I beg to move amendment 35, in schedule 1, page 15, line 31, leave out ‘(5)’ and insert ‘(6)’.
With this it will be convenient to discuss the following:
Amendment 9, in schedule 1, page 15, line 31, leave out ‘(5)’ and insert ‘(7)’.
Government amendment 36.
Amendment 10, in schedule 1, page 16, line 3, at end insert—
‘(6) The ISC shall have a duty to consider meeting in public where it considers that to do so will not lead to the disclosure of sensitive information.
(7) The ISC shall not less than once in each calendar year hold a public meeting for which it shall determine applicable procedures.’.
Amendment 25, in schedule 1, page 16, line 3, at end insert—
‘(6) The ISC shall consider any request by a select committee of either House of Parliament to—
(a) review any particular issue related to national security; or
(b) transfer information to that select committee which it has stated it needs to carry out its functions as a select committee.
(7) The terms of any consideration under sub-paragraph (6) are to be set out in a memorandum of understanding between the ISC and the select committee in question.’.
Amendment 11, in schedule 1, page 17, line 5, leave out ‘paragraph 3(3)(a)’ and insert ‘paragraphs 2(6) and 3(3)(a)’.
We now move to schedule 1, which provides further details in respect of the arrangements for the ISC. In particular, we consider a number of amendments concerned with public hearings, the ISC’s relationship with Select Committees and the ability of the ISC to take evidence on oath.
I turn to Government amendments 35 and 36. On Report in the Lords, Lord Taylor said that one possible consequence of the “of Parliament” change is that the ISC would have the power to take evidence on oath. That raises the possibility that those who intentionally mislead the Committee while giving evidence under oath will be subject to the same sort of sanctions that 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.
Following the further analysis that Lord Taylor referred to, the Government are satisfied that a consequence of changing the status of the ISC to become a statutory Committee of Parliament, is that the ISC may, in future, take evidence on oath. The Parliamentary Witnesses Oaths Act 1871 concerning the power of Committees of the House of Commons to administer oaths—I am sure it has been bedtime reading for most members of this Committee and its Lords equivalent—taken with the Parliamentary Witnesses Act 1858 will give the ISC authority to administer oaths. Copies may be available for hon. Members who may be interested.
That important point underlines the oaths and activities of Select Committees. The 1871 Act also provides for who may administer an oath under that Act—the Speaker or a person appointed by the Speaker. It can also be done by any Standing Order or other order of the House. It is not appropriate that this provision should apply to the ISC, because the Speaker will not be privy to the overwhelming majority of the ISC’s proceedings. Owing to the nature of the matters that the ISC considers, its proceedings must generally be conducted in private.
The effect of amendment 36 is to displace that part of the 1871 Act so far as the ISC is concerned, so that an oath taken by a witness before the ISC can be administered by the Chair of the ISC or a person appointed to act in place of the Chair under paragraph 2 (3) of schedule 1.
Amendments 9, 10 and 11 would place duties on the ISC to consider meeting in public where it considers that to do so will not lead to the disclosure of sensitive information, and to hold a public meeting at least once a year. Given what we said in the preceding debate about the need for greater public confidence, I appreciate the intention behind these amendments. It is the intention of the Government and the current ISC that it should hold meetings in public, the first of which we hope will be held shortly.
However, I say to the hon. Lady that I have a number of concerns with the idea of creating duties for the ISC to consider meeting or to meet in public. As hon. Members may know, the 2007 Green Paper, “The Governance of Britain”, made a series of reform proposals aimed at bringing the ISC as far as possible in line with established 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. Unfortunately, the sessions did not subsequently happen. Building on this, the Justice and Security Green Paper stated that while the ISC’s meetings would still have to take place in private as a rule, both Government and the Committee were committed to the concept of public evidence sessions when they could be held without compromising national security or the safety of individuals. We hope that the first of those sessions will happen later this year.
Baroness Smith spoke powerfully in Committee in the Lords on the issue of public hearings. We fully agree that they can be valuable. She noted that public hearings should never be automatic for the ISC, but argued that they should become more routine, to take public confidence into account. Again, we fully agree that public hearings may be a means of improving public confidence in the ISC and its work but, by the same token, if handled badly they could also damage public confidence.
In Committee in the Lords, Lord Lothian, a member of the ISC, made the valuable point that public hearings would be counter-productive in so far as public confidence in the Committee was concerned if either the majority of questions posed was met with the response, “I cannot answer that”, or if the subject matter for the hearing was anodyne and the process completely rehearsed.
The Bill does not need to include specific provision to enable public evidence sessions. The existing ISC, created by the Intelligence Services Act 1994, has—as the ISC provided for in the Bill would have—power to determine its own procedures. That is sufficient for such purposes.
As the Bill is drafted, the ISC will be able to continue to work with the Government to take forward public evidence sessions carefully and incrementally, to ensure that the balance is right and that we do not fall into either of the traps described by Lord Lothian. Both the ISC and the Government want to make public evidence sessions happen and to ensure that they play an important and real role in holding the intelligence community to account.
By contrast, the effect of amendment 10 would be that, as soon as the legislation came into force, the ISC would be compelled to consider holding each of its meetings in public, if doing so were thought not to lead to the disclosure of sensitive information.
Significant practical issues must be dealt with, however, before meetings can take place in public. Introducing public meetings for a Committee that, for the vast majority of its work, is concerned with sensitive and highly classified information, will be challenging. The work of the ISC must largely be done in private. Only a small amount of the evidence submitted, whether written or oral, is unclassified.
At the other end of the spectrum of sensitivity, however, it is also true that only a small amount of the classified evidence that the ISC hears will be “sensitive information”, as that term is defined. The issue may be a technical one to do with the drafting of the amendment, but it is important to understand the point.
The definition of “sensitive information” is in paragraph 4 of schedule 1 and, as defined, it is a relatively narrow category of some of the most sensitive information that the ISC might see. Such information is concerned with agencies’ and others’ operational methods and sources and with particular operations, including ongoing and prospective ones, and includes information provided confidentially by another country and thus subject to the so-called control principle.
Defining “sensitive information” so narrowly in the Bill is quite right, because the definition is used only to describe one of the two categories of information that the Secretary of State may withhold from the ISC following a request from the ISC using its powers under schedule 1. It would be mistaken to use “sensitive information” in that context in connection with amendment 10. The effect, because “sensitive information” is such a narrow category of information, could be to subject the ISC to the duty to consider holding a public hearing on almost every occasion.
To be clear, the ISC would be subject to that duty even if it anticipated that sitting in public would lead to the disclosure of information prejudicial to the functions of the agencies or other intelligence bodies, so long as the information in question was not caught by the narrow definition, which, frequently, it would not be.
I am sure that that was not the intent of the hon. Member for Kingston upon Hull North in tabling amendment 10, but there is a technical issue with its drafting that would cause significant problems. None the less, I respect the broader policy point that I think the hon. Lady will advance when she speaks to her amendment.
The inevitable result of amendment 10 would be that the ISC always, or almost always, had go through the process of considering whether the public should be excluded from its meetings, even though the nature of its work is such that meeting in public is seldom appropriate. If the ISC concluded almost every time it had to consider the matter that it would not sit in public, as we say it should, that would have an adverse impact on its credibility, but the practical result would be the same as the Bill as it stands will achieve, with most ISC business being conducted in private, but with occasional public hearings. Lord Butler made that point on Report in another place, when he said:
“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.”—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1667.]
In short, either the amendment would make the ISC a much less, not more, effective oversight body if a future ISC decided to conduct most of its hearings in public; or, more likely, it would not have its intended effect of improving public confidence in the ISC.
As for the amendment’s proposed new sub-paragraph (7), the Government remain committed to, and are currently in discussions with the ISC about, making public hearings work in practice—for example, on issues such as appropriate subject matter and timing, and appropriate safeguards against unauthorised disclosure of sensitive information. If, once those issues have been worked through, the ISC sees fit to hold annual public hearings, the Government will have absolutely no objection, but our strong preference is to leave it to the ISC’s discretion to determine when and how frequently it holds such hearings, rather than to dictate the timing of public hearings through the Bill. Leaving such matters to the ISC will enable it to make the best use of its available resources.
