Question for Short Debate
My purpose in bringing this Question before the House is to try to initiate some long-term thinking on the way in which we supervise our security services, the impact of high technology, the pace of change compared to our legislative process, and, importantly, the freedom and security of the internet.
Let me begin by saying that there is no reason to doubt the importance of the security services to the freedom of the people of this country and their safety. I say that not least because of my memory of my involvement in Northern Ireland in the 1980s. Equally we have to be clear about what we are defending. We are defending freedom and a way of life, which, as we all know in this place, means that we have to have a good system of parliamentary accountability for the security services. I do not take the view that accountability has been totally useless, or whatever some people have alleged, but there is considerable room for change, and we ought to start addressing that in some detail, which is why I want a slightly longer debate than we are able to have in this one hour.
My first point to the Minister, to which I hope he will give some long-term thinking, is the pace of change in technology. It is a crucial problem and has been so for some years. Technology, particularly information technology, moves so fast that the ink is hardly dry on the Acts of Parliament that we pass before they are out of date. We really have to find a new way of dealing with this. There are a number of possible options, but the one I have looked at with some interest—and I know that this has been referred to in discussions about the data communications problem—is a hybrid between a Select Committee and a legislative Committee that looks at the constantly changing technology and how to bring changes into effect in existing legislation. We have a number of ways in which we do this in other areas in the House. The Delegated Powers and Regulatory Reform Committee, which I was on, is one way of doing it; we ought to consider that. This House is very strong on science and technology, and we have here people with a great knowledge of information technology. The suggestion that I make to the Minister—although it is a matter for the House authorities as much as for him, but support from the Government would be helpful—is that he look at whether we could introduce a committee process which would enable a detailed look at the way the rapid change in science and technology affects our legislation, not just on the security services, although clearly that is the most important one in the current context.
The other issue I ought to say in opening is that although I would disagree entirely with Snowden’s release of all this information, which I think was grossly irresponsible, in my humble judgment, if he were put on trial before a jury in this country, he would probably be found not guilty on the basis of a public interest defence. There is probably enough in what he has done that revealed to us things that we did not know about which would give him a good defence in that area. I do not think the Government are necessarily thinking of it, but getting into a battle either with newspapers, Snowden or anybody else on this would likely be a losing battle. It would be far better to address the issue than to deal with it that way. I only wish that Russia and China could have a Snowden as well; actually, it might even the field up a little bit.
I turn now to the internet. Next year, it will be 25 years since the invention of the internet by Sir Tim Berners-Lee. I hope we will find ways of celebrating that because it is, in my judgment, by far the most important way in which the people not just of Britain, but of the world have been able to communicate, and it has been a great engine for freedom. However, what has happened recently has been a gift to some of the more authoritarian countries and some of the more authoritarian organisations which would like to close down the freedom of and access to the internet. One of the things that is most troubling about what has been happening with the security services is this business of interception of the internet services. For example, the Google fibre-optic cable being breached is a matter for concern. One has to ask whether the Prime Minister, any other Minister or the intelligence committee knew that that was about to happen. Was it ever considered by them?
This brings us straight into the third and main point of this debate, which is whether we can improve the way our security services are subject to parliamentary oversight. Much of the comment made outside has been based on an assumption—a wrong assumption—that because the security services, through the Tempora system, have been hoovering up lots of information, all of that information has been read or looked at. It has not been; it is the case that in Britain, you need to have a warrant if you are going to look at the content of these things. What troubles me is that, although you might need a warrant in the UK, you do not necessarily need it overseas. There is a particular problem here in that the communications network between Britain, Australia, New Zealand, Canada and the United States—the so-called “five eyes”—are interchanging information all the time and are using our systems. Therefore, it must be said that, given that the United States is now accepting that it intercepted the phone of Angela Merkel, the Chancellor of a friendly and liberal power, now with a very good constitution—not least because we wrote it—the very least that should have happened is that the British Government should have been aware of it. However, It was probably done with some interaction with GCHQ, even if they did not know about it. In other words, I suspect that the inter-linkage between the National Security Agency of the United States, GCHQ here and the other surveillance organisations in New Zealand, Australia and Canada is not really supervised by any of the parliamentary structures in any of these countries.
We have a very real problem, which is far greater than we have had in the past, about how we carry out effective oversight of security organisations operating on all our parts. The Intelligence and Security Committee is doing very good work, and I greatly welcome the way they have opened up their processes in recent times. I am sure the Minister will want to record that. I still say that it is not enough, and that we should have a long, hard look at the way in which we oversee this international co-operation, because it means we will be involved in some of the things we might say we would not do, like tapping the Chancellor of Germany’s telephone. I do not know whether that was done as the result of the ability of the Tempora programme in GCHQ, but a Minister should have known and should have been able to give a clear reply of, “Yes, we did know that” or, “No, we did not know that”. I suspect that the answer is that we did not; in fact, I am almost sure of it, but it might have been done as a result of that co-operation. That linkage is extremely important, and we cannot ignore it.
