Baroness Williams of Crosby: The noble Lord would not expect me to agree with him, and I do not. However, in our forthcoming discussion on Report, both today and on Wednesday, he will have the opportunity to consider further whether it is not now high time that we accept a greater degree of accountability—one that has to carry with it an ability to limit, in extreme cases, people who would be wholly unsuitable as members of the Intelligence and Security Committee.
Lord Reid of Cardowan: Perhaps I might respond to those two very rational and articulate contributions promoting the idea of a popular vote, as it were, in the House of Commons. I can see the benefits of that and those of ownership. The noble Baroness, Lady Williams, mentioned stakeholding in the House of Commons. However, it seems that at least four problems need to be thought through.
First, the amendment would explicitly exclude anyone from the House of Lords ever chairing this committee. In the previous debate, while not seeking it for this House, we envisaged the possibility that at some stage there might be someone appropriate in this House to chair it. As I read it, the amendment would effectively preclude anyone from the House of Lords—unless it is envisaged that there be a nomination process for this House but that nobody in this House has a vote; only the House of Commons has a vote. The noble Lord, Lord Hodgson, may have been about to suggest that that was possible. It would be a peculiarly quaint electoral procedure for those who were nominating candidates to be precluded from voting on them.
Secondly, it would almost inevitably undermine the possibility of another envisaged benefit of convention: of the place going to the Opposition. It would not preclude it but would make it much less likely that the tradition of the position going to a member of the Opposition would be carried through, if for no other reason than the Opposition being, by definition, a minority in the House of Commons. Anyone from the majority party would therefore have an enhanced ability to achieve the post.
Thirdly, I entirely agree with the noble Lord, Lord Gilbert. As someone who has held relatively recent ministerial experience, I can tell your Lordships that there is no way that the Prime Minister could veto a nomination for the chairmanship of this committee without it becoming a major issue—not least because the person thus vetoed would make it a major issue. Once that was out, there would be all sorts of demands, in terms of natural justice and fairness, to put into the public domain the reasons why a Prime Minister should think them so serious that he or she should veto a Member of Parliament—an honourable Member—who was considered unworthy or somehow deficient in integrity or in other skills from being chairman of this committee.
The fourth reason is that, having known the House of Commons relatively recently, I am not sure that this is a position on which we should envisage political campaigning, but I assure noble Lords that that is what we will get if this position is put up for a 100% franchise in the Commons. Therefore, having listened to what has been said, and appreciating what lies beneath the suggestion that there be an electoral college
for this composed of the whole House of Commons, I think that before going down this road we would have to think very carefully about the consequences that would arise in the dynamism of real politics from such a decision.
Lord Campbell-Savours: My Lords, I want to argue both ways on this issue because I am of a very mixed mind. I shall start by taking on the case put by my noble friend Lord Reid, who said that it would become controversial and difficulties would arise if it were to be subsequently known by the wider public that there had been some dispute over whether the Prime Minister had been prepared to endorse the candidature of a particular candidate. I would have thought that these matters would be dealt with by the usual channels. The amendment refers to seeking,
“in advance of the ballot the formal consent of the Prime Minister”.
In other words, the Prime Minister would be asked discreetly through the usual channels whether he or she might be minded to endorse the candidature of a particular candidate or candidates, and in the event that there were to be a refusal I would not have thought that the candidate who had been refused would want it generally known that the Prime Minister of the day had turned down their prospective nomination for chairman.
Lord Reid of Cardowan: I entirely disagree with my noble friend. Not only would the candidate want it to be known, they might well have a particular reason for wanting to be chairman of the intelligence committee and indeed might even, in a rather covert fashion, be pleased to have been refused the endorsement of the Prime Minister. I do not want to mention any particular such candidates in the House of Commons, but off the top of my head I can think of half a dozen.
Lord Campbell-Savours: If we go back to the speech of the noble Lord who moved the amendment, he never said that any Member of the House of Commons could stand. I had to disappear outside the Chamber for medical reasons, but I understand that the noble Baroness, Lady Williams, argued that any Member of the Commons should be able to stand. However, I do not think that that was the noble Lord’s suggestion. I am presuming that he was moving the amendment on the basis that there would be a membership of the committee that was put to the House on the recommendation of the Prime Minister, and from those members there would then be a person who, with the endorsement of the Prime Minister, could be chairman of the committee. We may be speaking at cross purposes and I stand to be corrected. If the noble Lord is indeed suggesting that any Member of the House could stand to be chairman of the ISC, then I would completely oppose that.
Lord Hodgson of Astley Abbotts: My purpose at this stage, and clearly the amendment has aroused a good deal of interest around the Chamber, was to ensure that we have the widest possible opportunity for people to stand. There are already provisions within the Bill about consultation between the Prime Minister and the Leader of the Opposition and about
the procedure, and I did not see those falling away. As to whether anyone would be absolutely precluded—probably not.
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Lord Campbell-Savours: If it were indeed the whole House, then I would oppose the amendment, and I will explain why. I sat on the committee for five years when the chairman was the noble Lord, Lord King of Bridgwater. In my experience, and this will be the experience of those members of the committee who now serve under the chairmanship of Malcolm Rifkind, I noticed that this relationship was very special. I balance the openness of the Select Committee with, on the other hand, the special nature of that relationship between the agencies and the chairman. There are circumstances in which I can imagine that relationship breaking down. That is why it is an extremely sensitive appointment. You must therefore have a narrower shortlist, to put it bluntly, than simply the membership of the whole House of Commons.
I have another argument as well, although perhaps I am doing somersaults here. I have a reservation. Subject to the shortlist that I have just referred to, I have argued in the past that not only is the relationship between the chairman and the agencies very special, but I would take it far further than the Government propose to provide for in the legislation. I believe that the chairman of the ISC should have access to everything that goes on within the agency—everything operational or whatever—and should be the only person on that committee who has total access. The legislation before us will provide a qualified element of access to operational material, but it will not provide for looking at the activities of the agencies in future. It will essentially be about retrospective operations. Ideally, in the committee that I would like to see constructed, the chairman would have access to everything—future, prospective, current and past operations—but would be the only member of the committee to do so. In those circumstances, the idea that any Member of the House of Commons could stand as chairman of the committee would be ludicrous.
As I say, I have very mixed views. If it comes to a vote, I shall probably vote for the amendment, in the hope that it is much harder to overturn a resolution in the House of Commons when it has come from the House of Lords than simply to initiate a debate on an amendment in the Commons. On that basis, I hope that the amendment is carried.
Lord King of Bridgwater: My Lords, I share some confusion over this amendment. The noble Lord, Lord Campbell-Savours, has asked whether it is intended that the chairman should come from a group that has already been put forward and proposed, while the noble Lord, Lord Reid, made the point about the membership of the House of Lords. As I read the Bill, you could end up with one Member of the Commons and eight Members of the Lords. That is pretty unlikely, but I can certainly see that we have moved from having one Member of the Lords as a member of the committee to having two. I can see a situation in which the new Opposition do extremely badly in an election and are very short of membership in the Commons but still
have to man all the committees and so on. In those circumstances, they might well prefer it if they had one or two extremely well qualified members, perhaps recent Members who had lost their seat and moved into your Lordships’ House and who would be very useful members of the ISC.
Against that background, there would then be the problem, as the noble Lord, Lord Reid, has said, of whether or not the Commons should vote for Lords. I would trust the members of the committee, knowing the ways in which they have arrived on it, to be well capable of deciding who should be their chairman. That is well established practice, as we know from elsewhere. I therefore feel that, subject only to the qualification that the noble Lord, Lord Gilbert, raised, I support the idea that the chairman should be a member of the Opposition. I feel an amendment coming on at Third Reading, and that is one that the Government might like to prepare for.
Lord Martin of Springburn: My Lords, the amendment makes heavy weather of finding a chairman. Most, if not all, members of this committee will have a long history and reputation in both Houses. I do not see where the difficulty would be if at the first meeting the members chose a chairman. I do not see anything wrong with that. That is a tradition that I found in local government. The first time we met after we were elected, we picked a leader of the group. That happens in the House of Lords and in the House of Commons, where I used to belong.
Lord Taylor of Holbeach: My Lords, I have a very full response to give to this amendment, but we have had a very full debate. It has been a very useful debate. I know that it is customary for Ministers to thank noble Lords who have presented amendments, but I thank my noble friends because they have brought to the Report stage an interesting idea about the relationship between the ISC, Parliament and the Prime Minister. Having said that, with even the noble Lord, Lord Campbell-Savours, having some doubts about the efficacy of this amendment, I am at one with the noble Lords, Lord Reid and Lord Gilbert, and my noble friend Lord King in seeing the great difficulties that this election might present. It was interesting to listen to the noble Lord, Lord Reid, analysing the motives that people might have for seeking to be rejected by the Prime Minister as being a suitable candidate. I have little doubt that some people would seek to exploit that situation.
I shall reiterate the Government’s position on this matter. This committee will be elected by Parliament and nominations will be provided by the Government. Parliament will be the final arbiter of who sits on the committee. The Government propose that the chairman of the committee will be elected by the members of the committee. That represents a sufficiently practical solution to the particular task that this committee undertakes. We have had some speculation about whether the chairman of the committee should be drawn from the Opposition. I have given the Government’s position, which is that it is for the committee to decide who should be the chairman of the committee. I do not
believe that it can be done by an election by another place or by this House electing the chairman. For that reason, I ask my noble friend to withdraw his amendment.
Lord Hodgson of Astley Abbotts: My Lords, I am extremely grateful to all noble Lords who have contributed to the debate. I think I am probably the only person who has not served on the ISC. I think all the other speakers have served on it, so I am probably slightly blind-sided on some of this. The noble Lord, Lord Reid of Cardowan, said that the problem is that it would exclude Members of the House of Lords. It may possibly do so, but not necessarily. Secondly, he said that it would prevent the chairmanship going to a member of the Opposition. Again, it may possibly do so, but not necessarily. Both he and the noble Lord, Lord Gilbert, talked about the political fallout. Yes, but this is a very important committee, and it will be even more significant when we pass the rest of the provisions of the Bill. If the price of that is a little political disturbance, I do not think that is necessarily a bad thing. I understand his fourth argument, which was about political campaigning. At this end of the Palace, the arrangements for electing chairmen of Select Committees have gone pretty well. They have been shared out and fought over, and both parties have ended up with some chairmanships, but not all of them.
The issues are answerable. I am not saying that they are not challenging. I say to the noble Lord, Lord Martin of Springburn—
Lord Reid of Cardowan:Just to set the record straight, I have never been a member of the Intelligence and Security Committee, although I have been at the end of some of its pertinent inquiries.
Lord Hodgson of Astley Abbotts: I am happy to withdraw that allegation, if allegation it is. As for what the noble Lord, Lord Martin of Springburn, said about heavy weather, I ask the House to consider that the committee will play an increasingly important role. The Justice and Security Bill, when it becomes an Act, takes us into new territory with closed material procedures in courts. The chairman of the ISC will have a very important determinant role in this. Having a chairman who is selected from a narrow body of people pre-selected by the Prime Minister and the leader of the Opposition is perhaps just a little too cosy. I leave that thought with the House, perhaps for reflection when the Bill continues its passage through the other place. In the mean time, I beg leave to withdraw the amendment.
8: Schedule 1, page 13, line 31, at end insert “and to paragraphs (Pre-appointment hearings) and (Access to meetings)”
Baroness Hamwee: My Lords, my noble friend Lord Marks of Henley-on-Thames added his name to this amendment. Grouped with it are Amendments 9,
10, 11 and 12. At the previous stage of the Bill, we debated the procedure of the ISC. I acknowledge that it can determine its own procedure, subject to any specific provisions in the Bill. That is why my first amendment makes specific mention of two of the proposals in this group of amendments. The group is broadly about the interface with the public or, at any rate, about the face presented to the public and, to pick up a term used by the noble Lord, Lord King of Bridgwater, earlier this afternoon, the credibility of the committee. Given its remit, there is bound not to be that much of an interface, so it is even more important that means are sought to relate it to the public, where that is proper, in order to create trust and confidence. I am thinking about the direct relationship—putting the agencies into the public domain, so far as that is possible—and of the ISC itself, so that it is able to do its job properly.
