House of Commons Hansard Debates for 16 Jan 1989

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(4) A member of the Review Committee is eligible to be re-appointed for a term not exceeding five years.

(5) The functions of the Review Committee are--

(a) to review generally the performance by the Service of its duties and functions and, in connection therewith ;

(i) to review the reports of the Director-General and the Inspector General and certificates of the Inspector General transmitted to it pursuant to subsection (5A) of section 4 ;

(ii) to review arrangements entered into by the Service pursuant to subsection (3A) of section 2 and to monitor the provision of information and intelligence pursuant to the arrangements ; (

(iii) to review the directions referred to in subsection (3) of section 2 ;

(iv) to compile and analyse statistics on the operational activities of the Service ;

(v) to review the budget and annual total expenditure of the Service ;

(b) to arrange for reviews to be conducted, or to conduct reviews, pursuant to subsection (4) below ;

(6) Subject to this Act, the Review Committee may determine the procedure to be followed in the performance of any of its duties or functions.

(7) Notwithstanding any Act of Parliament or any privilege under the law of evidence, the Review Committee is entitled--

(a) to have access to any information under the control of the Service, the Solicitor General or of the Inspector General that relates to the performance of the duties and functions of the Committee and to receive from the Inspector General, the Director-General and employees such information, reports and explanations as the Committee deems necessary for the performance of its duties and functions ; and

(b) during any investigation referred to in paragraph (c) of subsection (5), to have access to any information under the control of the Director- General that is relevant to the investigation. (8) For the purpose of ensuring that the activities of the Service are carried out in accordance with this Act and any provisions made under section 2(3) above and that the activities do not involve any unreasonable or unnecessary exercise by the Service of any of its powers, the Review Committee may--

(a) direct the Service or Inspector General to conduct a review of specific activities of the Service and provide the Committee with a report of the review ; or

(b) where it considers that a review by the Service or the Inspector General would be inappropriate, conduct such a review itself.

(9) The Review Committee shall, within three months after the end of each fiscal year, submit to the Prime Minister and the Solicitor General a report of the activities of the Committee during that year and the Prime Minister shall cause a copy of each such report to be laid before each House of Parliament together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (10) below.

(10) If it appears to the Prime Minister, after consultation with the Solicitor General and the Review Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Service, the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament.

(11) The Review Committee may, on request by the Solicitor General or at any other time, furnish a special report to the Solicitor General concerning any matter that relates to the performance of its duties and functions.

(12) The Review Committee, after consultation with the Treasury, shall be provided with such staff as it thinks necessary for the discharge of its functions.'.

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Amendment (a) to the new clause, in subsection (2), leave out 30' and insert seven'.

New clause 3-- Investigation of complaints --

(1) Any person may make a complaint in writing to the Review Committee with respect to any act or thing done in relation to him or any property of his by the Service and the Committee shall investigate the complaint if--

(a) the complainant has made a complaint to the Director-General with respect to that act or thing and the complainant has not received a response within such period of time as the Committee considers reasonable or is dissatisfied with the response given ; and

(b) the Committee is satisfied that the complaint is not trivial, frivolous, vexatious or made in bad faith.

(2) Where, by reason only of the denial of a security clearance by the Service, a decision is made to deny employment to an individual or to dismiss, demote or transfer an individual or to deny a promotion or transfer to an individual, the Director-General shall send, within ten days after the decision is made, a notice informing the individual of the denial of a security clearance.

(3) A member of the Review Committee may exercise any of the powers or perform any of the duties or functions of the Committee under this section in relation to complaints.

(4) Before commencing an investigation of a complaint the Review Committee shall notifiy the Director-General of its intention to carry out the investigation and shall inform the Director-General of the substance of the complaint.

(5) Every investigation of a complaint under this section by the Review Committee shall be conducted in private.