There are other areas of this supervision that are critical to us. MI5 and MI6 have been quite good recently at opening up and speaking in public, but I can not say the same about GCHQ. GCHQ needs to be much more open than it has been, with all the difficulties that implies. When I suggested a while ago that GCHQ ought to be much more receptive to visits from parliamentarians, whether of this House or the House of Commons, the answer was, “Well, we are nervous about some MPs or Members of the Lords”. My response to that is, “Well, I am nervous about some of the people who work for GCHQ”, more than one of whom I have met and would have some anxiety about. We cannot address it that way; you have to say that they must be accountable to Parliament and we must be able to have those discussions. As MI5 and MI6 have discovered, you can actually deal with the difficult questions and challenges that you face in a parliamentary system. It is that which makes us stand out above the others and makes us different from some of the other countries that are delighted about what Snowden is doing—but he is not, of course, looking at their own systems, which they would desperately hide from all of us.
I have finished slightly within my time, not least because I hope to give a little more time to others and to extend this debate on other days, but I ask the Minister to take away and look at this business of how we legislate for high-technology change in a slow legislative process.
My Lords, I congratulate the noble Lord, Lord Soley, on securing this debate. I deeply wish that it were not necessary, but in my view, the legal basis under which the security services operate—RIPA—is no longer fit for purpose. I say that as the Peer who had the privilege to chair the Joint Select Committee on the Draft Communications Bill last year, the so-called “Snoopers’ Charter”. We considered the rapidly changing technology, and no area is changing faster than this. I refer the Minister to our conclusion in paragraph 289, where we recommend the super-affirmative procedure.
I pay tribute to all my colleagues in both Houses who have not been properly and publicly thanked for the excellent job they did on that Joint Select Committee. We made a pretty good job. We decimated the draft Bill and came up instead with workable solutions which were unanimously agreed by the whole committee, even though many of us had very different views on the balance between security and privacy. The conclusions we came to in our report were as follows:
“It is the duty of government—any government—to maintain the safety and security of law-abiding citizens, so that they may go about their lives and their business as far as possible in freedom from fear. This is not only in the public interest; it is in the interest of law-abiding members of the public. For this the law enforcement authorities must be given the tools they need. Reasonable access to some communications data is undoubtedly one of those tools. But the Government also have a duty to respect the right of citizens to privacy, and their ability to go about their lawful activities, including their communications, without avoidable intrusions on their privacy”.
We went on to say:
“Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft Bill is too sweeping, and goes further than it need or should”.
Those were the conclusions we came to last year in the light of what we knew then. Although Prism and Tempora were at the centre of what we were being asked to look at, we were deliberately kept in the dark about them. It is my personal view that the draft Bill was clearly an attempt to legitimise what the security services were doing already. Of course, they may be talking publicly about it, but they refuse to come to Parliament to tell us about the Bill they were demanding that we pass. This situation cannot be allowed to continue. We need a wide-ranging debate about the balance that we described in our conclusions. We said that they should have reasonable access to some communications, not uncontrolled access to anything they liked or beyond what Parliament intended. This is the key point: whether the security services were technically operating under some part of RIPA is irrelevant. What is wrong, as we have discovered over the past few months, is that they were doing things way beyond the imagination of Parliament and which we did not know about. I have no brief for the Guardian and its general, Polly Toynbee, bleating for someone else’s money to be spent on its favourite causes, but in my opinion the newspaper has done a service by revealing the reach and the extent of what was being done in our name.
I detest traitors who reveal secrets which endanger national security, but there is a greater threat to our freedom when powerful agencies of the state feel that Parliament must be kept in the dark about the parameters under which they operate. I say “parameters” because we do not need to know, nor should we know, the operational techniques and methodology of the security services, but we should have known that they had the Prism and Tempora capability and were using it under rules agreed by Parliament.
