JUSTICE – JUSTICE & SECURITY BILL – REPORT STAGE – 7 March 2013

Dr Julian Lewis: I am sorry to disagree with both my hon. Friends [Douglas Carswell and Steve Baker], especially as they really are my hon. Friends. That analogy breaks down because this is not MPs being elected by other MPs; rather, it is the Chair of the Committee being elected by a group of MPs who will have been chosen with the final say-so of the House of Commons. The other point I would simply make is that I do not think people who know either me or my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) would regard us as falling entirely in the Whips’ narks category.

Steve Baker: Since my hon. Friend has brought me on to this territory early, let me deal with these points now, first by saying to my right hon. and learned Friend [Sir Malcolm Rifkind] that I well remember the month when he became Secretary of State for Defence, because it was when I graduated from initial officer training. I am very well aware of his august experience and the extent to which it exceeds my own. I am also well aware that my hon. Friend [Dr Lewis] is a man of great character and integrity and personal courage. This is not really the issue, however. The issue is the institutional arrangements we put in place not necessarily to constrain my right hon. and learned Friend and my hon. Friend, but to ensure the Committee is credible both now and in future.

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Dr Lewis: This is meant to be a helpful intervention. I think my hon. Friend accepts that if we are to have this Committee that is unlike any other in that it is the only Committee with access to top-secret, classified information, it is not good enough simply to say that any Member of this House, however honourable, who happens to be fortunate enough to win an election should automatically be appointed Chairman of such a Committee. Am I right that my hon. Friend acknowledges that that would be an impossible situation?

Steve Baker: I certainly agree with my hon. Friend on that point, but that is why the amendment is phrased in the way that it is. It does not seek that individual members of the Committee should be elected; that is a compromise that those who introduced it have agreed to. There is agreement that Committee members should be nominated by the Prime Minister and approved by the House, as the Government have proposed. The crucial distinction is that the Chairman, who is the key figure of the Committee, should be elected by secret ballot of the whole House and that that Chairman should have been previously agreed to by formal consent of the Prime Minister in writing, which gives the Prime Minister and the security establishment the opportunity to exclude any Member who might not be an appropriate person.

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Dr Lewis: I would like to confine my remarks to an elaboration of a point that was made very effectively by my hon. Friend the Member for Cambridge (Dr Huppert), who sadly is not in his place at the moment. There seems to be a conflation of two separate concepts: whether the election of the Chair directly will aid the Committee’s credibility; and whether it will aid the efficacy of its performance. For the life of me, I cannot see how the method for electing the Chair would make any difference whatsoever if, for example, the Committee was carrying out an investigation and one or other of the security agencies chose not to supply it with certain information that ought to be supplied. I would have thought that the best insurance for an agency supplying the information that should be supplied is the consequences of what would happen if it did not do so and the omission came to public attention, as it inevitably would.

Steve Baker: If the Chair is elected and enjoys the authority of the House, apart from any prime ministerial patronage or the appearance of it, he would have the authority, and not just with the agencies, but in the public sphere, to be able to tell the Prime Minister that he was dissatisfied with the information provided by a particular agency, and in that way the two mechanisms come together and authority over the agencies is increased.

Dr Lewis: I would like to confine my remarks to an elaboration of a point that was made very effectively by my hon. Friend the Member for Cambridge (Dr Huppert), who sadly is not in his place at the moment. There seems to be a conflation of two separate concepts: whether the election of the Chair directly will aid the Committee’s credibility; and whether it will aid the efficacy of its performance. For the life of me, I cannot see how the method for electing the Chair would make any difference whatsoever if, for example, the Committee was carrying out an investigation and one or other of the security agencies chose not to supply it with certain information that ought to be supplied. I would have thought that the best insurance for an agency supplying the information that should be supplied is the consequences of what would happen if it did not do so and the omission came to public attention, as it inevitably would.

Steve Baker: If the Chair is elected and enjoys the authority of the House, apart from any prime ministerial patronage or the appearance of it, he would have the
authority, and not just with the agencies, but in the public sphere, to be able to tell the Prime Minister that he was dissatisfied with the information provided by a particular agency, and in that way the two mechanisms come together and authority over the agencies is increased.

Dr Lewis: I am afraid that I do not think that cuts any ice whatsoever, because one cannot be in a position to be dissatisfied with information that one has not been given and does not know exists. The suggestion, which is implicit in my hon. Friend’s intervention, that the person who was Chair at the time of the particular historical episode to which he refers – it was before my time on the Committee – would have acted in any way differently had he been elected, and that he did not act simply because he felt insufficient legitimacy to do so because he had not been directly elected, is frankly unrealistic.

