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House of Lords

Monday, 9 July 2012.

2.30 pm

Prayers—read by the Lord Bishop of Chester.

Death of a Member: Lord Marshall of Knightsbridge


2.36 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the death of the noble Lord, Lord Marshall of Knightsbridge, on 5 July. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.

Environment: Leafleting


2.37 pm

Asked By Lord Clement-Jones

To ask Her Majesty’s Government whether they will review the impact of restrictions on leafleting under the Clean Neighbourhoods and Environment Act 2005 on cultural and community events.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach): My Lords, the Environmental Protection Act 1990 was amended in 2005 to enable local authorities to control litter from free literature. If a litter problem exists, authorities may introduce controls in designated areas to make it an offence to distribute material without consent. Exemptions exist for political, charitable or religious purposes. Defra has no plans to amend this legislation. Authorities should work with the community and local businesses to minimise litter problems before imposing restrictions.

Lord Clement-Jones: My Lords, over a third of councils now restrict leafleting and some charge exorbitant amounts for a licence. The Minister will be aware that many local theatres and clubs have been very badly affected by these restrictions, with dramatic reductions in their audiences. Should this traditional civic freedom not be protected? Will the Government consider introducing a new exemption for cultural and creative activities, and not treat these leaflets as no more important than a crisp packet or burger wrapper?

Lord Taylor of Holbeach: I understand the noble Lord’s interest in seeking to preserve community arts and activities but I emphasise that this is a discretionary power that I would expect local authorities to apply in any way they wish, even within a particular zone. Local authorities can give their consent to any group or any event at any time.

The Earl of Clancarty: My Lords, will the Minister accept that even in this age of social networking, as the evidence suggests, there is no substitute for person-to-person contact with the public that leafleting affords

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for neighbourhood arts and community events, and that the need to obtain a licence is simply too costly for many venues and small organisations, as well as being ludicrous red tape?

Lord Taylor of Holbeach: I cannot agree with the noble Earl. This is up to local communities to decide. They can determine the balance between propagandising events and social activities and their own interest in trying to prevent litter and, to some extent, being bothered by people handing out leaflets.

Lord Clark of Windermere: My Lords, has the Minister seen the increase of small posters advertising functions dotting our roadside, which many of us regard as litter, and has he had any consultations with the police as to the road safety aspects of these many small posters?

Lord Taylor of Holbeach: No, I have not but fly-posting is a problem dealt with by the Localism Act that we passed last year. The noble Lord makes an interesting point, but election posters spring to mind as being the most obvious things that one sees on lamp posts.

Lord Naseby: My Lords, while I imagine the House has sympathy with my noble friend’s overall answer, nevertheless, the last review was 2009. Since then a great deal has happened locally on the ground, and in some parts of the country there are substantial restrictions. Maybe the time is coming for another review.

Lord Taylor of Holbeach: I think my noble friend has to come to terms with the localism issue. In the end this is up to local authorities to determine. I believe in localism and local decision-making. Local communities elect their local authorities to take care of such matters. It is not for central government or Parliament to determine.

Lord Foulkes of Cumnock: It might be stretching it just a little to call it a cultural and community event, but there was a very important event in south-west London yesterday and I know that all the litter has been cleared up since then. I wondered whether it would be appropriate for the Minister to take this opportunity to congratulate Andy Murray on a tremendous effort—an effort of which everyone in the United Kingdom, not just Scotland, should be really proud—and to wish him one better next time round.

Lord Taylor of Holbeach: I am delighted to be able to join in the noble Lord’s congratulations to Andy Murray. I was in the air during this particular tournament on the way back from a ministerial conference—

Noble Lords: Oh!

Lord Taylor of Holbeach: So I am afraid I missed all the excitement and only shared the disappointment that the whole House felt at the result.

Lord Swinfen: My Lords, can my noble friend give any indication of the costs to local authorities of clearing up litter?

Lord Taylor of Holbeach: Yes, I can give a clue in that street cleaning in the years 2010-11 cost £863 million.

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Lord Brooke of Sutton Mandeville: My Lords, is my noble friend aware of the irony towards which he is leading us whereby local authorities will be castigated as being philistine because they intervene on cultural leaflets when recent archaeology demonstrates that the philistines were actually very civilised people?

Lord Taylor of Holbeach: I am sure that they were, and far be it from me to suggest that any behaviour by a local authority is philistine.

Lord Skelmersdale: My Lords, can the Minister give us any update on dissolvable chewing gum, which I gather has been invented, as chewing gum is the most horrendous litter problem on our streets?

Lord Taylor of Holbeach: I am pleased to say to my noble friend that I am having a meeting with Wrigley this afternoon. If I had had it last week, I could give my noble friend an answer to his question—none the less, I hope that he is reassured that this matter is under control and I will stick to the solution.



2.44 pm

Asked By Lord Roberts of Llandudno

To ask Her Majesty’s Government what are their intentions regarding the future of passport personal interview offices.

The Minister of State, Home Office (Lord Henley): My Lords, the interview forms part of the identity authentication process for first-time adult passport applicants and provides a deterrent against fraud. There are no current plans to alter the existing network of passport personal interview offices.

Lord Roberts of Llandudno: I thank the Minister for his response. Does he agree that, when we have had 1.5 million interviews in the past five or six years and only 12 rejections, there is something wrong with this legislation? Does he also agree that it might be an opportunity for those involved with personal passport interviews and the UK Border Agency to talk together, and that some of the personnel and resources in the personal passport interview process could be deployed to strengthen the work of the UK Border Agency?

Lord Henley: My Lords, I cannot confirm the precise figure that the noble Lord cites, but I can confirm that there are something of the order of a quarter of a million interviews a year. The noble Lord is right to say that very few are declined, but it is interesting to find that possibly about 1,000 people a year decide not to come to an interview when asked to do so. That might imply that their application was not quite as straightforward as it might have been. We think that these interviews are an important part of the authentication process, as did the previous Government, who brought this process in in 2006. As I said, we have no plans to change matters.

Baroness Royall of Blaisdon: My Lords, I am sure that all noble Lords will have read in the press over the

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weekend speculation about the Prime Minister’s views on student visas. Can the Minister give us any insight into how thinking is developing in this area?

Lord Henley: My Lords, I fail to see what that has to do with the Question on the Order Paper, which, as the noble Baroness the Leader of the Opposition will know, is about passport personal interview offices. I recommend that she does not believe everything that she reads in the press.

Lord Storey: The Minister will be aware that when you apply for a passport you have to have it countersigned by “a professional”. In my 30 years as a head, I have probably done 100 of these. No one has ever checked whether I am the person I am supposed to be. Can the Minister tell us how many people who countersign those passports are checked up on?

Lord Henley: I cannot give my noble friend a precise answer, but I will certainly make sure that the appropriate checks are made on him before he signs any future applications to ensure that he is the noble Lord he purports to be.

Lord Roberts of Llandudno: My Lords, I return to the Question. What has been the cost of these 1.5 million interviews? Is it true that it has been in the nature of a third of £1 billion? Is it not time that we looked at this situation?

Lord Henley: My Lords, there is a cost. That is why we made changes to the number of interview offices. As a result of that restructuring, we are achieving a saving of some £7.81 million a year. As I said in answer to the original Question, they are a very important part of the authentication process.

Lord Reid of Cardowan: In view of some of the comments that have been made, can the Minister confirm that one of the fastest-growing crimes in this country is based on identity theft and that, in the midst of identity theft, one of the largest areas is the theft of people’s passports as an entry to identity, which then leads to further crimes, running from intervention in personal details through to bank accounts and right up to terrorism? While we are reminding ourselves of the costs of this, let us remind ourselves of its benefits as well.

Lord Henley: The noble Lord makes a very valid point, and I suspect that he was Home Secretary at the time these changes were made in 2006. We support those changes, we stick by them and we have no plans to make any further changes.



2.48 pm

Asked By Lord Dykes

To ask Her Majesty’s Government when they next intend to discuss the plans for a full fiscal, monetary and banking union for the eurozone at forthcoming meetings of the European Union Economic and Financial Affairs Council and the General Affairs Council.

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The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the June European Council discussed a report by the four presidents on strengthening economic and monetary union. They will conduct further work and report back to the European Council in December with an interim report in October. There is likely to be discussion on aspects of these issues in a number of different fora before and after the December report.

Lord Dykes: I thank the Minister for that Answer. I congratulate Her Majesty’s Government on their strong official support for the eurozone summit agreement success, in stark contrast to the negative carping of some Tory MPs and MEPs and of a few voices in the Christian Social Union in Bavaria.

Lord Sassoon: I am grateful to my noble friend for confirming the success of the recent European Council, a Council which confirmed among other things that the single market had to be considered in the context of fiscal union, which brought important parts of the new EU patent court to London, and which considered a raft of other growth-related matters.

Lord Bilimoria: My Lords, will the Minister confirm that the Government keep pushing the eurozone countries to go in for more fiscal and monetary union and yet do not seem to accept that that cannot take place unless there is a sovereign union in the way that there is in the United States of America or a country such as India? Why do the Government not accept that, and why do they keep encouraging the eurozone countries to pursue more and more fiscal and monetary integration?

Lord Sassoon: My Lords, I am pleased to say that no encouragement is now needed from the UK. The paper by the four presidents—the presidents of the European Council, the European Commission, the European Central Bank and the Eurogroup—set out what they believed to be appropriate in relation to fiscal and monetary union. That work will continue and the UK is participating in the discussions in and around those reports. We are being fully supportive of those efforts.

Lord Pearson of Rannoch: My Lords, would it not be wise to ask the people of Germany and the other eurozone donor nations whether they agree to be burdened with the debts of Greece, Portugal, Spain, Italy and others, which even the Germans and the other countries cannot afford for long?

Lord Sassoon: My Lords, I thought I might have been asked a question about a UK referendum, instead of which I get a question about whether the German people will be consulted. I think I will leave that to German politicians to answer.

Lord Flight: My Lords, does the Minister agree that a crucial ingredient in a successful fiscal and monetary union is transfer payments between the more prosperous to the less prosperous, as occurs within the US and even within the UK?

Lord Sassoon: Indeed, that is part of the remorseless logic of what an economic and fiscal union normally brings with it.

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Lord Davies of Oldham: My Lords, does the LIBOR scandal and other financial scandals strengthen or weaken Her Majesty’s Government’s plans for exceptional treatment in Brussels? Do we not have a common interest in a properly regulated single market? Would not Her Majesty’s Government, particularly the Prime Minister, be better involved in discussing these matters rather than sulking on the sidelines?

Lord Sassoon: My Lords, the UK is very much involved in the discussions in Brussels. That is why, as I have already said, we secured important parts of the EU patent court coming to London. That is why we recently secured a new British head for the European Bank for Reconstruction and Development. We are at the table and that is where we intend to stay.

Lord Pearson of Rannoch: My Lords, with the leave of the House and as there are some minutes on the clock, instead of going along with this madcap, dangerous scheme of European financial integration, why do the Government not encourage the eurozone countries to abandon the incurable euro and go back to their own currencies, each with their own interest rate and exchange rate? Would that not be less painful and expensive than to go on trying to save the wretched thing?

Lord Sassoon: My Lords, as we have discussed many times, 40% of our exports go to the eurozone. It is our most important trading bloc. The priority has to be to strengthen the eurozone countries. That is what they want to do and that is what we want to see them do and we must help them to achieve that.

Lord Harrison: The United Kingdom often blames the eurozone for the problems with the economy as it is being run by Her Majesty’s Government here. Why do we not do more to help? Does the noble Lord, Lord Sassoon, agree with Mr David Lidington, who stated in replying to the Select Committee’s interrogation last week that he welcomed more Europe if it meant the implementation of the full ambit of the single European market?

Lord Sassoon: On the question asked by the noble Lord, Lord Harrison, about the cause of the weaker growth in this country, the Office for Budget Responsibility and other commentators have identified the eurozone as a major source of threat to our growth and of weakness. Significant parts of the eurozone are plainly now in recession. I agree with my right honourable friend David Lidington about the need for more Europe in many areas including, particularly, more completion of the single market. That is why it is important that the four-presidency proposal referred to in the Council conclusions at the end of June will include,

“concrete proposals on preserving the … integrity of the Single Market”.

That is critical, as are the many growth initiatives included in those conclusions.

Lord Lawson of Blaby: My Lords, we all wish to see a successful European economy, but is my noble friend not aware that the so-called success of the European Council a fortnight ago has already disappeared, the financial markets have put the interest rate on Spanish

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sovereign debt back to where it was before, nothing was achieved, nothing can be achieved in this way and the sooner that it is realised that this project, however well intentioned, is a terrible mistake, the better?

Lord Sassoon: I certainly agree with my noble friend that we delude ourselves if we think that words coming out of one meeting of European leaders are going to solve all the problems. Part of the problem seems to have been a belief that the crisis can somehow be dealt with by fine words. I believe that in the underlying work— whether on the two pack, the six pack, or the intergovernmental treaty—there is the beginning of a construct of great significance to underpin the eurozone.

