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Column 227I do not expect the Home Secretary to do anything to facilitate the passage of Socialism in Britain through parliamentary or any other means, but those who believe that Parliament can be used to achieve fundamental change in our society have a right to try to achieve that fundamental change. In the end, the issue will be decided at the ballot box. The electorate will decide, not the secret service agencies or the extra-parliamentary forces of the Conservative party.
Amendment No. 47 and all those that seek to prevent the use of violence to overthrow systems that we would support should be enshrined in the Bill. But we are suspicious that, despite all that the Home Secretary has said at the Dispatch Box this evening--no doubt he means it seriously and sincerely --he is not prepared to incorporate it in the Bill. He cannot blame us for suspecting that he does not believe what he has said today and that he has no intention of enshrining it in the Bill.
Mr. Stuart Randall (Kingston upon Hull, West) : This issue has roused much passion in the Committee. It has been an interesting debate and I hope that there will be some movement by the Government. The matter has been considered in a completely non-partisan way. It is almost a House of Commons issue. Parliament should have its wishes taken into account in this matter and I hope that the Home Secretary will accept the amendment.
The Bill has been dealt with in a rush. It has had only two days in Committee, yet there is so much to discuss. There is little in the Bill on civil liberties, and the fact that threats to national security do not include lawful advocacy, protest and dissent, must be in the Bill if we are to make any progress on civil liberties. Undoubtedly, the Committee wants change, so I hope that the Home Secretary will do that.
Unlike some other hon. Members, I believe that the Home Secretary has not written off the matter. I listened carefully to his words and he said that we cannot be sure today. I hope that the Home Secretary will give further consideration to the matter and I believe that the House expects him to do so. My right hon. Friend the Member for Blaenau Gwent (Mr. Foot) spoke passionately about the matter and I know that he carried the Committee with him. I believe that, secretly, he carried the Home Secretary with him.
What does the Home Secretary consider to be the mechanisms open to us? This is a Committee of the whole House, which is a fairly unusual procedure. The Bill will not have a Report stage, so how can we deal with this matter?
Mr. Randall : The Minister says something about the Committee. Like my hon. Friend the Member for Paisley, South (Mr. Buchan), I feel strongly that we should deal with this matter in the House of Commons rather than rely on the House of Lords, so will the Home Secretary tell us how we can give further consideration to the matter?
Mr. Bennett : Will my hon. Friend accept that it is not guaranteed that there will be no Report stage? However, the signs are ominous because the Government have not tabled any amendments and unless an amendment is carried in Committee the Bill will not have a Report stage. It would be perfectly possible for the Government to facilitate a Report stage by accepting one amendment. I believe that it is even possible for the Government to table a procedural motion. Will my hon. Friend press the Home Secretary and persuade him that it would be better to have a Report stage, where action can be taken, rather than to go on to Third Reading, in which hon. Members can merely vote for or against the Bill? I imagine that it has already been fixed up through the usual channels to have a day's debate for Third Reading, but it would be better to use that day for Report and Third Reading.
Mr. Randall : I know that my hon. Friend is good on procedural maters. I hope, therefore, that following the point that he has made, the Home Secretary will accept the amendment. It is important that something should be done tonight. From what the Home Secretary said earlier, I believe that he may not want to rush into any action on this tonight. That has caused me some confusion. I am trying to make some optimistic sounds and I am taking the Home Secretary's words at face value. If the Home Secretary requires time to consider the suggestion, it seems that the Government will not accept an amendment tonight. The Committee is in a dilemma.
I would like the Home Secretary to explain the possible options for accepting, in particular, amendment No. 47. The Committee, unquestionably, supports that amendment. The existing wording in the Bill is open to subjective interpretation. I do not want to repeat all the arguments, expect to say that the Committee supports amendment No. 47 and the Home Secretary would do the Committee a serious disservice were he not to accept it. I believe that, in his heart of hearts, he wants to accept the amendment. It is a step in the right direction inasmuch as it concerns civil liberties--unlike the Bill. It would be good for the Committee and the country if the Home Secretary were to accept amendment No. 47.
