I beg to move amendment 12, in clause 2, page 2, line 8, at end insert—

‘(1A) The ISC shall consider the proposed appointment of each of the following, including by questioning the prospective appointee at a meeting of the ISC—

(a) the Director-General of the Security Service,

(b) the Chief of the Secret Intelligence Service,

(c) the Director of the Government Communications Headquarters, and

(d) such other persons as the Prime Minister may direct.’.

With this it will be convenient to discuss the following:

Amendment 22, in clause 2, page 2, line 9, leave out from ‘oversee’ to end of line 11 and insert—

‘any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities.’

Amendment 24, in clause 2, page 2, line 26, leave out from ‘(5)’ to end of line 27 and add—

‘A memorandum of understanding shall not take effect under this section unless a draft has been laid before, and approved by a resolution of, each House of Parliament.’

Amendment 12 would establish pre-appointment hearings for agency heads, amendment 22 would extend the scope of the ISC’s oversight, and amendment 24 would apply the affirmative procedure in Parliament to the memorandum of understanding and so enable a vote on it. The amendments follow the theme that has developed in this Committee of strengthening the ISC, giving it greater independence wherever possible, and raising its profile as well. I will deal with each amendment in turn.

Under the previous Government, pre-appointment hearings were introduced for a large range of public sector roles, and we think that it is now time to extend them to agency heads. Select Committees now hold pre-appointment hearings for a number of positions and, in the light of our discussions about the status and nature of Select Committees, we believe it would help people to understand the ISC’s role if it were given the opportunity to carry out this limited part of the work in which Select Committees are already involved. As has been mentioned, it is important to note that gone are the days when heads of agencies were secretive figures and nobody knew their names or what they looked like. Today, the agency heads are generally well known and have a strong profile. That is part of the agencies’ efforts to open themselves up and to be more transparent about the fact of their existence and the type of work they undertake. We all recognise that that is important and we should applaud those efforts.

In the other place, Baroness Manningham-Buller and my right hon. Friend Lord Reid both argued that any person who is capable of running a hugely complex organisation, taking difficult decisions and juggling competing interests, should be able to give a competent  account of themselves and their organisation in front of parliamentarians. Another possible positive consequence of introducing pre-appointment hearings would be to encourage senior members of the agencies to foster strong relationships with the Committee, in preparation for possible future hearings.

Pre-appointment hearings were suggested in the other place, but unfortunately they elicited a weak response from the Minister, who argued that they were not necessary because agency heads are essentially civil servants and therefore not subject to pre-appointment hearings. As I understand it, Baroness Hamwee stated in an intervention that these are not civil servant positions, but Crown servant positions. They are different: they have far more autonomy than most civil servants, not only in how they structure their organisation but in operational matters. The decisions they make are of a different order of magnitude from those normally made by civil servants: they make decisions that can be a matter of life or death, not only for their staff, but for people in and outside the United Kingdom.

In addition, there is a more confusing line of accountability in these Crown servant positions. If the permanent secretary to the Home Office makes a decision or a mistake, the Home Secretary will be required to answer for it. She appears before Parliament regularly, and the decisions made by her Department are very much in the public eye because the Home Secretary is accountable to the House of Commons. I do not believe that there is such a clear line of accountability for the agency heads. The Prime Minister, as I understand it, has overall responsibility in Government for intelligence and security matters and for the agencies, and day-to-day ministerial responsibility for the Security Service lies with the Home Secretary, and for the Secret Intelligence Service and GCHQ with the Foreign Secretary, but only rarely are they called upon to account directly for the work of the agencies. We think it is important, therefore, to put greater emphasis and scrutiny on the individuals behind the scenes. That is the thinking behind amendment 12, and we hope that the Government will look on it sympathetically.

Amendment 22 follows on from our debates during consideration of schedule 1, in particular Government amendment 32, about the Prime Minister’s power over the ISC’s remit. Amendment 22, which would fit in just before that Government amendment, is designed to ensure that the ISC’s remit is set out in fairly broad terms in statute, rather than in the memorandum of understanding. Clause 2(2) states that

“The ISC may examine or otherwise oversee such other activities of Her Majesty’s Government in relation to intelligence or security matters as are set out in a memorandum of understanding.”