Lord Hunt of Kings Heath: My Lords, would the Minister be prepared to share with us his prepared text on whether there should be an in/out referendum on our membership of the EU? If the Government are holding out the prospect of a referendum in relation to Europe, can he tell me why the Government refuse to have a referendum on the future of your Lordships’ House?

Lord Sassoon: I realise that I walked straight into this one. Now is not the time for an in/out referendum on Europe. Once Europe has settled all the matters that we have talked about, we can look at our relationship with Europe in the round. As for referenda on other matters, the legislation is starting in another place today and, no doubt, it will get here in due course.

Lord Teverson: Given that the eurozone is very likely to survive in a position very similar to its position at the minute and that it will probably move forward to a banking union and closer economic and fiscal union, what strategic preparations are the Government making in the longer term to make sure that Britain is not marginalised once we get through the existing crisis, however long it takes?

Lord Sassoon: My Lords, I think the most important thing is that we continue to be, as we are, constructively at the heart of all the discussions on these matters. As I have already said, there have been some significant achievements, as evidenced in the conclusions of the June Council, and that is the basis on which we have to continue our discussions. I would not think about it in the contingency planning terms that my noble friend portrays. We are there at the heart of the discussions and are continuing to focus our partners on growth and the completion of the single market.

EU: Interpretation and Translation in Criminal Proceedings


2.58 pm

Asked By Baroness Coussins

To ask Her Majesty’s Government whether they expect to be in compliance with European Council directive 2010/64/EU, on the right to interpretation and translation in criminal proceedings, by the agreed implementation date of 27 October 2013.

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Baroness Coussins: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as vice-president of the Chartered Institute of Linguists.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government will take the steps necessary to ensure that the UK is compliant with the EU directive in good time for its implementation date.

Baroness Coussins: My Lords, I understand that the company that the Government have, under the framework agreement, contracted to provide services to courts and the police is supplying performance data to the Government which suggest that it is doing a good job. However, these figures come without any independent verification or audit and tell a very different story from the complaints we hear daily from judges and others about the failure to supply interpreters, or the sending of unqualified people with no experience of simultaneous interpreting and some people who were simply incompetent—in one case not understanding the difference between murder and manslaughter. Does the Minister agree that the UK is at risk of expensive legal action over non-compliance with the directive, particularly Article 5 about the quality of the service, and that we should therefore review the framework agreement now?

Lord McNally: No, my Lords, I do not think we are in danger of non-compliance. As I said in my Answer and, as the noble Baroness indicated, there are some months to go before the directive comes into play. In the mean time, the Ministry of Justice has a massive interest in making sure that Applied Language Solutions provides the quality and service for which it is contracted. We are making every effort to make sure that that happens.

Baroness Butler-Sloss: Is the Minister aware of the extent of disruption and delay to criminal trials as a result of the serious inadequacies in court interpreting? Not only does it lead to considerable cost but concerns have been raised by judges across the country, particularly in London, Birmingham and Leeds.

Lord McNally: My Lords, there have been individual complaints about performance and there was undoubtedly a very poor start to this contract. However, there have been improvements and we are talking about a system with some 800 requests a day for such interpretation. In the first quarter of its operation there were 26,000 requests in 142 languages. One has to get complaints and performance into perspective, although there is no doubt that a lot was left to be desired in the performance of the contract in its early stages.

Lord Harrison: Has the Minister revised the original estimate of a £12 million saving as a result of implementing the framework agreement because of all these additional costs? Have we not arrived at a situation that is no longer just succumbing to teething problems but is wholly poorly structured in the first place?

Lord McNally: I do not agree with that. As I said, there were problems at the beginning of this contract but the performance has improved dramatically. I

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presume that the original estimate of a £12 million saving in this first year will probably not be achieved. That is common sense but this is not a solution for just this year. It is a long-term solution that we hope will, once it is bedded down, give the service and quality required.

Baroness Sharples: Can my noble friend say how many languages each interpreter is expected to speak?

Lord McNally: No. However, there are a number of interpreters who speak more than one language. At the moment, there are about 1,500 interpreters under contract and they are equivalent to about 3,000 interpreter persons, which means that many of them speak two or more languages.

Baroness Scotland of Asthal: My Lords, will the noble Lord tell the House whether the nature, number and extent of complaints from the courts has gone up or down since the change was implemented? If it has, as we believe, gone up, what do the Government intend to do about it?

Lord McNally: Has it gone up since the scheme was implemented? Yes, it has, because the scheme implements a single supplier that will pay interpreters less than they were being paid on an ad hoc basis. That combination of greater discipline in where and when interpreters are hired and at what fee is not likely to be welcome to the interpreting community. That I understand. But it was the previous Administration who initiated an inquiry into the efficiency and effectiveness of the old interpreter system. We have readily acknowledged that this new system has had teething problems, but there is no ministerial interest or MoJ interest in having questions such as this time and again about performance. The supplier has contracted to a high-quality performance, and we intend to keep it to that.

Lord Anderson of Swansea: How is the performance of that supplier adequately monitored? Is there an independent monitoring system?

Lord McNally: There is not an independent monitoring system—there is a client. We are the client, and we do not intend to pay good money for a shoddy service. As I have just said, as the client we brought this in because we intended to try to make substantial savings for the taxpayer on a system that we believed was slipshod and expensive in its running. When the new system gets bedded down, we hope that it will give high quality. The monitoring is done by the department concerned, the MoJ, and we intend to carry out our responsibilities to make sure that the taxpayer gets value for money.

Baroness Thomas of Winchester: My Lords, I understand my noble friend’s difficulties, about which he has been telling the House, with so many languages having to be covered. Will he tell us how many cases have had to be rescheduled because the right interpreters were not there, and whether that is being monitored by his department?

Lord McNally: There has always been the problem of interpreters not being there, or the wrong interpreters being there. This is not something that has happened

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in the past 12 months. Indeed, one reason for bringing in a single supplier on a new contract with very precise contractual obligations was to try to remove that. I repeat that providing around 100,000 interpreters in 142 different languages is something of which our justice system should be rather proud. However, once you operate on that scale across that range of expertise, there will be mistakes, hiccups, wrong directions and wrong turn-ups. On the whole, we expect the contract to produce at least 98% performance success, and we intend to keep the contractor to that.

Designation of Features (Appeals) (England) Regulations 2012

Public Bodies (Abolition of Environment Protection Advisory Committees) Order 2012

Public Bodies (Abolition of Regional and Local Fisheries Advisory Committees) Order 2012

Public Bodies (Abolition of the Commission for Rural Communities) Order 2012

Motions to Refer to Grand Committee

3.08 pm

Moved By Lord Taylor of Holbeach

That the draft regulations and orders be referred to a Grand Committee.

Motions agreed.

Legislative Reform (Annual Review of Local Authorities) Order 2012

Motion to Refer to Grand Committee

3.08 pm

Moved By Baroness Garden of Frognal

That the draft order be referred to a Grand Committee.

Motion agreed.

Justice and Security Bill [HL]

Bill Main Page

Committee (1st Day)

3.09 pm

Relevant documents: 3rd and 4th Reports from the Constitution Committee, 5th Report from the Delegated Powers Committee.

Clause 1 : The Intelligence and Security Committee

Amendment 1

Moved by Lord Butler of Brockwell

1: Clause 1, page 1, line 5, after “Committee” insert “of Parliament”

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Lord Butler of Brockwell: My Lords, I will speak also to Amendment 2. These two amendments are in my name and that of my noble colleague on the Intelligence and Security Committee, the noble Marquess, Lord Lothian, as well as those of the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Beecham. I can introduce the amendments quite briefly, and I hope that we are pushing at an open door. It is, I think, common ground with the Government that the Intelligence and Security Committee will serve Parliament and the public better if it is made clear that it is indeed a committee of Parliament and not a creature of the Government. Since its creation in 1994 the committee has played an independent part, but because the committee is appointed by the Government, it has often been difficult to convince outside observers of its independence. I again pay tribute to the committee, as I did in my Second Reading speech to earlier members of the committee. It is now common ground that it has behaved in such a way that it has come of age and its independence and duty to Parliament can be made clear by adding the words that it is indeed a committee of Parliament. I hope that that is agreed with the Government.

Amendment 2 would have the effect that the Intelligence and Security Committee would enjoy the same rights and privileges as a departmental Select Committee in respect of having parliamentary privilege. Perhaps I may just explain that. Because the Intelligence and Security Committee is created by statute and is not a Select Committee of Parliament, it does not automatically receive the same rights and privileges as, for example, a departmental Select Committee. That is the purpose of writing in the Bill that it should have parliamentary privilege. This issue is important, because the committee’s work has to be conducted in confidence and those who give evidence to it, including not only the intelligence agencies but also others, must have confidence that the security of their evidence will be protected. This is necessary not only for future evidence but for past evidence, because in this litigious age there needs to be assurance that evidence previously given cannot be sought to be disclosed as evidence in any proceedings. To make that clear, this amendment proposes that privilege should apply to the proceedings of the Intelligence and Security Committee as it does to Select Committees of Parliament.

Lord Campbell-Savours: Is there a precedent for this form of committee anywhere within the constitution?

Lord Butler of Brockwell: There are indeed committees that are set up by statute. I can give the noble Lord three examples: the Ecclesiastical Committee of Parliament, the Public Accounts Commission and the Speaker’s Committee on the Electoral Commission. Those are all similar committees which have been set up by statute but are not Select Committees.

3.15 pm

The Marquess of Lothian: My Lords, I rise briefly in support of the noble Lord, Lord Butler of Brockwell, on both amendments, to which my name is also attached. I do so because I am also a member of the Intelligence

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and Security Committee. I was first appointed to the committee in 2006 and therefore have some years of experience of it.

In looking at the first amendment I feel very strongly that we need to make it clear that this is more than just a committee. The problem that we have faced in terms of credibility until now, as the noble Lord said, is that we were a committee created by statute but appointed by the Prime Minister and reporting to the Prime Minister—who could report to Parliament in due course. Although we exercised what we thought was the maximum independence possible, the public perception was that we were actually a creation of, and therefore a tool of, the Executive. In that regard, less confidence was put in the reports that we produced. My belief has been that if this committee is to work properly—which is what I believe the Bill is about now—we need to make it clear that this is not just a committee hanging in the ether but a committee of Parliament: it is composed of parliamentarians, exercises its oversight of the intelligence agencies on behalf of Parliament and reports to Parliament, although the Prime Minister will ultimately have a veto over appointments and also have access to the reports that we produce. I believe that the simple addition of the words “of Parliament” will make it clear that what I am looking for can be achieved.

I have been told in the past that there may be difficulties about the words “Committee of Parliament”. I am a simple Scottish lawyer, and I have worked very hard to understand what these possible difficulties can be given that, as I said at Second Reading, a committee of Parliament is what we are effectively becoming. I hope, therefore, that the Government will accept that, because I think that the committee’s credibility in exercising parliamentary oversight of the intelligence agencies is an important part of our developing constitution.

I turn briefly to the second amendment spoken to by the noble Lord, Lord Butler of Brockwell. I have very little to add to what he said other than this. He talked about the need for those who give evidence to the Committee to be able to do so in the knowledge that their evidence will not suddenly be made public. That is a very important part of the way in which the Intelligence and Security Committee works. It is particularly important in one respect. When the intelligence agencies give evidence to us they will naturally take account of how secure their evidence will be. If they feel that that evidence is not secure then they quite simply will not give us that evidence. We rely on their confidence in us to ensure that they give us the maximum amount of information upon which we can exercise our oversight. Unless we have the protection which is the purpose of the second amendment I believe that that confidence will not be there. I hope, therefore, that the Government will accept both amendments.

Lord Campbell-Savours: My Lords, I have reservations which I will deal with when I speak to my amendment arguing the case for a Select Committee to take on these responsibilities. Parliament is being required to approve wording which suggests that this committee is controlled by Parliament, but without recognising what

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Justice and Security

Green Paper of October 2011 says at paragraph 3.19. It states:

“However, under such arrangements”—

that is, the arrangements of a Select Committee—

“the Government would clearly have no veto on publication of sensitive material”.

I repeat:

“no veto on publication of sensitive material”.

In other words, the provision is being introduced as a way for the Government to secure control outside of Parliament, through this half-measure of a committee, over the publication of sensitive material. My view is very simple. If they want to do that, let it be done through a full Select Committee structure. That is the substance of my amendment which will come later.

Lord King of Bridgwater: My Lords, if I may intervene in this discussion, I seek to bring to it the “veneer of experience”—to quote the Deputy Prime Minister, as the noble Baroness on the Front Bench did on Second Reading—that this House can contribute on these matters. I am delighted to follow the noble Lord, Lord Campbell-Savours, who is an excellent member of the committee that I had the privilege to chair for a number of years. In listening to this debate I am absolutely sure that we have reached the time to move forwards. However, I am torn between Amendment 1, the significance of which I have to admit I do not fully understand, and Amendment 3, which proposes moving to Select Committee status. Early in our committee’s discussions we considered the role of a Select Committee, and—if I can stop the noble Lord mucking up my papers—I shall find a quote from a report that our committee produced in 1998 or 1999. We said:

“There are arguments for and against such a status, and we have not as yet formed a view on the issue … Even if thought desirable, however, such changes would take time to introduce, and could alter significantly the structure of relationships between the Committee and the intelligence community”.

