House of Commons Hansard Debates for 17 Jan 1989

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intercept warrants to Secretaries of State who have nothing to do with those responsibilities. Indeed, that was in clear contravention of the Interception of Communications Act 1985.

The amendments do not cast doubt on the commissioner's role. I seek to have two commissioners because experience tells us--I do not share my hon. Friend's confidence on the history of the Security Service--that when a single individual has overseen the role of the Security Service things have gone wrong. The examples are legion. I shall mention just three. There was the chairman of the Security Commission who was clearly misled over the Bettaney case ; the chairman of the Vassall committee, going back years ago, and the evidence supplied by the Security Service ; and the more notorious case of Lord Denning.

I promised to be brief, so I shall merely urge the Committee to consider doubling the number of commissioners to two to avoid the danger of a single individual being nobbled. Anybody with a knowledge of what has happened in the past will concede that that is a real danger.

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Mr. Maclennan : This large group of amendments may be characterised as seeming to provide for the oversight of the security services in various aspects by means more secure than those set out in clause 4. I shall confine my remarks to two of the amendments, although I support strongly several others, especially new clause 8 and amendments Nos. 60, 68, 62, 7, 64, 65, 70, 71 and 72, which the hon. Member for Aldridge-Brownhills (Mr. Shepherd) may wish to address. I want to deal with amendments Nos. 62 and 79.

Amendment No. 62, again, is based on the Canadian experience. It proposes that the inspector general--the officer whose functions are, essentially, those of the commissioner as proposed in clause 4--will have a more wide- ranging duty of scrutiny and supervision than under clause 4. It is appropriate for a service costing about £100 million per annum that there should be such oversight of the service beyond consideration by the Secretary of State of warrant practices, which we have been considering in relation to clause 3. It is right to ensure by establishing such an officer --the Government contemplate that he should be of the highest judicial standing--that not only how the Secretary of State has discharged his duties under clause 3, but whether the service is conducting itself appropriately in accordance with the Bill is scrutinised. It is important for that officer to stand apart, to some extent, from the direction of the service, which will be the responsibility of the director-general at the apex of the service. It is clear that a Minister cannot effectively do the job. That case has been partially conceded by the Home Secretary in seeking to appoint a commissioner. Amendment No. 79 seeks to ensure that the inspector general shall keep under review the exercise by the Secretary of State of his powers not only under clause 3 but generally.

I accept that the provisions for warrants may constitute the single most important aspect of the functions of the Secretary of State under the Bill, but there are several other important functions of the Secretary of State which should be subject to review. I draw attention to one provision in particular. Under the Bill it is open to the Secretary of

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State to specify the circumstances in which information held by the Security Service may or may not be released for consideration in determining whether a person should be employed. That very considerable power is exercised not under clause 3 but under clause 2. It seems to me that the power to intervene to affect employment opportunities- -not only in respect of individuals, who would be entitled to make a complaint under the procedure set out in schedule 1, but in respect of the guidelines under which such information may be released--should be supervised by a commissioner as it has to be done in accordance with the provisions made by the Secretary of State.

The proposal represents a modest extension of the commissioner's powers. I can see no argument of principle or of practice against it. I hope that the Minister will therefore respond positively.

Mr. Aitken : In common with many of the amendments, new clause 8 returns to the question of oversight. Yesterday we had a long discussion about parliamentary oversight, which the Home Secretary rejected on the somewhat curious ground that Parliament could not be trusted. We also examined at some length the notion of a non-parliamentary, Canadian-type oversight, which the Home Secretary rejected on the somewhat curious ground that, although it worked well in Canada, it could not possibly work well in this country. New clause 8 is a probing proposal, whose purpose is to find out whether any form of oversight would be acceptable to the Home Secretary --in particular a form of oversight that fulfils the three important criteria that he spelt out in the days when he was by no means hostile to the idea of oversight. On 3 December 1986, in response to a motion tabled by the right hon. Member for Plymouth, Devonport (Dr. Owen), the Home Secretary suggested that an oversight system might be acceptable if three tests were passed--the tests of preserving secrecy, of increased public confidence in the House, and of the need to avoid blunting and diminishing the clear responsibilities of the Prime Minister and the Home Secretary in monitoring the security services.

