by those appropriate committees. It is not really a matter for legislation.

To underline that, I remind the Committee that Commons Members’ pay is entirely a matter for IPSA and it makes decisions in accordance with resolutions of the House. The relevant resolutions make no provision for additional financial support for ordinary members of Select Committees so it would be a matter only for the chairmen of committees. I will get to the question about the chairman of this committee later. IPSA may determine that MPs who hold a position or office specified in a resolution of the House of Commons should receive a higher salary than ordinary Members. IPSA will have no say as to which positions are on the list—that is obviously a matter for Parliament; once it has decided on that list, it will be for IPSA to set the rate. Again, it is for IPSA to listen to this debate.

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That is why Amendment 7 is good in principle but cannot be in the Bill. However, Amendment 8, moved by the noble Lord, Lord Campbell-Savours, is right. It is right the Prime Minister should operate that, and the evidence in 1997 suggests that it is the right way to proceed.

[Lord Rosser]

My Lords, I wish to talk about Amendments 5 and 7 in particular. Amendment 5, as the noble Lord, Lord Butler of Brockwell, said, lays down what happens if a person nominated for membership of the Intelligence and Security Committee is not then appointed by the House of Parliament from which they are drawn. The amendment lays down that in this situation,

“the Prime Minister shall nominate an alternative person”.

The Explanatory Notes to the Bill say that the purpose of the procedure in the Bill for nominating and appointing members of the committee,

“is to ensure that the Government retains some control over those eligible to access”,

highly sensitive information.

Many might feel that the use of the words “some control” in the Explanatory Notes rather understates the position from the government perspective. This amendment does at least make it clear that the relevant House of Parliament is not obliged to accept the Prime Minister’s nominee and that the Prime Minister cannot simply keep resubmitting the same name, or do nothing, but has to nominate an alternative person.

Amendment 7, to which the noble Lord, Lord King of Bridgwater, has already referred, is, certainly at this stage, rather more a probing amendment in the light of the enhanced role that the committee will have and the need for it to be seen as clearly separate from the Executive. It provides, as has already been said, for the chair of the Intelligence and Security Committee to be not only a member of the ISC, chosen by its members, but a member of the ISC from the opposition party. The Public Accounts Committee, for example, is chaired by a senior opposition MP.

It must surely be important that the Intelligence and Security Committee, bearing in mind its strength and oversight of the Government’s intelligence and security activities, and its role in this sensitive and potentially controversial area, is an all-party committee that is not only not open to pressure from government or the intelligence and security agencies in the work it undertakes but perceived as being not open to such pressure.

The Prime Minister has, under the terms of this Bill, considerable influence over the appointments to the committee. He or she is required to consult, not reach agreement with, the leader of the Opposition on nominations, and the two Houses of Parliament can only decline to accept a nomination and cannot appoint someone of their own choosing. Neither does the Intelligence and Security Committee have unchallenged powers to require information from the intelligence and security agencies, even though the members of the committee will all have been nominated through the Prime Minister, as the Secretary of State can veto the giving of information to the committee.

If the chair of the committee were to be not only a nominee of the Prime Minister but from the same party as the Prime Minister and from the same party as the Secretary of State, who could veto the use by the committee in carrying out its statutory oversight remit of the use of its power to require information from the intelligence and security agencies, that might well lead to a perception, no doubt unfairly, that the leadership of the committee and its most influential member was a little too close to the Government of the day, particularly bearing in mind that the objective of the Bill, as explained in paragraph 3 of the Explanatory Notes is to provide,

“for strengthened oversight of the intelligence and security activities of the Government”.