I think that, as time has moved on, we have established that sort of relationship.

It is important to remember where we have come from. Although the noble Baroness, Lady Manningham-Buller, rightly points out that the agencies were not resistant to the establishment of a committee—that certainly matches my own impression, and she knows the situation much better than I do—many serving in the agencies wanted not only an Intelligence and Security Committee but, in their own interest, for that committee to be as thorough and active as possible so that it could carry credibility. As one of the big problems facing the agencies was false allegation and rumour, an independent and credible body would be seen to address and deal effectively with those issues—in secrecy if necessary, and without disclosure of operational information or other evidence, some of which might come from other countries.

My feeling at that time was that it was critical that we should establish credibility, because although many of the agencies were in favour of the committee, others were nervous about whether parliamentarians could be trusted, whether information would be secure or whether it would be leaked—all the problems that one might advance. There was a lot of hostility. I recall that, way back in the early 1980s, Jonathan Aitken was an original proposer of an intelligence and security

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committee, and he was interrupted by an old colleague, Ray Whitney—a distinguished former member of the foreign service, and a Member of Parliament at the time—who said that whatever one says about the Senate intelligence committee, there is general agreement that it has destroyed the American intelligence capability. That was an exaggeration of the sort of strong feeling common at the time. Having had the privilege of serving under the noble Baroness, Lady Thatcher, who was not the first outspoken advocate of this particular approach, I can attest that there was a lot of resistance to it.

When our committee started out it was very important to establish its credibility. I felt at that time—and members of the committee shared this view; I think that the noble Lord, Lord Campbell-Savours, was a keen advocate of it—that it was more important to establish the trust of the agencies, to make sure that they were forthcoming with information, because they could switch us off at any time. After all, we were into the “don’t-know don’t knows”, so establishing that trust was important. I believe that that trust, confidence and relationship have been established now—more than established, I hope, given the passage of time. I am therefore very torn between these amendments, Amendment 1 or 2, which propose setting up a Committee of Parliament, or whether there is not an argument for going straight to a Select Committee. I have learnt something today from the noble Lord, Lord Butler. After spending a brief period of 30 years in the House of Commons, I had not understood that the PAC was set up under a different arrangement. One learns something every day. It sounds attractive for the IC to be on the same wavelength.

Lord Butler of Brockwell: It is confusing but what is set up under statute is the Public Accounts Commission, not the Public Accounts Committee.

Lord King of Bridgwater: I have now unlearnt something which I thought I had learnt, and I am grateful to the noble Lord for his intervention. I certainly think that when we come to Amendment 3 there are strong arguments for moving in that direction, provided that the arrangements can be established to ensure security of intelligence. I think that the noble Lord, Lord Campbell-Savours, was with us when we went to Washington. One is struck by the number of Senate committees there. The Senate Select Committee on Intelligence is held in a totally secure room, and there are badges for all 19 government agencies that the committee oversees as part of its various responsibilities. It is a completely different facility. If, as I understand it, the proposal is that the facilities will now be provided by Parliament, as opposed to the separate facilities that existed in the Cabinet Office, it will be necessary to think about what sort of facilities will match up to the requirement for total security and the proper safeguarding of intelligence.

Baroness Smith of Basildon: My Lords, one thing that the debate has shown so far—and this will also apply to the debate on the next amendment—is that the Government have not yet done enough to satisfy your Lordships that the arrangements for independence for the committee are adequate. This debate has been

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interesting. I think I understood the noble Lord, Lord King of Bridgwater, correctly when he said that he was quoting me quoting the Deputy Prime Minister on the “veneer of expertise”. I in no way associate myself with that comment, nor with the one that I am told the Liberal Democrat spokesperson from the House of Lords made on TV today—that we are a House full of dead-beats and has-beens. I think that this debate will prove how wrong both those comments are.

The arrest just last week of alleged Olympic terror plot suspects was a clear reminder of the vital and largely hidden work that the intelligence and security services undertake. Part of the discussion that we are having now is based on the fact that the strength and health of our democracy in the UK depends on a very fine balance between the Government, who are empowered to protect our national security, and the strength, credibility and authority of the institutions that have oversight of that power.

I suspect that during the course of Committee the majority of debate will understandably be reserved for the changes proposed to the judicial element of that oversight. However—and I make this point very strongly—our system of democracy is, unlike that of the USA, based on the concept of parliamentary sovereignty. That means that Parliament, as representative of the public, is the ultimate check over other government institutions—not the Prime Minister or the Government. A powerful security service demands equally powerful and independent parliamentary oversight, and the Intelligence and Security Committee is a very important plank in this oversight mechanism. However, it is widely recognised that, while the committee has in some ways developed its remit in response to the changing nature of government intelligence and counterterrorism activities, the law has not kept pace with that change.

The committee was set up in 1994. We saw in its 2009-10 annual report that the committee itself recognised that reform was necessary to maintain public confidence in its oversight function. It asserted that corporate knowledge of the committee’s procedure within government had been lost over time and that in some cases this had led—this is a serious point—to misunderstandings about the statutory independence of the committee and its work and about the nature of the relationship between the committee and the Prime Minister. The committee has suggested a number of reforms which I think we will hear more about and discuss today.

3.30 pm

We welcome for the most part the changes made in Part 1 of the Bill, which formalises the committee’s remit over the wide intelligence community and provides it with greater parliamentary independence. However, if we compare those proposals in the Bill with the proposals which the ISC itself called for last year and the Government’s record more broadly in measures such as ditching the annual parliamentary view of control orders in the new TPIMs, we get the sense that the Government’s commitment to parliamentary oversight is perhaps only skin deep and could go further.

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I pay tribute to the work of the present ISC in highlighting the need for reform in the area, and I fully support the two sensible proposals that were proposed on the committee’s behalf by the noble Lord, Lord Butler of Brockwell, and by the noble Marquess, Lord Lothian. We added our name for two reasons: first, to show support for the direction those amendments are moving in; and, secondly, to indicate the broad nature of support across the House.

The first of those amendments relates to the ISC’s status as a parliamentary body. Because of the nature of the information that is dealt with by the ISC, we recognise that it cannot be subject to the same arrangements as other parliamentary committees are. There does at times have to be a process of negotiation between the Government and the committee that does not jeopardise the vital work of the security services. We also, however, fully support changes aimed at formally establishing the committee as a parliamentary body that is subject to safeguards and at making clear its separation from the Executive, as is consistent with our concept of parliamentary sovereignty.

Amendment 1 would change the ISC’s line of accountability, sending an important signal that the committee is a creature of Parliament and not of the Executive. Amendment 2 would underpin the assertion by formally designating the ISC as having parliamentary privilege under Article 9 of the Bill of Rights. I have one question for the movers of the amendment. I understand that that article would also allow the committee independence from the Official Secrets Act, but it is my understanding that all members of the committee sign the Official Secrets Act and I am not sure why the committee would want that, unless it is one of the other measures that are in Article 9. It might be helpful to have further explanation on that.

These amendments move in the right direction to establish the independent parliamentary authority and scrutiny that, as we can see from the debate so far and the work of the ISC, is clearly required.

The Minister of State, Home Office (Lord Henley): My Lords, I think that the final point made by the noble Baroness, Lady Smith, on the Bill of Rights is posed to the movers of the amendment, and I will leave them to respond to it when the noble Lord, Lord Butler, winds up the debate.

My noble friend Lord King said that he had been described as having a veneer of experience in these matters. All four speakers before the noble Baroness and me had far more than a veneer of experience in these matters. All four have served on this Committee or have been chairman, like my noble friend, and we are very grateful that they bring their expertise to this because it is a matter that requires a great deal of discussion and consideration by us.

I start by setting out what changes the Bill proposes to make to the ISC’s status. The new ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. In parallel with the Bill, the Government intend that the ISC will be funded by Parliament and accommodated on the Parliamentary Estate, and that its staff will have the status of parliamentary staff.

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As both my noble friend Lord King and the noble Baroness, Lady Smith, have implied, the current ISC has been criticised for being a creature of the Executive—I think that was the word that the noble Baroness used. The intention of this measure is that the ISC should be brought much closer to Parliament. It will be a committee of Parliament created by statute in the same way as other bodies are, as listed by the noble Lord, Lord Butler, in response to the noble Lord, Lord Campbell-Savours.

The noble Lord, Lord Butler, said there were three examples. The Speaker’s committee for IPSA, created under Section 1 of the Parliamentary Standards Act 2009, is another. Like those other statutory committees of Parliament, the ISC will not have all the attributes of a departmental Select Committee. The question of whether such a committee would be the appropriate route to go down is another matter. We will deal with it when we debate Amendment 3, which the noble Lord will speak to immediately after this group.

The two amendments that we are considering concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. Some noble Lords will be aware that my right honourable friend the Lord Chancellor and Justice Secretary has written to the chairman of the ISC, Sir Malcolm Rifkind, stating that in principle the Government support such a change, or one that would have a like effect of making clear in the Bill the parliamentary character of the ISC. However, before we could accept the amendment that noble Lords proposed and which the Opposition support, we would need to be very clear that it would be the best means to achieve this end and what all the implications of such a change would likely be, including the very tricky issue of parliamentary privilege. Any change that has the possible impact of increasing the risk of unauthorised disclosure of sensitive information should be very carefully thought through.

My noble friend Lord Lothian described himself as a simple Scottish lawyer. I always get rather worried when noble friends describe themselves as simple, Scottish or a lawyer, and when all three come together I am even more alarmed. However, the amendment could affect the ISC’s status for other purposes. For example, it could bring the ISC within the ambit of the Freedom of Information Act 2000 by making it part of the House of Commons and the House of Lords for the purposes of the Act. It may also change the ISC’s status under the Data Protection Act 1998, as Section 63A of the Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC’s data-processing activities. I put it to my noble friend—the simple Scottish lawyer—that those consequential effects need to be examined in some detail.

It has been very helpful to debate the issues raised by the amendment. I hope I have gone some way to explaining why I am not in a position at this stage to say anything more. Certainly I can say that the ISC chairman, Sir Malcolm Rifkind, has responded to my right honourable friend’s letter, and that the Government would welcome further discussion with the ISC on this important issue.

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The second amendment in the group deals with the very significant issue of parliamentary privilege and takes us back to the Bill of Rights. This is a matter that the House has considered on a number of occasions in recent years. The Government’s most recent consideration of the issue came in the Green Paper that was published in April this year. Noble Lords will be aware of the importance that privilege can play in the functioning of this House and of another place. Parliamentary privilege includes such fundamental concepts as the freedom of speech of Members of this House and of another place, and the prohibition on courts questioning proceedings in Parliament. Both Houses and their Select Committees benefit from that privilege. Freedom of speech in the context of the Bill of Rights is just one aspect of parliamentary privilege.

At present the Intelligence and Security Committee is a statutory committee of parliamentarians. However, it does not at present benefit from that parliamentary privilege. The amendment would provide that the proceedings of the ISC would be proceedings in Parliament for the purposes of Article 9. That would ensure that the committee’s proceedings were covered by parliamentary privilege. The question posed by the amendment is about the consequences of privilege attaching to the proceedings of the ISC, which would be that criminal or civil proceedings could not be brought in respect of statements made by ISC members, or witnesses before the ISC, in the course of ISC proceedings.

Noble Lords may say that this makes very little difference because the ISC members are all parliamentarians and can benefit from privilege when participating in parliamentary proceedings. However, it would be different for a witness, who at present would not benefit from privilege. Other consequences would be that disciplinary proceedings against witnesses, based on statements made in ISC proceedings, would be barred as such proceedings would constitute a contempt of Parliament.

Noble Lords will understand from what I have said that there is a degree of sympathy for both amendments, and particularly the first, but more work needs to be done. I should be grateful if noble Lords accepted that and that it would probably be best at this stage to withdraw the amendments and to have further discussions, particularly in the light of the fact that my right honourable friend the Lord Chancellor has written to Sir Malcolm Rifkind about this and said that he is broadly content with the idea. However, as I have explained, we believe that more work is necessary. With that, I hope the noble Lord will feel able to withdraw his amendment.

Lord Butler of Brockwell: My Lords, I am grateful to the Minister for that reply and to the other Members who have taken part in the debate. Two clear points have come out of the debate that are agreed on all sides. First, the ISC should be able to fulfil its duties to Parliament as strongly as possible. It should be clear that it is a servant of Parliament and not of the Executive. That was the purpose of the first amendment.

We will debate in a moment the amendment tabled by the noble Lord, Lord Campbell-Savours, proposing that the ISC becomes a Select Committee, but, as I

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understand it, special safeguards are required for it, both in relation to appointments and in the nature of its reports: namely, that things that are genuinely secret should not accidentally be released in its reports. I think I am right in saying—this will no doubt come out in our next debate—that there will need to be a statute for that reason, so the statute will be necessary anyway. It would be difficult to apply those restrictions to a Select Committee of Parliament, but that will no doubt also come out in our next debate.