New clause 8 falls firmly within those parameters and meets all those criteria. It involves what might be called "professional oversight"--a group of genuine professionals who would have nothing to do with Parliament, politics or Privy Councillors and who could go behind the barrier of secrecy to give a vital dimension of continuity. Such continuity is most important in the light of the revelation by the right hon. Member for Morley and Leeds, South (Mr. Rees) that to his knowledge no incoming Government are allowed to examine the previous Government's monitoring of the security services. Such a group could monitor, above all, the effectiveness and efficiency of the Security Service. I cannot imagine a softer touch being applied to any organisation in terms of performance review and the monitoring of professional efficiency than is applied to the Security Service, which is simply monitored by the Home Secretary of the day who is arguably the busiest Minister in the Government.

The case for monitoring the efficiency and effectiveness of the Security Service stems from the famous case of Michael John Bettaney. That gentleman lives on in the folklore of the security services. Although he now languishes in Coldingley prison for his treachery, he will surely one day have his statue in the hall of history and fame of world security services because he caused

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extraordinary changes in our own Security Service, without which the grave defects of the past would still undoubtedly be with us. No novelist could have invented Michael John Bettaney and if any novelist had invented him, that novelist could not have written a plot in which Michael John Bettaney rose steadily to higher and higher posts of importance within our Security Service. He was an alcoholic, a misfit, a fantasist, a curious wild and way-out character, whose fatal weakness was alcohol in a big way. He used to be so drunk among his Security Service colleagues that he could not stand up. On one occasion, he even set fire to himself. He had two convictions for criminal dishonesty. At social occasions in the MI5 mess he used to say things such as, "Come and see me in my dacha when I retire". "I am sure the East Germans would look after me better." "I am working for the wrong side." Incidentally, those quotations were taken from the Security Commission's own report on the Bettaney case.

However, despite all those clues that something might be slightly wrong with Mr. Bettaney, he was steadily promoted, even though officials had gone to their superiors to mention such incidents. After that epic saga, Bettaney sent notes to the Soviet embassy, revealing the order of battle and all kinds of secrets. He took all sorts of documents home but the Soviet embassy could not believe that such a figure existed and completely ignored him, so no great damage was done by Mr. Bettaney.

Mr. Bettaney's story was finally told in the 1985 report of the Security Commission. From the Bettaney story it became perfectly obvious that the Security Service was in dramatic need of wholesale managerial reform. It must be stressed that none of this would have come to light had not the story that I have told come to a denouement with Mr. Bettaney sending letters to the Soviet embassy and, disappointed that there was no reply, finally knocking on the door of the Soviet embassy, thus getting caught.

Mr. Winnick : Is it not possible that MI5 was so busy at the time that it is understandable that that lapse took place? If MI5 was spending all its time--as the hon. Member for Torbay (Mr. Allason) told us earlier-- trying to discover whether Lord Wilson was a Soviet agent, surely so many resources had to go into that that MI5 could not worry about other matters.

Mr. Aitken : The hon. Gentleman has a point below his humour because the same mentality and managerial efficiency that went into investigating the fantasies about Lord Wilson was the same kind of business efficiency that could not spot Michael Bettaney. There was a deep flaw in the whole of the Security Service. It is as well that the Committee recognises that successive Home Secretaries in charge of the monitoring of the efficiency of the Security Service had failed to notice that there was anything wrong, despite repeated assurances to the House from Home Office Ministers that they were monitoring the Security Service well.

The case that I am deploying has nothing to do with politics or Parliament. I am saying that there is a case for an ongoing business or managerial oversight of the security services by professionals within the barrier. On one occasion only the Security Commission was able to do that.

In my new clause I recommend that there should be three commissioners and that they should be, for example,

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a former senior officer in the armed services, an academic who has specialised in the study of Communism or terrorism, a trade union official, a senior civil servant or a diplomat. They should certainly not be former members of the intelligence community, but quite separate and independent from its history. It should be a genuine independent oversight body with a small staff working on a continuous but part-time basis.