Amendment 9, the first substantive amendment, is about pre-appointment hearings or, as they are also known, confirmatory hearings. I am flattered that the noble Baroness, Lady Smith of Basildon, has picked up the amendment I had at the previous stage word for word. In fact, after that stage, I decided that one word could be improved on. It is not necessarily wrong, but it could be bettered. It is to change the word “may” in what the ISC can do to “shall”. The public increasingly expect more to be known about senior public sector figures—what sort of people they are, what their aspirations are, how they see the job and how they expect to spend the budget—and to be able to observe their body language on occasions. I say that having watched, on screen rather than in person, a confirmatory hearing in another part of government. I was fascinated by the way that after only a very few minutes of questioning, the person being questioned relaxed so much that the way he was sitting, the way he slumped in his chair, crossed his legs and generally looked far too much at ease for the occasion told me an awful lot about his approach to his relationship with the people who were questioning him. I do not know whether they read it in the same way.
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Given their positions, I would not expect very much about the individuals I have listed in this amendment to come into the public domain. However, that is not because they are civil servants—they are not civil servants. As we were reminded last time by the noble Baroness, Lady Manningham-Buller, they are Crown servants. I had a look at that and it is made entirely clear in Section 1—it could not be much more up front—of the Constitutional Reform and Governance Act 2010, which provides that the provision does not apply to certain parts of what is described as the Civil Service. I suppose that you could be a Crown servant within the Civil Service, but I do not know because this is well beyond my knowledge. In a sense, that is by-the-by for this argument. It seems to me that the public, above all, would expect the oversight committee overseeing these agencies to know about the heads of the agencies. Such arrangements as pre-authorisation hearings could happen without a specific provision but I want to make it clear that I believe that they should happen.
I am not sure whether this drafting of the list of people who should know that they will be questioned is the best way to do it but it needs to be made clear that this is the way in which the world is going and what the world expects. We are not talking about only the heads of the three agencies. Last time, I added—it is included in this amendment—the words,
“such other persons as the Prime Minister may direct”.
As we debated at the previous stage, not all intelligence and security matters are within the agencies, which Clause 2 makes clear.
I support Amendment 11 in the name of the noble Baroness, Lady Smith of Basildon, which proposes annual hearings. In Committee, it seemed clear that there was quite a concern around the House to consider in public what can be considered in public without danger to national security. I sensed an underlying view that this would enhance the reputation of the ISC.
Lord Foulkes of Cumnock: My Lords, is the noble Baroness aware that every year there is a debate, usually in the Moses Room, about the annual report? Has she been able to attend any of those?
Baroness Hamwee: My Lords, no, but I am aware of that. I am seeking to push the boundaries a little further. The noble Lord tuts quietly that I have not been there. Last year, I read the Hansard report when I began to take an interest in these matters. I sense a feeling that this would enhance the reputation of the Intelligence and Security Committee. Amendment 11 would be a broader arrangement than could take place in a debate in either House, whatever its venue, given that it provides for giving evidence before the ISC in a session open to the public. Therefore, it is more extensive.
I am very much alive to the danger to which some noble Lords pointed that questions asked in public can be so feeble, as can the answers, that it can have the opposite effect of just appearing to be completely stage managed and uninformative. I believe that we should give the ISC the scope to do the job that it is doing, and is capable of doing, in private to take it as far as it can go.
I have tabled Amendment 12 about access to meetings and I am aware that I take a different view on this from a number of other noble Lords. That is not because I want all or very many meetings with the ISC to be held in public. My point is that it should direct its mind to the issue. At the previous stage, from those with experience of the current arrangements, we heard ideas of what might be considered in public. Those ideas included recruitment to the agencies, issues of diversity, language, and recruitment from all sections of society. I would add to that retention, which generally goes along with recruitment, and a number of human resources matters, such as sickness rates and diversity at different levels of seniority. The noble Lord, Lord Butler of Brockwell, told us that today the ISC had been considering certain of these amendments. It might have been quite interesting to hear some of that debate in public. As regards financial matters, the cost of the GCHQ facility was mentioned.
All those issues quite properly can be debated, with care that the mark into dangerous territory is not overstepped. I have confidence that that would be
possible and that those debating the issues would be very alert to that. However, it also would be proper that issues of that sort—I am sure that there are others—should be heard and dealt with in public to add to the credibility of the committee. I beg to move.
Lord Butler of Brockwell: My Lords, commenting on what the noble Baroness, Lady Hamwee, said at the end of her remarks, perhaps I may say that it was not today that the Intelligence and Security Committee considered amendments. The committee has not had the opportunity to consider the amendments she has put down. Therefore, in offering a comment, it will be personal rather than on behalf of the committee.
I have no objection to Amendment 9 because it is a permissive amendment. However, Amendment 11 states:
“The ISC shall each year call the heads of the Agencies and the Secretary of State to give evidence before them in a session open to the public”.
In principle, there is no objection to that. Indeed, the chairman of the Intelligence and Security Committee says that it is the committee’s intention to have a public hearing. The arrangements for that are being considered at the moment. However, one would not want this to be a public hearing that is too staged, which would be worse than useless. I would counsel against passing an amendment which makes it compulsory for the Intelligence and Security Committee to have a public meeting each year. That may well be the outcome but there may be times when the work programme simply is not consistent with it. That is my only cavil against that.
I would not be in favour of Amendment 12, which states that the committee,
“shall conduct its proceedings in public, save when it determines that members of the public shall be excluded”.
There would be so many meetings for which that resolution would have to be moved that it would be a matter of public comment and derision, which would reduce confidence in the ISC rather than increase it.
Lord Foulkes of Cumnock: My Lords, I have made a mental note never to tut tut silently in future, especially since that silent tut tutting can be observed by noble Baronesses even about 10 yards away. So I will be careful. The reason why I asked whether the noble Baroness, Lady Hamwee, had been able to attend the debates that we have had in the Moses Room is because, when I served, as I did for four years, on the Intelligence and Security Committee, I had the privilege of introducing and replying to those debates. We had great difficulty in encouraging people to attend and participate. If more Members of the House had attended and participated, it might have added to the information available in the debates that we have had at different stages.
A few years ago, when we had a Labour Government, before the Conservative Government came in, the Intelligence and Security Committee reported to the House on almost all, if not all, the issues that the noble Baroness, Lady Hamwee, has raised—on diversity and all the other points that she raised. We had indications and reports about it, and people raised it during the
course of the debate. Even all those years ago, we discussed holding hearings in public; we discussed that in the debate in the Moses Room, along with the problems and opportunities that might be available if we held them in public. I hope that I am not giving any secrets away in saying this, but I was in favour of moving towards holding a meeting or two in public if we could do that. It is the right thing to do.
It would help and inform the debates that we have on legislation if Members came along to the annual debate. I presume that either the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler, will introduce the report and reply to the debate. Noble Lords would find it a very interesting and educational experience.
Lord Reid of Cardowan: My Lords, there are two issues covered in this group of amendments. The first is the process of appointment of the heads of the intelligence services and agencies and, secondly, the degree to which their proceedings are held in public. Amendment 9 refers to the possibility of the ISC—enshrined in the word “may”—considering,
“the proposed appointment of the following, including … the Head of the Security Service … the Head of the Secret Intelligence Service”,
and so on. I find that an attractive idea; I see no reason why it should impede, and many reasons why it might enhance, the appointment. It would be useful for the Prime Minister, before final ratification, to know the views of the ISC. It would be useful for Parliament to know that the proposed appointee had the endorsement, as it were, of the ISC, given that it will be elected on a wider franchise than Parliament and it contributes towards the ownership by Parliament itself.
The vagueness as to what happens with regard to the committee’s deliberations when such a discussion or questioning of the prospective appointee has taken place is an advantage and a serious disadvantage. I am not quite sure whether the proposal is permissive of communicating negative views on any appointment to the Prime Minister. Does it amount in effect to a de facto veto? It is delightfully vague on those issues.
There is another issue to consider. At the moment there is a relative independence of the heads of the security service and the ISC. If the ISC is being sought as an endorser of the appointment of a particular head of a particular service, in future it may feel more inclined to defend the action of the person that it has appointed. That is not a major concern; it would certainly not undermine the perceived benefits of such a system, which is used elsewhere in the democratic world to no apparent disadvantage—and to advantage with regard to the solidity of the appointment.
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On the public end of the process of inquiries, investigations and meetings of the ISC, Amendment 11 places a burden each year on the committee by the use of the word “shall”. That would be at least three or four further meetings that would have to be held in public. If that was slightly less compulsive and determinist it would be a useful thing to place on the record. My noble friend Lady Smith has made a very sensible
suggestion, but I wish that there was slightly more leeway about it, because precisely at the time when you might want to conduct a whole series of inquiries, at a time of heightened tension and so on, you might find that the provision would overburden you. Amendment 12 insists that the committee,
“shall conduct its proceedings in public, save when it determines that members of the public shall be excluded”.
That would either be hugely burdensome or hugely problematic politically, as has been pointed out by my noble friend Lord Butler.
In general, this group of amendments has much to commend it, provided that there is a sensible application of the public process. Certainly, as regards the questioning of appointees to high positions in the intelligence services, and the heads of intelligence service, it has a great deal to commend it.
Lord King of Bridgwater: I very much share many of the views expressed by the noble Lord, Lord Reid. I am not quite sure where the United States stands on advise and consent now, with the well established practice over there, or whether a strong lobby is still in favour, or whether there are the problems that the noble Lord has identified—I think that he is absolutely correct—in that deciding to consent and back people inhibits in some way the critical faculty that might otherwise apply.
I am pretty sympathetic to the noble Baroness’s amendment. In a permissive sense they have great merit—and, as has been indicated, public hearings certainly could be done. It is something that we have talked about for some time. It might be pretty disappointing for a public expecting some startling revelations to emerge. Also, I assume that if they were public they would probably be televised as well. While I am very grateful to the tribute paid by my noble friend to our former colleague, Lord St John of Fawsley, there is one great problem about Select Committees when they are televised, which I certainly appreciated not having to bother about when I chaired the ISC. Every member of the committee wishes to appear on television; they are only allowed to ask two or three questions before it is the next chap’s turn, but other members of the committee do not follow their line of argument because they have worked out exactly what they want to say to catch their headline. When I was chairing the ISC, with the absence of television and all that, we were able to have consistent follow-up arguments, and people could follow up with reasonably penetrating questioning at times—as I believe that the noble Baroness may have experienced. We did not have that problem.
One therefore has to recognise the apparent attractiveness of public hearings but I certainly agree that the bulk of the work will have to be done overwhelmingly in secret, as it is at the moment. I would not wish this proposal for public hearings to be put in legislation as a compulsion, but I hope that there will be an opportunity for them. Without embarrassing the noble Baroness, Lady Manningham-Buller, she was very willing during her time in office to appear in public, make speeches and stand up and talk as widely as she could about the activities of the Security Service. The more that that can be done and the more publicity they receive, whereby they are not
seen as rather sinister secret undertakings, the more it would be in the interests of the agencies themselves. These amendments are good ideas but compulsion needs to be avoided in the Bill.
Lord Gilbert: My Lords, the situation is considerably more complex than your Lordships have heard this afternoon. One has the impression from the debate that the only intelligence-gathering agencies are MI5, MI6 and GCHQ, and that is far from the case. We have the Defence Intelligence Agency and the intelligence work of the individual services, and a lot of other people in this country handle high-security intelligence by acquiring, analysing and distributing it. If we think that we have covered the waterfront just by approving the heads of MI5, MI6 and GCHQ, we are deluding ourselves.
