Justice and Security Bill [HL] — Report (1st Day)

– in the House of Lords at 3:19 pm on 19th November 2012.

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Clause 1 : The Intelligence and Security Committee

Amendment 1

Moved by Lord Campbell-Savours

1: Clause 1, page 1, line 5, leave out "body" and insert "Select Committee of Parliament to be"

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 3:20 pm, 19th November 2012

My Lords, I hope that Members, wherever they are in the Palace of Westminster, will make a point of listening to this debate as it is a very important one and raises an issue which has been under continuing discussion, certainly in the House of Commons but outside it as well, over the past 14 years. The issue is very simple: the Intelligence and Security Committee-the ISC-which comprises Members of the Commons and of the Lords and which monitors the agencies responsible for national security, is to be reorganised. The Government propose that it should comprise a committee of parliamentarians constitutionally detached from Parliament: that is, an arm's-length committee.

My Amendment 1 proposes full Select Committee status for the ISC, thus enabling it to enjoy the absolute protection of privilege conveyed under Article 9 of the Bill of Rights 1689. Amendments 2 and 4 in the next group in the name of the noble Lord, Lord Butler, seek to graft on to the Government's arm's-length committee proposal all the rights and privileges of a full Select Committee. The Government claim that they can do this under some highly controversial statutory provision which lawyers believe could be overturned in the courts.

The issue for the House today is simple: why is there all this ducking and weaving by the Government to avoid giving the ISC full Select Committee status, which is what my amendment seeks to do? The noble Lord, Lord Henley, who was the Minister when these matters were considered in Committee, argued that the Government's proposal for the arm's-length committee was to ensure that safeguards are in place to protect against the disclosure of sensitive information, retain a statutory ability to prevent publication of sensitive material, ensure that the most sensitive material can be withheld from the committee and to ensure that safeguards exist so there is adequate provision for those exceptional circumstances where the disclosure of information even to the chairman would be damaging to national security. I find that quite remarkable. The Government also seek to ensure that, as regards appointments to that committee, there is little risk of unauthorised disclosure. I argue that all these safeguards are fully and equally available under Select Committee status without any potential challenge on parliamentary privilege.

There are three issues to be considered: the confidence of the public in the new arrangements; the practicality in terms of protecting national security; and, finally, privilege itself. On the confidence of the public I can do no more than quote the very wise words of the noble Lord, Lord Deben, in Committee. He said:

"The issue is the confidence of the public in this committee".

He added:

"The advantage of a Select Committee is primarily that it is something that people know and it has, over the years, established a position, as a concept, of independence".

He asked:

"Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special?-[Hansard, 9/7/12; cols. 925-6.]

I could not put it better myself.

On practicality, my amendments provide a choice. We could put this whole arrangement into statute with the consequential deletions of Clauses 1 to 4, or we could proceed by way of a series of parliamentary resolutions, which is my preferred option. Let me explain.

I believe that Parliament could carry resolutions that would make the committee as hermetically sealed as the structure that currently exists. We are told that such a committee could not be prevented from taking evidence in public session. In response, I argue that a resolution of both Houses could introduce a general prohibition on the Select Committee taking evidence in public. It could further place a requirement on the committee to seek the permission of the appropriate agencies and the Prime Minister in conditions of dispute. As prime ministerial appointees, members are currently responsible for reporting collectively to the Prime Minister. It is argued that such limited powers to report would not be possible if the committee were appointed by the legislature. There is no reason why the resolutions of both Houses should not stipulate the procedure to be used in the publication of reports. They could require the committee to publish its report subject to sidelining by the Prime Minister, as happens today, for reasons of national security. A resolution of both Houses could require that the committee sought the approval of the appropriate agency before reporting to the House. The resolutions could further provide that, in the event of a dispute arising between the agency and the committee over reports to the House, the matter could be referred again to the Prime Minister and the committee could be required to comply with his or her decision.

It is argued that although a Select Committee is neither more nor less likely than the ISC to leak, as a Select Committee it would have the right to publish reports in a way that could prove prejudicial to the interests of national security. A resolution of the House could introduce in response to that problem: a general prohibition on the Select Committee publishing reports without approval. It could further place a requirement on the committee to seek the permission of the appropriate agency and the Prime Minister in conditions of dispute. Safeguards would be available for every eventuality in the event that it were to be created a full Select Committee of Parliament. If, in unforeseen circumstances, the committee, or any member of it, threatened to breach the committee's rules and procedure, as agreed by the House in resolutions, it would always be open to the Leader of the House, on the instructions of the Prime Minister, to dissolve the committee or remove any member of it on a resolution, if managed with caution.

It is also argued that a move to a parliamentary arrangement could lead to greater pressure on Ministers to be accountable as witnesses with less emphasis on agency heads giving evidence. The argument is not supported by an examination of practices in some of the other committees of the House. All that is possible by way of resolutions in the House of Lords and House of Commons. I also argue that the committee needs increased powers to call persons and papers and to communicate with other committees. There are times when the information that comes before the committee should, in certain circumstances, be referred to other Select Committees, but, of course, with the permission of the agencies.

The ISC also needs the power to take evidence under oath. Select Committees have that power. It would not take all evidence under oath but it should at least have the power to do so. As I say, Select Committees have that power but the ISC does not. Without going into any details, there are times when the committee, if assurances were given under oath, might have the confidence, with the approval of the Prime Minister, to make statements that would be extremely helpful during the course of public debate and in the exercise of reassuring public opinion, which in my view is a very important consideration. Again, all is possible by way of parliamentary resolution or statute, if that be the will of Parliament.

To nail my case to the mast, I call in aid the wise words of that old parliamentary sage, the former clerk of the House of Commons, Mr W R McKay, who, in a letter to me of 21 July 1998-14 years ago-told me:

"You asked for my comments on the attached paper about a possible Select Committee on Security and Intelligence. The general premise in the paper, that select committees are creatures of the House is correct, and the House may, either in the committee's order of reference or by instruction, require a committee to sit in private or to take evidence or report in a particular manner. Thus the House could, if it so decided, require a committee to obtain the consent of an external body (you suggest the Prime Minister, or a relevant agency) before publishing particular evidence or, conceivably, before publishing a report ... the interpretation of the order of reference of a select committee is a matter for the committee itself to decide".

He quotes page 633 of Erskine May, the 2012 edition of which is updated on page 635-I checked this morning. He then sets the precedents for such a committee, going back to 1837: to name but a few, the Joint-stock Banks Select Committee of 1837, the National Expenditure Select Committee of 1939-40, and the Special Commission on Oil Sanctions of 1978-79. This is a former clerk to the House of Commons indicating to me that this is possible

The remaining and perhaps most important issue is privilege, which I have been discussing with the Minister outside the Chamber and in it. My proposals under Amendment 1 automatically carry with them the defence of privilege. The Government's alternative approach-supported by the noble Lord, Lord Butler-for an arm's-length committee established under statute does not enjoy any form of parliamentary privilege. The noble Lord, Lord Butler, argues that by adding the words "of Parliament", the committee can be seen as a servant of Parliament. He then quotes three examples: the Ecclesiastical Committee of Parliament, the Public Accounts Commission, and the Speaker's Committee on the Electoral Commission. I can now add two more to his list: the Speaker's Committee on the Independent Parliamentary Standards Authority-IPSA-and the House of Commons Commission itself. All are creatures of statute. None attracts any measure of protection under Article 9. These are not my words, but the words of the current clerk of the House of Commons in a letter to me last week, which he gave me permission to quote in this Chamber.

The Government are effectively seeking to cross that line. Article 9 is absolutely clear:

"The freedoms of speech and debate of proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament".

The proceedings of these arm's-length committees which I have quoted and those of the committee proposed by the Government are not proceedings in Parliament. It would be misconceived, an abuse, and wrong for them to acquire Article 9 protection. Statutory committees are a breed apart: they are outside bodies and one cannot just hand out the protection of privilege-an historic parliamentary right-as if it were confetti. The proposition that parliamentary privilege be applied by statute to the Intelligence and Security Committee is something which I personally view with deep concern if it is to be done under the arrangements being proposed by some both inside and outside this Chamber.

I do not doubt the ability of Parliament to legislate to apply parliamentary privilege. However, I believe that this would be misconceived. Privilege is not a kind of stardust which can be sprinkled on outside bodies; it attaches naturally to Parliament and the committees which it appoints directly. Furthermore, a new statutory provision might well encourage the courts to intervene in the application of parliamentary privilege: for example, to define what is and is not a parliamentary proceeding. This would have implications for the whole committee system in both Houses. While a court might have no difficulty in deciding that evidence formally given or a report made by a committee was covered by privilege, what about briefing material prepared by the staff for an evidence hearing, or visits or letters from the chair to members of the committee? We have no guarantee of the protection of privilege in these circumstances.

It might be said that over the years there has been little opportunity for the courts to decide on such matters, but in practice that is wrong. The House of Commons authorities intervene in a significant number of cases where the parties propose to rely on what we judge to be parliamentary materials. If the ISC were to be statutorily privileged, it, too, would need to intervene-or intervention would need to be made on its behalf-to avoid the point at issue being dealt with by default. Of course, the Commons' intervention would not be to assert Article 9 but to assert a new, highly controversial statute and privilege that the Government might be considering.