The purpose of the clauses in the Bill and of the amendments is exactly the same as the purpose that the noble Lord, Lord Campbell-Savours, is pursuing. I am very strongly in favour of Parliament’s effective control over the Executive. I have become more strongly in favour of that since I became a Member of Parliament rather than a member of the Executive. I believe in it very strongly, and I believe that of all the parts of the Executive, the security agencies need to be effectively controlled by people who are in a position to see and be trusted with information about what they are doing. So I do not think there is any difference about the ends.

The second thing is that witnesses to the ISC should have confidence in the security of the evidence they give. Again, I do not think there is any difference between us on that subject. As the Minister said, members of the ISC, as Members of Parliament, may be secure in that respect, but witnesses may not necessarily be so secure. If a situation arose in which the courts could question the proceedings in the ISC and enforce the revelation of evidence, the ISC would simply not be able to operate effectively. That is the purpose of seeking to apply in the statute that the ISC should have the benefit of parliamentary privilege as if it were a Select Committee of Parliament.

Again, it is clear from the Minister’s reply that the question here is about means rather than ends, and I entirely accept that those need to be carefully looked into and that the implications of the proposed amendments need to be carefully examined by those who are sufficiently expert to do so.

In the belief that our objectives in this are the same, that we are talking about means and not ends, and that the Government will now look at ways of achieving those ends, I am very happy to beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Amendment 3

Moved by Lord Campbell-Savours

3: Clause 1, page 1, line 6, at end insert—

“( ) The ISC shall be a Select Committee of Parliament.”

3.45 pm

Lord Campbell-Savours: My Lords, I welcome this debate on an issue that I have pursued now for 14 years since 1998. As I foresaw the response that the Minister

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has given today—that he was unable to give undertakings on privilege—I asked for my amendment to be taken separately. He will now understand why I had it moved from the group containing Amendment 1.

I corresponded with and made direct representations to Prime Minister Blair and others in Downing Street over a number of years. I was supported in doing so by the overwhelming majority of Labour Members of the other House and members of other political parties, with whom I had conversations in the late 1990s. There was overwhelming support for the principle of a Select Committee. I do not believe that oversight is fully credible while the committee remains a creature of the Executive or some halfway house that lacks parliamentary privilege. Privilege is the central issue in this debate—this was raised in the debate on the previous amendment—and that is why I am driven down the Select Committee route.

The problem at the moment is that the committee considers its relationship with the Prime Minister more important to its operations than its relationship with Parliament. The Government’s proposal seeks to address that but, in reality, it will make little difference to the nature of the relationship. I strongly dissent from the view that this relationship with the Prime Minister is more important than the relationship with Parliament, and that is why I favour Select Committee status.

We live on the threshold of an era in which civil liberties and freedoms will be subjected to increasing pressure. In such conditions, one has to beef up systems of regulation, safeguard and oversight. Those systems need to command public support, confidence and trust. I do not believe that, despite the good intentions of its membership and the witnesses who come before it, the ISC, as a creature of the Executive, can possibly meet those tests. What is proposed will in reality make little difference.

The committee needs new and increased powers to call persons and papers and to communicate with other committees. There are times when the information that comes before the committee should, in certain circumstances, be referred to other Select Committees. I shall deal with that in later amendments. This would enable it to carry out its inquiries. It does not mean that security will be in any way breached because mechanisms could be introduced to ensure that that does not happen with the release of material.

It is already acknowledged that the committee needs the power to report directly to Parliament and the argument has been well rehearsed over the years. The ISC needs the power to take evidence under oath: Select Committees have that power. It would not be that it took all evidence under oath but it should have the power to do so. As I say, Select Committees have that power but the ISC does not.

Without going into any details, there are times when the committee might receive assurances on issues where, if those assurances were given under oath, the committee might have the confidence, with the approval of the Prime Minister, to make statements that would be extremely helpful during the course of public debate and in the exercise of reassuring public opinion.

The ISC needs the power to take evidence under privilege. Technically, if a person appeared before the

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committee today, he could libel another person because he would not be protected by privilege. The committee has none of the powers that are afforded to witnesses giving evidence to parliamentary Select Committees. Above all, the committee should have the power to hold witnesses in contempt if they deliberately mislead the committee, which is what happens in the Commons. If Parliament knew that the committee had the ability to take evidence under oath and to hold witnesses in contempt in the event that they were deliberately to mislead, it would substantially increase the credibility of any reassuring statement that the committee makes.

The arguments are not new. They have been rehearsed at length on a number of occasions in the past, most notably during the passage of the 1989 and 1994 legislation—we go back a long way in this discussion. Those supporting Select Committee status included the noble Lord, Lord Hattersley, then speaking from the Labour Front Bench, the future Secretary of State for Trade, the noble Lord, Lord Mandelson, and the future Minister at the Cabinet Office, now the noble Lord, Lord Cunningham of Felling. All made positive speeches in favour of Select Committee status. In 1989, the entire Labour shadow cabinet, including the shadow Home Secretary and Foreign Secretary voted for full Select Committee status and not a halfway house. I have a copy of the Division List and the entire Labour membership in the House of Lords at the time voted for Select Committee status. We are not arguing new principles today.

Some say that legislation is required if the decision is taken to accord Select Committee status, but that is not altogether clear, as the noble Lord, Lord Butler of Brockwell, was saying. It is argued by many that, although some tinkering with the law might be necessary, resolutions establishing the committee—effectively a Joint Committee—carried in both Houses with simple resolutions could cover all the functions of the committee.

I recognise that there is some opposition to the whole proposal. Some argue that the fact that the committee reports directly to the Prime Minister gives individual members of it additional clout, kudos, weight or importance in the political world. That was the view of some on the committee when I was a member. I strongly reject that view. Others argue that no way can be found to restructure the practices and the procedure of the Select Committee so as to ensure executive influence for reasons of national security over material that it may seek to publish. That is simply untrue. A resolution of both Houses could require that the committee sought the approval of the appropriate agency before reporting to the House. The resolutions could further provide that, in the event of a dispute arising between the agency and the committee over the publication of information or evidence in a report to the House, the matter at dispute could be referred to the Prime Minister for his decision and the committee could be required to comply with the decision of the Prime Minister. That is what I referred to during my Second Reading speech as the override.

If in unforeseen circumstances, the committee, or any member of it, were to threaten to breach the committee’s rules and procedure, as agreed by the

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House in these resolutions, it would always be open to the Leader of the House, on the instructions of the Prime Minister, to dissolve the entire committee or to remove any member of it on a resolution tabled on one day which took effect on the next. There are adequate provisions, although I shall argue on a later amendment that this power would need to be exercised with great caution.

I believe that Parliament could carry resolutions that make the committee as hermetically sealed as any structure that currently exists. We are told that such a committee could not be prevented from taking evidence in public session, if that were the wish of the committee. In response, I argue that a resolution of the House could introduce a general prohibition on the Select Committee taking evidence in public session—resolutions of the Commons can be carried to deal with the issue. It could further place a requirement on the committee to seek the permission of the appropriate agencies and the Prime Minister in conditions of dispute, if it wished to take evidence in public in particular circumstances. It is argued that although a Select Committee is neither more nor less likely than the ISC to leak, as a Select Committee it would have the right to publish reports in a way that could prove prejudicial to the interests of national security. A resolution of the House could introduce a general prohibition on the Select Committee publishing reports without approval. It could further place a requirement on the committee to seek the permission of the appropriate agency and the Prime Minister in conditions of dispute, if it wished to publish a report. Safeguards would be available for every eventuality in the event that it were to be created a full Select Committee of Parliament.

As prime ministerial appointees, members are currently responsible for reporting collectively to the Prime Minister. It is argued that such limited powers to report would not be possible if the committee were appointed by the legislature. There is no reason why the resolution of the House should not stipulate the procedure to be used in the publication of reports. It could require the committee to publish its reports subject to sidelining by the Prime Minister for reasons of national security, as currently happens.

It is also argued that a move to a parliamentary arrangement could lead to greater pressures on Ministers to be accountable as witnesses, with less emphasis on agency heads giving evidence. That argument is not supported by an examination of practices in some of the House’s other committees. In my 11 years on the Public Accounts Committee, Ministers never attended as witnesses. I am not advocating a prohibition on Ministers attending the ISC, but Ministers would be no more likely to attend a House Intelligence Committee than the ISC. With hearings being held in private, there will be no additional pressure on Ministers to attend. I believe that with the right membership, a parliamentary committee is as secure as the ISC. I reject the statement in the Green Paper as I said in an earlier intervention; if the right people are selected there will not be a problem.

I remind the Committee that this is the first real open debate we have had in Parliament on this issue in 14 years. I welcome this debate. We need now to grasp

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the mettle and not muck around with some interim or secondary arrangement. There is an expectation among colleagues that the system should work. We must be satisfied that the structure we create is going to work so that we have a system that is credible with the public.

The Marquess of Lothian: My Lords, I have long been an admirer of the persistence of the noble Lord, both in this House and in the other place. Certainly, in regard to his amendment, that is no exception. I wish to correct him on one point he made at the end. There is no prohibition on relevant Ministers attending the ISC and they have done so on a number of occasions. That is simply a matter of fact.

Over the years that I have been a member of the ISC, I was one of those who thought very carefully about the future of the committee and whether it should be a Select Committee. Although I understand many of the points made by the noble Lord, particularly in relation to privilege, I shall say why ultimately I do not agree with him on making this committee a full Select Committee of Parliament.

Over a long—probably overlong—if broken career in the other place, I served on two Select Committees. Their purpose—I refer to the Select Committee on Energy and the Public Accounts Committee—was to openly take evidence that was available to the public on matters of relevance in terms of energy and of public accounting. The culture of a Select Committee is based on being able to take open evidence. There is no compunction on witnesses at a Select Committee to give full answers; there is no evidence given on oath. But normally a Select Committee is not dealing with confidential information that cannot be disclosed in that forum.

4 pm

Earlier, there was a little misunderstanding about the Public Accounts Commission and the Public Accounts Committee, which reminded me that when I was a member of the Public Accounts Committee, we took evidence from no less a person than the noble Lord, Lord Butler of Brockwell, along with two senior colleagues who were both, I think, Permanent Secretaries. There has never been a more supreme and elegant example of three very senior and able civil servants avoiding the question completely. It was such a supreme example that I am told that the video of it was made available subsequently as a training video at the Civil Service College at Sunningdale.

I am making a serious point. If we were to be a Select Committee, there would be a public expectation that we would take evidence in public. I have no objection to the committee doing that where it is relevant—in fact, there is nothing to prevent us doing that at the moment—but I say to the noble Lord that there are many occasions when to attempt to take evidence in public would create an even less high regard for the committee that it maybe has at the moment, because questions would be answered by the agency heads with the words, “We cannot answer that question”. To avoid that, we would have to go down the American path.

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The American culture of committees is very different from ours. The noble Lord may have seen those committees in action but I invite him to go and look at the Senate public hearings on intelligence. The questions are rehearsed, anodyne and provided in advance to the security agencies—a performance that, as a member of the Intelligence and Security Committee, I would be embarrassed to take part in. It is that difference of culture between Select Committees, which are there in order to inform the public in their hearings, and our committee, which is there to get to the bottom of intelligence matters so that we can exercise oversight on matters that cannot be made public, that means that the noble Lord’s amendment is found wanting.

I have every regard for the idea that where information can be made public, it should be made public. I have every regard, too, for the noble Lord’s view that as far as possible Parliament should be the first receptacle of reports, which indeed is provided for in this legislation. But I also understand that there are matters that we take evidence on that are never going to be seen openly in those reports—they will appear as asterisks or redactions—because there are matters of national security that we as a committee need to look at in detail; we need to be able to show publicly that we have gone down those alleys in detail but only the Prime Minister can see the answers that we got. I believe if that was to be done in a Select Committee, it would bring the whole concept of a Select Committee down.

As I said at the beginning, I have listened very carefully and I have some sympathy with what the noble Lord is proposing, but in my experience, in terms of the Intelligence and Security Committee it would be a mistake.

Lord Lea of Crondall: My Lords, I wonder whether we are missing a major point in all this, which is why my instinct is strongly to support my noble friend Lord Campbell-Savours. I refer to public confidence in the work of MI5 and MI6 and what we know about them.

There is a sort of closed shop mentality at the moment, as I see it, what some people call the “secret state”. People have the right to write their books and put titles on them, but when I want to find out how many of the e-mails that I write could possibly be hacked by one of the agencies, there is no way of knowing, obviously. But should there be some way of knowing the categories of e-mails that can be hacked? Is it part of national defence and security that we do not know an awful lot about what is going on? This has a tangential bearing on whether it is a parliamentary committee or whether it is the committee that we have at the moment. Incidentally, as I understand it—I will be corrected if I am wrong—there is no Labour Member of the Lords on this committee at present. Is that correct?

Lord Butler of Brockwell: There are Labour members, but not Labour Members of the House of Lords. There are two Members from the Lords, my noble friend and a Cross-Bencher, but there are Labour Members from the House of Commons.