Baroness Smith of Basildon: My Lords, we have had an interesting debate, and Amendments 9 and 11, in my name and that of my noble friend Lord Rosser, seem to have gained a significant degree of support from around your Lordships’ House. In response to the concern of the noble Lord, Lord King, about the televising of proceedings, I suspect that if this debate were being televised at 4.30 am it would not get a great deal of viewership. Having said that, we will probably now receive letters from those who watch TV at 4.30 am.
Amendment 9 would provide the committee with a remit to hold pre-appointment hearings for the heads of agencies. The noble Baroness, Lady Hamwee, spotted my tabling of her amendment from Committee, when she convinced me that having a permissive amendment was a good way forward. She has now tabled a further amendment that would make the proposed hearings compulsory, but I do not think that that has found favour with your Lordships. We are very much in favour of pre-appointment hearings by Select Committees; indeed, the Labour Government in 2007 pioneered them. This Government have suggested that they are equally keen on pre-appointment hearings. The coalition agreement contains a specific plan to strengthen the powers of Select Committees to scrutinise major public appointments as part of improving government transparency. This seems to be one of those areas that would benefit from such hearings.
I take on board the wisdom, as usual, of the noble Lord, Lord Reid, on these matters and the concerns he raised. However, as to what he said about there being a veto on information, the committee would use its customary wisdom in passing on advice or information to the Prime Minister as it saw fit.
As regards Amendment 11 on annual public hearings, I must admit that I had not envisaged many separate hearings but perhaps one or two hearings a year at which heads of agencies could be questioned. There is an issue of public confidence, and the noble Baroness, Lady Manningham-Buller did a huge amount during her time as head of MI6 to open up the so-called secret services and increase public understanding of and trust in what the agency and other agencies do. She, more than anyone, understood how important it was that the public needs to have confidence in those at the head of organisations that have to, by necessity, operate outside the public view.
I also do not disagree with those who said in Committee or in this debate that the credibility of the ISC would be undermined by farcical staged hearings, as we have seen on TV elsewhere when the only answer to questions has been, “I’m sorry I can’t answer that or provide that information”. Obviously, we would want any hearings to be genuine, give confidence to the public and not have a block that would provide a lack of confidence.
As has been pointed out in Committee, the ISC already has the power to sit in public if it so chooses. Amendment 12, which proposes that there be a presumption that the ISC would meet in public unless it were to meet in private, could create the kind of difficulties that have already been outlined. A presumption that the ISC would meet in public would be difficult for that committee to manage, but hearings taking place in public from time to time are useful and have a large part to play. We have to recognise the sensitive nature of the committee’s work and information that cannot be made public.
When considering the amendments and the support for them, I hope that the Minister will accept Amendment 9. He has heard that it has significant support from around the House. If he is unable to accept that amendment, I will consider testing the view of the House.
Lord Taylor of Holbeach: My Lords, we have an opportunity to consider this group of five amendments. Although Amendments 9 and 10 are similar, the noble Baroness has pointed out the difference between them. Under Amendment 9, the ISC “may” consider the proposed appointment of individuals to the posts of director-general of the Security Service, the chief of the Secret Intelligence Service, the director of GCHQ and other such persons as the Prime Minister may direct. The committee would do this by questioning the prospective appointee at one of its meetings. Under Amendment 10, the ISC “must” consider the proposed appointments.
Pre-appointment hearings are a relatively new phenomenon in the United Kingdom. Since 2008, Select Committees have conducted pre-appointment hearings for a list of posts. There is guidance published by the Cabinet Office on the process followed for such pre-appointment hearings, which includes the list of posts. In general, this process has been a welcome development and gives departmental Select Committees a role in questioning proposed appointees. However, the important thing to note about the list of pre-appointment posts is that the posts concern public bodies—for example, the chairs of Ofcom and the Social Security Advisory Committee. The pre-appointments process has never been used concerning the appointment of civil servants. The heads of the intelligence and security agencies are civil servants at Permanent-Secretary level, and the recruitment process is therefore expected to follow the process for the appointment of civil servants of such seniority.
Noble Lords may find it helpful if I provide some detail on the present process for appointing the agency heads and their status. The agencies are excluded from the provisions of Part 1 of the Constitutional Reform
and Governance Act 2010, as my noble friend Lady Hamwee mentioned. That legislation places the management of most of the Civil Service of the state on a statutory footing. Exclusion from the provisions of that Act merely reflects the specific nature of the agencies’ operations. The agencies’ staff, including their heads, are and always have been part of the Civil Service of the state. This is clear from the Act. If it were not so, the specific exemption for the agencies in Section 1(2) of that Act would not be necessary. Staff of the agencies are not, however, part of what is generally referred to as “the Civil Service”, with a capital C and a capital S—that is, the Home Civil Service—nor are they part of Her Majesty’s Diplomatic Service. They form a separate category of civil servants, but civil servants they are. They are also “Crown servants”, but that is a wider term, covering, for example, members of Her Majesty’s Armed Forces and non-civilians in the service of the Crown.
While the agencies are not bound by the Civil Service recruitment principles, I can reassure noble Lords that they do, in practice, follow the spirit of the principles, and the Civil Service Commission is expected to be involved in the process. Pre-appointment scrutiny by Parliament is not appropriate given that these roles are Permanent-Secretary level roles, and in practice those who fill them will be recruited by a process involving a Civil Service commissioner to ensure that the appointment is made on merit. In particular, I see no reason why agency heads should be treated differently from any other Permanent Secretary appointment.
Certainly, the roles that the agency heads play are very important and the appointments must be the right ones, but all Permanent Secretaries in the UK Government play very important roles. There is thus no reason for singling out this particular group for special treatment. The fact that all these posts are posts within the Civil Service of the state, serving successive Administrations, means that the pre-appointment process is not appropriate.
I hope I have given the noble Lord and the noble Baroness reassurance that the process which presently exists—
6.30 pm
Lord Reid of Cardowan: Unfortunately, the noble Lord has given me anything but reassurance. To argue partly on bureaucratic grounds, partly on the grounds of process and partly on the one substantive contention that there is no difference between a Permanent Secretary and the head of MI5, MI6 or GCHQ, is to me entirely unpersuasive. I have known, I think, 14 Permanent Secretaries in my relatively brief ministerial career, all of whom were excellent and very able Permanent Secretaries. They fulfilled a role, had a function and an importance in the life of this nation which was not the same as that of the heads of MI5, MI6 or GCHQ, on whom the very security of the nation depends. I hope that the Government will at least say that they will go away and reflect on this matter because, if there is a political will, all the apparent obstacles to procedure can be overcome. However, if the Government are saying that there are insurmountable bureaucratic obstacles to the ISC carrying out pre-appointment interviews, which are carried out in many countries of the world, I
am afraid that they will be seen to be hiding behind process and lacking a real understanding of how substantial these positions are.
Lord Taylor of Holbeach: I thank the noble Lord for that intervention but, as I have explained, the reality is that these posts are special and important. They are exactly as a Permanent Secretary’s post is in terms of the continuity of Government over changes of Government. There is nothing bureaucratic about this. This is the way in which public servants are appointed. I hope that what I am describing is clarifying the Government’s argument—namely, that these posts, important though they are, are Civil Service posts occupied by servants of the Crown performing the duties of particular posts. Procedures are in place for making sure that those appointments are made on merit. They are not political appointments subject to political scrutiny. I hope noble Lords will accept that argument.
Lord King of Bridgwater: My noble friend has set out admirably and very clearly what the position is as seen from the Civil Service point of view. However, there is a serious point here. I think that a number of newly appointed heads of the agencies would have welcomed the opportunity to have this sort of a hearing, possibly even in public, given the importance of credibility for the Intelligence and Security Committee, as we discussed earlier. Given the importance of gaining public credibility and confidence for those who have been appointed to lead these critical national security agencies, this would be a very important opportunity. Therefore, although there may be technical reasons why such a procedure does not square with the Civil Service code, or whatever, I hope that my noble friend, who has manfully explained the current position, will consider whether there is an argument for establishing such a permissive arrangement in this area.
Lord Taylor of Holbeach: I note my noble friend’s guidance and assistance. However, I do not flinch from presenting the Government’s position in this respect. These are not conventional public appointments. They are Civil Service appointments which provide for political impartiality and, indeed, are outside the scope of Parliament. Once we start to argue for public scrutiny of an appointment, we argue for a political process. However, we have always sought to avoid such a political process in Civil Service appointments.
Lord Reid of Cardowan: I am very grateful to the Minister for giving way. He devoted almost all his argument against my noble friend Lord Campbell-Savours, to stressing the uniqueness of these particular positions and organisations and explaining why, because of that uniqueness, you could not involve a Select Committee, as was being suggested, and that his argument had many benefits. Now, in order to defend the status quo, he is stressing not the uniqueness of these posts but their similarity with other departments and departmental heads. However, this is not a matter of what we have done in the past but of what we might do in the future. If the Government had the will to see the benefits in the suggestions of the noble Lord, Lord King, and in what I have said, a way could be found in the future to
allow the ISC, at least in a permissive sense, to interview appointees prior to final ratification. That would have enormous benefits for everyone involved in the process. The uniqueness of these positions has been recognised in a previous debate. However, that is now apparently being put aside and they are being compared with other appointments in the Civil Service.
Lord Taylor of Holbeach: I do not wish to prevent the noble Lord intervening but we are on Report. Therefore, I remind noble Lords—
Lord Foulkes of Cumnock: I agree with the Minister, who I think has made a good case, and disagree with my noble friend Lord Reid of Cardowan. Members of the Joint Committee on National Security Strategy have already had a report that the line management of the heads of the various intelligence and security services is the responsibility of the Permanent Secretary. That has been made absolutely clear to us. We raised some concerns about that point and I am sure that the noble Baroness, Lady Manningham-Buller, will comment on it. If the Permanent Secretary has that line management responsibility, it would seem strange if these post holders were considered for appointment by a committee rather than by the procedure that the Minister has described. I know that my noble friend on the Front Bench is a bit irritated at what I have said, but I am glad to say that on this side of the House we have the freedom to say what we think.
Lord Taylor of Holbeach: Although I am encouraged by what the noble Lord had to say, I should remind noble Lords that we are on Report and it would probably be as well if I was allowed to finish what I was saying. The key thing is that the coalition agreement expressly says that we want to strengthen the role of committees in scrutinising public appointments. The Government are committed to doing that. However, the coalition agreement does not refer to Civil Service appointments. The pre-appointment scrutiny process, which we have in place for public appointments, is not the same as appointments to the Civil Service. Therefore, although the Government have made important progress in meeting the commitment on public appointments, that is not relevant to these appointments if they are Civil Service appointments.
I know that the roles that the agency heads play are very important and the appointments must be right. That is why I hope that I have given the noble Baroness and the noble Lord the reassurance that the process that presently exists for appointing the heads of these agencies is appropriate to the nature of the posts. It would not be appropriate to adopt the pre-appointment process that exists for posts in public bodies. On that basis, I hope that the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and my noble friends Lady Hamwee and Lord Marks will respectively see fit to withdraw their amendments.
I now address Amendments 11 and 12 which concern the ISC holding an annual hearing with the agency heads and the Secretary of State giving evidence before the committee in public. I can appreciate the intention behind the amendment but I have a number of concerns about the idea of creating a duty to hold annual public
hearings. As noble Lords will know,
The Governance of Britain
Green Paper in 2007 made a series of reform proposals aimed at bringing the ISC as far as possible into line with other Select Committees. One of those proposals was for some hearings of the ISC to be structured to allow unclassified evidence to be heard in open session. Those sessions did not subsequently happen. Building on this, the
Justice and Security
Green Paper noted that while the ISC’s meetings will still have to take place, as a rule, in private, both the Government and the committee were committed to the concept of public evidence sessions where they can be held without compromising national security or the safety of individuals.
The noble Baroness, Lady Smith, spoke powerfully in Committee on the issue of public hearings and she has done so again today. We fully agree that they can be valuable but she noted that public hearings should never be automatic for the ISC but argued that they should become more routine as public confidence is taken into account. We fully agree that public hearings may improve public confidence in the ISC and its work.
