Clause 1 - The Intelligence and Security Committee

Part of Justice and Security Bill [Lords] – in a Public Bill Committee at 9:00 am on 29th January 2013.

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Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department 9:00 am, 29th January 2013

We start with the important provisions relating to oversight of the Intelligence and Security Committee. Like the hon. Member for Kingston upon Hull North, I very much welcome the contributions we shall receive in our debates on part 1 from my hon. Friend the Member for New Forest East, given his membership of the ISC, and from the right hon. Member for Torfaen, a distinguished former Chair of the Committee. We shall have well informed debates on the proposals to strengthen and further develop scrutiny of intelligence and security matters.

The Bill makes significant changes to the status of the ISC. The ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The amendments concern other aspects of the ISC’s status, and the Government amendments in the group will further strengthen the ISC in a number of ways.

On Report in the other place, Lord Taylor announced the Government’s intention to make clear the parliamentary character of the ISC; to make a number of necessary consequential amendments; and to consider whether to  give the ISC bespoke statutory immunities that would provide it with protections that would replicate certain aspects of parliamentary privilege.

The Government amendments deliver on the Government’s intention. Amendment 4 would change the name of the Intelligence and Security Committee to “the Intelligence and Security Committee of Parliament”. The amendment will more fully realise the Government’s intention that the ISC should be a Committee of Parliament, created by statute. It will not have all the attributes of a departmental Select Committee, but it will become a Committee of Parliament for the purposes of other statutes, some of which I shall come to presently.

I note that the lead amendment has cross-party support; the hon. Member for Kingston upon Hull North has put her name to it. That reflects the strong feeling across the Committee—and, I am sure, the House—about the need to strengthen and enhance the scrutiny that the existing ISC provides. That is not in any way to undermine or criticise the incredible work that the ISC already does; the issue is about how we can strengthen that and take it further forward through the amendments.

As we are making it clear that the ISC will be a Committee of Parliament, we consider it necessary to make a number of consequential amendments. As a Committee of Parliament, the ISC would, for the first time, come within the ambit of the Freedom of Information Act 2000. Like other Committees, it would be a part of the House of Commons and the House of Lords for the purposes of the Act. To avoid a number of consequences and reflect the special character of the ISC, amendment 50 would amend references to the House of Commons and House of Lords in schedule 1 to the Freedom of Information Act to make it clear that they were not subject to the Act as regards

“information held by the Intelligence and Security Committee of Parliament.”

The amendment preserves the status quo, in that the Freedom of Information Act does not apply to information held by the ISC now. It will not do so in future. That is a desirable outcome, given the great sensitivity of much of the material held by the ISC. In addition, amendment 50 adds the ISC to the list of bodies under section 23 of the Freedom of Information Act. The result would be that ISC information—in other words, information supplied to or by the ISC, whether directly or indirectly, or which relates to it—in the hands of another public body or public authority subject to the Freedom of Information Act, was exempt information for the Act’s purposes. Section 23 is the absolute exemption. Any information falling within the terms of the exemption can be withheld without there being a duty to consider the public interest balance that would otherwise come into play under section 2 of the Freedom of Information Act.

We believe that the ISC sits comfortably in the list of bodies in section 23 and the exemption provided. The security and intelligence agencies are in that list and the ISC is a natural fit, given that the vast majority of its work deals with very sensitive information.

Adding the ISC to the list of section 23 bodies is also a protection for witnesses before the ISC. If an ISC witness is an employee in a Government Department, the Department inevitably holds copies of the witness’s written and oral evidence—the latter because the ISC’s practice is to send witnesses a transcript of their oral  evidence for checking. Without the full protection of a section 23 exemption, witnesses who do not represent the agencies might feel constrained about what they could say in evidence. That would make the ISC’s scrutiny role less effective; naturally, it relies on witnesses being frank about subjects that are, by their very nature, sensitive.

The ISC was set up deliberately, and rightly, to deal with sensitive national security material. It is the only Committee of parliamentarians that sees protectively marked material up to the “top secret” strap. Indeed, almost all the ISC’s work involves dealing with such protectively marked material. Its accommodation allows it to access and store such material, and its staff have all gone through developed vetting.

It may be argued that the existing section 23, because of its application to information supplied directly or indirectly by—or relating to—the agencies, provides sufficient protection. However, as the Bill broadens the ISC’s statutory oversight role beyond the agencies to the wider intelligence and security community, the ISC will increasingly hold material that is not covered by section 23 of the Freedom of Information Act, as it is not being provided to it by the three intelligence agencies.

Alternatively, it might be said that section 24, an exemption for national security-sensitive information, provides sufficient protection. However, that section is a qualified exemption, which means that it offers protection only in so far as the public interest in withholding the information for the purposes of safeguarding national security outweighs the public interest in disclosure of that information.

We believe that witnesses would be more guarded in what they said were there anything less than a complete guarantee that the information they provide to the ISC will not ultimately be disclosed under the Freedom of Information Act. It is worth noting that evidence given by witnesses before Select Committees is protected by an absolute, rather than a qualified, exemption; section 34 of the Freedom of Information Act provides an absolute exemption for information that is subject to parliamentary privilege. We would not, however, want the addition of the ISC to the list of section 23 bodies to inhibit disclosure of information about the ISC’s administration and running costs. We would therefore like to include, in the memorandum of understanding with the ISC, a commitment that each of the ISC’s annual reports will contain details of its staffing and running costs for the relevant period.

The Data Protection Act 1998 applies to Parliament, but with special rules to determine who is the data controller—the person within any organisation on whom most of the obligations under the Act fall. Section 63A of the Act says:

“Where the purposes for which and the manner in which…data are…processed are determined by or on behalf of”— either House—

“the data controller…shall be the Corporate Officer of that House.”

We do not believe that it is appropriate that the corporate officer should be the data controller for data processed by the ISC, but that is the likely effect of section 63A once the ISC is a Committee of Parliament. The sensitivity  of much of the data handled by the ISC means that the corporate officers will not be entitled to have access to them, making it impossible for the officers to ensure that the requirements of the Data Protection Act are followed. That is why we sought to make modifications in this regard.

In conclusion, the changes proposed by the amendments are intended to ensure that the ISC is able to operate effectively as a statutory Committee of Parliament, recognising the need for candour of witnesses and, we believe, recognising the special characterisation of the ISC.