Justice and Security Bill [HL]

Lord Rosser Excerpts

Monday 9th July 2012 Lords Chamber

Moved by

[Lord Rosser]

29: Clause 2, page 2, line 8, leave out from “oversee” to end of line 10 and insert “any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”

[Lord Rosser]

My Lords, Clause 2(2) states:

“The ISC may examine or otherwise oversee such other activities of Her Majesty's Government in relation to intelligence or security matters as are set out in a memorandum of understanding”.

This follows Clause 2(1) which states that:

“The ISC may examine or otherwise oversee the expenditure, administration, policy and operations of —

(a) the Security Service,

(b) the Secret Intelligence Service, and

(c) the Government Communications Headquarters”.

The issue arises as to what are these,

“other activities of Her Majesty's Government in relation to intelligence or security matters”,

that are so vague that they cannot be set out in the Bill, or what are such unknown other activities of Her Majesty’s Government that not even Her Majesty’s Government know what they are. Rather than declare them now, the Government want to tuck them away in a memorandum of understanding that must be agreed with the Prime Minister and not be subject to prior discussion as part of this Bill or subsequently approved by Parliament. This idea of not providing important details when a Bill is published, or within a Bill itself, is becoming a feature of Home Office legislation. We have seen the same thing with the framework document which is still awaited under the Crime and Courts Bill. It is a most unsatisfactory and lazy approach on the part of the Home Office.

The amendment seeks to define what those other activities are in subsection (2) which, under this amendment, would read:

“The Intelligence and Security Committee may examine or otherwise oversee any part of a government department, or any part of Her Majesty's forces, which is engaged in intelligence or security activities”.

That is in line with the wording in paragraph 4 of Schedule 1 to the Bill, which defines sensitive information as,

“information which might lead to the identification of, or provide details of, sources of information, other assistance or operational methods available to—

(i) the Security Service,

(ii) the Secret Intelligence Service,

(iii) the Government Communications Headquarters, or

(iv) any part of a government department, or any part of Her Majesty's forces, which are engaged in intelligence or security activities”.

The wording in the amendment makes Clause 2(2) less vague and more specific. If the Minister does not like the amendment, perhaps he could set out what,

“other activities of Her Majesty’s Government in relation to intelligence or security matters”,

are not covered by the amendment and by Clause 2(1). Perhaps he could also say why the Government prefer to spell out some areas of examination or oversight by the ISC in a subsequent memorandum of understanding, rather than spell them out in the Bill. I beg to move.

--- Later in debate ---

[Lord Henley]

My Lords, this is the first of a number of amendments that deal with a memorandum of understanding. I start by apologising to the noble Lord, Lord Rosser, who makes attacks on the Home Office for being somewhat remiss in the slowness with which it produces things, particularly in relation to the framework document. As the noble Lord is aware, I have promised that we will have a draft or an outline of that framework document before we get to Report stage of the Crime and Courts Bill. Since that is unlikely to take place in this House before the end of October, we have a certain amount of time.

On the memorandum of understanding, as set out in the Bill, I am grateful for the support of my noble friend Lord King on this. It is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the memorandum of understanding can make provision at a level of detail that is not appropriate for primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may well be engaged in other activities besides, which would not properly fall within the remit of the ISC.

Clearly, things change over time. Departments reorganise. The functions done by one department one year may be done by another the following year. The noble Lord will remember when his party was in Government, how frequently they changed the names and the functions of departments. I have completely lost track of the number of changes there were to departments. One of the things we did very firmly when we came back into office was not to change the names or functions of departments, except in the most marginal capacity.

I believe the intelligence world is no different to any other part of government. For example, as with the recent Levene report, we could find that future reorganisations of defence may change organisational boundaries that affect the MoD’s intelligence activities. A memorandum of understanding is a flexible document. It can be changed much more easily than primary legislation. It will enable the intention of the Government that the ISC should have oversight of substantively all of central government’s intelligence and security activities to be realised now and, more importantly, in the future should they change. The amendment seeks to limit that. For that reason I cannot offer any support to the amendment. I hope the noble Lord will feel able to withdraw it.

[Lord Rosser]

I thank the Minister for the reply. Of course, my amendment does not refer to any government department by name because it lifts the wording from paragraph 4 of Schedule 1, which refers to,

“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.

From what the noble Lord has said, I am still not quite sure how extensive the areas will be that might be included in the memorandum of understanding that would not be included in the definition that I have given in this amendment, when that is also allied to Clause 2(1). So I am not sure I have had a very direct answer to that question.

Nor has the Minister addressed the fact that putting it in a memorandum of understanding means that it will not be subject to prior discussion as part of this Bill. It is a document that the ISC has to agree with the Prime Minister and, as I understand it, it will not have to be approved subsequently by Parliament. The more reliance that is put on that memorandum of understanding and the more information that is put in it, the less opportunity this House has to discuss the issue.

I would have thought that since the wording I used has been lifted from another part of his own Bill, the Minister might at least have accepted that that was worth considering because it would, at the very least, reduce the amount that had to be covered in the memorandum of understanding, and thus reduce the amount that could not be debated as part of this Bill and which would not require the approval of Parliament. There has been no offer from the Minister even to look at this issue from that aspect. It is just a straight dismissal of the terms of this amendment. I express my disappointment at the Minister’s reply—he could have been much more sympathetic and helpful—but I note his reply and beg leave to withdraw the amendment.