The Bill does not need a specific provision for this; the existing ISC, created by the Intelligence Services Act 1994, has power enough to determine its own procedures and that is sufficient for its purposes—the ISC is provided for in the Bill. In that way, there is actually very little difference between the position that we take on the Bill and the position proposed by the noble Baroness. However, there are significant practical issues that have to be addressed before public evidence sessions can take place. I am sure that noble Lords will appreciate introducing public evidence sessions for a committee whose work is mostly concerned with sensitive and highly classified information. That will be challenging.
The Government remain committed to making public hearings work better in practice, and are currently in discussions with the committee about how to do so—for instance, on issues such as appropriate subject matter, timing and having appropriate safeguards against unauthorised disclosure of sensitive information. In Committee, my noble friend Lord Lothian, a current member of the ISC, made the valuable point that public hearings would be counter-productive so far as public confidence in the committee is concerned. If either the majority of the questions posed are met with a response, “I cannot answer that”, or the subject matter for the hearing is anodyne and the process completely rehearsed, I am sure that noble Lords will feel that the process has not been worth while. The ISC will already have the power to hold public hearings with agency heads and with relevant Secretaries of State without any of these amendments. Leaving it to the ISC’s discretion to determine when and how frequently to hold such meetings will enable it to make the best use of its available resources. I hope that I have convinced noble Lords that that is the right approach. I hope, on the basis of this information, that my noble friend Lady Hamwee will withdraw her amendment, and that the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and my noble friend Lord Marks will not move theirs.
6.45 pm
Baroness Hamwee: My Lords, I do not want to take too long in responding to this. I shall make a couple of comments on the amendments on hearings and access to meetings. On access to meetings, I always envisaged that the committee would be able to take a decision that would cover a number of meetings, and not have the embarrassing situation, on a weekly basis, of the public trooping in and being sent out immediately.
On the annual hearings, it was only when the noble Lord, Lord Foulkes, asked me whether I had attended the debate in the Moses Room that it began to come back into my mind that I had read the previous one in Hansard. However, a debate of a committee is, I think, very different from what is envisaged here and very different from parliamentarians undertaking that sort of debate, important as it is.
The point about the agencies, raised by the noble Lord, Lord Gilbert, was covered. Sub-paragraph (d) in Amendment 9 refers to persons other than the three heads of the services and Clause 2 of the Bill envisages the extension of the work to other parts of government.
Much of this debate has centred on pre-appointment hearings and whether they might be televised. A couple of weeks ago I was sitting reading my Blackberry, which possibly I should not have been doing during a debate, but an email came in which said, “Just seen you on live television”. I thought there was a complaint coming about what I had said. The Commons had gone home so we were on prime time. The email went on to say, “How do you fit into the Hamwee family? I was once very good friends with someone called Hamwee”. One never knows what people will take from what they see.
We have been told that this will become a political exercise and that it should not be political. Throughout the debates on the ISC, I have been hearing that there is huge resistance to it becoming a political and a party-political exercise. I would envisage that continuing with pre-appointment hearings. I would like to hear the ISC debating whether it should have pre-appointment hearings.
I am encouraged by what the Minister has said about discussions continuing on how to make the work more open, but the way it is, is not the way it has to be. I can tell that the mood of the House is not to provide for mandatory requirements, but there is considerable support for a permissive clause. So I shall not move my Amendment 10 but I hope that the noble Baroness will pursue the matter of permissive arrangements which are encompassed in Amendment 9. I beg leave to withdraw Amendment 8.
9: Schedule 1, page 14, line 3, at end insert—
“Pre-appointment hearings( ) The ISC may consider the proposed appointment of the following, including by questioning the prospective appointee at a meeting of the ISC—
(a) the Head of the Security Service;
(b) the Head of the Secret Intelligence Service;
(c) the Head of the Government Communication Headquarters; and
(d) such other persons as the Prime Minister may direct.”
Baroness Smith of Basildon: My Lords, I had hoped that the Minister would at least consider taking this away for reflection. However, the mood of the House is clear. I beg to move.
Amendment 10, as an amendment to Amendment 9, not moved.
Baroness Smith of Basildon: My Lords, I wish to test the opinion of the House on Amendment 9.
6.50 pm
Contents 170; Not-Contents 200.
CONTENTS
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Avebury, L.
Bach, L.
Bakewell, B.
Barker, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Bilston, L.
Blood, B.
Boateng, L.
Boothroyd, B.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Colville of Culross, V.
Corston, B.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Donaghy, B.
Donoughue, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Falkland, V.
Farrington of Ribbleton, B.
Foster of Bishop Auckland, L.
Gale, B.
Gilbert, L.
Golding, B.
Goudie, B.
Grantchester, L.
Grenfell, L.
Grocott, L.
Hamwee, B.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hylton, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Kakkar, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
Kestenbaum, L.
King of Bridgwater, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Laird, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Liddle, L.
Lister of Burtersett, B.
McAvoy, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Manchester, Bp.
Mandelson, L.
Manningham-Buller, B.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Meacher, B.
Monks, L.
Moonie, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Nye, B.
Oakeshott of Seagrove Bay, L.
O'Loan, B.
Palmer, L.
Pannick, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Quin, B.
Radice, L.
Rea, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Roberts of Llandudno, L.
Robertson of Port Ellen, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sharp of Guildford, B.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Soley, L.
Stevenson of Balmacara, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Gresford, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
NOT CONTENTS
Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Bates, L.
Berridge, B.
Black of Brentwood, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Brabazon of Tara, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Burnett, L.
Caithness, E.
Cameron of Lochbroom, L.
Cathcart, E.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Courtown, E.
Craig of Radley, L.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Eaton, B.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Empey, L.
Erroll, E.
Falkner of Margravine, B.
Faulks, L.
Fellowes of West Stafford, L.
Flight, L.
Fookes, B.
Framlingham, L.
Fraser of Carmyllie, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Glasgow, E.
Glenarthur, L.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Harris of Peckham, L.
Henley, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jay of Ewelme, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jopling, L.
Kalms, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Montgomery of Alamein, V.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Morrow, L.
Moynihan, L.
Naseby, L.
Neville-Jones, B.
Newby, L. [Teller]
Newlove, B.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Parminter, B.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Powell of Bayswater, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Redesdale, L.
Risby, L.
Roper, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharkey, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L.
Skelmersdale, L.
Skidelsky, L.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Swynnerton, L.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
True, L.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
Wheatcroft, B.
Wilcox, B.
Willis of Knaresborough, L.
Younger of Leckie, V.
7 pm
Amendments 11 and 12 not moved.
Lord Butler of Brockwell: My Lords, Amendment 13 stands in my name and in the name of my colleague, the noble Marquess, Lord Lothian. I move it only to give the Minister the opportunity to move government Amendment 14. Amendment 13 seeks to leave out paragraph 3(3)(b) of the schedule which states that a Minister may decide that information should not be disclosed if,
“it is information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.
This was rather a wide power for the Government to withhold information from the Intelligence and Security Committee.
Since that amendment was tabled, the Government have tabled an amendment making it clear that, in exercising this power, the Minister must be guided by regard to what are known as the Osmotherly rules—that is, the normal rules about what a civil servant can disclose to a Select Committee. My colleagues on the Intelligence and Security Committee and I are content with that limitation of this power. I beg to move.
The Deputy Speaker (Lord Geddes): I believe that the noble Lord will now want to withdraw the amendment.
Lord Butler of Brockwell: My Lords, I beg leave to withdraw the amendment.
14: Schedule 1, page 14, line 34, at end insert—
“( ) In deciding for the purposes of sub-paragraph (3)(b) whether it would be proper not to disclose information, the Minister must have regard to any guidance issued by a Minister of the Crown or a government department concerning the provision of evidence by civil servants to Select Committees.”
Lord Taylor of Holbeach: My Lords, it may be useful if I start by explaining why paragraph 3(3)(b) of Schedule 1 is necessary. There are a number of long-standing conventions that have developed in the relationship between Parliament—in the form of its Select Committees—and successive Governments. These conventions recognise that there are categories of information that in certain circumstances may be withheld from Select Committees on grounds of public policy. Noble Lords may know a good deal about this. Examples of this type of information are given in the Cabinet Office guide, Departmental Evidence and Response to Select Committees. Some noble Lords will know this by another name: the Osmotherly rules. The categories of information set out in the guide include information about matters that are sub judice, information that could be supplied only after carrying out substantial research or research that would incur excessive costs, and papers of a previous Administration.
The provision in the Bill is necessary to safeguard the long-standing conventions that are reflected in the Osmotherly rules in the context of the relationship
between government and the ISC. It provides a basis for withholding from the ISC the sorts of categories of information described in the rules. As I explained, we intend the ISC created by the Bill to be a committee of Parliament and not simply a committee of parliamentarians, so there is all the more reason for the ISC that the Bill would create to be subject to these conventions.
The provision gives only a Minister of the Crown the discretion to withhold material. In exercising that discretion, the Minister would of course have regard to the provision that the ISC has for keeping material confidential. The Osmotherley rules state:
“If the problem lies with disclosing information in open evidence sessions or in memoranda submitted for publication, Departments will wish to consider whether the information requested could be provided on a confidential basis”.
For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. As I said, the powers to withhold information from the ISC have been used only sparingly in the past, and we expect this to continue. However, it is important that the safeguards are retained.
In Committee, the debate focused in particular on the word “proper”. The noble Lord, Lord Thomas of Gresford, who is not in his place, queried the use and meaning of the word. In addition, the noble Baroness, Lady Smith of Basildon, was concerned that paragraph 3(3)(b) lowered the threshold for information being withheld from the committee compared with that which currently applies under the Intelligence Services Act. I assure the noble Baroness that that is not the case. The Intelligence Services Act contains a provision equivalent to paragraph 3(3)(b). In fact, the categories of information that can be withheld from the ISC, and the thresholds for withholding information, will be the same under the Bill’s provisions as they are currently under the 1994 Act.
The noble Lord withdrew his amendment. I hope that Amendment 14 clarifies the situation and addresses his anxieties in this respect. I beg to move.
Baroness Smith of Basildon: My Lords, I am grateful to the Minister for seeking to clarify the matter. As he said, I raised my concern on this in Committee. Perhaps I may ask one question. If he is unable to answer today, perhaps he would write to me. I am not 100% convinced that Amendment 14 is sufficient to prevent paragraph 3(3)(b) being used as a justification, as the Minister claimed. Amendment 14 stipulates merely that the Minister “must have regard to” the Osmotherly guidance, as set out in sub-paragraph (3)(b). Will the Minister tell us whether, after considering the guidance he referred to, the Government could still use the conditions set out in sub-paragraph (3)(b) to refuse disclosure of information to the ISC even if the guidance was not relevant to the material in question?
Lord Taylor of Holbeach: I am not in a position to answer that directly, but if the noble Baroness permits, I will write to her and place a copy of the letter in the Library of the House.
15: Schedule 1, page 14, line 42, leave out paragraphs (a) and (b) and insert—
“(a) the Secretary of State for that Department, or
(b) in the case of a Department without a Secretary of State, a Minister of the equivalent level, identified in a memorandum of understanding.”
Baroness Smith of Basildon: My Lords, the amendment concerns the power to withhold information from the ISC and at what level the decision should be taken. The Bill states that the decision should be taken by a “Minister of the Crown”. The amendment proposes that it should be at the level of Secretary of State in the relevant department and not just a Minister of the Crown. The response I was given in Committee was that the Cabinet Office does not have a Secretary of State and therefore it would be the Minister of State. As somebody who was the Minister of State at the Cabinet Office, that did not seem appropriate. Every department has a Minister who sits in the Cabinet. The reason for putting the amendment before the House today is to propose that, as a minimum, it should be a Minister who is at the equivalent level of Secretary of State. That would be justified because the explanation given by the Minister in Committee for lowering the threshold was not adequate given such a change in power.