It is only too easy to challenge these matters in the courts-as we have experienced over the years. We all agree that the ISC needs the protection of privilege. The issue is how we do it. I appeal to the House that if we are to do it, we should do it properly. I fear that there will be a last-minute attempt, on a whipped vote in the Commons, perhaps on a Thursday afternoon when they have all gone home, to graft on to the Bill some statutory provisions covering privilege, or some means of protecting the ISC. All that will do is lead to future problems in the courts. Let us sort this out here today. I beg to move.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 3:30 pm, 19th November 2012

My Lords, the Intelligence and Security Committee has considered very carefully the amendments tabled by the noble Lord, Lord Campbell-Savours, to which the Opposition have given their support. As he said, they have some advantages. The committee is as enthusiastic as anybody about displaying the fact that it is a servant of Parliament and not just of the Executive. As the noble Lord said, if the committee were to become a Select Committee, that would automatically confer the protections that it needs to protect its proceedings in the interests of national security. However, I regret that, for reasons that I will explain, we cannot recommend that the House goes down the avenue that the noble Lord has recommended. We believe that the objectives can be achieved in other ways.

There is no difference in the House about the requirements that we need. We want to demonstrate that the Intelligence and Security Committee is a servant of Parliament. We all agree that on most occasions its evidence will need to be taken in private. We all agree that there will have to be safeguards in relation to appointments to the committee, and that both the evidence and the witnesses need protection from judicial intrusion or from the Freedom of Information Act 2000. There must also be safeguards against the committee inadvertently compromising national security in its published reports. There is no difference between us on any of these matters. The only question is how they should be achieved.

The noble Lord, Lord Campbell-Savours, would like the committee to become a Select Committee of Parliament, which would automatically confer privilege. He also wants the safeguards that I mentioned to be protected and conferred by parliamentary resolution. Safeguards secured by such resolution would confer privilege but would not automatically protect the proceedings of the committee from the Freedom of Information Act. As I understand it, if such protection from a Freedom of Information Act request is to be given, it has to be considered by, and depends on a certificate from, the Speaker. I see that the noble Lord is nodding his head at that.

That illustrates the difficulty. The noble Lord is recommending that the safeguards for national security in the proceedings of the Intelligence and Security Committee would no longer be a matter for the Executive but would be protected by a resolution of Parliament. In other words, responsibility for protecting national security would be transferred to Parliament, but I submit to the House that that is objectionable in principle. The Executive cannot surrender their responsibility for protecting the work of the intelligence agencies and national security. That, in the last resort, must be a matter for the Government. That is the fundamental objection to the noble Lord's proposal.

There is another objection. There can be circumstances in which the Government ask the Intelligence and Security Committee to inquire into a very secret matter in order to satisfy the Government that the intelligence agencies have not been behaving wrongly. That is not something that a Select Committee could be used for. That sort of secret request, where something needs to be looked at in confidence, is not something that the Executive could require a Select Committee to do on their behalf. The Intelligence and Security Committee simply would not be able to fulfil the functions that it needed to fulfil if it became a Select Committee of Parliament. I say that with regret, because there are many advantages to that route.

The noble Lord made a big point of saying that to proceed by way of giving the Intelligence and Security Committee-a committee created by statute-parliamentary privilege has disadvantages. I acknowledge that. When it comes to my amendment, which seeks to confer the advantages of privilege on the Intelligence and Security Committee, I acknowledge that point and I will not be pressing that way of doing things. But of course it is perfectly possible, and indeed more desirable, to put those protections in the Bill without any reference to parliamentary privilege at all. That would overcome the objections that the noble Lord has legitimately raised. I suggest to the House that that is the better route.

For those reasons, I regret that I and my noble friend Lord Lothian, who regrets that he cannot be here today, and the Intelligence and Security Committee cannot advise the House to take the route that the noble Lord has proposed.

Photo of Baroness Taylor of Bolton Baroness Taylor of Bolton Labour 3:45 pm, 19th November 2012

My Lords, I rise to speak with some hesitation because I have not been able to take part in these debates previously. However, I feel as a former chair of the Intelligence and Security Committee that I should echo some of the concerns that the noble Lord, Lord Butler, raised, particularly what he said about the Executive not being able to surrender responsibility for security.

On the other hand, I very much agree with what my noble friend Lord Campbell-Savours said about the importance of privilege for the Intelligence and Security Committee and I am not entirely convinced that this can be solved in any other way. I have a dilemma. There are conflicting things that we are all trying to do. We are trying to make the Intelligence and Security Committee as effective as possible. I am not convinced that a Select Committee would in any way be more effective. I think that the current arrangements work rather well, but I am struck by my noble friend's desire to increase confidence on the part of the public in that committee and I know that that is what he is trying to do.

However, he has not gone into the practicalities of a Select Committee on this occasion as he has done on others. For example, every member of the House of Commons can attend a Select Committee, so the normal rules could not apply there. The practicalities of location could be met, I am sure. I am left with this dilemma because I do not think there is any way in which the Executive can give up their responsibility. I am not sure about the mechanisms that have been mentioned-for example, the Speaker giving authorisation-and I am worried about freedom of information, although I am worried about freedom of information on a raft of issues and not only on this one.

There are two groups of amendments and, in a sense, we are going on to the next group, which relates to parliamentary privilege and is absolutely essential to the issue of whether we need to go down the path of a Select Committee. My noble friend thinks however, that if there were to be a Select Committee as he envisages, with all the complications that exist, it would increase the confidence of the public. On the first occasion on which the ISC, as a Select Committee, refused to give information or agreed to redactions that people then probed and it was not able to give answers, the Select Committee would be criticised just as much as the ISC has been in the past. I hope that my noble friend will resist the temptation to raise expectations about any increase in accountability or transparency were this committee to become a Select Committee of the House because I do not think that it could function in that way.

Many of us who have been involved worry that the agencies took a little time to come round to giving information when the ISC was first established-I see the noble Lord, Lord King, who was chair at that time, nodding in agreement-and we could suffer a setback if this committee became a Select Committee. It might be recoverable, but we would have to re-establish a system of confidence once again. I hope my noble friend will not raise expectations that this would suddenly mean more accountability and transparency. The one issue that concerns me is making sure that the ISC has all the protection that it needs.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

My Lords, the House is getting a surfeit of chairmen, members and former members of the ISC and I am delighted to follow the noble Baroness. She followed directly after me-I think that is right, if my memory is correct-and the noble Lord, Lord Campbell-Savours was a very diligent member of the committee during part of the time when I was chairman. I would like to welcome a promising new young member of the ISC in the shape of the noble Lord, Lord Butler-who, very unusually, has sat on both sides of the fence, as one might say, and speaks with all the authority of seeing it from both sides.

I respect the approach that the noble Lord, Lord Campbell-Savours, has taken. He has the credit of holding this view continuously for a considerable number of years and has pursued it very diligently, as is clear from the speech he has made in your Lordships' House today and the detail into which he has gone. I am on record as saying that I have seen the evolution of this committee progressively over the years. The noble Baroness, Lady Manningham-Buller, made exactly the point that it was bound to evolve, has evolved, is continuing to evolve and will evolve in the future. The question that faces your Lordships today is whether we should now take a further major step forward and recommend it that it should go straight to a Select Committee.

I am very disappointed that the noble Lord, Lord Campbell-Savours, has tabled Amendment 1 because I thought the previous feeling of the debate in Committee was that it was right to consider Amendment 2-which had previously been Amendment 1-the proposal of the noble Lord, Lord Butler, and then, in the light of what the House thought about that, to move to the amendment of the noble Lord, Lord Campbell-Savours. The noble Lord is a very astute parliamentarian and his Amendment 1, if I may say so, is entirely a device to get in at number one, because if the House was to vote for it his subsequent amendments would abolish it. If the House agreed to Amendment 3, it would delete the clause in which he had just carried Amendment 1. It would then delete all the clauses that apply to the ISC. That, of course, is the position. He is saying that nothing should be set up under statute and therefore you do not need anything in this Bill about the ISC. You pass the responsibility for creating the appropriate committee over to the authorities in the House of Commons with the support of this House. We do not have the opportunity to consider the alternative approach yet, although the noble Lord, Lord Butler, has given us a good snapshot of what the House might be interested in doing.

There was common agreement in Committee that it is absolutely vital that the committee develops, as it has progressed significantly beyond the 1994 Act which limited its powers and responsibilities simply to the Secret Intelligence Service, the Security Service and Government Communications Headquarters-GCHQ. In those first few years, we extended progressively into the assessment staff in the Cabinet Office, the JIC organisation and the Defence Intelligence Staff. I brought in the NAO to oversee the finances and produce reports on financial aspects on which we needed further advice. We also took in evidence on police activities, including in the area of serious crime, and a whole series of different things which spread its range. I would like to think that, under successive memberships of the committee, it has commanded significant public confidence. Indeed, I remind noble Lords that it has been going for 18 years and I do not think there have been any serious allegations of leaks. There might have been, if not a nod, perhaps a suggestion of one, but I have to say that over the period there have been significantly more from the intelligence agencies, which are meant to be distrustful of our ability as parliamentarians to contain secrets. On this occasion I will not go into the details of Mr Shayler and Mr Tomlinson, both people who did not give great service to our country in particularly difficult times.