The amendment would remove the reference to the memorandum of understanding and assert the ISC’s role and its importance, which fits in with the Opposition’s aims of strengthening the Committee and making it easier to understand. As the role of the security agencies increases, the ISC must be given the powers to investigate their work, and it is the role of Parliament to try to stop the Government from infringing on the ISC’s work where it is inconvenient. The amendment would ensure that a fairly broad remit for the Committee is enshrined in legislation rather than in the memorandum of understanding. That links with earlier discussions about taking references from Select Committees in which I  emphasised the need for the ISC to be able to look at sensitive issues involving security matters wherever they arose. Amendment 22 would give the ISC a broader canvas.

Amendment 24 deals with the memorandum of understanding and the role of Parliament. The memorandum of understanding will govern the relationship between the Prime Minister and the ISC, including the matters that it is proper for the ISC to investigate. At present, the memorandum of understanding must be laid before Parliament, but parliamentarians have no opportunity to debate it or vote on it. The amendment would allow them to do so.

The memorandum of understanding has been rather elusive. Requests were made in the other place to see it, or at least to see a framework of its proposed contents, and such a document was promised on several occasions. By the end of the proceedings in the House of Lords a framework document had been produced, and the members of this Committee have had sight of it, as well. It is a summary of the intended content from Her Majesty’s Government’s perspective.

Has the hon. Member for New Forest East been involved in discussion of the contents of the memorandum of understanding? As we know, the document merely sets out what the Government think the memorandum of understanding should contain, and it would be interesting to hear from a serving member of the ISC about the discussions and the debate that have taken place so far. Unfortunately, it seems that we are unlikely to see the finished product before the end of our consideration of the Bill in Committee, and perhaps even before Report. It is therefore important that Parliament has an opportunity to debate more fully the contents of the memorandum of understanding and to vote on them. I hope that that suggestion might garner cross-party support.

Throughout the Bill, there are key references to the memorandum of understanding. Although we are giving the Bill effective scrutiny in Committee and I am sure we will also do so on Report, Parliament deserves to have a bigger role and should be able to debate the memorandum of understanding.

I can give the hon. Lady some support on one amendment; my approach to the second is slightly more neutral, and to the third, I have to say, it is rather negative. I can give some support to her idea of holding pre-appointment hearings for the heads of the intelligence and security agencies. The Intelligence and Security Committee is not opposed to any such suggestion, but we would urge that, for practical purposes, if it were adopted it would be preferable if the wording was that the ISC “may” consider the appointments, rather than “must” or “shall” do so, as those are rather prescriptive. It is a little like the discussion we had on amendment 10, which dealt with public hearings and said that hearings must take place at least once every calendar year. Sometimes, pressure of work—particularly important work, or work on sudden emergency matters—means that the ISC would not like to be constrained to have to do something that is bound to use up a significant section of its time. Subject to that adjustment, however, I could support amendment 12.

On broadening the ISC’s remit, by including armed forces

“engaged in intelligence and security activities”,

we fear that the wording of the amendment as it stands is too broad. In particular, one could argue that the entire British military effort in Afghanistan could be described as a security activity. Whether it is an intelligence activity—or an intelligent activity, some might say—is of course subject to debate. In making that remark, I mean no disrespect to the very serious efforts being made by our armed forces in that crucial area. The ISC would simply not be equipped to oversee such activity by the armed forces that went beyond the remit of intelligence and intelligence-oriented security matters that it has at present, so I fear I cannot support the amendment.

On amendment 24 and the question of the memorandum of understanding, let me first reassure the hon. Lady. She asked whether the ISC has been involved in what is to be in the memorandum of understanding, and the answer is yes, absolutely. The whole idea of such a document has to be that it is agreed between the two parties to the document, which are the Government and the ISC, and we attach great importance to its contents.

The document will be public, of course. I fully understand her concerns: given the importance of the matters that the document will deal with, Parliament might well have views on the subject. That is of particular importance the first time the document is drawn up and appears, but, normally, once it has appeared initially, the question that arises is: what do we do when, from time to time, we have to alter the provisions? I am sure that, on reflection, she will realise that if we had to go back for Parliament’s approval every time we wanted to alter the MOU, that would result in unwanted delay and bureaucracy.

