Justice and Security Bill [HL]

Lord Taylor of Holbeach Excerpts

Tuesday 26th March 2013 Lords Chamber

1: Clause 1, page 1, line 5, after “Committee” insert “of Parliament”

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I beg to move that your Lordships do agree with the Commons in their Amendment 1. I shall speak also to Commons Amendments 2 and 3, 26 to 43 inclusive, and 45.

Part 1 of the Bill makes significant changes to the system for independent oversight of the intelligence agencies and the wider intelligence community. It extends the Intelligence and Security Committee’s statutory remit, granting it additional investigative powers. It changes the ISC’s status to a committee of Parliament created by statute. The ISC in future will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The Bill also extends the remit of the Intelligence Services Commissioner.

When the Bill was last in this House, we had a series of detailed and well informed debates. At Report I made a commitment that we would bring forward amendments in the Commons concerning the status of the ISC. We have done that. We have also moved a number of other amendments in the Commons that address concerns that were originally raised in this House.

I turn first to Commons Amendments 1, 41, 43 and 45. These concern the status of the ISC. During the debates in Committee and at Report, there was some very well informed debate about the future status of the ISC. The noble Lord, Lord Campbell-Savours, who I regret is not in his place today, made the case for the ISC becoming a Select Committee. The noble Lord, Lord Butler, and my noble friend Lord Lothian, current members of the ISC, argued for changing the name of the ISC to the Intelligence and Security Committee of Parliament to make clear the parliamentary character of the ISC. Following that debate, I announced the Government’s intention to make clear the parliamentary character of the ISC and to make a number of necessary consequential amendments. The amendments that the Government moved in the Commons would deliver on the Government’s intention.

Amendment 1 would adopt the amendment first tabled by the noble Lord, Lord Butler, and my noble friend Lord Lothian, and would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. Amendments 41 and 43 would make the equivalent changes in Schedules 2 and 3. These amendments would more fully realise the Government’s intention that the ISC should be a committee of Parliament, created by statute.

Commons Amendments 40 and 42 are closely related to the “of Parliament” amendments that I have just discussed. The Data Protection Act 1998 applies to Parliament but with special rules to determine who the data controller is. The data controller is the person within any organisation on whom most of the obligations under the DPA fall. Section 63A of the DPA states:

“Where the purposes for which and the manner in which any personal data are … processed are determined by or on behalf of”,

either House,

“the data controller … shall be the Corporate Officer”,

of the relevant House. It is not appropriate that the corporate officer should be the data controller for data processed by the ISC, but this is the likely effect of Section 63A once the ISC is a committee of Parliament. For that reason, Amendment 40 would add a provision to disapply Section 63A of the DPA so far as the ISC is concerned so that, notwithstanding that the new ISC will be a committee of Parliament, its data controller can continue to be its clerk.

In addition, both the House of Commons and the House of Lords are subject to the Freedom of Information Act 2000—the FOIA. As a committee of Parliament, it is arguable that the ISC, too, would be subject to the FOIA, as other Joint Committees are. To avoid this consequence, Amendment 42 would add a provision to the Bill which would amend references to the House of Commons and House of Lords in Schedule 1 to the FOIA to make it clear that they are not subject to the Act as regards information held by the ISC. This amendment would preserve the status quo, in that the FOIA does not apply to information held by the ISC now and it would not do so in future.

In addition, Amendment 42 would add the ISC to the list of bodies in Section 23 of the FOIA. The result of this would be that ISC information—information which has been supplied to or by the ISC, whether directly or indirectly, or which relates to it—in the hands of another public authority subject to the FOIA would be exempt information for FOIA purposes.

We now turn to Commons Amendment 39, which would provide statutory protections for evidence given by witnesses to the ISC. First, such evidence may not be used in any civil or disciplinary proceedings. Secondly, evidence given by a person who is a witness before the ISC may not be used against that person in any criminal proceedings. These provisions would replicate an important part of the protection that witnesses before a Select Committee have by virtue of parliamentary privilege. They would provide encouragement to witnesses appearing before the ISC to be full and frank in their evidence. The protection against the use of evidence in criminal proceedings would be narrower than the equivalent protection for civil and disciplinary proceedings. They would not impinge on an individual’s right to defend him or herself in criminal proceedings. Of course, evidence that is deliberately misleading is of no assistance to the ISC. Accordingly, the protections would not apply to evidence given by a witness to the ISC in bad faith.

