Amendment proposed, (29 January): 21, in schedule 1, page 16, leave out from ‘ISC’ in line 30 to end of line 38. —(Diana Johnson.)

Question again proposed, That the amendment be made.

I remind the Committee that with this we are discussing amendment 28, in schedule 1, page 16, line 34, at end insert—

‘except that the ISC may have access to information that is sub judice or that relates to papers of a previous administration.’

I rise to speak to amendment 28. Amendments 21 and 28 relate to the right of the Secretary of State, albeit one very rarely used, to withhold information from the Intelligence and Security Committee on the grounds of excessive cost, its being sub judice or because it relates to the papers of a previous Administration. The guidance on that is sometimes referred to as the Osmotherly rules. The Minister has correctly pointed out that the Intelligence Services Act 1994 contains similar wording to that in sub-paragraph 3(3)(b) of schedule 1 of the Bill, and that the existing powers have been used only very rarely. Since this Committee last adjourned, I have been able to undertake further research, and it appears that in the past 18 years the Government have used the powers on only one occasion, which involved a previous Administration’s papers on a sensitive operational matter.

The Minister will no doubt be pleased to know that the ISC of the day did not agree that the information should be withheld and that, after just eight years, the Prime Minister of the time eventually chose to overturn the decision so that the ISC was able to see the papers. I agree with the Minister, who has put on the record a lot of comforting assurances, that based on the experience of the past 18 years the power that allows a Secretary of State to withhold information is, in essence, a technical and theoretical one that will probably never be used.

Furthermore, as other members of this Committee have noted, including the right hon. Member for Torfaen, the new ISC will have oversight of retrospective operations, which leads to a further consideration in that it will inevitably result in the ISC’s use of the powers being more necessary, and a Secretary of State’s use of them becoming even more theoretical in nature and so rarely used that they will surely be close to extinction.

Regarding the Minister’s reasons for retaining the near-obsolete provisions, I seek to use against him the arguments he used against my earlier amendment. He argued that my new clause on the ISC secretariat should not be added to the Bill because it would not have any effect. The same could be said of the provisions we are discussing if, as he says, they would never really be used. He rightly said that the Bill seeks to strengthen oversight and improve on the current arrangements, and if that is so why does he seek to maintain the status quo on this rather theoretical and technical matter? We are improving on much of the existing legislation, and the argument that the current provisions are satisfactory because they are in that existing legislation should not be decisive.

Having said all that, I expect that the Minister’s brief says that he should resist the amendment and I do not expect him to give any more ground, given that he has not given much on any of my other amendments. I therefore suggest a compromise. Will he support the idea that the points that I and others have made be reflected in the memorandum of understanding?

For example, the MOU could say that the powers will be very rarely used, and it could make it clear that the ISC’s new remit for operations will mean that it frequently will need access to papers that are sub judice or which relate to a previous Administration. If he could agree to that—and, after all, it goes no further than the assurances he has already given—I should be happy not to press my amendment.

It has been an interesting debate, and I am grateful for the comments made by the hon. Member for New Forest East. He has put the matter into an historical context by looking at what has happened over the past 18 years. In light of that and of his suggestion to the Minister, I am not minded to press amendment 21 to test the opinion of the Committee, but I reserve the Opposition’s position in case we wish to return to the matter on Report. I hope the Minister takes up the hon. Gentleman’s sensible suggestion.

Glancing at the framework document, which sets out what should be in the memorandum of understanding, I note that point 13 refers to the Osmotherly rules. That would seem, therefore, to be an opportunity to insert a reference to the matter in the MOU itself.

In brief response to what my hon. Friend the Member for New Forest East has said, I am always happy to reflect on all matters. He will have noted what I have already said about the context of the Osmotherly rules, and about the assessment that any Minister would have to make to satisfy them. Confidentiality would need to be a relevant part of any consideration of whether the issues should be adopted in terms of the utilisation of the powers under the rules.

As I have already said, the Government’s intention is that the powers be used sparingly or rarely, and my hon. Friend has highlighted the number of times the rules have been adopted in practice. Although I am always happy to consider matters that have been flagged up through the Committee, it is important that the residual right be maintained.