The amendment would also make the procedures for the ISC’s annual public hearing entirely a matter for the ISC. As I have explained, at present the Government and the ISC are working together to enable public hearings, while being mindful of the risks described by Lord Lothian. We have a much better chance of realising the potential benefits of public hearings if the Government and the ISC continue to work collaboratively on that process. I hope that the hon. Lady will acknowledge the issues as I have alluded to them when she speaks to amendment 10, to which amendments 9 and 11 are consequential.
Amendment 25 deals with the relationship between the ISC and Select Committees. Under proposed new paragraph 2(6) in schedule 1, a Select Committee could ask the ISC to consider any request to
“review any particular issue related to national security”, and it could request the ISC to
“transfer information to that select committee which it has stated it needs to carry out its functions”.
Proposed new sub-paragraph (7) states that
“The terms of any consideration…are to be set out in a memorandum of understanding between the ISC and the select committee in question.”
I can appreciate the intention behind the amendment, which is to create stronger links between the ISC and other Committees. It is certainly our intention that the new ISC should be closer to Parliament than its predecessor has been, and that it should be a strong and effective Committee whose work covers matters of public and parliamentary interest and national importance relating to the agencies. Equally, however, an important feature of the ISC is that it will operate within a framework that enables its members safely to be party to highly sensitive material and allows it to scrutinise matters that are secret and that the rest of Parliament and the public should not, for good reason, have sight of.
Although on the face of it the amendment may seem helpful, I have some concerns. At the moment, it is of course open to a Select Committee to write to the ISC and request that it review a particular matter. Nothing in the new arrangements will stop a Select Committee from doing so and I am sure that the ISC would take any such requests seriously, but I am concerned about having a formal statutory mechanism that places a duty on the ISC to consider such requests.
First, I am concerned that the ISC might be overwhelmed by requests to report on particular matters. If it acceded to all requests, its programme of work might be overwhelmed with matters that are of interest to other Committees, which would take its focus away from its core work of scrutinising the matters the ISC itself identifies as important from the detailed, sensitive evidence it receives from the agencies.
Secondly, there is the question of what the ISC would be able to say by way of response, given the highly sensitive nature of the agencies’ work. ISC members are, of course, bound by the obligations of the Official Secrets Act 1989 and they would face a further restriction on the information that they may disclose if Government amendment 47 is made—we will come to that amendment later.
Thirdly, if the ISC regularly refused to action requests from Select Committees, tension could develop between it and other Committees, which could undermine the new ISC’s perceived effectiveness and its closeness to Parliament, even if in reality the ISC simply preferred to allocate its limited resources to its own highly important scrutiny work.
On the question of Select Committees requesting information from the ISC to help them with their work, again, there will be limitations on what the ISC can provide, given that much of the material that it considers will necessarily be extremely sensitive, often classified secret or top secret strap, according to the Government system of protective markings. The ISC’s accommodation, staffing and procedures are set up to handle sensitive information; the staff of the ISC secretariat are vetted and their accommodation is secure. Other Committees are not set up to deal with such information, nor are they in a proper position to assess the damage that disclosure might cause. If the ISC refused to provide information, that, too, could lead to tensions between Committees.
The new ISC will have to consider how it works with Select Committees and Parliament more broadly, but I am concerned that the provisions suggested in the amendment could skew or disrupt the ISC’s work programme, and that its reputation could be damaged by refusals to take forward work or pass information, despite those refusals being founded on entirely sound reasons. It is essential that the ISC can direct its own work programme as far as possible and focus its efforts on issues that it, with its unique perspective, thinks are the most important.
Finally, given the unique nature of the ISC and the information it holds, it would not be appropriate to determine the terms on which the ISC would consider such requests by agreement between the ISC and the Select Committee in question without the involvement of the Government, who have the primary duty when it comes to protecting our national security. Again, I understand the intention behind the hon. Lady’s amendment, but I hope that she will take my comments on board. I conclude by commending Government amendment 35 to the Committee.
I will deal with Government amendments 35 and 36 head on. Earlier in the debate, the Committee agreed to give witnesses certain protections, although a number of Committee members voiced concern about the extent of that protection. If we are to award that sort of privilege and protection to witnesses, it is sensible to place obligations on them as well. The last thing we want is evidence to be given in bad faith or with the deliberate intention of misleading the Committee. As evidence presented to the Committee cannot be used in court proceedings, it is essential that we give other sources of redress to ensure the validity of the evidence.
As I said during debate on clause 1, the Opposition in the other place argued for the ISC being a Select Committee, which would have given an established model for protecting witnesses where appropriate and imposing sanctions on witnesses who mislead the Committee. The Government have not adopted the measure of setting up a Select Committee, but are now trying to introduce some elements of Select Committee procedures.
Due to the need to introduce a special provision in the amendment allowing oaths to be taken by this Committee of Parliament, will the Government treat the evidence given by witnesses as evidence given to Parliament? If the witness misleads a Select Committee, it is up to Parliament to impose sanctions. In this case, where there is a Committee of Parliament, not a Select Committee, who will impose the sanction? Where will it start from, and who will take it forward? Would misleading the Committee of Parliament be a criminal offence? Would the police and the CPS need to be informed to take action? Does the power extend to enabling the new parliamentary Committee to compel a witness to give evidence? Is that what the amendment could do?
I seek clarity from the Minister. At the moment, the Prime Minister would have to consent before someone is called before the ISC, but can he veto an individual’s appearance? Do the individual agencies also have a veto? Can an individual refuse to appear before the ISC even if the Prime Minister and the agency have consented? If an individual acting in a personal capacity, potentially as a whistleblower, attempts to present information to the Committee, could the Prime Minister prevent that individual from appearing at the Committee and the Committee taking the evidence?
Amendment 10 does two things: as the Minister set out, it would oblige the Committee to hold an annual public hearing and to consider whether it could hold public sessions while investigating a matter. I noted what the Minister said about the Committee already looking to hold its first public hearing, and I know from the comments of the right hon. and learned Member for Kensington (Sir Malcolm Rifkind) that he is keen for this to happen. That is welcome, but we think that public hearings should become part of the ISC’s formal structure, which is why we would like a requirement in the Bill for such hearings to be held at least once a year.
The ISC oversees secretive institutions, but it is itself largely a secretive institution. At the moment, the public have two ways of engaging with the ISC’s work: through its excellent reports, including its annual reports, and through the annual debate in Parliament on the Committee’s report. The Opposition believe that making the ISC and its role more widely known and understood would be greatly aided by annual public hearings of the Committee.
The ISC’s annual report was published in July 2012 and the Government’s response followed some months later, but we have not yet had the parliamentary debate in the House of Commons. I understand that a debate took place in the House of Lords a few days ago, but we in the Commons are still waiting. I raise that because there are often delays in matters being taken forward, and we think that to stop annual public hearings being delayed, it is important to set out clearly in the Bill that at least one public hearing is expected every year. Putting that requirement in statute would give it additional force.
Recent appearances in Parliament by high-profile witnesses such as Rupert Murdoch, Hugh Grant and Russell Brand have attracted a lot of public attention. It is unlikely that the ISC would ever have such celebrity witnesses, but a public hearing would help the ISC to raise its public profile and people to understand more about what the Committee does and its role within Parliament.
On the duty to consider other public sessions, the requirement is only “to consider” whether it would be appropriate to hold public sessions during the Committee’s inquiries. The Opposition do not expect that consideration to take long. In the majority of cases, as the Minister said, it would be manifestly impractical to hold public hearings, and in such cases and whenever public hearings would compromise national security, we would expect the Committee to remain private. I should emphasise that amendment 10 does not go as far as the one proposed by the noble Baroness Hamwee in the other place, which would have introduced a presumption in favour of public sittings. This is only about consideration of the question.
I noted what the Minister said about the drafting of the amendment and the reference to sensitive information, and I take his comments on board. The Opposition were keen to table the amendment because of two examples of when it might have been appropriate for the ISC to hold a public meeting, or at least to consider holding a public meeting. The first relates to the unfortunate death of Gareth Williams, about which the coroner’s report made some strong comments and recommendations. As I am sure the Committee will recall, Mr Williams was an employee of GCHQ, working on secondment at the Secret Intelligence Service. Members may also know that, in her report, the coroner, Dr Fiona Wilcox, was very critical of Mr Williams’s employers. In particular, she singled out problems of co-operation between them and the Metropolitan police and the general pastoral care provided by GCHQ and SIS to Mr Williams.