Mr. Maclennan : Almost no hon. Member has raised a voice against amendment No. 47. The only hon. Member who has sought to reject it is, of course, the Home Secretary. However, he is duty bound to listen to the voice of the Committee, which has been virtually unanimous on the matter. The problem has arisen because the Home Secretary has sought to incorporate in statute guidelines that have been used hitherto for the conduct of the Security Service. However appropriate the guidelines may have been for a non-statutory body--and one must call into question whether they were appropriate, in view of the embarrassments to the Security Service that there have been over the past decade from a number of its activities that took place improperly, as no one denies--it is not appropriate to incorporate them in legislation. All
Column 229legislation that empowers must be precise in its language and make clear which categories of behaviour are legal and which are not. The Home Secretary has said that he does not want to define the phrase "national security" and that is why he has rejected the approach in amendment No. 47. He has said that he does not wish to define national security because he believes that there are circumstances that cannot be taken care of, by definition, in advance. That is not so. There are no circumstances that are incapable of being provided for if the language used is sufficiently broad to cover any action that constitutes a threat to national security. Because the Home Secretary will not define national security, an immense door has been opened to abuse. It is not part of my case--nor of the case of those who have tabled the amendments--to suggest that abuse is our main concern in setting up a statutory basis for the Security Service. Our concern is that we should have a Security Service that is effective, efficient and accountable and that protects the nation against threats to its life and well-being, which we all recognise exist. If we say simply that the service exists to protect the nation and national security, we open the door to subjective judgments about wherein national security lies, and the definition of what is a threat to national security may become so wide that abuse is inevitable.
I do not accept the suggestion made by the hon. Member for Paisley, South (Mr. Buchan) that the Home Secretary is a naturally liberal man. However, I believe that he is an extremely intelligent man who uses language with care and precision. I think that he has confused the issue slightly by suggesting that there is a definition of national security in the illustrative phrases which follow the words "in particular". He seems to be suggesting that the meaning of "national security" is set out in the references to
"threats from espionage, terrorism and sabotage the activities of agents of foreign powers and actions intended to overthrow or undermine parliamentary democracy."
Those phrases do not constitute a definition. They are only illustrations ; they are examples of threats to security. They in no way qualify the general statement that it is the function of the Security Service to protect national security. The provision is too widely drawn, and in putting the Security Service on to a statutory basis Parliament has a duty to say what it means by national security.
These matters are capable of very subjective judgments. Perhaps in this debate we have sometimes lost sight of the fact that we are talking about a use of powers by the Security Service which in any other circumstances would be regarded as illegal--in some cases, as a flagrant violation of the civil liberties of our citizens. In those circumstances, we need a definition--albeit a broad definition--of national security if we are not to open a door to abuse which we shall have great difficulty in closing against it subsequently. The Home Secretary says that he has sought to incorporate the concept of subversion set out in the Lord Harris of Greenwich definition. I put it to him, in all humility, that he has not achieved that. In the matter of the construction of language, I believe that he has seriously altered the definition of subversion given by Lord Harris of Greenwich. In the provision that refers to "actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means"
Column 230the Home Secretary has omitted the other half of the Lord Harris of Greenwich definition, which was that such actions had to threaten the safety or well-being of the state. The exclusion of that qualification means that we have no objective test of whether the actions intended to overthrow or undermine parliamentary democracy are such that they constitute a danger or whether they are simply perceived as such by their perpetrators.
Perhaps in the light of my earlier strictures about the absence of definition of national security, the failure to define subversion in a broadly acceptable way is not of great importance. I think that the Home Secretary wished to perpetuate the definition of subversion accepted by successive Home Secretaries which was set out to the Home Affairs Committee in 1984-85 by his predecessor. I hope that he will reconsider his earlier answer because I believe that the matter is of some importance.