I did not realise that the noble Lord, Lord Butler, was going to mention this, but there is a role for the ISC that is quite outside Parliament, in the sense of being mandated by it, on which the Government did come to the committee. The Home Secretary at the time, Jack Straw, rang me and said, "We have a problem. Some very serious allegations are being made and it is not going to be dealt with simply by us issuing denials that they are true. Will the committee undertake to investigate the allegation of a failure by the Security Service in connection with the Secret Intelligence Service to root out serious Warsaw Pact Soviet espionage?". If people do not know what I am talking about, it got into the tabloids as the "granny who came in from the cold". A KGB archivist, Mr Mitrokhin, provided the most amazing fund of top secret intelligence. Having been turned down by the United States-I think he went to the US embassy in Vilnius, although at the time all sorts of people were turning up at US embassies, so they said that they had too many of them-but fortunately a suitably intelligent British agent spotted the potential value of the archive. It was top secret stuff and I said that we would undertake the investigation only on the condition that we had access not as circumscribed in the Act but to any secret information that was in any way relevant to the case. We took full evidence, including from Mr Mitrokhin himself, and many noble Lords will have seen the outcome of that. The report showed that although one or two mistakes were made, the more serious allegations against the intelligence and security agencies were not justified. I like to think that that report, from an all-party committee drawn from both Houses, investigating an absolutely top secret matter, commanded considerable public confidence.

It is important that this committee commands public confidence in this country. As the Foreign Secretary says in his article in the Times today-more in connection with Part 2 of this Bill-it is important, too, for this committee to have a role in maintaining international confidence. As a country, we depend enormously on our intelligence agencies and what they produce, but also considerably on a whole network of alliances of intelligence agencies. The difficulties of the world at present are such that one cannot be sure from where the next challenge, terrorist threat or any other sort of threat, such as that from organised crime, might emerge. We must maintain international confidence that our intelligence agencies and parliamentary oversight procedures are secure to the standards that our allies would expect for information that may be extremely sensitive as far as they are concerned.

As the noble Lord, Lord Campbell-Savours, made clear, that background is such that, whatever we come out with here, it cannot be an ordinary committee. The noble Lord, Lord Campbell-Savours, wants to abolish the ISC as it stands under statute and just create a select committee. He then, very properly, includes a whole range of extra requirements that would have to be added to a select committee for it to operate in this way. He very confidently said that all the necessary safeguards would be available. However, I do not know what authority he has for saying that, as it will be a matter for the House to decide which of those safeguards it wishes to impose. That is why the point made by the noble Lord, Lord Butler, is surely right: the Government cannot surrender or pass over responsibility for national security. The Government must maintain that responsibility; our duty in Parliament is to hold them to account for how they discharge that responsibility.

I wait to see whether the Minister can help us on the legal point made by the noble Lord, Lord Butler. We have managed to stumble along for 18 years without getting too worried about the issue of privilege, but it now seems to be becoming much more of a concern that we should have that protection, if it is necessary. Why can it not simply be put in the Bill and made quite clear what that privilege protection is? That would seem to be an entirely satisfactory way to deal with it.

A number of complications arise, whichever route we take. When the noble Lord, Lord Henley, summed up the debate in Committee on this point, he made clear that the Government would go away and reflect on the comments that had been made. We were privileged at that time to have the noble Lord, Lord Carlile, here, who, as your Lordships will know, of course has considerable experience in the security field with the responsibility that he had. He said that he respected and welcomed what the noble Lord, Lord Henley, had said and that he would wait to hear the Minister's conclusions when he came back-we welcome the noble Lord, Lord Taylor, who has now taken over that responsibility-but he did not actually, as the noble Lord, Lord Campbell-Savours, knows, support the Select Committee route. I do not support it at this stage either but do support the steps that need to be taken. I think the noble Baroness and I are pretty much in step on this: we should ensure that the committee is recognised to have as parliamentary a status as is possible, while retaining for the Executive the overall responsibility for national security and ensuring that the ISC-which I would like to think has made a reasonably promising start-can continue to evolve and serve the nation as it has sought to do in the past.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs) 4:00 pm, 19th November 2012

My Lords, this has been an extremely interesting debate, as was the debate we had in Committee. I am at something of a disadvantage-or perhaps it is an advantage-as the Minister and I are the only speakers in this debate who have not been members or indeed esteemed chairs of the ISC. I think I heard the noble Lord, Lord King of Bridgwater, say, "Good"-I hope it is.

I support the amendments tabled by my noble friend Lord Campbell-Savours, and I will explain the reasons why. I join the noble Lord, Lord King of Bridgwater, in paying tribute to my noble friend Lord Campbell-Savours because the way that he has brought forward this argument today does the House a great service.

In Committee, many Members of your Lordships' House, who have had a lifetime's experience of these matters, proposed a number of different ideas for reform of the Intelligence and Security Committee, ranging from the designation of parliamentary privilege through to issues such as public hearings. What was striking in that debate-and is again today-was that there was an overwhelming consensus on all sides of the House that the Bill could be significantly bolder. It has been evident throughout the debate that there is some dissatisfaction with the Government's approach. Your Lordships' House does not feel that what is before it today adequately addresses some of the concerns raised in Committee.

We fully support the Government's stated aim, which is, as the noble and learned Lord, Lord Wallace of Tankerness, said at Second Reading,

"improved parliamentary and independent oversight of the security and intelligence agencies".-[Hansard, 19/6/12; col. 1661.]

What we have in Part 1 of the Bill, as illustrated by this and the next group of amendments, is a missed opportunity. In Committee, we discussed a range of different options for strengthening the independence of the ISC beyond what is proposed in the Bill. What emerged were two different blueprints for achieving pretty much the same aims and objectives. First, the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, two distinguished members of the committee, proposed an arrangement along the lines of existing parliamentary committees established by statute, such as the Ecclesiastical Committee, the Public Accounts Committee, the Speaker's Committee for the Independent Parliamentary Standards Authority, and the House of Commons Commission. The committee as envisaged would have the independence and powers afforded by being a creature of Parliament rather than the Executive, but would retain the security of checks and balances provided for in statute. The second way forward, proposed by my noble friend Lord Campbell-Savours, seeks to establish the Intelligence and Security Committee as a fully fledged Select Committee of Parliament, having all the privileges attached to that arrangement, but with safeguards or restrictions provided through resolutions of Parliament rather than statute. I think my noble friend Lord Campbell-Savours used the phrase "hermetically sealed".

However, both these blueprints are seeking to achieve the same end point. They are both seeking a concept of the ISC as a creature of Parliament rather than the Executive; independence that is recognised by the public but still guarantees the absolute security of sensitive information disclosed to the committee; and maintaining the good relations and trust that have been established with the agencies. It seems that the choice between the two concepts is one less of principle and more of practicality: which proposal will best achieve this end? My noble friend Lord Campbell-Savours and the noble Lord, Lord Butler of Brockwell, have both confirmed that they are seeking to achieve the same ends.

As my noble friend Lord Campbell-Savours has already stated, chief among the advantages gained by being a parliamentary Select Committee is parliamentary privilege. This would grant the ISC, among other things, protection of members and witnesses by parliamentary privilege, which encourages free disclosure within the secure confines of the committee; the power to take evidence under oath; and the power to hold witnesses in contempt for deliberately misleading the committee.

I have listened carefully to my noble friend's arguments about the designation of parliamentary privilege, and in Committee we debated and supported amendments moved by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, to grant the ISC parliamentary privilege by amending the Bill of Rights. Indeed, I have attached my name to similar amendments in the next group, because I fully support the ISC obtaining parliamentary privilege. However, if, as my noble friend Lord Campbell-Savours, has compellingly argued today, there are serious problems with seeking to designate privilege in this way, it would appear that a Select Committee arrangement is the only option that would satisfactorily guarantee the committee these powers. The notion that privilege, if gained in the way that has been proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, may be struck down by the courts, which I am absolutely clear is not what they are seeking, is hugely concerning. If witnesses and members of the committee had given evidence to that committee under the assumption that they had immunity, only later to have that immunity revoked, it would have huge implications for the work of the committee. The absolute and total guarantee of parliamentary privilege is therefore a compelling reason to support the ISC's move to full Select Committee status.

The question then rests on whether a Select Committee arrangement could be relied on to act in a way that absolutely guaranteed, without qualification, the protection of our national security. The Opposition would support the establishment of the ISC as a Select Committee only where such a guarantee could be satisfied. Under no circumstances should any change in the structure of the ISC result in sensitive information being disclosed that could put at risk our national security or the safety of intelligence sources or operations. Restrictions or safeguards on the committee's powers could include a number of areas-we have heard of some of them today-and others that may be agreed by Parliament. For example, the Prime Minister could veto the publication of material by the committee for reasons of national security; proceedings of the committee could be closed to the public unless agreed by the Executive and/or provided for under its own terms of reference, such as annual public hearings of the heads of the agencies; there could be an executive prerogative to instruct the Leader of the House to dissolve the committee or to remove one of its members by a resolution of Parliament; or there could be a veto or agreement of a nomination to the committee. I use those just as examples- there will be others that I am sure will occur to your Lordships, particularly those who have been members of the ISC-but providing for such safeguards in legislation, as in the Bill before us, is perhaps the clearest way of ensuring that they are met.

In Committee, the noble Marquess, Lord Lothian, argued against a Select Committee structure on the basis that it would necessitate public evidence sessions. He rightly said that,

"there are many occasions when to attempt to take evidence in public would create an even less high regard for the committee that it maybe has at the moment, because questions would be answered by the agency heads with the words, 'We cannot answer that question'".-[Hansard, 9/7/12; col. 923.]