The pastoral care given to employees should or could have been debated in a public hearing of the Committee. Obviously, Mr Williams was in a top secret job employed to do work of a secretive nature, but he was employed by the state and most people would be concerned if they felt that the employer—the state—was not taking the care it should in looking after very important members of staff. The ISC might want to look at the support given to staff.
Recruitment is the second area that could be open to a wider audience. As I have said, the security agencies are facing completely new challenges, and they have adapted accordingly. They have had to reform their recruitment policies and ensure that they recruit more widely, from communities from which they perhaps did not recruit in the past. The new challenges have fuelled a need to recruit more women and ethnic minority people into the services. Security agencies are not the only Government bodies seeking to improve diversity; I am also thinking of police forces, which are obviously trying to do the same thing. We could all benefit from hearing at least some of the agencies’ experience of broadening recruitment. Public hearings on those two areas could be useful to share the experience of the security and intelligence services.
Amendment 25 is about referrals from Select Committees. I do not want the amendment to disrupt or distract the ISC in any way from its work programme, but given that it is to become a Committee of Parliament, we must look at the relationship it will have with Select Committees and other parliamentary Committees. Several Committees, in particular the Select Committees on Home Affairs, Foreign Affairs and Defence, already find that some of their inquiries cover operations that relate to the security agencies or come across matters that should be investigated, but they are not in a position to deal with the sensitive information that might flow from such an investigation.
As it is not possible to afford the other Committees the protections that the ICS in particular will have in order to access highly sensitive and confidential information, it seems sensible to set out that there is a relationship between Select Committees and the new ISC, and what they will do together. It is currently standard practice for Select Committees to receive requests from one another. The Joint Committee on Human Rights, in particular, receives many requests asking it to use its specialist knowledge to investigate particular areas of human rights. It could be the same for the ISC.
The need to have such a relationship was debated in the other place, as the Minister mentioned. The Government’s response then was not their strongest. He referred to it when he said that the reason for rejecting giving the ISC a role in relation to referrals from other Committees was that it would be overwhelmed. That misunderstands the amendment and how the power would work. The amendment would not place an obligation on the ISC to take up every request that was made to investigate and then report back to the Select Committee making the referral. That information would be passed to the Committee, which can decide whether it should deal with it.
I have listened carefully to the hon. Lady, but I think that she will also acknowledge that, in my comments on the amendment and others, I have sought to highlight the closer relationship between the statutory Committee of Parliament, the ISC and other parliamentary Committees. Does she accept that it would seem odd effectively to have a legal statute to regulate the arrangements of the ISC and other Committees of the House, when those other Committees can find suitable arrangements to regulate these very issues?
The Minister makes an important point. The problem is that that Committee is unlike any other Committee of Parliament. It is not a Select Committee and it is being set up with special statutory responsibilities and powers and privileges. I am concerned that, unless expectation about how that parliamentary Committee will relate to established Committees is clearly laid out at the beginning, we might find ourselves in a bit of a mess. This is an opportunity to be clear that there is a right for other Select Committees to refer appropriate matters to the ISC.
The ISC will retain control over the issues that it investigates. The Minister raised concerns about that. Indeed, the work that it undertakes will still be governed by the memorandum of understanding, which I am sure we will talk about later. In terms of providing the opportunity for Select Committees to refer to the ISC, the amendment might help with the bedding in of this new Committee of Parliament.
On administering oaths, we understand that other provisions in the Bill might mean that it would have been unclear whether the new ISC would have such an ability. The amendment provides the necessary clarification and we are happy to support it.
We are reluctant to go down the route of having to hold a public hearing every calendar year. Mention has already been made of the pertinent remarks of ISC member Lord Lothian about the pitfalls of holding public hearings with the heads of the agencies. That is the plan, as Committee members know. The idea has to be road tested. We do not know whether this will provide enthralling television or whether it will be worse than watching paint dry. On the one hand, we do not want questions to be asked that cannot be answered on camera. On the other hand, we do not want to avoid that risk by having something that has clearly been scripted in advance and lacks spontaneity.
We have a warm, close relationship with our counterparts in the United States, so I shall be careful what I say about the reaction of members of our Committee to seeing extracts from the televised hearings that they hold. I shall say that we were not entirely riveted by the proceedings. Unless we can do a bit better ourselves, we are not sure how much value there would be in them, but we are determined to try.
I am delighted that the Committee is determined to try. We should be careful about just accepting that it can never be in public. The Public Accounts Committee recently considered issues to do with Sellafield. We had a private briefing beforehand in which we agreed broad parameters, but it did not stop us doing good investigation in public on a sensitive security issue. There is precedent in this place for that. I am sure that the hon. Gentleman will take that into account and, perhaps, answer that point.
I hope that I am not giving the impression that we are in a negative frame of mind when it come to this adventure. All I am saying is that it is uncharted territory and it will need to be tested. We hope that it will work and that it will provide sufficient interest for people to feel that they have not wasted their time, and that they will not feel that their expectations have been unduly raised, only to be dashed by the limitations on what the heads of the agencies feel able to divulge in response to the questioning. There is obviously the danger that people watching such a programme will say, “Why didn’t they ask this?” or “Why didn’t they ask that?” and we will not be able to ask some of the most interesting questions because the answers would create public awareness of the sort of secret material that, by definition, should not be shared with the public because it would put the operations and the personnel of the intelligence and security agencies at risk.
We will give it our best attempt, and we hope that it works well. If it does, we will not need it to be in the Bill to encourage us to do it again because we will be absolutely delighted to do so. If, however, it turns out that it is generally felt not to have added much to public education about the work of the agencies, there might, by common consent, be a view that we would not want to prescribe it on a given time scale but only as and when events suggested that one might get a more interesting response for future public hearings. We do not feel that it is necessary to restrict the Committee by telling it when and how often it must hold such public hearings.
When it to comes to issues such as the Gareth Williams tragedy, or even less contentious ones such as recruitment, the problem is that when we hold hearings—the heads of the agencies come before us at least once a year—we ask questions about a whole range of topics. Some of the topics will be much less sensitive than others, but we do not have separate hearings on uncontentious matters. Therefore, going down the route that the hon. Member for Kingston upon Hull North suggests, of having to consider each time, “For a topic of this sort could we perhaps have a hearing of that sort?” would inevitably mean that whereas we would have had one hearing in the past covering a whole range of issues and moving rapidly from topic to topic, we would either have to consider going into closed session and coming out of closed session into open session, or having separate open and closed sessions. The hon. Lady can see that there might be practical difficulties with that.
That is where the annual report comes into play, because what we can do, and what we genuinely do do, is put everything we can—secret and less sensitive—into the original report that we prepare for the Prime Minister, and then everything that it is possible to leave in the report is left there and we have the debate. That is the more flexible vehicle. The report can be redacted, but everything that possibly could have been released will be there, and the debate will serve the purpose of enabling exploration of the topics on the Floor of the House.
I assure the hon. Lady that there is nothing sinister in the delay in holding the debate on the most recent report. There are issues to do with the allocation of parliamentary time. Before the Backbench Business Committee—an excellent body—came into being, it was easy enough because a day was set aside every year. There are issues at the moment that are still to be resolved, regarding whether we have to ask the Backbench Business Committee for time or whether, as we would prefer, the Leader of the House ought to be required to make time available. Those questions might have some bearing on the slight delay to which the hon. Lady referred.
Finally, on relations with other Committees, it is certainly the case that we will take up suggestions made to us of things that are of interest. The problem will be, of course, that we cannot necessarily say, “Okay, hand us your suggestion. We will investigate it and get back to you with the results.” People can feed suggestions in, but cannot necessarily expect an answer, because if by definition they go into territory where people who are not members of the ISC cannot stray, it will be a somewhat one-way transfer of information. Once again, however, I am sure that they will always find that the ISC is in listening mode; it is just that it does not have to be required formally to undertake considerations. We are always willing to consider things, because we are always on the look-out for things that are worth investigating.
The Committee does not support the suggestions made in amendments 10 and 25. However, we fully appreciate the good will behind them, and that they are clearly intended to try to make the workings of the ISC more accessible to the public and more clearly identifiable with the parliamentary process. We applaud the spirit, even if on this occasion we cannot support the actual methods recommended.