(6) Where the complaint relates to the denial of a security clearance, the Review Committee shall, as soon as practicable after receiving a complaint, send to the complainant a statement summarising such information available to the Committee as will enable the complainant to be as fully informed as possible of the circumstances giving rise to the denial of the security clearance and shall send a copy of the statement to the Director-General. (7) In the course of an investigation of a complaint under this section by the Review Committee, the complainant and the Director-General shall be given an opportunity to make

representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person. (8) The Review Committee has, in relation to the investigation of any complaint under this section, power--

(a) to summon and enforce the appearance of persons before the Committee and to compel them to give oral or written evidence on oath and to produce such documents and things as the Committee deems requisite to the full investigation and consideration of the complaint in the same manner and to the same extent as a superior court of record ;

(b) to administer oaths ; and

(c) to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Commission sees fit, whether or not such evidence or information is or would be admissible in a court of law.

(9) The Review Committee shall--

(a) on completion of an investigation in relation to a complaint, provide the Solicitor General and the Director-General with a report containing the findings of the investigation and any recommendations that the Committee considers appropriate, including--

(i) that inquiries by the Service about the complainant to be ended and any records relating to such inquiries be destroyed ; and (

(ii) that the complainant be paid such sum by way of compensation ; and

(b) at the same time as or after a report is provided pursuant to paragraph (a), report the findings of the investigation to the complainant and may, if it thinks fit, report to the complainant any recommendations referred to in that paragraph.

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(10) On receiving the report from the Review Committee referred to in paragraph (a) of subsection (8) above, the Solicitor General must, unless he can show that it would not be reasonable to do so, adopt the recommendations, if any, made by the Review Committee and any such decisions made by the Solicitor General must be notified to the complainant.'

New clause 5-- Parliamentary Select Committee on Security -- (1) There is to be established a Select Committee of the House of Commons appointed to keep under review the matters referred to in subsection (3) below.

(2) The Committee shall consist of 10 Members of Parliament representing each party having at least 12 members in the House of Commons and these Members of the Committee shall be appointed by the Prime Minister after consultation with the Leader of each party so represented.

(3) The functions of the Committee are

(a) to review generally the performance by the Service of its duties and functions and, in connection therewith,

(i) to review the reports of the Director-General and the Commissioner ;

(ii) to review the provisions referred to in subsection (3) of section 2 ;

(iii) to compile and analyse statistics on the operational activities of the Service ; and

(iv) to review the annual budget and expenditure of the Service. (

(b) to arrange for reviews to be conducted, or to conduct reviews, pursuant to subsection ( ) below.

(4) Subject to the provisions of this Act, the Committee may determine the procedure to be followed in the performance of its duties or functions.

(5) Notwithstanding any Act of Parliament of any privilege under the law of evidence, the Committee is entitled to have access to any information under the control of the Service, the Secretary of State or of the Commissioner that relates to the performance of the duties and functions of the Committee and to receive from Commissioner, Director-General and the Secretary of State and employees such information, reports and explanations as the Committee deems necessary for the performance of its duties and functions. (6) For the purpose of ensuring that the activities of the Service are carried out in accordance with this Act and any provisions under section 2(3) above and that the activities do not involve any unreasonable or unnecessary exercise by the Service of its powers, the Committee may--

(a) direct the Service or Commissioner to conduct a review of specific activities of the Service and provide the Committee with a report of the review ; or

(b) where it considers that a review by the Service or the Commissioner would be inappropriate, conduct such a review itself. (7) The Committee shall, within three months after the end of each fiscal year, submit to the Prime Minister and the Secretary of State a report of the activities of the Committee during that year and the Prime Minister shall cause a copy of each such report to be laid before each House of Parliament together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (8) below.

(8) If it appears to the Committee, after consultation with the Prime Minister, the Secretary of State and the Leaders of the parties represented on the Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Service, the Committee may exclude that matter from the copy of the report as laid before the House of Parliament. (9) The Committee may, on request by the Secretary of State or at any other time, furnish a special report to the Secretary of State concerning any matter that relates to the performance of its duties and functions.

(10) The Secretary of State shall, with the approval of the Treasury as to numbers provide the Committee with such staff as the Secretary of State thinks necessary for the discharge of its functions.'.