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Lord Lea of Crondall: The noble Lord, Lord Butler, is correcting something that I did not say. I said Labour Members of the Lords. There are no Labour Members of the Lords on this committee.

The information flow should be the subject of a much more substantive statement by the Minister when he responds than is normal on these occasions. I was interested in the remark made as an aside by my noble friend Lord Campbell-Savours on the fact that this question en principe has never been discussed in the past 14 years. I rather suspect that if we were setting up a constitution for a new member of the United Nations, we would be a little worried if that were the case. Although I am not saying that this amendment is the right thing, I will support it because I believe that it opens up a very important question. We know that the noble Lord, Lord King of Bridgwater, is a typical, reputable, outstanding and well respected member of the circle in which this sort of activity takes place. It used to be called the Establishment. I do not know whether that was a compliment or an insult; it was half way between. However, we do not need to be so scared of the idea that we are always playing into the hands of enemies of the country, whether it is al-Qaeda or anybody else, if we have a more adult approach to these matters. Political balance is needed by those who have been involved in the agencies—I see a couple on the Front Bench—where people find it perhaps difficult to understand the world where other people come from. It would be much better if the normal rules of political balance and openness were observed.

Finally, as regards the remark of the previous speaker, we had the example last week of members of the Treasury Select Committee not covering themselves in glory when asking questions about LIBOR because they did not really understand what they were talking about. I can see the objection that ordinary souls on a committee like this would be of no use because they would not know what they were talking about. Obviously, by definition, they would not know what they were talking about as they would not have been serving in one of the agencies or been on this intelligence committee for a number of years or been Secretary of State for Defence or whatever. I wonder whether that is going to inspire public confidence.

Lord Deben: My Lords, I intervene as somebody who has not been a member of this committee. I have now managed to get papers from the noble Lord who sits next to me. Unusually I find myself wishing to ask my noble friend to listen carefully to the words of the noble Lord, Lord Campbell-Savours, for the following reason. The issue is the confidence of the public in this committee. I have a difficulty of inventing a committee of a particular kind in order to meet that confidence requirement because it seems to start from a grave disadvantage of looking as if you have an artefact here. People complain about the fact that nobody seems to know too much about what goes on, so let us invent something that seems to meet their requirements. That is what it will look like if we make the alterations suggested by the noble Lord, Lord Butler, although I am entirely in favour of them.

The advantage of a Select Committee is primarily that it is something that people know and it has, over

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the years, established a position, as a concept, of independence. It clearly is not the creature of the Prime Minister or of the political parties. It is manifestly, and increasingly, with the election of its chairman, an independent form of investigation. Therefore, prima facie, it would be much more sensible to use that mechanism and to make such changes as are necessary for the particularities of such a Select Committee so that at least when it is referred to as a Select Committee people immediately catch on—in so far as they know about anything in Parliament—that this is an independent, non-party parliamentary committee that is treated by its members as a place where they work in the national interest and not in their party-political interest.

I think there is an important advantage in using the Select Committee structure. My worry is that my noble friend will be led by all sorts of officials—I have been in this position and I hope that the noble Lord, Lord Butler, will excuse me when I try to describe it—of the “better not Minister”, “it would be safer to do something slightly different”, “you never know what might happen” kind. That attitude is endemic in the giving of advice because advisers would prefer not to have given advice that turned out not to be quite right, so it is better to give the most negative advice.

I hope my noble friend the Minister will be prepared to say that we can create a construct that is a Select Committee and sits naturally in the parliamentary structure but is specifically designed to deal with security matters and will be what everyone outside will recognise is different from a Select Committee on the environment or a Select Committee concerned with trade and industry. Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special?

I very much respect my noble friend Lord Lothian and I understand his fear that the Select Committee will be expected to have public hearings. I agree that a public hearing in which every answer is, “I am afraid I can’t answer that” will be an embarrassment and not helpful, but it seems to me not impossible that, before any such hearings are started, this Select Committee should publicly be said to be a Select Committee that does not have public hearings, except in unusual circumstances. You start off as you mean to go on. No one would misunderstand that. Indeed, I think if it were stated like that, it would be much easier for the committee to proceed, and I would like to see it. But to say that because it is different from other Select Committees in that sense, it ought to be set up in an entirely different way is a mistake because it is more similar to a Select Committee in every other manner. What people want to know is that it is independent and all-party, that its members take things seriously as parliamentarians and that its secrecy is only the secrecy that is necessary because of the nature of the things that it discusses.

I hope my noble friend will not be led astray by the siren voices of those for whom this is a step too far. We have been a long time discussing this issue. The noble Lord, Lord Campbell-Savours, reminded us of how long and there was time before even he came on the

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scene in which this discussion was taking place. I hope we will not step back now. We ought to do the thing properly and set down the terms of the Select Committee in advance.

4.15 pm

Lord Carlile of Berriew:My Lords, I welcome the opportunity to say a few words on this amendment, mainly because I always listen with great respect to the noble Lord, Lord Campbell-Savours. His knowledge of parliamentary procedure is second to none and he is probably the most skilful of anyone I have observed in what one might call the parliamentary maze. However, I disagree with his proposal that there should be a Select Committee for the following and other reasons.

First, intelligence is not created in a vacuum but for a reason. Sometimes it is found to be created for a reason that proves to be suspect but not necessarily to be followed. It is not completely free of scrutiny; far from it. A little later in the Bill there are references to the Intelligence Services Commissioner. I am bound to say—I said this before when I was independent reviewer of terrorism legislation—that the Government and the security services could give a more coherent and fuller narrative of what they do. I pay tribute to the noble Baroness, Lady Manningham-Buller. She started the process in a convincing way of giving at least some narrative that enabled not only the public but, perhaps more importantly, parliamentarians in the first instance to understand why certain things were being done and certain actions taken. It is subject to oversight and it is necessarily subject to confidentiality. Accountability is very important but we have to face up to the fact that full transparency can never be achieved, and indeed should never be achieved for it runs the risk of exposing those who do very difficult tasks for our intelligence service to risks to which we would not wish them to be exposed.

Furthermore, a Select Committee of either the other place or both Houses involves the normal Select Committee procedures. It is very difficult to limit those procedures because Parliament makes its own rules. Those of us such as the noble Lord, Lord Campbell-Savours, a number of others present and me—derided as we are by some for having been in the House of Commons before coming here—know something that possibly not everyone else knows, which is that Erskine May is not like a legal textbook. The rules of parliamentary procedure are often made up as you go along and one cannot anticipate clearly what they will be. Sometimes the mood of the nation changes those rules. Think back to what happened in London on 7 July 2005 to see the emotion that followed those events and how easy it would have been for parliamentary procedure to have been changed, either to make a Select Committee much more secretive in its approach— inappropriately so perhaps—or to go the other way and open up everything to public scrutiny.

If Members of this House or another place are appointed to Select Committees by the normal route, it exposes much of what is given to them to their staff. The Government should be entitled to look at the ability of the proposed members of a committee to retain and hold to confidential material and the reliability

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of their staff. The one thing one cannot afford in this area is inadvertent leaks or the innocently meant, but foolish, acts of the unwise.

What the Government propose in this Bill is, in my judgment, appropriate. We have a committee that is accountable but not wholly transparent for perfectly good reasons. It has the capacity to look at secrets in detail but within an appropriate context—as limited, for example, by Clause 2(3), which means that the Prime Minister and the ISC must be satisfied as to the part that anything that might be inquired into plays in any ongoing national security operation.

My judgment, for what it is worth, is that what the Government propose in this Bill creates a prudent and carefully thought-out structure for the proper and rigorous scrutiny of how secret material is dealt with by Her Majesty’s Government. There is a danger that we play into the hands of those who believe that because something is secret there is some kind of ghastly Executive conspiracy going on. That is completely untrue. Of course, mistakes are made; there are people in the secret services who have to delve into the most difficult things that face our society, and they are bound to make mistakes. I hope that occasionally they do make the odd mistake in the protection of the public, because overcaution is not a bad thing if it saves lives—sometimes large numbers of lives. But the menu provided in this Bill allows the proper balance, and I shall, if necessary, not support the noble Lord’s amendment.

Lord King of Bridgwater: The noble Lord has great experience in these areas, and I take it from the tenor of his argument that he is not advocating a Select Committee approach. He said that he was in favour of what the Government have in the Bill, but since then the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, have produced amendments. What is his view on those?

Lord Carlile of Berriew: At the moment I am dealing with the amendment proposed by the noble Lord, Lord Campbell-Savours. I listened with great care to my noble friend Lord Henley from the Front Bench, and I am very content with the approach that he has taken. We should wait and see what the Government come up with in answer to the noble Lord, Lord Butler, who has great wisdom and experience in these things—I am completely open-minded about that. But I am not happy with the idea that we should have a conventional Select Committee or, even worse, a Select Committee whose rules have been fiddled with for this purpose.

Lord Elystan-Morgan: My Lords, like many Members I have been greatly impressed by the contribution made by the noble Lords, Lord Campbell-Savours and Lord Carlile. Both have the gift of being able to articulate their views with awesome clarity and very great force. If one had to, I should find it somewhat difficult to decide which one is correct in this matter. However, in respect of this debate and the earlier Amendments 1 and 2, it seems that everybody’s objectives point very much in the same direction.

In the first instance is the desire for sovereignty and independence for this particular body. By sovereignty one means that it is an organ, extension and delegation

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of Parliament, to such a degree that, as far as the Bill of Rights is concerned, it would be unchallengeable in the courts. I think that we are all agreed on that matter. At the same time, it has to be independent of the Executive and Prime Minister, which means that it should be, to use a canine expression, the watchdog of Parliament rather than the poodle of the Prime Minister. It is much easier to enunciate that principle than to work it out exactly because, by definition, the Prime Minister and to a large extent the Home Secretary has a constant flow of intelligence information, which will simply not be disseminated generally.

My other point relates to Select Committees. I listened carefully to the noble Marquess, Lord Lothian, and believe that the concept of a Select Committee is sufficiently broad and flexible to allow a great deal to be done of the nature suggested by the noble Lord, Lord Campbell-Savours. I would have thought that a Select Committee could always decide whether to sit in public or not and, if so, on exactly what terms. A Select Committee can decide whether a single word of its report is to be published or whether there is to be general publication, subject to sidelining. Sidelining, of course, can be a severe sanction. I will never forget the day, in about 1967, when I was a Member of the House of Commons and that flamboyant and splendid Member of Parliament Tam Dalyell was hauled before the House to answer a serious charge of contempt. It related to a Select Committee that was looking into the affairs of Porton Down, a most delicate situation as we all appreciate. There was an awesome hush; it was almost like a public flogging. There was the miscreant standing ashen-faced at the Bar of the House. It taught me a lesson about the tremendous and terrible jurisdiction that the House of Commons has, if it wishes to use it in a situation like that.

Where do we arrive? First, at a body that is not appointed by the Prime Minister; secondly, a body that is unchallengeable in the courts; and thirdly, a body—possibly a Select Committee—that is able to do its work with the confidence of the public, and yet able to maintain an absolute confidentiality which is so important to its very function.

Lord King of Bridgwater: My Lords, I agree very much with the noble Lord that—as the noble Lord, Lord Butler, said—there is no argument about the ends. We need to establish public confidence in a very important committee which has a very important role in overseeing the intelligence agencies and which clearly has to be regarded as being in a different world from the other areas of responsibility that Select Committees deal with. This is a difficult issue and a number of interesting points have come up during this debate which I had not anticipated. One point, made by my noble friend Lord Lothian, was the implication that this must involve, as I understood it, a majority of public hearings. My understanding is that the Defence Select Committee, particularly when discussing our nuclear deterrent, goes into secret session and there has never been any problem with that. I am not aware of any leaks from any of those proceedings. However, it is a challenge. The noble Lord, Lord Campbell-Savours, might remember that when we tried to meet totally in secret, as we did, I tried to see whether there was some

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way that we might at least have a public hearing. I certainly saw the risk, exactly as posed by my noble friend Lord Lothian, that if you were not careful you would end up with prepared questions and prepared answers—all planted—and it would be just a stage show, which would not carry much credibility.

As for the challenge about how we achieve this balance, I reflected on a bit of history. When Sir Anthony Blunt had to be outed at the beginning of the 1979 Administration of the Prime Minister Margaret Thatcher, there were considerable debates about whether it was time to have some sort of committee. Jonathan Aitken got quite a bit of publicity for being in this particular session when he stood up and said that,

“one debate and one Written Answer do not add up to adequate and continuing scrutiny of the Security Service”.—[

Official Report

, Commons, 21/11/79; col. 446.]

I think we would all agree with that. He said the Government should take the initiative and if they did not move to establish a “senior and more cautious” committee of privy counsellors, then in a different Parliament—perhaps one dominated by left-wing Back-Benchers—a more intrusive, less sympathetic Commons Select Committee might be set up.