I completely agree with the noble Marquess on that point. In the majority of cases, the committee must sit in private. To do otherwise would not only damage the reputation of the committee, as I have said, but, most seriously, undermine its core function of effective oversight over the intelligence services. However, as has been argued by my noble friend, the mechanism by which Select Committee powers and terms of reference are constituted are sufficiently flexible conceivably to provide for any one of those concerns.

I understand from my noble friend Lord Campbell-Savours that he has it on the authority of clerks of both this House and the other place that Parliament may, either through the committee's order of reference or by instruction, specify the terms under which the committee may sit, may take evidence and report, including requiring the consent of another body including the Government. Indeed, there are already known precedents for such restrictions. The Defence Select Committee already holds evidence sessions in private in order to hear classified and national security-sensitive information. For its recent report on maritime surveillance, published in September this year, it held part of its first evidence session in private. As my noble friend has indicated, there have been instances in the past where the House has resolved that a committee report to the Prime Minister and it may even be precluded from publishing certain material on the grounds of national security. Given those assurances, a Select Committee arrangement would both guarantee the ISC parliamentary privilege and ensure the necessary safeguards for our national security.

My understanding is that, if the House were today to pass my noble friend's amendment and the Government accepted the will of your Lordships' House, the Government could seek to withdraw Clauses 1 to 4 of the Bill in the Commons and then issue a statement that they would seek agreement through a resolution of the House to establish the ISC as a Select Committee of Parliament. If the Government and the Opposition were unable to reach agreement over the terms of such a resolution-including all the necessary safeguards that I have referred to and others-then presumably the ISC would continue under its present arrangements.

We have heard a compelling argument from my noble friend Lord Campbell-Savours that it is not possible to designate a body of parliamentary privilege such as the ISC simply by amending the Bill of Rights or by other statutory means. If this is indeed correct, it is undeniably a compelling reason for pursuing the Select Committee route rather than the statutory one. However, even if were possible to do so, there is a further reason why we believe that the Select Committee should be the model that we aim for. That reason was expressed by the noble Lord, Lord Deben. I am sorry that he is not here today as his contribution in Committee was valuable. In Committee, the noble Lord, Lord Deben, was supported by the noble Lord, Lord King, and the noble Baroness, Lady Manningham-Buller, when he asked:

"Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special"?-[Hansard, 9/7/12; col. 926.]

This is more than just a cosmetic change. The parliamentary Select Committee structure is one widely recognised as being capable of serious and robust scrutiny. It is a concept that is familiar to the public and one that they understand as being independent. While I agree with the noble Lord, Lord King of Bridgwater, about public confidence in the committee I do not think that most of the public know of the existence of the ISC, whereas they are aware of the structure and work of Select Committees. Even if it were possible to guarantee the committee watertight parliamentary privilege, as I now seriously doubt, it would still ultimately be a hybrid committee. A halfway house would undeniably be better than what we have in the Bill but it would still be a peculiar body. If we are to go to all the effort of dressing up the ISC to look and sound like a parliamentary Select Committee, although with question marks over parliamentary privilege, why not simply have a Select Committee to do the job fully?

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

My Lords, I thank the noble Lord, Lord Campbell-Savours, for presenting his amendments in such a typically articulate way. He draws to our attention the challenge that faces us in achieving confidence-the word that was used by many noble Lords and spoken of by my noble friend Lord King of Bridgwater. In a nutshell, this is about the scrutiny of Parliament and the responsibility of government, and how those two can be reconciled. Although the noble Baroness, Lady Smith of Basildon, talked about not wishing to create a special committee, this is a special committee because it deals with matters that are self-evidently outside normal public scrutiny.

This group of amendments, which I thank the noble Lord, Lord Campbell-Savours, and others for bringing to the House, concern the status of the ISC and, although we have not talked about it much, the remit of the Intelligence Services Commissioner. As my noble friend Lord Henley previously noted, the Bill proposes a number of important changes to the ISC's status. Members of the ISC would be appointed by Parliament, rather than as at present by the Prime Minister, and those members would be free to choose their own chair. The ISC is created by statute to ensure that there are safeguards in place to protect against the disclosure of sensitive information and therefore the Government do not consider it appropriate for the ISC to be a full Joint Committee established under the Standing Orders of each House, as other Joint Committees are. I hope that noble Lords will find it useful for me to expand on this reasoning.

It is essential that the ISC operates within a framework that protects the highly sensitive material to which it has access. In particular, the Government must be able to prevent the publication of sensitive material by the ISC. They must have be able to withhold the most sensitive material from the committee-albeit that those powers are rarely used currently and can be expected to be rarely used in future-and must have some role in the appointment of members of the ISC. Without guarantees in those three areas, the risk of disclosure of information that might damage national security would be increased. That might, in turn, lead to a situation where agency heads found it hard to reconcile their statutory duties to protect information with their duty to facilitate oversight. That could therefore lead to the sharing of less sensitive information and a corresponding reduction in the effectiveness and credibility of oversight.

The Bill provides the necessary guarantees in each of those three areas. The Prime Minister would be able to require matters be excluded from the ISC's reports if the matter would be prejudicial to the discharge of the functions of the agencies or the wider intelligence community. Ministers would be able to withhold information from the ISC in the limited circumstances provided for in paragraphs 3 and 4 of Schedule 1. A Member of this House or of another place would not be eligible to become a member of the ISC unless they had first been nominated for membership by the Prime Minister.

Although it may be possible to replicate those safeguards in Standing Orders of this House and another place, Standing Orders can be amended at any time, as noble Lords will know, and can be suspended for a specific period, or dispensed with for a specific purpose, by a Motion in the relevant House. Standing Orders do not therefore have the same permanence, or provide the same level of protection to sensitive information, as statutory provisions to the same effect.

It seems to me that we can divide the noble Lord's amendments into two sets. Both are concerned with the same aim-that the new ISC should be a Select Committee-but they get there by different routes and with different consequences. It is not absolutely clear what the effect of the noble Lord's first two amendments would be. If we were to accept them and the amendment that he proposes to Schedule 2, the ISC would still be created by statute in the Bill and safeguards would still exist to protect national security in the three areas that I have listed. My noble friend Lord King of Bridgwater drew attention to the inconsistency of the amendments, but we accept the noble Lord's wish to draw the issue to the attention of the House in the way that he has by tabling Amendment 1.

The noble Lord's amendment would not create a full Joint Committee, because that can be done only by the Standing Orders of each House. It would create an entirely novel body-a Select Committee established by statute. To what extent would such a body share the characteristics of other Select Committees? The Bill makes clear, even were it amended in other respects according to the noble Lord's wishes, that the ISC is quite different from other Select Committees in fundamental respects-for instance, in relation to appointments and reporting. That being so, it is unclear whether or to what extent changing the ISC in this way would give it the other characteristics of a Select Committee. Indeed, the risk is that describing the ISC as a Select Committee when it has characteristics that are not shared by such committees could mislead as to the ISC's true character. For these reasons, I hope that the noble Lord will see fit to withdraw his amendment and that the noble Baroness, Lady Smith of Basildon, will reconsider her position on it.

The noble Lord's next four amendments would, together, remove the first four clauses, which deal with the ISC. It is to be assumed that the noble Lord's intention with those amendments is that a new ISC should be created solely by the Standing Orders of each House. Indeed, the noble Lord said so in his speech introducing his amendment. I have already listed the vital safeguards relating to appointments, reporting and provision of information contained in the Bill. Without these safeguards, we will increase the risk of unauthorised disclosure of the sensitive information to which the committee has access. As I have already said, Standing Orders can not adequately replicate the safeguards against disclosure of information that might damage national security contained in the Bill. It is only by enshrining these safeguards in statute that we can ensure that they are sufficiently robust and enduring.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

My noble friend has put much more clearly what I tried to allude to. The only correct position that would seem to emerge from the noble Lord, Lord Campbell-Savours, and the noble Baroness who speaks for the Opposition is that nobody should vote in favour of Amendment 1. If they vote for it and do not carry Amendment 6, we will have a complete muddle. What is involved here is actually not voting on Amendment 1; the issue about the Select Committee should properly be addressed under Amendment 6.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

If Amendment 1 were to be carried, there would be discussions in the House of Commons. It would probably come back with a decision and an announcement to the House that it intended to set up a committee by way of parliamentary resolutions, so none of those issues would arise.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

I hope that I can reassure my noble friend and the noble Lord that I intend to use my eloquence so that the House is not presented with this issue of confusion. That must be my task, and I will pray in aid the words of the noble Lord, Lord Butler of Brockwell. I hope that the House will not mind if I quote him at length. In Committee, he said:

"I think we all agree that the ultimate purpose is that the public should have confidence in the committee's scrutiny of the intelligence services. However, it was clear from the speech of the noble Lord, Lord Campbell-Savours, that if this were to be a Select Committee, it would have to be hedged around by a very large number of parliamentary resolutions, and that would have the same effect as the constraints that are written into the Bill. The question is: would that make it more convincing if it were a Select Committee when it was a Select Committee unlike any other because it would be so inhibited by those restraints?

They say that something which looks like a duck and quacks like a duck can be regarded as being a duck, but this would not look like or quack like a Select Committee; it would be something completely separate".-[Hansard, 9/7/12; cols. 933-34.]

I hope noble Lords understand why I wished to quote the noble Lord; it was such a brilliant précis of the position.

I can see much force in that argument. It was reinforced today by the noble Lord and by the former chairman of the ISC, the noble Baroness, Lady Taylor of Bolton, and my noble friend Lord King of Bridgwater.

