[2nd Allocated Day]
[Relevant Document: The Eighth Report from the Joint Committee of Human Rights of Session 2012-13, Legislative Scrutiny: Justice and Security Bill (second Report), HC 1014.]
Further consideration of Bill, as amended in the Public Bill Committee
The Intelligence and Security Committee
With this it will be convenient to discuss the following:
Amendment 9, page 1, line 9, at end insert—
‘(2A) The Chair is to be a member of the House of Commons elected in the same way as the Chairs of Departmental Select Committees.
(2B) A person is not eligible to be elected as Chair of the ISC unless that person—
(a) has received the formal consent in writing of the Prime Minister to that person’s candidature, and
(b) is not a Minister of the Crown.’.
Amendment 10, page 2, line 3, leave out subsection (6).
Amendment 11, in schedule 1, page 16, line 5, after ‘person’, insert
‘elected as the Chair or’.
Amendment 12, page 16, line 7, after ‘(2)’, insert ‘The Chair or’.
Amendment 13, page 16, line 12, after ‘is’, insert ‘the Chair or’.
Amendment 14, page 16, line 16, leave out
‘Parliament by virtue of which the person is a member of the ISC’
and insert ‘Commons’.
Amendment (a) to Government amendment 58, line 11 at end add—
‘(e) may make payments to the Independent Parliamentary Standards Authority and House of Lords in respect of any expenditure incurred, or to be incurred, in relation to remuneration payable to ISC members in respect of their membership of the ISC.’.
Before I deal with amendments 8 to 14, which stand in the name of, among others, my hon. Friend the Member for Chichester (Mr Tyrie), I should explain that my hon. Friend has been unavoidably diverted by long-standing and immovable duties in relation to the Parliamentary Commission on Banking Standards. He sends his profuse apologies to the House.
I am acutely aware of what is at stake in relation to the Intelligence and Security Committee. In 2009 the Joint Committee on Human Rights published a report entitled “Allegations of UK Complicity in Torture”, which considered the ISC’s ability to work within a circle of secrecy and yet deliver credible scrutiny. It states:
“The missing element, which the ISC has failed to provide, is proper ministerial accountability to Parliament for the activities of the Security Services. In our view, this can be achieved without comprising individual operations if the political will exists to provide more detailed information to Parliament about the policy framework, expenditure and activities of the relevant agencies.”
The provisions in the Bill are therefore welcome on the whole, but amendments 8 to 14 would remedy a crucial deficiency in the struggle to provide that political will to answer to Parliament.
The amendments would have a very simple effect. They provide for the election of a Chair of the ISC from the House of Commons on the same basis as the election of Select Committee Chairs, apart from the fact that candidates would be required to obtain the formal consent of the Prime Minister in writing before standing. Ministers would be ineligible.
There are three reasons why reform of the ISC is needed. First, it tried, but failed, to get to the bottom of British involvement in rendition; its investigation of British complicity in extraordinary rendition was a test that it failed.
As an ISC member of seven years’ standing, may I say that I take grave offence at what the hon. Gentleman has just said? We looked very thoroughly at the evidence on rendition, and arrived at suitable conclusions. I think that to make a blanket allegation of that kind without providing any evidence to back it up, which I hope he will now do, is unacceptable.
The hon. Gentleman’s intervention has slightly pre-empted a quotation that I was about to give. In a recent pamphlet, my hon. Friend the Member for Chichester wrote:
“The ISC found no evidence that the UK agencies were complicit in any extraordinary rendition operations and concluded that, during the critical period (from 2001 to 2003), the agencies had no knowledge of the possible consequences of US custody of detainees generally, or of Binyam Mohamed specifically.”
He went on to say:
“The opposite was the case. Successive court judgments have now made clear that the UK ‘facilitated’ the interrogation of Binyam Mohamed. Furthermore, High Court judgments in February and July 2009 concluded that crucial documents were not made available to the Committee by the Secret Intelligence Service, which led to the Committee’s Report on Rendition being inaccurate”.
I see the right hon. Member for Knowsley (Mr Howarth) shaking his head, and I regret that he is offended, but the reality is that allegations have been made about the Committee’s performance, and made credibly, by my hon. Friend. What the amendments seek to do is not to haul the Committee over the coals, but to demonstrate that there is a strong, clear case for the Chair to be elected.
The ISC thought that it had reached the truth, but it had not. MI6 had been complicit in extraordinary rendition, and it was left to the courts to expose the truth.
I am following the hon. Gentleman’s argument with interest. What evidence does he have to suggest that the information would have been provided if the Chair had been elected by this House? We all want that information to be provided, but how would this proposal fix the problem?
It is, of course, very difficult to prove such things conclusively, but I will come on to discuss the evidence that the election of Select Committee Chairs has made those Committees more authoritative, which is a point the Government have endorsed. First, however, I want to raise two other issues.
As the Chairman of the Committee that produced the report, I have to tell the hon. Gentleman that it would not have made the slightest difference if I had been elected by Members of this House, as opposed to being appointed by the Prime Minister, as I was.
I am grateful to the right hon. Gentleman for giving his opinion, and I do not mean any slight against him personally, of course, but before addressing that specific point I would like to talk about the experience the House has had since Select Committee Chairs have been elected.
The second reason why the ISC needs reform is that its independence has been compromised by its ties to the Executive. In recent years, a string of appointees have come out of Government to chair the Committee, only to return to the Front Bench afterwards. Until the June 2009 reshuffle, all of the preceding three Chairmen of the Committee went straight back into senior Government posts. They were Ann Taylor, now Baroness Taylor of Bolton, and the right hon. Members for Torfaen (Paul Murphy) and for Derby South (Margaret Beckett).
Despite Standing Order No. 152E, introduced under the previous Prime Minister, Kim Howells was appointed as Chair by that Prime Minister in October 2008 without the involvement of the Committee of Selection. Experience of Government is no doubt valuable, but the revolving door between the chairmanship of the ISC and the Government should be blocked. It is damaging to the Committee’s credibility.
I am grateful to my hon. Friend for giving way, especially as I must apologise because I will not be able to attend much of this debate as I have to travel overseas.
I put it to my hon. Friend that the point he makes is already met by the reforms in the Bill, because in future not only will the House of Commons have to approve any member of the Committee and be able to reject recommendations from the Prime Minister, but the Chairman will be elected by the Committee members from among themselves, who in turn will have been approved by the House of Commons. It was the Prime Minister who appointed me and all my predecessors; that is the current situation, but he will no longer have that power.
My right hon. and learned Friend accurately reflects the Bill’s contents, but as I shall explain later, I do not think it is right that the Chair should be elected by the nominated members of the Committee approved by the House. I think the Chair should be elected by the whole House under secret ballot.
Does my hon. Friend agree that the situation outlined by my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) would be analogous to MPs being chosen by sitting MPs? True democracy means that those outside the little magic circle of the Whips’ favourites have a say.
I am sorry to disagree with both my hon. Friends, especially as they really are my hon. Friends. That analogy breaks down because this is not MPs being elected by other MPs; rather, it is the Chair of the Committee being elected by a group of MPs who will have been chosen with the final say-so of the House of Commons. The other point I would simply make is that I do not think people who know either me or my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) would regard us as falling entirely in the Whips’ narks category.
Since my hon. Friend has brought me on to this territory early, let me deal with these points now, first by saying to my right hon. and learned Friend that I well remember the month when he became Secretary of State for Defence, because it was when I graduated from initial officer training. I am very well aware of his august experience and the extent to which it exceeds my own. I am also well aware that my hon. Friend is a man of great character and integrity and personal courage. This is not really the issue, however. The issue is the institutional arrangements we put in place not necessarily to constrain my right hon. and learned Friend and my hon. Friend, but to ensure the Committee is credible both now and in future.
As I am sure my right hon. and learned Friend knows, I am often in close contact with the Whips, but not usually on that matter.
The third reason why the ISC needs to be reformed is that it has seemed unwilling to demonstrate that it challenges the information it receives from the intelligence and security agencies. The Joint Committee on Human Rights found the ISC’s 2007 report on rendition to be “opaque” and too readily accepting of the accounts presented by the agency heads, without sufficient justification.
The crucial reform that is necessary is direct election of the Chair by the House of Commons. The Wright Committee—the Committee on Reform of the House of Commons—thought extremely carefully about this issue. Paragraph 74 of its report states:
“The credibility of select committees could be enhanced by a greater and more visible element of democracy in the election of members and Chairs.”
It also states:
“Their election by a small group of Members, acting under party constraints, is evidently not conducive to producing a truly independent figure with the required weight inside and outside the House which House-wide election might confer.”
That is precisely my point.
Those of us who were elected in 2010 have experienced first hand only the operation of Select Committees under Chairs directly elected by the House, so I personally struggle to draw a comparison. However, in responding to the Liaison Committee’s second report of Session 2012-13 on Select Committee effectiveness, resources and powers, the Government acknowledged:
“Chairs of select committees are now elected by the whole House, giving them increased authority and independence.”
Who am I to disagree with the Government on this point?
That is precisely the reason for these amendments. It may suit the Government to be scrutinised by carefully selected nominees who elect a Chair from among themselves, as the Bill proposes, but the risks to the credibility of the Committee are obvious.
The hon. Gentleman is seeking to make the perfectly logical and rational argument that the Chair and membership of the ISC are analogous with the Chair and membership of other Committees. Does he not accept, however, that as the ISC deals with intelligence matters and our secret intelligence services, other factors must be taken into account, because the trust relationship—not collusion or a cosy relationship, but a trust relationship—between the agencies and the members of the Committee is crucial to effective scrutiny? If the agencies do not have that confidence and trust, they will be less forthcoming.
The right hon. Lady’s question pre-empts some of my other remarks, but let me just draw her attention to what amendment 9 states:
“The Chair is to be a member of the House of Commons elected in the same way as the Chairs”
of other Committees, and:
“A person is not eligible to be elected as Chair of the ISC unless that person—
(a) has received the formal consent in writing of the Prime Minister to that person’s candidature, and
(b) is not a Minister of the Crown.”
So the Prime Minister, and the security establishment, would have the opportunity through that procedure to approve or reject a person who wished to stand for election as Chair of the Committee. That is not a perfect situation, but it is one that recognises the point the right hon. Lady makes.
This is meant to be a helpful intervention. I think my hon. Friend accepts that if we are to have this Committee that is unlike any other in that it is the only Committee with access to top-secret, classified information, it is not good enough simply to say that any Member of this House, however honourable, who happens to be fortunate enough to win an election should automatically be appointed Chairman of such a Committee. Am I right that my hon. Friend acknowledges that that would be an impossible situation?
I certainly agree with my hon. Friend on that point, but that is why the amendment is phrased in the way that it is. It does not seek that individual members of the Committee should be elected; that is a compromise that those who introduced it have agreed to. There is agreement that Committee members should be nominated by the Prime Minister and approved by the House, as the Government have proposed. The crucial distinction is that the Chairman, who is the key figure of the Committee, should be elected by secret ballot of the whole House and that that Chairman should have been previously agreed to by formal consent of the Prime Minister in writing, which gives the Prime Minister and the security establishment the opportunity to exclude any Member who might not be an appropriate person.
Has my hon. Friend taken on board the ultimate argument against his amendment—that is, the invidious position in which it would put the Prime Minister of the day? If someone has sought to stand as candidate for the Chair and the Prime Minister has refused to give his consent, that is not a private matter. That would become a public matter and the Prime Minister would either have to refuse to give his reasons or, if he did give his reasons, those might be very damaging to the reputation of the individual Member concerned. When the ISC considered this question, as we did when we were putting forward our original proposals to the Government, we rejected that idea precisely because it would put the Prime Minister in an invidious position that he could not be expected to carry out without creating much greater problems.
I recognise that my right hon. and learned Friend is advancing that argument with the best possible intention, but we live in a time when, because of terrorism and the fear of terrorism in particular—to pre-empt my concluding remarks—there has been an encroachment on our fundamental principles of liberty and justice, which we see elsewhere in the Bill. It is in that context that we must make sure that the security services are held properly to account in a transparent and credible way.
Here is the crucial point: in other Select Committees, transparency can do the heavy lifting, but as has been mentioned, transparency is not available in relation to the ISC. Precisely because of that, we need an elected Chair. I appreciate that the Prime Minister might find himself in a position where he had to reject a candidate in advance of their election, but that is surely a better option than going forward with a Committee whose independence from prime ministerial patronage can be questioned. I appreciate that the Prime Minister might have to engage in some politics on this issue, but that is after all his job.
Like others, I do not take offence at the argument, but I think the hon. Gentleman’s representation of the nature of those who serve on the Committee is a long way short of my experience, if I may put it that way. Am I to understand that no matter how well qualified a Member of the House of Lords might be to chair the Committee, the hon. Gentleman’s amendment would preclude that from ever happening?
Let me take both those points. I do not wish to cast any doubt on particular members, but we are in a position where the Committee’s success can be questioned and we need to deal with that on an institutional basis. Yes, the substance of the amendment would preclude a Member of the other House from being the Chairman of the Committee.
Amendments 8 and 9 provide for the election of the Chair from the House of Commons on the same basis as departmental Select Committee Chairs, with the exception that they would have to have the Prime Minister’s consent to their candidature. The amendments do not make provision for the election of members of the Committee. We think that together these amendments would lead to increased authority and credibility for the Chair, which is not to cast any aspersions on my right hon. and learned Friend. I feel sure that if he stood for election, I would be strongly inclined to vote for him. The point is to set up the institutions so that they are beyond reproach. Amendments 10 to 14 are consequential on amendments 8 and 9.
In conclusion, as I said, the problem is that terrorism and fear of terrorism have led Governments—for honourable reasons, I do not doubt—to erode principles that ordinarily we would regard as sacred principles of our systems of justice and liberty. I refer in particular to closed material procedures, but also to terrorism prevention and investigation measures, which have been dealt with on other occasions. In that context, it is vital that the House, the wider public and non-governmental organisations are reassured that the security agencies are answerable to the House, albeit in secret, through a Chair who enjoys the authority conveyed on him by Members. That is why we have tabled the amendments, and I hope that the House will adopt them.
I shall try to be brief because I know that a great deal of ground needs to be covered in these debates. The hon. Member for Wycombe (Steve Baker) has served a useful purpose by ventilating the issue through the amendments. I do not want in any way to detract from that. First, however, he bases the argument on an event that he portrays inaccurately, and I will say a word about that in a moment. Secondly, in trying to make the role of the Chair subject to the will of the whole House, he fails to understand the nature of the composition of such a Committee and the responsibilities placed on it, and I will also say a few words about that.
My right hon. Friend the Member for Torfaen (Paul Murphy) was the Chair of the Committee when we examined the issue of extraordinary rendition. The way that the hon. Gentleman portrayed what we did grossly misrepresented the process that we went through. First, as my right hon. Friend has just reminded me, there was a break at one point in our consideration of the Bill at the request of the then Government while further information was forthcoming.
Secondly, the hon. Gentleman implied that vital information had not been put before us. As my right hon. Friend the Member for Torfaen said in an intervention, the information that we did not have at the time did not change our conclusions at all. We subsequently got that information and, in further annual reports, we pointed out that there was a problem with retrieval of the information that the agencies held. It was never a deliberate attempt on their part to mislead us and the information concerned did not materially affect the conclusions that we drew. So the example that the hon. Gentleman uses to justify his case is, frankly, wrong.
There is a whole separate debate to be had about that. The hon. Gentleman rightly referred earlier to part 2 of the Bill, which deals with closed material proceedings. There are a number of problems with the Binyam Mohamed case, the main one of which concerned the doctrine known as the control principle. That creates serious problems for our relationships with partner agencies, particularly the United States, but if I were to go too far down that road, Mr Deputy Speaker would pull me up because we have already dealt with amendments to part 2. The process of considering the issues by the Intelligence and Security Committee is not as the hon. Gentleman portrayed it.
On my second point, I shall be brief because in his intervention the Chair of the Committee cleared that up. We have gone a very long way to making the ISC more like a Select Committee, but it never can be identical to a Select Committee, as I think the hon. Gentleman acknowledged, because of the nature of the material that we have to deal with. As a member of the Committee, I am content that the appropriate person to have the final say and to have the recommending powers on who is an appropriate person to chair that Committee should be the Prime Minister of the day—not that I do not trust the House of Commons. As a long-standing Member of the House, I have every confidence in it, but in this one exceptional circumstance I do not think that that is the appropriate way to do it. Although in democratic terms the hon. Gentleman’s amendment is well intentioned, I do not think it is appropriate.
Why does the right hon. Gentleman consider it inappropriate to give the Prime Minister of the day the opportunity to approve—or reject—the candidacy of particular Members and then allow them to go forward, with the benefit of that approval, to be elected by the whole House so that they can enjoy the authority of the whole House? My right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who is no longer in his place, advanced the argument that the Prime Minister would be in an invidious position, but that does not seem to be what the right hon. Gentleman is concerned about. Why should we not have prime ministerial approval and then an election?
Because, as I have already said and as the hon. Gentleman acknowledges, the ISC is a different kind of Committee. The people concerned are handling different information—information that they cannot share—and there are occasions when there is an ongoing operation, things are moving at a fast pace, it is impossible to convene a meeting of the full Committee, and the Prime Minister, the heads of agencies and the Foreign Secretary—whoever is relevant—have to be able to talk to somebody. On some occasions the Chair has been the person they speak with, which is entirely appropriate, but in order for them to be able to do so the Chair must have the confidence of senior Ministers and the heads of the agencies. I think that is an important principle. Otherwise, they will feel inhibited about sharing vital information, which often has to be provided at very short notice, with the Chair at least.
Is not it precisely because the Committee’s work is so vital—in some senses it is more important than almost any other Committee, because it relates to fundamental issues of statecraft and national security—that there should be at least some modicum of democratic accountability, albeit under the system of de facto licence, as identified by my hon. Friend the Member for Wycombe (Steve Baker)? It is precisely because that work is so vital that it should not be left to the grandee system to ensure that the people who are meant to be overseeing what happens are awake and alert to the job.
The hon. Gentleman’s intervention seems to be predicated on the view that the Committee is entirely unaccountable, but that is not the case. We produce an annual report and other reports during the course of the year, and they are debated in both this House and the other place, along with other matters we have dealt with over the year. Therefore, to that extent there is accountability. In that sense the way the Committee operates is already similar to the way Select Committees operate, and it will become more so as a result of the Bill.