My remarks are specifically about amendment 10 and the comments just made by the hon. Member for New Forest East. On balance, I am opposed to amendment 10. That comes of a rough experience, which I would like to explain.
Under the policing settlement and the justice settlement put in place in Northern Ireland, we created the Northern Ireland Policing Board. It is more powerful than a police authority, and was a unique experiment, which was designed to bring about public confidence in the unique arrangements that were created. The whole thrust of that was transparency, and to enforce public hearings on important matters. We were therefore forced for the seven years during which I sat on it to meet in public every month. Unfortunately, those meetings became farcical, largely because they were forced to take place in public.
The public meetings became anodyne. The responses from the Chief Constable, from the head of what was the special branch and is now the criminal branch, became anodyne and rehearsed. The meetings largely died, even though they continue to this day. Public attendance became sporadic, and we ended up speaking to Timothy Wood and Tom Timber because no one turned up to take the seats in the public gallery. I think that was largely down to the fact that, because of the sensitive nature of the material, it could not be handled properly or respectfully in a public atmosphere. Indeed, the private pre-board meetings became the real board meetings and the mainstay of that activity. Attention subsequently moved away from that committee or from that board, and onto the Northern Ireland Assembly’s Committee for Justice. We want to avoid such an outcome.
The ISC will have a very special and significant role. I know that having meetings in public is not meant to be for the sake of it, and that is not in any way what the amendment says, but from my own experience, it simply did not work. The matters which the ISC will tackle are far more important than issues just to do with regular policing activity and holding policing to account.
Let us consider the practical arrangements that we had to make. We had to advertise a public meeting every month, and we had to wait to see who was going to turn up. We then had to create an expectation that there was going to be this thing called “transparency” and this thing called “openness”, but we were dealing with issues that frankly we could not be totally transparent or open about because of the nature of policing in Northern Ireland, the nature of handling agents and all the things that affect policing.
We should learn that lesson. The hon. Member for New Forest East mentioned road testing, but there has been some road testing. We should look at that experience and perhaps understand that creating the transparency that we all desire is not always possible, especially given the issues the ISC will be dealing with. I would say it is probably impossible to have the sort of transparency that we want. To avoid having to turn people down or inflating their expectations of what a transparent meeting would involve, I am unfortunately unable to support amendment 10.
It is very good to follow the hon. Member for North Antrim. We have been at meetings together for the past 16 years, or more. He makes a valid point about how difficult issues affecting security in Northern Ireland can be dealt with more effectively in private.
However, there is no question but that there is a problem. For example, the Committee decided to look into the London terrorist attacks in July 2005. That was, quite rightly, a hugely emotional issue. The problem was whether the public believed that the Committee was doing its job properly in cross-examining the people involved—in this case, the intelligence agencies and their heads. Of course, you can never tell. You can only say that, yes, we dealt with this in a robust, thorough, hard-hitting way, but because those things are not on television and are not public, no one can ever know that. So it was, and is, a problem. I am in favour of having some public meetings of the ISC, but that will not be as easy as people make out because of the nature of the information and the people dealt with.
Before the ISC was formed, no one knew who the heads of the agencies were—not even their names, yet alone anything else—but now, of course, they are almost public figures; they appear in public, we know their names, they make statements, they give lectures and they talk about the issues that affect the national security of our country. In those circumstances, it could be useful to have a meeting of the ISC in public to discuss the national security issues that affect our land.
My hon. Friend the Member for Kingston upon Hull North referred to the awful, tragic death of Gareth Williams from Anglesey and also to recruitment. They have been in the public domain. We can go on to the agencies’ websites to find out how to become a member of the intelligence agencies—it is a world away from the tap on the shoulder at a cocktail party at Oxford or Cambridge and being asked, “Do you want to join MI5 or MI6?”
The applicants need significant technical qualifications, which is very different from how it used to be, but the recruitment process is good, with thousands of people applying to become members of the intelligence agencies. It strikes me that those sorts of matters could be discussed publicly without endangering national security, but it is not easy.
The Minister rightly made the point that meetings could end up being daft and farcical: they could be so choreographed and the questions asked so anodyne that the meeting would be meaningless—not that all Select Committees are riveting, of course; very often they are not, and it need not be the case. However, as in Australia and the United States, where the heads of the agencies appear in public to discuss matters of national security with their committees, it is worth a try. That could also deal with the accountability and transparency that we talked about, but that is another matter.
I have some sympathy with the hon. Member for New Forest East with regard to annual meetings, but I think that there should be something in the Bill that says that these things should be tried. It may be, for example, that within the lifetime of a Parliament, so many meetings could be held, or that the Bill could state, “may hold”. However, the fact that there is no real reference to the importance of public hearings is an omission. It may be that annual meetings are not the answer because of the work load, and we do not want them interfere with, “Events, dear boy, events”, which the Committee has to consider almost every year; it is not just the annual report that it deals with, but issues such as rendition, Guantanamo Bay, the London terrorist attacks of July 2005 and so on. However, it is worth a try.
On the Select Committees, I do not think that there has ever been a case where the ISC has refused to consider a request from a Select Committee to deal with something. I am not sure whether there is a need to put that in the Bill, but it is a good point: there will be times when Select Committees—presumably those on Defence, Home Affairs, Foreign Affairs, Energy as well as others—cannot delve into certain issues because they are the preserve of the intelligence agencies, but are pertinent and central to the inquiry that they are undertaking. On those occasions, a specified request to the ISC to look at something should be considered. It may not provide an answer, but the request will be considered and it could be that the Prime Minister or relevant Secretary of State is cross-examined by the ISC on that issue. Because of the secret nature of it, it might not happen—but it might happen. The point is that there should be the possibility of an inquiry being held partly in private and partly in public. That applies to the ISC as well as to the other Select Committees and I see no problem with that. Generally speaking, Select Committees tend not to like each other, so it is probably better that we look at this.
The other issue is the information that the amendment asks for the Select Committees to receive from the ISC. That is a bit trickier because of the nature of the information, but I understand the reasoning; it is another way of ensuring that the ISC becomes a different sort of parliamentary Committee. There is nothing wrong with that. I hope that the Minister will respond to the points made in this short debate.
We have had a good debate on the amendments, and it has been an important part of the scrutiny, looking at the legal issues and also some of the practical challenges around holding public meetings. Real concerns attach to that to ensure that we have meetings that are meaningful and add to the public’s perception of the scrutiny that is applied by the ISC and does not risk harming that.
It was interesting to hear from the hon. Member for North Antrim about some of the challenges of ensuring that the public found public meetings relevant and that the information that was disclosed added to a sense of confidence in the overall scrutiny process. This is why it would be wrong to put a specific obligation in the Bill. However, we believe that we should seek to facilitate public hearings. As I indicated in my opening comments, we hope that the first of those will take place later this year.
The Bill allows that to happen, and it is appropriate to consider the experience of the first of those meetings, recognising the sensitivities and challenges there will be in ensuring that meetings do not stray into classified or sensitive material. We have seen other countries facilitating more open meetings around these challenging areas. It is right that the Government should work with the ISC to facilitate that, because I want to achieve greater trust and confidence in the work of the agencies. That could be enhanced by public hearings, but it is a question of ensuring that they are structured in a way that has that end result, rather than saying in a formulaic sense, “We will have x number of meetings or a meeting at a particular time and with a particular pattern”. Rather, we need to examine the ways in which we can get this to work and then see how it develops and evolves. It is important that we proceed with public hearings through the working processes that the Government are establishing with the ISC.
There are ways in which relations between the ISC and other Select Committees can be addressed. It was instructive to hear about the requests that have already been made. The challenge is what the ISC could give back, given that so much of its work covers sensitive material. I noted that the hon. Lady, in seeking to advance her amendment, still did not quite deal with what the Select Committee could get back or what information it could request of the ISC, given the nature of the materials that are likely to be involved.
There are examples of where the Chair of the ISC or the Chair of a departmental Select Committee—the Home Office, for example—could have a private meeting with the head of one of the agencies and come back to the Select Committee and say, “I have talked about this, I can’t give you details, but we have dealt with this particular issue in such a way”. That could be one way around it.
The right hon. Gentleman makes that point very effectively. It is very difficult to get that to fit within the structure of legislation and a specific memorandum of understanding because it is likely to change in each case. The circumstances of a particular issue, perhaps given the sensitivity of the information involved, might take something on one course rather than another.