My hon. Friend the Member for Wycombe (Steve Baker) seems to overlook the fact that changes in the Bill will massively strengthen the Committee’s position. The Committee will be able to require information to be provided, whereas previously it could only request it. That is a huge difference. The position of the House of Commons will be strengthened vis-à-vis the Committee’s membership, because previously the House could express an opinion about whether it had approved the people nominated to be members, but in fact the Prime Minister had the final say, whereas now the House will have the final say. If the House does not like the cohort of people who have been nominated, it can throw them out and the Prime Minister will have to nominate someone else.

My hon. Friend the Member for Wycombe is focusing his attention on a really rather narrow issue, because the House of Commons will have the final say on who all the members of the Committee, at least from the House, will be, which at the moment is seven of the nine. Therefore, those members, who will themselves have been directly appointed by the House on the nomination of the Prime Minister, will then be in a very strong position to choose one of their own number to be Chair.

I will say one more thing on the matter. I do not think that the world would collapse if my hon. Friend’s amendment were successful, but we are taking a giant stride in the right direction. One thing I have found through working on the Committee is that it, probably more than any other Committee – all Select Committees like to flatter themselves for being relatively non-partisan – is totally non-partisan. Even if one wanted to be partisan, there is no one there to watch one being so, so there really is not much point. I can honestly say, as I said in an intervention at an earlier stage of the Bill’s consideration, that if anything unfortunate were to happen to my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who chairs the Committee, I would almost certainly find myself voting for the Chair, if I had the option of voting for another Committee member, on a non-party basis.

I do not think that what my hon. Friend the Member for Wycombe is proposing would be earth-shatteringly damaging if it went through, but I really do not think that it is terribly necessary, and I am concerned that people would put themselves forward and say, “I wish to be in this position,” only to find that they had been vetoed, for reasons they could not be told, by the Prime Minister. That would be a coruscating experience for all concerned.

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Dr Lewis: On that point, the hon. Lady’s response is correct. The people who advise the Intelligence and Security Committee on the finances of the security and intelligence services leave the meetings when other matters – namely, classified information – are under discussion.

Diana Johnson: That information is very helpful. ...

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Minister without Portfolio (Mr Kenneth Clarke): I encounter many people making bids for resources for their particular, extremely important, activities. My right hon. Friends at the Treasury are receiving a very large number of these bids all the time. I have had some experience of public spending, and I can tell the House that it is not wise to engage in negotiations across the Floor of the House – it is certainly not wise for a non-Treasury Minister to do so. For this purpose, in this debate, given those present, I think we can agree that it is the Government’s intention that this Committee should be properly resourced to do its job, which is why we are taking a power to supplement Parliament’s financing of the Committee. Obviously, the Government have the right to query and test the figures that are put to them, and there are ways in which this can eventually be negotiated.

Dr Lewis rose –

Mr Clarke: We might be getting bogged down in a public spending round, and we have other matters to move on to.

Dr Lewis: I hope not to get bogged down. I wish to assist our Front-Bench team by pointing out that the Intelligence and Security Committee has eight staff, whereas the detainee inquiry, which looked at only one issue, had 14 staff and the Committee on Standards in Public Life has 12 staff. As the right hon. Member for Salford and Eccles (Hazel Blears) pointed out, the Government’s own impact assessment suggested that to do what is being required of us we would need a budget of £1.3 million, which compares with the existing budget of £750,000. At the moment only £850,000 is being offered, and if the gap is not bridged, this whole reform will be a waste of time.

Mr Clarke: I can say only that I, like my right hon. and hon. Friends, am fully aware of the Committee’s views on the amount of funding that it will require. Yet again, I take note of my hon. Friend’s points on the matter, but I repeat that there is not much point in my standing here carrying out a negotiation with him or any other member of the Committee about the figure we arrive at. As someone who has been at the Treasury, I think that the Government must combine providing the right resources, which are undoubtedly going to be more than the Committee has had in the past, with doing a bit of negotiating about what is the necessary cost. Report stage is not the place to resolve the final figure.

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Dr Lewis: I accept the validity of what my hon. Friend says, but the problem is that in that formulation the ISC was trying to do away with a similar problem with the Government’s wording, which suggests that all information that the ISC receives in private is subject to these restrictions. The whole point of what we are trying to say is that it should only apply to classified or sensitive information that we receive in private. Other information that we receive in private, such as from victims of the 7/7 bombing, should not be restricted in that way. Even though my hon. Friend makes a valid point against the wording that we have offered, the same point still applies to the Government’s wording.

Parliamentary Under-Secretary of State for Crime and Security (Mr James Brokenshire): My hon. Friend, in his customary way, has highlighted the genuine challenges that both the Government and ISC members have had in seeking to frame legislation, which can be a challenging mechanism within which to express matters effectively. He rightly points out the evidence given by the families of the victims of 7/7 and those who were sadly caught up in that terrible event. There have also been discussions of the evidence taken from communication service providers during the ISC’s recent inquiry into communications data, including whether the information provided was sensitive. It is a challenge at times to analyse evidence from third parties to decide whether evidence is sensitive and thus not suitable for disclosure. Sometimes that is clear, but sometimes it is not.