Let me give an example. What would happen if part of a Government agency that the ISC scrutinises was being restructured? As the Bill stands, we could probably sort that out through an exchange of correspondence between the ISC and No. 10, and a new remit for the Committee would be agreed in a week or so. However, if we had to amend the MOU to incorporate such a change and go back to Parliament to get it approved, given all the demands on parliamentary time it is unlikely that the House would be able to agree to such changes so rapidly. The ISC is therefore content for the current provisions on the MOU to stand, so I oppose amendment 24.

The thrust of my hon. Friend’s amendments is an attempt to ensure that the ISC has a wider remit than it has had in the past and is more transparent and accountable. Amendment 12, for example, would ensure that prospective candidates for heads of the agencies could appear before the ISC. I do not see anything wrong with that at all. It is a good idea. It is held in private anyway, and the ISC would have greater stature as a result.

Amendment 22 is a bit wide, but in some ways it reflects what the ISC has done over the past 10 years anyway, with discussion of intelligence issues going beyond the three agencies. It certainly involved the Ministry of Defence and the defence intelligence staff.  Over the last couple of years, the Government and the ISC have accepted that that issue should be dealt with by the ISC.

On amendment 24, I understand what the hon. Member for New Forest East said. Of course, my hon. Friend knows that the memorandum will be published in any event; her amendment affects the question of how that is dealt with in terms of speed and effectiveness.

Pre-appointment hearings are a relatively new phenomenon in the UK. Since 2008, Select Committees have conducted pre-appointment hearings for a list of posts and the Cabinet Office has published guidance on the process followed for such hearings, which includes the list of posts covered. In general, the process has been a welcome development and gives departmental Select Committees a role in questioning proposed appointees. It is important to note, however, that the posts on the list are in public bodies—for example, the chairs of Ofcom and the Social Security Advisory Committee. The pre-appointment process has never been used for the appointment of civil servants—I will come on to address the point made by the hon. Member for Kingston upon Hull North. The heads of the intelligence and security agencies are permanent secretary-level civil servants, and the recruitment process is therefore expected to follow the process for appointment of civil servants of such seniority.

The Minister highlights the fact that these individuals are civil servants. That raises an issue also raised by the hon. Member for Kingston upon Hull North about their accountability to Parliament in other areas. It used to be that they were very secretive civil servants, but they are now able to give public speeches at the Mansion House and various other places. Does he agree that, where it is relevant—only where it is relevant—they should perhaps be prepared to give evidence to Select Committees?

Owing to the nature of the information provided and the roles that they have, the right place for them to give evidence is to the ISC, which they do within the bounds of the work that the ISC conducts. In last Tuesday’s debate, we went over the challenges that would be involved in public hearings of the ISC; those challenges would be writ even more large if the heads of the agencies were to give evidence to other Select Committees. How best to address that is a real challenge, so I am not sure that I agree with the hon. Gentleman about the heads of the agencies giving evidence to other Select Committees.

There is accountability. Just as the Home Secretary is accountable for her Department, she is accountable for the Security Service under the Security Service Act 1989 and therefore open to questioning in that regard. Similarly, the Foreign Secretary is responsible for GCHQ and the Secret Intelligence Service under the Intelligence Services Act 1994. They are both held to account for the work of the agencies by being witnesses and giving evidence themselves to the ISC. I do not accept that accountability does not apply in respect of the agencies.

I come back to the specific point about the heads of the agencies themselves and their status. The agencies are excluded from the provisions of part 1 of the  Constitutional Reform and Governance Act 2010, which places the management of most of the civil service of the state on a statutory footing. Exclusion from that part of the Act merely reflects the specific nature of the agencies’ operations. Staff of the agencies, including the heads, are and have always been part of the civil service of the state. That is clear from the relevant Act, and if it were not so, the specific exemption for the agencies in section 1(2) would not have been necessary. Staff of the agencies are not, however, part of the home civil service—generally referred to as the “Civil Service” with capital letters—nor are they part of Her Majesty’s diplomatic service; they form a separate category of civil servants. They are also, of course, Crown servants, but that term is a wider term covering, for example, members of the armed forces.

