Lord Phillips of Sudbury: I am grateful to the noble Lord. I shall withdraw the amendment. I am grateful for what the noble and learned Lord, Lord Nolan, said.
The Minister referred to Clause 53(7). At present, subsection (7) provides for such resources as the Secretary of State considers necessary, as opposed to the objective test of the amendment--that the commissioner would be provided with such resources as may be requisite. I hope that when the Government return to the issue they will agree with that.
Lord Bach: Someone has to make the decision. I should have thought the Secretary of State was as good a person to make that objective decision as anybody. I am not sure there is much difference in the distinction between the subsection referred to and the wording of the amendment.
Lord Phillips of Sudbury: I beg to differ and it may be that I shall have a discussion with the noble and learned Lord, Lord Nolan, afterwards and we will come banging on the noble Lord's door. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 agreed to.
Clause 54 [Co-operation with and reports by new Commissioner]:
[Amendments Nos. 189B to 189G not moved.]
Lord Lucas moved Amendment No. 190:
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Page 58, line 42, at end insert ("seriously").
The noble Lord said: My interest here is merely to raise the test which the Prime Minister has to set himself in deciding whether to cut parts out of the commissioner's report.
The action will not be subject to any oversight or supervision whatever. In fact no one will know it has happened, except the commissioner who will presumably keep "mum" about it. It is a decision for the Prime Minister to make himself, and I believe it would be helpful in that context if there were some wording to indicate that it is not a test of whether it might cause some slight damage here or there. Either it is phrased in the way I have suggested, that it is serious, or we include a phrase such as "balance" to indicate that taking parts out of the report is only to be embarked upon when the consequences would be notably bad for any of the causes mentioned in that part of the Bill and that it should not be done lightly or at a whim. I am sure it would not be, but I believe that the wording of the Bill should reflect what we hope should happen. I beg to move.
Lord Nolan: In my experience there has never been any difference between the commissioner and the Prime Minister, or a previous Prime Minister, as to what should or should not stay in.
The matters which have been omitted are matters which really could not be disclosed without great prejudice to national security or for the other purposes of the Bill. That may not be an answer to the point raised by the noble Lord, Lord Lucas, but, for what it is worth, my experience would not lead me to regard it as essential.
Lord Bach: I may be fortunate enough to have an ally in the noble and learned Lord, Lord Nolan, in what I am about to say. Amendment No. 190 proposed by the noble Lord, Lord Lucas, would require that material only be excluded from any annual report where it was seriously prejudicial to national security or one of the other grounds as set out in paragraphs (a) to (d).
The Government believe it is difficult to place a specific meaning on the term "seriously" in that context. For example, if the term means "a lot" or "a great deal" it would mean that information which is damaging to a lesser extent, for example, some lesser prejudice, must be disclosed with no need to show that the public interest requires that such damage be caused. We do not believe that that would lead to a proper balance. It would mean that information damaging, for example, to the prevention or detection of serious crime would have to be published. Finally, we must not forget that the interception commissioner must be consulted on the exclusion of any matter from the annual report as laid before each House of Parliament. I hope that the noble Lord, Lord Lucas, is somewhat reassured by that explanation.
Lord Lucas: I am certainly reassured; I would expect nothing to happen other than what the noble and
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learned Lord, Lord Nolan, indicated has happened in the past. The Minister used the word "balance", but, as yet, there is no requirement for balance in this part of the Bill. Perhaps we should examine that issue at Report stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 agreed to.
Lord Bach moved Amendments Nos. 190A and 190B:
After Clause 54, insert the following new clause--
THE INTELLIGENCE SERVICES COMMISSIONER
(" .--(1) The Prime Minister shall appoint a Commissioner to be known as the Intelligence Services Commissioner.
(2) Subject to subsection (4), the Intelligence Services Commissioner shall keep under review, so far as they are not required to be kept under review by the Interception of Communications Commissioner--
(a) the exercise by the Secretary of State of his powers under sections 5 to 7 of the Intelligence Services Act 1994 (warrants for interference with wireless telegraphy, entry and interference with property etc.);
(b) the exercise and performance by the Secretary of State, in connection with or in relation to--
(i) the activities of the intelligence services, and
(ii) the activities in places other than Northern Ireland of the officials of the Ministry of Defence and of members of Her Majesty's forces,
of the powers and duties conferred or imposed on him by Parts II and III of this Act;
(c) the exercise and performance by members of the intelligence services of the powers and duties conferred or imposed on them by or under Parts II and III of this Act;
(d) the exercise and performance in places other than Northern Ireland, by officials of the Ministry of Defence and by members of Her Majesty's forces, of the powers and duties conferred or imposed on such officials or members of Her Majesty's forces by or under Parts II and III; and
(e) the adequacy of the arrangements by virtue of which the duty imposed by section 51 is sought to be discharged--
(i) in relation to the members of the intelligence services; and
(ii) in connection with any of their activities in places other than Northern Ireland, in relation to officials of the Ministry of Defence and members of Her Majesty's forces.
(3) The Intelligence Services Commissioner shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require--
(a) in connection with the investigation of any matter by the Tribunal; or
(b) otherwise for the purposes of the Tribunal's consideration or determination of any matter.
(4) It shall not be the function of the Intelligence Services Commissioner to keep under review the exercise of any power of the Secretary of State to make, amend or revoke any subordinate legislation.
(5) A person shall not be appointed under this section as the Intelligence Services Commissioner unless he holds or has held a high judicial office (within the meaning of the Appellate Jurisdiction Act 1876).
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(6) The Intelligence Services Commissioner shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of money provided by Parliament such allowances as the Treasury may determine.
(7) The Secretary of State shall, after consultation with the Intelligence Services Commissioner and subject to the approval of the Treasury as to numbers, provide him with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner's functions.
(8) Section 4 of the Security Service Act 1989 and section 8 of the Intelligence Services Act 1994 (Commissioners for the purposes of those Acts) shall cease to have effect.
(9) On the coming into force of this section the Commissioner holding office as the Commissioner under section 8 of the Intelligence Services Act 1994 shall take and hold office as the Intelligence Services Commissioner as if appointed under this Act--
(a) for the unexpired period of his term of office under that Act; and
(b) otherwise, on the terms of his appointment under that Act.
(10) Subsection (7) of section 39 shall apply for the purposes of this section as it applies for the purposes of that section.").
CO-OPERATION WITH AND REPORTS BY INTELLIGENCE SERVICES COMMISSIONER
After Clause 54, insert the following new clause--
(" .--(1) It shall be the duty of--
(a) every member of an intelligence service,
(b) every official of the department of the Secretary of State, and
(c) every member of Her Majesty's forces,
to disclose or provide to the Intelligence Services Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions under section (The Intelligence Services Commissioner).
(2) As soon as practicable after the end of each calendar year, the Intelligence Services Commissioner shall make a report to the Prime Minister with respect to the carrying out of that Commissioner's functions.
(3) The Prime Minister shall lay before each House of Parliament a copy of every annual report made by the Intelligence Services Commissioner under subsection (2), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (4).
(4) If it appears to the Prime Minister, after consultation with the Intelligence Services Commissioner, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to--
(a) national security,
(b) the prevention or detection of serious crime,
(c) the economic well-being of the United Kingdom, or
(d) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,
the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament.
(5) Subsection (7) of section 39 shall apply for the purposes of this section as it applies for the purposes of that section.").
On Question, amendments agreed to.
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