On Commons Amendment 26, I said at Report that one possible consequence of the “of Parliament” change is that the ISC would have the power to take evidence on oath. Following further analysis, we concluded that the consequence of changing the status of the ISC to become a statutory committee of Parliament was that the ISC may, in future, take evidence on oath. Our view was that existing statutory powers applicable to Commons and Lords committees would give the ISC the authority to administer oaths. This view shaped amendments which the Government tabled, and which were agreed to, in Committee in the Commons. However, the House service raised a concern with the Government about this, disagreeing with our analysis that the “of Parliament” change gives the ISC the authority to take evidence on oath. Its view is that the Bill should contain an express power for the ISC to take evidence on oath. In response to that concern, the Government tabled an amendment in the Commons to put the ISC’s power to take evidence on oath beyond doubt. It is not necessary that the Bill specify who has the power to administer oaths on behalf of the ISC; that can be left for the ISC to determine, under its general power to determine its own procedure.

Commons Amendments 2, 3, 28, 29, 30 and 31 concern the ISC’s ability to oversee operational matters. The Bill extends the ISC’s statutory remit, and makes clear its ability to oversee operational matters. This is a crucial part of the Bill’s aim of strengthening oversight. The amendments would both extend and clarify the ISC remit to oversee operational matters; they respond to concerns of the ISC that were raised by the noble Lord, Lord Butler, during debates in this House. The noble Lord’s first concern was that there may be exceptional circumstances in which the Government might want the ISC to consider particular operational matters falling outside the existing criteria. His second concern was that the requirement that both the ISC and the Prime Minister be satisfied that the criteria for operational oversight were met might slow down the provision of information to the ISC on routine operational matters.

In response to these concerns, the amendments made in the Commons would mean that the Bill would provide for three routes by which the ISC may consider particular operational matters. The first route is the one that was already in the Bill—when the Prime Minister and the ISC are agreed that the matter is of significant national interest and is not part of any ongoing intelligence and security operation. The second route is when the Government request the ISC to consider a matter notwithstanding that either or both of those criteria are not met. This meets the first concern raised by the noble Lord, Lord Butler. The third route is where the ISC’s consideration of a matter is limited to considering information provided to the ISC voluntarily by the agencies or another government department. This meets the second concern raised by the noble Lord.

For the first and second routes only, the ISC and the Prime Minister would need, additionally, to be satisfied that the consideration of a particular operational matter is consistent with the memorandum of understanding agreed between them. The ISC’s powers to require the agencies or other government departments to provide it with information would be available in the first two cases, but not for the third—on the consideration of information volunteered to the ISC. This would be the effect of Amendment 3 and consequential Amendments 28 to 31.

Amendment 27 addresses the future resourcing of the ISC. In Committee in the Commons, the Minister for Security made clear that it remained the Government’s intention that we should make the ISC more parliamentary and move it away from Government. Officials from government, the House service and the ISC secretariat have discussed what we think will be an acceptable solution agreeable to all parties. This is that the ISC secretariat should become a separate body, grant-aided by the House. This would be similar, for example, to the Commonwealth Parliamentary Association UK. The National Security Adviser has written to the Clerk of the Parliaments and to the Clerk of the House of Commons setting out formally that this is the Government’s intention. My understanding is that the House of Commons Commission and the House of Lords House Committee are willing in principle to take on responsibility for grant-aiding the ISC. This solution meets the Government’s policy intention that responsibility for the ISC secretariat should be moved away from Government. As the ISC itself becomes a committee of Parliament so, subject to what I will say shortly, responsibility for the funding and resourcing of the ISC secretariat would pass from Government to Parliament.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I thank the Minister for his very detailed explanation of the amendments before us. In fact, he was able to talk about not just the amendments but some of the discussions that we had in Committee and on Report and about some of the background. I thought that at one point he might be challenging the noble Lord, Lord McNally, regarding his marathon speech during ping-pong of the Crime and Courts Bill, but fortunately he was not able to reach those dizzy heights.

I shall be fairly brief as I think that the Minister has covered many of the points and I suspect that your Lordships are more interested in some of the issues that we will be debating where there is not so much agreement as there is on these amendments. We welcome many of the amendments in this group. I am grateful to the Minister because the Government have obviously listened to many of the arguments made in Committee and on Report in your Lordships’ House and have brought forward amendments to recognise that.