However, I still think that whoever chairs the Committee has a special role and that an appropriate veto over an individual’s promotion to it has to be in the hands of the Prime Minister of the day. I have no reason to believe that the current Prime Minister, who is not a member of my party, would not perform that role properly. I also believe that no Prime Minister would promote the candidacy of someone they did not think would have the confidence of the whole House, not just that of the Committee. In that context, I think that the accountability is already there. It might be a little bit opaque in some respects, and in others it might be indirect, but it is there and it is appropriate.
I would like to confine my remarks to an elaboration of a point that was made very effectively by my hon. Friend the Member for Cambridge (Dr Huppert), who sadly is not in his place at the moment. There seems to be a conflation of two separate concepts: whether the election of the Chair directly will aid the Committee’s credibility; and whether it will aid the efficacy of its performance. For the life of me, I cannot see how the method for electing the Chair would make any difference whatsoever if, for example, the Committee was carrying out an investigation and one or other of the security agencies chose not to supply it with certain information that ought to be supplied. I would have thought that the best insurance for an agency supplying the information that should be supplied is the consequences of what would happen if it did not do so and the omission came to public attention, as it inevitably would.
If the Chair is elected and enjoys the authority of the House, apart from any prime ministerial patronage or the appearance of it, he would have the authority, and not just with the agencies, but in the public sphere, to be able to tell the Prime Minister that he was dissatisfied with the information provided by a particular agency, and in that way the two mechanisms come together and authority over the agencies is increased.
I am afraid that I do not think that cuts any ice whatsoever, because one cannot be in a position to be dissatisfied with information that one has not been given and does not know exists. The suggestion, which is implicit in my hon. Friend’s intervention, that the person who was Chair at the time of the particular historical episode to which he refers—it was before my time on the Committee—would have acted in any way differently had he been elected, and that he did not act simply because he felt insufficient legitimacy to do so because he had not been directly elected, is frankly unrealistic.
My hon. Friend the Member for Wycombe (Steve Baker) seems to overlook the fact that changes in the Bill will massively strengthen the Committee’s position. The Committee will be able to require information to be provided, whereas previously it could only request it. That is a huge difference. The position of the House of Commons will be strengthened vis-à-vis the Committee’s membership, because previously the House could express an opinion about whether it had approved the people nominated to be members, but in fact the Prime Minister had the final say, whereas now the House will have the final say. If the House does not like the cohort of people who have been nominated, it can throw them out and the Prime Minister will have to nominate someone else.
My hon. Friend the Member for Wycombe is focusing his attention on a really rather narrow issue, because the House of Commons will have the final say on who all the members of the Committee, at least from the House, will be, which at the moment is seven of the nine. Therefore, those members, who will themselves have been directly appointed by the House on the nomination of the Prime Minister, will then be in a very strong position to choose one of their own number to be Chair.
I will say one more thing on the matter. I do not think that the world would collapse if my hon. Friend’s amendment were successful, but we are taking a giant stride in the right direction. One thing I have found through working on the Committee is that it, probably more than any other Committee—all Select Committees like to flatter themselves for being relatively non-partisan—is totally non-partisan. Even if one wanted to be partisan, there is no one there to watch one being so, so there really is not much point. I can honestly say, as I said in an intervention at an earlier stage of the Bill’s consideration, that if anything unfortunate were to happen to my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who chairs the Committee, I would almost certainly find myself voting for the Chair, if I had the option of voting for another Committee member, on a non-party basis.
I do not think that what my hon. Friend the Member for Wycombe is proposing would be earth-shatteringly damaging if it went through, but I really do not think that it is terribly necessary, and I am concerned that people would put themselves forward and say, “I wish to be in this position,” only to find that they had been vetoed, for reasons they could not be told, by the Prime Minister. That would be a coruscating experience for all concerned.
Had I been inclined to support amendments 8 to 14, my inclination would have dropped dramatically over the past half hour as a consequence of hearing the speech made by the hon. Member for Wycombe (Steve Baker). I do not think for one second that the Committee’s significance depends on the Chair. The Chair is an important member of the Committee—the first among equals. During the two years I chaired the Committee, including the period when we considered extraordinary rendition, there was certainly unanimity among the members, as the hon. Member for New Forest East (Dr Lewis) has just mentioned, as there is now, so the Committee had to come to a consensus.
It is preposterous to argue that whether or not the Chair had been elected would have made the slightest difference to the report on rendition or to the Committee’s eventually recommendations. That issue can be dealt with in another place and at another time, although the hon. Member for Chichester (Mr Tyrie), who was supposed to move the amendment—we have had an explanation of why he cannot be here—had a particular interest in rendition, but Members of the House will know that the Committee dealt with a host of other important issues affecting this country’s intelligence services.
Twenty years ago, the Committee started on a journey. Before the law was changed, there was no Committee of this House—in the Commons or the Lords—to deal with the intelligence services. Indeed, just before the inauguration of the Committee, the very existence of MI6 was denied publicly by the Government. In those 20 years there has been a dramatic shift in how the intelligence services have been made more accountable. The latest of those shifts is proposed in this Bill, which is a very good Bill in that regard. The accountability and transparency that it requires—there is obviously a limit to how much transparency one can have when dealing with the intelligence services—is something that I am sure we all welcome and support.
I support the proposal that the members of the Committee—who, by the way, are themselves subject to approval by the House of Commons and the House of Lords—will decide on who the Chairman of the Committee is to be. The Prime Minister does not do that. The Prime Minister could have a say in who the members are, but ultimately the House of Commons makes that decision. Those members will know among themselves who they feel to be the best person for the job. We have to bear it in mind that this is not a Select Committee. If it were, it could be argued that its Chair should be elected in the same way as for a Select Committee, but it is not—it is a Joint Committee of both Houses of Parliament. The Chair of the Committee, who is usually, and should be, a Member of this House, reports to the House annually, and a debate is also held in the other place. Having the members themselves choose the Chair of the Committee is a very significant development.
The Committee can never be the same as a Select Committee, because if it were, it would not be doing its job. It has to command the trust and the confidence of the intelligence services because of the nature of the business they deal with. The only way to do that is to have people on the Committee who are trusted not only by their colleagues here and in the House of Lords but by the three agencies, so that they can ensure that there is the fullest flow of information of highly sensitive and secret detail that the Committee can deal with. That is why it is different from other Committees. I think that the proposals in the Bill, which have been refined over the past couple of years, are such that everybody will be able to support them today.
Another matter covered in this group of amendments is the way in which the ISC is financed. Under the Bill, the Committee is no longer a statutory Committee—it becomes a Committee of Parliament. As a consequence, the Government will pay Parliament for the workings and expenses of the Committee. I fully support the Government amendment. My hon. Friend the Member for Kingston upon Hull North (Diana Johnson) is going to discuss the remuneration of the members of the ISC—more particularly, that of its Chair. Of course, all of us who have held these positions over the years have had no remuneration. I welcome and support this development and only wish that it were retrospective so that I could claim two years’ back pay, but that is not going to happen. My hon. Friend’s amendment refers to the Independent Parliamentary Standards Authority, which I hope will support this measure. I also hope that the Chair of the ISC will get the same remuneration as is paid to the equivalent Chairs of Select Committees: in this case, I imagine, the Foreign Affairs, Home Affairs and Defence Committees. The right hon. and learned Member for Kensington (Sir Malcolm Rifkind) is extremely hard working in his position, and I believe that this is a right and proper thing to do.
I have the good fortune, in the interests of brevity, to be able to acknowledge all that has been said on both sides of the House, but I would like to add a thought or two of my own.
This Committee is sui generis; there is nothing else like it. To seek to bring it within a certain structure runs the risk of ignoring the fact that it has particular characteristics. The Chair of the Committee has particular characteristics, too, because by convention the Committee does not talk to the press. When any request is made for information from the print or electronic media, the proper course of action, which, if I may say so, I have studiously followed since my election, is to refer the matter to the Chair of the Committee. The Chair then finds himself in a very difficult and sensitive position regarding the extent to which he is able to respond to possibly legitimate inquiries about the work of the Committee, in so far as that is consistent with the fact that he, like all of us, signs the Official Secrets Act. No member of any other Select Committee in the House of Commons does that. Particular skills are therefore essential for the chairmanship of this Committee that are not necessarily required in the chairmanship of other Committees. I respectfully suggest that those who are best able to assess those skills are the members of the Committee themselves. Of course, they must have confidence in their Chair.
The Prime Minister has the ultimate responsibility for security under our conventional constitutional arrangements. That is why his role must be acknowledged, and I believe the Bill does exactly that.
One of the consequences of amendment 9 is that no member of the House of Lords, however well qualified, could ever become Chair of the Committee. I do not suggest that that would be a matter of routine, but there may, in exceptional circumstances, be an individual who, by reason of experience, judgment and knowledge, would be particularly suited, and it would not make much sense if the Committee were not in a position to endorse that individual for chairmanship.
The amendment contains an inherent contradiction. It begins:
“The Chair is to be a member of the House of Commons elected in the same way as the Chairs of Departmental Select Committees.”
As I said, this Committee is different in that its Chair has to sign the Official Secrets Act. The amendment goes on to say that he must have
“received the formal consent in writing of the Prime Minister”.
That is not an election that accords with the way in which Chairs of departmental Select Committees are elected.
I will finish this point, if I may.
The amendment contains a contradiction in saying that we must elect the Chair in accordance with general circumstances while adding an extra requirement. That would make it a little difficult to maintain the unqualified democratic support that the mover of the amendment sought to persuade us to accept would be part of the process.
I admire the way in which the right hon. and learned Gentleman is attacking my amendment and seeking to show a contradiction. We all agree that this Committee is different because of its need to access classified information, and that is the reason for having a different provision that does not exist in the case of other Select Committee Chairs.
First, I had a concession on the peers and now I have a concession on what appears to be an inherent contradiction.
It seems to me that these provisions meet the necessary requirements of a Committee that is sui generis and that they are entirely in accord with the extension of scrutiny and responsibility that the rest of the Bill provides.
Let it be stated from the beginning—this should be made absolutely clear—that this is not about the integrity of any member, past or present, of the Intelligence and Security Committee. I am certain that the hon. Member for Wycombe (Steve Baker), who moved the amendment, is under no illusions, because it would be defeated in a vote. I hope there will be a vote, but am not sure that there will be.
I think that this has been a useful debate, however brief, because we rarely have the opportunity to debate how ISC members are appointed. My right hon. Friend the Member for Torfaen (Paul Murphy) has reminded us that until about 25 years ago there were no statutory regulations on the security agencies. I remember clearly my attempts to have debates on M15 and so on in the 1980s, but they were not welcomed, to say the least. In so far as M15 and M16 are accountable to Parliament, I thought it only right and proper that we should have the opportunity now and again to discuss their role.
As I stated many years ago, let me make it clear—in case anyone thinks otherwise—that I am not against the security agencies. Even when there was no acute terrorist threat such as that which we face now, I made the point time and again that every democracy has a right to protect itself and should have some sort of agency against those who want to do harm to it.
What we are discussing today is not, as I have said, a matter of integrity, but whether the House should have an opportunity to elect those who serve on the ISC. I see no reason why we should not do that. I do not like the view that has been expressed, more or less, that the security agencies could veto people whom they do not particularly like.
I do not think that anybody is advancing the argument that the heads of agencies or the agencies themselves should have a veto. It is merely that they should be able to feel confident in the person who chairs the Committee. The difference is subtle, but they are two different things.
When the agencies were put on a statutory basis, however, and appointments duly made, it was argued that if certain people were made members the security agencies would not supply the information requested because they would not have confidence in them. I do not believe that it is possible to divide the House into those Members who can be relied on in that manner and those who cannot. There should be no such division. Are any of us who have the honour to be elected Members of this House fellow travellers of terrorist organisations or willing to betray the trust of our country? I do not accept that Members can be divided accordingly.
If the Chair of the ISC and its members were elected by the whole House—that is not going to happen at this stage, unfortunately—they would have more authority and more credibility. That does not mean that, had the Committee been elected in the past, it would have come to different conclusions. That is not what I am saying; what I am saying is that, instead of appointments, there should be elections, as is the case with Select Committees.
My hon. Friend is making a speech that he has made for many years and his important views are sincerely held. Does he not accept, however, that there has been a big change in the system, in that the appointment of Members of this House to the Committee is subject to the approval of us as Members of Parliament? That was never the case before.
Yes, of course, and that is an improvement. I do not challenge that. Indeed, as I have said, placing the agencies on a statutory basis was an improvement and a step forward from what happened previously. I hope that, when Members on the two Front Benches agree—I do not know when that will happen—the next step will be elections, which will be far better for credibility, which is essential, than appointments.
It seems odd that we are debating, in the 21st century, whether elections are desirable for Committee positions. I would have thought that we passed that stage some time ago.
Yes, I do accept that, but it would be useful if Commons members of the Committee were elected. What they do in the other place is entirely a matter for them.
As I said at the beginning, this is a useful debate that gives a minority of us the opportunity to express our views. I hope that, in due course and over the years ahead, the House of Commons will make the sort of decision on this matter that some of use would like to see.
I am pleased to follow the hon. Member for Walsall North (Mr Winnick). I am sure I have agreed with him on previous occasions, but I am not sure on what issues. I agree with the thrust of his remarks. Like him, I start by saying that I have the highest regard for those of our colleagues who currently serve on the Intelligence and Security Committee and those who have done so in the past. It is not my view that we would get better people to serve on the Committee if we elected them, but neither do I think we would get worse people.
Having been elected by colleagues to serve as a member of the Wright Committee on Reform of the House of Commons during the previous Parliament, and given that one of our recommendations has been discussed, I want to make a brief contribution to this debate. Of course, we made other important recommendations, including the introduction of elections for Select Committees. I hear what other Members have said about this being a different type of Committee that is not entirely analogous to Select Committees, but when we considered our proposals we heard all the same arguments—that it would lead to frivolous appointments, that the House would behave in a partisan way in choosing Select Committee Chairs or members, and that the House of Commons could not be relied on to do this in a reasonable, rational way.
Although I did not realise at the time that my election as chairman of the 1922 committee meant that I would be responsible for conducting the elections of Conservative members to Select Committees—I inadvertently increased my work load considerably as a result—I think, three years on, that those elections have been a great success. The Chairmen are good people who have been elected for the right reasons, which demonstrates that we have made a wise change.
We reflected long and hard on this recommendation for a particularly important and sensitive Committee, and that is why we also recommended a safeguard that it should not be possible for somebody to be a candidate for election as Chairman of the ISC if they did not enjoy the confidence of the Prime Minister. I am entirely open to other suggestions as to how it could be done. I think that it is important to have a safeguard and that, with that safeguard in place, an election would be entirely reasonable.
The question, as we have heard, is whether it would make a difference to the stature or efficacy of the Committee if it were elected rather than appointed. It could make a difference in either direction. As my hon. Friend the Member for Wycombe (Steve Baker) ably argued, the Committee could enjoy a higher stature as the result of an elected status. One hopes that that will be the case in due course. Some Members have raised the fear that it would have a lower status. They argue that potential members and Chairs of the Committee might not enjoy the confidence of the security services in particular and that, therefore, the Committee would function less well.
Again, I do not believe that to be the case. I think that fundamentally the House is capable of reaching that very serious conclusion, making that judgment and choosing somebody on the basis that they would be the right person to serve as Chairman. I join those of my colleagues who have fallen over themselves to stress that my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who sadly has had to go on travels elsewhere, is an admirable Chairman. I would be delighted not only to vote for him, but to propose him as Chairman. He would be an obvious choice.
I am listening to the hon. Gentleman’s argument, but I am convinced that we are not getting to grips with the difference between Joint Committees and Select Committees. The ISC is a Joint Committee, like the Joint Committee on Human Rights, and is appointed. Is it not ironic that an unappointed Committee should have asked for another Committee to be elected, even though it had the same status?
The right hon. Gentleman makes a valuable point. We are engaged in a process here. There has been a considerable amount of reform. The hon. Member for Walsall North (Mr Winnick) alluded to the history: 25 years ago there was no oversight, then we got an oversight Committee and now we have a proposal to allow a parliamentary veto of its membership. Like him, I find it hard to believe that this is the last stage in that journey, and I suspect that 25 years from now we might have different arrangements in the other place and be looking at a completely different constitutional arrangement, which Joint Committees will have to reflect.
For me—I cannot speak for the other members of the then Committee on Reform of the House of Commons—the fundamental point is not about the ISC, which I suspect would have much the same membership, would behave in much the same way and, like now, would have a high status and be held in high regard by the House. Fundamentally, this is an argument about the House of Commons and whether we have the self-confidence to believe that we should be taken seriously as a Parliament and a representative Chamber and whether we are prepared to take on this enormous responsibility. Just as the election of Select Committee Chairmen and members has enhanced the House, I believe that eventually this next step will also enhance it. It will prove us capable of making that responsible judgment and ensuring we have a Committee overseeing these vital and sensitive matters that is chosen democratically, but which is capable of enjoying the respect of the Government, the security services and the whole country. That could be done in a slightly more open and democratic way.
I plan to speak to amendments 8 to 14, which deal with the election of the ISC Chairman, and then Government amendment 58, which deals with the broad proposals for the financing and resources required by the ISC. After that, I shall speak to amendment 58(a), which stands in my name and that of my right hon. Friend the shadow Home Secretary and would make provision for payment to members of the ISC.
It has been helpful having this debate and hearing the experiences of past and serving members of the ISC and other hon. Members who have taken an interest in the area for many years. It was important to hear the historical context and the explanation of why we are in this position. My right hon. Friend the Member for Torfaen (Paul Murphy) explained that when the ISC was set up in 1994 it represented a huge change in the relationship between Parliament and the security services and that we have been on a journey ever since—this is part of that journey. It was also interesting to hear what my hon. Friend the Member for Walsall North (Mr Winnick) said about the fight to get the ISC set up. It is important that we understand the history and why we are in this position, but we must also recognise the important work that the ISC does, and I pay tribute to all its members, who put an enormous amount of time and effort into their roles. It is vital that the public have confidence in the security services, and that demands confidence in their oversight.
In our debates in the other place and here in Committee, there were extensive exchanges between the Government and the Opposition about how to strengthen the role of the ISC. Since inception, the ISC has been composed of Members of Parliament, yet because of its unique nature, it has often been portrayed more like a component of the Executive, not least because its secretariat is provided by the Cabinet Office. The Government have now finally decided, however, formally to constitute the ISC as a Committee of Parliament. Changing its name to the “Intelligence and Security Committee of Parliament” emphasises not only that the ISC is composed of parliamentarians, but that they are doing the work of Parliament while serving on the ISC.