The entire purpose of this is to ask such questions as arose out of the Bettaney case. For example, is the Security Service satisfied with the level of training and education? We know that Security Service officers are given training in what might be called trade craft and mechanics. On the Irish terrorism desk, however, there is some indication that there is little education in the true history and the politics of Ireland which would give the Security Service official the breadth of knowledge needed to grasp the dimensions of the problem.

Someone should look at the extraordinary turnover of

directors-general of the Security Service--five in the past 10 years. There have been about four directors of the counter-espionage branch in the past 10 years. Someone should look closely, above all, at the management of personnel and resources. Those are the sort of performance review duties which need to be carried out on a permanent basis. I submit that the Home Secretary has not the time, the thoroughness or the continuity of approach to tackle those matters in the depth required.

I cannot understand why this country carries on being the only democracy in the English-speaking world which has no form of independent oversight, but simply says that we can trust one man--the Home Secretary of the day. He is assisted, no doubt, from time to time by the Prime Minister, but basically there is one Minister to do the job which the Security Commission did on one occasion in such a devastating way, but that was just a one-off ad hoc committee and we want something continuous.

Mr. Allason : My hon. Friend is right about the point that he made about the Bettaney Security Commission report, but it is worth reminding the House that the parts that have been quoted were the publicly available sections of the report, and that the Security Commission reported at that time that there was an equally large and more damning annex to that report that was never published.

Mr. Aitken : I am always getting nuggets of inside information from my hon. Friend which strenghthen my argument, and I am grateful to him.

A permanent monitoring body of the kind I am suggesting could have the advantage of being able to be permanently behind the secrecy barrier and, therefore, completely fall within the basic criteria set by the Home Secretary.

It has not been emphasised enough that in this strange world of the Security Service one of its most important roles is that of long haul counter-espionage. One must watch for years in this world and the monitoring in that area needs to be long on continuity and carried out on a long-term basis.

My hon. Friend the Member for Windsor and Maidenhead (Dr. Glyn) made a valuable intervention in this debate. He reminded us that the world of intelligence was a jigsaw, which is a good word for it. Such a jigsaw can

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only be put together and watched by those whose lifespan of monitoring is far longer than that of a politician or Home Secretary, which is why some form of permanent oversight body, on a purely professional managerial level, is highly desirable.

I commend this proposition to the House in the great hope that the Minister will recognise that new clause 8 falls firmly into the category of acceptable oversight as outlined by his right hon. Friend the Home Secretary, and, if there were any justice in this world regarding amendments, it should be entirely acceptable.

Mr. Richard Shepherd : I want to support amendments Nos. 62, 64, 65 and consequential amendments Nos. 60, 68 and so on. The consequential amendments indicate the change from the term commissioner to inspector general. Essentially it is a cosmetic change, but it keeps the thread of continuity with the Canadian model.

The purpose of amendments Nos. 62, 64 and 65, which should have been debated with amendment No. 63 in the first group of amendments yesterday, is to provide the opportunity for reinforcing ministerial responsibility and therefore accountability. The inspector general's job is to act internally to monitor the issuance of warrants, and compliance with those warrants, to determine that the service has acted ethically, appropriately and in accordance with the law, and to report back to the responsible Minister. That mechanism in law ensures that there is one limb of oversight, primarily on behalf of Ministers, which makes a report. This is set out clearly in amendments, but to get a more coherent picture my hon. Friend should read the amendments in conjunction with amendment No. 63. The amendments deal with the internal means of monitoring.

The overall structure that we are seeking is ministerial responsibility to Parliament. Ministers will have an internal inspector general who monitors the issue of warrants and who reports on the conduct of the service and the pursuit of its objectives. That would ensure that the service conforms with the law, with propriety and with the instructions and directions from the political element of the management of the security service.

That is the basis of our actions. If the Government accepted those processes, they would be reinforced by an external oversight procedure, which would give the public confidence that it was not just an internal matter.