In the early 1980s, I sat in a trench in Germany and asked my commanding officer, “What is my mission, Sir?”. “Your mission, Maclean”, he said, “like the rest of us, is to try to hold them back for 48 hours to give the politicians time to nuke ‘em”. In those days, breaching national security could have resulted in the complete nuclear annihilation and destruction of the western world, and that was what traitors like Burgess, Philby and the other Maclean were doing. It is preposterous for senior figures now to suggest that Snowden is in the same league as those traitors. He is not, and that should be obvious. There is also a need for a debate about what is national security now. Clearly a dirty nuclear bomb in central London which renders the capital unusable and uninhabitable for 50 years is a mega threat to national security. However— and I choose my words very carefully so that I am not misunderstood—much as a terrorist bomb that kills 100 people is an abominable evil and we should try to stop it, is it a threat to national security in the same way as nuclear annihilation in the 1980s? Is it a threat that requires the communications of 56 million law-abiding people to be collected in case there is an evil terrorist among them? I do not know, but I do know that this Parliament—your Lordships’ House and the other place—must debate it and collectively strike the balance between reasonable access on the one hand and privacy on the other. We must have replacement legislation for RIPA along the lines recommended by my committee, with proper checks and balances on the security services. We need that debate, it must be wide-ranging, and we need it soon.
My Lords, I have had the good fortune of working with our intelligence agencies as Secretary of State for Defence, Minister for the Armed Forces, Home Secretary with responsibilities for counterterrorism and Secretary of State for Northern Ireland. I have to say right at the beginning that I know at first hand the good that the security services do and about the lives they have saved. Those are not the hundreds that the noble Lord just referred to, but in one case it was thousands. Overall, it has been many, many thousands of lives in this country. I know also that much of the good that they do is never recognised precisely because it is their job to prevent evil happening. I want to put that on the record right away.
Let us start with the obvious. It is right and fitting in a democracy that all the agencies of the state are accountable to and overseen in an appropriate fashion by the elected representatives of the public. The intelligence agencies are a special case since inevitably much of the work they have to do must be carried out in secret. That does not mean that they are unaccountable. Indeed, over the decades we have constructed an elaborate degree and system of oversight. Their work is carried out in accordance with a strict legal and policy framework which ensures that their activities are authorised, necessary and proportionate—I will come back to this. At the heart of the framework are two Acts of Parliament, not only the Regulation of Investigatory Powers Act 2000, which was mentioned by the noble Lord, but also the Intelligence Services Act 1994.
A rigorous system of oversight of the activities of intelligence services is already in place, incorporating warranty oversight by Secretaries of State, detailed review by the Interception of Communications Commissioner and the Intelligence Services Commissioner, and scrutiny by the Intelligence and Security Committee. Today, the fundamentals of this system of oversight have been added to by the interviewing of all three heads of the intelligence services in public and on television. That is an extension that is happening even as we speak. The fundamentals of the system of oversight and accountability have not changed, and indeed we have been assured of this by the Foreign Secretary himself.
What is the present controversy all about? If the fundamentals and the objectives of the intelligence services have not changed, what is it that has changed? It is the world that has changed, and it has done so exponentially. That is not least in terms of electronic communications, as referred to by my noble friend Lord Soley. Cyberspace is now an environment that permeates everything we do. It is an environment that offers great opportunities for information, communication, personal empowerment and advances for good, but it is also an environment that offers equally great opportunities for the bad: for, among others, international crime, terrorism, paedophiles and hate crimes. These, and others intent on malevolent action, no longer communicate directly using a simple telephone line from A to B. Put simply, they now communicate across the world by voice over ISP, the internet, by e-mail, by text or by concealment on web pages. That is what has changed, and crucially, all of these traverse the globe. They are transnational, not even international. All those whose activities are of malevolent intent use these electronic means.
I can tell noble Lords that when I was Home Secretary I looked at a number of plots, on some occasions between 40 and 60. Not one was confined to this country alone. All of them involved communication between people in at least two countries, while a major one involved people in 20 countries. That is the nature of the world in which we now live. The job of the intelligence agencies has thus been made infinitely harder in maintaining surveillance. I can tell the House that Sir Iain Lobban has only just told today’s hearing that we have to, “anticipate, discover, analyse, investigate and respond, and we have to do that globally”. That is him speaking for GCHQ. How can I tell noble Lords that? It is because I have an iPad which communicates to me in real time via the BBC what is being said in another place and communicates that simultaneously around the world. That is the world we are now living in and which our intelligence agencies have to cope with. They are faced with an infinitely greater task than ever. They are still looking for needles in a haystack, but the haystack is now global; it is huge in size.
We have been assured by the Minister that the nature of the surveillance and the fundamental principles underlying it have not have changed, and therefore in order to discover who is communicating with whom, the security services have to operate under RIPA, and in order to look at any content, they must have a warrant from a Home Secretary; that has not changed. So it is incumbent upon us to recognise that while information should not be kept unnecessarily out of the public domain, a balance must be struck. In order to safeguard sensitive methods and sources and to ensure that the secret intelligence agencies stay secret, some of that oversight must take place behind closed doors.
