2 pm

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

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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.

Steve Baker: 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.

Mr Clarke: 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

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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.

Steve Baker: 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.

Schedule 1

The Intelligence and Security Committee of Parliament

James Brokenshire: I beg to move amendment 56, in schedule 1, page 16, line 31, leave out ‘(6)’ and insert ‘(5)’.

Mr Deputy Speaker (Mr Nigel Evans): 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—

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‘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.

James Brokenshire: 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

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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

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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.

2.15 pm

Dr Julian Lewis: 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.

James Brokenshire: 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.

Hazel Blears: 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

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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.

James Brokenshire: 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.

Sir Menzies Campbell: 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?

James Brokenshire: 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).

Mark Field (Cities of London and Westminster) (Con): 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.

James Brokenshire: 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

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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.

Sir Menzies Campbell: 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.

James Brokenshire: 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

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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

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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.

2.30 pm

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.

Dr Julian Lewis: 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?

James Brokenshire: 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.

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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.

Sir Menzies Campbell: 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.

James Brokenshire: 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.

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Hazel Blears: 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?

James Brokenshire: 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.

Mr George Howarth: 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.

James Brokenshire: 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”

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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.

Mark Field: 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.

James Brokenshire: 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.

2.45 pm

Paul Murphy rose

Hazel Blears rose

James Brokenshire: I will give way to the right hon. Gentleman and the right hon. Lady, but then, because of time considerations, I should let other right hon. and hon. Members contribute.

Paul Murphy: I am grateful. Does the Minister not accept that the word “voluntarily” goes against the spirit of the Bill and the spirit of the memorandum? Perhaps he should reflect a bit further on it.

James Brokenshire: I take note of that point, but let me take the right hon. Lady’s intervention before I respond. She is likely to make a similar point, so I might as well take the two together.

Hazel Blears: 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

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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.

James Brokenshire: 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.

Paul Goggins (Wythenshawe and Sale East) (Lab) rose

James Brokenshire: I am conscious of how long I have already spoken for, but I will give way one last time.

Paul Goggins: 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.

James Brokenshire: 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.

Diana Johnson: 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

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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.

Sir Alan Beith (Berwick-upon-Tweed) (LD): The so-called Osmotherly rules were devised by the Executive but were never accepted in any form by Parliament, and were not considered by Parliament’s Committees to have any binding force.

Diana Johnson: 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.

Sir Alan Beith: The ISC has, on occasion, sought permission from Ministers in a previous Administration to obtain access to material, and indeed has been given it, only to find that current Ministers decline to give permission on other grounds.

Diana Johnson: 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.

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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.

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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.

Caroline Lucas (Brighton, Pavilion) (Green): Would the effect of amendment 76 be that if, for example, the ISC uncovered evidence of collusion in torture, that evidence could not be used in a court case?

Diana Johnson: 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?

3 pm

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

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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.

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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.

Several hon. Members rose

Mr Deputy Speaker (Mr Nigel Evans): 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.


Dr Julian Lewis: 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.

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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.


Caroline Lucas: 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

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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.

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3.15 pm

Mr George Howarth: 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?

Caroline Lucas: 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.

Dr Julian Lewis: 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.

Caroline Lucas: In the interests of time, I will leave the matter there and pursue it via other avenues. I am grateful for the opportunity to have aired this really important case.

Sir Menzies Campbell: 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

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staff and resources would permit. Moreover, there is no indication of how the powers would be exercised or how they could ever be implemented.

Sir Alan Beith: 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

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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.

James Brokenshire: 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.

Caroline Lucas: 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?

James Brokenshire: 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

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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.

3.30 pm

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.

7 Mar 2013 : Column 1206

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.)

7 Mar 2013 : Column 1207

Clause 2

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.

The House divided:

Ayes 166, Noes 249.

