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8.41 pm

Baroness Hamwee: My Lords, it is not unusual at this stage of a debate to think that everything has been said and that everyone has said it. Indeed, on this occasion the people who have said it are those who know about the subject. There is one exception, because there is one Back-Bench contribution still to be made. I am sure that what I have said will apply to that contribution as well. Your Lordships are too polite to say, “Well sit down then”. However, like some of us, I acknowledge that I speak from a degree of ignorance and, some might say, naivety. The noble Lord, Lord Hodgson, described his feelings as apprehension. I would say that apprehension does not begin to describe it.

Part 1, which deals with the oversight of intelligence and security activities, had been eclipsed by Part 2 in the comments that we received before this debate. It is interesting, and encouraging, that more attention has been given to Part 1 than I expected. It is very significant, not least because we want to avoid the litigation which may be the subject of Part 2. However, just as the question about Part 2 is whether the Bill has drawn back enough from what was floated in the Green Paper, on Part 1 the question is whether the provisions go far enough to meet concerns to achieve all that could be achieved, or are we in danger of missing an opportunity? That would be a pity given the calls, to which reference has been made, for strengthening the powers of the Intelligence and Security Committee and for making changes to its composition, its staffing and its remit to support that strengthening.

There are a lot of related terms for the functions of such a committee: oversight, examination, supervision and scrutiny. “Oversight” is in the heading of Part 1. I wonder whether that is the right word. The functions described are essentially retrospective, and the ability to put material in the public domain—which, to me, is fundamental and possibly the main part needing scrutiny—is constrained. Indeed, the committee itself may not always be able to access key information. However, to be positive, I note that the functions under Clause 2 adding the operational function, which are new in comparison with the 1994 Act, are there and that is welcome.

Operational matters which are not current are of significant national interest. We might want to unpack what that means later. They also have to be consistent with the memorandum of understanding which Clause 2 provides for. I ask the Minister whether we are able to see a draft of the memorandum of understanding so that we can debate it in context, or perhaps a draft or framework or some clues about the principles referred to in Clause 2.

The new status of the committee is important but, given that its reporting function is subject to prime ministerial edit—other noble Lords have said much the same thing—it still reads as a creature of the Executive. Perceptions are important and it is important to demonstrate independence. I note that what is defined as sensitive information, subject to restrictions on disclosure, is to cover not only the three agencies but also,

“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.

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I accept, as the noble Marquess, Lord Lothian, pointed out, that national security is narrower than public interest.

The role played by government departments in the intelligence landscape is an issue and I do not think that that is an irrelevant comment. For some time, I have been wondering whether the Home Office, for instance, would have a different culture if the Office for Security and Counter-Terrorism were not embedded in it; they are in the same building. Perhaps I may indulge in a small flight of fancy: if the Home Office building were used, for instance, by civil liberties campaign groups, there would be a very different sort of conversation around the water cooler.

One of the difficulties is that, by definition, intelligence is not evidence, as has been said by many noble Lords. The ISC cannot substitute for the judicial process. We have the Investigatory Powers Tribunal investigating individual complaints. Is that worth exploring? I want this committee to be quite ambitious, so is it worth exploring whether it should have some sort of role in dealing with complaints and perhaps even with inspections? I also wonder aloud whether the committee might have a role—perhaps I am about to be struck by a thunderbolt—in confirmatory hearings of senior appointments.

We need to find out how to do these things without jeopardising what is sensitive within the definition. We know that the intelligence services are understandably sensitive about sensitive material. Even if there is too much such material to make redaction practicable, some such role might provide some reassurances.

In summary, I am searching for ways for the ISC to use procedures, not to be hamstrung by them. Others have spoken in detail on Part 2 and I acknowledge how far the Bill is from the Green Paper—and it was a Green Paper. If it is possible for something to enter one’s DNA during one’s late teens and early 20s, the fact that a lawyer should be able to take full instructions from his client worked its way into my DNA as I learnt my profession. It is not a matter of a client giving a monologue, but there has to be a dialogue with questions to the client and a discussion of what will or might be said against him. The noble Lord, Lord Judd, said that the special advocates made it clear that the procedures were alien to their training. Evidence is not evidence unless it is the subject of test and challenge. Almost all speakers have referred to that. I use the term “unease” as a description for my response to what is proposed now. I suspect that no one in this Chamber or who has been involved with the Bill is complacent about it.