We have sought to tighten up the drafting to make it clear in the Bill that in all but exceptional circumstances the power to withhold information from the ISC should be exercised only by a Secretary of State unless there is no Secretary of State in that department. In that case, it should be exercised by a Minister of comparable rank such as the current Paymaster-General who is a member of the Cabinet as well as the most senior member in the Cabinet Office. The amendment is simply to specify that a reference to a Minister of the Crown should be interpreted as a Secretary of State for that department except where there is no Secretary of State where it should be someone of the equivalent rank.
I hope that that is clear and I hope that the Minister can accept or at least reflect on this because it would be a significant change if it was not the Secretary of State seeking to withhold information. I beg to move.
Baroness Stowell of Beeston: My Lords, I hope in responding to the noble Baroness, Lady Smith of Basildon, that I can give her some assurance so that she feels able to withdraw her amendment.
The Bill provides that Ministers may decide that information should be withheld from the ISC on two grounds. First, the Minister may consider that it is “sensitive information” as defined in the Bill, which in the interests of national security should not be disclosed to the ISC, and secondly for the reasons that we just discussed.
Currently, under the provisions of the Intelligence Services Act 1994, information can be withheld from the ISC on the same grounds, but the decisions to withhold are taken, in part, by agency heads rather
than Ministers. These powers to withhold information from the ISC have been used very rarely in the past, and we would expect the equivalent powers in the Bill to continue to be used sparingly, only in exceptional circumstances; however it is important that these safeguards are retained as there will continue to be material the nature of which is so sensitive that access to it must be very narrowly restricted in the interests of national security.
Where agencies’ material is concerned, the Bill provides that decisions to withhold information from the ISC must be taken by the Secretary of State. However, where the ISC requests information from another government department, a decision to withhold is taken by the,
“relevant Minister of the Crown”.
That means, for these purposes, such a Minister as is identified in the memorandum of understanding between the Prime Minister and the ISC or, where no Minister is so identified, any Minister of the Crown.
The effect of the noble Baroness’s amendment would be that in circumstances where the Bill enables a Minister of the Crown to withhold information from the ISC, that power would rest with the Secretary of State for the department whose information is to be withheld, or for departments without a Secretary of State, a Minister of the equivalent level, identified in the memorandum of understanding.
The reason that we have included provision for the exercise of the power by a Minister of the Crown rather than a Secretary of State in respect of material held by government departments is that there may be some departments where there is no Secretary of State. The noble Baroness referred to this. For example, the post of Minister for the Cabinet Office is a Minister of State position rather than a Secretary of State position.
The current ISC has, over its history, taken evidence on, and made recommendations relating to, the Joint Intelligence Organisation and the central intelligence functions of the Cabinet Office. The Bill formalises the ISC’s oversight role for bodies such as the Joint Intelligence Organisation so the Cabinet Office can expect more requests from the ISC for disclosure of information in future. It is therefore important that a Minister of the Crown should be able to make decisions about when and what information should be withheld from the ISC. This may not just be about the Cabinet Office. It may be that, in the future, other government departments involved in security and intelligence functions will not have a Secretary of State. This provision would also cover those circumstances.
I appreciate the intention of the amendment, which is to ensure that the Minister of the Crown making the decision to withhold information from the ISC is of appropriate seniority. I hope that I can reassure the noble Baroness that that is also the Government’s intention. We hope to publish, before Third Reading, a document which sets out the areas that the Government expect the memorandum of understanding to cover, premised on the assumption that the ISC-related provisions in the Bill are enacted, substantially, in their current form.
In that document, we will state that it is the Government’s intention that the Minister making such decisions should be of appropriate seniority and should
have sufficient knowledge of the work of the department in question. The document will state that it is the Government’s intention that, for the Home Office, the Minister making such decisions should be the Home Secretary, for the Foreign Office the Foreign Secretary, for the Ministry of Defence the Defence Secretary and for the Cabinet Office a Minister of State. As I said, I hope that that gives the noble Baroness enough assurance for her to withdraw the amendment.
Lord Gilbert: I apologise for interrupting the Minister, but surely the more important question is whether or not the Minister is required to let the committee know that he is not telling them something. If he does not tell them that he is not telling them something they will not know that they have not been told something. Anyone with any experience of ministerial office at all knows perfectly well that that is the principal work of civil servants when they want to undermine Ministers and they do not like government policy. They do not tell Ministers things. We are entering an opaque area and I cannot see any answer to those questions in what the noble Baroness said.
7.15 pm
Baroness Stowell of Beeston: The point of this debate and the amendment that we are discussing right now is the authority of the relevant Minister to decide whether or not to withhold information from the committee. It is not about whether the committee has the right to request information. The committee has under its wider remit the ability to request information from government departments, but it is for the relevant Minister to have the authority to be able to decide whether to agree to that request. This is about the authority of the Minister.
Lord Gilbert: On the same point, is there an obligation on the Minister anywhere in the legislation to inform the committee that he is withholding information from it?
Baroness Stowell of Beeston: That is not the issue that we are debating right now. If I may, I will have to come back to the noble Lord. I would think that that detail will be covered.
Lord Campbell-Savours: Can I help the Minister? Surely, if the committee has asked a department for information, it will know if it does not get it back that it has been refused. The issue is whether it will know which Minister refused the information.
Baroness Stowell of Beeston: I am grateful to the noble Lord for his assistance. That is absolutely right. If the committee requests the information, because the MoU will make it clear which Minister within a department is responsible for responding or deciding whether or not the department should provide that information, obviously the Minister has an obligation to respond to that request.
Baroness Smith of Basildon: My Lords, I am not sure that the noble Baroness has understood the central point that I am making and if she has, she has not answered it to my satisfaction. The query that I have
with this amendment is the level of the Minister who can exercise a veto. I entirely agree that it is an exceptional measure that will be used only in exceptional circumstances. It takes the power from the agency’s head so that it rests with the elected representatives of the Government who are ultimately accountable to Parliament. But I have not heard from the noble Baroness an adequate justification from the Government as to why they have chosen to downgrade the level at which the veto is held from a Secretary of State to a Minister of State.
I mentioned the Cabinet Office because that was the department mentioned by the Minister previously. The noble Baroness responded and said that it could be another department that does not have a Secretary of State. The point being made is the level of Minister who can withhold information and exercise a veto against the ISC. It is entirely reasonable that it should be the Secretary of State or a Minister at the same level, not downgraded to a Minister of State level.
Lord King of Bridgwater: The answer my noble friend gave was extremely encouraging and recognised the importance of the seniority of the person. The only thing I do not understand is whether paragraph 3(5)(b) of Schedule 1, which reads,
“if no Minister of the Crown is so identified, any Minister of the Crown”,
The noble Baroness appeared to be saying that if a particular Secretary of State is for some reason not available—which is perfectly possible, particularly if you are dealing with the Foreign Office—any other Secretary of State will do. Would it not be much better to have a Minister of State in the same department who is familiar with the matter to deal with it, rather than some other Secretary of State? Have I got the noble Baroness wrong?
Baroness Smith of Basildon: No. The noble Lord is absolutely right. At the moment it is a Secretary of State but the Bill proposes to downgrade that to any Minister of the Crown. I know the noble Baroness says that there will be a MoU that will identify certain Ministers of the Crown but these decisions should be taken at Cabinet level.
Lord King of Bridgwater: I understand what the noble Baroness is saying but if the information concerns the Foreign Secretary, who is responsible for SIS and GCHQ, or the Home Secretary, who is responsible for the Security Service, or, in certain circumstances, the Secretary of State for Defence, who is responsible for the DIS and so on, and if by chance that Secretary of State is not available to deal with an urgent matter on which a reply is requested, it would be much better that the Minister of State in that department deals with it and that we do not have the Secretary of State from Defra or from some other department shifted in merely because he is of equal seniority and that meets the requirement.
Lord Reid of Cardowan: Perhaps I may help. This is not a new problem—it happens with intercepts. The only people allowed to authorise an intercept are
Secretaries of State and, if the Secretary of State is not available or is not in London, his officials will get it to him—and these are far more urgent than anything envisaged here. The point that is being made is that the refusal to supply information to the ISC is such an important decision, given the confidence we are placing in the ISC, that the level at which that decision should be taken is Secretary of State level or equivalent. The Government are envisaging extending not only to a Minister inside the Home Office when the Secretary of State is not available but to any Minister of the Crown, on any refusal, the power so to refuse. My noble friend is saying that this is such an important decision that it ought to be taken only at the level of Secretary of State or equivalent. That is an entirely reasonable suggestion and is looser than the intercept provision which applies to only four Secretaries of State.
Baroness Smith of Basildon: My Lords, as ever, my noble friend Lord Reid has summed up the point I was making. The Minister did not refer to an emergency situation but to departments that would not have a Secretary of State and therefore it would be downgraded. It is entirely appropriate to ask that a decision as serious as to withhold information from the ISC should be taken only at the highest levels in government, and that means the level of Secretary of State.
Lord Butler of Brockwell: My Lords, I also support the amendment. It is no answer to say that if the information is held by the Cabinet Office, where there is not a Secretary of State, it should be at some other level. Any intelligence information held by the Cabinet Office will belong either to the Home Office, the Foreign Office or some other department where a Secretary of State is responsible. It is not the case that provision ought to be made for an exception where the Cabinet Office is involved. I support the amendment moved by the Opposition.
Baroness Smith of Basildon: My Lords, I should like to test the opinion of the House.
7.24 pm
Contents 134; Not-Contents 182.
CONTENTS
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Bach, L.
Bassam of Brighton, L. [Teller]
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Bilston, L.
Blood, B.
Boateng, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Butler of Brockwell, L.
Cameron of Lochbroom, L.
Campbell-Savours, L.
Carter of Coles, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Colville of Culross, V.
Corston, B.
Davies of Oldham, L.
Davies of Stamford, L.
Donaghy, B.
Donoughue, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Watford, L.
Falkland, V.
Farrington of Ribbleton, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gilbert, L.
Golding, B.
Grantchester, L.
Grenfell, L.
Grocott, L.
Harris of Haringey, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jordan, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kestenbaum, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Laird, L.
Layard, L.
Lea of Crondall, L.
Liddle, L.
Lister of Burtersett, B.
McAvoy, L.
McDonagh, B.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Manchester, Bp.
Manningham-Buller, B.
Massey of Darwen, B.
Meacher, B.
Monks, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Nye, B.
O'Loan, B.
Palmer, L.
Pannick, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Radice, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Soley, L.
Stevenson of Balmacara, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Walpole, L.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Wigley, L.
Wilkins, B.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
NOT CONTENTS
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashton of Hyde, L.
Attlee, E.
Barker, B.
Bates, L.
Berridge, B.
Black of Brentwood, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Brabazon of Tara, L.
Bridgeman, V.
Brinton, B.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Caithness, E.
Cathcart, E.
Chalker of Wallasey, B.
Chester, Bp.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Denham, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Eaton, B.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Empey, L.
Erroll, E.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Fellowes of West Stafford, L.
Fookes, B.
Framlingham, L.
Fraser of Carmyllie, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Garel-Jones, L.
Geddes, L.
German, L.
Glenarthur, L.
Goodlad, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Henley, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hollins, B.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jopling, L.
Kakkar, L.
Kerr of Kinlochard, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Lyell, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Hendon, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Morrow, L.
Moynihan, L.
Neville-Jones, B.
Newby, L. [Teller]
Newlove, B.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Parminter, B.
Patel, L.
Perry of Southwark, B.
Popat, L.
Randerson, B.
Razzall, L.
Redesdale, L.
Risby, L.
Roberts of Llandudno, L.
Roper, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Sheikh, L.
Shipley, L.
Shutt of Greetland, L.
Skelmersdale, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Sterling of Plaistow, L.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
True, L.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Younger of Leckie, V.
Consideration on Report adjourned until not before 8.35 pm.
Church of England Marriage (Amendment) Measure
Motion to Present for Royal Assent
7.35 pm
Moved By The Lord Bishop of Bath and Wells
That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Church of England Marriage (Amendment) Measure be presented to Her Majesty for the Royal Assent.