Although the agencies are not bound by the civil service recruitment principles, I can reassure the Committee that they do in practice follow the spirit of the principles, and the Civil Service Commission is expected to be involved in the process. Pre-appointment scrutiny by Parliament is not appropriate, given that those roles are permanent secretary-level roles and, in practice, those who fill them will be recruited by a process involving a civil service commissioner. to ensure that the appointment is made on merit.

In particular, I see no reason why the agency heads should be treated differently from other permanent secretary appointments. Certainly, the roles that the agency heads play are very important and the appointments must be the right ones, but all permanent secretaries in the UK Government play very important roles. We do not believe that there is a reason to single out the agency heads for special treatment. In our judgment, the fact that all these posts are posts within the civil service of the state serving successive Administrations means that the pre-appointment process is not appropriate.

The current ISC has taken evidence from, and reported on the activities of, the wider intelligence community beyond the three intelligence and security agencies. The Bill formalises the ISC’s role in overseeing the wider intelligence community by allowing the ISC to

“examine or otherwise oversee such other activities of Her Majesty’s Government in relation to intelligence or security matters as are set out in a memorandum of understanding.”

I want to be clear that the Government intend that, through the provisions of the MOU, substantively all of central Government’s intelligence and security activities will be subject to ISC oversight. It is our specific intention that the MOU will cover: in the Ministry of Defence, the strategic intelligence direction, collection, analysis and training activities undertaken by the Chief of Defence Intelligence; in the Cabinet Office, the activities of the National Security Adviser and the National Security Secretariat in relation to matters of intelligence and security, the Joint Intelligence Organisation and the activities of the Office of Cyber Security and Information Assurance in relation to matters of intelligence and security; and in the Home Office, the Office for Security and Counter Terrorism. I think that I am right in saying that the current ISC agrees with that list.

It is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the MOU can make provision at a level of detail that is not appropriate to include in primary legislation—the point made by my hon. Friend the Member for New Forest  East. That is particularly important because parts of Government Departments engaged in intelligence and security activities might well be engaged in other activities that do not properly fall within the remit of the ISC.

Things change over time. Departments reorganise. The functions undertaken by a Department one year may be undertaken by another the following year. The intelligence world is no different from any other part of Government. For example, as with the recent Levene report, we could find that future reorganisations of defence might change organisational boundaries that affect MOD’s intelligence activities. An MOU is flexible: it can be changed much more easily than primary legislation. It will enable the intention of the Government that the ISC should have oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future.

If the amendment were accepted, instead of the ISC’s widened remit beyond the three agencies being limited to oversight of intelligence and security activities and defined precisely in a memorandum of understanding, it would be defined under primary legislation as covering any part of a Government Department or any part of Her Majesty’s force that is engaged in intelligence or security activities. That is simply too broad. The amendment would allow the ISC oversight of not just the intelligence and security activities of those organisations, but all the activities of those bodies, whether or not concerned with intelligence and security.

The Bill will already allow the ISC to oversee the activities of Her Majesty’s forces relevant to intelligence or security, through its oversight of the relevant actions of the Chief of Defence Intelligence. On that basis, I hope the hon. Lady will not press her amendment to a vote.

Amendment 24 would require a memorandum of understanding agreed between the Prime Minister and the ISC to be approved by a resolution of each House of Parliament before it can take effect. The MOU must be agreed between the Government—in the person of the Prime Minister—and the ISC. It is intended that the first MOU will be agreed immediately on the coming into force of the relevant provisions in the Bill, and that an agreed draft will be publicly available substantially before that.

As is usual for MOUs, there is no procedure for parliamentary approval. While the MOU itself will be an unclassified document, and it will be published and laid before Parliament, its precise terms are likely to be shaped by matters that are sensitive in national security terms and therefore cannot be made public. In such circumstances, it is particularly appropriate that the MOU can be concluded without parliamentary approval.

Of course, the terms of the MOU must be agreed with the existing ISC, comprised of parliamentarians, and which will be a Committee of Parliament, appointed by and accountable to Parliament. Requiring those parliamentarians to seek the approval of their parliamentary colleagues would be quite a restriction on the independence of that body.

We have not published the memorandum for the simple reason that it does not yet exist. We are in the process of agreeing the document with the ISC and are doing so in  parallel with the Bill’s passage through Parliament. Once we have an agreed draft, we intend to publish it. It would not be appropriate to publish a draft that has not yet been agreed by both parties.