In Committee, we debated whether to move to a full Select Committee status for the ISC, and there was lengthy debate about what it would mean and how it would operate. I think there was clear recognition from both sides of the House that the special nature of the role of the ISC and the sensitive and secret information it routinely dealt with made its constitution worthy of separate and special consideration. Many parliamentarians are calling for reform to be hastened. I would like to set out the Opposition’s view. My right hon. Friend the shadow Home Secretary has called for the ISC to become a Select Committee. We recognise that, were that to happen and because of the special nature of its work, we would have to consider the most appropriate way of appointing a Chair.
We think that amendment 8 gets the matter the wrong way around: it would deal with the election or appointment of the Chair, whereas we need to deal first with the fundamental issue about the status of the Committee. The Bill provides for a Committee of Parliament, with the rules for its operation and procedure laid down in statute. Hon. Members will know that Select Committees are not created by statute, but formed by a resolution of the House and governed through Standing Orders. I recently reread the chapter in the book by the hon. Member for Chichester (Mr Tyrie) about the ISC and what reforms were needed. Of course, he referenced the Wright Committee recommendations about the ISC’s becoming a Select Committee and having an elected Chair, just like other Select Committees.
The problem is, however, that in the Bill the Government are establishing the ISC as a Committee of Parliament, not a Select Committee. We are, then, in a very different place from the established Select Committee structures. I note the comments of the hon. Member for Wycombe (Steve Baker), but amendment 8 would give the ISC the partial look of a Select Committee, when it actually is not a Select Committee. I also note that setting out in a Bill how the Commons should elect a Chair is problematical, because the House is governed by Standing Orders. Will the Minister say whether it is in order to put in a Bill a mechanism for how the House should operate?
My second problem with the amendment, which has been touched on by right hon. and hon. Members, is that it would require the Prime Minister to give written consent to any Member wishing to stand as Chair. As has been recognised, that does not happen with any other candidate for a Select Committee position, although it goes some way to recognising the special nature of the Committee. It would present lots of problems, however, as it would mean that the Prime Minister could decide not to endorse a candidate—an elected MP—as not suitable for a role, which would put the Prime Minister in a difficult position. I am not sure it is one we want to move to.
Let us imagine that, say, half a dozen people wanted to apply. Has the hon. Lady considered what would happen if the Prime Minister took the view that only one of them was suitable? What would happen to the element of choice lying behind the views expressed today?
That is one of the more ingenious arguments for not having an election. It seems to me more than likely that the vast majority of Members of this House would meet the Prime Minister’s basic requirements for being suitable to keep state secrets. I cannot accept that argument. It seems to be an ingenious way of saying that democracy is not appropriate.
Nobody is saying that democracy is not appropriate. We are just highlighting some of the issues with the amendments that have been tabled.
The basic problem that the Opposition have with the hon. Gentleman’s amendments is that they put the cart before the horse. The first issue that needs to be addressed is the status of the Committee. We should then decide how to elect or appoint a Chair to that Committee.
My hon. Friend is making a very good case, so I hesitate to interrupt her further. Does she accept that there is a world of difference between the Prime Minister saying, “I think this is a suitable person to be the Chair of the Committee” before Parliament endorses them, and Parliament electing somebody and the Prime Minister then having to say, “I don’t think this is a suitable person”? Those two positions are entirely different. She is right about that.
My right hon. Friend makes that point very clearly. I will return to my argument, because I am conscious that other Members wish to speak about later proposals.
The Opposition are of course sympathetic to attempts to widen accountability and open the ISC as much as possible. In Committee, we supported a number of amendments to do just that. We tabled amendments so that we could consider whether an Opposition Member should always chair the Committee, as with the Public Accounts Committee, and whether there should be a majority of MPs—elected representatives—on the ISC.
I have some experience of that point. I was Chairman of the Public Accounts Committee for nine years. The Chair of that Committee is the sole auditor of the accounts of the security services, so he sees in great detail all the accounts of the security services. He is not vetted by anybody, including the Prime Minister. He is elected by all Members of the House. Nobody has ever suggested that an elected or appointed Chair of the Public Accounts Committee is a threat to national security, so this is a fuss about nothing.
The hon. Gentleman speaks with great experience as the former Chair of the Public Accounts Committee. However, the Chair of the Intelligence and Security Committee deals with far more than just the finances of the security agencies, so it is not quite the same.
On that point, the hon. Lady’s response is correct. The people who advise the Intelligence and Security Committee on the finances of the security and intelligence services leave the meetings when other matters—namely, classified information—are under discussion.
That information is very helpful.
I have explained why the Opposition will not support amendment 8. Government amendment 58 relates to the money, staff, accommodation and other resources that will be made available to Parliament for the new Committee. I wonder whether the Minister can help me, because I am slightly confused about the intention of the Government with respect to the support that will be provided to the ISC. In his response, will he set out how he expects the secretariat to the ISC to be provided? In Committee, we discussed a proposal suggested by the membership of the ISC for a non-departmental public body to be established to provide secretarial support. That does not appear to be what the Government are doing. Will he therefore explain what will happen?
Does my hon. Friend agree that there is consensus across the House that the Bill will strengthen the scrutiny of our secret intelligence services and that that is welcomed by everyone? In Committee, the Opposition were forceful in saying that if we are to have increased scrutiny, we need the necessary resources to do the job. The Opposition talked about a figure of £2 million. The Government’s impact assessment has a figure of £1.3 million. There is no agreement on resourcing, and without resourcing, it will be impossible to do the job that the Government want us to do.
My right hon. Friend raises an important point to which I hope the Minister will respond. Parliament is trying to reduce its costs by 25% over the course of this Parliament. I wonder whether the money that is being transferred to Parliament will be ring-fenced for the work of the ISC and whether it will be expected to make any savings out of that budget.
Will the Minister also deal with the issue of the staff who will be transferred to support the new Committee? Am I right to assume that TUPE will apply? What discussions has he had with the Clerk of the House about this matter? Has he written to the Clerk of the House formally requesting that he starts to make preparations for such an undertaking?
On the accommodation for the Committee, there are clearly security issues that need to be considered. Does the Minister have any further information about where he envisages the Committee being accommodated? Will any separate secure accommodation have to be provided?
Finally, amendment (a) to amendment 58 would provide for the payment of members of the ISC. It follows on from other amendments that the Opposition have tabled to try to strengthen the role of the ISC within Parliament. The role of chairing the ISC will be every bit as important and time-consuming as chairing any other parliamentary Committee. We therefore feel that it should be recognised in the same way.
At present, the ISC is a statutory body funded by the Cabinet Office. When the responsibility for funding the ISC transfers to Parliament, the responsibility for any payment to the Chair will also be a matter for Parliament. Given what I have said about the procedures of the House, I appreciate that that will probably have to be dealt with through Standing Orders rather than statute. In that case, I will be happy not to press amendment (a). I am sure that the Minister will be able to explain the funding situation.
I will just explain why amendment (a) refers to all members of the Committee and not to the Chair. Again, the Minister might be able to help me on this point if there has been any progress. The amendment covers Members of the House of Lords as well because, unlike Members of the House of Commons, they do not get a flat salary, but receive an attendance allowance. As I understand it, they do not receive that allowance for attending the ISC on days when the Lords is not sitting.
I am grateful if that is the case. If the Minister could explain that, it would be helpful.
Amendment (a) was also drafted to include all members of the Committee in case it is felt appropriate in the future to make payments to members of Select Committees alongside the payments that are made to Chairs.
Before dealing with Government amendment 58, which provides the Government with the necessary powers to make a financial contribution to the Committee, I will add a few words to the interesting and lively debate that we have had on the election of the Chair. I will not repeat every argument. My hon. Friend the Member for Wycombe (Steve Baker) put the case robustly and had some pretty strong support. However, every member of the ISC who is here has responded and he has had to take on some of the more formidable Members on both sides of the House. He is also facing the opposition of all three of the major parties.
I assure him that this is not an establishment stitch-up—quite the reverse. Perhaps the best way of illustrating that is by putting everything in the context of what we are trying to do in this part of the Bill. We are making a remarkable advance in strengthening the powers of this Committee to hold our security and intelligence services to account. For 20 years the Committee has steadily contributed on that front, and we are marching forward considerably in the Bill. This part of it is just as important as the part we debated on Monday, as we are stepping towards making our security services more accountable to Parliament. We are enabling judges, in exceptional cases, to take all the evidence into account and make an adjudication when allegations are made by individuals; and we are committing to holding judicial inquiries when worrying circumstances occur—subject, of course, to those inquiries being able to get under way once police investigations have been properly completed.
These amendments are important, and they are being proposed in the context of a situation where all parties agree that they want this Committee to be a parliamentary Committee and no longer a creature of the Government. We therefore wish to give it more resources and the structure that enables it to do an even better job. The only thing that distinguishes the Committee from a Joint Committee or Select Committee of this House is this problem of the extremely sensitive nature of some of the information that it sees. Only where it is unavoidable are we departing from the normal process of allowing the House of Commons to have a powerful Committee of its own choosing and to exhort it to do its job and report back properly on what is and is not happening in this area.
I think we are all agreed that strengthening the scrutiny of the Secret Intelligence Service is an important and welcome step forward. However, I am sure that the right hon. and learned Gentleman would agree that simply saying that we want to increase scrutiny is not enough. Instead of having the right to request information we are moving to a situation where we would be able to require it. We need additional investigators and that will require a substantial increase in the resources available to the Committee. Simply saying that we want increased scrutiny is not enough. I know he understands that, so will he tell us now that we will be getting an increase in resources to enable us to do the job he wants us to do?
I encounter many people making bids for resources for their particular, extremely important, activities. My right hon. Friends at the Treasury are receiving a very large number of these bids all the time. I have had some experience of public spending, and I can tell the House that it is not wise to engage in negotiations across the Floor of the House—it is certainly not wise for a non-Treasury Minister to do so. For this purpose, in this debate, given those present, I think we can agree that it is the Government’s intention that this Committee should be properly resourced to do its job, which is why we are taking a power to supplement Parliament’s financing of the Committee. Obviously, the Government have the right to query and test the figures that are put to them, and there are ways in which this can eventually be negotiated.
I hope not to get bogged down. I wish to assist our Front-Bench team by pointing out that the Intelligence and Security Committee has eight staff, whereas the detainee inquiry, which looked at only one issue, had 14 staff and the Committee on Standards in Public Life has 12 staff. As the right hon. Member for Salford and Eccles (Hazel Blears) pointed out, the Government’s own impact assessment suggested that to do what is being required of us we would need a budget of £1.3 million, which compares with the existing budget of £750,000. At the moment only £850,000 is being offered, and if the gap is not bridged, this whole reform will be a waste of time.
I can say only that I, like my right hon. and hon. Friends, am fully aware of the Committee’s views on the amount of funding that it will require. Yet again, I take note of my hon. Friend’s points on the matter, but I repeat that there is not much point in my standing here carrying out a negotiation with him or any other member of the Committee about the figure we arrive at. As someone who has been at the Treasury, I think that the Government must combine providing the right resources, which are undoubtedly going to be more than the Committee has had in the past, with doing a bit of negotiating about what is the necessary cost. Report stage is not the place to resolve the final figure.
Similarly, the status and nature of the Committee will not be resolved finally by statute or by debate on the Floor of the House. A long discussion has been going on to make sure that the Committee has the right status and structure to do its job effectively, and I think we are very near to reaching a successful agreement between the Government, the Opposition, the House authorities in both Houses of Parliament and the current members of the Intelligence and Security Committee on what its status should be. I am told that we still have to have further discussions with the House of Commons Commission and the House Committee in the House of Lords, but I think everybody is becoming satisfied that we are resolving that matter. We are also resolving the question of the accommodation, which probably will have to be on the Government’s estate rather than the parliamentary estate, for security reasons. I will go into more details if hon. Members wish, but I realise that we still have quite a lot of the Bill to deal with. Unless hon. Members are particularly interested in knowing the precise current status of these discussions, I hope I may take it that the House is reasonably satisfied that all parties are going to reach a satisfactory conclusion. I assure the House that the Government have been anxious throughout to make this Committee powerful, properly resourced and as much of a parliamentary body—a body that is accountable and resembles the Select Committees of the House in every way possible—as it can be. I think that soon this will all be resolved.
I shall now deal with amendment (a), tabled by the hon. Member for Kingston upon Hull North (Diana Johnson), although she anticipated my reply. Government amendment 58 is required in order to give us the necessary authority to make the financial contributions that we are going to be arguing about. Amendment (a) seeks to oblige the Government—or at least expressly to empower them—to make an additional amount available for the payment of Committee members. That is not necessary, nor, in my opinion and that of the Government, is it wise to start putting the matter of the payment of members of Select Committees or parliamentary Committees into statute, or implicating the Government directly in that. The payment of members of this Committee, the Chairman of this Committee and members of Select Committees is a matter for the House of Commons, the House of Lords and the Independent Parliamentary Standards Authority—from every point of view, it is best left there. Where the Government have to initiate all this, it is a feature of all Governments, of all political complexions, that they can get very politically embarrassed on questions about the remuneration of any Member of either House. So a process that leaves the matter with IPSA and the House of Commons is preferable to the hon. Lady’s amendment.
Finally, I shall touch on the spirit of political debate we have had on the question of whether the Chairman should be elected, and again I must say that the Wright Committee produced a splendid report. My hon. Friend the Member for Chichester (Mr Tyrie) first proposed this, but he is not able to be here because he is serving on his Banking Commission, as we all realise. We worked together, when we were in opposition, with my right hon. Friend the Member for North West Hampshire (Sir George Young), who is now the Government Chief Whip, on a thing called the democracy taskforce, advocating the election of Chairman of Select Committees and producing proposals that were remarkably close to those of the Wright Committee. I certainly start on the same basis as my colleagues who have been drawn to this part of the debate, but we have heard all the arguments why, in this particular case, the proposal does not work. We are already making the whole thing approved by Parliament. No longer will the Prime Minister appoint the Chairman; the Chairman will be elected by those who know—or will know—him best: members of the ISC.
One difficult hurdle that cannot be overcome by those who think such a system is not good enough and want the whole House to elect the Chairman, subject to prime ministerial veto, is that a veto will be difficult to exercise. We are on much safer ground if the Prime Minister nominates people and invites Parliament to elect them, as we have proposed, rather than letting people put themselves forward and the Prime Minister moving in and vetoing an individual, which unfortunately could occur.
During my time in the House I have known more than one person—including Members from both sides of the House and in one case a personal friend from my party—who could not have been appointed to this Committee and would have been vetoed. That would not always have been for political reasons; I suspect that sometimes the security agencies knew something about those people’s history or private lives that would have made them totally unsuitable to sit on the Committee. I need only hint at such things to show why we cannot just let the House of Commons elect absolutely anybody, subject to prime ministerial veto.
It is clear from the amendment that we do not seek to allow the House of Commons to elect anybody, and it is not a veto but an opportunity for the Prime Minister to approve candidates. Such a mechanism could take place in private; it would not need to be all over the front pages that someone had been turned down. The process could be done beforehand and the candidate would just have to obtain formal written consent for them to stand.
My hon. Friend is confident that if someone starts campaigning and positioning himself or herself for this job, but then suddenly stops campaigning because the Prime Minister puts an end to it, it will all remain secret and no one will accuse the Prime Minister of political bias—whereas actually they will, and everybody will realise that something about the candidate has caused the agencies successfully to blackball him or her. We cannot agree to that. Some of the Members I am talking about have served in government and would have been perfectly suitable to be Chair of the Health or Education Committees, but partly because of the job I was once in, I knew that I would not have put them on this particular Select Committee and would have wanted the Prime Minister to stop that appointment. I do not think there is an answer to that.
The system has been devised in such a way because Members on both sides of the House, and current members of the Committee, have done their best to make this as democratic and parliamentary as we possibly can. The Wright Committee has transformed things in this House. The Government have introduced the election of Select Committees and they are being made more powerful. Alongside that reform, we are making the Intelligence and Security Committee far more parliamentary and powerful. The fact that there is a comparatively detailed difference in the way that Parliament votes for the Committee members and how the Chair is elected does not undermine the policy and the Bill.
I hope I have explained why everybody involved, including those on the Opposition Front Benches and my allies in the Liberal Democrat party, have been driven to the conclusion that this is the best way of resolving the problem and moving to a decent amount of parliamentary democracy, without jeopardising our national interest. I therefore hope I can persuade my hon. Friend the Member for Wycombe to withdraw the amendment and persuade the House to give the Government power to continue negotiating these finances by accepting amendment 58.
Not for the first time I have made common cause with a well-known Member from the left of the Labour party, and I am grateful that on this occasion I have done that for the first time with the hon. Member for Walsall North (Mr Winnick). I was also grateful for the support from my hon. Friend the Member for Altrincham and Sale West (Mr Brady), who brings to bear his experience from the Wright Committee.
Some of the arguments against these elections have been somewhat ingenious, and I shall treasure Hansard tomorrow when I look at the remarks of the right hon. and learned Member for North East Fife (Sir Menzies Campbell), who I think brilliantly set out the advantages of appointment over democracy. I shall look at that with some joy. We have all understood what the Bill provides; it certainly takes us forward although, as I have said, I would prefer the Chair to be elected in the way that I outlined. I am glad we have held this debate and aired the issue.
The Opposition have said that this provision puts the cart before the horse, but they did acknowledge the context, which is crucial. We have seen encroachments on the principles of liberty and justice, which many of us thought we were sworn to defend. However, in the view of this Government, and the previous Government, such measures have proven necessary to protect the public, and we are where we are. With that in mind, and having listened to both Front-Bench speakers, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Intelligence and Security Committee of Parliament
With this it will be convenient to discuss the following:
Government amendment 57
Amendment 75, page 17, line 38, leave out from ‘ISC’ to end of line 43.
Amendment 73, page 18, line 34, leave out from ‘private’ to end of line 3 on page 19 and insert ‘from a person subject to the Official Secrets Act 1989.
‘(2) The ISC may only publish or disclose the information—
(a) by way of a report under section 3,
(b) if the ISC and the Prime Minister are satisfied that publication or disclosure would not be prejudicial to the continued discharge of the functions of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities falling within section 2(2), or
(c) if publication or disclosure is necessary for the ISC to comply with any enactment or rule of law.’.
Government amendments 59 and 60
Amendment 76, page 19, leave out from line 4 to end of line 7 and add—
‘Protection for proceedings of the ISC
6 No part of the proceedings of the ISC, including evidence given to the ISC may be used in any civil, criminal or disciplinary proceedings, except in the case of evidence given in bad faith.’.