The Lord Bishop of Bath and Wells: My Lords, the Measure is somewhat technical, so it may assist noble Lords if, instead of getting into the minutiae, I give something by way of background which explains that under the Marriage Act 1949, a marriage according to the rites of the Church of England normally had to take place in the parish where at least one of the parties currently lived or where one of the parties was on the church electoral roll. That was the position until 2008, but it was thought to be too limiting in modern conditions. Legislation was brought forward to extend the range of places where people could marry in church. The Church of England Marriage Measure 2008 gave people the additional right to marry in any parish with which they had a “qualifying connection”.
There are various qualifying connections. For example, a couple now have the right to marry either in a parish where the parents of one of the couple live or used to live; or in a parish where one of them was baptised; or in a parish where a parent or grandparent was married. There are a number of other qualifying connections and, without delaying your Lordships unduly, they can very helpfully be found on the Church of England’s weddings website. The website shows couples how to find churches where they can get married and provides a whole variety of information. It has proved to be very popular, and since these new arrangements have been in place, the number of weddings in church has increased.
The Measure is in two parts. Clause 1 makes a few tweaks to the 2008 Measure, which has been effectively in force for some four years. Experience has shown that there are ways in which its detailed operation can be improved. Particular practical situations sometimes arise when people want to marry, for example, where a parish does not have a parish church; where the parish church is closed for repairs; or where a number of different parishes are joined together in a single benefice. In those situations, the 1949 Marriage Act confers rights to marry in the parish churches of adjoining parishes. Clause 1 brings the 2008 Measure into line with the special provisions of the 1949 Act by applying the bundle of rights contained in the 1949 Act to those couples who wish to marry on the basis that they now have a qualifying connection with a particular place.
A helpful way of showing how the changes will be of practical help to couples might be by way of an example. A couple may want to get married near the bride’s parents’ home, but her parents’ parish church is temporarily closed for repairs and will not be available during the summer that the couple want to get married.
The new measure will allow them to get married in the parish church of any of the parishes that border her parents’ parish. The other provisions in Clause 1 make similar arrangements possible in the other situations with which they are concerned. That is, if I may say so, the rather more complicated bit.
Clause 2 is rather more straightforward and concerns the publication of banns. Banns are, of course, the normal legal preliminary to marriage in church. The Marriage Act 1949 requires the form of words contained in the 1662 Book of Common Prayer to be used when publishing banns. There is nothing in Clause 2 that will prevent the continued use of the Book of Common Prayer form, but a slightly modernised form of words, as an optional alternative to the traditional form, was considered a useful addition.
Common Worship, the current prayer book, so to speak, of the Church of England, like the Alternative Service Book before it, offers the modernised form. In terms of its legal substance, it is not any different from the traditional form; but instead of asking whether anyone knows “cause or just impediment” why the persons who are named may not marry, it asks simply whether anyone knows,
“any reason in law why they may not marry each other”.
Clause 2 will put the alternative, modernised formula on a statutory footing.
Clause 2 also alters the procedure for publishing banns to make it a little more flexible than at present. As things stand, the default position is that banns have to be published at morning service on Sundays. However, the experience of the clergy is that many couples are more likely to come to an evening service. The Measure addresses that by requiring the banns to be published at the “principal service” on Sundays, to ensure maximum publicity, but allows them additionally to be published at any other service on the same day, allowing the necessary degree of flexibility to meet the pastoral needs of the couple.
The amendments made by the Measure are all minor, common-sense improvements to existing legislation. The Measure was passed entirely without dissent in the General Synod—something one would wish for more often—and the Ecclesiastical Committee has reported and finds the Measure expedient. I beg to move.
7.42 pm
Justice and Security Bill [HL]
Report (1st Day) (Continued)
8.35 pm
Clause 2 : Main functions of the ISC
Baroness Hamwee: My Lords, I have tabled Amendments 16, 17, 20 and 21 in this group, of which the substantive amendment is Amendment 21. Taken
together, these four amendments would ensure that although the Secretary of State may, through a memorandum of understanding, alter the provisions concerning the ISC, a memorandum of understanding could not limit the functions of the ISC.
I hope that the Minister can give me an assurance that Clause 2 does not intend that the ISC’s functions could be limited in this way and that the Government are not seeking the opportunity to restrict its functions. If that is not wholly clear, perhaps the Government can look at it, but the Minister may well be able to persuade me that it is wholly clear. In any event, I am sure that he understands the short but important point that I am making. I beg to move.
Lord Campbell-Savours: I wonder if we might be told when we can expect to see this memorandum of understanding.
Baroness Smith of Basildon: My Lords, we have tabled Amendment 22, which replicates the one tabled in Committee by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Thomas of Gresford, and is very similar to one tabled by my noble friend Lord Campbell-Savours.
This amendment requires a memorandum of understanding that will further define the remit of the ISC and other elements of its functioning. We consider that this should be approved by Parliament. Throughout the debate we have been arguing for greater ties between the ISC and Parliament in order to underline its accountability to Parliament rather than the Executive. This is an important example of how we can assist in effecting such change.
If the ISC is ultimately accountable to Parliament, it seems right that Parliament should approve the MoU that governs the ISC’s relationship with the Government over and above that which is set out in the Bill. I am sure that we will replicate this debate next week in the Crime and Courts Bill about the framework document for the National Crime Agency. If something is outside the remit of what is in the legislation, it is very helpful to have sight of that and Parliament should have the opportunity to debate and approve it.
The Government have argued against the establishment of the ISC as a full Select Committee of Parliament. One of the arguments is that it is necessary to circumscribe in statute the rules under which the committee may operate. It seems justified and very reasonable that the MoU should be subject to greater scrutiny and formalisation by coming before the House and having formal parliamentary scrutiny and approval before it can be acted upon.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, legislation is often a process of distillation and this evening the House has distilled itself down to this particularly rich mixture.
The Government intend to use the memorandum of understanding to make a substantial contribution to central government’s intelligence and security activities. It will be subject to ISC oversight. It is our intention
that the activities should include certain activities within the Ministry of Defence, the Office for Security and Counter-Terrorism in the Home Office and the central government intelligence machinery in the Cabinet Office, including the Joint Intelligence Organisation. The scope of the memorandum, therefore, is wider than the three core agencies.
As my noble friend Lord Henley said in response to an amendment from the Opposition on this same subject in Committee, it is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the memorandum of understanding can make provision at a level of detail which is not appropriate in primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may be engaged in other activities which would not properly fall within the remit of the ISC.
The House will know that things change over time—departments reorganise. Functions done in one department one year may be done in another the following year. The intelligence world is no different from any other part of government. A memorandum of understanding is flexible. It can be changed much more easily than primary legislation. It will enable the intention of the Government to be realised now and in the future.
The effect of the amendment spoken to by my noble friend Lady Hamwee would be that, instead of the ISC’s widened remit beyond the three agencies being defined precisely in a memorandum of understanding, it would be defined in primary legislation, which is not in the interests of a good definition of the ISC’s role and is less flexible as I have said.
The Government’s intention is that the memorandum of understanding will enable the ISC to oversee certain activities; for example, within the Ministry of Defence as I have described. A memorandum of understanding is the best place to make provision at this level of detail.
The effect of Amendment 22, as proposed by the noble Baroness, Lady Smith, would be that a memorandum of understanding agreed between the Prime Minister and the ISC for the purposes of Clause 2 would need to be approved by a resolution of each House of Parliament before it could take effect. The memorandum of understanding is an important document. It will define the activities of government in relation to intelligence or security matters, other than the activities of the agencies, which the ISC may oversee. It will also specify additional principles and provisions, other than the criteria specified in the Bill, with which the ISC’s consideration of operational matters must be consistent. It will also specify the arrangements by which the agencies and other government departments make information available to the ISC.
The Bill also provides that the memorandum of understanding may include other provisions about the ISC or its functions. It must be agreed between the Prime Minister and the ISC and can be altered or replaced at any time by agreement. It is therefore different from a parliamentary document.
While the ISC is dissolved on Dissolution of Parliament, the memorandum of understanding will continue in place during a succession of government until a new memorandum of understanding is agreed with the Prime Minister.
As is usual with a memorandum of understanding, there is no parliamentary approval procedure. While the memorandum of understanding will be an unclassified document which is published and laid before Parliament, its precise terms are very likely to be shaped by matters which are sensitive in terms of national security and cannot therefore be made public. However, there is no restriction on the document laid before Parliament being debated in Parliament, and, indeed, one might expect on occasions for it to be so debated. Of course, the terms of the memorandum of understanding must be agreed with the ISC itself: a committee composed of parliamentarians that, as a result of the changes that we have been talking about, will be a committee of Parliament appointed by and accountable to Parliament. Requiring these parliamentarians to seek the approval of their parliamentary colleagues would be quite a restriction on the independence of that body.
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In answer to the question posed by the noble Lord, Lord Campbell-Savours, the Government expect before Third Reading to publish a document setting out the areas that the Government expect the memorandum of understanding to cover. In other words, it will be a framework document premised on the assumption that the ISC-related provisions in the Bill are enacted, substantially, in their current form. I should make it clear that the document which we will publish can at this stage record only the Government’s intention, as the memorandum of understanding itself needs to be agreed between the Prime Minister and the ISC and we cannot presume on the ISC’s reaction to that document. However, it is our intention to publish that document before Third Reading.
Lord Campbell-Savours: First, on this preliminary document, which will not be the final document, will there be anything more in front of the Commons when they consider this in Committee than what is provided to us before Third Reading? Secondly, why should not preliminary drafting work, which I presume is going on now, be made available to the House—or certainly to the Commons—at an earlier stage?
Lord Taylor of Holbeach: I think I can reassure the noble Lord that I am doing my best to make sure that this House is informed before Third Reading of the nature of the document and the context in which it is being presented. I hope that the same document would indeed be available to the House of Commons. Until the Bill is enacted, the document cannot of course be laid before the House other than in a framework format. I hope that I have reassured the noble Lord that he and his colleagues in another place will have the information on which to see how this aspect of the Bill—the memorandum of understanding—is designed to bring flexibility into the procedures of the ISC.
Indeed, we wish to ensure that the memorandum of understanding is not used to restrict in any way the ISC’s remit or its functions as set out in the Bill. As we
explained in our memorandum to the Delegated Powers Committee—another memorandum—the purpose of this clause is to enable provisions to be included in the memorandum of understanding to ensure that the ISC’s oversight of operational matters does not: interfere with the statutory accountability of the intelligence services to their Ministers; overlap with the roles of other independent oversight bodies, such as the Intelligence Services Commissioner; or lessen the effectiveness of the intelligence services and other intelligence and security bodies, or place any undue resource burden upon them. We believe that a clear understanding between the Government and the ISC as to how the ISC can most effectively oversee operational matters without compromising these imperatives is best achieved in a flexible instrument agreed between them. These amendments would, I fear, seem to preclude that. On that basis, I hope that the noble Baroness will see fit to withdraw the amendment.
Baroness Hamwee: My Lords, I got the assurance that I wanted almost at the end there, in the response to the noble Lord, Lord Campbell-Savours. I was certainly not seeking to reduce the oversight of the parts of Her Majesty’s Government that relate to intelligence and security matters and which are beyond the three agencies. Quite the contrary; I want to make it clear that I do not think my amendments would have done that.
Having heard the Minister tell the House that it is intended to protect the scope of the work of the ISC and, like others, looking forward to seeing some form of document within the next few days because I think Third Reading is next week, I beg leave to withdraw the amendment.
Lord Butler of Brockwell: My Lords, this amendment is in my name and that of the noble Marquess, Lord Lothian. I shall couple with it Amendment 23. I am grateful to the Opposition, who have given their support to these amendments. They relate to circumstances in which the ISC may consider operational matters. At the moment, these are defined in Clause 2(3), which states:
“The ISC may … consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that
(i) is not part of any ongoing intelligence or security operation, and
(ii) is of significant national interest, and
(b) the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
The problem is that that is too restrictive, but I want to make clear at the outset that the ISC does not aspire to consider current operational matters unless the Government have some particular reason for asking it to.