Mr. Hattersley : Amendment No. 73 in this group seeks to place the Security Service, MI5, under the supervision of

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a Select Committee of the House. I believed on Second Reading that that proposal marked a clean and clear division of opinion across the Floor of the House. I now realise that as the debate progresses, and perhaps as we approach a Division on the amendment, the merits of a halfway house will be advocated, as will the merits of oversight not by a Committee of this House or both Houses, but by a committee of Privy Councillors who may or may not be Members of Parliament. The proposal for a supervisory committee, not of this House but of outside nominees, is grouped with amendment No. 73. Other hon. Members will seek to deal with that suggestion in detail. In the interests of clarity, I want to explain briefly why the Opposition regard what I think it is fair to call the halfway house as inadequate for two distinct, but related, reasons.

First, it seems to us that a group of persons who are essentially the Prime Minister's nominees cannot provide the oversight for the Security Service that a Select Committee would make possible. Supervision by the Prime Minister's nominees--Privy Councillors ; I put aside for a moment the wholly unreasonable deference to Privy Councillors that the alternative scheme embodies--is essentially supervision by insiders.

We believe that it is necessary above all else that the supervision and oversight of the Security Service should be by responsible representatives who are not part of the inside group and who do not reflect the values of it. They should be representatives answerable directly to this House and they must discharge their duties in a way that they can subsequently justify to the House.

The relationship that a nominated supervisory body would have with the Government is demonstrated by our second objection to new clause 3, which is the nature of the report which the nominated body would make to Parliament. The reports would be written by the Government with the committee of Privy Councillors being allowed to do no more than comment on the content of that report. That would be inevitable under such a scheme, because the committee's existence would depend on the Government. We do not want the committee to be responsible to the Government in that way or dependent on the Government in that way or, as I fear, with the best will on the world, deferential to the Government in that way.

The proposal embodied in amendment No. 73 and new Clause 5 would have an independence that the alternatives could not provide. The Select Committee would write its own reports.

Mr. John Wheeler (Westminster, North) : The right hon. Gentleman will be aware that I have a direct vested interest in his proposal. Is not the problem with the Select Committee or Members of Parliament, regardless of their status in the House, having a direct involvement in supervising the Security Service the fact that they would have to be taken within the fold of confidentiality and secrecy and would never be able to report to the House, as a Select Committee can, but would be able only to report to my right hon. Friend the Home Secretary direct? In that case, what my right hon. Friend the Home Secretary is proposing is adequate.

Mr. Hattersley : I made the mistake of giving way when I should have told the hon. Gentleman that I hoped that I would do my best to deal later with the point that he was likely to raise. As he raises the point now, the answer to his

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question, like the best answer to most questions, is "It depends". It depends on the nature of the Committee, its powers and the way in which it exercises those powers. I accept that in most cases the Committee would want to report to Parliament in a way which some critics of the Security Service might regard as anodyne. However, the important point about the Committee--and I will develop this aspect as best I can later--is that its work will be what the Home Secretary has described as looking over his shoulder. Its existence will keep the Home Secretary metaphorically on his toes. It will remind him that he must operate in a way that is consistent with Parliament's view on efficiency, prudence and civil liberties. The importance of the Committee will lie in what it does not have to do. Its existence would prevent the Security Service and the Home Secretary from doing things that they might otherwise do.

Mr. David Winnick (Walsall, North) : Is not one of the reasons why we need the Committee simply to avoid the kind of response given by the Minister who replied to the Second Reading debate? The Minister referred to what I said about Patricia Hewitt, the allegations made by Cathy Massiter and why my hon. Friend the Member for Peckham (Ms. Harman) was investigated when she was a legal officer for the National Council for Civil Liberties. He said that I wanted the Home Secretary to come and deal with the allegations and that that would be wholly unreasonable. Regardless of any allegations by former MI5 officials, which may be raised on the Floor of the House, all a Minister now needs to do, in the absence of a Select Committee, is to say that those are all security matters which cannot be dealt with.