Government amendments 61, 62 and 55
Amendment 71, in clause 2, page 2, line 29, at end insert—
‘(4A) Subsections (3) and (4) do not apply where a plausible claim has been made by or on behalf of an individual to the ISC that the Security Service, the Secret Intelligence Service or the Government Communications Headquarters has disseminated any information to any recipient concerning any person that appears to be—
(a) materially false; and
(b) harmful to the person defamed.
(4B) In any case where subsection (4A) applies, the ISC shall fully and expeditiously investigate the claim and, where the claim appears to be well founded, shall ensure that the misinformation is expeditiously corrected.’.
Amendment 74, page 2, line 29, at end insert—
‘(4A) The ISC shall consider the proposed appointment of the following, including by questioning the prospective appointee at a meeting of the ISC—
(a) the Head of the Security Service;
(b) the Head of the Secret Intelligence Service;
(c) the Head of the Government Communications Headquarters; and
(d) such other persons as the Prime Minister may direct.
(4B) The ISC may consider the appropriateness of holding hearings considering each prospective appointee’s proposed appointment in public.’.
Government amendments 63 and 64.
After that interesting debate about the basis for the important reforms that are taking place to strengthen the scrutiny, and perhaps some of the principles behind measures in the Bill relating to the parliamentary ISC, we will now consider a number of amendments that touch on procedural matters relating to the functions and operation of the ISC. I apologise to the House in advance that I will touch on a range of different points. I know that a number of other amendments have been grouped for this debate, so I will touch briefly on those and then reflect on points made in the debate. If time allows, I hope to respond to any further points that may arise.
Amendments 56 and 57 were originally tabled on Report in the other place and Lord Taylor highlighted that one possible consequence of the change in the Bill to refer to the Intelligence and Security Committee “of Parliament” could be that the ISC would have the power to take evidence on oath. However, further analysis concluded that the consequence of changing the ISC to a statutory Committee of Parliament would be that the ISC may, in future, take evidence on oath. Our view was that, when taken together, the Parliamentary Witnesses Oaths Act 1871, which concerns the power of Committees of the House of Commons to administer oaths, and its Lords equivalent, the Parliamentary Witnesses Act 1858, would give the ISC the authority to administer oaths.
However, the House services raised a concern with the Government about that provision and disagreed with our analysis that the change to “of Parliament” would give the ISC the authority to take evidence on oath. They believe that the Bill should contain an express power for the ISC to take such evidence. Following further discussions in response to that point, and with the intent of putting this issue beyond doubt, we have decided to address the concern of the parliamentary authorities by tabling amendment 57, which puts the ISC’s power to take evidence on oath beyond doubt.
The amendment makes it unnecessary to specify in the Bill who has the power to administer oaths on behalf of the ISC, as there is no longer any need to displace the provision in the relevant statutory authorities. Amendment 56 makes procedure in relation to the ISC hearing evidence on oath a matter for the ISC to determine, pursuant to paragraph 2(1) of schedule 1.
An amendment was agreed in Committee that places restrictions on the ISC’s ability to publish material that it receives in connection with the exercise of its functions, other than through its reports. We had a useful debate in Committee, which highlighted some of the issues and challenges and recognised the need for safeguards to ensure that sensitive material was not inadvertently disclosed, as well as the need for the ISC to be able to fulfil its duties.
The amendment addresses a consequence of the ISC being a statutory Committee of Parliament. In that context, the ISC will have a general power to publish information, which will sit alongside its express power to publish reports to Parliament. Absent the restriction, which is now contained in paragraph 5 of schedule 1 to the Bill, under that general power the ISC would have been able to publish evidence it has received other than through its reports to Parliament. Following concerns raised by my hon. Friend the Member for New Forest East (Dr Lewis), I was able to provide assurance that it was not the Government’s intention that the amendment would inhibit or limit some of the existing practices of the ISC, and made a commitment to look at the language to see whether there was any way of giving further assurance. I have considered that matter and, as a consequence, we have tabled amendment 60.
Amendment 60 would provide a further gateway allowing publication or disclosure where the Prime Minister and the ISC agree that this would not cause prejudice to the functions of the agencies or other Government security and intelligence bodies. This is the same criterion that is used in clause 3(4) of the Bill which allows the Prime Minister, after consultation with the ISC, to require that the ISC must exclude a matter from any report to Parliament.
The consequence of amendment 60 would therefore be that the ISC would be able to publish informally—for example, in an open letter—any information which, ultimately, it would be permitted to include in its reports to Parliament. As I have said, the criteria are exactly the same. I recognise the concern to ensure that the existing arrangements for the ISC and the steps that it takes are maintained, and that is in part reflected in amendment 73, tabled by my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) with the support—I believe—of the existing members of the ISC. While I am sympathetic to the intentions, and have had several discussions with my right hon. and learned Friend to work out some suitable language to address the issues, our view of amendment 73 is that it would have some unintended consequences. In its current form, the amendment would widen the net in a way that I suspect the ISC had not anticipated.
I shall return to the principle after I have gone through some of the technical issues that have been identified. The amendment refers to information received by the ISC
“from a person subject to the Official Secrets Act 1989.”
While I appreciate the intention behind the amendment, that phrase suggests that the prohibition should apply to any person inside or outside Government who had ever known, or been in a position to know, any classified information. Unfortunately, the effect of the amendment would be slightly different. The Official Secrets Act 1989 contains prohibitions of general application, most notably in section 5, and it extends to the whole UK. It even apparently covers some acts done outside the UK by British citizens or Crown servants. It would therefore cover information beyond the purview and structure anticipated. It would cover all information supplied by a person who has, at any time, been in a position to have access to classified information. Information supplied to the ISC by such a person will be covered by the prohibition whether or not it is in fact classified information, and whether or not it even came to that person in connection with the role in which they had or could have had access to classified information.
I accept the validity of what my hon. Friend says, but the problem is that in that formulation the ISC was trying to do away with a similar problem with the Government’s wording, which suggests that all information that the ISC receives in private is subject to these restrictions. The whole point of what we are trying to say is that it should apply only to classified or sensitive information that we receive in private. Other information that we receive in private, such as from victims of the 7/7 bombing, should not be restricted in that way. Even though my hon. Friend makes a valid point against the wording that we have offered, the same point still applies to the Government’s wording.
My hon. Friend, in his customary way, has highlighted the genuine challenges that both the Government and ISC members have had in seeking to frame legislation, which can be a challenging mechanism within which to express matters effectively. He rightly points out the evidence given by the families of the victims of 7/7 and those who were sadly caught up in that terrible event. There have also been discussions of the evidence taken from communication service providers during the ISC’s recent inquiry into communications data, including whether the information provided was sensitive. It is a challenge at times to analyse evidence from third parties to decide whether evidence is sensitive and thus not suitable for disclosure. Sometimes that is clear, but sometimes it is not.
I am following the Minister’s argument closely, and I acknowledge that it is difficult to get the right legislative framework for this area. I wish to reinforce the point made by the hon. Member for New Forest East (Dr Lewis) that part of the change we are seeking to achieve is to make the Committee more independent. The consequence of the provision that all information in private will be covered means that the decisions can be made by the Government rather than the Committee. We must have a clear delineation of information that belongs to the Committee, which can then decide what to do with that information. No matter how hard this is, I hope that the Minister will be creative and ingenious enough to provide clarity. Such information is not the Government’s information: it is for the Committee to decide.
I hear the point that the right hon. Lady makes. The intent of the changes in the Bill is to underline the greater scrutiny and the import of the ISC as a Committee of Parliament in fulfilling its work, and therefore ensuring that it has an appropriate mechanism for the publication of information relating to its deliberations. As we have already discussed, sometimes there are challenges on evidence given, perhaps in private, and we had some useful debates in Committee on public hearings. We hope that we will be able to work with the newly formed ISC to have public evidence hearings for some evidence that has previously always been held in private. I acknowledge that most evidence would probably still continue to be heard in private because of the very nature of the materials provided, but we want to look at ways to make hearings more public to show the important scrutiny that is provided by the ISC, and thus to enhance visibility, transparency and confidence in the scrutiny role.
Perhaps I might endorse the Minister’s enthusiasm for the public hearings, which would constitute a complete departure from what has previously been the case and provide an interesting opportunity for that greater degree of public interest and public understanding. My right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) has had to leave because of another commitment, but it is my understanding that he has been in informal discussions with the Minister about the issues raised by amendment 73. Am I right in understanding that it is possible for those discussions to continue and that consideration may be given in another place to an amendment that would satisfy both the Government and the Committee?
Informal discussions have taken place to work through the detailed and technical issues that need proper consideration and ensure we strike the right balance. I welcome that dialogue. Before I return to the substance of my right hon. and learned Friend’s point and respond formally, I will take an intervention from my hon. Friend the Member for Cities of London and Westminster (Mark Field).
I hope the Minister will recognise that the concern expressed by all of us as members of the Intelligence and Security Committee is that the terms of the Bill are far too broad. If the Government remain unwilling to go along with amendment 73, will he give some consideration to these issues being dealt with in detail in the memorandum of understanding? It may be that some of the technical difficulties to which he referred would be more appropriately dealt with in that forum.
I thank my hon. Friend for his comments. There is scope to deal with this further in the memorandum of understanding. I reiterate that it is not the Government’s intention to try and stop the ISC from continuing to do things in the way that it does at the moment as a consequence of the changes contemplated in the Bill, and I am content to reflect on providing further clarity in the memorandum of understanding to address some of those technical points. We have a framework in the legislation. While we may have found it challenging to get the precise legal wording right for an amendment because of those technical areas, I am willing to reflect on how we can seek to encapsulate the existing arrangements, under which the ISC conducts its affairs, in the memorandum of understanding.
These exchanges highlight some of the difficulties in putting changes in the Bill in a rigid way. In some ways, because of the nature of the evidence, they probably lend themselves to being addressed more effectively in the memorandum of understanding. If it will help the House, I am happy to give that commitment on how we may best address those challenges in greater detail in the memorandum of understanding. I hope right hon. and hon. Members will accept the spirit in which that commitment is given.
In the absence of my right hon. and learned Friend the Member for Kensington, may I say how grateful the Committee is for the attitude displayed by the Minister? We await the resolution with interest. We have a common intention; it is just a question of making sure we frame it in a way that satisfies all other criteria.
I understand. I look forward to continuing informal discussions, and hope that agreement on the memorandum of understanding on the operations of the ISC in Parliament will be resolved quickly.
Government amendment 59 is a technical, clarificatory amendment that makes clear how paragraph 5(2) of schedule 1 will operate. The insertion of the word “otherwise” puts beyond doubt certain technical issues that have been highlighted, so I will not take up the House’s time and go through it in detail.
On Government amendments 61, 62 and amendment 76, in Committee, a Government amendment was agreed to provide protection to witnesses before the ISC. It will prevent evidence given by a witness before the ISC from being used against them in any criminal, civil or disciplinary proceedings, unless it was given in bad faith. The provision, now in paragraph 6 of schedule 1, replicates an important part of the protection that witnesses before a Select Committee would have, by virtue of a Select Committee’s proceedings being subject to parliamentary privilege. In doing so, that will encourage witnesses appearing before the ISC to be full and frank in the evidence that they provide. It is perhaps worth stressing that witnesses before the ISC currently enjoy no special protections with regard to the subsequent use of their evidence.
The amendment made in Committee was therefore an important change to ensure that the ISC is able to perform its oversight function even more effectively, because the fuller and more candid the evidence the ISC receives, the more effective it is likely to be in supervising the security and intelligence community. During the debate in Committee, my hon. Friend the Member for New Forest East and the hon. Member for Kingston upon Hull North (Diana Johnson) questioned whether the protection went far enough. In response, I made a commitment to reflect carefully on the points that were made. I have considered whether further protection could be given to witnesses’ evidence, preventing its disclosure for the purposes of any legal proceedings; in other words, not merely legal proceedings where the evidence would be used against the particular witness. I am happy to confirm to the House that, while we concluded that such a protection would be problematic in terms of compatibility with the European convention on human rights in relation to criminal proceedings, we are satisfied that it will be compatible for civil and disciplinary proceedings.
Government amendment 61 therefore introduces a statutory protection for evidence given by witnesses to the ISC, preventing its disclosure for the purposes of any civil or disciplinary proceedings. That protection applies not merely to civil and disciplinary proceedings where the evidence would be used against the particular witness, but to all such proceedings. As a result, the existing prohibition on the use of evidence against the witness needs only to deal with use of evidence in criminal proceedings, since the wider protection given by the provision introduced by Government amendment 61 will cover use of evidence against a witness in civil or disciplinary proceedings. Government amendment 62 makes the necessary consequential changes.
As amended, paragraph 6 of schedule 1 will therefore provide a statutory protection for evidence given by witnesses to the ISC, preventing its disclosure for the purposes of any civil or disciplinary proceedings. In addition, evidence given by a witness before the ISC will not be able to be used against that witness in criminal proceedings. Of course, evidence that is deliberately misleading is of no assistance to the ISC. Accordingly, the protections do not apply to evidence given in bad faith. It is important to explain the context in which the drafting has been framed.
It may be that others will argue that this further protection, while welcome, does not go far enough. Indeed, I note that the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) has tabled an amendment that would extend the protection even further, and no doubt the hon. Member for Kingston upon Hull North will wish to speak to that. All I will say at this stage—obviously, I will listen to what the hon. Lady says in her speech—is that we believe there is a significant issue of compatibility with the European convention on human rights. For example, it is possible that criminal proceedings against an individual could hinge on the testimony of a particular witness who has given inconsistent evidence to the ISC about broadly the same matters. If approved, this protection in the proposed amendment would prevent the inconsistent evidence given before the ISC from being used by the defence in the criminal proceedings to discredit the witness.
That would lead to obvious unfairness for the defendant in criminal proceedings. We do not believe that our preferred protection on this issue runs into that problem, because of the nature of its framing and the protections against self-incrimination. The ECHR has recognised that the privilege against self-incrimination lies at the heart of the notion of a fair trial. By providing the accused with protection against improper compulsion by the authorities and thereby avoiding miscarriages of justice, the existing protection secures the aims of article 6, whereas we judge that amendment 76 would run into challenges and issues in that way.
Amendment 76 would also provide a blanket protection from disclosure covering any material that can be considered part of the ISC’s proceedings. It would cover not just evidence received by the ISC in the course of its proceedings, but records of the ISC’s deliberations and records of the questions asked of witnesses by ISC members. The amendment would even cover the reports that the ISC lays before Parliament, which will of course be public documents in any event. That is an extremely wide scope. Interestingly, I note from one of the pieces of advice given to me that the nature of any such protections afforded would also go further than those for minutes of Cabinet.
There is a judgment to be struck. I recognise some of the issues that are being raised, which concern what a statutory Committee is. The ISC is a statutory Committee of Parliament but, because of those issues, it is not afforded all the protections of parliamentary privilege. The Government have worked hard to frame a number of protections to take the Committee as close as possible to a full parliamentary Committee—if I can use that rather inelegant language—that would be captured by parliamentary privilege. However, we believe that amendment 76 would run into significant legal issues.
On the issue of proportionality—which I will finally come on to—there are a considerable number of matters that make the amendment problematic, although I understand the intent behind it.
Does the Minister agree that this is a similar dilemma to the one we faced on the question of publicity? The Opposition’s amendment might go too far, but we on the Committee feel that what the Government propose does too little. It protects witnesses against their evidence being used against them, but falls short—as the Minister seems to be conceding—of the protection the Committee would have if it were a Select Committee. Will he undertake to come back with something else at a later stage—perhaps in the other place—that would be a better compromise between those two positions?
I fully respect what my hon. Friend has said. We have given careful consideration, at length, to the statutory protections afforded to the ISC through this Bill. He will remember the debates we had in Committee about issues under the Data Protection Act and the Freedom of Information Act, along with a number of other statutory provisions, which we believed needed to be addressed to afford the ISC a number of additional protections. Although I very much hear what he says, the Government believe that we have taken this as far as we can through our amendments—and within the remit of article 6 of the ECHR, for example—to afford those protections and frame the provisions. I note the concern he has raised; all I would say is that the Government have taken some additional steps—on things that the existing Committee does not currently have—in how the Bill is framed to move the Committee as close as we can, within the framework of law, to provide the relevant protections.
As members of the ISC who are here today will recognise, consideration was given to how one might approach the issue of parliamentary privilege. Indeed, there was a lengthy debate in the other place on that issue. There is a broad recognition that trying to define parliamentary privilege in statute would open a whole new array of issues. Indeed, I do not think this House would welcome an attempt to frame the privileges that reside in this place by way of an Act of Parliament, which might be subject to further litigation and challenge, which not only might have an effect simply on the ISC but could have a limiting effect on parliamentary privilege for broader issues in this House. When considering this issue, everyone involved in the examination of the Bill thought that that would be a very unfortunate step to take. Therefore, the Government have thereafter sought to approach the issue by framing matters within existing legislative frameworks.
I just want to advise the Minister—who might not need advising—and the House that there is a Joint Committee of both Houses wrestling with precisely the problem he has just outlined, and it would not have made a great deal of sense for this Bill to proceed in a way that pre-empted any conclusions reached by the Committee.
I entirely agree with the right hon. and learned Gentleman; hence the reason the Government have taken the approach they have.
Let me turn briefly to amendment 55, which concerns the ISC’s ability to oversee operational matters. With the amendments, the Bill now provides for three routes by which the ISC may consider particular operational matters. The first is where the Prime Minister and the ISC are agreed that the matter is of significant national interest and not part of any ongoing intelligence and security operations. The second route is where the Government request the ISC to consider a matter notwithstanding the fact that those criteria are not met. The third is where the ISC’s consideration of an operational matter is limited to considering information provided to it voluntarily by the agencies or another Department.
That additional route was provided to meet a further concern of the ISC—that the requirement that both the ISC and the Prime Minister should be satisfied that the criteria for oversight of operational matters had been met risked slowing the provision of information to the ISC on routine operational matters. Obviously that already happens now; the concern was that not framing the third limb might hinder it. We therefore made an amendment in Committee to address that third point. The key issue is that, as has been highlighted, for the first two categories there is the ability to require further information to be given, whereas for the third limb—because, in essence, information is provided without being compelled—those further requirements did not operate. That is why the structure has been framed in this way.
My hon. Friend the Member for New Forest East expressed some concern about the term “voluntarily”. I think his point was that this was in some way a presentational issue—that we understood what we were talking about when it came to information that would ordinarily be provided to the Committee. We have reflected on that point; hence the reason for a further amendment to try to clarify rights of access.