When Ministers have taken great care to reflect their intentions in statute and have chosen words that they believe have served well in the past, they are naturally reluctant to review these matters. However, in the simple matter of statutory construction, the Minister has not achieved what he said he set out to achieve. I hope that for that reason, if not for the wider reason that he is willing to accept some form of definition of national security--which I should prefer to be his reason--he will undertake to look again on Report at the definition of subversion and perhaps agree to accept my amendment No. 74, which does not go to the definition of national security but simply seeks to incorporate the definition of subversion as part of a concept that has stood the test of time, and stood it well. Incidentally, it would also allow the wider consideration of other matters on Report. I cannot see how the Home Secretary can resist that suggestion, as it seeks to fulfil the objectives that he himself expressed support for earlier.
Mr. Winnick : On a point of order, Mr. Hogg. Reference has been made to a Report stage. As I understand it, however, no provision has been made for a Report stage. This is obviously an extremely important matter, and the circumstances have clearly been altered, largely as a result of the Home Secretary's statement. The right hon. Gentleman shakes his head, but he knows the feeling of the Opposition, and among some Conservative Members, that there is a need for a Report stage. I wonder whether you could help us, Mr. Hogg.
Mr. Aitken : I intervene to throw my right hon. Friend the Home Secretary a lifeline in the shape of a constructive suggestion. He needs a lifeline because this Committee stage has developed into a true House of Commons exchange of views. My right hon. Friend is in the unfortunate position of the man down a deep hole all by himself, while the rest of the Committee has been making a series of valid criticisms about the highly unsatisfactory way in which the clause has been drafted. My right hon. Friend seems to acknowledge his own unsatisfactory position to some degree. He read out a rather helpful statement, which had the unhelpful dimension to it that it is not included in the Bill.
We are now faced with a clause that includes no definition of national security. I said on Second Reading
Column 231that this is a badly drafted Bill. Following this Committee stage we can all say "Amen" to that. Clause 1 must win the prize as one of the worst drafted clauses in the history of modern legislation. I wonder whether any recent Bill has included a rhetorical flourish which the phrase "in particular" constitutes. It is as though someone were addressing a loyal group of enthusiastic supporters. In effect, all the words after "national security" are merely a rhetorical flourish--a mere illustration. The words "in particular" could perfectly well be replaced by the words "for example" or "by way of illustration". The words "singing, dancing and tightrope walking" might just as well replace the solemn definition
"espionage, terrorism and sabotage".
The list of activities is merely an extravagant addition, by way of illustration, to the central phrase, and the only phrase which matters-- "national security"--remains without definition.
I cannot believe that the other place--with so many minds learned in the law and with so many experienced in parliamentary exchanges--will view the clause with anything other than the grave concern that has emerged in our long proceedings today. I suggest that when the Bill gets to the other place my right hon. Friend the Home Secretary gives an indication that the Government will consider carefully the criticisms that have been made with a view to improving this unsatisfactory definition. At the moment "national security" is undefined. Therefore, the Bill is, in effect, giving a blank cheque not just to the well-meaning Home Secretary of the day, but perhaps to an MI5 in the future which could exercise its formidable powers in distasteful and sinister ways quite undreamt of in the present House of Commons.
Mr. Tony Banks : Would the hon. Gentleman care to push his own Ministers to see whether the Home Secretary is even contemplating bringing something forward in another place along the lines that he has heard us all suggest this evening? Will the hon. Gentleman push his right hon. Friend?
Mr. Aitken : The hon. Gentleman is more or less taking the words out of my mouth. With my customary courtesy, I am endeavouring to give an elegant version of a push to my right hon. Friend the Home Secretary, but he does not often take my advice or suggestions in such matters. However, I hope that he is a good enough
parliamentarian to concede that this is an unsatisfactory situation in which to leave the clause. We have had a long debate and the Home Secretary himself must feel some degree of unease, otherwise he would not have popped up with that convenient definition to reassure us all that the Bill may mean something different from what it says. I hope that my right hon. Friend will take heed of the sentiment of the Committee, which goes right across party lines, and say that in another place he will at least be willing to look at the possibility of accepting a better definition of "national security" than the one that we have now.
Mr. Andrew F. Bennett : I should like to return briefly to this group of amendments. Like my hon. Friends, I feel strongly that the Home Secretary should be prepared to put the words that he read out to the House on the face of the Bill. It would help our proceedings considerably this
Column 232evening if he could make clear at the Dispatch Box either that he will facilitate a Report stage or that he will make that provision in the House of Lords.