[Lord Henley]

My Lords, we have four amendments in front of us, all slightly different but all covering appointments to the committee. I will deal with them in turn. Amendment 5 seeks to ensure that if someone is turned down by Parliament the Prime Minister will have to make another nomination. This is something with which the Government entirely agree. However, the amendment is not necessary as it will be achieved by the current drafting of the Bill. If, under the appointments process in the Bill, the Prime Minister’s nominees are rejected by either House, the Prime Minister will have to make another nomination or nominations after consultation with the Leader of the Opposition. This is clear from the fact that the Bill requires the ISC to consist of nine members so if one is turned down another would have to be found. I hope that deals with the point made by my noble friend Lord Lothian, who asked what would happen in such cases. Where we differ is that the amendment in the name of the noble Lord, Lord Butler of Brockwell, insists that an alternative person should have to be nominated and we would like to keep the flexibility because there are occasions where it is possible for the Prime Minister to be able to renominate. It might be that one reached some sort of impasse in due course but it should be possible on occasions to renominate and that renomination might be rejected. Whatever happens, as the Bill is drafted, a ninth person would have to be put forward.

Turning to Amendment 6 from the noble Lord, Lord Campbell-Savours, he suggests that it should no longer be necessary to consult the Prime Minister. He said that he would never have been appointed if it had been left purely to my noble friend Lady Thatcher if she had been in opposition. Obviously, if we accepted the amendment proposed by the noble Lord, Lord Campbell-Savours, and removed the necessity to consult the Leader of the Opposition, there would be even less likelihood that he would be appointed, because my noble friend—or Mrs Thatcher, as she then was—would have made the decision entirely by herself, without consulting the Leader of the Opposition. We believe that it will be important in retaining cross-party support, just as it was when the original 1994 Act went through, requiring that the committee should be appointed by the Prime Minister after consultation with the Leader of the Opposition. For that reason, the Prime Minister should continue to consult the Leader of the Opposition before he nominates any such person.

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[Lord King of Bridgwater]

I am getting very flattered by the noble Lord, Lord Campbell-Savours. I think that there is a real problem in this area and I do not quite understand the amendments tabled here. I certainly do not understand this business in the Bill about what would be before a departmental Select Committee,

“on grounds that were not limited to national security”.

That is the point that the noble Lord, Lord Thomas of Gresford, made and I hope that the Minister will clarify that point to an extent.

I think that there is a point, though it may seem a bit extreme, in what the noble Lord, Lord Campbell-Savours, said. It may strike fear through all proper government structures that the suggestion should be left to the chairman of the committee. I think it is true that it is not just the chairman of the committee: initially, it is the heads of the agencies: they are the people who decide whether they wish to withhold information, then they have to make their case to the chairman.

This takes us into quite interesting country, because one of the arguments used in the past is, to whom are the heads of the agencies responsible? The answer is that they are responsible to the Prime Minister. That raises the question: how does a busy Prime Minister with a thousand problems on his plate really take direct ministerial involvement? One interesting study we did looked at the proposal—one or two members of the committee got quite interested in it—that there should be an intermediate Minister appointed who would have overall responsibility for the agencies at Minister of State level, answering to the Prime Minister. We thought that this was quite a good idea until we discovered that that was exactly what had happened in Germany. I do not remember the name of the Minister, but he became an intermediate and became carried away with his role in intelligence matters—he became a sort of super-M. At one stage he was flying to Iran and other places by private jet trying to negotiate the release of certain German hostages and other people. It had gone completely to his head and people suddenly realised that nobody had much control. One or two senior members of Her Majesty’s Civil Service pointed out the dangers of this role to the Prime Minister—one or two of them may be sitting here—saying that there were occasions when a previous Prime Minister thought that the intelligence agencies were out of control and trying to undermine him. Was it a good idea to pass this off to a junior Minister? The Prime Minister had better keep overall responsibility for it.

Having said all that, I think that there is an argument, for Ministers who are not—if it is the Prime Minister—entirely dependent on official advice on this, that a properly constituted, effective chairman will bear a heavy responsibility if he overrides the head of an agency and says that this information should be made public and then finds that it subsequently proves to be extremely damaging to national security. That would be enormously damaging not just to him or her personally, but, obviously, to the whole role of the ISC. On those grounds, it would not be an irresponsible chairman in this role; it would be somebody who, because of the involvement he has had already, over a period, with the heads of the agencies, could probably be expected to take a more informed and responsible response to representations made by the heads of the agencies.

[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.