I am grateful to the hon. Gentleman for his explicit recognition of the fact that the Committee has had access to operational information for some considerable time, despite the fact that no such provision is in the current legislation. The Committee remains concerned about the use of the word “voluntarily”, and I had hoped that the Government would withdraw it from the Bill. It goes against the whole spirit of the direction in which we are moving, from the right to request information to the right to require it. That is a small change on the face of it, but it is actually a big, transformational step. I do not think that the word “voluntarily” is necessary in the Bill; it is superfluous and its retention goes against the direction of travel, in that the agencies will voluntarily be able to decide whether to provide information. That is not the relationship that we currently have with the agencies, let alone the one that we want for the future. I ask the Minister to think again. Why does he want the word “voluntarily” in there when we acknowledge that for the issues in question, this is a matter of requesting information just as we do now?
As the right hon. Lady says, the Committee already receives information on ongoing operational matters, and that would fall short of the requirements in the first two limbs that I have described. She will have seen the Government’s amendment that seeks to reflect the existing work that takes place and the information that is provided. As always with legislation, this is a question of the wording and the way in which matters are interpreted by lawyers, as well as by Members of Parliament. The provision is in no way intended to cut across the Committee’s existing work or the existing flow of information when a request for further clarification has been made. It is intended to provide a distinction between the first two limbs, which will contain an element of further requirement, and the third limb, in which information will be provided because it has been requested rather than required, and in which further investigations will be limited to using the information that has been so provided.
I am following the Minister’s argument closely. It would be helpful if he told us how he envisages a situation being resolved where an agency decides voluntarily not to provide information that the Committee feels is important. There might be a mechanism for doing that but, off the top of my head, I am not sure what it is.
This relates to operational matters and inquiries by the Committee. We have had discussions about the exploration of operational matters—this is a new aspect of the Committee’s work, as the right hon. Gentleman will acknowledge—and about how to frame that. Detailed consideration has been given to the specific matters that an inquiry may cover, and that is supplemented by the memorandum of understanding in respect of the first two limbs. Clause 2(3)(c) is intended to cover the ordinary information that is being provided. I think it was accepted in Committee that that paragraph dealt with the concerns of the ISC about ordinary matters that would be provided in that course. It states that
“the ISC’s consideration of the matter is limited to the consideration of information provided voluntarily to the ISC by”
the agencies, following those kinds of inquiries. These are issues that have customarily been dealt with by the Committee in its ordinary course. A relationship is established between the Committee and the agencies, and information is provided in that ordinary course, and we have sought to reflect the current practice.
The Minister will have gathered from the contributions from the right hon. Members for Salford and Eccles (Hazel Blears) and for Knowsley (Mr Howarth) that the Committee currently goes well beyond the constraints of the original legislation. Does he recognise that the use of the word “voluntarily” will give rise to concern outside this place that the Committee remains the poodle of the Executive or, to a certain extent, of the security services? He is right to suggest that it will make relatively little difference to general day-to-day operations, but one of the ideas behind the Bill was to make it crystal clear that we are not a poodle of the Executive or the Prime Minister of the day, and that we are not under the control of the security services. The whole idea of this is that we should be in a position to demand, and ensure that we get, material, rather than being at anyone else’s beck and call.
I absolutely agree and direct my hon. Friend to the provisions in schedule 1, particularly the part on access to information, which sets out clearly the rights of the ISC to obtain further information. That clear reform has been taken forward through the Bill. I would certainly endorse and underline my hon. Friend’s point. The ISC has not been a poodle in any sense in its existing format and that position would be strengthened even further under the Bill. The ultimate purpose of the reforms it contains is to ensure that scrutiny is enhanced further—for the very important reasons we have discussed.
The Minister is likely to face a unanimous view on this issue—certainly from members of the Committee. The use of the word “voluntarily” creates entirely the wrong impression of the direction of the Bill. It is superfluous; the Government do not need “voluntarily”. In the past, the ISC has sometimes received partial information from the security services that has affected the Committee’s decision-making. Voluntarily means “you can if you like; and if you don’t want to, you don’t have to”. Use of that word in the Bill is superfluous to requirements and sends out entirely the wrong message.
In their contributions this afternoon, members of the ISC have clearly underlined the robust scrutiny that is provided. These provisions relate only to operational matters—the new element added to the overall purview of the ISC that will result from the Bill. I have already highlighted the importance of clause 2(3)(a) and (b) for the two limbs, which covers the ability to require the provision of further information. If other more general inquiries take place, the provisions for the third limb are intended to denote the fact that the request to the agencies would not fall under the first two elements of the three limbs. It is a separate category.
The Minister has been generous and is providing an excellent defence of his position, but he does not need to be defensive because we know he is not being obstructive and is genuinely trying to find a way forward. He really should consider carefully, however, taking out the word “voluntarily” and then setting out his concerns in the memorandum of understanding. It is quite clear that it could be done in that way, so I urge him to consider doing it.
I hear the clear statements, but I have sought to respond in an equally clear fashion on why we judge that the need for that word still remains. Right hon. and hon. Members have argued loudly and clearly across the House in what I believe has been a good public demonstration of the clear and robust challenge that the ISC provides to Ministers and to members of the security agencies. I welcome the exchange we have had to underline the clear and focused challenge that will no doubt be given and enhanced as a result of the provisions.
I note that the hon. Member for Brighton, Pavilion (Caroline Lucas) has tabled amendment 71. Rather than delay her presentation further, I will if I may respond to the points she raises in my summing up, although I have already taken up a great deal of the House’s time. With those comments, I support Government amendment 56.
I want to discuss amendment 75, which deals with the Osmotherly rules, amendment 76, which deals with the protection of ISC proceedings, and amendment 74, which deals with pre-appointment hearings.
Amendment 75, tabled by me and by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), would remove the Government’s ability to refuse to disclose information to the ISC when it is information “not proper” to be disclosed to a Select Committee under the Osmotherly rules. The Bill currently allows a Minister to withhold information if
“it is information of such a nature that, if the Secretary of State were requested to produce it before a Departmental Select Committee of the House of Commons, the Secretary of State would consider (on grounds which were not limited to national security) it proper not to do so.”
What Ministers are able to disclose to Select Committees is governed by those famous Osmotherly rules, which we discussed in Committee. There are three reasons for withholding information: disproportionate cost, the fact that the information is sub judice, and the fact that it relates to a previous Administration. Our amendment would rule out the use of the Osmotherly rules altogether, although we would be happy for an agreement on cost to be included in the memorandum of understanding, which would achieve the same result.
That is an interesting point, but because of the way in which the Bill is drafted and because of the references that have been made to the use of the Osmotherly rules, we think that there is a case for excluding them completely from the Minister’s decision making.
We do not think that sub judice information should be excluded from the ISC’s hearings, because that might may prevent it from seeing particularly important information. As significant procedures exist to ensure that information will be protected, we should not worry about the ISC seeing the information if it would assist it. We also feel that the ISC should have access to information held by previous Administrations, for two main reasons. First, the matters that the ISC investigates are rarely politically sensitive, although they will be sensitive in other ways. Secondly, the ISC will often be able to investigate an issue only after a change of Administration. Its role is usually retrospective, which means that there will often be a long delay before it can begin an investigation.
It is helpful to know that. However, time is pressing, so I shall move on to amendment 76. The Minister spent a fair amount of time discussing the amendment and the issues that he considered arose from it. It would exempt all proceedings of the ISC from civil, criminal or disciplinary proceedings¸ which would protect members of the Committee, staff of the Committee, and evidence held by the Committee. In that respect, it extends the protections that the Government inserted in the Bill in Committee, which have now been refined in their amendments 61 and 62.
Before I go into the details of the difference between amendment 76 and the Government amendments, I should establish why these protections are important. They are important because we want witnesses to be able to give full and frank evidence to the Committee, and we want the Committee to be able to receive evidence in confidence. It may be helpful to compare the provisions governing the ISC to the provisions governing Select Committees. Evidence given to Select Committees, whether written or oral, is subject to parliamentary privilege, which means that the evidence cannot be used in any court proceedings against the witness or anyone else.
This is a central tenet of our democracy and allows witnesses to give the frankest possible answers without fear of reprisals. Witnesses giving evidence to the ISC are likely to be particularly mindful of the legal obligations on them. Evidence is likely to be covered by the Official Secrets Act and, technically, an offence would be committed every time a witness exceeded the explicit permission they had been given, which could be frequent.
This may not be the only restriction on a witness’s ability to give evidence. Restrictions are likely to be contained within the witness’s employment contract and the civil service code. Such restrictions have the potential to pose two problems to the ISC. First, they could slow down or prohibit witnesses where there is no genuine need for them not to be able to divulge evidence but it is not clear they have the legal authority. Secondly, they could prevent the Committee from taking evidence from whistleblowers. In recognition of these difficulties, in Committee the Government tabled amendments introducing statutory protection for witnesses, exempting evidence they provided to the Committee from civil, disciplinary or criminal proceedings. Amendments 61 and 62 refine that. They maintain the complete exemption from civil or disciplinary proceedings, but limit the exemption in criminal proceedings to action taken against the witness.
The Opposition welcomed the introduction of these protections and accept the refinements made today, but it is important that the House realises that these protections fall far short of those enjoyed by Select Committees and leave many unanswered questions. It is also important to realise that because these are statutory protections and not privilege, it would be possible for the Government or an agency to obtain an injunction preventing a witness from appearing before the Committee.
As I have stated, parliamentary privilege covers all the proceedings of a Select Committee, and it is important to realise what that means in practice. It means the evidence presented to a Select Committee is covered by privilege. That is not any document submitted to the Committee, but documents accepted by the Committee as evidence. Privilege also covers all proceedings of the Committee, including advice given by the Clerks to members of the Committee and actions of members while serving on the Committee.
I highlight these areas because it is not at all clear to me what alternative protections are given to the ISC in such situations. I would like to ask the Minister about a hypothetical situation where the ISC receives classified information relating to serious wrongdoing on the part of an element of the security agencies. Let us say, for example, the ISC were anonymously to receive Secret Intelligence Service transcripts indicating an agent had committed torture. I am not saying this has ever happened; I just want the Minister to say what would happen if it were the case.
It is questionable whether the ISC would be able to act on the evidence it received. That would depend on the provisions in clause 2. These documents may be directly related to an investigation the ISC was already undertaking, but that is not the question I want to focus on here: I am asking whether the ISC is even in a position to accept these documents.
I have tabled this amendment because I am not satisfied that the provisions the Government have proposed so far offer the type of protection that this Committee needs. I heard what the Minister said, and his response seemed to be that the amendment was drafted too broadly. I do not have the back-up of learned counsel in drafting amendments, and I want the Minister to explain what kind of protections are available and what their effect would be in the circumstances I have described.
It is questionable whether the ISC would be able to act on evidence it received. I hope the Minister will address that point and explain the impact of the clause 2 provisions. The documents might relate to an ISC investigation, which might be relevant to whether it would be possible to put the documents forward and examine them.
ISC staff members will be signatories to the Official Secrets Act. It is my understanding that parliamentary Clerks would be protected as soon as the document was taken into evidence, but no such protection is available to the ISC Clerk. Is that correct? If a staff member who received documents decided to pass them on to the Chair of the ISC, will the Minister confirm that they would be doing that without lawful authority and would therefore be in breach of the Official Secrets Act?
Will the Minister also confirm the position for members of the Committee who consider such documents? Would members of the ISC be committing an offence under the Official Secrets Act by possessing those documents? It is important to remember that Members of Parliament have privilege in fulfilling their role as MPs and sitting on parliamentary Committees, but as I understand it, privilege does not protect them in their role on the ISC.
Finally, I want to ask the Minister about the status of the hypothetical document to which I referred. Evidence accepted by a Select Committee is not admissible in a court of law, but what about evidence given to the ISC? The Government’s amendment protects witnesses, but in the case to which I was referring the witness would not be identifiable as the information would be given anonymously. That is often the case with whistleblowers: they are protected in the Select Committee system because their evidence is privileged, but under the Bill as drafted they would appear to be protected only if they had been recognised by the ISC as a witness. If they were not identified as the witness who provided the evidence, the evidence given to the ISC could be used against them in proceedings. That is why the Opposition have tabled amendment 76. Although we do not pretend that it will confer parliamentary privilege on the proceedings of the Committee we feel that it should confer some statutory protections, including on the Committee’s members, staff and evidence.
Amendment 74 is about pre-appointment hearings for agency heads. The previous Labour Government introduced pre-appointment hearings for a range of public sector roles and we think that that should be extended to agency heads. Select Committees now hold pre-appointment hearings for a range of positions, and in keeping with our desire to make the ISC have some similarities with Select Committees, we would like to give it that role.
Long gone are the days when heads of agencies were secretive figures; today they are well known and have a strong profile, which is all part of efforts on the part of the agencies to open themselves up. We should try to help in that and we should applaud those efforts. As the noble Baroness Manningham-Buller said in the other place, 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 MPs.
Another positive consequence of introducing pre-appointment hearings is that it will encourage senior members of the agencies to foster strong relationships with the Committee in preparation for their possible future hearings. Such hearings were suggested in the other place and we discussed them in Committee, too. I believe the responses from the Minister in the other place and in Committee were rather weak. The Governments argued that such hearings were not necessary because agency heads were essentially civil servants and subject to the normal civil service recruitment rules.
Although that argument might be technically correct, it fails to realise the two special characteristics of agency heads. First, 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 made by normal civil servants. They make decisions that can be a matter of life or death, either for their staff or for people in the UK.
Secondly, there is a more confusing line of accountability. If the permanent secretary of the Home Office makes a decision or a mistake, the Home Secretary will be required to answer for it. She appears before Parliament on a regular basis and the decisions made by her Department are in the public eye. There is no such clear line of accountability for agency heads. As the noble Lord Henley explained in the other place, 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 and that for the Secret Intelligence Service and GCHQ lies with the Foreign Secretary. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service; similarly, the Foreign Secretary has his accountability. Only rarely are any such figures called on to account for the work of the agencies, however, so we must put greater emphasis and scrutiny on the person doing the implementation behind the scenes. I shall therefore want to test the opinion of the House on amendment 74.
On amendment 57, the Under-Secretary sets out in a letter written to members of the Committee dated 5 March 2013 that any breach of the oath given by a witness would not be contempt of Parliament but could constitute an offence of perjury under the Perjury Act 1911, which could therefore be enforced through the police and criminal justice system. Can the Minister clarify whether this is different from what would happen in the case of a Select Committee? Will he explain how this would work, as the ISC sits in private and deals with very sensitive information?
While the Minister is clarifying the position on oaths, I would appreciate it if he could clarify the ISC’s ability to call witnesses to come before the Committee. As I understand it, the ISC needs the permission of the Prime Minister and the agency heads before hearing from a member of staff of either agency. Nevertheless, I understand that an individual, who may or may not be a member of an intelligence agency, can volunteer to appear before the ISC and the Prime Minister or agency head would require an injunction to prevent them from appearing, although this person may be subject to various legal constraints, as I mentioned earlier.
My current concern centres on the ability of the ISC to compel a witness to attend. There is already a limitation on its ability to call witnesses employed by one of the agencies, but what about witnesses not so employed, such as a retired agent, a member of the police or an ordinary citizen? Can the Minister explain what powers the ISC has to compel such people to give evidence?
Amendment 73 and Government amendment 60 deal with the publication of reports. A strong message is clearly being sent to the Government and I was pleased to hear what the Minister said, with assurances given and an undertaking to consider a memorandum of understanding as a way forward. On Government amendment 55, it would be helpful if, in his final comments, the Minister could respond to the points raised by Members today.
Finally, amendment 71 appears to give the ISC a significant new role and appears to allow individuals to make requests to the ISC, which I believe is unprecedented, and it also appears to give the ISC a role in addressing wrongdoing—possible torts committed by the agencies against individuals—and providing some form of redress to those individuals. I am not clear about the purpose of the amendment, but on the face of it the Opposition do not support it.
Order. There are four Members trying to catch my eye on this set of amendments and the knife falls at 4 o’clock, so I ask Members to be conscious of the time that they take to make their case in order to allow the Minister to respond.
I shall be brief. On amendment 73, in the light of the undertaking given by the Minister to my hon. Friend the Member for Cities of London and Westminster (Mark Field) that the publication issues will be addressed in the memorandum of understanding, I am say on behalf of colleagues that we do not propose to press that amendment.
On the question of taking evidence on oath, I think I speak for colleagues on the Committee in saying that we are entirely happy with what the Government propose. On the use of the word “voluntary”, I can only re-emphasise what has been said by many other colleagues. The Minister endeavoured to explain to the House why this applies only to that part of our duties that relate to operational matters. All I can say to him and to the Government is that we will be spending an awful lot of our time trying to fend off critics who, wilfully or otherwise, choose to interpret the presence of the word “voluntarily” on the face of the Bill as implying that we do not have the ability to force the agencies to comply with our requests, when in most cases we do. There must be a simpler and less emotive term that can be used to express the same purpose, without leaving us open to such unjustified criticism.
On the question of privilege, I am still concerned, as are the Opposition, that sufficient measures have not been taken to empower the Committee and protect the Committee to anything like the same extent. For example, when the Committee discusses people’s possible involvement in serious criminal activity, could we end up in a situation in which some of our proceedings that involve statements —not from witnesses, but from Committee members—that in the ordinary course of events might be regarded as defamatory may result in court proceedings being taken against members in a way that would not be possible with members of a Select Committee in analogous circumstances? If we could end up in such a situation, the Government need to consider that problem very seriously indeed and do something about it at a later stage. I hope that the Minister will refer to that in his closing remarks.
On the question of pre-appointment hearings, I do not believe that the Committee has taken a corporate view as such, but one point must be made, and made strongly: this would add to the work load of the Committee’s staff. The Committee, as has been made crystal clear today, is already grotesquely understaffed by comparison with comparable committees and organisations in this country and in Europe. Therefore, were we to take on that further burden, we would definitely need better proposals for resourcing it than those that are currently ready.
The Opposition are quite right to resist amendment 71, because individual complaints against the agencies, such as that involving Binyam Mohamed, are not the responsibility of the ISC; they fall within the statutory remit of the Investigatory Powers Tribunal. That is the correct body to deal with such matters.
Finally, on the question of the Osmotherly rules, I am glad that the matter will be dealt with one way or another. We would prefer it to be set out in the Bill, but otherwise in the memorandum of understanding, because the ISC frequently needs access to the papers of a previous Administration, for example, or has to deal with matters that are sub judice, and we cannot row backwards from that situation. Subject to those comments, we are very pleased with the progress the Bill has made thus far.