I wonder whether you, Mr. Hogg, could give me some guidance on amendment No. 82. I hoped that the Home Secretary would spend at least a minute or two commenting on it, but I realise that he had a lot of other issues to reply to. I wonder now whether you, Mr. Hogg, will allow a separate vote on that amendment at the appropriate point in our consideration of the Bill. If the Home Secretary catches your eye, Mr. Hogg, in a minute or two, perhaps he will say a few words in reply to my comments which would mean that it would not be necessary for me to press for a vote on that amendment. I assume that as we are in Committee it will be possible for us to have votes on other amendments that are grouped with this first group today if we want to do so when we reach the appropriate point.
Mr. Richard Shepherd : I am grateful to the Home Secretary for giving some explanation of what his own clause meant. I had worked on the assumption that by changing to a statutory basis we were trying to put in the legislation a clear mandate of the purpose, functions and powers of our Security Service and of the way in which it defends our liberal democracy, whatever difficulties that gives to some hon. Members in its interpretation.
However, what we have learned today from my right hon. Friend the Home Secretary is that
"The function of the Service shall be the protection of national security".
That is the definition of the function. Nothing limits it, but my right hon. Friend referred to some judgments, opinions, directives, letters and past views of the remit within that--the definition of subversion. I must advise hon. Members of all parties that what was written in the past and what the intentions then were do not matter, nor do the intentions of my right hon. Friend. We are legislating for a law that can be interpreted by courts and what comes before the courts is
"The function of the Service shall be national security". But what is national security? It is whatever the incumbent of the office of Home Secretary or of the Prime Ministership determines it to be. It is an unlimited concept. There is nothing in the Bill to limit it. What does that phrase do? It gives the security services the right to enter premises and to remove documents. That is made lawful by the Home Secretary issuing a warrant on the ground that it is necessary for national security. But what is national security? We do not know. It is whatever the incumbent of the Home Office says. 8.45 pm
That is our anxiety and it is genuine. If we are to stand for anything in this House, that anxiety must go right across the nation. When we give powers to police authorities we say what those powers are about. The Home Secretary said, "I approach this Bill somewhat differently from some hon. Members or from some of my hon. Friends." How right--he does approach it differently. However, the Bill does not set out what the security service cannot do ; it sets out what it can do. We are told in the Bill that the security services can do almost
Column 233anything as long as it is what the Home Secretary determines that they may do on the ground of national security. The Home Secretary would say, "We do not intend to say what they may not do." When we look at any area of our national life and at security in any form, for example, the police force, we have the rule of law and we set out what people may not do, but there is no such injunction in the Bill. Unless I am wrong and unless the Home Secretary points that out, that is an extraordinary position and I am grateful to the Home Secretary for explaining it.
My right hon. Friend the Home Secretary may then go on to say, "Look, here I have a carefully worded statement which will show you that we have always had good intent." I accept that that may have been so in the past and that every Home Secretary that ever was scrupulously went through every activity personally authorising and agreeing it, and only doing good acts and making smiling signs, and being benign in the context of our democracy.
However, we are going further than that. We are giving power to future generations and to future Home Secretaries and no one can assume that they will necessarily be benign. I advise the Conservative party and my hon. Friends that, although we stand for the rule of law and for our fear of the state--I have been elected three times because of the power of the state and in the belief that we were giving power back to the people--we are now saying that the state shall have every power. But who is the state? It shall be whoever is Home Secretary at any given moment. That may be a power that we shall come to regret because no court can question the basis on which this power is granted.
Mr. Nigel Spearing (Newham, South) : Perhaps this point has been mentioned already but it follows immediately and most importantly from the points that the hon. Gentleman has just made. Is there not a grey area in the mind of any Minister between the security of the state and the security of the Administration of the day? There are fundamental democratic differences beween the two about which the Bill, as far as I can see, makes no distinction.