4.30 pm

That was in 1979. I looked on a bit further and saw what I certainly did not attribute to the noble Baroness, but related to the rather dismissive comment of the Deputy Prime Minister about our “veneer of experience”. I found that the noble Lord, Lord Butler, was dispatched to Canada and Australia in 1992 to garner information on their different systems of oversight. That reminded me of one of the pitfalls of the system of oversight in Australia. It was decided there that it was right to set up an oversight committee. Therefore, the Chief Whip sent round a note saying, “Is anyone interested in being on the oversight committee?”. All the awkward squad—the only people who had taken much interest in the intelligence agencies, half of whom thought that they ought to be abolished—found themselves appointed to the oversight committee. It is no secret that it was not very long before that system completely collapsed because the agencies were certainly not going to pass on any information to people who were determined to abolish them anyway.

On the issues that have to be addressed, I have great respect for my noble friend Lord Deben and the noble Lord, Lord Carlile, who, in addition to the noble Lord, Lord Campbell-Savours, have persuasively set out the arguments here. The noble Lord, Lord Carlile, raised the fear that is ever present in the minds of those responsible for our affairs, whereby you could fall foul of an angry and disruptive Parliament, the orders of procedure and rules of the House could in some way be changed, and your beautifully constructed Select Committee could be torpedoed or undermined and found to be a seriously damaging institution. The difficulty, as the noble Lord, Lord Elystan-Morgan, said, is that the risk is not just of being summoned to the Bar of the House but of some real damage being done to the national interest—perhaps real damage to our relationship with the United States intelligence agencies, which are, as we know, important to our activities in our intelligence and security arrangements. These are considerable considerations.

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The issue is that the committee cannot be a normal Select Committee. The noble Lord, Lord Campbell-Savours, has accepted that because he has proposed in a later amendment that the chairman must be appointed by the Prime Minister. I support the noble Lord on that for reasons that we might discuss later. What is actually proposed in the Bill—no amendment to this has been tabled—is:

“A person is not eligible to become a member … unless … the person is … nominated for membership by the Prime Minister”.

However, Parliament has the power to reject someone who is nominated by the Prime Minister, in which case the Prime Minister has to nominate someone else. That situation is a sort of halfway house.

How the issues are handled are part of all this—issues relating to the method of appointment of the chairman or membership, public hearings, or redaction—noble Lords will be familiar with the question asked in the Intelligence and Security Committee report asked: how do we control the dreaded asterisks that keep bouncing up. One can move to a Select Committee. The Minister responded constructively on Amendments 1 and 2, and Amendment 3 also ought to be taken away by the Government. They should sit down and consider whether there is a way forward. I have a sense that we will get there in the end. The committee started in 1994 and is 18 years old. We might just consider that we are brave enough to move on and involve parliamentarians who have proved that they can be trusted. That issue is important and I hope that this can be sustained.

I was honoured to be the first chairman of the committee, and we had a very high standard of membership. Virtually everyone was a privy counsellor and a number had previously been Ministers. The representative from your Lordships’ House at that time was my noble and learned friend Lord Howe of Aberavon. As a former Foreign Secretary, he had had responsibility for both the SIS and the GCHQ. He was succeeded, when the Government changed, by a Labour Member of this House who is sadly no longer with us, Lord Archer of Sandwell. Now we have broken major ground because two Members of the House of Lords are included in the nine and, in winding up the Second Reading debate, the Minister said there was no reason under the statute why there should not be eight Members of the Lords and one Member of the Commons. It would be a brave person who suggested that, but it is possible under the legislation.

A number of issues need addressing, but I remain attracted to the idea of moving to a Select Committee, with all the proper safeguards and without any obligation to hold public hearings, which would be very difficult. The evidence of the US Senate Select Committee on Intelligence suggests that, even though it has had problems of security and leaks, those would have happened whatever form the committee took at that time. We can take some comfort from that.

Baroness Hamwee: My Lords, like other Members of the Committee I am a bit puzzled about how polarised the debate became a few minutes ago. It seems to have swung back now. I do not see all the distinctions that have been drawn, and I certainly do

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not see the distinction between the committee being there to ask questions in public or as something different to get to the bottom of an issue.

I agree, of course, that the committee must have the confidence of the agencies and that it must have public confidence. I would add, perhaps as a subsection of that second point rather than as a third category, that it must also have the confidence of those affected by events. When I was a member of the London Assembly, I was involved in some work following the events of 7/7, and one of the benefits of our being able to undertake some work was that it fulfilled the need of some who had been affected to tell their story and to have their story listened to. I am not suggesting that this is a pattern or even relevant to the majority of the ISC’s work, but I would not want it to be forgotten.

I think that this debate is leading us towards there being a Select Committee and that badging it as such is important because of what that says about the focus of Parliament’s responsibility to the public. I do not think it would require the rules to be fiddled with, but it would require them to be made fit for purpose. Perhaps it is naive and untraditional of me, but I do not see why the rules of a Select Committee cannot be made fit for purpose. It might require a lot of work, but I think it ought to be done.

I have some very non-technical and rather inelegant amendments later, but the point that they are intended to raise is that the default should be that the committee works for the public and in public, not as a stage show—absolutely not, because to take up one of the points that has just been made, I for one think that the most important questions that tend to be asked are the supplemental ones. I am glad that we are having this debate because I think that it is taking us in an important direction.

Baroness Manningham-Buller: My Lords, I declare what I hope is an obvious interest—my membership of the Security Service for 33 years—although I should warn the Committee that I retired five years ago and so am out of date.

I should like to reiterate a couple of points. I listened with great interest to the points made by both former members of the ISC, current members and others with a close interest in this matter. It is certainly the case—and I do not think that I am out of date in saying this—that it is in the interests of the security and intelligence community to have either a Select Committee or the present committee as it stands seeking to give reassurance to Parliament and the public that these agencies are properly run, obeying the law and doing a reasonable job. As the noble Lord, Lord Carlile, said, they will make mistakes—it would be a delusion to suggest that any organisation was free from making mistakes—but certainly when I was reporting to the ISC I hoped to own up to and discuss those mistakes.

The support of members of the public is necessary not only in terms of general support for the organ of government but because, to do their work, the agencies require that support every day of the week. They need the public to join them as recruits—they want to attract high-quality recruits—they need them as sources of information, and they need them to help in whatever

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way possible. Someone might be asked, “Can I come and sit in your bedroom with a camera?”. I might say no but people say yes to the officers of the Security Service daily. Therefore, when we talk about public opinion, the services require the help of the public to do their job and, in my experience, they get it.

When we talk about whether to go for a Select Committee—a proposal with which I have a lot of sympathy—or an improvement on, or development of, the last one, I share the view of the noble Lord, Lord King of Bridgwater, that we will get there at some stage, although whether we will do so at the speed at which the noble Lord, Lord Campbell-Savours, would like, I do not know.

I am sorry but I feel that I must take slight issue with the noble Lord, Lea of Crondall, about the amount of information on the services that is available in the public domain. For certain, my service took its heart in its hands and commissioned a centenary history of the Security Service. We made the professor of contemporary history at Cambridge a temporary member of the service and allowed him into our records. We said, “You can make any judgment you like. We won’t seek to query it. There will be a few things that you can’t publish for national security reasons but we will keep those to a minimum”. If you look at our website—I must stop saying “our”; I left the organisation. If you look at the Security Service’s website, you will see quite extensive amounts of information.

Why do these organisations exist? They exist to try to protect the United Kingdom and its citizens, and it is in their interests that as far as possible the confidence in them is well founded and, as far as it can be, widely and publicly known. To that extent, I should like to say how much I welcome the arrival of the ISC and how much I look forward to its continuing evolution.

Lord Butler of Brockwell: My Lords, I wish to make a brief point. In doing so, I know that I risk being regarded by the noble Lord, Lord Deben, as the siren voice of cautious officialdom—or, in my case, cautious former officialdom. However, I want to raise a question on what the noble Lords, Lord Campbell-Savours and Lord Deben, said.

The argument of the noble Lord, Lord Deben, was that the badging of the security committee would be improved if it were called a Select Committee. I can see the case for that. I think we all agree that the ultimate purpose is that the public should have confidence in the committee’s scrutiny of the intelligence services. However, it was clear from the speech of the noble Lord, Lord Campbell-Savours, that if this were to be a Select Committee, it would have to be hedged around by a very large number of parliamentary resolutions, and that would have the same effect as the constraints that are written into the Bill. The question is: would that make it more convincing if it were a Select Committee when it was a Select Committee unlike any other because it would be so inhibited by those restraints?

They say that something which looks like a duck and quacks like a duck can be regarded as being a duck, but this would not look like or quack like a Select Committee; it would be something completely

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separate. I suspect that this might reduce, rather than increase, public confidence in it because people would see that it was a Select Committee that did not operate like any other Select Committee and could not really be regarded as a Select Committee in the true sense in which the public understand it.

Lord Campbell-Savours: Could I draw attention again to the noble Lord’s own argument over privilege? The issue of privilege will not arise in the event that it is a full Select Committee because by definition it has everything that the noble Lord proposes in his amendments.

4.45 pm

Lord Butler of Brockwell: I accept that, and we will be coming to some other amendments where I will be arguing that we should have our cake and eat it. We are entitled, however, to have our cake and eat it. For the reasons I have been arguing, I do not think that it is advantageous to have this as a Select Committee because I do not think it can be like any other Select Committee. I do think, however, that it requires special arrangements to give it the privileges of a Select Committee, and I do not withdraw that argument.

Baroness Smith of Basildon: My Lords, the noble Lord, Lord Campbell-Savours, has done this Committee a service in degrouping his amendments. It is a broader and deeper debate than the one we had on the first two amendments. It has been extremely helpful. The noble Lord, Lord Elystan-Morgan, hit the nail on the head when he described it as a useful debate with a lot of consensus. I disagree with the noble Baroness, Lady Hamwee, who said this was a polarised debate. I am not convinced that it is. This is less about what we expect the ISC to do and how we expect to do it than the structure that can best achieve those objectives. There seems to be a fair amount of agreement on the kind of objectives we are seeking. I wrote down a couple. The idea of a veneer of expertise has now been firmly laid to rest. I hope that we will not hear that expression again either in your Lordships’ House or outside. I was intrigued when the noble Lord, Lord Deben, mentioned to the Minister the comments from civil servants. I felt the ghost of “Yes Minister” creeping into our debates. Civil Service Ministers sometimes have to make a decision and challenge civil servants on some issues.

The areas of broad agreement were the independence from the Executive and the issue of parliamentary privilege. I thought the comment of the noble Lord, Lord Campbell-Savours, about the power to take evidence under oath was a powerful one. Security of information caused considerable concern for those who are not keen on having a Select Committee structure but who also, like the noble Lord, Lord Campbell-Savours, want to protect security of information if there is any question on that. There is the same point even if the structures are different.

The issue of public hearings came up. I am not sure how relevant that is in terms of structure in that amendments have been tabled about the kind of public hearings there could be and what form they could take. My own view is that they are valuable. They

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certainly should never be automatic but we have that debate coming up. I am unclear whether a Select Committee would have to have public sessions unless the Committee wanted to have it. It is the best structure for achieving that.

We have also heard from a number of noble Lords about ensuring public confidence in whatever structure the Government decide to go ahead with. It was helpful that in the last debate the Minister, if I understood his words correctly, said he wanted to look at the best means of achieving these ends and consider all implications. I hope he can say that in the context of this debate as well. It has been a broader debate in that noble Lords have been thinking carefully about powers, independence and structure, and I hope the Minister finds that debate and those comments and views helpful.

Public confidence is an issue to take into account. It can be well served by public hearings or it can be badly served by public hearings, and we will debate that further today. Public confidence does have an impact on how sensitive or highly confidential information that is relevant to national security is dealt with. So I am interested in what the Minister has to say. I hope that he will take on board all the comments made in the last debate and in this debate. I hope that he is smiling because he agrees with me rather than because he is amused by what I said. I hope that he will say—as I hope I would say if I were sitting in his seat—that he will take this away and take into account not only the comments that were made in the previous debate but the wide range of views expressed in this debate. They are moving in the same direction and seek that, whatever structure the Government want to proceed with, the comments of the House should be taken into account to ensure that the Government get it right, protect national security, safeguard sensitive information and also secure parliamentary independence and public confidence.

Lord Henley: My Lords, I was smiling at the noble Baroness only because I thought that she was trying to write my speech, which was not necessarily her job at this stage. I agree with her about several things. It has been a very useful debate. The 11 speakers—12 including myself—expressed a range of views. As the noble Lord, Lord Elystan-Morgan, said, we are all heading in the same direction and all trying to ensure, as a number of speakers put it, that there will be an appropriate degree of public confidence in whatever we set up.

I was very interested in the opening remarks of the noble Lord, Lord Campbell-Savours. He talked about the position of many colleagues in his party in 1989. Many of them are now distinguished members of his party. He stressed that all of them, to a man and woman, were in favour of Select Committee status for what became the ISC in 1994 under the chairmanship of my noble friend, and what is now being developed by the Bill. I was looking forward to hearing the official view of the Opposition on whether Select Committee status was the appropriate road to go down, but I heard no answer on this from the noble Baroness later in the debate, nor on what the collective view of the party was. It might be that there are now different views, because 1989 is a considerable time ago.