As he will understand, I particularly welcome Amendments 32 to 37, which are identical to those that the Opposition introduced to place a power of veto on disclosure of information to the committee at the level of Secretary of State rather than Minister of State. I well remember the lengthy debates that we had in your Lordships’ House and I am glad that we were able to convince the Government that that was the right course of action. We are grateful.

I will raise one other issue in relation to the other amendments on which I should like the Minister to give me an assurance. In Committee and on Report, our position was that it was desirable for the committee to have full parliamentary privilege. At that time, we supported the view taken by my noble friend Lord Campbell-Savours that the only way to achieve that would be by establishing the ISC as a full Select Committee of Parliament, obviously with the additional safeguards necessary for a committee of that kind. That did not find favour with your Lordships’ House or with the Government. The view taken was that that was not the way to proceed as it was thought to be too difficult. Therefore, we welcome the steps that the Government have taken since that debate to provide greater protections in statute for the ISC along the lines of parliamentary privilege.

The Minister was very helpful in explaining Amendment 39, which grants witnesses, in relation to any evidence they give to the committee, statutory immunity from civil disciplinary proceedings and from criminal proceedings under certain circumstances where the disclosure has been made in good faith. That is hugely significant and we are grateful for that move forward. I am sure that the noble Lord remembers, as I do, the lengthy discussions that we had on this issue when the Bill was last before the House. However, is he able to provide greater clarity on the extent to which protection exists for other individuals involved in the proceedings of the ISC? If he does not have the answers today, I shall be happy for him to write to me. My understanding is that Members of Parliament are currently not protected by parliamentary privilege in relation to their work on the committee, and nor are the staff working on it in relation to the evidence held by the committee. Clearly, that is very important, as most of the evidence that the committee receives is likely to be covered by the Official Secrets Act as well as the Civil Service Code.

Can the Minister provide clarity on three further points? First, do the protections provided by Amendment 39 apply to witnesses who provide written evidence—for example, whistleblowers who provide evidence anonymously or in writing? Secondly, what protections are provided for the staff of the committee and the Members of Parliament serving on the committee? For example, if the ISC were passed anonymous information covered by the Official Secrets Act, would the ISC then be able to act on that information to investigate it or would the handling of the information cause its members and staff to be in breach of the Act? Finally, does the fact that these are statutory protections and not privilege mean that it would be possible for the Government or an employer to obtain an injunction preventing a witness appearing before the committee?

I do not raise those issues in any way as criticism. I repeat that we welcome the steps that the Government have taken towards the committee having greater parity with the powers and privileges of a full Select Committee. It would be helpful if the noble Lord could answer those points, although we broadly support the amendments and are grateful to him and to the Government for taking on board comments made by your Lordships and the Official Opposition in Committee and on Report.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Lord, Lord Butler, and the noble Baroness, Lady Smith of Basildon, for their broad welcome for the amendments. This House has played a sizeable role in the process leading to the amendments. I do apologise. I was not deliberately seeking to delay the proceedings of the House but I felt it was important that I reported back as I see this as a significant change and one in which this House has played a key role.

The noble Lord, Lord Butler, asked about operational circumstances. I can provide the reassurance that there is no intention to restrict the ISC’s receipt of information on operational matters. The amendment makes it clear that information can be provided at the ISC’s request as well as by agencies or departments on their own initiative. I hope that reassures the noble Lord. He also referred to resources and asked for comfort. I am not sure that any Minister can give comfort on resources at the present time but perhaps I can say that the Government acknowledge that the ISC will require an increase in resources to reflect its expanded oversight role. However, as he rightly pointed out, negotiations are current. I would not want to comment further on those but I hope the noble Lord finds that that is of some comfort. It is certainly a recognition by the Government of the new role for the ISC.

The noble Lord also asked about restrictions on the ISC publishing material. It is not the intention to restrict the ISC from publishing non-sensitive and non-classified information in press releases or open letters. As I said, any information that could be in an ISC report can be published by it on an informal basis as well. I hope that gives a clear indication that things are not being made more restrictive.

I have a note here that might address the issues raised by the noble Baroness, Lady Smith—if I can read the detail. On the due protection supplied to witnesses providing written evidence, the answer is yes. On questions two and three about the handling of leaked information or an injunction preventing a witness appearing, it says here that I will write on those matters. I have to say that I hope I can write slightly more clearly than this note, which is meant to provide me with information. It does say that I will write. Given the nature of the questions, I think the noble Baroness will understand that it is important that I do not mislead the House by trying to ad hoc or wing it. I will happily write to her and place a copy of the letter in the Library. I beg to move.

Motion agreed.