Mr. Richard Shepherd : I acknowledge what the hon. Member for Newham, South (Mr. Spearing) has said because that has been more or less at the heart of our discussions all afternoon. We have tried to set down--it seemed to have some support from all corners of this horse--I mean house but it could be a horse if we were ridden--that there should be a limiting mandate which would try to get out the specific areas of threat in a general way. Although one accepts that it cannot be precise in every detail, it should be a limiting mandate with a limiting clause. The Maxwell Fyfe directive has a limiting clause. We want something like that enshrined in the Bill. We want the functions clearly identified and limits placed on those functions in terms of the lawful dissent which is at the heart of our democracy.
I noticed that my right hon. Friend the Home Secretary in a carefully considered remark said that I was right to refer to the Leander judgment. I genuinely do not now believe, having reread my right hon. Friend's clause--
"The function of the Service shall be the protection of national security"- -
Column 234that it will meet the contentions of the European Court. My right hon. Friend and the Government will have the greatest difficulty in any submission before the European Court of Human Rights in saying that national security is anything that the Minister deems. In a sense, that is the problem that we are experiencing at the moment. The issuing of warrants on that basis will not and does not meet our rule of law in this area.
As my right hon. Friend rightly said, these matters were based previously on prerogative power and for some reason our courts--and Sir John Donaldson --feel that the rule of law is thrown out of the window in the face of prerogative power. Now my right hon. Friend, quite rightly--everyone must applaud it--is putting that issue on a statutory basis. The very first principle, from Dicey onwards, in the law of the constitution is the rule of law. Of course, until today we could not have a statutory definition of what "national security" means because if nothing exists or if it is only under the shadow of prerogative power, one cannot legislate for a little bit of the prerogative power and say that it is still subsumed by the prerogative power because it becomes paramount to the prerogative power.
We are now asked to try to make the paramount power the legislative power. The supremacy of Parliament is enacted as if it were subordinate to and reflective of the needs of prerogative power, but with the added protection that no judge may look behind it. There is the instruction in clause 1(2) that, whatever the Home Secretary says that national security is and issues a warrant for, it is the law of the land. It is enacted by the House, with all its powers, and will reflect the sovereignty of Parliament in clause 1(2) of the Security Service Bill. I notice that in the Official Secrets Bill it is referred to as enacted in 1988, but we can correct that, no doubt, to 1989. This Bill does not meet our contentions as to the balance of the rights of citizens. Again and again my favourite Home Secretary is educating me on the constitution in an almost malign way, because on every issue he is not weighing up that important balance between the rights of the citizen, the rights of this House and the rule of law, which is why I believe that my right hon. Friend should reconsider the fact that there should be a statutory definition as to what constitutes national security.
Mr. Hurd : I have listened carefully to what has been said since I intervened last time. I understand clearly and I have never cast any doubts on the concerns felt on either side of the House about this matter. In my earlier intervention I tried to deal carefully with both the main points which have, as it were, re-emerged in the speeches of the hon. Member for Caithness and Sutherland (Mr. Maclennan) and other hon. Members, and especially in the speech of my hon. Friend the Member for Aldridge- Brownhills (Mr. Shepherd). I set out earlier the restrictions. It is not a matter of the Home Secretary saying that they exist--they are there in the construction of the Bill. My hon. Friend the Member for Aldridge-Brownhills and other right hon. and hon. Members will be able to see that tomorrow in print. Any interested right hon. or hon. Members who re-read my speech on Second Reading will find--in slightly shorter terms, I agree--in column 1115 of the Official Report for 15 December 1988 the same exposition of what the Bill is about as I have made today in response to the right hon. Member for Blaenau Gwent (Mr. Foot). I do not believe that there is a procedural
Column 235difficulty here of the kind that the hon. Member for Kingston upon Hull, West (Mr. Randall) indicated. Indeed, the record should show that he spoke with something of a grin on his face.
We are in Committee of the whole House, and the Committee has spent today discussing a set of amendments to the Bill. I have tried patiently and at length to cover all the points, which I believe I have done, except for the point about economic well-being, about which I am courteously reminded. I believe that I can say quite honestly that the basis of the Bill and the point about national security being a matter for the United Kingdom as a whole really makes any amendment on that matter otiose.