Mr. John Patten : The suggestions put forward in this interesting group of amendments fall into three categories. First, there is the idea of an inspector general, proposed by my hon. Friends the Members for Aldridge- Brownhills (Mr. Shepherd) and for Thanet, South (Mr. Aitken). Secondly, there is the idea of non-executive directors or commissioners proposed by my hon. Friend the Member for Torbay (Mr. Allason). I listened carefully to what my hon. Friend said at the beginning of his speech. When he reads the record of the debate in Hansard he will see that everyone's questions have been answered by Ministers. He may wish to reassess his remarks in the light of that. The third suggestion was the full scheme outlined in new clause 8 for up to three commissioners, proposed by my hon. Friend the Member for Thanet, South. All the amendments and new clauses illustrate the muddle and confusion that could arise when there are attempts to distort and change the clear statutory nature and function of the Security Service commissioner proposed in the Bill

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into a mutant new person with a new set of powers or into a group of people with de facto unlimited and unclear powers.

Let us consider the widening of the oversight powers. Whether one is talking about an inspector general or two or three commissioners, my right hon. Friend the Home Secretary and I believe that the same impossible situation arises. In effect, the proposals give power without responsibility. That may not be the intention of those who have drawn up the amendments and new clauses, but they provide a recipe for intervention and muddle which could, on occasions, be dangerous and does nothing for those who want the director-general of the service and the Minister under whose authority he works to be accountable to Parliament. That accountability is already achieved by the clear structure set out in the Bill.

Wider functions of review and scrutiny can only usurp the responsibilities of Ministers and of the director-general. It is that belief which separates my right hon. Friend and myself from people like my hon. Friend the Member for Aldridge-Brownhills, who looks as though he is hovering to intervene and to whom I had better give way.

Mr. Richard Shepherd : The whole purpose of the amendments is to support the Minister. How can the Minister assure himself that the political objectives of the system are carried out in the way he wants by the service? If things are concealed from the responsible Minister, that is a matter of concern for the Minister and for the House. Things have been so concealed in the past. To assist Ministers in their responsibilities, we tried to construct a clear mandate for an official with the power to overlook the activities of the service. That was intended to support the Minister, not to muddy the waters. Our aim was to enable the Minister to assure the House that he was informed, that he understood what was happening in the service and that it was done in accordance with his requirements.

Mr. Patten : I appreciate the constructive way in which my hon. Friends put forward the amendment, but in a previous Adjournment debate I described the clear line of relations from the service to the director- general, from him to my right hon. Friend the Home Secretary, and in certain circumstances from the Home Secretary to the Prime Minister. Those relations are based on clear lines of responsibility and accountability, the commissioner always being at my right hon. Friend's elbow or looking over his shoulder. In practice, these matters cannot be reviewed effectively by someone who does not also carry the responsibility for what he reviews.

Mr. Shepherd : Before I came to the House I was a business man. I employed an accountant, who was responsible to me. He handled money and affairs close to the success, or otherwise, of the business. Fortunately, the law also requires that independent auditors come in to do the same accounting. That was helpful to me, as my knowledge of book-keeping might have been limited. The practice of everyday life is not inappropriate for the security services. The Government are in extraordinary awe of their security services. Such mystification should not exist. It is in all our interests that the security services be made accountable, but Ministers are acting in a subservient way and claiming that everything is perfect as it is.

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I have eschewed listing historical cases of the problems that have occurred, but we must remember experience elsewhere. Reform has been predicated on massive scandals in almost every civilised western democracy in which the security services have got out of control or not been kept on a leash. We want to avoid that happening here. The Government's deference is as much as to say that they cannot discuss these issues with the House--or introduce the rule of law--or, indeed, do anything at all because it would not be appropriate. Every time a route out is offered to Ministers--the Bettaney case has been mentioned, and there were many others before it--Ministers say that it is impossible.

Is the Minister in such awe of, or so subordinate to, the security services that he cannot weigh up the rule of law, common decency and appropriate action for the courts? Liberty and freedom must be balanced in any decision on how to control and review the service.

Mr. Patten : That was a long intervention, but I will do my best to reply to it.

I accept that my hon. Friend needed an accountancy service from outside for his business. He had his auditors. In the same way, my right hon. Friend the Home Secretary closely audits what goes on in the Security Service. He is responsible not for a successful business, such as that which my hon. Friend ran, but for a non-commercial organisation which deals with the security of the state. That is the difference which separates my hon. Friend the Member for Thanet, South (Mr. Aitken) and others from the Home Secretary and me. It is the divide that was between us in the earlier part of the debate when we discussed judicial intervention in the warrant-making process. My hon. Friend the Member for Aldridge-Brownhills would like to see some functions reviewed in different ways by outsiders, and to that end he has put forward helpful amendments. In practice, these matters cannot be effectively reviewed by people who do not also carry the responsibilities for the matters that they would review. That is the issue of judgment that separates my hon. Friend the Member for Aldridge-Brownhills and me.