Amendment 71 seeks to provide some form of recourse for people who have been defamed by the UK security services and to ensure that part of the Intelligence and Security Committee’s remit is to investigate such claims and, where necessary, ensure that they are corrected. I listened with interest to what the hon. Member for New Forest East (Dr Lewis) said about this not necessarily being the right forum. I am happy to be advised on that, but right now it feels that there is no appropriate forum. The situation of Shaker Aamer, for example, which I will set out in more detail shortly, demonstrates that. If the hon. Gentleman can enlighten me on how we can make existing forums work more effectively, for example in this case, I would be very interested to hear what he has to say.
The ability of the security services effectively to say what they like about anyone, often resulting in serious consequences for the individual concerned, is at present largely unchecked. As John Cooper QC said in a legal opinion on precisely that issue, the security services are “presently allowed to literally say what they will to achieve their own ends, whether or not those ends are legal, democratic or in accordance with the rule of law. In addition to this, those who indulge in these activities are completely unaccountable to the citizen, to the Government, and even to a quasi-regulator or body charged with their oversight, such as the ISC. What is more, the victims of such defamation are likely to be the most vulnerable individuals, most likely detained under the most restrictive of circumstances. In essence, they are prisoners defamed by their controllers and captors. That is neither right, nor acceptable.”
I want to give a real-life example to help illustrate why I believe that this is so important. British resident Shaker Aamer, whose wife and children are British citizens and live in south London, has been held in Guantanamo for more than 11 years, despite having been cleared for release by both the Bush and Obama Administrations. The Foreign Secretary has raised the case with the US on several occasions, and the Foreign Office has made it clear that
“The government remains committed to securing Mr Aamer’s release and return to the UK.”
Given that the US has cleared him for release, a complicated process including multiple federal agencies, and the UK Government have made it clear that they want him to come home, one cannot help asking why Mr Aamer remains detained in Guantanamo, never having been charged or tried for any crimes. The conclusion that his US lawyer has reached is that Britain’s intelligence agencies have been defaming Mr Aamer to the US, passing on false information and accusing him of extremism, and that is what is holding up his release.
Mr Aamer is being deprived of his liberty on the basis of lies being told about him that he is unable to challenge. He has therefore begun defamation action against the security services—action that could be pushed into a secret court under part 2 of the Bill, leaving him once again unable to confront his accusers or to challenge the evidence used by the Government against him. I would argue that, at the very least, it is important that a duty be placed on the Intelligence and Security Committee fully to investigate such claims. That would not be a solution in itself, but it could provide some small measure of recourse for those such as Mr Aamer who find themselves in the gravest of positions as a result of information passed behind their back.
I will be very happy to hear if there are other ways of addressing this problem, but right now the advice that I am receiving from some of the legal people involved in the case is that they are not aware of any measure that would do so.
Perhaps some of my right hon. Friends will explain to the hon. Lady the powers that exist to deal with such cases, and deal with them shortly, one hopes. Does she think it would be right for a Committee of Parliament to act in a quasi-judicial or even wholly judicial role, which would be the effect of her amendment?
I am not convinced that the Committee would be acting in a quasi-judicial role; I would share the right hon. Gentleman’s reservations were that to be so. I am honestly searching for a solution to the problem, and perhaps this is not the right one. However, I want to put on record the real concern that exists about the situation that Shaker Aamer finds himself in. If nothing else, I hope that if this is not the right route to take, Government Members will direct me towards the appropriate measures, because this case has been going on for very many years.
I wish to be helpful to the hon. Lady, and I think that the Investigatory Powers Tribunal is the body that she has in mind. All these tribunals, including those for communications issues and for complaints such as this one, are headed up by senior judges. I think she would find that they are a much more appropriate route. However, it is obviously very interesting to hear what she has to say about these worrying cases.
I am entirely sympathetic to what the hon. Member for Brighton, Pavilion (Caroline Lucas) has said about that case. However, a statutory avenue is already available under the Regulation and Investigatory Powers Act 2000, which set up the Investigatory Powers Tribunal. Further to the intervention by the right hon. Member for Knowsley (Mr Howarth), a fellow member of the Committee, one might not be able to describe the proposed power that she wishes to provide as quasi-judicial, but it might possess a hybrid relationship in being both investigative and judicial, or in a position of seeking to create redress.
Apart from that, there is a fundamental statutory point. The hon. Lady’s proposed subsection (4A) refers to a situation in which
“a plausible claim has been made by or on behalf of an individual to the ISC that the Security Service…has disseminated any information to any recipient concerning any person that appears to be…materially false; and…harmful to the person defamed.”
The breadth of that goes far beyond even the jurisdiction of any court in the United Kingdom of which I am aware. Proposed subsection (4B) says that
“the ISC shall fully and expeditiously investigate the claim”—
so it does involve an investigative function—
“and, where the claim appears to be well founded, shall ensure that the misinformation is expeditiously corrected.”
But by what means? The ISC is not in a position to implement any such action. The amendment is not legally well-founded. In any event, as has been pointed out, its scope goes far beyond anything that the Committee’s staff and resources would permit. Moreover, there is no indication of how the powers would be exercised or how they could ever be implemented.
I want to consider briefly the restrictive wording of parts of clause 2 and the voluntary issue that has been raised by a number of Members.
I served on the Intelligence and Security Committee for about 11 years from its very beginning. It was a slow and painful task to get the first generation of heads of agencies and civil servants from Departments to understand the Committee’s need for a deep understanding of the relevant matters in order for us to do our job effectively. Subsequent generations of heads of agencies were ready to involve the Committee more closely and to bring up operational matters, whatever the statute said. It did not take me long to realise that it was not possible for members of the Committee to do their job properly unless they understood how various kinds of operations were conducted and the constraints and problems faced by the agencies. In particular, it was not possible to discharge an important responsibility without an understanding of operational matters.
One of the purposes of the ISC, where Members of both Houses of Parliament look closely at the work of agencies, is to give people on the outside—both in this place and in the community at large—a sense that Members who are there by democratic means are observing the agencies sufficiently closely to give confidence that their work is within the framework not only of the law, but of the ethics and principles by which we try to run our country. The background is that agencies were often accused of doing precisely the opposite in years gone by. Unless we can give people that confidence and say, “Yes, I have looked very closely at this matter and I do not think you need to be concerned about it,” the Committee will not be discharging properly one of its most important roles. We found that we had to look very closely at operational matters and that became easier as time went on.
The work sometimes involves what are, in effect, ongoing intelligence operations. In some fields, the work never stops and an operation to do with a particular recurrent problem does not have a simple end, so the provision in clause 2(3)(a)(i) is restrictive.
I fully understand how the Government have arrived at the word “voluntarily”. It would have been absurd if the wording had prevented the Committee from continuing to work closely with the agencies in the way it has done in recent years. That would have been ridiculous, so the word is there for a perfectly respectable reason. Indeed, things have been improved by the insistence that, if the Committee requests something, that does not by definition make it involuntary. However, I still think, as the hon. Member for New Forest East (Dr Lewis) said, that that is not the kind of language we want to see in the Bill. Nor does it give people outside the confidence that this Committee will be able to find out whether something is going wrong when it needs to do so, or that it can be relied on when it seeks to give assurance that all is reasonably well.
The task of getting this right is by no means over. The memorandum of understanding may be able to deal with those issues better, but, even then, words are being put on paper and when that happens, as we have discovered, simple, practical and sensible ways of doing things may appear to be precluded. Moreover, when there is friction or tension, it becomes easier for the head of an agency or, at least as often—indeed, perhaps more often—a Minister or civil servant to say, “This goes beyond the memorandum of understanding. It is outwith the terms of the statute.” We have heard such language and the right hon. Member for Torfaen (Paul Murphy), who is a previous Chairman of the Committee, will remember how rigid some people in the relevant Departments could be from time to time.
Ministers need to make it clear, as they have done to some extent in these discussions, that it is in the interests of the democratic accountability of these extremely important and valuable agencies that the public have confidence, not only in the agencies, but in that process of democratic accountability, circumscribed as it is by the need to protect the work of those agencies.
This has been a useful debate underlining the importance the House attaches to the scrutiny provided by the ISC and how it is being enhanced by the steps contemplated as a consequence of the Bill. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the Chairman of the Justice Committee, made the point about the scrutiny so far seen in the House and how we are seeking to strengthen it further.
I shall respond first to the hon. Member for Brighton, Pavilion (Caroline Lucas) and her amendment 71. As others have said, the essentially judicial function she seeks does not sit well within the ISC, which is intended to be a Committee of Parliament. It is not for the ISC to consider, much less determine, individual complaints about the intelligence services, especially given that there is already a body that can consider these matters and which we believe is well equipped to do so. Right hon. and hon. Members have highlighted the work of the Investigatory Powers Tribunal, which is the appropriate route through which complaints should be made.
The hon. Lady referred to the case of Shaker Aamer. I assure her that his case remains a high priority for the UK Government and we continue to make it clear to the US that we want him released and returned to the UK as a matter of priority. We continue to work with US counterparts to consider the implications for Mr Aamer’s case of the 2013 National Defence Authorisation Act. Discussions continue with senior officials within the US Administration. The Foreign Secretary raised Mr Aamer’s case numerous times with former Secretary of State Clinton and will continue to do so with Secretary of State Kerry. As the Foreign Secretary told Parliament last October, he and the Defence Secretary also made representations to the US Defence Secretary Leon Panetta last June.
I appreciate the Minister’s rehearsing the Government’s commitment to getting Shaker Aamer back from Guantanamo. I have no doubt about that, but does he understand what the obstacle is? The US says he can come back here and the UK Government say we want him back. What, then, is the obstacle? Does he have any idea?
I can only say that decisions about the release of Mr Aamer rest entirely with the US Government. I underline that the British Government remain committed to engaging with the US with the aim of securing Mr Aamer’s release and return to the UK as soon as possible. To conclude my remarks on the hon. Lady’s amendment, let me say that we believe there is an appropriate mechanism by which she or others can bring complaints to the Investigatory Powers Tribunal.
On amendment 74 and pre-appointment hearings, I do not wish to go back over the lengthy debate we had in Committee on this issue. I can only restate several points I made then: pre-appointment hearings are a relatively new phenomenon in the UK; the Cabinet Office has published guidance on the process to be followed for such hearings; and at the moment the list of posts subject to those hearings relates to public bodies, such as the chair of Ofcom or the Social Security Advisory Committee. The pre-appointment process has never been used for the appointment of civil servants. The heads of the intelligence and security agencies are permanent secretary-level civil servants, so the recruitment process is expected to follow the process for the appointment of civil servants of such seniority. We judge that this continues to be the appropriate mechanism.
On the Osmotherly rules, I made the point in Committee that the powers to withhold information from the ISC have been used sparingly and that we expect them to continue to be used only in exceptional circumstances. The Osmotherly rules set out categories of information, including information on officials’ personal views, as distinct from the views of Ministers, on policy options; information that could be supplied only after carrying out substantial research or at excessive cost; information about matters that are sub judice; and the papers of a previous Administration. The provisions in the Bill are necessary to safeguard the long-standing conventions that are reflected in the Osmotherly rules. We judge that the provisions, although they have been used only sparingly, remain appropriate.
The hon. Member for Kingston upon Hull North (Diana Johnson) posed various questions. She asked whether the ISC can accept material and evidence anonymously. It can, but it might have doubts about what weight should be given to such evidence if it cannot be corroborated.
The hon. Lady talked about the protection of members of staff. The staff of the ISC all go through developed vetting. They are therefore able to handle protectively marked material. That is a central part of their job, in the same way as it is for members of agencies and Departments.
Agency heads are accountable to Parliament in the evidence that they provide to the ISC, including through oral evidence sessions and the upcoming public evidence sessions. Agency heads are accountable in the same way that permanent secretaries to Ministers are accountable for the decisions of their agencies.
On amendment 76, the hon. Lady asked whether whistleblowers would be protected. They would not be protected, but it is important that we strike a balance between encouraging the flow of evidence to the ISC and giving effective immunity for individuals who breach legal obligations, including under the Official Secrets Act 1989.
The hon. Lady asked whether the ISC can choose which witnesses can be called and whether it can compel witnesses to attend. At the moment, it cannot compel a particular individual to be a witness. However, the important element in the Bill is the power to compel information to be provided to the Committee. That is a powerful provision and an important step. In practice, the ISC, the agencies and others discuss and agree on who is the appropriate person to appear and give evidence on a particular point. The current practice is for the ISC to have regular oral evidence sessions with Ministers, agency heads and other senior officials.
I have heard clearly the points that have been made about the word “voluntary”. The Government believe that our amendments provide clarity. We are in no way seeking to suggest that the powers of the ISC are not significant or that the steps in the Bill are not important in providing what this House wants to see, which is enhanced, robust scrutiny of the agencies and broader security issues across government. We believe that the Bill provides effective new powers that will enable enhanced scrutiny, provide confidence and add to the approaches that the ISC already takes.
I want to put on the record my recognition of the work of the ISC in carrying out its duties. We believe that that work will be strengthened by the Bill and the Government amendments. I therefore encourage the House to support them.
Amendment 56 agreed to.
Amendments made: 57, page 17, line 4, leave out sub-paragraph (6) and insert—
‘(6) The ISC may take evidence on oath, and for that purpose may administer oaths.’.
Amendment 58, page 17, line 6, at end insert—
‘Funding and other resources
2A A Minister of the Crown—
(a) may make payments to either House of Parliament in respect of any expenditure incurred, or to be incurred, by either House in relation to the ISC,
(b) may provide staff, accommodation or other resources to either House of Parliament for the purposes of the ISC,
(c) may make payments, or provide staff, accommodation or other resources, to the ISC, or
(d) may otherwise make payments, or provide staff, accommodation or other resources, to any person for the purposes of the ISC.’.
Amendment 59, page 18, line 39, after ‘not’ insert ‘otherwise’.
Amendment 60, page 18, line 42, at end insert—
(za) the ISC and the Prime Minister are satisfied that publication or disclosure would not be prejudicial to the continued discharge of the functions of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities falling within section 2(2),’.
Amendment 61, page 19, line 5, at beginning insert—
‘(1) Evidence given by a person who is a witness before the ISC may not be used in any civil or disciplinary proceedings, unless the evidence was given in bad faith.’.
Amendment 62, page 19, line 6, leave out ‘, civil or disciplinary’.—(James Brokenshire.)
Main functions of the ISC
Amendment made: 55, page 2, line 21, after ‘ISC’, insert
‘(whether or not in response to a request by the ISC)’.—(James Brokenshire.)
Amendment proposed: 74, page 2, line 29, at end insert—
‘(4A) The ISC shall consider the proposed appointment of the following, including by questioning the prospective appointee at a meeting of the ISC—
(a) the Head of the Security Service;
(b) the Head of the Secret Intelligence Service;
(c) the Head of the Government Communications Headquarters; and
(d) such other persons as the Prime Minister may direct.
(4B) The ISC may consider the appropriateness of holding hearings considering each prospective appointee’s proposed appointment in public.’.—(Diana Johnson.)
Question put, That the amendment be made.
Amendments made: 63, page 19, line 31, at end insert ‘, and
(b) after “Committee” insert “of Parliament”.’.
Amendment 64, page 20, line 18, at end insert ‘, and
(b) after “Committee” insert “of Parliament”.’.
Amendment 65, page 21, line 35, leave out ‘7(2)’ and insert ‘7(1)’.—(James Brokenshire.)
Queen’s consent signified.
I beg to move, That the Bill be now read the Third time.
I commend the Bill in its present form to the House.
The first point to reflect on, in considering the Bill in its entirety, is the debt we owe to our security and intelligence services. Unfortunately, we face unprecedented threats at different times from various enemies, both at home and abroad. It is extremely important that we have highly efficient intelligence and security services to protect the lives of our citizens and the normal civilised business of the country. We have to support the intelligence services on which we rely so heavily.
Secondly, this country upholds the highest standards of human rights in this area of its activities, as in other areas. We all expect those who work in our intelligence and security services to have the same regard to the values that we are defending as everyone else does—that we do have regard to the rule of law. The British Government are, and, as far I am aware, always have been, firmly against the use of torture, firmly against unlawful and extraordinary rendition, and firmly against practices on which some of our allies take a more relaxed view. I would like to think that the British intelligence and security services are not only among the best in the world, but uphold much higher standards in the way they conduct themselves than is true of the vast majority of the nation states of the world.
The vast majority of Members agree that we are grateful to the security services, and that it is important that they are held as accountable as everyone else. We follow another principle that the Government, as far as possible, hold dear, which is that of transparency: avoiding unnecessary secrecy wherever possible, and being as open in our dealings with the public in every aspect of our public life. Plainly, that has to be modified to a certain extent to protect the absolutely essential secrecy that our security services need, and which the people who co-operate with them, the agents who help us and the various people we have to rely on throughout the world, need.
I believe that the part of the Bill that we will look back on with greatest pleasure is the considerable steps we are taking to give extra powers to the Intelligence and Security Committee. In ensuring that the security services are held accountable, accountability to Parliament is extremely important. I will not rehearse all the arguments, which have taken most of today, but the Committee is now to be truly a Committee of Parliament. The House of Commons will be able to elect the membership—on the nomination of the Prime Minister, but members will be appointed by parliamentary vote. The Prime Minister’s nomination is a necessary precaution in case some unknown feature of a Member of Parliament’s background might make him or her a less suitable member of the Committee than would otherwise be the case.
As we have seen over the years, the Intelligence and Security Committee is one of the most important Committees of the House. Its membership, not surprisingly, tends to comprise heavyweight individuals from all parts of the House of Commons, with a membership that is highly respected in all parts of the House for the work it tries to do. However, I will not repeat what my hon. Friend the Under-Secretary of State for the Home Department set out in the debate. We have examined in detail the various processes that we now have in hand to enable the Committee to require evidence to be given to it and to hold the security services thoroughly to account, in all the sensible circumstances that can be managed, while at the same time ensuring that no risk is posed to national safety and national security.
The most controversial part of the Bill is the one we debated on Monday, in which we seek to make the security and intelligence services more accountable to the judiciary and courts of this country, particularly as in the last few years a growing number of people have alleged before our courts malpractice against the security services and sought substantial damages for events in which they say our security services were complicit. Things are plainly unsatisfactory as they stand, and we have all quoted many distinguished members of the judiciary to illustrate that. Opponents persuade themselves that they are so against the principle of closed proceedings of any kind that they wish to keep the present law, which they regard as satisfactory.