The noble Lord, Lord Campbell-Savours, raised the question of parliamentary privilege. It may be possible to give the committee bespoke statutory immunities that would provide it with protections which would replicate aspects of privilege. The noble Lord said that that might well be what the Government are proposing, but it would not be the same as legislating to provide the same privileges for the committee. If the ISC were given privilege by statute, as the noble Lord, Lord Campbell-Savours, said, that might encourage courts to rule on proceedings in Parliament. Courts already rule on this question. The Supreme Court judgment in the recent Regina v Chater case is an example of that. For instance, it might be possible to give protection for witnesses before the ISC so that the evidence they give to the ISC in good faith cannot be used against them in criminal, civil or disciplinary proceedings. The Government are considering whether that is a viable approach and whether it is the best approach to tackle this issue. We may bring forward amendments to deal with this issue at a later date.

The addition of the "of Parliament" amendment, proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian-accepted in principle by the Government and to which we will come presently-would have a number of consequences. One possible consequence is that the ISC would have the power to take evidence on oath. This, in turn, raises the possibility that those who intentionally mislead the committee, while giving evidence under oath, would be subject to the same sort of sanctions which might apply in similar circumstances to a witness before a Select Committee. If, on further analysis, that is not a consequence of that amendment, we would be content to look at whether there is the need for a provision in the Bill to make clear that the ISC may take evidence on oath. I hope that the noble Lord, Lord Butler of Brockwell, will be happy not to move his amendment in the light of what I have described of the Government's position on these matters of privilege.

I turn to Amendment 30, which again is tabled by the noble Lord, Lord Campbell-Savours, and relates to the role of the Intelligence Services Commissioner.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

That is an error on my behalf. I tabled it over the weekend when we were not here. I will not move that amendment.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

My Lords, I apologise for that and will move on to deal with the substantive issue. The work of the commissioner is a different role from that of the committee. Of course, it complements it. I hope that we will be able to use our ability to enhance it and ensure that it continues to meet our needs. The Government believe in strengthening oversight and, clearly, the commissioner has a role in that.

On the basis of the arguments that I have presented, I hope that the noble Lord will withdraw his amendment.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

My Lords, I am grateful to all those who have participated in this debate. In my response, I want to dwell on something that the noble Lord, Lord Taylor of Holbeach, slipped into the middle of a sentence. He used the word "aspects" of privilege. The distinction between what I am calling for here-Article 9 protection under the 1689 Act-as against what he is proposing, is full privilege for a Select Committee of Parliament to be known as the intelligence and security services Select Committee.

When I talk about full privilege, I am not talking about some qualification of freedom of information legislation, which I suspect is what the Government and perhaps even the noble Lord, Lord Butler, have in mind, but about full privilege under the Act: rights of access to documents covered by privilege; rights to call Ministers covered by privilege; rights to hold in contempt covered by parliamentary privilege; rights to insist on evidence being taken under oath, if necessary, under parliamentary privilege; rights to have witnesses protected from the courts; rights to have Members protected from assault on free speech; and protection of Members against a threat of intimidation or any undue pressure which prejudices their rights to act freely as Members of Parliament.

These are rights contained in Article 9 of the Bill of Rights, which I do not believe that it will be possible for the Government to allocate as they propose, whether under the statutory provision which we have been talking about up until today or the amendment of the freedom of information legislation, which is the debate going on behind the scenes.

I would like to deal with the issue raised by the noble Lord, Lord Butler of Brockwell, when he talked about transfer of responsibility from the Executive to the Speaker. As I understand it, under the arrangements that the Government propose, instead of a Speaker's Certificate being required in an FOI case there would be a ministerial certificate. This House is full of lawyers, and I am not a lawyer-but am I mistaken in thinking that a ministerial certificate can be overturned by an information tribunal? That is what the law says, although I am not a lawyer and am ready to stand corrected. But if that is the case, it means that this is not an argument over whether you are simply transferring the responsibility from the Executive to the Speaker, potentially you are transferring it from the Executive, on matters of national security, to the information tribunal. Perhaps I am wrong but, even as a barrack-room lawyer, I think that I have got that right.

On the view expressed by my noble friend Lady Taylor of Bolton, I regard perception as extremely important in this whole discussion. Is a halfway house committee, detached from Parliament, more credible in terms of public perception than a full Select Committee of Parliament, circumscribed in the ways that I have suggested to the House in the course of moving my amendment?

I am sorry that the noble Lord, Lord King of Bridgwater, cannot support me today, but we are on the route. As I said to him before, privately, inevitably we will end up with a Select Committee-the question is when.

My noble friend Lady Smith of Basildon pointed to the precedent of a Select Committee on Defence in the House of Commons handling these matters in conditions of secrecy and dealing with them as if they were matters of national security, and secret. I understand that committees of this House have dealt in exactly the same way with very sensitive material and have not leaked; all I am asking is that those committees be replicated in a wider Select Committee, comprising Members of both Houses.

Finally, this is not a precedent. Countries throughout the western world have Parliaments that have Select Committees on intelligence. Some on occasion even meet in public-I have not advocated that. They do not leak, and when the members of our ISC travel abroad, as I did when I was on the committee for five years we often met Members of other Parliaments who sat on Select Committees in their Parliaments dealing with these matters. In the United States of America, in the Congress and the Senate, they have Select Committees. If they can do it, why cannot we? It is on that basis that I wish to test the opinion of the House on this amendment.

Division on Amendment 1

Contents 162; Not-Contents 247.

Amendment 1 disagreed.

Division number 1 Justice and Security Bill [HL] — Report (1st Day)

Aye: 160 Members of the House of Lords

No: 245 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 2

Moved by Lord Butler of Brockwell

2: Clause 1, page 1, line 5, after "Committee" insert "of Parliament"

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 4:46 pm, 19th November 2012

In moving Amendment 2, I wish to speak also to Amendment 4, with which it is grouped. I hope that I can deal with this group of amendments shortly because the Minister, rather unusually, dealt with them in his response to the previous group of amendments and asked me to withdraw them, which I will do.

However, if I have a complaint against the Government, it is that I moved these two amendments in Committee, seeking that the Intelligence and Security Committee should be described as the Intelligence and Security Committee of Parliament to emphasise its role as a servant of Parliament rather than as a servant of the Executive. I also moved Amendment 4 in Committee, which seeks to confer privilege on the committee. On that occasion the Minister-the noble Lord, Lord Henley-spoke sympathetically in response to both amendments, as, indeed, has the Minister today. The noble Lord, Lord Henley, said on 9 July, some four months ago:

"Noble Lords will understand from what I have said that there is a degree of sympathy for both amendments, and particularly the first, but more work needs to be done".-[Hansard, 9/7/12; col. 918.]

Four months have passed and it seems that the Government have not done that work and reached a conclusion in amendments that they could put before the House today. That is a pity.

These are probing amendments. The Minister has said again that he is sympathetic to the addition of the words "of Parliament". A more substantial issue is Amendment 4, which seeks to confer privilege on the Intelligence and Security Committee. As has come out in the earlier debate, there are genuine difficulties about that. I acknowledge that in response to the noble Lord, Lord Campbell-Savours. I understand that the clerks of the two Houses of Parliament see difficulty in extending parliamentary privilege in this way.

On behalf of the Intelligence and Security Committee, I want to make it clear that the safeguards that are provided by parliamentary privilege are essential-not parliamentary privilege itself. Provided those safeguards can be in the Bill-in other words, the protection of witnesses and the protection of the proceedings of the committee from judicial intrusion or the Freedom of Information Act-that is equally satisfactory. The noble Lord, Lord Campbell-Savours expressed some doubts about that and the Minister, in reply, said that there were aspects to be considered. It seems to me that it cannot be impossible for those protections to be provided statutorily in the Bill. Provided that is done, I would not seek, nor would the Intelligence and Security Committee seek, to press Amendment 4. I hope to hear from the Minister, if he does not mind repeating himself a little, that the Government will seek to provide those protections that the Intelligence and Security Committee needs in an alternative way from that of privilege. I beg to move.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

I wish to intervene only very briefly, perhaps to rephrase the question about the ministerial certificate that I put during the course of my previous intervention. Is it true that the ministerial certificate could be overturned by a tribunal? Perhaps those in the Box can advise the Minister. If that is the case, it means that the responsibility has been transferred from the Executive to the tribunal, as against being transferred from the Executive to the Speaker. We should know whether that is the case.

If I am correct, the noble Lord, Lord Butler of Brockwell, is suggesting that somehow that to which I am referring could be dealt with in the legislation whereby there would not be a right to challenge a ministerial certificate, as is the case with a Speaker's certificate. When he talked about judicial intervention, perhaps he was referring specifically to that. As I understand the freedom of information legislation, it is not possible for a challenge to be mounted against a certificate granted by the Speaker. That is why I always felt that it was far better that the Speaker had that role, because the Speaker of the House of Commons would always uphold national security. It is inconceivable that a Speaker could not be trusted in these circumstances. It seemed to be being suggested that because this power was being transferred from the Executive to Parliament, it was placing something in jeopardy. On the contrary, I should have thought that the Speaker of the House of Commons-whoever that might be at any stage, now or in the future-could be thoroughly relied on to be as secure as the intelligence services themselves in protecting national security.