12.45 am

I can illustrate that by saying that the degree to which the amendments would require the overseer--if I may use that shorthand term--to become involved in the detailed operations and policy of the Security Service is startling. That would be an inevitable and unavoidable consequence of giving people free range over the activities of the whole service. The same argument applies when we look in detail at the role of the inspector general. I am now moving from the general to the three specific cases that have been put forward. Not much would be achieved by way of public assurance because the inspector general in his other guises would be responsible to Ministers for their work.

It seems impossible for annual reports to be published without dangerously breaching the security within which the service must operate. Each of the proposals suggests that that should happen. Such reports could not go into many, if any, of the wider review findings. The director-general would not be much helped in the discharge of his responsibilities by the appointment of an inspector general. I know that my right hon. Friend the

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Secretary of State for the Home Department would not be helped in the discharge of his responsibilities by such an appointment. The idea of two non-executive directors or commissioners was put forward by my hon. Friend the Member for Torbay (Mr. Allason). He seems to think that two heads would be better than one and does not seem to think there is any special advantage in appointing senior judges to these positions. We do not think that this job would be best carried out by a two -man crew or perhaps even the three-man crew suggested by my hon. Friend the Member for Thanet, South. From the amendment drafted, I presume, by my hon. Friend the Member for Torbay, it is not clear whether the commissioners would jointly review every warrant decision by the Secretary of State and come to a collective view. If they disagreed, who would arbitrate and decide what was to happen?

We attach considerable importance to the need for the commissioner to have senior judicial experience for carrying out his adjudicating functions and grave responsibilities. New clause 8 certainly does not disbar the idea of senior judicial figures being appointed as commissioners. However, the sort of work that the Bill identifies for the commissioner should not be carried out by a wider commission. I and my right hon. Friend the Home Secretary think that these are matters for an independently minded judge of standing and authority drawn from the senior judicial bench and not matters for a committee.

The work of a commission of up to three people would be much wider than the work provided for in the Bill and would be a substantial change to the way in which the Bill is cast. For the reasons that I have given, the Government are clear that such a wider role is not necessary. My hon. Friend the Member for Thanet, South asked whether my right hon. Friend the Home Secretary would regard his scheme as providing acceptable oversight. It is clear from what my right hon. Friend said yesterday and earlier today that such a scheme does not fall into the category of acceptable oversight. Clearly, a substantial difference in principle and view divides my hon. Friends and me. I regret that, and I hope that they will not press their amendments.

Ms. Abbott : The Minister having rejected any form of parliamentary oversight, clause 4 offers a chance of securing administrative oversight. The idea of parliamentary scrutiny was not acceptable to the Minister because, he said, he could not trust Members. His argument against administrative scrutiny rests on the claim that all would be muddle and confusion.

I do not follow the Minister's logic. I see no difference between having a panel of commissioners under this legislation and the existing prisons inspectorate, which has oversight but which does not have political responsibility. Either the Minister has not read his brief properly or he is not acquainted with the structure of his Department.

I say that because there are many examples in the Home Office of groups of administrators exercising oversight without carrying responsibility of the type that we are discussing. That is no coincidence because of all the great offices of state, the case load, complexity and accident-proneness of the Home Office is the greatest.

It cannot sensibly be argued that the Home Secretary is in a position to exercise oversight without the assistance of some of the structures to which hon. Members have

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referred. We regret the Minister's failure seriously to address our arguments on administrative oversight. Instead, he has thrown up a smokescreen of bogus considerations. There is no reason why the structure that we propose should not work in practice. Will the hon. Gentleman at least explain why this structure would not work in principle?