It is right that the relationships are strengthened between the ISC and individual Select Committees, but it is hard for us to be prescriptive or think we can deal with this in a written memorandum of understanding. It may be that that evolves over time, but I would prefer an evolving picture, rather than mandating in legislation now that that is how it should take place.
I want to return quickly to the hon. Lady’s questions about the impact of the oaths issue. We do not believe that any breach would be in contempt of Parliament, but it could constitute an offence of perjury under the Perjury Act 1911 and therefore be enforced through the police and the criminal justice system. Although individuals could not be compelled to give evidence, I point the hon. Lady to the information provisions, to which we will come, regarding the information that the ISC can require of the agencies and the information that is provided through that route. That happens now and evidence is already given. We will no doubt also come to the Osmotherly rules and their application to the ISC.
Obviously, the power of compulsion to give evidence has been granted, and I think that I have dealt with that. We will come, possibly in the next group of amendments, to the issue of information being volunteered. I am sure that the ISC has experience of information being provided to it through sources other than a formal request being made by the Committee to agencies for specific information. It is obviously open to the Committee to deal internally with from where and whom it takes evidence, but I will examine the hon. Lady’s point about whistleblowers and write to her to try to provide greater clarity.
With those comments, I hope that hon. Members will support the amendments in my name.
I beg to move amendment 37, in schedule 1, page 16, line 5, at beginning insert—
(a) does not relate to any particular operational matter, or
(b) relates to a particular operational matter that the ISC is considering under section 2(3)(a) or (b).’
With this it will be convenient to discuss the following:
Government amendments 38 to 40 and 32.
Amendment (a) to amendment 32, leave out ‘voluntarily’ in sub-paragraph (c).
Amendment 23, in clause 2, page 2, line 19, at end insert—
Government amendment 33.
This group of amendments concerns the ISC’s ability to oversee operational matters. The Bill extends the ISC’s statutory remit and makes clear its ability to oversee the operational work of the security and intelligence agencies and of other parts of the Government intelligence machinery. With that formalisation of its role and oversight of operational matters, we expect the new ISC to provide such oversight on a more regular basis, which is a crucial part of the Bill’s aim of strengthening oversight.
The Bill’s provisions allow the ISC to consider any particular operational matter, but only so far as the ISC and the Prime Minister are satisfied that the matter is not part of any ongoing intelligence or security operation and is of significant national interest. The ISC’s oversight in that area must be retrospective so as not to cut across the role of Ministers and should not involve, for example, prior knowledge or approval of agency activity. The ISC’s consideration of an operational matter must also be consistent with any principles set out in or other provision made by a memorandum of understanding.
The ISC is, of course, not the only body to oversee the operational activity of the agencies. The Prime Minister has overall responsibility within Government for intelligence and security matters and for the agencies. Day-to-day ministerial responsibility for the Security Service lies with the Home Secretary, while the Foreign Secretary has such responsibility for the secret intelligence service and GCHQ. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service, and the Foreign Secretary has the same accountability for the secret intelligence service and GCHQ. The intelligence services commissioner provides oversight of the use of a number of key investigatory techniques employed by the agencies and by members of Her Majesty’s forces and Ministry of Defence personnel outside of Northern Ireland. The interception of communications commissioner’s central function is to keep under review the issue of warrants for the interception of communications. The Investigatory Powers Tribunal and the independent reviewer of terrorism legislation also have their own distinct roles.
During the Bill’s passage through another place, Lord Butler of Brockwell, representing the Intelligence and Security Committee, said that while the Committee was largely content with how the Bill dealt with the ISC’s oversight of operational matters, he wanted the Government to address two concerns. First, there may be exceptional circumstances in which it might suit the Government to have the ISC oversee an operational matter that falls outside the criteria for operational oversight specified in the Bill. That is to say, it was Lord Butler’s view that the Government might, on a rare occasion, want the ISC to consider an operational matter that was part of an ongoing intelligence or security operation or that was not of significant national interest. The ISC is concerned that the Bill does not allow for such circumstances.
The second ISC concern was as to whether the requirement that both the ISC and the Prime Minister should be satisfied that the criteria for oversight of operational matters have been met might slow down the provision of information to the ISC on routine operational matters. Put another way, the ISC’s concern is that the Bill should not put it in a less advantageous position with regard to oversight of operational matters than it is in currently. The Government’s intention is certainly not for the Bill to have such an effect. The Government amendments in the group we are discussing will address both of the ISC’s concerns.
To summarise, our amendments will result in three sets of circumstances in which the ISC may consider particular operational matters. The first set is where the original clause 2(3) criteria are met; the second set is the exceptional case, to meet the ISC’s first concern, in which the Government request the ISC to consider a matter, notwithstanding that the original clause 2(3) criteria are not met; and the third set of circumstances is where the ISC’s consideration of a matter is limited to considering information provided to the ISC voluntarily by the agencies or another Government Department which, in essence, is the ISC’s second concern. Those three cases are dealt with in clause 2(3), respectively in proposed new paragraphs (a), (b) and (c).
The requirement that both the ISC and the Prime Minister should be satisfied that the consideration of a particular operational matter is consistent with the memorandum of understanding is moved to proposed new subsection (3A) in clause 2. That provision, however, applies only to clause 2(3)(a), the original criteria, and to clause 2(3)(b), the request from Government cases. There will therefore no longer be a prime ministerial lock on voluntarily sharing with the ISC information about particular operational matters.
Similarly, the ISC’s powers to require the agencies or other Government Departments to provide it with information, under paragraph 3 of schedule 1, will be available for clause 2(3)(a), the original criteria, and clause 2(3)(b), the request from Government cases, but not—an important distinction to draw—for clause 2(3)(c) cases, which is the consideration of information that has been volunteered to the ISC. That is the effect of amendment 37 and consequential amendments 38 to 40.
To provide some further background, Lord Butler said that
“the ISC has no aspiration to consider an ongoing operation, unless the Government ask it to. We normally look at operations retrospectively, but there are circumstances in which it suits the Government to ask the ISC to look at an ongoing operation”.—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1695.]
Lord Wallace, in response, noted that he was “sympathetic” towards the intention behind the amendment,
“which is to introduce a degree of flexibility that might prove useful in the future…It is just a question of how we can get that right without opening up to some unintended consequences.”—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1700.]
We have now given the matter further consideration, and I am pleased to be tabling an amendment that we believe will give the ISC the flexibility that it seeks. As I have said, amendment 32 introduces two new sets of circumstances in which the ISC may consider an operational matter. It would allow the ISC to consider a matter that does not meet the criteria in clause 2(3)(a) if the Prime Minister has asked it to do so. That aspect of amendment 32 introduces flexibility into the Bill. During the debates in another place, Lord Wallace said
“It is difficult to see the circumstances in which the provisions of that amendment would need to be used”.—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1700.]
It is our view that the provision will be required only in exceptional circumstances, but we are content that it is prudent to include the flexibility to deal with circumstances that may not be foreseeable at present. Other hon. Members have tabled amendments in this group, and I will reply to them when they have spoken to their amendments.
For the moment, I should like to concentrate on amendment 32, which appears to address the significant drafting error that was highlighted by Lord Butler and Lord Lothian in the other place. I am sure that the Committee, and particularly the Minister, pay tribute to those noble Lords and pass on their appreciation to them for identifying the problem.
As I understand it, as the Bill was originally drafted, the ISC would have been able to commence an investigation and receive information only after three steps had been taken. First, the operation would need to have been concluded; secondly, the ISC would have to consider that the issue was of significant national interest; and, thirdly, the Prime Minister would have to agree that it was of national interest and that an investigation should go ahead. Only then would the ISC commence an investigation.
That process was described as overly bureaucratic, and I have seen comments to the effect that it could only have been devised by some very clever civil servant. In the other place, Lord Butler described it as
“not only bureaucratically very intensive but a step backwards from what happens now. What happens now is that when an operation involving important matters is over, the intelligence agencies, of their own accord, report on it to the ISC, which looks into it and discusses it with them…I cannot believe that it is the intention in such cases, which have been routinely going on, that the Bill should require the Prime Minister to be consulted whenever the agencies wish to report such matters to the committee.”—[Official Report, House of Lords, 9 July 2012; Vol. 738, c. 1006.]