Mr. Hattersley : I agree with my hon. Friend in every particular except that he invests Minister's winding-up speeches with a seriousness that they clearly do not possess. He also demonstrated, if I may say so with all humility, a point that I wanted to make to the hon. Member for Westminster, North (Mr. Wheeler). I intended to make these points later and the sensible thing for me to do is to make my speech as best I can and then discover whether my colleagues agree with it and whether Conservative Members disagree.

One of the advantages of a Select Committee in comparison with other institutions is that under our scheme it would write its reports after listening to the Government's advice about the need for security. That difference is crucial. It demonstrates the weakness of one system and the strength of the other. It is the difference between keeping the supervision of the security services within the family of the establishment or extending it to a responsible but essentially independent oversight. We want independent oversight. The creation of our proposed Select Committee will produce three major advantages. First, it will remove much of the party political controversy that currently surrounds MI5's work. The allegation that the Security Service was, is, or could be used as a Prime Minister's private army would no longer have the plausibility that it currently has. That would be good for the country, and in my view it would be good for the Security Service.

Our intention is that the Select Committee will reflect the composition of the House, and, therefore, include at least one representative of every political party represented

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by 12 or more right hon. and hon. Members. The Government of the day will maintain a majority on the Select Committee, but other members will be appointed after, and only after, consultation with party leaders. The result will produce an advantage for the Security Service as well as for democracy.

The House will assume a measure of responsibility for its operation. It will be more than just critical supervision. That general responsibility will mean, in general, MI5 being detached from any accusation of one-party dominance or operation on behalf of the Government of the day.

The second advantage of our scheme relates to the fear--often justified in the past--that MI5 operates illegally, unlawfully or improperly. That fear will in large part be removed.

Thirdly, by making MI5 accountable to the House, our scheme will put the Security Service more in touch with the real world, and, as a consequence, it will be more efficient. Nobody doubts that the organisation's failures were largely the result of its insulation from reality and its belief that its operations, unchecked and unsupervised by anyone outside its magic circle, ought not to be subject to independent scrutiny. I repeat, for it is important to our case, that the service's efficiency will certainly be increased by the relationship with the real world that parliamentary scrutiny can provide.

The Government will argue that the obligations to civil liberties, efficiency and lawful conduct specified in the Bill requiring the Security Service to obtain the Home Secretary's warrant before it interferes with property or intercepts a telephone call are safeguards that will reassure reasonable people that MI5 does not act improperly. Reliance on the good will, good judgment or good intentions of a single Minister is always a bad legislative precedent. Some future Home Secretaries may be politically corrupt. All will be fallible. Many will be insensitive or obtuse in their reactions to the Bill's provisions and to their obligations if it becomes law.

The present Home Secretary gave an example of the third shortcoming on Second Reading. I acquit him of political corruption, though I am sure he will join me in admitting his own fallibility. However, political insensitivity and the Home Secretary's misunderstanding of his own role were demonstrated dramatically when I asked him about political bias or fears of political bias in the Security Service. He answered that political bias would be prevented by the operation of clause 2(2)(b), and that that clause specifically prohibited the security services from acting

"to further the interests of any one political party."

The Home Secretary surely does not believe that prohibition of work on behalf of one political party is the same as avoidance of political bias. Whether the non sequitur with which he answered my question was the result of a genuine mistake or of simple confusion or whether it was intended to obfuscate the position, I do not know. However, it illustrates that, to ensure sensible, acceptable and democratic control, the House needs something more than just the supervision of one Minister, no matter how well-intentioned he may be.

There can be no absolute safeguard that the Security Service will not act without the Home Secretary's permission. That is the tradition of the service. The Bill is introduced because, in the past, the Security Service often operates outside the law. There need to be adequate

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safeguards against both the Home Secretary's possible failure and the possible failings of the service that he supervises. Without a Select Committee external to the service, no such safeguard will exist.