I am afraid I am still at the stage where I do not see how on earth we can say that the present law is satisfactory. People bring claims and are prepared to give evidence, as they are perfectly entitled to, in support of them. The nature of the evidence that the security and intelligence services and the Government would wish to produce to defend some of those claims is of the kind that cannot possibly be given in open court. The courts have made it clear that sometimes there is indeed scope for closed proceedings, but that they cannot be held through an ordinary civil action unless Parliament has decided the circumstances in which these should be allowed.
We already have closed proceedings in this country in several areas—there are about 14 instances of different jurisdictions where we have closed proceedings, largely in the immigration field. It is of course less than perfect justice, because the only possible challenge to the evidence is from special advocates who have been security cleared, and they are not as free as they would be in an open court case to take full instructions from their clients. Everybody knows that, but in fact they have more weight as advocates than most people appreciate. Given the circumstances, most judges are prepared to listen to challenges, realising that they have to bear in mind that they need to be particularly scrupulous, because there are limitations in how far the evidence is being tested before them.
The best test is that special advocates win in closed sessions—I have been fond of citing one or two instances as these proceedings have gone along. The last case that the Government lost—that of Abu Qatada, which caused a tremendous public controversy and still is—was lost before a judge, Mr Justice Mitting, who does not have the reputation of being a melting-heart liberal. Abu Qatada won in closed proceedings in a British court, defeating my right hon. Friend the Home Secretary and the Government in our attempts to remove him for a trial in Jordan. Obviously the judge was not satisfied that torture would not play a part in the proceedings if Abu Qatada was sent there. The idea that Ministers have the ability to present things to a judge in circumstances where the closed advocates have no hope is mistaken. What we will get is a judgment, whereas what we get at the moment is silence.
In the main, we have been attacked by people who say how much they deplore secrecy and silence, yet the effect of being granted a public interest immunity certificate, which is the only course open to Ministers wishing to withhold evidence that could damage national security, is total silence. The evidence cannot be used by the claimants, cannot be taken into account by the judge and is not available to the defence. As we all know, cases are being brought with increasing regularity in which the Government have no alternative but to offer no defence, because no evidence can be called, and then to start negotiating the amount money to be paid in compensation.
I have never given exact figures for the compensation involved—although some have appeared following interviews with me—because the claimants usually want to enter into confidentiality agreements on the settlement. However, there is no harm in telling the House that millions of pounds are being paid out to claimants whose cases have never been tested or challenged. I make no apology for repeating my suspicion—one that is held by most objective people—that there is a serious risk that some of the money is finding its way to very undesirable quarters, and probably to terrorist groups in the case of certain plaintiffs. I am not talking about all of them, and I will not say which of them this applies to—that was never decided by the courts—but some of those people will have links to organisations that will have some of that money on them. I do not think that the public understand why the Government cannot defend themselves. That gives rise to genuine disquiet among perfectly intelligent liberal members of the general public.
We have had a long, satisfactory debate, during which the Bill has been transformed in both Houses. We are still not in total agreement on the wording, but we agree on the principles. The judge will have the widest possible discretion to decide that he is going to hear evidence in closed proceedings only when it is relevant and has to be heard to decide the case, and when it would damage national security if it were given to the wider world. Furthermore, the just and effective administration of justice will have to be served by hearing it in private. I will not repeat all the arguments that were put on Monday.
The overall effect of the Bill will be to improve the reassurance that we can give to the public and to the world that we uphold the highest standards in this country, and that we seek to maintain them by holding accountable those who work on our behalf. I believe that the outcome is not only legally sound but an eminently sensible common-sense solution to the obvious practical problems that arise when we wish to combine the rule of law with the protection of national safety and security. I commend the Bill to the House.
Order. I feel sure that the hon. Member for Hammersmith (Mr Slaughter) will match the exemplary brevity of the Minister without Portfolio, and it is important that he should do so, because at least five or six right hon. Members are seeking to catch my eye and we must conclude the debate by 5 o’clock.
I am most grateful for your advice, Mr Speaker. I am sorry that the Minister without Portfolio did not give way to me earlier. He has again made the assertion that the Government are being forced to settle cases, but his assertion would have more appeal if they did not regularly settle cases before exhausting all their options and before applying for a strike-out. I do not think that his admonitions about people seeking confidentiality agreements to hide the amount of compensation that they were getting could apply to Mr Belhaj, for example. The Minister is to some extent peddling damaged goods again, and that is regrettable as he is one of the last defenders of human rights in his party. I thought he might have had a little more to say about article 6 and the common law right to a fair trial. I must get on, however; I am aware of the Speaker’s request.
I want to begin with thanks. This is not a long Bill but it is a difficult one, given the nature and complexity of its subject. It touches on two fundamental concepts: national security, and the fairness and openness of justice system, which we prize and for which this country is still regarded as a role model. In addition to the Front-Bench teams who have laboured hard—exemplified by my hon. Friend the Member for Kingston upon Hull North (Diana Johnson), the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), and the Minister without Portfolio—we have had the benefit of the great expertise of some senior Back Benchers.
I mention in particular, although they are not here, the hon. Member for Chichester (Mr Tyrie) and the right hon. Member for Haltemprice and Howden (Mr Davis). I mention, too, members of the Intelligence and Security Committee, several of whom are here, particularly the hon. Member for New Forest East (Dr Lewis) and my right hon. Friend the Member for Torfaen (Paul Murphy), who served and brought their experience to bear on that Committee. Then, of course, there is my hon. Friend the Member for Aberavon (Dr Francis) and his colleagues on the Joint Committee on Human Rights, who have been forensic in their scrutiny of this Bill since it emerged as a Green Paper almost 18 months ago. We have had the advice of eminent lawyers too numerous to mention and all pro bono. I must, however, mention Tony Peto, who not only advised members of all parties but found time to co-author with the hon. Member for Chichester a book, “Neither Just nor Secure”, in time for the Committee stage. Copies, I am told, are still available.
There is substantial agreement on two parts of Bill. Part 1 improves the scrutiny of our intelligence services—something that has come a long way since they first emerged from the shadows in 1994. A point well made by ISC members on the Public Bill Committee was that there is a developing relationship between Parliament and the security services, which tries to balance the need for scrutiny with the effectiveness of the vital job those agencies do. The Bill takes that a step forward in enhancing accountability: it is too little and too slow for some, but it is moving in the right direction.
The clauses reforming the Norwich Pharmacal jurisdiction seek to re-assert the control principle and to protect the security interests of allied countries—not only in their interest but ours, since the success of our security services relies on close working relationships with their equivalents overseas. Thus far we agree, but how can that explain the definition of sensitive information in clause 15 as information relating to “an intelligence service” rather than to “a foreign intelligence service” as our amendment proposed? It looks like another attempt gratuitously to extend the protection given to secret information for reasons other than those given. It is a pity we did not have time to debate that matter further—perhaps even now, the Government will, of their own volition, look at that point.
That brings me to the contentious part of the Bill—that relating to closed material procedures—which regrettably leaves this House in a far worse condition than it was when it arrived. Not only have the key safeguards added to the Bill by the other place on the advice of the JCHR been removed, but new and alarming departures from the normal standards of civil justice have been put on the face of the Bill. This has been done as late and as obliquely as the Government could get away with. I hope their lordships will when the Bill returns to them later this month reimpose their necessary amendments and fillet the unwelcome additions.
There is not time to rehearse every attempt at mitigating the effect of secret courts that the Government have rejected, but in brief we have had 18 months of feigned U-turns, compromises and Pauline conversions from the Minister without Portfolio. In the end, they amounted to two important but not fundamental ameliorations. The door was opened to judicial discretion by accepting the Lords amendment on “may” instead of “must” at the entry to clause 6. Citizens will, after a series of wobbles and changes of heart, now have the same status as the Secretary of State to apply to enter a CMP. The two core changes sought by the Opposition in support of the other place have been firmly rejected: judicial balancing between the interests of national security and fair and open justice at the gateway to the CMP; and requiring the court to look at other more open, more tested and more equal ways of proceeding to trial before invoking the CMP—the so-called last resort.
Perhaps unsurprisingly, the Government were also unwilling to concede considering public interest immunity as a first option, judicial balancing of evidence once the CMP process was under way or to support a sensible renewal clause designed to give parliamentary scrutiny to this botched-together part of the Bill. These are all matters to which their lordships, including some of the finest legal brains in the country, will wish to address their minds. I hope and trust they will renew their attempt to make this part of the Bill work in the interests both of national security and open and equal justice. I hope—I am sure—they will not be deceived by the Government’s flimsy attempts to make purported concessions on these points.
The recent Government amendment 47, to ask the court to consider whether the Secretary of State has considered PII, is purely cosmetic. The hon. Member for Chichester described it as bath-time activity for the Minister without Portfolio—and it certainly comes with the customary large amount of soap. Similarly, clause 7, inserted in Committee, purports to challenge the CMP process continually and expressly on disclosure being completed. The court could do that of its own motion in any event, but it in no way mirrors the balancing act called for in our amendment 38, which was defeated late on Monday evening.
Have these purported concessions been presented to appease the Daily Mail, or—by way of winning the support of the members of the junior coalition party—the Liberal Democrat party conference? If so, they have done neither. The press, from left to right, remains hostile to this part of the Bill in its current form.
This weekend, the Liberal Democrats—when they are not reviewing their process for leadership selection—will vote again on a motion that states, first,
“Liberal Democrat parliamentarians to vote to delete Part II of the Justice and Security Bill”,
“Party policy to remain that the Liberal Democrats will repeal Part II of the Justice and Security Act (if so enacted) as soon as we are in a position to do so.”
The hon. Member for Cambridge (Dr Huppert) may have saved his skin by his votes on Monday, but 50 of his colleagues may find the air in Brighton less sweet. Even the right hon. and learned Member for North East Fife (Sir Menzies Campbell) may find his comment on Second Reading coming back to haunt him. He asked the right hon. and learned Member for Rushcliffe (Mr Clarke)
“whether he understands that the detailed amendments made in the House of Lords have been regarded by many people as being entirely favourable and reasonable.”—[Official Report, 18 December 2012; Vol. 685, c. 713.]
The hon. Gentleman has again made references to matters connected with the Liberal Democrats in regard to which he was factually wrong, but I do not have time to correct them all. However, may I take him up on his point about our being “in a position to do so”? Let us say that after the next election there were some Labour involvement in the resulting Government. Would he then commit himself to repealing part 2, or is he in favour of it when it comes down to it?
I certainly would not commit myself to repealing part 2, because it includes the Norwich Pharmacal jurisdiction, which we support.
Finally, let me deal with the new heresies that have been slipped into the Bill during its passage in the House of Commons. I have time only to raise the issues rather than exploring them; further comment must be a matter for the other place.
The first of those issues, which was raised by us in Committee but not dealt with satisfactorily by the Minister, relates to clause 6(4)(a), which currently sets as a condition precedent to the court’s ordering a CMP that
“a party to the proceedings…would be required to disclose sensitive material in the course of proceedings to another person (whether or not another party to the proceedings)”.
We fear that the provision will be used in part to prevent the use of confidentiality rings, allowing the citizen's own lawyer to be excluded from receiving information. It was that eventuality that we sought to prevent through our amendment 28, which was not reached on Monday but which would have added the words
“and such disclosure would be damaging to the interests of national security”.
Our second significant concern relates to Government amendment 46, which was tabled only last week and was introduced to the Bill on Monday. There has been no opportunity to debate the amendment, which adds to clause 6(7) the phrase
“or on such material that the applicant would be required to disclose'”.
That appears to allow an application for a CMP to be made on the basis of irrelevant material which is not the sensitive material that the party applying—usually the Secretary of State—fears having to disclose. It may therefore allow the court to take into consideration material that is merely embarrassing or damaging to international relations. The Government have excluded such material from consideration in the CMP, but it seems it may now be adduced to trigger the process.
If we are right about that, there are other ramifications. The gisting requirements—which, as the special advocates have pointed out in their latest submission, are already very weak in the Bill—ask the court to consider, not to require, a gist, and thus allow a case to be decided entirely on the basis of evidence that one party has had no right to challenge. In addition, a gist need only be made of material that is disclosable. That presents the possibility of a CMP being granted on the basis of non-disclosable material, and the court not even being asked to consider whether it is necessary to gist that material to the open lawyer or client.
This is not so much a bad Bill as a Bill with a bad heart. We will not be voting against Third Reading, because there is much in part 1 that we support, but we believe that even at this stage the clauses on CMPs can be improved—indeed, must be improved. We look to the other place once again to provide the necessary heart massage. We hope that the Justice and Security Act will secure an effective way of trying difficult cases with serious national security implications without jeopardising hard-won and much-prized principles of fair and open justice. We have never excluded the CMP option, but we believe that it is such an affront to the basic, open and fair principles of English common law that it must be confined to the tiny minority of cases in which proper judicial discretion and other tried and tested methods have been exhausted.
Part 1 of this Bill is a logical extension of a process that began approximately 20 years ago. The development of the relationship between the Intelligence and Security Committee and the services, based on respect but also on a clear understanding of their respective responsibilities, has been a substantial and important constitutional development, and nothing should take away from that.
The Minister without Portfolio described me as a heavyweight. It is a description I have been trying to avoid as I get older, for reasons he will readily understand, but there is no doubt that the matter we are discussing causes considerable controversy, and let me begin by saying I do not like part 2 of the Bill. Quite often we have to pass legislation that we do not like, however, because in our judgment it is necessary to do so, as the balance favours having the legislation. That is the principle on which I base my conclusion in this case, for which I will not be the darling of the Liberal Democrat conference in Brighton, not least because I am going back to my constituency—not to prepare for government, but to explain the consequences of the Government’s decision to close the Royal Air Force base there, which has been a source of great pride and has made an enormous contribution to the life of the community. What I will say and do is contrary to the expressed—and potential—views of the Liberal Democrat conference. I respect those views, but I think I am entitled to expect in return that my party colleagues will respect mine.
I base my views on this difficult matter on three influences: first, the fact that I have been a member of the ISC for some years; secondly, my experience as a Member of this House; and, thirdly, the fact that the law has been my trade since 1968 and I believe I know and understand it as well as any other Member of this House. I also believe that I have done as much as anyone to pursue the objectives of ensuring the protection of the citizen and the preservation of human rights.
The implication that those of us who support this legislation do so out of a slavish willingness to advance the interests of the United States has caused me some resentment, as has the suggestion that we are a cat’s-paw of the intelligence services. Not only are these claims insulting, but in my case they are palpably wrong. In recent years, for example, I have argued very strongly for an alteration in the extradition arrangements between our two countries, and 10 years ago almost to the day I and the then leader of my party were leading the opposition to the too-close association with George W. Bush and the United States in the unhappy venture into Iraq.
However, when senior officials in the current American Administration look us in the eye and tell us that their apprehension about the confidentiality of their sources is influencing the quality of the intelligence they are willing to share with the United Kingdom, should we ignore or dismiss that? If that position is then supported by American agencies themselves, should we ignore or dismiss it? When the UK’s agencies confirm under cross-examination their impression that the quality of shared intelligence with the United States has diminished, should we ignore or dismiss that? When the Americans say they are concerned about the risk to the lives of their agents or the revealing of techniques and procedures, should we ignore or dismiss that?
Do I like closed material proceedings? I do not. But do I think public interest immunity certificates are the answer? I most certainly do not. I have re-read chapter 13 of the Scott inquiry into arms to Iraq. It is heavyweight reading, but if any Members wish to become advocates for the value and validity of PII, I recommend they read it and find out the true implications.
If one wants to avoid embarrassment, a PII certificate is one of the most effective ways of doing so. If one wants to prevent a litigant from accessing evidence that might assist that person in establishing a case, PII is a very convenient way of doing so. One thing that has interested me more than anything else in this rather controversial debate has been the fact that many of the interested parties that now express confidence in public interest immunity certificates have previously been the first to criticise them.
The Bill has improved. Has it improved as much as I would prefer? Of course not, but how many times can any one of us put our hand on our heart and say that the piece of legislation for which we have voted is precisely and exactly as we would have wished? We are at a crossroads between principle and necessity, and we have to ask whether the balance that has now been struck is acceptable. That, essentially, is a question of individual judgement and it is that individual judgement that our constituents send us to this place to exercise every time we are faced with a dilemma of the kind the Bill obviously creates. Why do I say that? The balance struck is sufficient because of the developed and controlling role of the judiciary or the judge in any case and because of the palpable independence of the judiciary in these matters. We need only consider the Binyam Mohamed case, the observations of the Master of the Rolls and the extent to which the Government of the day were unable to escape the consequences of the action raised against them.
As is often the case, distinguished lawyers of sound judgment take different views of these matters. Sometimes, it seems to me that it is like a game of political contract bridge: “If you play your 700 lawyers and my good friend Baroness Kennedy, I will play my Ken Clarke and my Lord Woolf in an attempt to outbid you.” Such decisions are often as much a matter of instinct as logic.
Closed material proceedings have been described as Kafkaesque, but I doubt that those who say so have read Kafka. Others have said that they illustrate a form of Soviet-style justice, but a many litigants and accused persons in the Soviet system would be perfectly happy to swap their arrangements for those in this country, both north and south of the border. I would prefer not to have closed material proceedings, but I am satisfied that in this case the protections are such that they are justified.
I very much respect the views of the right hon. and learned Gentleman, but is he satisfied, as a Liberal, with the notion that from now on a litigant will not be allowed to look at the evidence in their case and cross-examine it on the basis that it will be made available to them? After all, is that not quite a serious procedure that is quite different from the defence withdrawing a piece of evidence or not adducing it at all?
Yes, that argument was lost a long time ago, but is that a reason to pass the Bill into law when it makes the situation worse? Once again, it suggests that the view of Parliament is that somehow it is okay to go through a judicial process in which the defendant is not fully aware of the case against them and in which the public is totally unaware of the issue. It sets a dangerous precedent to have any avoidable secrecy in the judicial system.
Since the hon. Gentleman puts the point that way, let us turn it around and ask what he would do. Would he have elements of the conduct and the sources of the security services—sensitive, and perhaps at great risk to those who provide human intelligence—exposed in our courts? That seems to me the only possible alternative, or else, as has been suggested, we simply say there is a financial cost to be borne and we will settle any case that may have the consequence of causing such sensitive information to be revealed. That is not justice, as I understand it. That is the failure of the judicial system to reflect the reality of the proceedings which are brought before us.
It is always open to the defendant to choose not to adduce evidence to support his case. If the state does not want to adduce the evidence, nobody is suggesting that it has to reveal the sources of agents or information. The state simply does not produce it.