Lord Lothian also pointed out that because the process required the Prime Minister’s consent at every point, it was not only bureaucratic but likely to suffer from major delays because of the number of other issues that the Prime Minister has to deal with.
Amendment 32 appears to be an improvement on the original position. As I understand it, subject to the memorandum of understanding, which we will discuss later, the ISC can investigate a matter that is of significant national security interest and that does not relate to an ongoing security matter either if the Prime Minister has asked it to investigate or if the security agencies give up the information voluntarily. Will the Minister clarify exactly how the amendment will work? Does it mean that for an investigation to commence, condition (a) and either condition (b) or (c) must be satisfied, or does it mean that (a), (b) or (c) must be satisfied?
The amendment is a slight improvement on the original drafting of the Bill, but there are still two problems: first, the new system is still more bureaucratic than the present one, and, secondly, it demands the Prime Minister’s involvement. That runs counter to the Government’s stated aim of giving the ISC more independence, and it makes the system liable to delay. The Opposition support the amendment tabled by the hon. Member for New Forest East, the effect of which would be to allow the ISC to request information from the security agencies as well as them providing it unheralded. I understand that that is how the system works at present, and I want to return to the comments of the noble Lord Butler in the other place. Of the current system, he said:
“The committee has had access to that sort of material for a number of years. In some cases the agencies volunteer it and in other cases the ISC asks to see it.”—[Official Report, House of Lords, 9 July 2012; Vol. 738, c. GC1006.]
That should be the least that an effective Committee should be faced with when it takes on its new status.
Amendment 23, which is in my name, would introduce a limited power of review of ongoing matters. I accept that it has long been the role of the ISC to provide a retrospective review of investigations, and the Opposition do not think that that should change. None the less, the Opposition understand that the ISC itself is also keen to remain a respected body. That notwithstanding, the two members of the ISC who sit in the other place, tabled the exact same amendment in their deliberations. The Opposition share their reasoning and feel that it is important to allow this opportunity in the Bill. It was said that that would give some flexibility. There is no difference in the ISC’s view and the Government’s view that the ISC’s purview should normally be retrospective. However, if it suited the Government that the Committee should look at ongoing security operations, that would be at the discretion of the Government. Clearly, it would be unfortunate if the Bill ruled that out.
There is also a danger that if the ISC can never oversee an ongoing investigation, it will only be able to investigate an incident so long into the future that the matter could then be irrelevant. Such a fear was expanded on by my noble friend and former ISC member, Lord Campbell-Savours. He said:
“Under the proposals in this clause, it is possible to block much operational material being brought before the Committee. As I read it, the agencies need only declare that a matter is, ‘part of any ongoing intelligence or security operation’, and they can block it and deny access to the committee. What is the danger in that? It could close the door on a large volume of information.”
I want to use the example of operations in Iraq.
“Because of the merging of operations, one could simply group an operation, which the committee might regard as one that it should be considering, with other operations in Iraq but merge them under a single operation heading and, by taking that action, avoid bringing information about those operations before the committee.”—[Official Report, House of Lords, 9 July 2012; Vol. 738, c. GC1006.]
Of course there needs to be balance, and the Opposition are not suggesting that it should be normal for the ISC to be involved or even knowledgeable about ongoing matters. In the other place, the noble Lord Henley suggested that such an amendment might lead to the ISC being given prior knowledge or approval of agency activity. No one is suggesting that, and I cannot see, having read the comments in the other place, how the noble Lord Henley thought that that was a possible consequence based on either the text of the amendment or the comments of its proposers. Indeed, the Opposition accept the many dangers that would arise in such a situation, including the problems that the American oversight committees—
I was speaking to amendment 23 and concluding my remarks when the Division bell went. The amendment is about oversight of ongoing operations and allowing flexibility where it is appropriate. The Opposition accepts that many dangers would arise in such a situation, including the problems that the American oversight committees have and the demands that they often make for constant investigation of ongoing or immediate operations, which has undoubtedly hampered operations there.
Lord Henley suggested in the other place that such oversight was not needed, because it was already provided by a variety of Ministers. I am not sure that I followed his logic, however, because that would mean that there would be no need for the ISC at any point or, indeed, any need for Parliament. The Opposition feel that it would be a sensible extension of the Bill’s powers to confer limited oversight of ongoing matters on the ISC, but only where the Prime Minister agrees—it is very limited.
I want to take the Minister back to his opening remarks. Changes are set out in Government amendments 38 to 40. Will the Minister explain again the practical effects of those amendments, because I am not sure I followed what he said? Will the Minister stress the importance of amendment 37, so that the Committee is clear about what it does?
I might be able to assist the hon. Member for Kingston upon Hull North with her question about the significance of paragraphs (a), (b) and (c) in amendment 32. When I saw the amendment originally, I thought the word “or” should be inserted at the end of line 4, which would make it clear that the ISC would normally be investigating only retrospective matters under paragraph (a). However, under paragraph (b), as an alternative, if the Prime Minister asked the ISC to investigate a matter that was more current, it could do so, and then “or” again, under paragraph (c), if the security and intelligence services were to offer certain current information to the Committee, it could look into those matters. As I understand it, the difference between the provisions of paragraphs (a), (b) and (c) is that whereas under the new regime, in relation to paragraphs (a) and (b), the Committee will be able to require answers to their questions, under paragraph (c)—as we would expect, given that such matters are only being offered to the Committee for consideration—the existing situation would apply, where we would be able to request information but not require it. That is probably why the Government wish to flag up the word “voluntarily” in paragraph (c).
The reason why we are concerned is partly presentational and partly practical. As everybody has acknowledged so far, the ISC has no wish to get in the way, interfere with or become some sort of obstacle for current operatives to be tripping over when they are engaged in operations. However, as the Bill was originally drafted, it would have ruled out some of the most important and sensitive inquiries that the Committee has undertaken even in the two years that I have been a member of it, as those reports were done on current matters directly for the Prime Minister, to the Prime Minister. Clearly, that omission has now been rectified.
We are a little concerned about the use of “voluntarily”. It seems to suggest that we would not even have the ability to request the information, although we cannot require it, and that sends a message suggesting that unless the security and intelligence agencies volunteer it, we cannot even ask for it. A good example that I can share with the Committee is what happens when—heaven forbid, but it happens from time to time—there is a terrorist incident, or more frequently, there is an arrest in order to head off such an incident. Usually, with something such as that, the relevant agency will write to the ISC and say, “You may have read in the media that we made an arrest. This is the background to it. We feel that you should be informed.” The agencies do that more often than not, but not invariably, and we feel that the use of “voluntarily” seems to suggest that if they did not take the initiative and take the trouble to write to us about it, we would not be able to request that they gave us some background about what was happening in the news. Although we have no wish to interfere with current operations, we certainly feel that it is sensible for us to have such information about current operations as the services themselves might think it useful to volunteer, because often, inaccurate matters will be reported, on which the Committee could be of assistance in setting them straight, when there might be no other convenient way of doing so.
Therefore, although this is not a big issue, we feel fairly strongly that the word “voluntarily” is largely superfluous, could be a bit obstructive and certainly sends the wrong signal presentationally. That is why we urge the Government to remove it, because the important distinction between “require” and “request”—that is, between paragraphs (a) and (b) on one hand and paragraph (c) on the other—will be laid out elsewhere in the legislation.
I entirely agree with the hon. Member for New Forest East. I think that “voluntarily” should come out, because it can be damaging in the wrong hands. The ISC could have less power in that circumstance than it has had in the past. The danger about some of this is that unless we are very careful, we will circumscribe the work of the ISC by limiting it too rigidly. There are occasions when the Committee or its Chair has to deal with current operations and, in my experience, that has never been a problem with the agencies. If something becomes very public and controversial, the chances are that the head of an agency or a very senior figure appears before the ISC to discuss what is happening in the newspapers or whatever it is, and the Chair sometimes visits the head of the agency concerned to discuss such matters. I know that that is not the Government’s intention, but there might be such an outcome unless we are very careful.
I confirm to the Committee that we do not believe that anything in clause 2 or schedule 1 will restrict the Committee’s work in the way that has been postulated. It is certainly not our intention to suggest that the ISC cannot request information on a certain matter, and I do not believe that that would be the consequence of the use of the word “voluntarily”.