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Lord King of Bridgwater: The view about a Select Committee is rather easier to hold if you are in opposition than if you are in government. The history of this was that the entire shadow Cabinet in 1989 voted in favour of it. When the prospect of office loomed, Jack Straw, who was then I think shadow Home Secretary, was asked the same question and was much more cautious about the whole matter. Of course, when they came into government there were no moves to introduce a Select Committee. However, times have moved on and I hope that there will be moves in that direction.

Lord Henley: My Lords, obviously my noble friend is right to say that times have moved on. All of us can remember as far back as 1989. Things have obviously changed since then. I was merely trying to tease out the official view of the Opposition at this stage, but it does not matter because as we all know, and as a very distinguished Cross-Bencher, the noble Lord, Lord Elystan-Morgan, made clear, we are all heading in the same direction and at least trying to make sure that we achieve the right thing—a committee that has the appropriate degree of public confidence.

I do not want to re-emphasise what I said earlier about the ISC being appointed by Parliament rather than the Prime Minister, and about its members being free to choose their own chair. That will be debated later, in the context of another amendment tabled by the noble Lord. In parallel with these statutory changes, it is the Government’s intention that the ISC will be funded and accommodated by Parliament. The amendment sets up the ISC as a Select Committee of Parliament. The noble Lord could have achieved that by the simpler means of leaving out the whole of Part 1 and making sure that the appropriate authorities in another place created the Select Committee—but he went down a different route and we are having this debate for the very good reasons that all speakers in the debate made clear.

I will explain why we believe that the ISC should be created by statute. It is to ensure that safeguards are in place to protect against the disclosure of sensitive information. Therefore, the Government do not consider it appropriate for that body to be a full Joint Committee established merely under the Standing Orders of each House, as other Select Committees are.

I hope that the Committee will bear with me if I expand on those reasons. First, in that scenario, the Government would not have a statutory ability to prevent the publication of sensitive material. There are two main problems with this. The risk of disclosure of information that might damage national security could be increased. This might lead to a situation where agency heads find it hard to reconcile their duty to protect information with their duty to facilitate oversight. This could lead to a sharing of less sensitive information and therefore a corresponding reduction in the effectiveness and credibility of oversight.

Secondly, it would not be possible for the most sensitive information to be withheld from the Committee. It is important that safeguards exist so there is adequate provision for those exceptional circumstances where the disclosure of information, even to the Chairman of the Committee, would be damaging to national security and/or would jeopardise vital agency operations

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or sources of information. The equivalent grounds on which information can be withheld from the Committee under the Intelligence Services Act 1994, have been used very rarely, as those former or current members of the Committee will know. We would expect the similar powers in the Bill also to be used sparingly—only in exceptional circumstances.

Thirdly, there is the appointments process. Again we will deal with that in greater detail later on. Here the Prime Minister has a role, and the noble Lord, Lord Campbell-Savours, in a later amendment proposes a much stronger role for him. That role is important. The ISC is unique in that members of the Committee have access to very important and extremely sensitive information, and it is important that the appointments process has sufficient safeguards to ensure there is as little risk as possible of unauthorised disclosure of sensitive information and the consequences that could do significant damage to national security.

The effect of the noble Lord’s amendment to create a Select Committee is not clear to me. He says it could take evidence under oath. In the Bill, even if we were to accept all the noble Lord’s amendments, the ISC would still be created by statute and safeguards would still exist to protect national security in those three areas I have listed, although admittedly altered to some degree. Unless the noble Lord pursues this suggested alternative policy of deleting the whole of Part 1, his amendment would not create a full Joint Committee because that can be done only by the Standing Orders of each House. It would create an entirely novel body, a Select Committee established by statute.

To what extent would such a body share the characteristics of the other Select Committees? The Bill makes it clear that, even were it amended in other respects according to noble Lords’ wishes, the ISC is different from other Select Committees in fundamental respects—for instance, in relation to appointments and reporting. That being so, I believe it is unclear whether or to what extent changing the ISC in this way would give it the other characteristic of a Select Committee. Indeed, I believe the risk is that describing the ISC as a Select Committee when it has characteristics not shared by other such committees could positively mislead as to the ISC’s true character.

I hope that that explanation is sufficient for the noble Lord. I wait to see what he says. This has been a useful debate and there will no doubt be further discussions on this matter, but I believe that it is appropriate for the noble Lord to withdraw his amendment.

Lord Campbell-Savours: My Lords, perhaps I may say a few words in winding up the debate. I say to the noble Lord, Lord Henley, that I recognise the wording I have used could not be put in the Bill. My amendment is simply my attempt to ensure that there is a debate. I recognise perfectly well that if we were to go down this route, while there would be, as the noble Lord, Lord Butler of Brockwell, said, a requirement for something in statute, the body of the change would be incorporated into parliamentary resolutions.

5 pm

I thank the noble Lords, Lord Elystan-Morgan and Lord Deben, the noble Baroness, Lady Hamwee, and my noble friend Lord Lea of Crondall for their support

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in principle of what was said and their recognition that this is an argument about the credibility of the committee and the securing of public confidence in whatever arrangement we make. The noble Lord, Lord Elystan-Morgan, was correct when he said that we all want the same. We are all looking for a solution which meets those criteria.

I thank the noble Lord, Lord Carlile of Berriew, for his comments on my modest experience over the years but I am not asking for total transparency. I believe that it is quite possible for resolutions of the House of Commons to circumscribe the powers of the committee. In 1998 I went to see the then Mr McKay, one of the clerks in the Commons, and I went through all these matters with him. We took them one by one to ensure that what I was arguing at the time would stand up and be supported by way of parliamentary resolution. So much of the concern to which the noble Lord referred would be dealt with under the arrangements that I am setting out.

I am indebted once again to the noble Baroness, Lady Manningham-Buller, for her sympathetic approach to my argument. I also hope that the noble Lord, Lord Butler of Brockwell, will reconsider his position if assurances are not forthcoming on his privilege amendments. If the Government cannot give him the assurances that he seeks on the issue of privilege then I am afraid that he will be left with no option but to support Select Committee status, unless he wants no change.

The wording of my amendment is limited in the sense that it cannot be incorporated into law as it stands. I had prepared a long contribution—which I am not going to make—on how the wording could be established in law. I had been informed that there were concerns about the fact that I was trying to place duties and responsibilities on a Select Committee that have been set out in statute. I researched other legislation, including the Parliamentary Standards Act—of which the civil servants in the Minister’s department might wish to be aware—and the National Audit Act, where there are precedents for making the required changes in statute.

On that basis, and at this stage, I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by Lord Butler of Brockwell

4: Clause 1, page 1, line 9, at end insert—

“( ) Financial support shall be available to members of the ISC who are members of the House of Commons as if they were members of a Select Committee of that House; and to those who are members of the House of Lords as if they were members of a Select Committee of that House.”

Lord Butler of Brockwell: My Lords, I shall speak also to Amendment 9.

It is right and customary to declare an interest in these amendments. I certainly do so in this case because I have a direct financial interest in Amendment 4. The purpose of the amendments is that the chairman of

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the Intelligence and Security Committee should be treated in the same way as the chairmen of Select Committees in terms of remuneration. The purpose of Amendment 4 is that the members of the Intelligence and Security Committee should, similarly, be treated in the same way as members of Select Committees.

I wish to make it absolutely clear that Amendment 9 is not tabled at the behest of the current chairman of the ISC, the right honourable Malcolm Rifkind, who does a great deal of work for the committee on an entirely voluntary basis. I think that my colleague the noble Marquess, Lord Lothian, will agree that this committee chairman certainly does not do less work than the chairman of a Select Committee. He works many more days of the week than the days on which the ISC meets. For financial purposes—and leaving aside the particular individual, Sir Malcolm Rifkind—the chairman of the ISC should, as a matter of justice, be treated similarly to the chairmen of Select Committees and receive remuneration accordingly. I think I can say that that is the view of the other members of the ISC, who are similarly grateful for and deeply impressed by the work that our chairman does.

As regards Amendment 4, the House of Lords is kind enough to provide that attendance at meetings of the Intelligence and Security Committee should qualify for half the daily allowance—£150—but only on the days when this House is sitting. There seems to be no logic in that. We do exactly the same amount of work regardless of whether this House happens to be sitting at the same time. If one day should qualify for the £150 allowance then it seems that the other day should. This point arises because, these days, and as we will see in the next couple of weeks, the sittings of the House of Commons and the House of Lords do not always coincide with each other. I regret that. It may happen in September that the House of Commons will sit and the House of Lords will not. If there is a meeting of the ISC on those days, my noble colleague and I will not be eligible for the daily allowance. There is a greater injustice as a result of the unevenness of the sittings of the House of Commons and the House of Lords.

I have, as I say, a personal interest in this perfectly simple point of equity, which ought to be put right. It can easily be put right in the rules on the financial support of the House. In order to draw attention to it and try to ensure that it is put right, I have put down Amendment 4.

The Marquess of Lothian: My Lords, I support the noble Lord, Lord Butler of Brockwell, in both of his amendments, to which I have attached my name. Like him, I declare an interest in Amendment 4—on which I shall say no more than he has said. He has argued the case with great eloquence and I hope that the Government will listen to his argument.

In general terms, I say to the noble Lord, Lord Campbell-Savours, that these amendments are slightly ironic, given what I was saying in answer to his previous amendment. We are asking to be treated like a Select Committee and, once more, this underlines the fact that the argument on that is not polarised. It is not

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about the theory of a Select Committee but about the practice of one. We may well return to this matter in the future.

I strongly endorse the proposal in Amendment 9 that the chair of the committee should be remunerated in line with the chair of departmental Select Committees. I have served under four Intelligence and Security Committee chairmen, I think, and in each case I have been amazed at the amount of work they are required to do compared with the ordinary members of the committee. The ordinary members do preparation behind closed doors in secure surroundings for an afternoon and then we have the meeting the next day, but the chairman is in almost every day, going through issues, deciding whether they should be brought to the committee. The chairman has a major piece of work. It is therefore only fair that the chairman should be properly remunerated, as he would be if he were a chairman of a Select Committee.

Lord Campbell-Savours: My Lords, I wholeheartedly support the amendment. My parting speech in the House of Commons in 2001 was on the very issue of the payment of chairmen of Select Committees. I wanted to see the development of what you might call a separate career structure in the legislature as opposed to the Executive. When I was a member, the chairman, the noble Lord, Lord King of Bridgwater, did excellent work. When I think of the amount of work that he took on, it is inconceivable that we should now push through legislation without taking full account of that work and the need to ensure that it is remunerated.

Lord King of Bridgwater: I intervene very briefly. I thank the noble Lord, Lord Campbell-Savours, for his comments and for those that he made at Second Reading, for which I am grateful. I am not sure whether this amendment can be made retrospective, but it seems an excellent idea. I do support it—it seems logical if a Select Committee chairman in the House of Commons now has it. I understand my noble friend Lord Lamont made the point. The point the noble Lord, Lord Butler, raised is pretty fundamental because it applies to every Select Committee of this House. If the House is not sitting, people do not get any allowance even if those committees are working. The issue goes a bit broader than just changing it for the ISC.

Lord Butler of Brockwell: If I may correct the noble Lord, it is worse than that. Under the arrangements for other Select Committees of this House, the members qualify even if the House is not sitting. The noble Lord shakes his head but if he looks up the rules he will find—I see the noble Baroness, Lady Hamwee, agrees with me—that for Select Committees the allowance is available on days when the House is not sitting, but for the ISC it is not.

Lord King of Bridgwater: I am grateful to the noble Lord. He has cheered up the noble Lord, Lord Lamont, quite considerably if that is right because he was telling me of the committee session he must attend in the Recess. I simply say that I support this. I do not know quite what the first part of the amendment means or whether the Minister will explain it. I am not

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clear what the financial benefits are for Members of the House of Commons when they are on Select Committees. We asked for equivalent arrangements for the ISC. Perhaps somebody will clarify that point.

Lord Rosser: My Lords, the names of my noble friends Lady Smith of Basildon and Lord Beecham are associated with Amendment 9 and we support the proposal that the chair of the Intelligence and Security Committee should be remunerated in line with chairs of departmental Select Committees of the House of Commons. As has already been said clearly, the commitment required by future occupants of this post is likely to be extensive, bearing in mind that the whole purpose of the Bill is to strengthen oversight of the intelligence and security activities of the Government by extending the statutory remit of the Intelligence and Security Committee. The committee, as we know, will be drawn from Members of the House of Commons and your Lordships’ House. It would seem appropriate to determine remuneration as part of the Bill, and to relate it to a not dissimilar position in one of the Houses of Parliament from which the membership of the committee is to be drawn.

A departmental Select Committee in the House of Commons has a different but not widely dissimilar role to that of the Intelligence and Security Committee under the Bill. The chair of a departmental Select Committee in the House of Commons also takes on a considerable additional level of commitment and responsibility. There are a number of such posts and they are not held by Ministers of the Crown. The officeholders, like the Select Committees themselves, are drawn from Back-Benchers, as would be the case with the Intelligence and Security Committee and the chair of that committee. It would therefore seem that the chair of a departmental Select Committee in the House of Commons is the appropriate benchmark, as provided for in Amendment 9, which we support.