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 43, in schedule 1, page 16, line 25, leave out ‘Minister’ and insert ‘Secretary of State’.

Amendment 44, in schedule 1, page 16, line 31, leave out ‘Minister’ and insert ‘Secretary of State’.

Amendment 45, in schedule 1, page 16, line 33, leave out ‘Minister’ and insert ‘Secretary of State’.

Amendment 46, in schedule 1, page 16, line 36, leave out ‘Minister’ and insert ‘Secretary of State’.—(James Brokenshire.)

I beg to move amendment 47, in schedule 1, page 17, line 20, at end insert—

‘Publication of information received in private

5 (1) This paragraph applies to information received by the ISC in private in connection with the exercise of its functions.

(2) The ISC—

(a) may only publish the information by way of a report under section 3, and

(b) must not disclose the information to any person if the ISC considers that there is a risk that the person will publish it.

(3) The restrictions on publication and disclosure of information in sub-paragraph (2) do not apply if—

(a) publication or disclosure is necessary for the ISC to comply with any enactment or rule of law, or

(b) the information has on an earlier occasion been disclosed to the public, in circumstances which do not contravene—

(i) sub-paragraph (2), or

(ii) any other enactment or rule of law prohibiting or restricting the disclosure of information.’.

With this it will be convenient to discuss:

New clause 4—Publication or disclosure of information by the ISC—

‘The ISC may not disclose or publish information if such a disclosure or publication by a person subject to the Official Secrets Act 1989 would be considered an offence for that person under that Act.’.

As I have said, the Bill makes significant changes to the ISC’s status. Amendment 4, which was agreed on Tuesday, changes the name of the Intelligence and Security Committee to the “Intelligence and Security Committee of Parliament”. The amendment more fully realises the Government’s intention that the ISC be a Committee of Parliament created by statute. As we have already debated, although it will not have all the attributes of a departmental Select Committee, it will become a Committee of Parliament.

In making it clear that the ISC will be a Committee of Parliament, we consider it necessary to make a number of consequential amendments, some of which have already been debated. As a consequence of the ISC being a statutory Committee of Parliament, it will have a greater general power to publish information, which will sit alongside its express power to publish reports to Parliament. As a consequence, the new ISC could publish evidence it had received other than through its reports to Parliament. Although the Official Secrets Act gives some protection against disclosure of information that  the ISC receives, particularly against disclosure of agency information, we do not think the Act alone will give sufficient protection. I will come to that issue in more detail shortly, when we discuss new clause 4, tabled by my hon. Friend the Member for New Forest East.

In so far as information coming to the ISC is not protected from disclosure by the Official Secrets Act, the other safeguards for protection of sensitive information in the Bill would be undermined. In other words, without some additional restriction on the power to publish, a new Intelligence and Security Committee of Parliament would be able to publish protectively marked information. The Prime Minister would not be able, as he currently is in relation to the ISC reports, to exclude material the disclosure of which would be prejudicial to the functions of the agencies, or of other parts of Government or the intelligence community.

Amendment 47 amends the Bill to provide that the ISC may not publish material that it receives in connection with the exercise of its functions, other than through its reports. This prohibition will be subject to exceptions permitting publication of such material if it has already lawfully been placed in the public domain, perhaps through the evidence having been heard in a public evidence session of the ISC, or wherever publication is necessary to meet a legal requirement. With those exceptions, and given that the prohibition applies in the first place only to material received by the ISC in connection with the exercise of its functions, we judge that the amendment will not prevent the ISC from engaging in its normal corporate activities, such as maintaining a website and advertising job vacancies.

Although my hon. Friend the Member for New Forest East agrees with the need for such a restriction on publication in the Bill, he may disagree with our approach perhaps because he feels it is too complex, but we believe it is straightforward. Alternatively, new clause 4 perhaps provides evidence for his approach, inasmuch as he considers that the Official Secrets Act 1989 alone provides sufficient protection against the possibility of damaging disclosures, and any further prohibition is unnecessary.

Under new clause 4, the ISC would not be able to disclose or publish information if such a disclosure or publication by persons subject to the 1989 Act would be considered an offence under the Act. To explain why we think that this will not provide the necessary protections against potentially damaging disclosures, I need to describe some offences under the Act in more detail.