However, it was clear from the debate in Committee and on Report in the Lords that there is an appetite for more detail on what might be contained in the MOU. For that reason, before the debate on Third Reading in the Lords, the Government published a document that set out the areas that we intend the MOU to cover, premised on the assumption that the ISC-related provisions in the Bill would be enacted substantially in their current form. The document that we published records only the Government’s intention, as the MOU needs to be agreed between the Prime Minister and the ISC. I would be happy to provide an updated document, taking account of our debates in Committee, before the Bill is debated on Report.

We included mention of the MOU in the memorandum that the Government provided to the Lords’ Delegated Powers and Regulatory Reform Committee. We did so for completeness, not on the basis that the MOU will strictly be a delegated legislative power. As we made clear to that Committee, the purpose of the MOU is to make provision about the ISC in a flexible instrument that can readily be amended as necessary to suit changed circumstances and at a level of detail that simply would be inappropriate for primary legislation. It is emphatically not a means of avoiding appropriate parliamentary scrutiny.

The Delegated Powers Committee reported on the Bill before it was debated in Committee in the Lords. I am pleased to note that that Committee did not make any recommendations concerning the MOU. On that basis, I hope the hon. Lady will not press her amendment to a vote.

I am grateful for the contributions in this short debate on the amendments. They are probing amendments to push the Government to explain why they have set their face against pre-appointment hearings when there is a general appetite for them. I think their time will come. Perhaps it is part of a process by which the Committee inches, slowly but surely, towards becoming a Select Committee.

This has been a helpful debate, and I am grateful for the support from the hon. Member for New Forest East for amendment 12. I will certainly take on board the point he made about using the word “may”, so that the ISC does not have to consider the appointments but may do so if it wishes. If the amendment were tabled again, I think the drafting would be changed to include “may”.

I do not wish to push amendment 22 to a vote. I listened carefully to the Minister’s explanation about the intention behind what would go into the MOU. I am satisfied with that, and I understand the flexibility the MOU gives regarding changes in Government Departments or new things that have to be incorporated. I understand that it is easier to amend the MOU.

On amendment 24, I should say that I am a little concerned. This will be the first time that the MOU is agreed. It might be helpful at the initial stage to have at least some opportunity for debate in Parliament. I understand what the hon. Member for New Forest East  said about not wanting a debate every time there was a small amendment to the MOU. Is the Minister willing to think about a way for Parliament to have some opportunity to debate the MOU when it is first produced?

In an earlier part of the discussions, reference was made to the Backbench Business Committee finding time for the annual debate on the ISC report, which is held in Parliament. That is rather worrying, because that debate needs to be scheduled by the Government in Government time. Perhaps it could be linked to the MOU debate.

I stress that the Committee strongly agrees with the hon. Lady. We believe that the annual debate on the annual report should be in Government time. We should not have to negotiate with the Backbench Business Committee. That is not fair to Back Benchers or to that Committee.

I am grateful to the hon. Gentleman. That strengthens the message that is being sent to the Government. I know it is not the Minister’s responsibility to schedule business in the House, but he has the ear of the Leader of the House and I am sure he can be very persuasive in making sure that the debate on the annual report—we have not yet had the debate on the last report—is scheduled appropriately, and perhaps linked with the new MOU if possible. On the basis of those comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 32, in clause 2, page 2, line 13, leave out from ‘as’ to end of line 19 and insert ‘—

(a) the ISC and the Prime Minister are satisfied that the matter—

(i) is not part of any ongoing intelligence or security operation, and

(ii) is of significant national interest,

(c) the ISC’s consideration of the matter is limited to the consideration of information provided voluntarily to the ISC by—

(i) the Security Service,

(ii) the Secret Intelligence Service,

(iii) the Government Communications Headquarters, or

(iv) a government department.

‘(3A) The ISC’s consideration of a particular operational matter under subsection (3)(a) or (b) must, in the opinion of the ISC and the Prime Minister, be consistent with any principles set out in, or other provision made by, a memorandum of understanding.’.

Amendment 33, in clause 2, page 2, line 22, leave out ‘(3)’ and insert ‘(3A)’.—(James Brokenshire.)

Clause 2, as amended, ordered to stand part of the Bill.