The intelligence agencies need oversight and scrutiny, but they need to operate in the real world as it exists today. We may not have caught up with this real world, but this can be no excuse for them because, ultimately, the lives of our fellow citizens depend on the intelligence agencies catching up with the real world, and as I said, thousands of lives have been saved. So they require scrutiny and supervision, but they also need our understanding and support in the vital work they do for this country.
My Lords, I thank the noble Lord, Lord Soley, for initiating this important debate. Let me start with two tributes. First, I pay tribute to our security services which do an excellent job of keeping us safe. My second tribute goes jointly to the American whistleblower Edward Snowden and to the Guardian, which has published his astonishing revelations. Both have been brave and highly responsible—all but one of the Guardian articles was approved in advance by the Government—and were it not for them, we and the rest of the world would still be in the dark about what the NSA and GCHQ are up to.
This scandal, for that is what it is, is not the fault of GCHQ, which naturally will grab all the tools it can until it is stopped. The blame falls on those in this country and in America who should have been watching over the spies. In the UK, I am talking about the Cabinet in this Government and the previous Government, the National Security Council and the Intelligence and Security Committee. These bodies are supposed to oversee the security services. It is their job to ensure that the British people are not only safe but that their privacy is protected and that intrusions into our private lives are proportionate and justified. In the case of GCHQ’s Project Tempora, they have all failed miserably.
The only way such highly intrusive powers can be granted in a democracy is with the informed consent of the people, via Parliament. Parliament was certainly not informed about Tempora, nor has it given its consent. We parliamentarians knew nothing about the way GCHQ was helping itself to the private data of every citizen until the Guardian exposed it. The Cabinet, the NSC and the ISC have all been asleep at the wheel while GCHQ ran out of control.
The ISC, which has the most intimate access to the security services and should have known what was going on, lacks resources and the skills needed to understand the technologies being used. It has clearly failed to ask the awkward questions it should have been asking. The ISC must be unfit for purpose, even in its recently modified guise, and there are questions about its independence. Parliament should not have had to rely on a whistleblower to reveal Tempora’s massive abuse of power.
Furthermore, the Home Office has deliberately ensured that Parliament is kept in the dark. Last year, I sat on the Select Committee on the draft Communications Data Bill, under the very able chairmanship of my noble friend Lord Blencathra, and listened to Home Office officials repeatedly justify the Bill by adamantly asserting that there was a 25% shortfall in the communications they could collect and that this gap was hampering the fight against terrorism. At no time did they disclose, not even in the two private sessions, that for years GCHQ has been collecting far more data than that Bill would have given it and that there is no shortfall. That deliberate deception of Parliament is an affront to democracy, and those officials should be seriously considering their positions.
So what needs to happen now? First, there needs to be a vigorous public debate about what we are prepared to allow our security services to do and the boundaries of their reach into our private lives. I hope that the outcome would be permission for intrusive and up-to-date powers of interception for the police and security services where there are convincing grounds for suspicion of serious crime. Equally there needs to be a strong prohibition of mass untargeted surveillance of ordinary, innocent citizens. There will be a need for new legislation to replace RIPA, which was full of deliberate loopholes when it was written and is now hopelessly out of date. There needs to be very strong and sceptical oversight which reports directly to Parliament and has the necessary resources and skills and real teeth. Most of all, we need a sea change in the Government’s approach to the trade-off between liberty and control.
The Snowden cat is out of the bag. He has 58,000 secret documents, and so far the Guardian has published excerpts from just 17 of them. There must be much more to come. It will no longer do for the Government to sit Canute-like on the beach while a tsunami of further revelations engulfs their old policy of sticking their fingers in their ears and muttering that they do not discuss security matters. They must stop trying to shoot the messenger by attacking the Guardian. They must also stop pretending that Britain has the best oversight of its security services in the world when that oversight has spectacularly failed to spot and prevent intrusive surveillance of every citizen without Parliament’s knowledge and consent.
Our Government must now engage in the public debate about what spying the people will or will not tolerate—a debate that has been happening for some time in America, from the President down, and also in France and Germany. The status quo is no longer an option. It is time for the Government to engage fully in the debate.
My Lords, I, too, congratulate my noble friend Lord Soley on obtaining this debate. Like him and my noble friend Lord Reid of Cardowan, I admire the work of the intelligence and security services. They have averted substantial terrorist threats and, unlike the noble Lord, Lord Blencathra, I think that is of national interest. I also understand and agree with what my noble friends Lord Reid and Lord Soley said about the challenges of new technology. However, I will follow what the noble Lord, Lord Strasburger, has just. Some recent reports have shown the inadequacy of the scrutiny of those services by the Intelligence and Security Committee as currently comprised. That is what I want to concentrate on in my few remarks today.