Is it possible to loosen restrictions on special advocates to security-clear “normal” lawyers, if there is such a thing? I think that my noble friend Lady Williams suggested that. My noble friend Lord Thomas of Gresford shared ideas about changes in the process. I share a concern that closed material procedure will become the default mechanism—it will become normalised. Like my noble friend Lord Macdonald, I acknowledge that there is a small number of cases where some such procedure may be required to achieve justice. Some call CMP “secret justice”, but that is not a term that I like, because we and the public need to be convinced that it is justice as well as secret.

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I noted the comments that the judiciary is deferential to the Government on security matters. I suspect that the Government may not see it that way, given some of the comments that we have heard about the judiciary over the years. The noble Lord, Lord Faulks, referred to a particular case. I do not share that reading of deference. Instead, I hope that I see the integrity to which my noble friend Lady Williams referred.

Because of that element of my DNA, I was keen during the passage of the recent Protection of Freedoms Bill to pick up an issue that was highlighted by the Bar Council, and I will mention it briefly today because I hope to return to it in Committee. I refer to the issue of legal professional privilege, which ought to sit easily within the Bill. I hope to use the Committee stage to pursue how to prevent the use of RIPA powers of surveillance, covert human intelligence sources, interception of communication and the acquisition of communications data to target legally privileged information while permitting it to be accessed when a lawyer/client relationship is abused for criminal purposes. One cannot do one’s best for a client if he does not have confidence that what he says is privileged and he edits his story. The noble Lord, Lord Henley, who is to respond to the debate, will be familiar with that. He was very helpful in meeting the Bar Council during the Protection of Freedoms Bill and I will trouble him again.

Last week, I had the privilege of judging some awards for good scrutiny. There are many dedicated and imaginative scrutineers out in the rest of the world. It reminded me that some words are not jargon. They are very important terms and they will never go out of fashion. Justice is obviously one and so, too, are transparency and accountability.

8.52 pm

Baroness Manningham-Buller: My Lords, I declare an interest. I spent 33 years in the Security Service, but I also have a strong interest in the rule of law. I retired more than five years ago and the difficulties of intelligence and the civil courts, which is what we are talking about rather than the criminal courts, and the problem of Norwich Pharmacal have largely arisen since I retired.

Some important points have been made in today’s Second Reading, with many of which I sympathise. When we come to Committee, no doubt there will be a number of amendments that will seek to refine and improve the Bill. At this stage, I want to talk about the three main themes of the Bill in the order in which they come. I start with the Intelligence and Security Committee.

In the 1980s, although the noble Lord, Lord Butler, said that the intelligence and security agencies were anxious about such scrutiny, I can remember many in my service arguing for it. We felt that some parliamentary oversight—what those words mean, I agree with the noble Baroness, Lady Hamwee, is not entirely clear—was necessary. We thought that there was a democratic deficit. We found little support from the Prime Minister of the day or from the Government for that sort of committee. Not until many years later, in 1994, did it come into existence.

As the noble Lord, Lord Campbell-Savours, says, what we are seeing here is evolutionary not radical change. It is worth saying that my predecessors, I believe my successor and I have over the years ignored

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the narrow rubric of the Act, which says that the committee should confine itself to looking at matters of “policy, expenditure and administration”. This was always risible because all of those things are intimately connected with the operations of the service. Although we did not do so to begin with, because confidence needed to build up, certainly over the years we have sought to be very open with the committee and, looking for example at the 7/7 report that has extensive details of operations, we have been so.

I never refused to answer a question of the committee. That may have been because the committee itself was quite sensitive in not asking me, for example, the identity of my most important agent in the IRA or al-Qaeda because the committee itself understood that, in order to fulfil its function, it did not need this sort of really sensitive intelligence. The committee will evolve further. From my own view, I do not see a problem with it becoming a Select Committee. I am very interested and flattered that the noble Lord, Lord Campbell-Savours, thinks that he would get more truth from the head of the committee than the Ministers, on which I could not possibly comment. I end this bit by saying that it is very much in the interests of the security and intelligence agencies that parliamentary oversight is as thorough and convincing as possible. This is why, when my name was put forward to be on the committee, I said I could not possibly do it because the committee would be looking at things when I was director general.