I have set out at substantial length, point by point, why I believe that as we move towards statute the definitions and restrictions of clause 1(3) are a better way of proceeding than the way that my hon. Friend the Member for Aldridge-Brownhills and the Opposition have put forward. I believe that that is right and will turn out to be right. I was not seeking in the statement, which was treated as though it were something new, to divert attention or to add a little piece of sweetness at the top of the Bill, but I was actually defining what was in the Bill on the matters about which the House has shown concern.
The House is in Committee. It has choices before it. If anyone wishes to press these amendments to a Division, we shall see how the Committee feels about them. When I referred to not being able to make up our minds today, I was referring to the effort made in amendment No. 47 to do that and to set out in statute today an exhaustive definition of the ways in which the Security Service should work. It was in that context that I used that phrase. There are, of course, further amendments and other important parts of the Bill to consider, but if the House approves the Bill it will go to another place, where they have eyes to see and ears to hear, and it will be considered. I cannot go further and say that we shall reconsider it, because that would give my hon. Friend the Member for Aldridge-Brownhills, who made the suggestion, an impression that I do not want to give because I believe that it would be unfair. The Bill as drafted achieves the objectives which I stated on Second Reading and again today. I believe that I have shown that. It is now for this House and then the other place to decide whether they agree with that or whether they prefer some alternative formulation.
Mr. Tony Banks : Will the Home Secretary explain why all hon. Members who have spoken, on both sides of the Committee, have felt the need to incorporate into the Bill the interpretation that he actually gave? Why does he believe we want that? Apart from the Home Secretary, not one hon. Member has argued against that. Has nothing that has been said on either side of the Committee given rise to one smidgen of thought in the Home Secretary's head that he should perhaps think about this a bit more and come back with an announcement later?
Mr. Hurd : I have listened carefully. The hon. Gentleman will admit that I have hardly left the Chamber. I have tried to deal with the points, but I am not persuaded by them. The Committee has been reasonably well attended for a debate of this kind but, of course, not overwhelmingly. A good many supporters of the Bill in its
Column 236present form have not found their voices today. I make no complaint about that. That is normal. However, I am sure from my conversations with them that they have thought deeply about the Bill--as deeply as the hon. Member for Newham, North-West (Mr. Banks) has. I believe that if I amplified my answer I should be indulging in vain repetition.
I believe that the Committee has obtained from this Dispatch Box not an addition to the Bill or a change in the Bill, but a rather fuller statement than I gave on Second Reading of what the Bill contains and does not contain on the issues that those right hon. and hon. Members who have spoken have emphasised. That appears to be a profitable and useful use of an afternoon and early part of an evening by this Committee. I believe that I must rest on that. Question put, That the amendment be made :--
The Committee divided : Ayes 141, Noes 221.
Division No. 34] [8.58 pm
Abbott, Ms Diane
Adams, Allen (Paisley N)
Ashdown, Rt Hon Paddy
Banks, Tony (Newham NW)
Barnes, Harry (Derbyshire NE)
Beith, A. J.
Benn, Rt Hon Tony
Bennett, A. F. (D'nt'n & R'dish)
Bray, Dr Jeremy
Brown, Gordon (D'mline E)
Brown, Ron (Edinburgh Leith)
Bruce, Malcolm (Gordon)
Buckley, George J.
Campbell, Menzies (Fife NE)
Campbell-Savours, D. N.
Carlile, Alex (Mont'g)
Clark, Dr David (S Shields)
Clwyd, Mrs Ann
Cook, Frank (Stockton N)
Cook, Robin (Livingston)
Davis, Terry (B'ham Hodge H'l)
Ewing, Harry (Falkirk E)
Ewing, Mrs Margaret (Moray)
Fields, Terry (L'pool B G'n)
Foot, Rt Hon Michael
Godman, Dr Norman A.
Golding, Mrs Llin
Grant, Bernie (Tottenham)
Griffiths, Win (Bridgend)
Heffer, Eric S.
Home Robertson, John
Hughes, John (Coventry NE)