Amendment 29 withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, the Minister should not blame the post; it came to me by e-mail this morning. The post may follow in about three days. I want to put on the record what the note told me and other noble Lords who have seen it about the memorandum of understanding. It states:

“The MoU needs to be agreed between the ISC and the Prime Minister”.

We know that. It continues:

“We are starting this process of drafting and agreeing this document, and will do so in parallel”—

I stress those words—

“with the Bill’s passage ... Once we have an agreed draft … it is our intention that it is published, to help inform debate”.

The thrust of my amendment is that it should be subject to debate. The Ministers who sent the letter then told us:

“The matters covered … may include … The factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing and/or of significant national interest … A description of the arrangements by which the ISC will request, be provided with and hold information, including the circumstances in which the ISC will be able to access primary source materials … A description of the role of investigative staff in the ISC’s work; and … A description of the process for producing an ISC report”.

As the noble Lord said, the memorandum of understanding will be a public document, so it cannot be so sensitive that that is a reason for it not to be debated. I say to the Committee that today’s debates have shown how much Parliament—and this House in particular—has to contribute to consideration of the criteria that will be applied. We are told in Clause 2(4)(a) that the memorandum of understanding,

“may include other provision … which is not of the kind envisaged in subsection (2) or (3)”.

That is very wide. I realise that “envisaged” is another term that I have not come across in legislation before. I do not know whether it means more than “not within”, “not as described” or “not subject to” subsections (2) and (3). I am beginning to feel like an awful old fogey in raising these points but legislation should be completely clear. I believe that the criteria should be matters for debate and not simply for the draft, although we look forward to it as it will inform debate. Reading this note, it seems to me that the approach is more top-down than I should like to have seen.

[Lord Rosser]

My Lords, perhaps I may make one brief comment. I have already expressed our views about the memorandum of understanding and I think that in return I was told by the noble Lord, Lord King of Bridgwater, that I was being savage.

I just wish to pursue the point that the noble Baroness, Lady Hamwee, made about other references in Clause 2 to the kind of content that will be included in the memorandum of understanding, which we will not get an opportunity to debate and which does not have to be approved by Parliament. Clause 2(3) says:

“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest, and … the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

One has to bear in mind that this is not a document that we will be able to debate and discuss and it will not need to be approved by Parliament unless the Minister is going to move on this amendment. What are these principles that will be set out in the memorandum of understanding which we are not going to be told about when discussing the Bill and which we are not going to be allowed to discuss?

[Lord Henley]

My Lords, first, I apologise to the noble Baroness, Lady Hamwee—who is great on drafting. She has picked out another word—envisaged—which she has not come across in legislation before. We will add that to “ongoing”. I suspect that, like her, I am probably an old fogey on these matters. These matters are new to drafting but develop in the way that they do. We will consult the draftsman on whether he is happy with “envisaged” or whether some other word could do it.

It would probably be helpful if I first explain the purpose of the memorandum. We believe that it will be an important document in the relationship between the ISC and the Government. It will define the precise extent of the ISC’s oversight of parts of the intelligence community other than the agencies. It will set principles or other criteria that must be met before the ISC can consider particular operational matters. It will describe the arrangements by which the agencies and other intelligence bodies will supply information to the ISC. We expect that it will also cover matters such as: the factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing, current—or whatever word we particularly wish to use—and/or of significant national interest; a description of the arrangements by which the ISC will request and hold information, including the circumstances in which the ISC will be able to access primary source materials; a description of the role of investigative staff in the ISC’s work; and a description of the process for producing an ISC report. That is what we intend that it should cover. There will no doubt be other matters that will also need to be covered.

The memorandum of understanding in the Bill must be agreed between the Prime Minister and the ISC and it can be altered or replaced at any time by agreement. It is intended that the first memorandum of understanding will be agreed immediately on the coming into force of the relevant provisions. As I said, however, we hope that we can give some idea of what it is going to look like by the time we reach Report.

As is usual for a memorandum of understanding—this is not an unusual procedure—there is no parliamentary approval procedure. This was looked at by the Delegated Powers and Regulatory Reform Committee and it was perfectly happy with this. While the memorandum of understanding itself will be an unclassified document which will be published and laid before Parliament, its precise terms are very likely to be shaped by matters which are sensitive in terms of national security and which therefore cannot be made public. In these circumstances, it is particularly appropriate that the memorandum of understanding can be concluded without the need for parliamentary approval.

Of course the terms of the memorandum of understanding must be agreed with the ISC. The Bill makes that clear—it is agreed between the Government and the ISC. The ISC, we must always remind ourselves, is a committee composed of parliamentarians—nine from both Houses. It could be eight members from this House and one from another, but it might be some other arrangement, as it is at the moment—seven from another place and two from this House. As a result of the changes that the Bill will bring about the committee will be appointed by and accountable to Parliament. In some ways, requiring these parliamentarians to seek the approval of the rest of Parliament is a restriction on the independence of the body. I think that it would be unusual for Parliament to have such control over the detailed way in which what amounts to a Select Committee—as the noble Lord, Lord Campbell-Savours, is looking for—has decided to conduct its business.

We have not yet published the memorandum for the simple reason that the memorandum of understanding does not exist. We are starting the process of agreeing this document with the ISC and will do so in parallel with the Bill’s passage through Parliament.