Justice and Security Bill [HL] Debate

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Department: Attorney General

Justice and Security Bill [HL]

Lord Taylor of Holbeach Excerpts
Monday 19th November 2012

(11 years, 6 months ago)

Lords Chamber
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Baroness Smith of Basildon Portrait Baroness Smith of Basildon
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My Lords, we have tabled Amendment 22, which replicates the one tabled in Committee by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Thomas of Gresford, and is very similar to one tabled by my noble friend Lord Campbell-Savours.

This amendment requires a memorandum of understanding that will further define the remit of the ISC and other elements of its functioning. We consider that this should be approved by Parliament. Throughout the debate we have been arguing for greater ties between the ISC and Parliament in order to underline its accountability to Parliament rather than the Executive. This is an important example of how we can assist in effecting such change.

If the ISC is ultimately accountable to Parliament, it seems right that Parliament should approve the MoU that governs the ISC’s relationship with the Government over and above that which is set out in the Bill. I am sure that we will replicate this debate next week in the Crime and Courts Bill about the framework document for the National Crime Agency. If something is outside the remit of what is in the legislation, it is very helpful to have sight of that and Parliament should have the opportunity to debate and approve it.

The Government have argued against the establishment of the ISC as a full Select Committee of Parliament. One of the arguments is that it is necessary to circumscribe in statute the rules under which the committee may operate. It seems justified and very reasonable that the MoU should be subject to greater scrutiny and formalisation by coming before the House and having formal parliamentary scrutiny and approval before it can be acted upon.

Lord Taylor of Holbeach Portrait The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
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My Lords, legislation is often a process of distillation and this evening the House has distilled itself down to this particularly rich mixture.

The Government intend to use the memorandum of understanding to make a substantial contribution to central government’s intelligence and security activities. It will be subject to ISC oversight. It is our intention that the activities should include certain activities within the Ministry of Defence, the Office for Security and Counter-Terrorism in the Home Office and the central government intelligence machinery in the Cabinet Office, including the Joint Intelligence Organisation. The scope of the memorandum, therefore, is wider than the three core agencies.

As my noble friend Lord Henley said in response to an amendment from the Opposition on this same subject in Committee, 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 which is not appropriate in primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may be engaged in other activities which would not properly fall within the remit of the ISC.

The House will know that things change over time—departments reorganise. Functions done in one department one year may be done in another the following year. The intelligence world is no different from any other part of government. A memorandum of understanding is flexible. It can be changed much more easily than primary legislation. It will enable the intention of the Government to be realised now and in the future.

The effect of the amendment spoken to by my noble friend Lady Hamwee would be that, instead of the ISC’s widened remit beyond the three agencies being defined precisely in a memorandum of understanding, it would be defined in primary legislation, which is not in the interests of a good definition of the ISC’s role and is less flexible as I have said.

The Government’s intention is that the memorandum of understanding will enable the ISC to oversee certain activities; for example, within the Ministry of Defence as I have described. A memorandum of understanding is the best place to make provision at this level of detail.

The effect of Amendment 22, as proposed by the noble Baroness, Lady Smith, would be that a memorandum of understanding agreed between the Prime Minister and the ISC for the purposes of Clause 2 would need to be approved by a resolution of each House of Parliament before it could take effect. The memorandum of understanding is an important document. It will define the activities of government in relation to intelligence or security matters, other than the activities of the agencies, which the ISC may oversee. It will also specify additional principles and provisions, other than the criteria specified in the Bill, with which the ISC’s consideration of operational matters must be consistent. It will also specify the arrangements by which the agencies and other government departments make information available to the ISC.

The Bill also provides that the memorandum of understanding may include other provisions about the ISC or its functions. It must be agreed between the Prime Minister and the ISC and can be altered or replaced at any time by agreement. It is therefore different from a parliamentary document.

While the ISC is dissolved on Dissolution of Parliament, the memorandum of understanding will continue in place during a succession of government until a new memorandum of understanding is agreed with the Prime Minister.

As is usual with a memorandum of understanding, there is no parliamentary approval procedure. While the memorandum of understanding will be an unclassified document which is 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 cannot therefore be made public. However, there is no restriction on the document laid before Parliament being debated in Parliament, and, indeed, one might expect on occasions for it to be so debated. Of course, the terms of the memorandum of understanding must be agreed with the ISC itself: a committee composed of parliamentarians that, as a result of the changes that we have been talking about, will be a committee of Parliament appointed by and accountable to Parliament. Requiring these parliamentarians to seek the approval of their parliamentary colleagues would be quite a restriction on the independence of that body.

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Lord Campbell-Savours Portrait Lord Campbell-Savours
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First, on this preliminary document, which will not be the final document, will there be anything more in front of the Commons when they consider this in Committee than what is provided to us before Third Reading? Secondly, why should not preliminary drafting work, which I presume is going on now, be made available to the House—or certainly to the Commons—at an earlier stage?

Lord Taylor of Holbeach Portrait Lord Taylor of Holbeach
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I think I can reassure the noble Lord that I am doing my best to make sure that this House is informed before Third Reading of the nature of the document and the context in which it is being presented. I hope that the same document would indeed be available to the House of Commons. Until the Bill is enacted, the document cannot of course be laid before the House other than in a framework format. I hope that I have reassured the noble Lord that he and his colleagues in another place will have the information on which to see how this aspect of the Bill—the memorandum of understanding—is designed to bring flexibility into the procedures of the ISC.