Mr. Maclennan : The Minister rejected the various forms of oversight proposed in this long series of amendments by saying that they all provided for power without responsibility, and he thus swept them aside. But the commissioner whom he envisages establishing to conduct part of the job of oversight will, by the hon. Gentleman's definition, enjoy power without responsibility. Why does he seek to confine this oversight simply to his role in the issuing of warrants and the investigation of complaints?

Will the Minister now reply to my amendment No. 79, which would at least give the commissioner responsibility, not for supervising the entire Security Service, but for supervising the Minister's role under the measure? I drew attention to the Minister's powers to deprive people of employment on the ground that they had in some way been found unacceptable to the Security Service. Although the hour is late, we are dealing with matters of great importance. After all, we are having a very short debate on truncating the civil liberties of the people by a measure which empowers the Security Service to do what without the Bill would be illegal.

The Minister's attempts to answer the case put by his hon. Friends were perfunctory, but at least he tried to answer it. My amendment would enlarge in a modest way, without infringing any principle or practical consideration, the role of the high judicial officer, whom he and his right hon. Friend think it appropriate to supervise the issue of warrants. Why could not that officer supervise the conduct of the duties of the Secretary of State in respect of the provisions of the Bill generally?

Amendment negatived.

Clause 4 ordered to stand part of the Bill.

Clause 5

Investigation of complaints

Mr. Maclennan : I beg to move amendment No. 80, in page 3, line 42, leave out subsection (4).

I move this amendment in search of information as well as to make a proposal that I hope may command itself to the Government. I am not fully clear about the impact of clause 5(4), which provides that "The decisions of the Tribunal and the Commissioner shall not be subject to appeal or liable to be questioned in any court." That appears to deprive the citizen of the right of judicial review enjoyed at present and appears to be the deliberate intention of the Bill. However, the proposal may go further than that. It may deprive the citizen of the right to take a case to the European Court of Human Rights. If that is the case, that should be explicit in the Bill. If it is the Government's intention to exclude the jurisdiction of the European Commission or the Court of Human Rights, it should be so provided in the Bill. Does the Minister intend to notify the Commission of an intention to derogate from

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the convention in any way so as to deprive the citizen of that right which is currently being exercised by the hon. Member for Peckham (Ms. Harman)?

The Minister nods his head negatively and I am, therefore, living in hope that he does not intend to exclude the jurisdiction of the Court of Human Rights, but we better have that from the Minister's own lips.

Mr. Buchan : I cannot resist following that beautiful remark which appears to describe the conduct of Ministers over the past few days. They have either been nodding their heads negatively or shaking their heads positively on issue after issue. I understand the depth of feeling experienced by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). We have received the same negative approach from the Government on every issue. I cannot understand it. We suggest a judge and the Government say, "We cannot accept anything judicial." We suggest a commissioner and they say "We cannot accept a commissioner." The sole Government intention that has emerged has been to keep MI5 inviolable. I understand the difficulties of a junior Minister, but the Home Secretary shook and nodded his head with equal positivism and negativism.

Once upon a time, Ministers received their instructions from the Box, whose occupants said, "Resist", occasionally, "Accept". and often, "Resist, but agree to consider". There is no such middle ground here ; there is only resistance. Ministers' instructions are not to listen to and consider the debate or even to obtain the best decisions for the security services.

A number of proposals have been put forward, not to criticise the operation of the Security Service, but to attempt to make it even more efficient. However when we complain about the infringement of liberty--from personal experience and other factors--and when other people--including the Conservative Back Bench element who are knowledgeable about MI5--and--two hon. Gentlemen who are concerned above all about the freedom of the individual, the liberty of the state and parliamentary democracy as well as the efficiency of the service support us, the Government do not listen.

1 am

Why in heaven's name, when we are discussing an issue which is crucial to our freedom and our liberties, has a Minister been sent to this Committee-- Parliament is supposed to be the sovereign authority in this country--with one instruction--to prevent a Report stage? Are the Government afraid that if the debate continues for another week or two more evidence and more case histories will be produced? I believe that Opposition Front Bench Members made an appalling error in agreeing to a two-day timetable. If the Bill had been considered in Committee under normal procedures, there would have been hours of discussion on issue after issue and amendment after amendment. I was pleased to learn that the Bill was to be debated on the Floor of the House. I considered that it was the proper place to examine our problems. Now, because of the Government's behaviour during the two-day slot that we accepted, mistakenly or with difficulty, the Bill has been shuffled through without ever touching the conscience or the consciousness of this country. We have witnessed shocking behaviour, especially as the Bill is linked with a number of other forthcoming measures.