I am not surprised, frankly, at what has happened. For four years, I served as the only representative of this House on the nine-person committee and experienced some of the difficulties of scrutinising the intelligence and security services. I had some radical ideas and some changes to propose and managed, along with others, to persuade the Government to increase the number of committee members from this House to two. I was surprised, although maybe I should not have been, that I was summarily removed from the committee by the coalition. What was even more disturbing was that no Labour Peer was appointed by the Prime Minister in my place—no Labour Peer served on that committee. I have great admiration for the many qualities of the two Peers appointed. However, I doubt if my old friend, the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler, a former head of the Civil Service, have at the top of the list of their qualities a reputation for radical and challenging questioning. In fact, two more stalwart pillars of the establishment would be very hard to find.
The ISC is, as I understand it, being reconstituted and is to become a joint parliamentary committee rather than a committee appointed by the Prime Minister. However, I must say, with respect to the Minister, that the secrecy surrounding the way in which this committee is to be constituted would do MI6 proud. It is not the open procedure that Parliament ought to have. Can the Minister, in replying, clarify exactly what the composition of the committee will be, how it will be appointed and how it will operate? My view is that, like any other Joint Committee, the House of Lords should have roughly half of the members, especially as we are going to be bearing half of the cost. I suggest that the size of the committee might be increased to 11 members, with five from the Lords and six from the Commons. The latter would include the chair, who should be a member of the opposition party, like the chair of the Public Accounts Committee, to give the committee greater credibility. I have great respect for the current chair, Sir Malcolm Rifkind—I have known him for 50 years, since he was young man—but, to be honest, it does not instil confidence among the public and in Parliament that the committee will undertake radical and effective scrutiny when you have someone in the chair who has so recently been Foreign Secretary and had those kind of responsibilities himself.
In order to ensure that the committee is seen as effective and impartial, the members of the committee need to be chosen by as democratic a procedure as we can possibly devise. We are not the most democratic House, but at least we can try to work on some kind of democratic procedure so that the members are accountable to both Houses. I am asking the Minister to cover this in his reply, but suggest that if we had five Peers, two might be chosen by the Labour group, two by the government parties and one by the Cross-Benchers. They would have an opportunity to report back to the groups on what is happening and what their experience has been. Of course, it is up to the Commons to decide how its members are chosen, but I hope there would be some degree of accountability.
Further changes are of course needed in the operation of the committee. For example, when I was on the committee, we had no staff to carry out investigations. We were not allowed to appoint staff to go into the departments and carry out investigations on our behalf. Previously, the committee had an investigations officer, but that was stopped by the Government because, no doubt, he was investigating too much. The committee needs some capacity in that respect.
The changes in membership should be made first. For the committee to have some credibility, it needs to have some accountability. I hope that the Minister will give noble Lords a clear indication in his reply that there are going to be changes in the constitution, composition and operation of the Intelligence and Security Committee. If we do not get those kinds of assurances, some in the media and among the public will continue to take that view that somehow, in some ways, the Government have got something to hide.
My Lords, I join other noble Lords in thanking my noble friend Lord Soley most warmly for having had the courage to initiate this debate. If anything has been established in the very important deliberations so far in this debate, it is that there is a need for a proper, full debate, and a much wider public debate, about the issues at stake. If nothing else, my noble friend is to be congratulated on that.
I should say at the outset that I have, of course, been a Defence Minister and a Foreign Office Minister. I was a Defence Minister in the days when we had service Ministers, and I was very proud to be Minister for the Navy. As such, I was regularly briefed by the head of intelligence in the Navy, who was a very enjoyable admiral, so it was a good conversation. I shall always savour the day on which he came to see me with his briefings and said, “Minister, I think I ought to let you know that the head of the Russian Navy is describing you as Cold War Warrior Judd”. I am not sure that that would be immediately recognised by all my colleagues and the rest, but I will always savour that occasion.
I grew up in a non-conformist Christian family, and one of the realities of growing up in that kind of culture was that from a very young age I was encouraged to realise that, whatever I might do with my life, God knew everything. My theological thinking has rather moved forwards since those days, but I do not think that at any point in my evolution have I seen GCHQ or the NSA as God. That is the point. God was there as a moral balance in life. He was your conscience. There is immense power in the hands of these authorities now, but no one—including, I believe, most of those working in them—would begin to believe that they are the moral authority of the world; they are there to preserve security.