Indeed, we wish to ensure that the memorandum of understanding is not used to restrict in any way the ISC’s remit or its functions as set out in the Bill. As we explained in our memorandum to the Delegated Powers Committee—another memorandum—the purpose of this clause is to enable provisions to be included in the memorandum of understanding to ensure that the ISC’s oversight of operational matters does not: interfere with the statutory accountability of the intelligence services to their Ministers; overlap with the roles of other independent oversight bodies, such as the Intelligence Services Commissioner; or lessen the effectiveness of the intelligence services and other intelligence and security bodies, or place any undue resource burden upon them. We believe that a clear understanding between the Government and the ISC as to how the ISC can most effectively oversee operational matters without compromising these imperatives is best achieved in a flexible instrument agreed between them. These amendments would, I fear, seem to preclude that. On that basis, I hope that the noble Baroness will see fit to withdraw the amendment.

Baroness Hamwee Portrait Baroness Hamwee
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My Lords, I got the assurance that I wanted almost at the end there, in the response to the noble Lord, Lord Campbell-Savours. I was certainly not seeking to reduce the oversight of the parts of Her Majesty’s Government that relate to intelligence and security matters and which are beyond the three agencies. Quite the contrary; I want to make it clear that I do not think my amendments would have done that.

Having heard the Minister tell the House that it is intended to protect the scope of the work of the ISC and, like others, looking forward to seeing some form of document within the next few days because I think Third Reading is next week, I beg leave to withdraw the amendment.

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Baroness Smith of Basildon Portrait Baroness Smith of Basildon
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My Lords, since we are considering the last group of the evening, I confess to being envious of the noble Lord, Lord Butler. I have been in your Lordships’ House a relatively short time in comparison with him, but I have never had an amendment signed by both the Official Opposition and the Government. I congratulate him on that achievement.

There is not very much that I can say on this amendment that will not be said even better by others. However, I will say something regarding our Amendment 27. This is a revised version of an amendment which I tabled in Committee. This amendment would amend the grounds on which the Prime Minister may exclude matters from the annual reports. These are currently broadly defined in the Bill as that which the Prime Minister considers,

“would be prejudicial to the continued discharge of the functions of the Security Service”.

It goes on in that vein. We have argued that the primary reason for the Prime Minister to request the redaction of material contained within the annual report should be on the basis of national security, or that it risks a disclosure of sensitive information as defined in the Bill. Again, we have reservations that the reason given in Clause 3(4) is a bit of a catch-all provision which allows the Prime Minister to prohibit the publication of material perhaps considered too critical and which may damage the reputation of government agencies.

Of course, we acknowledge that there may be circumstances in which the Government will need to prevent the publication of material. That may not be only on the basis of national security or the sensitivity of information. It could also be where the information might threaten the UK’s economic interests. However, it would be better to make such additional criteria transparent and accountable, in order to prevent any misrepresentation of the role of the Intelligence and Security Committee. Amendment 27 allows the Prime Minister to prohibit publication on grounds in addition to national security and the sensitivity of information, along the lines defined in the Bill, but also requires that the scope of the information must be set out in the MoU with the Intelligence and Security Committee. It is a moderate and reasonable amendment and I hope that the Minister will give it his consideration.

Lord Taylor of Holbeach Portrait Lord Taylor of Holbeach
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My Lords, I am delighted that the noble Lord, Lord Butler of Brockwell, moved his amendment. It received support from around the House and I am pleased to say that the Government are in a position to accept it. In Committee, the noble Lord, Lord Butler, and my noble friend Lord Lothian made the important point that the committee should be independent. I agree wholeheartedly. It will submit its report, not a draft of its report, to the Prime Minister, who may insist on redactions to the document but may not insist on any other changes. Again, I agree with this, so we are happy to accept the amendment.

Amendment 27 would have the effect of changing the grounds on which the Prime Minister might exclude any matter from a report to Parliament. It would add to the grounds for exclusion already described so that material might be excluded if it were of such a nature that it would be prejudicial to the continued discharge of the functions of the security service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities that fall within Section 2(2); if it were sensitive information as defined in paragraph 4 of Schedule 1; or if it were information that, in the interests of national security, should not be disclosed. For convenience, I will refer to the three possible grounds for excluding material as the prejudice to functions ground, the sensitive information ground and the national security ground. The amendment would also require that matters considered to fall under the prejudice to functions ground—currently the only ground for excluding information from the Bill—should be set out in a memorandum of understanding.

The ISC must be able to report candidly to the Prime Minister on sensitive matters. Inevitably, it will not always be possible to publish the full content of its reports because of the nature of the material contained in them. I do not think that there is any dissent in the House from that position. It follows that there must be an ability to redact information before ISC reports are published or laid before Parliament. In Committee, and amendment was tabled by the noble Baroness, Lady Smith—to which she referred—which would have made the criteria for excluding material from the published report just the grounds of sensitive information and national security. The noble Lord, Lord Rosser, who is not in this place, explained that it was a probing amendment to try to find out why it was necessary to use the definition that was in the Bill rather than that in the amendment, which presented grounds similar to those in Schedule 1 for withholding information from the ISC. In the case of withholding material from the ISC, both grounds had to be fulfilled, whereas for these purposes material could be excluded from a report if either ground were fulfilled.

The sensitivity of information and national security grounds add nothing in substance. Material that falls within those grounds will necessarily also fall within the prejudice to functions grounds—unless in the case of sensitive information that is so historical or so widely known publicly that it is no longer sensitive, in which case there would be no real justification for excluding it from an ISC report to Parliament anyway.