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What does the amendment seek that the Government find so difficult to accept? After the tribunal has made a decision, someone may wish to appeal. That will not reveal any issue of security. It will merely provide a little safety for some individuals who have been caught up in such issues. Is the Minister really saying that indviduals cannot appeal to the European Court of Human Rights? Under clause 1(3) foreign elements can be investigated by MI5, but because we have brought about such an appalling regime of lack of justice, lack of appeal and lack of openness in this country, it will be impossible even to appeal abroad. If that is the case, a new tyranny will be deployed throughout all the available courts in Europe and elsewhere. The Minister is shaming the nation.

The amendment is mild and does not shame our liberties. The Bill is pulling away the last strand to which someone can appeal. For God's sake, the Minister should respond or at least allow the matter to be discussed. He should consider it instead of being afraid of a Report stage. He should send for the Home Secretary--we shall discuss the matter until he returns. At this final stage he should allow that to happen.

I am appalled by what I have seen tonight and by the way in which the Minister has treated his Back Benchers. But I am more appalled at what he is doing to the freedoms of this country. We have seen the record of MI5. Points have been raised about the errors committed by most security services when they are under a dictatorship or when they are not sufficiently controlled. No methods of control have been allowed or considered. There is no measure of appeal. No man who has been burgled can find out whether he was subject to the actions of MI5 or the Security Service. Now the Government are saying that the decisions of the tribunal established to deal with those problems cannot be investigated. We are not all absolutely correct on all issues. Let us leave a loophole through which some errors can be rectified. We appeal to the Minister to do that. If he accepts the amendment, the matter can be considered on Report and the Home Office can consider it again.

I fear that the civil servants have listened with more openness than the Ministers. Perhaps the Prime Minister can be brought to her senses if she is causing this. Above all, the Minister might come back on Report with a paper which said, "Resist, but reconsider at a later stage if forced to." It is late, but we would love that to happen.

Mr. Ian Gow (Eastbourne) : In so far as I understood the speech of the former leader of the Social Democratic Party, he felt that there should be an appellate procedure involving the European Court. Mr. Maclennan indicated dissent.

Mr. Gow : I understood the hon. Member for Caithness and Sutherland (Mr. Maclennan) to say that there should be an appellate procedure involving the European Court. I believe that he was not in his place when, earlier today, my hon. Friend the Minister for Public Transport told the House that the Government's excellent proposals for privatising BREL will require the European Commission's consent. I regard that statement as an affront to the House, and I am against the amendment that I thought was moved by the SDP's former leader. If anything is clear about this country's security services, it is that we do not require a right of appeal using any apparatus involving Europe.

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Mr. Buchan : The hon. Gentleman makes his analysis of what he thought was said, and states that he is not in favour of any appeal involving Europe. However, the Bill concerns itself also with this country's judiciary procedure. Is the hon. Gentleman saying that he is against citizens of this country having access to an appellate procedure in this country? If not, he should support the hon. Member for Caithness and Sutherland (Mr. Maclennan).

Mr. Gow : I was confining my remarks only to the idea that a European tribunal should have jurisdiction over decisions taken under the Bill's provisions. It was at that aspect that I directed my remarks.

Mr. Richard Shepherd : We are signatories to a convention that already makes us liable, should the need arise, to appearances before the European Court. Unfortunately, the Government find themselves in some difficulties in respect of that court. It has found against us on a number of occasions, and that happened also to Labour Governments. The court's existence is a fact, and it is also a fact that we are signatories to the agreement. If my hon. Friend is saying we should tear up the agreement, that is not germane to the amendments before the Committee.

Mr. Gow : I am grateful to my hon. Friend for the opportunity he gives me to say that I deeply deplore the fact that we are a signatory to an agreement that gives to a foreign jurisdiction the right to impose its will on the decisions of the House of Commons and to superimpose its will on United Kingdom tribunals. Because some right hon. and hon. Members still believe that the ultimate tribunal in this land ought to be the House of Lords, and because the SDP's former leader seemed to assert the legal superiority of the European Court, I wanted to make that plain in this my first, my only, and--you will be glad to know, Sir Paul--my last intervention in Committee.