In one of his amendments, the noble Lord seeks to add the words "of Parliament". Where we have a committee set up outside of Parliament-at arm's length-are we saying that, in order to make it look as if it represents Parliament in some way, we simply tag "of Parliament" onto the end to give it the imprimatur of Parliament. As a concept, it is ridiculous and it abuses the institution. What other organisations or statutory bodies of such notable importance are going to be set up with these words simply added onto the end in order to give them some extra credibility? I am opposed to an amendment of that nature.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

My Lords, much of the debate regarding this amendment was covered in the debate on the previous group of amendments. I will therefore keep my comments brief. We put our names to the amendments proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. We considered that the arrangements that they are proposing for the ISC, which is a variation of a statutory parliamentary committee, to be the next best option were the Select Committee option to fail.

In the previous debates, I referred to a committee being strengthened in its independence by the privileges and status afforded by being a creature of Parliament rather than a creature of the Executive, while retaining robust safeguards over the constitution and the work of the committee in the interests of national security. The idea of a security committee that is covered by parliamentary privilege and also bound by safeguards established by statute is of course attractive, as it would give the absolute guarantee needed on issues such as the disclosure of sensitive information and the appointment of members. However, my concerns lie-the noble Lord, Lord Butler, also acknowledged these deficiencies-with the argument raised by my noble friend Lord Campbell-Savours that parliamentary privilege conferred in this way would be suspect and potentially challengeable in the courts. That makes me nervous and I am sure that it makes other Members of the House nervous. If my noble friend is right that the present statutory committees of Parliament are not covered by privilege, it is difficult to see how statute can provide for it in this case, for the fundamental reason that the committee will not be a fully fledged body of Parliament.

In Committee, the noble Lord, Lord Henley, said that discussions would take place. The noble Lord, Lord Butler, referred to that. I am very concerned that, if I understand correctly, the noble Lord, Lord Butler, said that no discussions on the issue have taken place with the Government. There is an overwhelming desire on all sides of the House to get the issue right.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

Perhaps I may do justice to the Government. There have been discussions. My complaint is that they do not seem to have reached a conclusion.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

I do not know whether that is better or worse. It is disappointing that the Government have not been able to reach a conclusion, given the overwhelming desire on all sides of the House to get this right and to ensure that the committee has the privilege that it will need to do its job properly. I remain concerned about the process that is being used. I wait with interest to hear what the noble Lord will say about the consequences of pursuing parliamentary privilege in this way. Without assurances that the committee will have full privilege, I will have serious reservations about the viability of the proposed amendments, despite the fact that I fully support the aims behind them.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

My Lords, I was tempted to make a relatively short summary for this debate, but the amendments tabled by the noble Lord, Lord Butler, give me the chance to elaborate on certain matters to which other noble Lords alluded. As we know, the proposal of the Government in the Bill is to change the ISC's status. It will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The two amendments in this group concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. The Government's intention is that the ISC will be a committee of Parliament created by statute. It will not be a classic Select Committee that covers departmental bodies, but a statutory committee of Parliament.

The Government are in principle supportive of the amendments tabled by the noble Lord, Lord Butler, to change the name of the committee to the Intelligence and Security Committee of Parliament. While we are not in a position to support the amendment at this stage, we will be in a position to do so later. I hope that in what I say I will give the House reassurance that the time since July has not been totally wasted, and that the Government are quite a long way down the road of sorting out the particular issues to which noble Lords quite rightly drew the attention of the House. If the ISC becomes a committee of Parliament, it may even be necessary to make some consequential amendments. The amendment may bring the ISC within the ambit of the Freedom of Information Act 2000 by making it a part of the House of Commons and the House of Lords for the purposes of the Act, which was alluded to by the noble Lord, Lord Campbell-Savours. It may change the ISC's status under the Data Protection Act 1998, as Section 63A of that Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC's data-processing activities.

The noble Lord is right to make sure that the Government are aware of these issues. He may be referring to the exemption in Section 36 of the Freedom of Information Act. Suffice it to say that a number of other exemptions in the Act would also be relevant in an FOI request, not least Section 23, which is an exemption for information relating to or supplied by the agencies, which is an absolute exemption. If the noble Lord would like further details about this before Third Reading, I am happy to provide him with them. It may well be necessary to bring forward consequential amendments to make clear the status of the ISC under the Data Protection Act and Freedom of Information Act. Those matters will need to be thought through thoroughly. I hope that noble Lords will accept that the Government intend to proceed in this way.

The second amendment deals explicitly with the significant issue of parliamentary privilege. We have discussed this at some length in the previous group of amendments because much of the debate hinged on the protection of privilege. The House has considered this matter on a number of occasions in recent years. The Government's most recent consideration of the issue is contained in the Green Paper published in April this year.

Freedom of speech in the context of the Bill of Rights is just one aspect of parliamentary privilege. At present, the Intelligence and Security Committee is a statutory committee. It is a statutory committee of parliamentarians, but it does not benefit from parliamentary privilege. The amendment would provide that the proceedings of the ISC under the Bill would be proceedings in Parliament for the purposes of Article 9 of the Bill of Rights.

The noble Lord tabled the same amendment in Committee and my noble friend Lord Henley expressed a degree of sympathy with it on behalf of the Government and said that more work needed to be done. I hope that I have reassured the noble Lord that this work has indeed been done. The parliamentary authorities and the ISC have both been involved in these discussions, and discussions with the parliamentary authorities have highlighted that it would be a unique proposition for a statute to confer parliamentary privilege in this way. Indeed, the noble Lord, Lord Campbell-Savours, referred to that. It is conceivable that doing so could have wider and possibly unwelcome ramifications for the relationship between the courts and Parliament.

As I have already said, we have considered whether it is possible, instead, to give the committee bespoke statutory immunities that would provide the committee with protections that would replicate certain aspects of parliamentary privilege. For instance, it might be possible to give protection to witnesses before the ISC, so that evidence they give to the ISC in good faith could not be used in criminal, civil or disciplinary proceedings. We are considering whether this is a viable approach and whether it is the best approach to tackling this issue, and we may bring forward amendments.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 5:00 pm, 19th November 2012

The noble Lord has repeatedly said, "We are considering", and "It might be possible". There is an element of doubt. It may be possible, but if it is not possible, are they then ruling out Select Committee status?

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

My Lords, I have every confidence that a solution to the issues and challenges of providing the necessary protection will be found. However, I was not intending to use this debate to present those conclusions to Parliament. I am sure the noble Lord will look forward with interest to hearing them in due course.

I thank the noble Lord, Lord Butler of Brockwell, for tabling these amendments. I hope he will feel able to withdraw this amendment in the light of my reassurances on progress.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, I am grateful to the Minister for his reply and to other noble Lords who have spoken in the debate. I wish to make two points. First, the noble Lord, Lord Campbell-Savours, is being a little unfair in describing the Intelligence and Security Committee, even in its present form, as detached from Parliament. We do not feel detached from Parliament and, certainly in the circumstances described by the Minister, when we are more closely appointed by and report to Parliament, we will be even less detached. So there is some point in adding the words "of Parliament".

Secondly, the Minister raised a point about the certificate of exemption under the Freedom of Information Act. He said that a Minister's decision can be challenged at a tribunal whereas, on his understanding, the Speaker's certificate cannot, and so the committee would be safer in the hands of the Speaker than in the hands of the Minister. I had hoped, when he raised this point in the previous debate, that a lawyer would intervene and advise us. My understanding is that the Executive always has the last say on this. The Minister is quite right that a tribunal can overrule a Minister but, in the end, a Minister can overrule a tribunal. An example which the House will remember is the risk register on the Health Bill where, in the end, the Minister overruled the tribunal. My understanding is that a Minister always has the last word. I pause for a moment in case there is a lawyer in the House who can correct me but, if not, I offer that as my belief.

On the basis of what the Minister said and in the expectation that a solution can be found to providing the protections that the Intelligence and Security Committee needs other than by means of conferring parliamentary privilege, I am happy to withdraw the amendment.

Amendment 2 withdrawn.

Amendments 3 and 4 not moved.

Amendment 5

Moved by Lord Butler of Brockwell

5: Clause 1, page 1, line 17, at end insert "and the Chair shall be remunerated in line with arrangements for Chairs of Departmental Select Committees of the House of Commons"

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, again I can speak quite briefly to the amendment, which provides that the chair of the Intelligence and Security Committee should be remunerated on a basis similar to that of chairs of Select Committees of the House of Commons.

I emphasise that the present chair of the Intelligence and Security Committee has not asked for this amendment to be brought forward. However, the members of the committee feel strongly that the chair has to do a large amount of work-as I am sure the noble Lord, Lord King, and the noble Baroness, Lady Taylor, also did-and that it is an anomaly that, whereas other Members of the House of Commons who are chairs of Select Committees receive remuneration, the chair of the Intelligence and Security Committee does not.