We are seeking to draw on the distinction between the three different classes of investigation into operational matters, and how that interfaces with the subsequent requirements, which are dealt with in amendment 37, on requesting information. I appreciate that the drafting and the interrelationship between amendments in making such changes is sometimes complex, but it is important to stress, in direct response to the hon. Lady’s question, that there are three categories in amendment 32, which are in proposed paragraphs (a), (b) and (c). The approach of the parliamentary draftsmen is simply to put the word “or” before the last paragraph—in other words, at the end of proposed paragraph (b)—rather than at the end of each of the first two proposed paragraphs, which I think is what my hon. Friend the Member for New Forest East mentioned.
The changes are clearly intended to reflect the alteration of the ISC’s remit. At the moment, that remit covers administration, expenditure and policy; until the Bill is enacted, it will not have a formal role in respect of operational matters. As has been indicated, however, the agencies from time to time share information about operations with the Committee. The Bill and the Government amendments are intended to relate to the expansion of the role and remit of the ISC, as well as to give the flexibility alluded to in debates in the other place.
We believe that that flexibility is provided by amendment 32, with its three categories of operational matters that can be considered—in other words, where
“(a) the ISC and the Prime Minister are satisfied that the matter…is not part of any ongoing intelligence or security operation, and…is of significant national interest, (b) the Prime Minister has asked the ISC to consider the matter, or (c) the ISC’s consideration of the matter is limited to the consideration of information provided voluntarily to the ISC” by one of the intelligence agencies or a Department. Those are the three elements that we are looking at and addressing to provide clarification and confirmation about the ISC’s remit. Rather than fettering the ISC, the change is about ensuring that it has a greater role in such matters. I make that clear, because an important part of the reforms in part 1 of the Bill is to provide the ISC with that additional function.
The hon. Member for Kingston upon Hull North said that there was a drafting error, but we do not accept that; it was a change in policy respecting the points made about operational flexibility and the addition of the criterion of enabling the Prime Minister to ask the ISC to consider a particular matter.
On the point about information being provided voluntarily, as I said, that is intended to draw a distinction between information volunteered by one of the agencies and information that flows as part of the provisions in schedule 1 and the access to information provisions. It is intended to distinguish between the first two categories, where it would be appropriate for the Committee to ask for further details, and the latter category, where it would not be appropriate to have a formal requirement, as it would cut across the intent of the first two limbs. At the same time, it is in no way intended to prevent the provision of further information.
My hon. Friend the Member for New Forest East highlighted the distinction between the three different categories and how the element of information flow was intended to operate. I certainly understand his point about the information that might flow therefrom, even though the information might originally have been volunteered.
The Minister said something about whether it would be appropriate for the Committee to ask for further information, but my understanding is that it is appropriate for the Committee to ask for further information in all three categories; it is just that the Committee can require the information in categories 1 and 2, but can only ask in category 3. The problem with the word “voluntarily” in category 3 is that it seems to suggest that we cannot ask and perhaps be refused, because we cannot ask in the first place. That is why we feel that that word is an encumbrance.
There is an important distinction. Right hon. and hon. Members have accepted that the ISC’s role should involve looking back at operations that have taken place. We must ensure that sufficient time has passed to prevent any intrusion on highly sensitive operations that might be ongoing, and respect the role of the Secretaries of State in providing that function to Parliament. Although my hon. Friend is correct that the Committee can ask for information and that the agencies might provide details, there is a distinction to be drawn between that situation and the provisions in paragraph 3 of schedule 1, which Government amendment 37 provides will be limited to the first two categories.
I understand my hon. Friend’s concern about the term “voluntarily”, but some distinction must be drawn. We believe that something is needed there. I appreciate that the ISC is concerned that “voluntarily” may give the wrong connotation. I am happy to look at the drafting to see whether a different word might give the same effect. I do not want to dance on pinheads, as I am sure he will understand, but there is an important distinction to be drawn. That is why we think that the way forward that we have set out, particularly in Government amendments 32 and 37 and the consequential amendments, provides a clear route and deals with some of the concerns and sensitivities that might otherwise arise, and that is why we think that it is a better option than the approach adopted in relation to amendment 23. I ask the hon. Lady to withdraw her amendment. We think that the matter is dealt with differently through the Government’s proposed amendments.
Amendments made: 38,in schedule 1, page 16, line 7, leave out from ‘ISC’ to first ‘information’ in line 8 and insert ‘to disclose the’.
Amendment 39, in schedule 1, page 16, line 15, leave out
‘in the exercise of its functions’.
Amendment 40, in schedule 1, page 16, line 16, after ‘disclose’ insert ‘the’.—(James Brokenshire.)
With this it will be convenient to discuss the following: Government amendments 15, 42, 43, 44, 45 and 46.
Amendment 18, in schedule 1, page 16, line 46, leave out ‘Minister of the Crown’ and insert ‘Secretary of State’.
Amendment 19, in schedule 1, page 17, line 1, leave out first ‘Minister of the Crown’ and insert ‘Secretary of State’.
Amendment 20, in schedule 1, page 17, line 1, leave out second ‘Minister of the Crown’ and insert ‘Secretary of State’.
This group of amendments addresses the level of the Minister who is able to make decisions to withhold information in relation to paragraph 3 of schedule 1, on access to information. In the past, as I understand it, the director general of the Security Service, the chief of the Secret Intelligence Service and the director of Government Communications Headquarters have been able to provide information requested by the ISC and have had the right to withhold information. In future, under paragraph 3(1), if information is not to be provided to the ISC by those agencies, the decision will be taken by the Secretary of State, which is right and proper.
Sub-paragraph (2) addresses other Government Departments, or parts of Government Departments, that are asked to disclose information to the ISC, which relates to the widening of the ISC’s role. The sub-paragraph states that a relevant Minister of the Crown may decide that information should be withheld from the ISC. The amendments have been tabled because if the Secretary of State decides that the security and intelligence agencies should withhold information, Ministers of equal rank should make such decisions across the rest of Government.
We question the reference to “Minister of the Crown,” because that could include those at Under-Secretary of State level. There is nothing wrong with Under-Secretaries of State—I make that clear because I know a distinguished Under-Secretary is already involved in this issue—but it is appropriate to have the standard of Secretary of State running throughout. That would ensure that it is recognised that withholding information from the ISC is a serious matter and that such decisions should be taken at the highest level.
As I understand it, the schedule was drafted to take into account that the Cabinet Office does not have a Secretary of State, and “Minister of the Crown” accommodates that circumstance. Will the Minister update the Committee on what steps will be taken if information is to be withheld by the Cabinet Office? Who will take the decision? Will it be the Prime Minister?
The Opposition and the Government tabled the same amendments, and we are pleased there is support on both sides of the Committee.
Two points are at issue. First, where agencies’ material is concerned, the Bill provides that decisions to withhold information from the ISC must be taken by the Secretary of State; where the ISC requests information from another Government Department, however, the Bill states that a decision to withhold is taken by
“the relevant Minister of the Crown”.
For these purposes, the relevant Minister of the Crown is such person 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.
On Report in another place, Baroness Smith of Basildon moved an amendment that would have restricted the power to withhold to a Secretary of State or a Minister of equivalent level. Responding for the Government, Baroness Stowell said,
“there may be some departments where there is no Secretary of State… For example, the post of Minister for the Cabinet Office is a Minister of State position rather than a Secretary of State position.”
Lord Butler, on behalf of the ISC, supported the Opposition amendment:
“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.”—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1683-1686.]
Since Report, the Government have given the arguments made on behalf of the Opposition and the ISC further consideration.
I am pleased to table a group of amendments that I note were also tabled in part by the Opposition. I recognise there is a shared view of the need to address the matter appropriately. Amendments 15, 42, 43, 44, 45 and 46 together would restrict the power to withhold on behalf of Departments to the Secretary of State rather than to a Minister of the Crown. Lord Butler was broadly correct in his remarks supporting the amendment in another place. Most information that the ISC might request of the Cabinet Office and which the Government might wish to withhold will be sensitive, primarily because of the interest of another Department. Accordingly, the Foreign Secretary, the Home Secretary and the Defence Secretary, as appropriate, will be perfectly well placed to make the decision on withholding. A minority of Cabinet Office information may be sensitive on other grounds, and administrative arrangements can be put in place to enable one of the Secretaries of State none the less to take the decision on withholding such information.