I have been convinced for a long time that if you make a hard analysis of the threats that face us as a nation, the combination of terrorism, the fact that small numbers of people can do terrible things and the increasing accessibility of the material for mass destruction is a nightmare. One only has to think of the whole business of germ warfare, crude nuclear weapons and the rest to imagine what could happen. If I have one comment for the noble Lord, Lord Blencathra, after his very powerful speech, it is that I am not quite sure how he comes to his conclusion in the equation he put before us, because I do not think that it is just a matter of more localised, small incidents or nuclear war. I think that there is a whole gradation in between and that the real dangers lie in that area. That is why intelligence is indispensable. For a long time, I have felt that our security lies very much in the realm of intelligence and in ensuring that it is properly staffed and properly resourced.
Therefore, going back to my point about God, if I may, it is all the more important that everyone can be certain that in the leadership of the intelligence agencies there are people committed, second to none, to the principles of liberal democracy and freedom that they are defending. It is important that that commitment and understanding permeates the whole organisation and that the internalised culture is that what it is doing is defending freedom, democracy and a decent society. That is a terribly easy thing to say but a terribly difficult thing to achieve.
I believe that we need to look very hard at the criteria for selection in the intelligence services, the training and the leadership at all levels. Otherwise, the excitement, the intoxication and the challenges of the task could become dominant; there is also the danger of counterproductivity.
I emphasise that, like others who have spoken, I believe this country owes a tremendous tribute to the courage and dedication of the overwhelming majority of people working in the security services and what they do on our behalf. I believe, therefore, that it is our duty not only to scrutinise, which we are doing today, but to stand firmly by those who have this concept of responsibility and of what they really are there to do. We must deal very severely with those who abuse that task or who indulge in things that I believe could ultimately be described as treason. Extremists work best when there is a culture of sympathy. We must never allow things to happen which accentuate that culture and which introduce more doubt among thinking people, thus opening up the opportunity for extremists to recruit and to strengthen their cause, and I am afraid that we are in danger of that happening.
My Lords, I add my thanks to my noble friend Lord Soley for securing this debate. It is timely as today, as my noble friend Lord Reid of Cardowan has graphically pointed out, is the first public hearing for the Intelligence and Security Committee in front of the cameras with the intelligence chiefs. Of course, it is timely also because of the recent spate of stories in our national press about some alleged activities of our intelligence services that has raised the issue of oversight and the effectiveness or otherwise of current legislation.
There have already been significant changes in legislation over the past year or so relating to the Intelligence and Security Committee. These have led to the committee reporting not to the Prime Minister of the day but to Parliament, which also now has the final word on who will be the members of the committee, and to the committee in future choosing its own chairman from among its own members rather than that being a decision for the Prime Minister.
The Justice and Security Act 2013 now requires the intelligence agencies to respond to requests from the committee for information and to provide the information that it is seeking. Previously, the agencies could decline to give the information requested. Included in the information that now has to be provided if sought is that regarding nationally significant operations. The committee is also now in a position, which it was not before, to send its staff into GCHQ, MI5 and MI6 to look at papers and files that relate to an investigation that it is undertaking, and it is for the committee and the staff concerned to decide what it is they want to see. Those are significant recent changes as far as the powers of the ISC are concerned.
In addition, we have the two commissioners, the Intelligence Services Commissioner and the Interception of Communications Commissioner, with responsibilities for overseeing the performance of the agencies, including GCHQ, under Parts 2 and 3, and under Part 1 of the Regulation of Investigatory Powers Act respectively.
My noble friend Lord Soley referred to the advances in technology and the way in which the speed of technological innovation can quickly overtake Acts of Parliament set up to define the limits of surveillance. As I understand it, the Intelligence and Security Committee intends to conduct an investigation into whether the Human Rights Act, the Regulation of Investigatory Powers Act and the Intelligence Services Act, and the interaction between them and the policies and procedures that underpin them, remain relevant with regard to the balance between security, liberty and privacy, given the significant advances in technology over the past few years.
An investigation of that nature is important, and we also need to be sure that the oversight arrangements are operating effectively, and are such—and remain such—as to inspire public confidence that what our intelligence and security services are doing is what they should be doing and are authorised to be doing, and is proportionate, not what they may have the capability of doing, which is something else. Co-operation is vital in the field of intelligence gathering, not least in the sharing of information with friendly countries and allies. Any activity that calls into question that trust could have serious security implications.
At a political level the intelligence agencies are ultimately responsible to the Prime Minister, but on a day-to-day basis it is Secretaries of State who are expected to balance national security considerations against the need to protect against an intrusion on individuals’ right to privacy. In the House of Commons on 10 June this year, the Foreign Secretary said that ministerial oversight and independent scrutiny was there as well as the scrutiny of the Intelligence and Security Committee, and that,
“the idea that operations are carried out without ministerial oversight, somehow getting around UK law, is mistaken”.—[Official Report, Commons, 10/6/13; col. 37.]