4.15 pm

As the debate continues, the Home Secretary will doubtless insist--and perhaps he believes--that the appointment of a commissioner and tribunal to examine his record in issuing warrants for the interception of communications and for interference with property and from time to time to cast a general eye over the Security Service's work is a safeguard with which we ought to be satisfied. He described to the House, in what I can only term plaintive language, the terrors of having a judge looking over his shoulder. I say with respect to the judiciary--which is required of me by Standing Orders, but which I feel irrespective of that obligation--that the extent of the Home Secretary's terror will depend on the judge who is selected to undertake that supervision. The views held, perfectly legitimately, by some members of the judiciary are exemplified by Mr. Justice McCowan during his summing up of the Ponting trial. He commented : "The policies of the state mean the policies laid down for it by its recognised organs of Government and authority."

One of the objections in principle to much that went on during that trial is the confusion that exists between the interests of the Government and those of the nation, which characterised the Government's conduct and that summing up by the judge. Any judge who thinks that the Government and the state cannot be separated is likely to hold few terrors for the Home Secretary while looking over the right hon. Gentleman's shoulder to see how he discharges his duties in relation to the Security Service. Given that the judge who will look over the Home Secretary's shoulder will be appointed on the Home Secretary's recommendation to the Prime Minister, it will always be open to the Government of the day to find a nominee who believes that the interests of the Government and the state are identical. Such a judge will always be able to convince himself, wholly within the law, that, under the terms of the Bill, whatever the Home Secretary chooses to do is reasonable.

The protection of our liberties is too important to be left to judges. The House of Commons ought to be looking over the Home Secretary's shoulder, and it will do so if it accepts our proposed amendment and new clause. On 3 December 1986, when the Home Secretary described to the House his criticism of a Select Committee to supervise the security services, he offered three objectives. They were effectively preserving a necessary secrecy, increasing confidence in the service that it might provide, and avoiding the risk of

"blunting or diminishing the personal and clear responsibilities of the Prime Minister and the Home Secretary to this House."--[ Official Report, 3 December 1986 ; Vol. 106, c. 948.]

I am prepared to measure our own proposals against the Home Secretary's own criteria. New clause 5 will require the Select Committee

"to have access to any information under the control of the Service, the Secretary of State or of the Commissioner that relates to the performance of the duties and functions of the Committee." That is a wide definition of what may be demanded by the Select Committee. However, without that wide definition, the Committee as we envisage it could not carry out the work that we wish to impose on it. I reject the implication

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--and I hope that the Home Secretary will also reject it--that we cannot construct a Select Committee of the House that will behave with proper discretion and have proper concern for the national interest.

Many of us hoped that the idea that intelligence information cannot be read by anyone outside the intelligence community was dispelled for ever by the procedures adopted by Lord Franks' inquiry into the Falklands war. The Prime Minister told the House that that committee was provided with all the papers relevant to its terms of reference, including a comprehensive--not selected, doctored or

amended--collection of reports from the intelligence agencies. Those reports were not leaked, and I see no reason why a Committee of the House should not behave in the same responsible way.

In addition, the Select Committee system provides a precedent of a sort. When the Select Committee on Defence was set up, there was much foreboding about its ability to retain the secrecy of sensitive documents ; in fact, all Select Committees have proved more leak-free than Government Departments. The Home Secretary said that many of our allies who had a proper and vested interest in the retention of secret information might be apprehensive about the results of parliamentary oversight.

I suggest that if the amendment and new clause are passed the Foreign Secretary should reassure our allies with two arguments about the new procedure. First, on the evidence, Select Committees are considerably more secure than a Department of state. Secondly, parallel systems allowing members of legislatures to investigate security matters and to maintain overall supervision of security services operate successfully in other democracies without any leakage of essential information. I hope that I am not making a populist point when I say that I retain the hope and belief that the honesty, integrity and patriotism of the House are no less than the honesty, integrity and patriotism of the Senate and Congress of the United States. If they can manage such a system without essential information being leaked, I have no doubt that we can do the same. The Home Secretary's second criterion concerned whether a proposal for a Select Committee would increase or reduce confidence in the system--not confidence in terms of maintaining the secrecy of sensitive information, but confidence in terms of the efficiency and general obedience to the law within which the Security Service is operated.

