Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Monday 9th July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, perhaps I may follow and develop the argument made by my noble friend Lady Hamwee in her final remarks and deal with some of the important features of the Bill.

There is a constitutional principle that the Executive and every agency of government are accountable to Parliament. Parliament is supreme, not the Executive, and it is to Parliament that accountability must be made. If the ISC is to operate effectively and to act as a deterrent against malpractice, it should have the power to examine any document that is held by the security services. As my noble friend said, the ISC members will be nominated by the Prime Minister and approved by Parliament and, presumably, will be security-cleared to the necessary level. If they are to be limited in the documents that they can inspect by reason of the diktat of a Minister, as advised by the security services, there is a breach of constitutional principle. It is not appropriate for there to be legislation to prevent government accountability to Parliament by allowing Ministers to operate in that way.

Under the format of paragraph 3 of Schedule 1, the Director-General of the Security Service and others, if asked by the ISC to disclose any information, can arrange for it to be made available. However, they can also inform the ISC that the information cannot be disclosed because the Secretary of State has decided that it should not be disclosed—the decision of the Secretary of State, presumably, being advised by the security services. Amendment 19 seeks to delete sub-paragraph (1)(b).

If the ISC asks a government department or any part of it to disclose information, the relevant Minister of the Crown—who, under sub-paragraph (5), may be any Minister—must arrange for that information to be made available in accordance with the memorandum of understanding or, as the Bill stands, inform the ISC that the information cannot be disclosed because the Minister of the Crown has decided that it should not be disclosed. Therefore Amendment 20 seeks to delete sub-paragraph (2)(b)

Under sub-paragraph (3), the Minister of the Crown can take the decision not to disclose only if he considers that it is sensitive information and information which, in the interests of national security, should not be disclosed to the ISC. So, again, presumably he is acting on the advice of the security services in coming to the conclusion as to whether it is sensitive information or as to what the interests of national security are.

Sub-paragraph (3)(b) of paragraph 3 states:

“it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security)”.

So, presumably, on the Minister’s say-so and without advice from the security services, it would be proper for that information not to be released.

The Secretary of State or Minister of the Crown can decide, either on the advice of the security services or on their own initiative, that the ISC is not very important and they can just say, “No, it cannot see this, even if it wants to. It will have to come to its conclusions simply on the documentation that I”—the Minister, acting on the advice of the security services—“think it should see”. Is that what the Bill is about? Is that its purpose? Are we debating the functions, procedures and the setting up of the ISC so that a Minister of the Crown, advised by the security services, can withhold information from it? It is constitutionally inappropriate and I firmly urge these amendments upon the Government.

[Lord Campbell-Savours]

My Lords, I have great sympathy with the speech of the noble Lord, Lord Thomas of Gresford. It addresses a fundamental flaw in the Bill.

I shall speak to Amendments 22 and 26. Amendment 22 deals with sub-paragraph (3), which states:

“A Minister of the Crown may decide under sub-paragraph (1)(b) … that information should not be disclosed only if the Minister considers that”—

as the noble Lord, Lord Thomas of Gresford, said—

“(b) it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.

If I remember rightly, that is currently the position under the present ISC, notwithstanding the statement in the Bill. I have not always understood exactly what such circumstances are. I have often wondered what would be the circumstances in which Ministers would take that action. Perhaps the Minister will give an explanation today.

The noble Lord, Lord Thomas of Gresford, referred to decisions being taken on a whim. Now that that provision in paragraph 3(3) is be enshrined in the Bill and subsequently become law, we need something more substantial so that we know exactly what is intended by it.

I turn now to the part of the Bill that really worries me—the phrase,

“relevant Minister of the Crown”.

As the noble Lord, Lord Thomas of Gresford, said, we are not given an indication of who is to be involved. Are we talking about Parliamentary Under-Secretaries or Ministers of State? The noble Lord, Lord Henley, is, I understand, a Parliamentary Under-Secretary.