Opening e-mails or tapping a phone requires a warrant in the United Kingdom, and effective legislation and oversight arrangements should ensure that that is what happens. However, in the light of the Foreign Secretary’s statement that the idea that operations are carried out without ministerial oversight is mistaken, will the Minister confirm that that statement also covered any operations that may be conducted by or with the knowledge of our agencies outside the UK, whether in relation to United Kingdom bodies or citizens or to bodies or citizens of other countries?
We all recognise the importance of the work that our intelligence and security services undertake in protecting us against criminal and terrorist activity, international cyberattack and international global terrorism, and in ensuring our national security. We also recognise the reality that nearly all operations that have foiled a terrorist plot in this country in recent years have been dependent on information from communications data. I suspect that we will never fully appreciate or understand the debt we owe to our intelligence and security services since, for obvious reasons, the detail about what they do and how they do it cannot be in the full public domain.
It was Sir David Omand, a former head of GCHQ, who said that democratic legitimacy demanded that where new methods of intelligence gathering and use were to be introduced, they should be on a firm legal basis and rest on parliamentary and public understanding of what is involved, even though the operational details of the sources and method used would normally need to remain secret.
A number of issues and concerns have been raised in the debate, not least by my noble friend Lord Soley, who also made some proposals for change. I very much hope that the Minister will go as far as he feels he can in responding to them.
My Lords, I join other noble Lords in thanking the noble Lord, Lord Soley, for presenting this topic for debate, and I am grateful to all noble Lords who spoke so eloquently in this debate. I think that noble Lords will understand that, in line with the practice of successive Governments, I shall not comment on specific issues relating to the work of the intelligence agencies. I shall focus on the breadth and depth of supervision of the UK’s intelligence agencies, and the fact that they are second to none and—given recent reforms extending parliamentary oversight, of which this House is very much aware—fit for purpose.
Secret intelligence helps protect national security, tackle terrorists and stop criminals. But this does not mean the activities of the intelligence services go unchecked. Successive Governments have rightly introduced measures to ensure that the use of intrusive powers needed to obtain intelligence are governed by a strict legal and policy framework compatible with the Human Rights Act. This ensures that intelligence activities are authorised, necessary and proportionate, and provides robust statutory oversight.
Oversight starts within the intelligence agencies themselves, which enforce rigorous internal controls. Their recruitment and training procedures are designed to ensure that those operating within them can be trusted to do so lawfully and ethically. A culture of compliance with the letter and spirit of the law pervades everything they do. Noble Lords have rightly paid tribute to the work of those in the intelligence agencies. In their most recent reports, both the Intelligence Services Commissioner and the Interception of Communications Commissioner commended the integrity and professionalism of the agencies’ staff.
In addition, of course, Secretaries of State are accountable to Parliament and the public for the agencies’ actions. They take decisions on whether to authorise the use of intrusive powers by the intelligence agencies. Senior members of the judiciary are appointed as Interception of Communications and Intelligence Services Commissioners to oversee the process of authorisation of intelligence activity, which includes reviewing the decisions of Secretaries of State and reporting to the Prime Minister on their work.
Several honourable Members in the other place recently urged the commissioners to play a more visible role. I agree. Oversight must be seen to be effective. That is why, as noble Lords mentioned—indeed, the noble Lord, Lord Reid of Cardowan, gave us an up-to-date briefing on what was going on down the other end—the Intelligence and Security Committee is, for the first time, holding an open evidence session with the three heads of the intelligence agencies. It is because of this landmark occasion that the noble Lord, Lord Butler of Brockwell, as a member of the ISC, told me that, contrary to his wish, he would not be able to participate in today’s debate. However, we should remember that so much of the commissioners’ work—and, of course, that of the ISC—involves extremely sensitive information and that there will be limits to what they can responsibly report on publicly.
Separately, the Intelligence and Security Committee examines the policy, administration, past operations and expenditure of the intelligence agencies. Noble Lords will remember that earlier this year the Justice and Security Act significantly reformed and strengthened the committee’s powers. As a result of that Act the intelligence agencies are more accountable to Parliament and no longer have the ability to withhold information from the ISC. The new ISC has a broader remit, extra powers to consider past operational activity, and twice the resources. Those reforms were not conjured from thin air but followed public consultation on the best way to modernise judicial, independent and parliamentary scrutiny of the intelligence agencies, while allowing them to get on with keeping us safe.
The noble Lord, Lord Foulkes of Cumnock, asked what the composition of the ISC will be and how it will be brought together. I can say that with the new appointments process, although the PM nominates the members after consultation with the Leader of the Opposition, Parliament will appoint the ISC. The reforms in the Justice and Security Act mean that the ISC will itself select its chair. Should the committee wish to nominate a member of the Opposition as the chair, it will be free to do so. I hope that that will reassure the noble Lord.