The reason why the wording is too restrictive is that at present there are three tests that have to be passed by an operational matter for the ISC to continue to consider it. The first is that it,
“is not part of any ongoing intelligence or security operation”.
“is of significant national interest”.
“the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
However, the preface to that is that the ISC and the Prime Minister must be satisfied that those conditions are met. That would curtail the present operations of the ISC considerably.
I shall cite one example. When the SIS operation in Libya went so badly wrong and it got into the newspapers, the first thing that happened, quite rightly, was that the chief of SIS wrote a letter to the committee to explain what had gone wrong. If the words of this provision were taken literally, he could have done that only if he had first cleared his lines with the Prime Minister. I could repeat lots of examples of matters where something appears in the press and the heads of the intelligence agencies then report to the ISC. However, the provision says that before any operational matter can be considered, the Prime Minister has to be satisfied that the three tests are passed. My first amendment would omit the words,
“the ISC and the Prime Minister are satisfied that”,
so that the provision would read, “The ISC may consider any particular operational matter but only so far as” the three tests were passed. In other words, it would remove the hurdle of satisfying the Prime Minister, which certainly does not apply at the moment. To have to satisfy the Prime Minister in each case would add a new and cumbersome bureaucratic procedure, which I doubt very much that the Prime Minister would welcome, let alone the ISC.
Doing that alone, however, is not sufficient, and that is where Amendment 23 comes in. That amendment says that the three tests would have to be passed before the ISC could consider an operational matter, and one of those tests would be that it was not part of any ongoing intelligence or security operation.
As I said, the ISC has no aspiration to consider an ongoing operation, unless the Government ask it to. It normally looks at operations retrospectively, but there are circumstances in which it suits the Government to ask the ISC to look at an ongoing operation, so Amendment 23, which my noble friend and I have tabled, states:
“The ISC may, notwithstanding subsection (3), consider any particular operational matter if the relevant Minister of the Crown agrees to consideration of the matter or it is consistent with the memorandum of understanding”.
An example of where this was necessary was cited by the noble Lord, Lord King. When he was chairman of the committee, it was asked by the Home Secretary of the day to consider the Mitrokhin case. That was a circumstance in which it suited the Government to ask the ISC to consider that operational matter. It would be very quixotic if the ISC had to say to the Government, “Sorry, you may have asked us to look at this matter because it would help you, but I am afraid we’re not allowed to because there is an absolute ban on it in the Bill”.
The purpose of these two amendments is to give more flexibility to the Government about the circumstances in which the ISC may look at an operational matter. It is not the ISC’s wish, in normal circumstances, unless the Government want it to, to look at matters retrospectively. The purpose of this amendment is to increase the flexibility which has been removed by the current drafting of the Bill. I beg to move.
Baroness Smith of Basildon: As noble Lords will see from the Marshalled List, we have added our names to Amendments 18 and 23, as the noble Lord, Lord Butler, noted, and we have also tabled Amendment 24 in this group.
The noble Lord, Lord Butler, has proved a worthy proponent of his Amendment 18, which would return the procedure for determining whether a matter should be considered by the committee back to the status quo by removing the requirement for the committee to seek the approval of the Prime Minister before making any such decision. It seems absolutely clear that the committee is bound in statute to abide by the remit set out in Clause 2 and it should not have to seek the approval of the Prime Minister to determine that it had done so. I agree with the members of the ISC and the noble Lord, Lord Butler of Brockwell, who have argued that not only is this overly bureaucratic but it is a step backwards from the current position where the committee itself determines, on the basis of given criteria, whether a matter falls within its remit.
Amendment 23, to which we added our name, and Amendment 19, which was tabled by my noble friend Lord Campbell-Savours, address the same point, but in a slightly different way. The Bill reflects the status quo by incorporating operational matters, which the committee has been de facto undertaking for some time, into the formal remit of the ISC. However, it seems overly prescriptive for the Bill expressly to prohibit the committee from reviewing ongoing operational matters. All Members of your Lordships’ House fully accept that there are security issues to do with reviewing operations that are current and may risk compromising individuals involved. However, there may be rare cases where an operation carries on for a long time and, despite the risk being minimal, it is still considered current by the standards of the Bill. It seems much more reasonable to make a general stipulation against the review of ongoing operations but to allow the committee to review such matters in special circumstances if it has the express consent of the relevant Minister.
Opposition Amendment 24 is a repeat of that tabled by my noble friend Lord Campbell-Savours in Committee. It would require the ISC to consider a request by a Select Committee to review a certain matter related to
the ISC’s remit as well as any request to provide the Select Committee with information. It should be clarified that under no circumstances would the amendment require the ISC to act on any such request from a Select Committee, for instance, to disclose sensitive information or that simply would prove to be unmanageable for the committee’s workload. It would be a request. However, fostering greater communication and collaboration of Select Committees in Parliament could be only a positive development for the ISC.
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Lord Campbell-Savours: When I originally read this wording in the Bill prior to the Committee stage, alarm bells immediately rang. When I saw the reference to ongoing operations, I tabled the original amendment. The noble Lord, Lord Butler of Brockwell, in his contribution, really set out the case very much in the way that I would wish to argue it and I do not wish to repeat what he said.
However, he referred to one operation, which perhaps illustrates where the problem might arise. I refer to the issue of what happened in Libya. I did not know the detail of what happened there but I presume, from what the noble Lord said, that it was reported to a committee. I should have thought that that is a typical example of something which fell under the description of these matters given by the noble Baroness, Lady Manningham-Buller, in Committee when she referred to operations being—if I recall correctly—finite and coded. Am I right in saying finite and coded?
Baroness Manningham-Buller: Yes.
Lord Campbell-Savours: I should have thought that that operation in Libya was a typical example of something that was finite and coded but which, as we know, was referred to the committee prior to the operation being completed. One wonders whether that operation would have fallen foul of what is in the Bill as it stands. I have no doubt that the Minister has in his brief, in very large red letters, “resist at all costs”—perhaps more than many of the other amendments that we have considered today. I would imagine that the services are particularly worried about this area. However, I would say to them that they must go away and reconsider this issue.
This is classic House of Commons debating material. I should have thought that the House of Commons will latch on to this wording and really drive it in Committee very hard. The Government should get a better line in dealing with these matters than we have heard hitherto.
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I am grateful to the noble Lords, Lord Butler and Lord Campbell-Savours, and the noble Baroness, Lady Smith, for introducing these amendments, three of which concern the ISC’s ability to oversee operational matters and the fourth concerns the relationship between the ISC and Select Committees. It is worth reminding ourselves that one of the purposes of the Bill is to extend the ISC’s statutory remit. It makes clear its ability to oversee the operational work of the security and intelligence agencies and of other parts of the Government’s intelligence machinery.
With this formalisation, we certainly expect that the ISC will provide such an oversight on a more regular basis. The provisions of the Bill allow the ISC to consider,
“any particular operational matter but”—
as the noble Lord, Lord Butler, quite properly indicated by quoting from the Bill—
“only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest”.
The starting point is that the ISC’s oversight in this area ought to be retrospective and, so as not to cut across the role of Ministers, should not involve, for instance, prior knowledge of approval of agency activity. It is important that when there is an ongoing operation, or indeed a future operation, the responsibility for national security lies with Ministers. The noble Lord, Lord Butler, made it clear that the ISC is not seeking to intervene in that and accepts that the primary and principal responsibility lies with Ministers.
The ISC’s consideration of an operational matter must also,
“be consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
The first amendment would have the effect of leaving it solely to the judgment of the ISC to decide when the criteria for considering a particular operational matter are met. It is our intention that the memorandum of understanding will set out the factors that should be taken into account in assessing whether a particular operation is still ongoing or is of significant national interest. None the less, while fully accepting that the committee does not have ambition or aspiration to extend beyond what is said, I am sure that even reasonable people could come to a different view about whether those particular criteria are met or not in a particular instance.
I hope that noble Lords will agree that the judgment as to whether an operational matter meets the criteria is one that should properly be for both the ISC and the Government and not just for one or the other. It is important that the judgment is got right; I do not think that anyone is suggesting in any way whatever that there will be any deliberate attempt to intrude in circumstances where it has not previously been anticipated that the ISC should, but the last thing that anyone wants is for a different judgment to be struck that could lead to impeding the operational effectiveness of the intelligence agencies.
The noble Lord, Lord Butler, indicated what was perhaps at the crux of his concern. He mentioned the case of Libya. I understand that there may be a concern that the requirement that both the ISC and the Prime Minister should be satisfied that the criteria are met will slow down responses to more routine requests from the ISC for information about operational matters. The noble Lord used the word “cumbersome”. I assure your Lordships’ House that that is not the Government’s intention, nor do we believe that it will be the effect of the clause. However, I further assure your Lordships that we are looking very closely at this and it may well be that a memorandum of understanding to be agreed by the Government and the ISC is the right vehicle for agreeing a process that will allow the
information that the noble Lord indicated to be provided to the committee, and in an appropriately prompt manner. Alternatively, it may be that there are other approaches that might make the position clearer, and I suspect that as this Bill progresses through Parliament we may return to it. But I indicate that it is a matter to which we will give further consideration. It may be that the memorandum of understanding is a better way to address it—and I hope that, on that basis, the noble Baroness will not press that amendment.
The noble Lord, Lord Campbell-Savours, said that he would wish to remove one of the key restrictions on the ISC’s new power to oversee agency operations—namely, the requirement that its oversight of operations should be retrospective. There is nothing in red in my briefing, but there is an indication that the amendment should be resisted. We have worked with the current committee to develop the new arrangements, and it is the committee’s view, as the noble Lord, Lord Butler, made clear in his speech to his amendment, that the committee agrees with the Government that it should not oversee ongoing operations.
There are clear lines of ministerial responsibility for authorising agency operations, and we believe that they could be undermined by the ISC having prior, even contemporaneous, knowledge of particular operations. Secondly, once a particular operation has commenced, it may well be that things move very quickly, and it is essential that the agencies can focus fully on the task on hand. It is better to bring the committee in and have retrospective oversight of a particular operation. Indeed, some operations will be so sensitive, with perhaps highly sensitive sources in play, that the details are kept within a very small, need-to-know circle, even within the agencies. The committee fully understands this; it is part and parcel of the work that it does, and which it recognises that the agencies do on our behalf. Once an operation has concluded, the ISC will then be well placed to carry out its work, which will no doubt include making strategic and policy recommendations, and giving views on any lessons learnt. The noble Lord’s concern expressed in Committee, which he has reflected this evening, on how operations might be defined, particularly if there is a long-running set of activities, was whether that could be defined by the Government as a single operation. I certainly understand where the noble Lord is coming from, but that is not an appropriate or proper interpretation of the clause. The nature of operations varies, and this is one of the reasons why we have provided in the Bill detailed consideration as to how the ISC’s operational oversight remit should operate and should be set out in a memorandum of understanding, which the Government will agree with the ISC.
Lord Campbell-Savours: Would it not be better simply to remove the whole section on ongoing operations and deal with the whole thing in the memorandum of understanding?
Lord Wallace of Tankerness: No, my Lords. One of our purposes is to ensure that this is put on a statutory basis. That has not been the case hitherto and this is a step forward. I can reassure the noble Lord that it is not the Government’s intention that a long-running
operation be outside the scope of the ISC’s oversight for its entire duration. As the noble Baroness, Lady Manningham-Buller, explained in Committee, a long-running operation could, for instance, be broken down into discrete phases of operational activity, parts of which could be judged to be no longer ongoing and, on that basis, could be subject to the oversight of the Intelligence and Security Committee. I very much hope that on that basis the noble Lord will see fit not to press his amendment.