This brings me on to the closed material proceedings. I understand the very real concern expressed in this House and outside that what the Government are proposing in resorting to secret justice—probably itself a contradiction in terms—is to conceal wrongdoing and to protect what should rightly be exposed. From my reading of it—and I accept that a number of bits need amendment—the Bill tries to address serious dilemma in very few cases, though we can argue in Committee how well.

I am interested that the noble Lord, Lord Macdonald, and the noble Baronesses, Lady O’Loan and Lady Hamwee—and probably many others earlier in the debate, I cannot remember—acknowledge that there may be some small, narrow band of cases where the dilemma on how to deliver justice is to bring highly relevant but sensitive material that would be excluded by PII into court and not keep it out. It is surely fair to claimants and to defendants in civil cases that such material is put in. The judge will decide whether it will be a CMP procedure.

Currently, a number of serious distortions in small cases seem to occur. Allegations become facts because they cannot be defended. Settlements presume guilt, even when the Government admit no liability. Perhaps almost more importantly, claimants may get financial satisfaction, but only that. Whether through these proposals or others, we need a way that is safe to test the allegations, some of which, as the noble Lord, Lord Pannick, said, are extremely serious and of the gravest nature against the Government and agencies like my own. These need to be properly investigated by the court and a determination made, which, I suggest, cannot happen without secret material.

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This brings me to Norwich Pharmacal, which is new to me. I am interested to hear from present members of the parliamentary committee that it is already seriously damaging the exchange of intelligence, perhaps from a false perception of what the High Court determined.

The control principle is a pretty fundamental one. If we threaten and undermine it, we will be the losers. There is an exchange of intelligence around the world, not just with the Americans. All our European friends produce hundreds of pieces of information a day. It comes from Australia, New Zealand and Belgium—not much from Belgium, but a bit. We receive lots from France, from Germany, from Spain and from friends in the Middle East. We receive intelligence from countries and states that are not friends, and whose intelligence exchange has to be carefully handled. There is an enormous amount of intelligence.

The sources of foreign intelligence, just the same as those of our intelligence, are often fragile. Human sources can be exposed and killed. They have Article 1 rights to life just the same as other people. Technical sources can be quickly compromised and rendered useless. Other countries will not share with us if doing so jeopardises, or they judge it to jeopardise, their sources of intelligence. Who can blame them? We would do the same. We will not always or, indeed, even usually know or be able to judge the risk to their sources. Of course they make a judgment before handing us the intelligence, but if the judgment is that that would risk exposure, they will not hand it over. We need that intelligence when faced with a globalised threat.

I had further points I wanted to make in my speech, but many of them have already been covered by other speakers. I shall therefore end by saying that I have heard a lot in the debate about the conflict between liberty and security. Fundamentally, I feel that these are not concepts that should be in conflict. Security underpins liberty and, as I said in my Reith lectures, without security there is no liberty. I should say that I agree strongly with the comments of the noble Baroness, Lady Williams of Crosby, on that. When we reach the Committee stage, I hope that it is within our capability to pass an Act that damages neither liberty nor security and delivers justice that, while it is not open and therefore definitely second best, is better than the absence of justice in a very narrow range of cases where the use of highly sensitive material in court is necessary.

9.02 pm

Baroness Smith of Basildon: My Lords, we have had an interesting and informative debate and I hope that the Minister is grateful for the detailed and useful comments that have been made. They are an indication of the kind of debate we will have in Committee, which I think will be very constructive. Not only has this debate been worthwhile and informative, but I was struck by where the areas of agreement are, where the areas of disagreement and concern are, and where there is broad agreement on those areas of disagreement and concern, if the noble Lord follows my logic.

I suppose that I have to declare a non-interest in that I am one of those who the noble Lord, Lord, Lord Hodgson, referred to as an “outsider” and who

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my noble friend Lord Judd called a “flat-footed layman”. However, I should say that in the debate today the majority of speakers were non-lawyers—only narrowly, but we made the majority. I would argue that while it is a legal debate and there are strong legal implications or stages, it is not just a legal debate. As the Minister said when he introduced the debate, these are complex issues that go to the heart of our democracy and our security, so the Government have to find a correct balance that takes into account our national security while not losing sight of individual rights. As many noble Lords indicated, there are times when finding that correct balance is challenging.