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Dr Lewis: Does the Minister agree that this is a similar dilemma to the one we faced on the question of publicity? The Opposition’s amendment might go too far, but we on the Committee feel that what the Government propose does too little. It protects witnesses against their evidence being used against them, but falls short – as the Minister seems to be conceding – of the protection the Committee would have if it were a Select Committee. Will he undertake to come back with something else at a later stage – perhaps in the other place – that would be a better compromise between those two positions?

Mr Brokenshire: I fully respect what my hon. Friend has said. We have given careful consideration, at length, to the statutory protections afforded to the ISC through this Bill. He will remember the debates we had in Committee about issues under the Data Protection Act and the Freedom of Information Act, along with a number of other statutory provisions, which we believed needed to be addressed to afford the ISC a number of additional protections. Although I very much hear what he says, the Government believe that we have taken this as far as we can through our amendments – and within the remit of article 6 of the ECHR, for example – to afford those protections and frame the provisions. I note the concern he has raised; all I would say is that the Government have taken some additional steps – on things that the existing Committee does not currently have – in how the Bill is framed to move the Committee as close as we can, within the framework of law, to provide the relevant protections.

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Dr Lewis: I shall be brief. On amendment 73, in the light of the undertaking given by the Minister to my hon. Friend the Member for Cities of London and Westminster (Mark Field) that the publication issues will be addressed in the memorandum of understanding, I am say on behalf of colleagues that we do not propose to press that amendment.

On the question of taking evidence on oath, I think I speak for colleagues on the Committee in saying that we are entirely happy with what the Government propose.

On the use of the word “voluntary”, I can only re-emphasise what has been said by many other colleagues. The Minister endeavoured to explain to the House why this applies only to that part of our duties that relate to operational matters. All I can say to him and to the Government is that we will be spending an awful lot of our time trying to fend off critics who, wilfully or otherwise, choose to interpret the presence of the word “voluntarily” on the face of the Bill as implying that we do not have the ability to force the agencies to comply with our requests, when in most cases we do. There must be a simpler and less emotive term that can be used to express the same purpose, without leaving us open to such unjustified criticism.

On the question of privilege, I am still concerned, as are the Opposition, that sufficient measures have not been taken to empower the Committee and protect the Committee to anything like the same extent. For example, when the Committee discusses people’s possible involvement in serious criminal activity, could we end up in a situation in which some of our proceedings that involve statements – not from witnesses, but from Committee members – that in the ordinary course of events might be regarded as defamatory may result in court proceedings being taken against members in a way that would not be possible with members of a Select Committee in analogous circumstances? If we could end up in such a situation, the Government need to consider that problem very seriously indeed and do something about it at a later stage. I hope that the Minister will refer to that in his closing remarks.

On the question of pre-appointment hearings, I do not believe that the Committee has taken a corporate view as such, but one point must be made, and made strongly: this would add to the work load of the Committee’s staff. The Committee, as has been made crystal clear today, is already grotesquely understaffed by comparison with comparable committees and organisations in this country and in Europe. Therefore, were we to take on that further burden, we would definitely need better proposals for resourcing it than those that are currently ready.

The Opposition are quite right to resist amendment 71, because individual complaints against the agencies, such as that involving Binyam Mohamed, are not the responsibility of the ISC; they fall within the statutory remit of the Investigatory Powers Tribunal. That is the correct body to deal with such matters.

Finally, on the question of the Osmotherly rules, I am glad that the matter will be dealt with one way or another. We would prefer it to be set out in the Bill, but otherwise in the memorandum of understanding, because the ISC frequently needs access to the papers of a previous Administration, for example, or has to deal with matters that are sub judice, and we cannot row backwards from that situation. Subject to those comments, we are very pleased with the progress the Bill has made thus far.

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Caroline Lucas: I am not convinced that the Committee would be acting in a quasi-judicial role; I would share the right hon. Gentleman’s reservations were that to be so. I am honestly searching for a solution to the problem, and perhaps this is not the right one. However, I want to put on record the real concern that exists about the situation that Shaker Aamer finds himself in. If nothing else, I hope that if this is not the right route to take, Government Members will direct me towards the appropriate measures, because this case has been going on for very many years.

Dr Lewis: I wish to be helpful to the hon. Lady, and I think that the Investigatory Powers Tribunal is the body that she has in mind. All these tribunals, including those for communications issues and for complaints such as this one, are headed up by senior judges. I think she would find that they are a much more appropriate route. However, it is obviously very interesting to hear what she has to say about these worrying cases.

[NOTE: For Julian’s speech in the Third Reading Debate, click here.]