As I understand it, the Government's position is that this is, in these days, a matter for IPSA. However, I hope that they will be willing to put this issue to IPSA with their recommendation that it should consider it sympathetically. If the Minister is prepared to go as far as that, my colleagues and I on the Intelligence and Security Committee will be happy not to press the amendment.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

My Lords, I vigorously support this amendment because it has always been my view that the chairman should be remunerated. I served under the chairmanship of the noble Lord, Lord King of Bridgwater, and he should have been remunerated, as indeed should my noble friend Lady Taylor of Bolton. However, what worries me a little is that the matter is to be left to IPSA. That is a very controversial proposition to put, not because IPSA is as unpopular in the Commons as we know it to be, but why should an organisation established to deal with parliamentary allowances and expenditure be required to deal with the expenditure of an outside body? This is the first body, but are we to presume that in the future IPSA will extend its tentacles to managing the financial arrangements of more bodies that are established under statute? Is this the beginning of the growth of IPSA into something even larger than the current organisation which is causing so much grief to Members of Parliament? I simply put the question. If a mechanism is to be found, perhaps I may suggest that IPSA is not the ideal organisation to proceed with this responsibility.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

My Lords, I support what the noble Lord, Lord Campbell-Savours, has just said-in the knowledge that there is no back pay in this world. It does seem very weird to be considering this. I am not sufficiently familiar with the remit of IPSA, but although we have been arguing about the extent to which this committee is or is not part of Parliament, in the area of pay and rations it appears to have been put right inside it.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

My Lords, my name and that of my noble friend Lord Rosser have been added to this amendment, as was the case in Committee. We argued then, and argue again now on Report, for the establishment of the ISC along lines similar to that of a Select Committee, and indeed preferably the same lines. It would therefore be inconsistent not to argue that the chair of this committee should be remunerated in much the same way as the chair of a Select Committee. The work that is undertaken is enormously serious and therefore the role should be recognised and fairly compensated on par with that of a chair of a Select Committee.

We have just heard comments about whether IPSA is the appropriate body for this role, and in Committee it was the Minister who said that it was. I have been involved in politics both in your Lordships' House and in the other place for a good many years and I still enjoy irony, which is much underused in politics, so I find the argument of the Government rather ironic given the debate over Select Committee status which has underscored the difference between this committee and a committee of Parliament. Perhaps the Minister can change the Government's position and we will accept the amendment.

The details of the committee's arrangements are to be established in statute, but when it comes to discussing remuneration, it will be for IPSA to decide. It really does not seem appropriate for that body to do so, and the Government cannot have it both ways. If the ISC is to remain a body provided for in statute and ultimately accountable to the Executive, which is the case in this Bill, then regardless of any closer ties to Parliament it remains a creature of the Executive. It therefore seems completely illogical for IPSA to be the body which decides on the remuneration of the committee's chair. I support the amendment. If the Government think that IPSA is the way forward, they have got it wrong, and I hope that the Minister will be able to accept the amendment.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

My Lords, we turn now to the remuneration of the ISC chairmanship. I have to say that the loyalty which members of that committee have shown to the chairmen and the work they undertake reflects the commitment that those who have held that office have demonstrated to the security services. I note the widespread view that this position should be properly remunerated in some way or another, and the Government support that view. There is no real consistency in the way that Select Committees are treated and no absolute rule that all Select Committee chairmen will be paid. In the Commons at present, not all Select Committee chairman receive a salary for those functions. In the Lords, there is only one such salaried chair, the chairman of the EU Select Committee, who is paid a salary-not by virtue of holding that position but by virtue of also being the Principal Deputy Chairman of Committees.

I ought to explain why the Government think that IPSA should be the body that considers the level of remuneration. At present for Members of the House of Commons, pay is the responsibility of IPSA. Currently IPSA pays MPs' salaries in accordance with resolutions of the House. Those resolutions specify which chairs of committees should receive additional pay. As I have said, not all Select Committee chairs are so specified. I should add for the sake of completeness that from 1 April 2013, IPSA will itself determine MPs' salaries in toto. It will have responsibility for setting the salaries for MPs generally and may determine that MPs who hold a position or office specified in a resolution of the House should receive a higher salary than ordinary Members of Parliament. That is, I think, a matter for Parliament. IPSA will only say what the pay should be for those holding such a position.

Where the chair of a committee is an office specified by a resolution of the House, the Government would be happy to support a Motion to that effect, which would indeed mean that the matter could be considered.

Photo of Lord Gilbert Lord Gilbert Labour 5:15 pm, 19th November 2012

I apologise for interrupting the Minister. Have the Government given any serious consideration to the possibility that the chairman of this committee, like the chairman of the PAC, should always be a member of the Opposition?

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

I have indicated to noble Lords that the chairman of this committee will actually be elected by the members of the committee itself, from within the membership of the committee. It is a matter for the members who they choose, in the customary manner. The chairman does not have to be a member of the Opposition or a member of the Government; he has to command the confidence of the members of the committee, who vote for the position.

Photo of Lord Gilbert Lord Gilbert Labour

We have a long-standing convention that the chairman of the PAC is a member of the Opposition. I think that is thoroughly healthy and am just trying to find out-or tease out of the Minister-whether the Government have a view one way or another whether it would be appropriate to have a similar arrangement for this committee.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

The noble Lord is persistent but he is more persistent than the committee has been long standing. The committee in its present form has not yet been set up. The new committee will establish its own traditions and it is not for me standing here at the Dispatch Box as a member of the Government to say how the committee should conduct its affairs when I, and the Government, have said that the committee will elect its own chairman. It is a matter for the committee to decide.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

My noble friend will recognise that this is a long-standing issue that has been raised by the noble Lord, Lord Gilbert. I happen to strongly support what he said and believe that it would be in the interests of the reputation and credibility of the ISC-which is of great advantage to the Government and the nation-if it is seen to be a committee that is in no sense government-led, or led by a member or supporter of the Government, but is chaired by a member of the Opposition.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

I am not at all doubting the value, for example, of the Public Accounts Committee, to which the noble Lord referred. However, it is up to this committee to decide whether to establish its own tradition. To predetermine its traditions, as suggested by the noble Lord, gives a false description of what "tradition" really represents.

I hope that the noble Lord will allow me to move on, because I was going to suggest another scenario: of course, there is no reason why the chairman of this committee should be a member of another place. It is a Joint Committee of both Houses, and although noble Lords may consider it unlikely that a Member of this House would be elected its chairman, that may indeed happen, and it probably would not be appropriate for the salary to be determined by IPSA in that respect. It would be a question of us seeking to resolve the issue should the occasion arise.

I understand what noble Lords and the noble Baroness are trying to achieve; that is, some sort of established practice within existing committee procedure. I have some sympathy with the argument. The ISC is an important committee, carrying out a very valuable oversight function, and the chairman of that committee has a critical role in that respect. However, deciding on the appropriate level of financial support for the chair of the ISC is very much a matter for existing mechanisms within the two Houses and would be best resolved in that way. It is for Members of the House of Commons and, for Peers, the House Committee to resolve this issue, not the Government. I hope that the noble Lord will feel able to withdraw his amendment.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, on the basis that Members of your Lordships' House receive no remuneration for being chairs of Select Committees, I am happy to have removed any incentive to run for this position. On the basis that it would be within the power of the House of Commons to move a resolution referring this to IPSA, and that the Government would give a favourable recommendation and support that matter, I am happy to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6 not moved.

Schedule 1 : The Intelligence and Security Committee

Amendment 7

Moved by Lord Hodgson of Astley Abbotts

7: Schedule 1, page 13, line 29, at end insert-

"(1) The Chair of the ISC shall be elected by the House of Commons by secret ballot.

(2) A candidate wishing to stand for election to the Chair of the ISC must seek in advance of the ballot the formal consent of the Prime Minister for their candidature, to be notified in writing.

(3) The first election will take place as soon as there is a vacancy in the Chairmanship, not at the next General Election."

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

My Lords, I rise to move Amendment 7. This is the first time I have intervened on Report so I draw the House's attention to the various relevant entries on the register of interests. I am grateful to my noble friend Lady Williams of Crosby for having put her name to this amendment.

I did not take part in the debates on Part 1 in Committee. My interests were much more with Parts 2 and 3, and I have tabled some amendments that we shall debate on Wednesday. However, developments since have led me to table this amendment, which inserts a new paragraph at the beginning of the section headed "Procedure" in Schedule 1 that provides for the direct election of the chairman of the ISC by Members of the House of Commons. To borrow the phrase of my noble friend Lord King, it is an evolutionary development in the power and prestige of the committee.

My purpose in moving this amendment can be simply stated. First, it is to buttress the independence of the chair of the ISC. Secondly, it is to increase the democratic accountability of that role. Thirdly and most importantly, it is to increase public confidence in the operations of the ISC. I make it absolutely clear that I am in no way attacking or criticising the existing or past holders of the office of chairman of the ISC, but my amendment reflects the fact that with the provisions of this Bill as a whole, the Government are moving into new, uncharted and potentially dangerous territory, which requires us to consider whether extra precautions are needed to buttress our civil liberties. I note in passing how the reputation and reach of the existing Select Committees appear to have increased since their chairs were directly elected.

The amendment would establish a further check and balance appropriate to the consideration of matters as complex and as delicate as national security. First, it would open up the chairmanship of the ISC to any Member of Parliament who wished to stand for it. In doing so, it would reduce the concern-I make no assessment as to whether it is justified-that leaving the appointment of the ISC entirely in the hands of the Prime Minister runs the risk of being rather too cosy for modern conditions. I note, and my noble friend Lord Taylor has referred to this already, that the Bill as drafted permits-empowers-the members of the ISC to choose one of their number to be their chair. While I welcome that development, I do not believe that it goes far enough. Since the Prime Minister controls the membership of the ISC, he controls the population from which the chair is chosen.

Secondly, the amendment would balance this by requiring each candidate to obtain the formal approval and consent of the Prime Minister before standing. This would eliminate candidates who might have shown no prior interest in or experience of the intelligence or security field, or shown-dare I say it?-an overdeveloped interest in opportunities for self-promotion. Thirdly, the amendment does not seek to wrench apart the existing arrangements immediately. The other provisions of the Bill will take some time to bite and so should this provision.