Mr. John Patten : I must disappoint the hon. Member for Paisley, South (Mr. Buchan). I can say no more than that to him.

As to the remarks of the hon. Member for Caithness and Sutherland (Mr. Maclennan)--and I acknowledge the pointed intervention of my hon. Friend the Member for Eastbourne (Mr. Gow)--clause 5(4) does not exclude the Strasbourg bodies, so the European convention on human rights will apply. However, my right hon. Friend the Home Secretary and myself are convinced that the Bill's apparatus for helping the aggrieved citizen--the tribunal and the commissioner--will guarantee that a successful application will never go before the European Court.

I have only one other thing to say. It does not surprise me that no other hon. Member in the Chamber--apart from one member of the Social, Liberal and Democratic party--has put his name to the amendment. I read a rather cruel article about the SLD in the Financial Times yesterday, which said of its Front Bench spokesmen :

"Performances in the Commons have rarely been inspiring, some barely competent, and there is thinly-disguised despair among certain Democrat MPs about the ability and commitment of some of their colleagues."

I know that that did not refer to the hon. Member for Caithness and Sutherland (Mr. Maclennan), because he has been sitting here for the last two days paying close attention to the Bill and making some important points. I must tell him, however, that the net effect of amendment No. 80 is absolutely dotty. It would undermine the security

Column 296

of the state. It would allow an aggrieved citizen to bring before a court of law in this country all the details that would be necessary for the judicial review process, and whether that process took place in open court or in camera, the defence--including those acting for international terrorists--would have available to them all the information that they would simply love to have.

The intention behind the amendment may have been a fine one, but its effect --as I have said--is absolutely dotty, and I urge the Committee to reject it if it is forced to a Division.

The First Deputy Chairman : The Question is, That the amendment be made--

Mr. Maclennan rose--

The First Deputy Chairman : As many as are of that opinion say Aye, to the contrary No. I think the Noes have it--

Mr. Buchan : On a point of order, Sir Paul. The hon. Member for Caithness and Sutherland (Mr. Maclennan) was plainly on his feet with the intention of replying. With respect, this is a Committee stage.

The First Deputy Chairman : I do not think that the hon. Member for Caithness and Sutherland (Mr. Maclennan) was seeking to catch my eye, but if he was, wholly exceptionally, I shall reverse engines and call him.

Mr. Maclennan : I am exceedingly grateful, Sir Paul, and regret that I may not have made my intentions clear.

I listened to the Minister with interest. These matters are at present subject to review in the courts. If it has been alleged that the security services have burgled or bungled their way into the homes of private citizens, they can appear before the courts. The suggestion that that should still be the case does not seem to me as dotty as the Minister has suggested, and to seek--as I did at the beginning of my remarks--an assurance that the jurisdiction of the European Court of Human Rights would not be excluded by the clause is to introduce a matter of considerable importance.

I am bound to say that, in the light of some of the Minister's earlier assurances, given no authority at all, I find it difficult even to accept his assertion that the plain language of the Bill does not mean what it says--which is that any court may not consider these matters, and that the issues

"shall not be subject to appeal or liable to be questioned in any court."

By what rubric of construction is the Court of Human Rights in Strasbourg not "any court" within the meaning of the Bill? What provision of what statute makes this not apply to that court? I ask the Minister to address that question, and unless he does I feel bound to divide the House.

Question put, That the amendment be made :--

The Committee divided : Ayes 66, Noes 139.

Division No. 37] [1.14 am

AYES

Abbott, Ms Diane

Adams, Allen (Paisley N)

Aitken, Jonathan

Barnes, Harry (Derbyshire NE)

Beith, A. J.

Bennett, A. F. (D'nt'n & R'dish)

Bray, Dr Jeremy

Buchan, Norman

Campbell, Menzies (Fife NE)

Cryer, Bob

Darling, Alistair

Davis, Terry (B'ham Hodge H'l)

Dewar, Donald

Dixon, Don

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