Under section 1(1), a person who is or has been a member of the security and intelligence agencies, or a person notified that they are subject to the provisions of that subsection, is guilty of an offence if, without lawful authority, they disclose any information, document or article relating to security or intelligence which is or has been in their possession by virtue of their position as a member of any of those services, or in the course of their work, or if the notification is or was in force.

All members of the ISC are notified for the purposes of that subsection, and that will continue to be the practice in future. However, it is important to bear in mind that the existing ISC, not being a Committee of Parliament, has no general power to publish or disclose information. As I have said, the prohibition in section 1(1)  applies to documents and other items relating to security or intelligence. Security or intelligence is defined in section 1(9) as

“the work of, or in support of, the security and intelligence services or any part of them, and references to information relating to security or intelligence include references to information held or transmitted by those services or by persons in support of, or of any part of, them.”

This definition means that information held by intelligence and security bodies other than the agencies, such as military intelligence, will not necessarily be covered by the prohibition in section 1(1), and the information the agencies receive is not necessarily covered.

Other prohibitions in the Official Secrets Act might apply to information held by the ISC but which falls outside the purview of section 1(1). For example, section 2 concerns defence information and section 3 concerns international relations. However, the prohibitions under each of these sections are not made in the same absolute terms as the section 1(1) prohibition. These sections prohibit only disclosures that are damaging to the relevant interest. It would be a defence in each case for a person charged with the relevant offence to show that they did not know, or had no reasonable cause to believe, that the document or other item related to the relevant interest, or that its disclosure would be damaging.

It is not right that members of the ISC should have to make assessments on their own as to whether publishing particular information that they hold in connection with the performance of the ISC’s functions would be damaging. That is especially so, given that the consequence of a flawed assessment could be that they have committed a criminal offence. The right approach is to limit the ISC’s powers of publication to publication through its reports, where damaging material is identified and excluded through consultation between the ISC and the Prime Minister. That is what the Government’s amendment will bring about, reflecting the current practice. More generally, as the Bill seeks to regulate the disclosure or publication of the protectively marked information provided to the ISC, it would be inappropriate for the Bill to limit the parameters of permissible disclosure by reference only to a number of tightly defined categories of impermissible disclosure which are offences under criminal statute and therefore subject to a high standard of proof.

I welcome you to this fascinating Committee, Mr Crausby. The situation that we are getting into is daft, because the Government’s proposal actually puts further restrictions on the work of the ISC than currently exist. To give an example, when the ISC, which I chaired at the time, reviewed the intelligence on the London terrorist attacks of 2005, we met several survivors of that awful outrage in a private session. Had we wanted then to put out a press notice or publish details of that meeting, under this proposal, the ISC would have had to put it into its annual report. That is nonsense and makes the situation worse than it is at the moment.

The Bill’s purpose is clear: to give greater transparency, accountability and openness to the work of the ISC. The proposal is a backward step, and I see no point in it  whatsoever. It makes the position too complicated and too bureaucratic. Frankly, it is over the top. I hope therefore that the Minister will reconsider.

I warmly endorse what the right hon. Gentleman has said. The exceptions outlined by the Minister are lawfully already in the public domain or routine administrative matters dealing with the work of the ISC. This is far too great a restriction. The ISC recognises the Government’s concerns, but the amendment, as it stands, not only is complex but could give rise to unintended consequences.

The right hon. Gentleman referred to the private sessions that the Committee had with survivors of the 7/7 bombings. Those were private sessions, but they did not contain any material that would have been protectively marked. Therefore, unless the proceedings of those sessions were to be reported in a special separate report or delayed until they could be incorporated into the annual report, the Committee would not be at liberty to publish anything about them or their content. That would indeed be a step backwards.

It is suggested in proposed new section 5(2)(b) that the ISC could not disclose information to any person if

“there is a risk that the person will publish it.”

Even sharing information within the so-called ring of secrecy or with security-cleared personnel in Government Departments or in agencies does not actually preclude the possibility, albeit a slim theoretical possibility, that those persons might publish that information. There is always a risk that someone will make a damaging disclosure. The fact that amendment 47 only allows the ISC to publish information as reports overlooks circumstances when the ISC has written letters as opposed to formal reports. There may be an occasion where it wants to publish such letters, but amendment 47 would not allow us to do so.