I was interested in the analogy drawn by the noble Baroness, Lady Berridge, of the statue of Lady Justice and her seven scales. I know she meant it to be an amusing comment, but there is a lot in it which reflects how complex and difficult these things are. She made quite a serious point in that regard. What is clear is that the level of expertise available in your Lordships’ House to contribute to this debate will try to seek the consensus that the Government originally referred to. It might be that one of the reasons the Government started the Bill in your Lordships’ House was to make use of that knowledge, experience and expertise.

If I may digress slightly, noble Lords may recall that in making the case for an elected House with 15-year terms, the Deputy Prime Minister Nick Clegg described your Lordships’ House as having a “veneer of expertise”. That is hardly the case today. We have not seen a veneer of expertise; we have seen very strong expertise, not just from the lawyers that I have mentioned and senior members of the Bar and the judiciary, but members and former members of the Intelligence and Security Committee and the Constitution Committee, those with professional experience of security agencies, those with experience of government, former Ministers, journalists and those with a record of standing up for the protection of civil liberties and human rights. I think that the Deputy Prime Minister also said that the knowledge in the Lords was 40 years out of date. The collective knowledge in this House goes back well beyond 40 years but it is also up-to-date, and that will be very valuable as we progress to Committee.

I do not want to dwell in any detail on the Ministry of Justice issues that my noble friend Lord Beecham has already referred to, but will focus mainly—although not exclusively—on Part 1 of the Bill regarding the oversight of intelligence and security activities. The noble Lord, Lord Butler of Brockwell, referred to the “modernisation” of the committee. I always baulk slightly at the word modernisation because it often means technology and doing things differently for the sake of it. But I think he went on to describe the kind of progress that he was seeking and perhaps the words “progressive reform” might be a better way of looking at this.

The Bill seeks to reform the ISC by giving it the formal statutory function of overseeing the wider intelligence community, not just the agencies but including counterterrorism and the Home Office. It provides for retrospective oversight of operational activities, as happened once before with the 7/7 report that we have heard about. It also provides the power to require information from agency heads, with a veto only by

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the Secretary of State—or Minister if it is the Cabinet Office—and that Parliament will elect the ISC from a list put forward by the PM after consultation with the Leader of the Opposition. The proposal is that the chair should be chosen by members of the ISC, not the Prime Minister.

In the main, we support what are sensible proposals to strengthen the ISC’s power of scrutiny, which stem, I understand, from the ISC’s own report, published last summer. There is widespread support for improved oversight and scrutiny, but a number of noble Lords, including my noble friend Lord Campbell-Savours and the noble Baroness, Lady Manningham-Buller, asked whether these proposals go far enough and whether there was scope to strengthen them further. It would be helpful to consider a number of additional items to improve the scrutiny and oversight; for example, for the ISC or its chair to have a greater ability to view individual cases, such as control orders, or for the chair to be a senior opposition MP.

The Government should also consider authorising, where appropriate, some of the committee’s hearings to be held in public in order to strengthen public confidence in the committee. In the same vein, we believe it would be helpful and would benefit public accountability for the agency heads to come before the committee in public once a year, just as they do in the US Congress. Furthermore, we want to give further scrutiny in Committee to the ministerial veto over the release of information. Specifically, we want to probe the Government’s definition of “sensitive information”. I will come back to that because it was raised by several noble Lords, but we want to probe what the Government mean by the definition in sub-paragraph (3)(b) of paragraph 3 of Schedule 1, which refers to,

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

I am not clear why this is necessary over and above the test of national security and sensitive information.

As the Bill progresses, we would also be interested to hear the justification for Clause 3(4). It allows the Prime Minister to order the exclusion of part of the committee’s report to Parliament if the Prime Minister considers, after consultation with the ISC, that it is prejudicial to the discharge of the functions of any of the agencies.

I move on to Part 2. Clauses 13 and 14 relate to the Norwich Pharmacal jurisdiction. This has been referred to today by a number of noble Lords. In discussing its implications, there are two issues: first, whether the Government have correctly identified the problem and, secondly, whether they have correctly identified the solution. As we have heard, the Norwich Pharmacal case was an intellectual property rights case in 1974. It set the precedent of residual disclosure jurisdiction, whereby the courts can order disclosure of information by a third party—neither the plaintiff nor the defendant—if the following conditions pertain: the information is required in order to bring action against an alleged wrongdoer; the third party against whom the order is sought is “mixed up”, however innocently, in the wrongdoing; and the third party is in a position to provide the information sought.