But if the case raises the kind of issues that were raised in the case of Binyam Mohamed, what does my hon. Friend think the response would be if the state said, “We’re not producing any evidence at all”? What inference does he think people would draw if no defence was mounted? Of course the inference drawn would inevitably be one of guilt.
I finish by saying this: a lot has happened since the twin towers in New York were bombed and thousands of people died. Not all of it could be described as something of which we are proud, but the one thing that certainly happened then and which was reflected in many of the speeches that were made here on the special occasion when Parliament was summoned, and much of what has happened since then, has demonstrated that things were irretrievably and irrevocably changed as a result of that. We have only to look at the incidence of proceedings being taken in this country in relation to acts of terrorism or proposed acts of terrorism to realise the extent of that change. That is why, although I have no love for this legislation, I believe it is appropriate.
I have a great deal of respect for the right hon. and learned Member for North East Fife (Sir Menzies Campbell). In the course of his remarks he said that we must all exercise our judgment, and like other right hon. and hon. Members I do so today. If I may say so without being misunderstood, the right hon. and learned Gentleman put a more reasoned case than did the Minister, but I am strongly opposed to the measure, which, however it is dressed up, is a denial of a system of justice that has been built up in this country over centuries. I have no doubt that the Bill will be carried today, and in due course it is likely to be carried into law, but it will be a poor day for Parliament when it is.
I speak as a non-lawyer. Whatever limited legal work I have done outside the House between seats, I am not qualified as a lawyer, but I understand and I probably understood from the very beginning that there are certain basic rights when a person is accused—the right of defendants and their counsel to know the full case and the evidence against them. As I said, this has been built up over centuries in this country and it is now being undermined. However limited the cases may be, some defendants will not be able to have that right. I consider that very unfortunate indeed.
Under closed material procedure, special advocates will be appointed instead of counsel appointed in the normal way. Defendants will not know the evidence against them, nor will their counsel or solicitors. It is interesting to note that even special advocates who have operated in other fields that have developed in the past few years have argued, as the Minister knows, that that is an unfair way of proceeding.
We are supposed to be satisfied that only a limited number of cases will be dealt with in such a way, but that does not satisfy me. If it is only one case, in my view that will be one too many. It is all very well the right hon. and learned Member for North East Fife being satisfied—as I have said, I respect him and his integrity—but why have 700 lawyers, including a large number of QCs, indicated that they oppose it? Why has the Joint Committee on Human Rights made it clear that it is not satisfied with the outcome? Can they all simply be dismissed as some sort of civil liberties lobby that does not know what it is talking about?
We know that the basis for what has been brought before us is the cases of rendition, torture and the alleged complicity of British security personnel. Those cases have been debated on various occasions in the House of Commons, and I have taken part in those debates, but is it not important that we parliamentarians and, more importantly, the British public know whether or not the allegations are true? The right hon. and learned Member for North East Fife, in defending his position, said that if we do not follow what is proposed we will not get the necessary intelligence information from the United States. Are we really going to decide on that basis? Are we really going to decide that what has been built up over centuries, the right of defendants to fair proceedings and the right of their counsel to know what is going on at every stage, should be thrown overboard and into the dustbin because otherwise the United States might not provide us with intelligence information? And is it in their interests not to do so?
I in no way underestimate the acute terrorist danger facing this country. The atrocities of 7/7 came as no surprise to me, and I am sure that is the view of other Members who anticipated, as I did, that at some stage there would be a terrorist attack. Indeed, it might occur again—who knows? Yes, we are faced with an acute terrorist danger. I do not challenge that at all. They are demented, murderous psychopaths who want to bring death and destruction to our people. But if Parliament has a duty to defend our citizens, which indeed it does, I take the view that it has another duty and another obligation: to defend the rule of law and the traditional rights that have been built up in this country. That is why I cannot support the measure before us today. I believe that it is wrong and that it undermines so much of the British justice system that I think that we should be ashamed if it gets on to the statute book. Whatever I can do as one Member to show my opposition to the Bill, I will do it.
I will not go down the route that has so far been followed in this Third Reading debate, other than to observe that we must never forget that we are talking about civil cases, not criminal cases. They are not cases affecting people’s life and liberty; they are cases in which people, sometimes extremely unsavoury people with links to extremely dangerous organisations, are walking away with very large sums of public money. That is not a situation that can be allowed to continue. If the Opposition, in their heart, did not know that that was true, they would divide the House tonight, but they are not going to do so.
Instead, I will concentrate briefly on part 1, which strengthens the Intelligence and Security Committee. I believe that it was no coincidence that part 1 was added to the Bill, because there are two distinct and separate elements to the Bill. As my right hon. and learned Friend the Member for North East Fife (Sir Menzies Campbell) said, in what I must say was a masterly exposition of his position and, I think, that of most thoughtful people on this side of the argument about closed material proceedings, the consideration is not that there is an ideal answer, or even a satisfactory answer, but that all we can do is choose the least worst answer. To make that least worst answer to the problem more palatable, the strengthening of the ISC was added to the Bill.
I make no apology to the Minister for coming back to something that I, and others, raised quite strongly on Report: if the ISC is indeed to be strengthened, it must receive the resources it needs to carry out that strengthened and increased role. For those who did not hear me say it earlier, I remind the House that the ISC has only eight members of staff, and it has to pursue a number of inquiries and investigations every year, as well as its major annual report. That compares very unfavourably with the staff support for other Committees and inquiries, such as the 14 staff members for the detainee inquiry, which had only one specific issue to investigate, and the 12 staff members for the Committee on Standards in Public Life.
The ISC is currently funded to the tune of £750,000 a year. In the impact assessment published with the Bill, the Government cited a revised figure of £1.3 million that reflected their estimation of what the ISC would need to carry out the extra duties that are being placed on it in order to reassure the public that proper scrutiny is being carried out. The figure that is actually being offered is £850,000—an increase of just over one seventh on the existing budget. This would continue to leave the ISC worse off than all its international counterparts and worse off than the bodies that I listed. This is our last opportunity publicly to press the Government to commit to a substantive increase in resources. I hope that the Minister will confirm that the Government’s own published impact assessment will not be discarded when it is convenient to do so once this difficult Bill has been enacted.
I conclude—earlier than I would have liked, but I feel that I must—with a single observation. Everybody agrees that the contribution made to the evolution of this Bill by the Members of the upper House has been very considerable. Who can seriously maintain that that sort of expertise would be available to people on either side of the argument if we had undermined, restructured and, in effect, destroyed the upper House in the way that was so irresponsibly proposed? If this Bill ends up being better when it gets on to the statute book than it was when initially proposed, that will be in large measure due to the improvements made in another place. We therefore have reason to be grateful that the other place is available, and will remain so in the indefinite future, to assist us in the development of controversial and complex legislation such as this Bill.
It is a great pleasure to follow the hon. Member for New Forest East (Dr Lewis), who brought his customary forensic skills to bear in his description of what has happened in relation to the Bill. I entirely accept his point about the resources that we will need to do the job properly.
I have been a member of the Committee since 2005. When we have had the opportunity to discuss oversight with parliamentarians from other parts of the world, they have always expressed envy for our system. I think that our system is now even more enviable. I am proud to be a member of the Committee and think that the changes will result in our being able, resources permitting, to do a better job than we have done so far.
On part 2, as the right hon. and learned Member for North East Fife (Sir Menzies Campbell) said in a customarily elegant and well-judged speech, in the best of worlds nobody would want to support closed material proceedings. He explained very well the particular circumstances in which many of us think they are necessary. I have been struck in particular by how the views of people such as David Anderson QC have changed. He started out by saying that they were not acceptable and that there was no place for them in our legal system. He then had the opportunity to inspect the files of the cases pending and, as a result, he ended up with the same conclusion—in fact, it was almost identical—as the right hon. and learned Gentleman, namely that there is no ideal solution, so we have to make a choice between bad and worse, which is, in effect, what we have done.
I echo what the hon. Member for New Forest East has said. I have sat through much of the debate on this Bill, although some of us were not allowed on the Bill Committee, so I did not have the opportunity to debate it there. Much of the tone and rhetoric of the debate on the Floor of the House on Report and Third Reading would have been entirely appropriate if we had been discussing criminal proceedings, but we are talking about civil proceedings. The problem that we have to come to terms with is that, because the Government are unable to defend themselves in civil proceedings—some of those involved may be of good character, while others may be of doubtful character—they end up spending millions of pounds in compensation that might not be paid in other cases, but certainly would in others.
In conclusion, my hon. Friend the Member for Hammersmith (Mr Slaughter) on the Front Bench talked earlier about his amendment—which I and other right hon. Friends opposed on Monday evening—to, in effect, adopt the Wiley test for fair and open proceedings. He has failed to convince me repeatedly about such a test when the alternative is closed material proceedings. That makes no sense to me whatsoever. The real alternative, as the Minister without Portfolio said in his opening speech, is public interest immunity orders, which would mean that nothing got in front of a court or a judge. That is the choice. This is a better Bill than it was when it came from the other place. If there is no Division, I will support the Bill through my non-vote.
It is fascinating to follow Members’ comments on the internal dynamics of all parties, but I will not comment on them. I am not a fan of closed material proceedings, for reasons that have been expressed. I will not go through all the discussions we have had during the Bill’s previous stages.
The point has been well made that the measure does not apply to criminal cases, but there is a view that it does in some cases. We are still waiting for absolute clarity on whether it applies to cases of liberty and habeas corpus. I am sure that the Minister without Portfolio will be able to give us the latest update on that. The Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), made it clear in Committee that the position has changed somewhat.
Even without that, there are lots of cases where this is already in our law and which I find even more alarming, because they affect people’s liberty much more. We heard on Monday from the hon. Member for Bedford (Richard Fuller) about a Special Immigration Appeals Commission case in his constituency. I remember talking to him about it two years ago, when his constituent was under detention during the period of the case, which was based on closed material proceedings, under legislation introduced by the previous Government. As I understand it, two years on the constituent is still being detained under the same legislation, because of evidence he has not had the chance to see. Whatever we think about a civil case, where money is involved, I hope that everyone here would say that a case involving two years of somebody’s life—curfews and the sort of internal exile that we saw with control orders and, to a lesser extent, terrorism prevention and investigation measures—is more serious. We should not allow ourselves to ignore that.
The Bill has been on a long journey and in that time it has got a lot better. Since the Green Paper, a huge number of changes have been made to what material would be excluded. There was the incredibly important switch from the language of public interest in keeping something quiet to the language of national security, which was definitely a step in the right direction. I do not think that anybody in the House wants to see silenced information that would just be embarrassing to the Government. I am sure that Governments would be quite capable of arguing that public interest includes their not being embarrassed too often.
It is also important that we have excluded inquests. It is right that we say to a family who want to know happened to a loved one that they will definitely know the truth and that they will not be told, “Something happened, but we can’t tell you.” It was a pleasure to follow the right hon. Member for Knowsley (Mr Howarth), but I was surprised that he, along with some of his Labour colleagues and some Conservative support, wished to bring inquests back within the scope of the Bill. I am very pleased that that amendment was not put. Had it been, I hope it would have been defeated thoroughly.
We saw further changes in the Lords. I pay great tribute to the Joint Committee on Human Rights for its sterling efforts. There are interesting questions about how the Government and the Joint Committee might work together more on some of these issues. We have had the slightly unusual case where the Joint Committee made some suggestions, the Government claimed to have satisfied them and the Joint Committee disagreed, but all this happened at a very slow pace. Perhaps there should be some way for the Committee, its Chair or the legal adviser to talk to the Government early on about draft amendments and to say, “Yes, this would achieve what we are trying to do, but with some wording differences”, as opposed to disagreeing fundamentally on whether it achieves the same thing.
As a new member of the Joint Committee, and with the Chairman in his place, I would like to say that we would certainly like a routine system that gives us time to look at the Bill and to report, not just to the Government but to the House, so that we can have a proper debate that does not get curtailed or circumscribed because there is no time to do either those jobs properly.
I agree. That is now firmly on the record.
As a result of the Joint Committee’s work in the Lords, we saw the switch from “must” to “may”, which gave judicial discretion. That was one of the key changes made to the Bill. As a result of our efforts in the Commons, that led to full equality of arms and the reporting and review process, which the Minister agreed to take away and then came up with. It is definitely moving in the right direction, but there is further to go. I have mentioned the clarity on the subject of habeas corpus, but there is still the issue of a renewal process, be it annual renewal or five-yearly renewal, to give the House the chance to say, “Is it doing just what its proponents want it to do, or is it going further, as many of us feared it would?”
There have been several votes on the principle of the Bill, including one in the House of Lords, when my colleagues were joined by a total of two Labour peers and one teller and five others, and lost quite convincingly. It is a shame that amendment 1, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), was not taken on Monday, because it would have given the House the chance to have that vote. I pressed the same principle in Committee. I hope that the Lords will now step up and do more on this. Part 1 is a good step forward; part 2 is not. I hope that in the process of ping-pong we will be able to make further progress, because sadly it seems that it will pass through this House.
Oh, you are asking me to do maths as well. I will be extremely brief.
I have no quarrel with the right hon. and learned Member for North East Fife (Sir Menzies Campbell) in respect of his sincerity, honesty or support for human rights or how he put his case today. I disagree with his final point, but I have no quarrel with the judgment he reached or why he reached it, because I have observed him and his general approach to human rights in the House for a long time. When I say that I do not agree with him, it is not out of anger; it is out of sorrow. I am sure that in the next five minutes he will change his mind and take a different approach, or perhaps he will not.
My hon. Friend the Member for Walsall North (Mr Winnick) put it well when he said that the House has to make decisions on important issues of human rights, liberty, the rule of law and the role of Parliament. Successively over the past 30 years, and even before that, we have enshrined in law on many occasions various forms of secrecy, denials of justice and denials of evidence, and people have been wrongly prosecuted as a result. There is a litany of miscarriages of justice that many Members of this House have been involved in over many years, most of which have centred on withholding evidence, secrecy or, in some cases, confessional evidence.
Since 2001, there has been a significant game change. Draconian anti-terror laws have been introduced in this country and many others. As a result, the most grotesque miscarriages of justice have taken place, including Guantanamo Bay and extraordinary rendition. All the legislation has been enshrined on the basis that we have to protect the security services and prevent what they do from seeing the light of day.
As I understand it, the Government’s position is that they cannot defend cases where there has been British involvement with other security services in the abuse of human rights when the individuals involved seek restitution in the British courts because it would mean identifying where their evidence came from. They have therefore paid out millions of pounds. Instead of admitting that we have been a party to human rights abuses, we are passing legislation to bring a new process into law.
I understand the point made by the hon. Member for Cambridge (Dr Huppert), when he said that the Bill is not as bad as when it started its journey. My hon. Friend the Member for Aberavon (Dr Francis), the Chair of the Joint Committee on Human Rights, has done a lot of good work to improve the Bill, as he has for many other pieces of legislation.
However, I feel that the Bill sends out the wrong message. We should have had a debate and a vote on the removal of part 2 on Monday. It is regrettable that we did not. I am opposed to the Bill because I do not like the secrecy or the protection of those who commit human rights abuses, whether they be in the pay of this state, another state or somebody else. The use of open courts and criminal law where appropriate is far more satisfactory. I therefore register my dissent against the Bill.
I am sorry to intervene late in my hon. Friend’s speech. Not only did we not vote on part 2; we did not even reach the provisions on Norwich Pharmacal. That means that a foreign power can now determine whether a British court can expose wrongdoings that take place under the auspices of that foreign power.
My hon. Friend makes a strong point and it is well put. The relationship with other security services appears to take precedence over rights, independence and justice in this country.
For the reasons I have given and for many others that would take up too much time, I have grave concerns about the Bill. We have a duty as parliamentarians to defend human rights and liberty, and not to cover up injustice and wrongdoing, which this Bill could end up doing.
I want to have a conversation with my good friend, my hon. Friend the Member for New Forest East (Dr Lewis). We all know that the Bill is about civil cases and not criminal cases, but as he well knows, because he has been a litigant, civil cases are very important and can affect a person’s whole life. They should therefore be treated with great seriousness.
We should not approach debates where human rights are involved by saying that the litigants belong to a class of people whom we find reprehensible. It may be that they are reprehensible, but that argument is often used about minorities. It is used at the moment about Islamists and it would have been used about the IRA in the 20th century, the civilian German nationals who were interned in 1940, the Fenians in the 19th century, the French earlier than that, the Jesuits in the 17th century, the Chartists and John Wilkes. So let us not get into the mindset of, “These are unpleasant people.” They also have a right to justice.
We should sometimes imagine how we would feel if we were the litigant. Let us suppose that we felt that something terrible had happened and our rights had been infringed in some way. How would we like a procedure whereby we went to court and halfway through the defence suddenly said, “This is all very secret and we cannot share it with you” and the judge said, “Okay, I’ll adjourn that and listen to the evidence on your behalf Member for New Forest East. You can trust me. I am appointed by the state. Or perhaps we can get some barrister appointed by the state and he can hear it”?
Let us then suppose that a few hours or days later the judge says, “You haven’t heard this evidence against you, but I think your case doesn’t stand up.” What happens when he sums up at the end of the case, as of course in public he cannot adduce all this secret evidence? How would hon. Members feel if they were the litigant? Would they feel that they had received justice? What does it say for our worldwide reputation if serious allegations about torture and so on are made and a large part of the case—and the reason why the litigant did not win his case—is determined on the basis of secret evidence?
We are then told that we are putting our security services at risk. That is nonsense, because the security services are like any other defendant, in that they can choose what evidence to submit to defend themselves. Is it really beyond the wit of man to defend these cases satisfactorily, for the most part? A question of the identity of agents may arise, but nobody is suggesting that the agent has to be brought before the court of law, or to have himself or his practices identified. Surely there are ways in which the case can be defended a lot of the time. I leave that point with my hon. Friend the Member for New Forest East. I know he takes the rights of litigants and human rights seriously, and we are taking a serious step today—
Does my hon. Friend agree that it is a rule of law that if the Government are not able to defend an action and the evidence they are not able to put into court goes to the heart of the case, thus making the case unfair, they have the right to apply to strike the case out? If a case is untriable, the Government are able to strike the case out.
Yes, my hon. and learned Friend is an experienced leading counsel. I would have thought that there are various ways in which this problem could be resolved. The sky will not fall in. Our security services are not going to be put at risk. But there is a principle of natural justice and I think that we should proclaim it.
Question put, That the Bill be now read the Third time.
Bill read the Third time and passed, with amendments.