Division No. 176]

[

3.34 pm

AYES

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Ali, Rushanara

Allen, Mr Graham

Bailey, Mr Adrian

Bain, Mr William

Banks, Gordon

Barron, rh Mr Kevin

Bayley, Hugh

Beckett, rh Margaret

Begg, Dame Anne

Benn, rh Hilary

Benton, Mr Joe

Betts, Mr Clive

Blears, rh Hazel

Blenkinsop, Tom

Blomfield, Paul

Brennan, Kevin

Brown, rh Mr Nicholas

Brown, Mr Russell

Buck, Ms Karen

Campbell, Mr Alan

Campbell, Mr Ronnie

Caton, Martin

Champion, Sarah

Clark, Katy

Clwyd, rh Ann

Coaker, Vernon

Coffey, Ann

Connarty, Michael

Cooper, rh Yvette

Corbyn, Jeremy

Creasy, Stella

Cruddas, Jon

Cunningham, Alex

Cunningham, Mr Jim

David, Wayne

Davidson, Mr Ian

Davies, Geraint

Dobbin, Jim

Dobson, rh Frank

Docherty, Thomas

Doran, Mr Frank

Doughty, Stephen

Dowd, Jim

Doyle, Gemma

Dromey, Jack

Eagle, Ms Angela

Edwards, Jonathan

Efford, Clive

Elliott, Julie

Ellman, Mrs Louise

Engel, Natascha

Esterson, Bill

Evans, Chris

Field, rh Mr Frank

Fitzpatrick, Jim

Flello, Robert

Francis, Dr Hywel

Gapes, Mike

Gardiner, Barry

Gilmore, Sheila

Glindon, Mrs Mary

Godsiff, Mr Roger

Goodman, Helen

Greatrex, Tom

Green, Kate

Griffith, Nia

Gwynne, Andrew

Hamilton, Mr David

Hanson, rh Mr David

Harman, rh Ms Harriet

Harris, Mr Tom

Havard, Mr Dai

Healey, rh John

Hendrick, Mark

Hepburn, Mr Stephen

Hillier, Meg

Hodgson, Mrs Sharon

Hoey, Kate

Hopkins, Kelvin

Howarth, rh Mr George

Hunt, Tristram

Irranca-Davies, Huw

James, Mrs Siân C.

Jarvis, Dan

Johnson, Diana

Jones, Graham

Jones, Mr Kevan

Jones, Susan Elan

Kaufman, rh Sir Gerald

Keeley, Barbara

Lavery, Ian

Lazarowicz, Mark

Lewis, Mr Ivan

Llwyd, rh Mr Elfyn

Love, Mr Andrew

Lucas, Caroline

Lucas, Ian

Mactaggart, Fiona

Mahmood, Shabana

Malhotra, Seema

Mann, John

McCarthy, Kerry

McClymont, Gregg

McFadden, rh Mr Pat

McGovern, Alison

McKenzie, Mr Iain

Meacher, rh Mr Michael

Meale, Sir Alan

Miller, Andrew

Morrice, Graeme

(Livingston)

Mudie, Mr George

Munn, Meg

Murphy, rh Paul

Murray, Ian

Nandy, Lisa

Nash, Pamela

Onwurah, Chi

Osborne, Sandra

Pearce, Teresa

Perkins, Toby

Phillipson, Bridget

Powell, Lucy

Qureshi, Yasmin

Raynsford, rh Mr Nick

Reed, Steve

Reynolds, Emma

Riordan, Mrs Linda

Robertson, John

Rotheram, Steve

Roy, Mr Frank

Roy, Lindsay

Ruddock, rh Dame Joan

Sawford, Andy

Seabeck, Alison

Sharma, Mr Virendra

Sheerman, Mr Barry

Shuker, Gavin

Skinner, Mr Dennis

Slaughter, Mr Andy

Smith, Angela

Spellar, rh Mr John

Stringer, Graham

Stuart, Ms Gisela

Tami, Mark

Thomas, Mr Gareth

Timms, rh Stephen

Trickett, Jon

Turner, Karl

Twigg, Derek

Umunna, Mr Chuka

Vaz, Valerie

Walley, Joan

Watts, Mr Dave

Weir, Mr Mike

Whiteford, Dr Eilidh

Whitehead, Dr Alan

Williamson, Chris

Wilson, Phil

Winnick, Mr David

Winterton, rh Ms Rosie

Wishart, Pete

Wright, David

Wright, Mr Iain

Tellers for the Ayes:

Nic Dakin

and

Julie Hilling

NOES

Afriyie, Adam

Aldous, Peter

Amess, Mr David

Andrew, Stuart

Arbuthnot, rh Mr James

Bacon, Mr Richard

Baker, Norman

Baldwin, Harriett

Barker, rh Gregory

Baron, Mr John

Beith, rh Sir Alan

Bellingham, Mr Henry

Benyon, Richard

Bingham, Andrew

Blackwood, Nicola

Boles, Nick

Bone, Mr Peter

Bottomley, Sir Peter

Bradley, Karen

Brady, Mr Graham

Brake, rh Tom

Brazier, Mr Julian

Brine, Steve

Brokenshire, James

Brooke, Annette

Browne, Mr Jeremy

Buckland, Mr Robert

Burley, Mr Aidan

Burns, rh Mr Simon

Burrowes, Mr David

Burstow, rh Paul

Burt, Alistair

Burt, Lorely

Byles, Dan

Cairns, Alun

Campbell, rh Sir Menzies

Carmichael, rh Mr Alistair

Carmichael, Neil

Chishti, Rehman

Clappison, Mr James

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Colvile, Oliver

Crabb, Stephen

Crockart, Mike

Davies, David T. C.

(Monmouth)

Davies, Glyn

Davies, Philip

de Bois, Nick

Djanogly, Mr Jonathan

Doyle-Price, Jackie

Duddridge, James

Duncan, rh Mr Alan

Dunne, Mr Philip

Ellis, Michael

Ellison, Jane

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, rh Michael

Field, Mark

Foster, rh Mr Don

Fox, rh Dr Liam

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Gale, Sir Roger

Garnier, Sir Edward

Gauke, Mr David

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Goldsmith, Zac

Goodwill, Mr Robert

Grant, Mrs Helen

Grayling, rh Chris

Green, rh Damian

Greening, rh Justine

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Halfon, Robert

Hames, Duncan

Hammond, rh Mr Philip

Hammond, Stephen

Hancock, Matthew

Hands, Greg

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Harvey, Sir Nick

Haselhurst, rh Sir Alan

Hayes, Mr John

Heald, Oliver

Heath, Mr David

Heaton-Harris, Chris

Hemming, John

Henderson, Gordon

Hendry, Charles

Hollingbery, George

Hollobone, Mr Philip

Howarth, Sir Gerald

Howell, John

Hughes, rh Simon

Huppert, Dr Julian

Hurd, Mr Nick

James, Margot

Jenkin, Mr Bernard

Johnson, Joseph

Jones, Andrew

Jones, Mr Marcus

Kawczynski, Daniel

Kelly, Chris

Kirby, Simon

Knight, rh Mr Greg

Kwarteng, Kwasi

Laing, Mrs Eleanor

Lamb, Norman

Lancaster, Mark

Lansley, rh Mr Andrew

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Lefroy, Jeremy

Leigh, Mr Edward

Leslie, Charlotte

Letwin, rh Mr Oliver

Lewis, Brandon

Lewis, Dr Julian

Liddell-Grainger, Mr Ian

Lilley, rh Mr Peter

Lord, Jonathan

Loughton, Tim

Luff, Peter

Lumley, Karen

Maude, rh Mr Francis

Maynard, Paul

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

Menzies, Mark

Metcalfe, Stephen

Miller, rh Maria

Mills, Nigel

Milton, Anne

Mitchell, rh Mr Andrew

Morris, James

Mosley, Stephen

Mowat, David

Munt, Tessa

Murrison, Dr Andrew

Neill, Robert

Newton, Sarah

Nokes, Caroline

O'Brien, Mr Stephen

Ollerenshaw, Eric

Opperman, Guy

Ottaway, Richard

Paisley, Ian

Parish, Neil

Patel, Priti

Pawsey, Mark

Penning, Mike

Penrose, John

Perry, Claire

Pickles, rh Mr Eric

Pincher, Christopher

Poulter, Dr Daniel

Prisk, Mr Mark

Pritchard, Mark

Pugh, John

Raab, Mr Dominic

Randall, rh Mr John

Rees-Mogg, Jacob

Reid, Mr Alan

Robathan, rh Mr Andrew

Robertson, rh Hugh

Robertson, Mr Laurence

Rogerson, Dan

Rosindell, Andrew

Rudd, Amber

Ruffley, Mr David

Russell, Sir Bob

Rutley, David

Sandys, Laura

Scott, Mr Lee

Selous, Andrew

Shannon, Jim

Sharma, Alok

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Sir Robert

Soames, rh Nicholas

Spelman, rh Mrs Caroline

Spencer, Mr Mark

Stanley, rh Sir John

Stephenson, Andrew

Stewart, Bob

Stewart, Iain

Stewart, Rory

Streeter, Mr Gary

Stride, Mel

Stuart, Mr Graham