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Clearly, in 1974, no-one envisaged the extension of this case to intelligence—that was never the intention—but the Binyam Mohamed case in 2010, mentioned already, highlighted the possibility of application of the principle to the disclosure of foreign intelligence. I understand that there were other cases as well. According to the Government’s independent reviewer of terrorism legislation, David Anderson QC, this case also prompted concerns among our intelligence partners that the UK Government could no longer guarantee the control principle, which is that intelligence shared with us would not be published by our courts. There is an interesting quote from David Anderson QC, who says:

“The realisation that secret US material could in principle be ordered to be disclosed by an English court, notwithstanding the control principle, and that the Government had no power to prevent this from happening, appears to have come as a genuine shock to many influential people in America”.

I must say that until the noble Baroness, Lady Manningham-Buller, spoke, I was quite disappointed that so much of the debate centred around intelligence sharing and our relationship with the Americans. As the noble Baroness pointed out, there are many other countries with which we share information and which are valued intelligence partners.

We appreciate that the control principle is a central understanding of our intelligence-sharing relationships with other countries and it is therefore essential to provide the necessary assurances to our international partners that this will be safeguarded. We must also recognise that there are profound implications of Norwich Pharmacal in terms of jeopardising foreign intelligence sharing, and the evidence seen by David Anderson QC appears to justify these concerns. Therefore, any solution must provide adequate guarantees to our foreign intelligence partners that intelligence shared will not be forcibly disclosed.

However, as has been rightly indicated by several noble Lords in the course of this debate, the key question here is whether the Government’s proposals to resolve this problem, in the words of David Anderson QC again, provide “proportionate limitations” to the Norwich Pharmacal precedent. We can support the direction of the Government’s policy, but we want to work with them to get the detailed definition of the clauses right. We will wish to probe some of our concerns around, for example, the Government’s definition of sensitive information, and specifically how tightly this definition is drawn. The first point of principle is whether it does the job that the Government say it does—that is, whether it provides the necessary assurances for our foreign intelligence partners. However, equally important is whether it is drawn more widely than is necessary for the specific purpose of safeguarding that control principle. The noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Pannick, both queried the extent of the definition of sensitive information, as did the noble Lord, Lord Macdonald. We want to probe the Government further on exactly what they mean in their definition of sensitive information. We also want to know what they mean by,

“information relating to an intelligence service”,

and the justification for that inclusion as part of the definition of sensitive material.

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In relation to the public interest test under Clause 13(3)(e) of the definition, we will want to probe further what the Government mean in Clause 13(5)(b) by the interests of international relations. The noble Lords, Lord Dubs and Lord Macdonald, also referred to this. The clause refers to the damage,

“to the interest of the international relations of the United Kingdom”.

I can certainly understand the need to act in the interests of national security and appreciate the importance of international relations, but we will need to be assured that this will be in the public interest as defined by the Bill and not for reasons of political expediency on the part of any Government. As the noble Marquess, Lord Lothian, said, something cannot be excluded merely because it is embarrassing to government.

I do not recall mention in today’s debate of the fact that the proposals seem to extend wider than simply information derived from foreign agencies but also cover information originating from our own agencies that relates to foreign countries. The justification for that cannot be on the basis of preserving the control principle, because it does not relate to information shared with us by our foreign partners. Therefore, we would be interested to hear the Government’s explanation and justification for their intention to extend the scope of the Bill in this way.

The noble Lord, Lord Pannick, referred to open, natural justice being a constitutional principle but not sacrosanct, but he made it clear, taking up the point made by my noble friend Lord Beecham in his introduction, that we need far more information from the Government on whether this is justified. Like the noble Lord, Lord Lester of Herne Hill, we are not in principle against closed material procedures, but their use here would require a very high bar. The Government have yet to provide sufficient information to reach that bar. The noble Lords, Lord Pannick and Lord Macdonald, said that the case had not yet been made and both gave very interesting examples of how PII could be used in some enhanced form to create what the Government are seeking. If the case for CMPs relies on the 27 cases that the Government have spoken about, it is clear that a greater examination of those cases is necessary. That will require a far longer, more in-depth study by the independent reviewer or the ISC, because far more information on those cases is needed.