I am grateful to the Minister for that. However, can he clear up the point I raised about the balance of membership between the two Houses? As I understand it, we are being required to provide 50% of the running costs. We are also used to Joint Committees of both Houses having roughly equal membership. Can he assure us that that will be the case with this committee?
If I sought to reassure the noble Lord, I might make a mistake. However, I will check that out and write to him. The noble Lord makes a very good point as a loyal Member of this House, and I hope that I will be able to give him a positive answer.
We have to give these new arrangements time to bed down and to prove their effectiveness. I am certain that the committee will succeed in giving Parliament and the public confidence that the Executive and the agencies are properly held to account. As the noble Lord, Lord Soley, said, the whole business of keeping legislation up to date is a matter for the House authorities, and he made an interesting suggestion about how we can keep pace with technical change. However, that is a matter not only for the Government but for the House authorities as well.
Supervision does not stop with the ISC. The courts provide an independent avenue for anyone who wishes to complain about intelligence activity. Anyone who feels that they have been subject to improper use of intrusive powers by the intelligence agencies can complain to the Investigatory Powers Tribunal, which provides independent judicial oversight. If it decides that legislation has been breached or human rights infringed, it can quash warrants, order the destruction of records and award financial compensation.
One need only look at the range of activity this year alone to see that the system works. The ISC has published reports on foreign involvement in UK critical national infrastructure, communications data, and GCHQ’s alleged activity in relation to PRISM. It is now reviewing the tragic killing in Woolwich in May and will begin another review next year into intelligence legislation, which may assist with the point made by the noble Lord, Lord Soley. The Interception Commissioner is investigating reports related to interception following the Snowden leaks. A judicial review of the police’s decision to stop David Miranda in August is currently being heard by the courts, and the independent reviewer of terrorism legislation—David Anderson QC—will then report on the police’s use of terrorism powers in that case.
The Investigatory Powers Tribunal is considering several cases arising from the Snowden leaks that have been brought by parties including Liberty and Privacy International. If these investigations and legal cases lead to criticisms, recommendations for change, or adverse judgments, the Government will listen, reflect and respond. This is how effective oversight works, and this is how we can best ensure that Parliament and the public can have confidence in the work of intelligence agencies while protecting the secrets that need to remain secret.
I will now comment on some of the points made by noble Lords in the course of the debate. I welcomed all the contributions, which were good. I do not necessarily share the views of my noble friend Lord Blencathra on the proportionality of different levels of terrorism. I thank the pre-legislative Joint Committee on the draft Communications Data Bill, which did Parliament great justice in its scrutiny. The ISC undertook similar scrutiny of that Bill; it took evidence from the intelligence agencies and was briefed on GCHQ capabilities in this area. From its informed position, it considered there was still a communications gap requiring legislation. The noble Lord, Lord Reid of Cardowan, paid right and proper tribute—
I do not think that there is a blockage, but I think it is sensible that we reflect on the two committees’ contributions to the legislation. No doubt the Government will bring forward legislation in due course to cover the gap that was detected in our ability to handle modern communications.
I am grateful, but given that a gap has been identified, that means there is a gap in counterterrorism, surveillance and national security. Can the Minister explain why it is taking so long to reflect on that, when so much work has already been done? Will he comment on the suggestion that the blockage is actually the Deputy Prime Minister?
I think that the noble Lord is being a little mischievous on this particular issue. Heaven forfend that he should be so. He knows the background against which the issue is being debated. All I can say is that the challenge to be effective in the real world, and maintain a proper balance, is what the Government are seeking to do. That is why we are so supportive of having proper scrutiny of the security services. I have been interrupted. I hope noble Lords will forgive me, but I must rush because otherwise I will run out of time.
I reassure my noble friend Lord Strasburger that the ISC has very much increased resources, and is now responsible not just to the Prime Minister but to Parliament itself. The communications data gap relates to what is happening in the UK. GCHQ is a foreign intelligence-gathering agency, and this is its core mission. The Communications Data Bill focused on the communications gap in this country.
The noble Lord, Lord Judd, made one of his usual passionate contributions. I noted his call for a longer debate on these issues. I would welcome this. However, the shortage of time has not inhibited noble Lords in the expressiveness of their contributions.
I thank the noble Lord, Lord Rosser, for his contribution. It is not technical capacity that governs intelligence gathering but the need for intelligence. I cannot comment on the Foreign Secretary’s statement applying to overseas activities, but all of GCHQ’s work is carried out in accordance with a strict legal and policy framework which ensures that its activities are legal, necessary, proportionate and targeted. I hope that we can say that of all the activity that is done in our name by these important parts of our national security apparatus.