Those are all examples of why we feel amendment 47 is so restrictive as to be unacceptable. I propose new clause 4 as an alternative on the basis that the simpler solution is often the best. My new clause requires that, in terms of publication or disclosure of information derived from classified material, the ISC must conduct itself in the same manner as any person subject to the Official Secrets Act. It recognises that we cannot decide by ourselves that we can publish classified information that we have been given, and we must respect the principle that the originator of classified material must control it. Even if my new clause is felt to be too liberal by the Government, that is a lesser fault than the restrictiveness from which the Government amendment suffers, and at the very least some sort of compromise between these two positions is necessary. I emphasise to the Minister that the Committee feels very strongly on that point. I feel that this should be one of the small number of measures where we put down a strong marker that he ought to undertake to consider the matter further before it is finalised.

As has been said already, Government amendment 47 introduces a specific statutory block on the ISC publishing or releasing information apart from through its annual report. New clause 4 tries to go some way to deal with the problems the Government have identified, but unlike amendment 47 it limits the restriction to information protected by the Official Secrets Act.

My right hon. Friend the Member for Torfaen made a short and eloquent speech and put very clearly the practical problems that will arise if Government amendment 47 is adopted. It seems that it would stop information being provided that would be very helpful to what the Government, and indeed the Opposition, are seeking to do, which is to aid the openness, where possible, of the ISC, by producing press releases or publishing letters where appropriate, where we know it is not against the national interest and no sensitive information is being disclosed. My right hon. Friend made an important observation, and I hope the Minister will respond directly to it. The hon. Member for New Forest East, as a serving member of the ISC, also mentioned the practical problems that he can see arising if the amendment were added to the Bill.

I would like to ask the Minister a few other questions. As he set out, the ISC will become a Committee of Parliament. I want to be clear: would the amendment include Members and other parliamentarians sitting on the Committee? Would they be covered in the same way as staff supporting the Committee?

As I understand it, all staff connected with the ISC will have signed the Official Secrets Act already, as will the parliamentarians. I am slightly confused. Will the amendment mean that both the staff and the Clerks and members of the Committee from both Houses, sitting on the ISC as parliamentarians, will be governed by this legislation when sitting on the ISC? I want to be clear on that. Where might the court order disclosure? As I read the amendment, the court could order information to be disclosed. Can the Minister give examples of where that might happen?

I am still not clear what sanction would be available if this provision were breached. Would the sanction be available to Parliament or to the security services and intelligence services if the provision were breached? I am not clear what the sanction would be if the amendment were accepted. Would not action inevitably be taken under the Official Secrets Act?

I say to my hon. Friend the Member for New Forest East and to the right hon. Member for Torfaen that the proposals we have made in the Bill are not intended to change existing practice. Under the Intelligence Services Act, the only right or power that the ISC has to make reports is to the Prime Minister. It produces an annual report. It may issue reports to the Prime Minister, and the Prime Minister may then lay before Parliament a copy of the annual report, and so on, subject to the necessary exclusions. In essence, therefore, the ISC is in practice acting beyond its current strict capabilities in some sense. We therefore recognise that that should not inhibit the issue of press releases in the ordinary way, alongside existing reports, and that it is limited to issues of conduct in connection with the exercise of the ISC’s function—the direct oversight of the agencies and Government Departments. We believe that the sort of press release that was described would not fall into that category.

Dr Lewis rose—

I give way to my hon. Friend, who is seeking to catch my eye.

I am grateful, as always, to the Minister. I could perhaps help him by looking at the first sentence of his amendment, which states:

“This paragraph applies to information received by the ISC in private in connection with the exercise of its functions.”

If it said something like “protectively-marked information” or “classified information” received in private, we might be on a convergence course, rather than having the problems we are addressing at the moment.

I certainly hear what my hon. Friend and the right hon. Member for Torfaen have said, and certainly I am not turning my face implacably against the points that they have made. The Government need to ensure that there is a mechanism in place, recognising the change in the status of the ISC, to assess sensitive material prior to its publication, and to assess whether redaction or other steps need to be taken. That is the thrust of the amendment; it simply recognises the change to the nature of the status.