This has been a useful and interesting debate which has given us good material for the next stage of the Bill. If the objective of your Lordships’ House is to improve the legislation, the experience that was on offer in today’s debate and the information gained from it will enable us to do that.

9.17 pm

The Minister of State, Home Office (Lord Henley): My Lords, this has been an interesting and long debate. It seems quite a while since we started at 3 pm. We have got through some 22 speakers and I find myself being the 23rd. It is a short Bill, of some 16 clauses, but it raises some pretty big issues and has attracted a very distinguished congregation—if I may put it in those terms—to speak on it.

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There has been some comment about the number of lawyers here today, and I was very grateful to the noble Lord, Lord Dubs, for being the first to point out—echoed by others—that this is not just a legal Bill and not just for the lawyers. I was glad that the noble Baroness, Lady Smith, having done a quick count, pointed out that the non-lawyers are in the majority in this debate, which is probably as it should be. However, as the noble Baroness said, it has attracted a lot of other distinguished speakers. We are very grateful for the presence of all those who are members of the JCHR and the Constitution Committee; all those who, like my noble friend Lord Lothian and the noble Lord, Lord Butler, are currently members of the Intelligence and Security Committee; and former members, self-described as part of the awkward squad, in the form of the noble Lord, Lord Campbell-Savours.

We are grateful for all that, and I hope that, as part of this debate and a fairly lengthy Committee stage and other stages, we will be able to go some way towards achieving the consensus that the noble Lord, Lord Lester, was looking for. It will not be possible to get consensus on every item, because I think that there are some fairly deeply held views that cannot be brought together, but I am sure that there are many things on which we will be able to get agreement. I am sure, too, that we will make every effort to ensure that the best possible Bill leaves this House to go on to another place. As my noble friend Lord Faulks, stressed, we need a very thorough Committee and later stages.

As I said, it is a short Bill that raises some extremely big issues. My noble and learned friend Lord Wallace took it in its proper order. He dealt first with Part 1 and then with Part 2 on the restrictions on the disclosure of sensitive material. If noble Lords will bear with me, I prefer to take it the other way round, because there has been far more talk in the debate about Part 2 than Part 1, but I will get to Part 1 in due course. I must also say in my opening remarks that it will obviously be very difficult for me to answer all the points put this afternoon in the necessarily shortish speech that I have to make, but I shall try to cover some of the broad themes. I hope that my noble and learned friend and I will be able to write to noble Lords and copy those letters to others as appropriate after the debate and ensure that we get those letters out before Committee, which, I understand, will be in the week commencing 9 July, so we have a little time to do that.

I begin with Part 2, with CMPs and Norwich Pharmacal. That has obviously excited most of the debate. Like my noble and learned friend the Advocate-General, I believe that the case is made to change how we deal with sensitive information in our courts. The novel application of Norwich Pharmacal jurisdiction to national security information has had consequences with key allies, as many noble Lords mentioned—I think the first was the noble Lord, Lord Butler. It is not just America, as some have implied, it is all our key allies. However, the provisions in the Bill are not driven solely by our intelligence partners. Secret intelligence generated by the UK’s own security and intelligence agencies could be liable to be disclosed as well. Parliament has recognised that the work of the security and

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intelligence agencies is of a special type. Information is core to their work and special arrangements already cover how they use and disclose it.

Although we all aspire to be able to hear every court case in open court with all relevant information disclosed to all parties in the case, I think that most noble Lords have accepted that there will be times when some of that information cannot be disclosed without damaging the public interest. The question we must put to ourselves—this will take some time in the course of our debate in Committee—is how we deal with that situation. Settling cases or asking the court to strike them out as untriable, may mean that claims, often making extremely serious allegations, can go unexamined and we are unable to get to the truth of what happened. I do not believe that that is justice.

PII has been another approach. It enables cases to go ahead with fully open proceedings but at the expense of excluding relevant and sensitive material from the case. That can work in some cases, but there are times when it does not—for example, where a case is saturated in sensitive material, as David Anderson QC put it. A successful PII application can render a case untriable or leave the Government unable to defend themselves without damaging national security. That can be unfair for claimants or for the Government.