Stunell, rh Andrew

Sturdy, Julian

Swayne, rh Mr Desmond

Swinson, Jo

Swire, rh Mr Hugo

Syms, Mr Robert

Teather, Sarah

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Truss, Elizabeth

Turner, Mr Andrew

Tyrie, Mr Andrew

Uppal, Paul

Vara, Mr Shailesh

Vickers, Martin

Walker, Mr Robin

Wallace, Mr Ben

Ward, Mr David

Weatherley, Mike

Webb, Steve

Wharton, James

Wheeler, Heather

Whittaker, Craig

Wiggin, Bill

Willetts, rh Mr David

Williams, Mr Mark

Williams, Roger

Williams, Stephen

Williamson, Gavin

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Jeremy

Wright, Simon

Yeo, Mr Tim

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Noes:

Mark Hunter

and

Nicky Morgan

Question accordingly negatived.

7 Mar 2013 : Column 1208

7 Mar 2013 : Column 1209

7 Mar 2013 : Column 1210


Schedule 2

Consequential provision

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.)


Third Reading

Queen’s consent signified.

3.51 pm

Mr Kenneth Clarke: 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

7 Mar 2013 : Column 1211

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.

7 Mar 2013 : Column 1212

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

7 Mar 2013 : Column 1213

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.

Several hon. Members rose

Mr Speaker: 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.

4.2 pm

Mr Andy Slaughter (Hammersmith) (Lab): 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

7 Mar 2013 : Column 1214

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

7 Mar 2013 : Column 1215

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”,

and, secondly,

“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.]

7 Mar 2013 : Column 1216

Dr Huppert: 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?

Mr Slaughter: 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.

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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.

4.14 pm

Sir Menzies Campbell: 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

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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

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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.

Mr Leigh: 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?

Sir Menzies Campbell: It is a procedure that already exists in our law. If my hon. Friend is concerned about the universal application of the principle, that argument was lost some time ago.

Jeremy Corbyn (Islington North) (Lab): 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.

Sir Menzies Campbell: 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.

Mr Leigh: 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.

Sir Menzies Campbell: 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

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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.

4.27 pm

Mr Winnick: 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

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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.

Several hon. Members rose

Mr Deputy Speaker (Mr Nigel Evans): The debate will finish no later than 5 o’clock, so can all Members please show time restraint in order to allow everyone who wishes to speak to do so.

4.33 pm

Dr Julian Lewis: 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

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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.

4.38 pm

Mr George Howarth: 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.