The amendments tabled by the hon. Member for Kingston upon Hull North would have the same primary effect: that only a Secretary of State would be able to withhold information from the ISC. However, those amendments would also mean that the duty to make information available on behalf of a Department would fall on the Secretary of State rather than the Minister of the Crown, as in the Government’s proposals. That would have the surprising consequence that, when the ISC makes a request for information of the Cabinet Office, which has no Secretary of State, the duty to provide that information would necessarily fall on a Secretary of State for another Department.
I see no reason why, for Departments other than the agencies, the relevant Minister of the Crown should not still be the person who actually provides the information to the ISC. That is why I prefer the Government’s approach of distinguishing between the provision of information and a decision to withhold information, with the latter category, by the nature of the withholding, being at Secretary of State level. It will therefore still be necessary, as required by paragraph 3(6) of schedule 1, for the memorandum of understanding to identify which Minister of the Crown will have the duty on behalf of a Department to make information available to the ISC. The Government’s intention is that the following Ministers will have that role: any Minister of State in the Cabinet Office, the Secretary of State for Defence in the Ministry of Defence, the Home Secretary in the Home Department, and the Foreign Secretary in the Foreign and Commonwealth Office.
For those reasons of distinguishing between provision of information and decisions on not disclosing information, I ask the hon. Lady not to press amendments 14, 18, 17 and 20, but the Government obviously firmly support the amendments in my name.
I am grateful to the Minister for his good explanation of why there is a slight difference in the effect of the Government’s amendments. He made it clear that any withholding of information should be at the highest level, but that the disclosure of information may be at Minister of the Crown level, and I am satisfied with that explanation. I beg to ask leave to withdraw the amendment.
The amendments continue the theme of information being withheld from the ISC, and the reasons why that can be done. I tabled amendment 21, which tries to get to the same principle as amendment 28, tabled by the hon. Member for New Forest East. The ISC should be able to access information even if it is sub judice or relates to previous Administrations. As drafted, the Bill allowed a Minister to withhold information if the Minister considered that it would be proper not to disclose it to a departmental Select Committee of the House of Commons, on grounds not limited to national security.
When Ministers consider whether to disclose information to Select Committees, they are governed by the Osmotherly rules, which basically set out three reasons for withholding information. As I understand it, the first is disproportionate cost; the second is that the matter is sub judice; and the third is that it relates to a previous Administration.
Amendment 21 would rule out using the rules, although we would be very happy for an agreement on cost to be included in the memorandum of understanding. If there was a disproportionate cost, we would think that a valid reason, and that could achieve the same result as amendment 28.
We do not think that sub judice information should be excluded from Committee hearings because that might prevent the ISC from seeing some particularly important information. There are significant procedures in place to ensure that information would be protected in front of the ISC, and therefore we should not worry about the ISC seeing such information where it would assist its deliberations.
The Opposition feel that the ISC could get access to information held by previous Administrations as well. There seem to be two reasons for allowing that. First, we should recognise that the matters that the ISC investigates are rarely politically sensitive, even though they may be sensitive in other ways. Secondly, it will often be the case that the ISC will be able to investigate an issue only after a change of Administration. That is because the ISC’s role is retrospective, and that means that there will often be a very long delay before an investigation can begin. It would seem wrong to say that the ISC should not have access to information held by a previous Administration.
I rise in support of what the hon. Lady has said, although we have a preference, as she will understand, for the amendment 28 wording, which is to add the words:
“Except that the ISC may have access to information that is sub judice or that relates to papers of a previous administration.”
She was absolutely right to put her finger on the point of retrospection; one cannot have a role that is primarily to do with the retrospective examination of sensitive matters if one is arbitrarily cut off when there is a change of Government.
Our Committee is different from all other Committees, which might like to make the same claim, because in our Committee’s report there is always the possibility that anything that should not appear in the public domain for any good reason whatever can be redacted. If we did not have the ability to consider matters that were sub judice, the report on the 7/7 bombings, for example—the legal proceedings went on for many years—would have resulted in the Committee’s being entirely stuck and unable to produce the report that it did.
Our view is clearly that the legislation being put forward is intended to strengthen the role of the ISC and not to restrict its current access to information. We believe that the Bill must take account of current practice, and we therefore very strongly support our own amendment 28—or, failing that, the hon. Lady’s amendment 21.
I believe that the wording in schedule 1 does, in fact, reflect the current practice of the ISC. It is modelled on section 3(4) of the Intelligence Services Act 1994, which provides an equivalent provision —a determination of information not to be supplied. The schedule says that if the information appears to be
That language already imports, as I understand it, the Osmotherly rules into the existing ISC’s deliberations. In making that provision in paragraph 3(b), we are simply reflecting the existing position under the 1994 Act.
I am well aware that the ISC itself already receives sub judice material and material of previous Administrations. There is no intent that that existing practice should be changed by virtue of the comments that I have already made about the reflection across from the existing statutory provision, to the provisions that are contemplated in paragraph 3 of schedule 1.
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. They recognise that there are categories of information that, in certain circumstances, may be withheld from Select Committees on the grounds of public policy. As we have heard, the conventions are often referred to as the Osmotherly rules. The provision is necessary to safeguard the long-standing conventions—the rules—in the context of the relationship between the Government and the ISC. It provides a basis for withholding from the ISC the categories of information described in the Osmotherly rules.
The provision gives the Secretary of State only a discretion to withhold material, and in exercising that discretion the Minister would have to have regard to the provision that the ISC has of keeping material confidential. Indeed, the Osmotherly 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.”
The powers to withhold information from the ISC have been used only sparingly in the past, and we expect that pattern to continue, with their being used only in exceptional circumstances, but it is important that the safeguards be retained.
Amendment 28, tabled by my hon. Friend the Member for New Forest East, appears to have the intention of making it clear that, notwithstanding the provisions that I have described, the Osmotherly rules and the provisions of the Intelligence Services Act 1994, the ISC may be able to access information that is sub judice or that relates to the papers of a previous Administration. It is implicit in what I have said already, but let me reiterate that that will be the position anyway. The amendment is, therefore, unnecessary.
Although the Osmotherly rules mention those categories as those where it might be appropriate to decline to provide information to Select Committees, sub-paragraph 3(3)(b) of schedule 1 gives a discretion to the Secretary of State, so that he or she may decide that the information should be withheld from the ISC on those grounds. Although the Minister must have regard to the Osmotherly rules in making such a decision, the rules themselves recognise that providing the relevant information to a Committee confidentially can avoid the need to withhold information, and most of the information that the ISC receives is strictly confidential.
Although matters that are sub judice or are related to the papers of a previous Administration are listed in the Osmotherly rules, it might be perfectly appropriate for the ISC to be allowed access to such material, although such an assessment is best made on a case-by-case basis. Because of the nature of its work, the ISC is used to dealing with, and is well-equipped to handle, sensitive information, and the Secretary of State will, of course, have regard to that when exercising his discretion in accordance with the Osmotherly rules.
I do not know who this Osmotherly was, but I doubt that he—perhaps it was a she—would understand the nature of spies and intelligence activities. They do not fit into a parliamentary timetable. The issue about previous Administrations is that, as far as I can recall, there has been only one instance when the Government have not given information to the Committee—one in 20 years. The practice is therefore a good one, but I have a feeling that the provision might start to restrict it again.
I am afraid that I cannot agree with the right hon. Gentleman. The wording and intent of the sub-paragraph reflect the existing practice in respect of the ISC. Although we might talk about Cabinet Office guidance, Osmotherly, or whatever description we may wish to attach to it, the ISC is already subject to such provisions and restrictions and the provision in the Bill is simply a read-across. There should, therefore, be no reason why the Government’s existing approach, which reflects the fact that information is held confidentially—that fact is respected in the provision—should change in some way.
My point is that the Government have not sought in some way to apply a new provision; they seek to reflect existing law and practice in respect of the ISC. Although they might be used only sparingly, the Osmotherly rules are the appropriate, necessary and relevant approach. Sub-paragraph (b) simply gives effect to the existing arrangements, and there is no reason why, in all imaginable and practical circumstances, the arrangements on sub judice material and material from a previous Government should not continue, in accordance with that provision.
That is the clear point that I make to the Committee. There is no intent to fetter. The provisions are consistent with the existing arrangements under the 1994 Act, and they are appropriate in the context of the relationship between the Government and the ISC.