Let me also make it clear what the amendment does not do. It does not seek to make the ISC a Select Committee of Parliament-we have had an extensive debate on the amendments proposed by the noble Lord, Lord Campbell-Savours-so the reporting arrangements would remain unchanged, with the Prime Minister able to require redaction or exclusion as under Clause 3(4) of the Bill. I accept the force of the argument that there must be limits to transparency in this area.

My principal reason for tabling the amendment is that, as we move slowly but apparently inexorably into the shadowy world of closed material procedures, special advocates and restricted reporting, we need to ensure that there is at least one person at the heart of the process who has a direct democratic mandate given to him or her. As an example of how this power might be used, a number of amendments have been tabled to Part 3 of the Bill about review procedures, sunset clauses and so forth. A directly elected chair of the ISC could and should play a vital role in reassuring Parliament and the public that the new powers to be given under the Bill are being exercised properly but above all proportionately. I beg to move.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

My Lords, my name is also attached to the amendment and I congratulate my noble friend Lord Hodgson of Astley Abbotts on an extraordinarily brief and clear description of the reasons for it. I begin by paying a moment's tribute to the person-no longer alive, I am sad to say-who started the whole process of Select Committees. I still remember when I was a Minister in the Labour Government which fell in 1979 the amazement that I felt when Lord St John of Fawsley got up and proposed the idea of Select Committees, which were to be independent of the Whips and free to be accountable to Parliament and to express their concerns about matters of public policy. I think that the Select Committees have done this Parliament very proud indeed, not least at the far end of this building, in the House of Commons, where, time and again, they have come up with remarkable insight and courage in a way that has added hugely to the prestige of Parliament, a prestige that was becoming slowly lost because of the inevitable predictability of so many of our open debates.

The amendment which my noble friend has moved, which I support, fully comprehends the point made so effectively by the noble Lord, Lord Butler of Brockwell, which is that no Act of Parliament should be able to take away from the Prime Minister his fundamental responsibility for the security of the citizens of this kingdom. However, there is no need to go as far as the present ISC does in accountability passing to the Prime Minister rather than to Parliament as a whole.

The ISC is of course a special case. It is unlike any other committee of Parliament. It is certainly unlike Select Committees, but also unlike other committees that have served Parliament over the years. It is different, of course, because of the sensitivity of the material that it deals with. It is therefore the responsibility of this House, in its consideration, to try to get the correct balance between accountability to Parliament and the sensitivity of much of the material that the ISC deals with. The noble Lord, Lord King of Bridgwater, said that effectively, but rightly indicated that there was room for some evolution of this committee. Perhaps I might say a word or two about that evolution.

The proposers of this amendment have chosen it very carefully to ensure that a totally unsuitable person cannot be appointed to be chairman of this committee. As my noble friend Lord Hodgson said, we are leaving a veto with the Prime Minister against a candidate for chairmanship who might be wholly unsuitable. That is absolutely right because the Prime Minister, by the nature of his office, has a greater access to detailed intelligence than most of the rest of us. However, I have one word of warning because the issue of accountability to Parliament is of the first importance. In responding to an earlier amendment, the noble Lord, Lord Taylor of Holbeach, properly stressed time and again the importance of treating sensitive information with due respect and care. What he did not mentioned enough was that the House faces a genuine concern about intelligence. It is simply not the case that there is no public concern about the work of the Intelligence and Security Committee. I hope that I do not offend people by mentioning two cases that spring to mind.

One is that the general issue of intelligence goes back a very long way. Those of us who recall the period immediately after the Second World War will remember the so-called Cambridge group, who turned out to be extremely able people in the intelligence that they sent to the Soviet Union, and that every one of them was totally accepted as a respected member of the establishment. It took a long time for people to realise that people such as Sir Anthony Blunt and others could actually be spies.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour 5:30 pm, 19th November 2012

I have a great deal of sympathy with this amendment, but I cannot understand why the Prime Minister should be asked for formal consent. Consent, yes, but I do not understand the argument for formal consent.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

If the noble Lord, Lord Clinton-Davis, will allow me, I will finish the argument I am trying to make-I will not be lengthy-and then endeavour to address his question.

I want to go back for a moment to the other source of considerable concern about intelligence, one with which I have fairly close acquaintance: the doubts that were raised about the intelligence used as the basis for the British involvement in the invasion of Iraq. At the time, the question was whether the intelligence we had about the possibility of Iraq having nuclear and other weapons of mass destruction was sufficiently sound for us to rely on. It was my view and that of my party that it was not; it was the view, equally honestly held, of other Members of this House, that it was. There was uncertainty, which has left behind it a strong desire to seek greater accountability. We would be very foolish not to recognise that that is still a live issue.

I come back to the issues concerning the particular proposal that we have made and that my noble friend has put before your Lordships. The proposal that the House of Commons as such should be entitled to elect a chairman of such a key committee will enable it to take into account its experience of committees of this kind. I have a good deal of sympathy with the proposal of the noble Lord, Lord Gilbert, which was supported by the noble Lord, Lord King, that the chairman should normally be drawn from the opposition Benches. That seems to be a kind of double guarantee that the committee would seek to be objective and not to protect people who should not be properly protected.

The second argument for the House of Commons as such to appoint the chairman, subject to a veto of candidates by the Prime Minister, is that that would essentially make the committee the creature of the House as a whole. The committee would no longer report specifically to the Prime Minister; it would report generally to Parliament. That is an excellent idea because it brings all parties-indeed, both Houses of Parliament-together in supporting the intelligence committee.

I conclude by saying a word about formal recognition. That is simply to indicate how seriously the proposal of the Prime Minister's ability to draw the line at particular candidates must be taken. It would require him to agree in writing that that candidate should not be allowed to go forward in a certain, limited number of cases. I say as loudly and clearly as I can that this amendment meets the needs for greater accountability and what the noble Lord, Lord King, and the noble Baroness, Lady Manningham-Buller, said about the need for evolution of the committee to make it more accountable and democratic, in the broadest sense of the word. It is a proposal that the House should consider very carefully before making any final decision about it.

Photo of Lord Gilbert Lord Gilbert Labour

I am grateful for the noble Baroness's support on my little, modest proposal but I am afraid that I cannot follow her on this business about any member of the House of Commons being able to stand for the chairmanship and then the Prime Minister having the right, or duty, to veto. Can she not see the possibility of the appalling public relations shambles which that could lead to? She has much experience in ministerial office. As soon as it is known that the Prime Minister has vetoed a candidate, there will be enormous pressure on him to say why and all sorts of invidious matters will be drawn out. I am afraid that it would be very unfortunate, to put it mildly.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

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.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

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.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

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.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

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.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

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.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

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.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 5:45 pm, 19th November 2012

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.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

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.

Photo of Lord Martin of Springburn Lord Martin of Springburn Crossbench

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.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

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.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

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-

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

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.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

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.

Amendment 7 withdrawn.

Amendment 8

Moved by Baroness Hamwee

8: Schedule 1, page 13, line 31, at end insert "and to paragraphs (Pre-appointment hearings) and (Access to meetings)"

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

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.

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 wors,

"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.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 6:00 pm, 19th November 2012

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?

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

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.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

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.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

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.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

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.

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.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative 6:15 pm, 19th November 2012

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.

Photo of Lord Gilbert Lord Gilbert Labour

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.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

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.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

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-

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour 6:30 pm, 19th November 2012

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.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

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.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

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.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

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.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

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.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

I do not wish to prevent the noble Lord intervening but we are on Report. Therefore, I remind noble Lords-

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

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.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

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.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat 6:45 pm, 19th November 2012

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.

Amendment 8 withdrawn.

Amendment 9

Moved by Baroness Smith of Basildon

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."

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

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.

Division on Amendment 9

Contents 170; Not-Contents 200.

Amendment 9 disagreed.

Division number 2 Justice and Security Bill [HL] — Report (1st Day)

Aye: 168 Members of the House of Lords

No: 198 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendments 11 and 12 not moved.

Amendment 13

Moved by Lord Butler of Brockwell

13: Schedule 1, page 14, line 31, leave out paragraph (b)

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 7:00 pm, 19th November 2012

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.

Photo of Lord Geddes Lord Geddes Deputy Chairman of Committees, Deputy Speaker (Lords)

I believe that the noble Lord will now want to withdraw the amendment.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendment 14

Moved by Lord Taylor of Holbeach

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."

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

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.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

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?

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach The Parliamentary Under-Secretary of State for the Home Department

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.

Amendment 14 agreed.

Amendment 15

Moved by Baroness Smith of Basildon

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."

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

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.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Lords Spokesperson (Department for Work and Pensions), Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip)

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.

Photo of Lord Gilbert Lord Gilbert Labour

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.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Lords Spokesperson (Department for Work and Pensions), Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip) 7:15 pm, 19th November 2012

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.

Photo of Lord Gilbert Lord Gilbert Labour

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?

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Lords Spokesperson (Department for Work and Pensions), Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip)

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.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

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.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Lords Spokesperson (Department for Work and Pensions), Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip)

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.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

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.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

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", will survive.

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?

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

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.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

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.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

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.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Home Affairs)

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.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

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.

Division on Amendment 15

Contents 134; Not-Contents 182.

Amendment 15 disagreed.

Division number 3 Justice and Security Bill [HL] — Report (1st Day)

Aye: 132 Members of the House of Lords

No: 180 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Consideration on Report adjourned until not before 8.35 pm.