Dr Lewis rose—

Before my hon. Friend catches my eye again, I would say to him that he has made his point about particular evidence that may not be sensitive, albeit there still probably needs to be a mechanism as to how that works. We certainly would not want to stand against the ISC in the publication of the press releases alongside its reports, as it would do now. Indeed, the reports themselves would be published, and therefore that would not offend the relevant provisions that we have outlined.

I say to my hon. Friend and to the right hon. Gentleman that I hear the point they make, and I hear the concern and anxiety being expressed as to whether in some way the amendment may inhibit or limit what is already happening in practice. That is not the Government’s intent, and I will certainly look at the language to see if there is any way of giving further assurance on these practical issues, because it is certainly not the Government’s intention to seek to do that.

I am sure that the Government are acting in good faith on this matter. It is simply that the wording as it stands refers to all

“information received by the ISC in private”,

whereas the Government are rightly concerned about what happens to classified or protectively marked information received in private. We entirely accept why the Government are concerned about that, and I would like the Minister to hone in on that particular part of the amendment.

I will certainly look very carefully at the relevant provisions. Equally, my hon. Friend may accept that his new clause has issues about the protection that would be afforded to members of the ISC and the nature of the existing arrangements. I will certainly re-examine the relevant provisions to ensure that the spirit of good will and the good faith that the Government are adopting are reflected.

The Minister is gracious to give way. The amendment is badly worded in that, as the hon. Member for New Forest East said, the restriction is really on the nature of the information, rather than on how the information is received. After all, everything that the ISC receives is private, because it meets only in private. Whatever it is—it could be about what the weather is like—is received in private. Perhaps the Minister will look again at new clause 4 and amendment 47. I think we all agree what needs to be protected, but in protecting what we think needs to be protected we may restrict the Committee in the exercise of its functions in another direction.

As during his original contribution to this debate, the right hon. Member makes an important point about the ISC’s existing operations, and how it conducts its functions and publishes information. He will recall our debate on Tuesday about public evidence sessions. In large measure the intent was to draw a distinction so that something in a public evidence session would not be captured by the provisions in the amendment.

I recognise the right hon. Gentleman’s point about the nature of the information, and acknowledge that many of the ISC’s sessions will be in private, notwithstanding our debate on Tuesday about public evidence sessions. I will certainly reflect on the points that he and my hon. Friend have made so that we can ensure that the provision strikes the right balance in recognising the change in the nature of the ISC, while ensuring that appropriate safeguards are in place to ensure that protectively marked information is not disclosed inadvertently or without the proper process that already exists for ISC reports.

The hon. Member for Kingston upon Hull North highlighted a few questions on the scope and application of the provisions. I am advised that the restrictions would potentially attach to the members and staff of the ISC, albeit that the criminal sanctions that might apply would sit under the Official Secrets Act and other relevant legislation on the restriction of disclosure. Members and staff all sign the Official Secrets Act, and I think she asked whether members were governed by the Act when sitting on the ISC. I am advised that they are.

On what sanctions or teeth are intended, in essence a potential legal remedy is given, such that if the Government were aware that the ISC was about to publish information in breach of or not in keeping with the provision, some civil remedy would be enabled. An injunction could be obtained. If the breach crossed into Official Secrets Act territory, it would provide a separate remedy in any event, so that has import.

In conclusion, I will reflect further on what my hon. Friend and the right hon. Gentleman have said on the nature of the provisions. We will examine whether there is any way, through different mechanisms or by looking at the wording, to give the comfort that we all want. We all know what we want to achieve, and we need to ensure that that is best reflected. With those words, I encourage the Committee to accept the amendment.

Amendment 47 agreed to.

Amendment made: 48, in schedule 1, page 17, line 20, at end insert—

‘Protection for witnesses

6 Evidence given by a person who is a witness before the ISC may not be used against the person in any criminal, civil or disciplinary proceedings, unless the evidence was given in bad faith.’.—(James Brokenshire.)

Schedule 1, as amended, agreed to.