Lord Henley: My Lords, we can deal with these amendments fairly briefly. The noble Lord, Lord Butler, described them as a simple point of equity. On that basis, I hope the debate has been—or will be—listened to in due course by IPSA in the case of the Commons and, in the case of Members of this House, the House Committee, because in the end decisions have to be made by those appropriate committees. It is not really a matter for legislation.

To underline that, I remind the Committee that Commons Members’ pay is entirely a matter for IPSA and it makes decisions in accordance with resolutions of the House. The relevant resolutions make no provision for additional financial support for ordinary members of Select Committees so it would be a matter only for the chairmen of committees. I will get to the question about the chairman of this committee later. IPSA may determine that MPs who hold a position or office specified in a resolution of the House of Commons should receive a higher salary than ordinary Members. IPSA will have no say as to which positions are on the list—that is obviously a matter for Parliament; once it has decided on that list, it will be for IPSA to set the rate. Again, it is for IPSA to listen to this debate.

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5.15 pm

The second question was in relation to the position of Members of this House who are members of the Select Committee, such as the noble Lord, Lord Butler, and particularly the anomaly that when this House is not sitting and another place is sitting, a noble Lord can get no remuneration for sitting on that Select Committee. Like the noble Lord, I sometimes regret the fact that the sitting days of the two Houses often do not coincide. When we are sitting longer I always remind my colleagues in the Commons of that fact but I tend to be somewhat more silent on the occasions when they are sitting and we are not. As the noble Lord pointed out, there are a number of occasions when this happens. Again, if he feels that he is not being adequately remunerated for the days he sits on that committee when this House is not sitting, he ought to take that up with the House Committee, which is the appropriate authority.

We also hope that Amendment 9 can be addressed in the appropriate manner in due course. As all noble Lords have said, the amount of work involved is considerable, and the noble Lord, Lord King, speaks from experience. Simply doing it in line with the arrangements for chairs of departmental Select Committees in the House of Commons obviously would not work because the chairman could come from this House. As I said at Second Reading, there is no reason why eight out of nine members of the committee could not come from this House if that was necessary. If the chairman is in the House of Commons, again, that is a matter for the appropriate resolutions of the House and for IPSA. If the chairman is a Member of this House, again, that will have to be taken up with the House Committee. As I said, I hope that both committees will listen to this debate and to the various comments that have been made. I hope, therefore, that the noble Lord will feel able to withdraw his amendment.

Lord Butler of Brockwell: My Lords, I am grateful to the Minister for his sympathetic response and to other Members of the House for their comments. I just want to make clear to the noble Lord that it is not a question of feeling adequately or inadequately remunerated. There may be different views in the House about whether payment of £150 for a day’s work on the committee is adequate or inadequate, but that is not my point. My point is that there is an obvious inequity between the treatment of members of the Intelligence and Security Committee and the members of Select Committees, and that is what I would like to see put right. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5

Moved by Lord Butler of Brockwell

5: Clause 1, page 1, line 14, at end insert—

“( ) If the House of Parliament from which a member of the ISC is to be drawn declines to appoint a person nominated by the Prime Minister, the Prime Minister shall nominate an alternative person.”

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Lord Butler of Brockwell: My Lords, Amendment 5 is an amendment to Clause 1(4). It seeks simply to fill out an obvious point that is not currently covered by the Bill.

Under the arrangements proposed in the Bill, the Prime Minister will propose members of the committee but it will be for Parliament to agree to the appointment or not. Therefore, we need to provide for the situation in which Parliament does not agree to an appointment. At the moment the Bill says nothing about that. The purpose of this amendment is to make clear that in those circumstances, if either the House of Commons or the House of Lords does not agree to the nomination of a Member of that House to the Intelligence and Security Committee, the Prime Minister would have to nominate somebody else for the appointment for the approval of the respective House. I think that is obvious and that is what would happen. It is not provided for in the Bill and this amendment is therefore just to fill that gap.

The Marquess of Lothian: My Lords, once again I rise to support the noble Lord, Lord Butler of Brockwell, on this amendment, to which my name is also attached. I will not add much to what he said. I think that the real purpose here is to remind the House that the committee has nine members. That is written in to the statute. It is one of the smaller committees involved in the sort of work that this committee is doing and it is very important, in my view, that we retain that number at least. In the absence of this amendment it is theoretically possible that this House might decide that it did not want the two nominations from this House made by the Prime Minister and that the Prime Minister might decide to leave it at that—have a committee of seven in total from the House of Commons and nobody from this House. This amendment would make sure that that cannot happen by ensuring that, were this House or, indeed, the other House to say no to nominations by the Prime Minister to this committee from those Houses, the Prime Minister would be required to make another nomination.

Lord Campbell-Savours: My Lords, I shall speak to Amendment 6 in this group. My amendment deals with the wording in Clause 1(5) of the Bill, which states:

“Before deciding whether to nominate a person for membership, the Prime Minister must consult the Leader of the Opposition”.

I have great reservations about this, and I will explain why. I think that this is the product of muddled thinking. This is an appointment of trust. The appointment requires the Prime Minister’s knowledge of opposition politicians. I think that Ministers very often do not understand what motivates opposition politicians.

As an example I take my own appointment. It is utterly inconceivable that the then Prime Minister, Margaret Thatcher, now the noble Baroness, Lady Thatcher, would have appointed me to that committee. She would have referred to my record in the 1980s when I was running with the hounds on the issue of Peter Wright and we caused some considerable difficulty, I was informed, in the House of Commons. I had endless arguments with the Table Office over the tabling of Questions. On a number of occasions my Questions,

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which, it was thought, would have breached national security had they been tabled, were submitted to the Speaker of the House of Commons under the appeal procedure. If, in the 1980s, I had applied to be a member of this committee, I feel quite sure that if it had been left to the Prime Minister of the day—I am arguing the converse—the Prime Minister of the day might well have objected to a person like me being a member of that committee.

The problem was that, at the time, people did not know what we were campaigning about. It was about reform of Section 2 of the Official Secrets Act and about the need to introduce freedom of information legislation. In both areas we were successful. All I am saying is that, before we go down this route and require the Prime Minister to consult with whomever, we should have in mind that it is possible that people might be blocking appointments in an unfair manner.

Amendment 8 deals with the issue that the chair of the ISC is to be chosen by its members. This is the product of muddled thinking among those who fail to understand the internal dynamics of the committee. It is as if someone has sat down to devise systems of greater accountability that enable them to avoid taking the big question on going for full Select Committee status. In my view, the chairman needs the respect of the agencies, and new members appointed in a new Parliament will have no knowledge of the relationship between the chairman or any member of that committee and the agencies. There is a real danger that the Whips will seek to influence members’ decision about whom to appoint as chairman. It might be that there is an exercise in handing out the jobs going on. I feel that it is wrong that the committee should be placed in a position where it has to choose its chairman at the beginning of a Parliament. New members might be unduly influenced by previous members against their better judgment. As I said at Second Reading, if when I was selected to sit on the committee, I had been asked to vote for the chairman, I would never have voted for the noble Lord, Lord King of Bridgwater, because he was not top of my list of popular Secretaries of State, but within a matter of months I realised that he was ideal for the job. You need the experience of being on the committee before you start picking the chairman. What we are doing here is establishing a procedure whereby a chairman will be selected by new members going on to a committee without any knowledge of who they might be appointing.

If a chairman does not fully enjoy the trust of the agencies, there is a danger that that lack of trust may impede the work of the committee by denying access to material that is on the margins of the memorandum of understanding. There will be material on the margins of the memorandum of understanding to which the committee wants access, and it is vital that the chairman is someone who has been picked not by members of the committee but by the Prime Minister.

Lord King of Bridgwater: I agree with the noble Lord, Lord Butler, that the Bill is inadequate without Amendment 5 because it is simply a diktat. The fact that the Houses of Parliament vote on the members is not a really democratic position. We hope to see a more acceptable position.

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The question I would put to the noble Lord, Lord Campbell-Savours, on Amendment 6 is: when he was active on some of these issues, would he have been appointed or recommended by the leader of the Opposition? He says that there was no way in which Prime Minister Margaret Thatcher, now the noble Baroness, Lady Thatcher, would have appointed him. Would the leader of the Opposition have appointed him?

I do not see how else you can do this. It is really down to the calibre, resolution and determination of the leader of the Opposition. In the end, he is in a very powerful position if he says, “These are the people I want. These are the people I think should be from the Opposition”. I do not know—and I do not know whether the noble Lord has any background on this—whether a Prime Minister has refused to accept the recommendation of the leader of the Opposition.

Lord Campbell-Savours: If my noble friend Lord Kinnock had been Prime Minister, he would not have been put off putting me on that committee because he was well aware of the campaign that we were running and its objectives.

Lord King of Bridgwater: I am grateful to the noble Lord for that comment.

I would like to support opposition Amendment 7. It has not been spoken to by the noble Lord, Lord Rosser, but I imagine that he will speak to it. It says that the chairman of the ISC should be “from the Opposition party”. In principle, I support that. One of the ways for the committee to gain credibility is for the chairman to be a member of the opposition party. However, I would not wish to see it written into the statute in this way. I will, if I may, cite my own experience. We started this committee with considerable uncertainty and considerable reservations in a number of quarters—in some of the agencies and other places—as to whether it would be reputable. A great effort was made by both the Prime Minister and the then leader of the Opposition to get a pretty experienced bunch. They were mainly ex-Ministers, and I think almost all were privy counsellors. The desire was to have a really credible, reputable and senior committee. It was certainly the most senior of all the committees, and in calibre and experience outranked the PAC, which would otherwise be seen as a pretty senior committee. That was the right way to start.

5.30 pm

John Major, the then Prime Minister, asked me whether I would chair the committee, which I did for the first three years. Then came the general election and in came a Government who had not been in office for 18 years. They were extremely short of anyone with any previous experience, and those with any experience at all were needed to discharge ministerial functions. The then Prime Minister, Tony Blair, then asked me whether I would continue as chairman. I was then chairman for four years as a member of the Opposition. I think it was helpful. There was nothing personal about this, but when we made statements and had to comment or report on issues, it was not just some former colleague commenting but someone from the

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Opposition speaking and standing up for the government Minister’s position, so it carried the all-party credibility which I think is helpful.

However, I cannot accept this being in the Bill because, while it is a good idea wherever possible, I do not think that it was possible in 1997. I do not know who would have done it. The change of Government, and the change of majority party, meant that the majority changed on the committee, so having had a Conservative majority on the ISC from 1994 to 1997 we then changed to a majority of Labour members but with the Prime Minister appointing me as its chair. I like to think that the noble Lord, Lord Campbell-Savours, would be kind enough to say that he thought that that worked.

That is why Amendment 7 is good in principle but cannot be in the Bill. However, Amendment 8, moved by the noble Lord, Lord Campbell-Savours, is right. It is right the Prime Minister should operate that, and the evidence in 1997 suggests that it is the right way to proceed.

Lord Rosser: My Lords, I wish to talk about Amendments 5 and 7 in particular. Amendment 5, as the noble Lord, Lord Butler of Brockwell, said, lays down what happens if a person nominated for membership of the Intelligence and Security Committee is not then appointed by the House of Parliament from which they are drawn. The amendment lays down that in this situation,

“the Prime Minister shall nominate an alternative person”.

The Explanatory Notes to the Bill say that the purpose of the procedure in the Bill for nominating and appointing members of the committee,

“is to ensure that the Government retains some control over those eligible to access”,

highly sensitive information.

Many might feel that the use of the words “some control” in the Explanatory Notes rather understates the position from the government perspective. This amendment does at least make it clear that the relevant House of Parliament is not obliged to accept the Prime Minister’s nominee and that the Prime Minister cannot simply keep resubmitting the same name, or do nothing, but has to nominate an alternative person.

Amendment 7, to which the noble Lord, Lord King of Bridgwater, has already referred, is, certainly at this stage, rather more a probing amendment in the light of the enhanced role that the committee will have and the need for it to be seen as clearly separate from the Executive. It provides, as has already been said, for the chair of the Intelligence and Security Committee to be not only a member of the ISC, chosen by its members, but a member of the ISC from the opposition party. The Public Accounts Committee, for example, is chaired by a senior opposition MP.

It must surely be important that the Intelligence and Security Committee, bearing in mind its strength and oversight of the Government’s intelligence and security activities, and its role in this sensitive and potentially controversial area, is an all-party committee that is not only not open to pressure from government or the intelligence and security agencies in the work it undertakes but perceived as being not open to such pressure.

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The Prime Minister has, under the terms of this Bill, considerable influence over the appointments to the committee. He or she is required to consult, not reach agreement with, the leader of the Opposition on nominations, and the two Houses of Parliament can only decline to accept a nomination and cannot appoint someone of their own choosing. Neither does the Intelligence and Security Committee have unchallenged powers to require information from the intelligence and security agencies, even though the members of the committee will all have been nominated through the Prime Minister, as the Secretary of State can veto the giving of information to the committee.