CMPs have been the solution to that problem and they have worked successfully in a number of contexts. The noble Lord, Lord Butler, said that they were the least worst option. My noble friend Lord Lothian described them as being, on balance, about right. Openness is sacrificed for part of the proceedings, and this enables all relevant material, including national security sensitive material, to be taken into account by the court, but it is done in such a way that the proceedings are fair and the interests of any party excluded are properly represented. The Supreme Court has stated that it is for Parliament to decide what the procedures should be for dealing with such cases. The Government produced the Green Paper and we listened to the views. Again, many noble Lords, I think particularly my noble friends on the Liberal Democrat Benches, have accepted that we listened to the views and have moved forward a great deal from what was in the Green Paper and put forward for public consultation. We have brought forward the amended proposals in this Bill.

Noble Lords have highlighted a number of key issues in this debate and those discussions that we will have during subsequent stages of the Bill will obviously let us explore whether the Government have the balance right in these important matters. Perhaps I might deal with one or two of the points that have been raised that deserve some response at this stage, if I can find the right bits of paper—they are all here but in a strange order.

First, I wanted to cover the points made about special advocates and the recent paper that they put to the Joint Committee on Human Rights. I have seen their evidence, which I believe was published last week. The special advocates are reiterating arguments which they have made and, in effect, have had rejected by the courts. To some extent, special advocates do themselves a disservice. They are extremely effective, particularly in arguing in court that more information

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should be disclosed, and have helped to win cases by challenging closed evidence on occasions. The best way of dealing with this would be to quote what the noble and learned Lord, Lord Woolf, said in M v Secretary of State for the Home Department. He stated:

“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC … We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.

I commend that to the special advocates and would suggest that they reflect on it.

I turn to the Binyam Mohamed case, which the noble Lord, Lord Lester, raised and has dealt with. He probably knows more about it than anyone else. On the information revealed in that case and whether it was in the public domain, my understanding is that the Court of Appeal ordered that seven paragraphs redacted from the Divisional Court’s judgment, which contained a summary of US intelligence reporting, should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. The judge in the US did not put the contents, or a summary of the contents of the US intelligence reporting provided to the UK, into the public domain. The court made findings of fact based on allegations about Binyam Mohamed’s treatment that were not challenged by the United States Government.

I turn from that to the questions raised by the noble Baroness, Lady Ramsay, about the Bill’s provisions on intercept and how the evidence to support the conclusions of the Privy Council’s report on intercept would be used in criminal cases. The amendment contained in this Bill to Section 18 of RIPA lifts the prohibition in Section 17 of that Act so that intercept material can also be discussed in a CMP. This is in line both with other, existing statutory CMPs and with our desire to take account of all relevant information in CMPs.

As the noble Baroness knows, the Government are separately conducting an extensive and detailed review in order to assess the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. This work continued under the guidance of the cross-party group of Privy Counsellors that she referred to. It will report in due course. I appreciate—I answered a question on this a few months ago—that we have been using that expression “in due course” for some time. However, I think that it underlines the very great difficulty of coming to a reasonable solution in this matter. I myself have changed my views this way, that way and again, and I know other far more distinguished people than me who have looked at this in much greater detail than I have who have also found it very difficult to come to a final decision. However, the process will continue. I was grateful that the noble Baroness referred to the work being done by the distinguished body of Privy Counsellors that is dealing with that.

The noble Lords, Lord Dubs and Lord Pannick, and other noble Lords, dealt with the whole question of whether it was for the courts to decide between PII or closed material proceedings. We are not convinced

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that the question of whether there should be a PII claim or a CMP should be left to the courts. It is a very important constitutional point that the Executive in the end have to be the guardian of the United Kingdom’s national security interests. Obviously, the courts will play an essential role in scrutinising the Government’s exercise of these functions. However, we believe that the question of whether to claim PII, and, accordingly, a CMP, should be left to the Home Secretary.

Similarly, the noble Lord, Lord Macdonald, suggested that a CMP should be held only after a full PII exercise, but we believe that it would be costly and illogical to go through a potentially lengthy PII process first. It may be obvious at the beginning, for example, that too much will be excluded. We understand that the Lords Constitution Committee did see the need for full PII; the report says that we can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to a CMP.