I find it difficult to believe that both Parliament and the nation would not be reassured by the introduction of a Select Committee system. The Home Secretary knows, although it may not be possible for him to admit it, that confidence in the Security Service has diministed enormously in the recent past. That may or may not be justified, and today may not be the occasion on which to argue about the justification, but there is no doubt that it is the case, and that the lack of confidence has been intensified by two steps taken by the Government over the past few months. First, there is the provision in the Official Secrets Bill that gives absolute protection to the work of the security services without any public interest justification. On the Second Reading of that Bill, the Home Secretary conceded to me that under clause 4(3)(a) it was an indictable offence to reveal any information concerning the work of the security services-- whether that work was carried on legally or illegally, was justified or unjustified, or was carried on under proper warrant or

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without stipulated authority. Inevitably, that increases uncertainty and doubt about the work of the service. Indeed, the Home Secretary conceded willingly and openly that were I to be told by a member of the security services that my property had been burgled or my telephone bugged I would be committing an indictable offence, punishable by imprisonment, if I revealed that to the public at large.

Mr. Ray Whitney (Wycombe) : The right hon. Gentleman said that he would not seek to set out his case for maintaining that trust and confidence in the security services had recently been eroded. I suggest that he reconsider, because such a case as he puts forward must be the whole basis and justification for changing the status quo.

I suggest that any case that the right hon. Gentleman might assemble could offer only one security problem in the last 10 years or so, and that the cases to which he has referred obliquely in his speech have been 15, 20 and 30 years old. Many of them have already been exploded by such people as his former right hon. Friend Lord Callaghan. I refer, of course, to the allegations made by Mr. Wright in his book.

Mr. Hattersley : I am tempted to pursue the case, not least because since our previous debate I have had some interesting correspondence with Mr. Anthony Cavendish--initiated by him--in which he refuted some of the points made about him by Conservative Members. He sent me copies of letters with the names discreetly and honourably blanked out, which he said had been sent to him by the more pompous members of the Conservative party. I would have looked forward to seeing which Conservative Members confessed to being the correspondents in question.

It seems to me that the best way in which to proceed is by way of the argument about civil liberties and the principle of accountability. Were it not for the disquiet felt outside--justified in my view and unjustified in that of the hon. Member for Wycombe (Mr. Whitney), but irrefutably present, whether justified or not--many of us would think that, as a matter of principle, an organisation as powerful and potentially dangerous as the Security Service ought to be subject to some supervision. That principle ought to apply whether the record is exemplary or deplorable.

Mr. Andrew F. Bennett (Denton and Reddish) : Surely the very fact that the Government have decided to bring forward legislation is a sign that even they realise that everything is not satisfactory in the view of the general public. The real test is whether they bring forward a measure that is sufficient to allay that fear or one that simply enhances it. As the Bill stands, it will enhance rather than allay the fear, and the Government will therefore fail in their purpose.

Mr. Hattersley : My hon. Friend tempts me to move away from my most ecumenical mood. I am doing my best to put the case reasonably, not least in the hope that it will embolden some of the frailer spirits on the Conservative Benches, who have expressed arguments not dissimilar to those that I am advancing, to come into the Lobby with us. The Home Secretary-- who knows his troops far better than I could ever know them--shakes his head to imply that, no matter how mollifying my comments are, in the

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end nerves will be lost and votes will not be cast. But I shall continue to pursue my argument with what passes with me for reason in the hope that we shall carry with us a few hon. Gentlemen-- and perhaps even one or two hon. Ladies--when we vote.

I was saying--perhaps not in a total spirit of compromise--that clause 4(3)(a) of the Official Secrets Bill had done a great deal to undermine what ought to be proper confidence in the service, because the Home Secretary had said that, even when the operation of the service was unlawful, illegal, improper or carried out without warrant, it would still be an offence to reveal it to the public.

The Secretary of State for the Home Department (Mr. Douglas Hurd) : The right hon. Gentleman has got it wrong.

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