The third amendment in the group, Amendment 23, would allow the ISC to oversee an operational matter that does not meet the criteria in Clause 2(3) if the relevant Minister of the Crown agrees to the consideration of the matter. It is difficult to see the circumstances in which the provisions of that amendment would need to be used, although I listened carefully to what the noble Lord, Lord Butler, said. His concern was that there may be a circumstance whereby both the Government and the committee agreed that it was proper that there should be an investigation, but that it would be statutorily barred from that. The concern is that that amendment is aimed at allowing both to agree on what the ISC could consider. I am sympathetic to the kind of situation that the noble Lord described. The Government are not convinced that there is a need for this amendment, but we appreciate the intention behind it, which is to introduce a degree of flexibility that might prove useful in the future. It is certainly a matter that we would want to keep under review as work continues on drafting the memorandum. We would be willing to look at that again because, as the noble Lord indicated, it would relate to an issue on which there was agreement between the Government and the committee. It is just a question of how we can get that right without opening up to some unintended consequences.
Finally, I turn to the amendment of the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, which raises some important points relating to the relationship between the ISC and Select Committees. The first part of that amendment would mean that Select Committees could ask the ISC to consider any request to review any particular issue related to national security. The second part would mean that a Select Committee could request that the ISC transfer information to it that the Select Committee,
“has stated it needs to carry out its function”.
“The terms of any consideration … are to be set out in a memorandum of understanding between the ISC and the Select Committee in question”.
Again, I recognise and appreciate the intentions underlying that amendment—an intention expressed by the noble Baroness to create a stronger link between the ISC and other committees. It certainly would be our intention that the new ISC should be closer to Parliament than its predecessor and that it should be a strong and effective committee. Equally, an important feature is that the ISC operates within a framework that enables its members safely to be party to highly sensitive material and that it can scrutinise matters that are secret and of which the rest of Parliament and the public, for good reason, do not have sight. Of course, at the moment it is open to Select Committees to write
to the ISC requesting it to review a particular matter. There is nothing in the new arrangements that will stop that. I am sure that any such requests will be treated seriously by the committee.
However, I have a number of concerns about the idea of creating a formal statutory mechanism for making and considering the requests. First, I am concerned that the ISC could become overwhelmed with requests to report on particular matters. If it acceded to all requests, the programme of work could be overtaken with matters that are of interest to other committees, which would take the focus away from the core work of the ISC. Secondly, there is the question of what the ISC would be able to say in response, given the highly sensitive nature of the agency’s work. Members of the ISC are of course bound by the obligations of the Official Secrets Act. Thirdly, if the ISC regularly refuses to action requests from Select Committees, an inevitable tension could arise between the ISC and those committees. I fear that that might undermine the perceived effectiveness of the new ISC and its closeness to Parliament.
On the requesting of information to help Select Committees with their work, it will be clear that there will be real limitations on what the ISC could provide, given that much of the material that is provided to the ISC is, by necessity, extremely sensitive.
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Lord Campbell-Savours: Have civil servants and the Minister considered the comments of the noble Lord, Lord Lester of Herne Hill, when he intervened in Committee on these matters? If they have not, why do they not meet him prior to Third Reading so that he can discuss with them his concerns arising from his experience as a member of the Joint Committee on Human Rights?
Lord Wallace of Tankerness: I recall having read, in the past 24 hours, a particular phrase from the contribution of the noble Lord, Lord Lester, to which the noble Lord, Lord Campbell-Savours, refers. I could take the Joint Committee on Human Rights in isolation but numerous other Select Committees could start making requests and the point I am trying to make is that if the ISC started to receive requests—indeed, it is possible at the moment and no doubt the committee considers them—but on a statutory basis, the concern would be that if the committee decided to respond positively to those requests, that would detract from its core function and purpose. Equally, the point I was making was that if it regularly refused action, that could lead to tension and detract from what we are trying to achieve by way of a greater closeness between the new committee and Parliament.
There is also the point that I was making about the information. By its very nature, some of that information will be extremely sensitive and will be classified as secret or top secret, according to the government system of protective markings, but the ISC, in its accommodation, staffing and procedures is set up to handle sensitive information. The ISC secretariat is vetted and its accommodation is secure. However, other committees are not set up to deal with such information, nor are they, we believe, in a proper
position to assess the damage that disclosure could cause. If the ISC refuses to provide information, again, that could lead to tensions between committees.
The new ISC will need to consider how it works with Select Committees and with Parliament more broadly, but I am concerned that the provision suggested in this amendment might serve to skew or disrupt the ISC’s work programme and its reputation could be damaged by refusals to take forward work or pass on information. It is important that the ISC can direct its own work programme as far as possible and focus its efforts on issues that it, with its unique perspective, thinks are most important. I appreciate the intention behind the amendment in the name of the noble Baroness and the noble Lord, but I hope that they will reflect on the concerns that have been expressed and feel able to withdraw it.
Lord Butler of Brockwell: My Lords, I am grateful for the Minister’s sympathetic reaction to Amendments 18 and 23. I will make two glosses on it. If I heard him right, he said that Amendment 18 would leave solely to the judgment of the ISC the test for considering an operational matter. I think he is thinking of the amendment that was moved in Committee because this amendment removes both the ISC and the Prime Minister. The Bill says:
“The ISC may … consider any particular operational matter but only so far”,
and it goes on to say that the matter,
“is not part of any ongoing intelligence”.
In other words, it means that it is a matter of fact and not something that the ISC could decide by itself.
The second point is that the Minister spoke about it as if these were matters where the committee asked for information from the agencies. However, as I think the noble Baroness, Lady Manningham-Buller, will confirm, that is not usually the case. The circumstances are that the agencies themselves take the initiative in reporting to the committee. They give the information—I should think that that is the case nine times out of 10. It would be a great pity if that closeness that exists between the ISC and the agencies were to be inhibited by a requirement that the agencies clear their lines with the Prime Minister before they can report such a matter.
Baroness Manningham-Buller: I have not intervened in this debate because I have really just been listening with interest and support most of things that have been suggested. If there were a great story in the press—with some truth in it or not, about the operations of the service—I would certainly regard it as my duty to report to the ISC as soon as I reasonably could. It would be reassuring to believe that there is nothing in this drafting to prevent that. It is part of the ongoing confidence-building between the two that the ISC does not have to demand a report on something like that, but gets an early report of the facts from the agencies.
Lord Butler of Brockwell: I am very grateful to the noble Baroness, who makes the point from her direct experience.
Lord Wallace of Tankerness: I hope that I gave reassurance that we recognise some of the issues that the noble Lord raised and that there is certainly a willingness to work through this. There is certainly no intention to retreat from the things which have normally been part and parcel of the ISC’s operations and deliberations up until now.
Lord Butler of Brockwell: I am very grateful to the Minister. On the basis on those assurances, I am very happy to withdraw Amendment 18.
Amendments 19 to 25 not moved.
Lord Butler of Brockwell: My Lords, this may be the last amendment that we consider this evening. I can move it very briefly indeed because I am very grateful to the noble and learned Lord, Lord Wallace, for putting his name to it and therefore take it that we are pushing at an open door. This amendment would remove the words “a draft of” in relation to the report submitted to the Prime Minister. The committee does not and never has submitted a draft of the report; it submits its report. The Prime Minister can then ask for certain redactions to be made before it is published. However, it is by no means provisional. I take it from the fact that the noble and learned Lord, Lord Wallace, has put his name to this amendment that the Government will accept the removal of the words “a draft of”.
Baroness Smith of Basildon: My Lords, since we are considering the last group of the evening, I confess to being envious of the noble Lord, Lord Butler. I have been in your Lordships’ House a relatively short time in comparison with him, but I have never had an amendment signed by both the Official Opposition and the Government. I congratulate him on that achievement.
There is not very much that I can say on this amendment that will not be said even better by others. However, I will say something regarding our Amendment 27. This is a revised version of an amendment which I tabled in Committee. This amendment would amend the grounds on which the Prime Minister may exclude matters from the annual reports. These are currently broadly defined in the Bill as that which the Prime Minister considers,
“would be prejudicial to the continued discharge of the functions of the Security Service”.
It goes on in that vein. We have argued that the primary reason for the Prime Minister to request the redaction of material contained within the annual report should be on the basis of national security, or that it risks a disclosure of sensitive information as defined in the Bill. Again, we have reservations that the reason given in Clause 3(4) is a bit of a catch-all provision which allows the Prime Minister to prohibit
the publication of material perhaps considered too critical and which may damage the reputation of government agencies.
Of course, we acknowledge that there may be circumstances in which the Government will need to prevent the publication of material. That may not be only on the basis of national security or the sensitivity of information. It could also be where the information might threaten the UK’s economic interests. However, it would be better to make such additional criteria transparent and accountable, in order to prevent any misrepresentation of the role of the Intelligence and Security Committee. Amendment 27 allows the Prime Minister to prohibit publication on grounds in addition to national security and the sensitivity of information, along the lines defined in the Bill, but also requires that the scope of the information must be set out in the MoU with the Intelligence and Security Committee. It is a moderate and reasonable amendment and I hope that the Minister will give it his consideration.
Lord Taylor of Holbeach: My Lords, I am delighted that the noble Lord, Lord Butler of Brockwell, moved his amendment. It received support from around the House and I am pleased to say that the Government are in a position to accept it. In Committee, the noble Lord, Lord Butler, and my noble friend Lord Lothian made the important point that the committee should be independent. I agree wholeheartedly. It will submit its report, not a draft of its report, to the Prime Minister, who may insist on redactions to the document but may not insist on any other changes. Again, I agree with this, so we are happy to accept the amendment.
Amendment 27 would have the effect of changing the grounds on which the Prime Minister might exclude any matter from a report to Parliament. It would add to the grounds for exclusion already described so that material might be excluded if it were of such a nature that it would be prejudicial to the continued discharge of the functions of the security service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities that fall within Section 2(2); if it were sensitive information as defined in paragraph 4 of Schedule 1; or if it were information that, in the interests of national security, should not be disclosed. For convenience, I will refer to the three possible grounds for excluding material as the prejudice to functions ground, the sensitive information ground and the national security ground. The amendment would also require that matters considered to fall under the prejudice to functions ground—currently the only ground for excluding information from the Bill—should be set out in a memorandum of understanding.
The ISC must be able to report candidly to the Prime Minister on sensitive matters. Inevitably, it will not always be possible to publish the full content of its reports because of the nature of the material contained in them. I do not think that there is any dissent in the House from that position. It follows that there must be an ability to redact information before ISC reports are published or laid before Parliament. In Committee, and amendment was tabled by the noble Baroness, Lady Smith—to which she referred—which would have made the criteria for excluding material from the
published report just the grounds of sensitive information and national security. The noble Lord, Lord Rosser, who is not in this place, explained that it was a probing amendment to try to find out why it was necessary to use the definition that was in the Bill rather than that in the amendment, which presented grounds similar to those in Schedule 1 for withholding information from the ISC. In the case of withholding material from the ISC, both grounds had to be fulfilled, whereas for these purposes material could be excluded from a report if either ground were fulfilled.
The sensitivity of information and national security grounds add nothing in substance. Material that falls within those grounds will necessarily also fall within the prejudice to functions grounds—unless in the case of sensitive information that is so historical or so widely known publicly that it is no longer sensitive, in which case there would be no real justification for excluding it from an ISC report to Parliament anyway.
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The test in the Bill is modelled on the one contained in the Intelligence Services Act 1994. It has worked well and is well understood by the committee and the Government. It has allowed material to be excluded where it should be excluded, but it has also allowed the Government and the ISC to ensure that as much of the ISC's reports that can be published are published. It is also not appropriate to require that matters considered to fall within the prejudice to functions
ground should be set out in a memorandum of understanding. It would be impossible to describe the sorts of matters that would meet that test in an exhaustive way.
As previously noted, this criterion has worked well throughout the history of the committee. One reason for that, no doubt, is its inherent flexibility. The nature of the material that might need to be excluded from the published reports of the ISC will vary over time, and the precise consequence of the disclosure of such material may also vary.
I hope in the context of my explanation that the noble Baroness will understand why I ask her not to press her amendment.
Amendments 27 and 28 not moved.
Clause 4 : Sections 1 to 3: interpretation
Clause 5 : Additional review functions of the Commissioner