Lord Pannick: Does the Minister at least accept that a CMP should be a last resort if, and only if, there are no effective means of addressing all relevant factors?

Lord Henley: That is a point that we will consider at much greater detail when the noble Lord puts down his amendments, which I am sure will appear. We will discuss that in Committee and no doubt at later stages. The point is that at the moment I am making our case and want to clear the arguments in detail. That is why I was rather loath to take too many interventions in this winding-up speech. I appreciate that my noble and learned friend took some seven interventions in opening, but on this occasion I am going to resist most of them, because the important point is that we discuss these matters in Committee, when we can deal with them in greater detail. The noble Lord will then be allowed to intervene to his heart’s content.

I see that my time is beginning to run up, and I want to get on. However, I shall say one more thing on this. I will deal with the question on sensitive information in Norwich Pharmacal clauses, which a number of noble Lords—my noble and learned friend, Lord Mackay, and the noble Lords, Lord Pannick and Lord Dubs, for example—all seemed to think was somewhat too wide. I must stress that this is the definition in the Norwich Pharmacal clauses; I appreciate that the noble Baroness also raised the definition of sensitive information for the Intelligence and Security Committee in Schedule 1, but that is obviously a different matter.

The fact is that virtually all material sought by Norwich Pharmacal applicants from the security and intelligence agencies is material the public disclosure of which would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from agencies; they seek information specific to them that would be held by an agency and available only from that agency. If it was information necessarily derived from sensitive sources or from techniques or capabilities from a foreign intelligence department, all or any of that could be damaging to the public interest if disclosed. The approach taken in the clause in the Bill mirrors the protection of such information found, for example, in the Freedom of Information Act.

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I turn to the less controversial part of the Bill, Part 1—if I can find the right part of my notes—which deals with oversight. This part had somewhat less coverage than the rest of it, but, after the speech from the noble Lord, Lord Campbell-Savours, and the interventions from the noble Baroness, Lady Smith, I am beginning to understand that it might generate just a bit of controversy and I might have some work to do, unlike my noble and learned friends, as I do that part of the Bill in Committee. I did not want to overlook the important changes that we are making to this and it is right that we should periodically re-examine the way in which we scrutinise that work. Again, I pay tribute to the current members of the Intelligence and Security Committee.

We are grateful to the noble Lord, Lord Butler, and my noble friend Lord Lothian for sharing the benefit of their experience of sitting on that committee. I am also grateful for the views that we heard from the noble Baroness, Lady Manningham-Buller, particularly what she said about trusting the head of the security services far more than she would trust Ministers. I will take that on the chin. I think she was echoing what the noble Lord, Lord Campbell-Savours, said, but she echoed it with approbation.

I recognise the experience that the noble Lord, Lord Campbell-Savours, has, and I am pleased that we will have an interesting time in Committee on that aspect of the Bill. The noble Baroness, Lady Ramsay, was concerned about the membership and thought that there was scope in the Bill for more Members of this House. I do not believe that there is any detail in the Bill about how many there can be, but I think the current rules are that at least one must come from each House, so it would be possible to have eight Peers and one Member of the Commons, or it could be the other way around. It will be for the Committee to decide what the appropriate number should be. That is something that we can discuss.

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Lord Campbell-Savours: My Lords—

Lord Henley: My Lords, I will give way for one last time.

Lord Campbell-Savours: Prior to us going into Committee, might the Minister find out for what reason it is not to be a parliamentary Select Committee, as against the structure proposed? There must be some explanation.

Lord Henley: Again, my Lords, I was interested in the noble Lord’s suggestion. I do not think that it is necessarily the right path to go down, but that is the sort of point that we need to argue about and try to reach some agreement on in Committee. I am sure that the noble Lord will put down amendments and that we will have the opportunity to discuss them. I look forward to hearing the views of his Front Bench and other Members of this House.

I have more or less used up my time and have answered a mere tithe of the very good points that have been raised. As I said, we are going to have a detailed Committee stage in due course, when we will get to a lot of these detailed points. I look forward to that process, as does my noble and learned friend. Both of us will write a number of letters over the coming weeks that we hope will at least make it easier to deal with these matters. With that, I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 9.39 pm.