I have tabled this amendment because I am not satisfied that the provisions the Government have proposed so far offer the type of protection that this Committee needs. I heard what the Minister said, and his response seemed to be that the amendment was drafted too broadly. I do not have the back-up of learned counsel in drafting amendments, and I want the Minister to explain what kind of protections are available and what their effect would be in the circumstances I have described.
It is questionable whether the ISC would be able to act on evidence it received. I hope the Minister will address that point and explain the impact of the clause 2 provisions. The documents might relate to an ISC investigation, which might be relevant to whether it would be possible to put the documents forward and examine them.
ISC staff members will be signatories to the Official Secrets Act. It is my understanding that parliamentary Clerks would be protected as soon as the document was taken into evidence, but no such protection is available to the ISC Clerk. Is that correct? If a staff member who received documents decided to pass them on to the Chair of the ISC, will the Minister confirm that they would be doing that without lawful authority and would therefore be in breach of the Official Secrets Act?
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Will the Minister also confirm the position for members of the Committee who consider such documents? Would members of the ISC be committing an offence under the Official Secrets Act by possessing those documents? It is important to remember that Members of Parliament have privilege in fulfilling their role as MPs and sitting on parliamentary Committees, but as I understand it, privilege does not protect them in their role on the ISC.
Finally, I want to ask the Minister about the status of the hypothetical document to which I referred. Evidence accepted by a Select Committee is not admissible in a court of law, but what about evidence given to the ISC? The Government’s amendment protects witnesses, but in the case to which I was referring the witness would not be identifiable as the information would be given anonymously. That is often the case with whistleblowers: they are protected in the Select Committee system because their evidence is privileged, but under the Bill as drafted they would appear to be protected only if they had been recognised by the ISC as a witness. If they were not identified as the witness who provided the evidence, the evidence given to the ISC could be used against them in proceedings. That is why the Opposition have tabled
amendment 76. Although we do not pretend that it will confer parliamentary privilege on the proceedings of the Committee we feel that it should confer some statutory protections, including on the Committee’s members, staff and evidence.
Amendment 74 is about pre-appointment hearings for agency heads. The previous Labour Government introduced pre-appointment hearings for a range of public sector roles and we think that that should be extended to agency heads. Select Committees now hold pre-appointment hearings for a range of positions, and in keeping with our desire to make the ISC have some similarities with Select Committees, we would like to give it that role.
Long gone are the days when heads of agencies were secretive figures; today they are well known and have a strong profile, which is all part of efforts on the part of the agencies to open themselves up. We should try to help in that and we should applaud those efforts. As the noble Baroness Manningham-Buller said in the other place, any person who is capable of running a hugely complex organisation, taking difficult decisions and juggling competing interests should be able to give a competent account of themselves and their organisation in front of MPs.
Another positive consequence of introducing pre-appointment hearings is that it will encourage senior members of the agencies to foster strong relationships with the Committee in preparation for their possible future hearings. Such hearings were suggested in the other place and we discussed them in Committee, too. I believe the responses from the Minister in the other place and in Committee were rather weak. The Governments argued that such hearings were not necessary because agency heads were essentially civil servants and subject to the normal civil service recruitment rules.
Although that argument might be technically correct, it fails to realise the two special characteristics of agency heads. First, they have far more autonomy than most civil servants not only in how they structure their organisation but in operational matters. The decisions they make are of a different order of magnitude from those made by normal civil servants. They make decisions that can be a matter of life or death, either for their staff or for people in the UK.
Secondly, there is a more confusing line of accountability. If the permanent secretary of the Home Office makes a decision or a mistake, the Home Secretary will be required to answer for it. She appears before Parliament on a regular basis and the decisions made by her Department are in the public eye. There is no such clear line of accountability for agency heads. As the noble Lord Henley explained in the other place, the Prime Minister has overall responsibility within government for intelligence and security matters and for the agencies. Day-to-day ministerial responsibility for the Security Service lies with the Home Secretary and that for the Secret Intelligence Service and GCHQ lies with the Foreign Secretary. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service; similarly, the Foreign Secretary has his accountability. Only rarely are any such figures called on to account for the work of the agencies, however, so we must put greater emphasis and scrutiny on the person doing the implementation behind the scenes. I shall therefore want to test the opinion of the House on amendment 74.
On amendment 57, the Under-Secretary sets out in a letter written to members of the Committee dated 5 March 2013 that any breach of the oath given by a witness would not be contempt of Parliament but could constitute an offence of perjury under the Perjury Act 1911, which could therefore be enforced through the police and criminal justice system. Can the Minister clarify whether this is different from what would happen in the case of a Select Committee? Will he explain how this would work, as the ISC sits in private and deals with very sensitive information?
While the Minister is clarifying the position on oaths, I would appreciate it if he could clarify the ISC’s ability to call witnesses to come before the Committee. As I understand it, the ISC needs the permission of the Prime Minister and the agency heads before hearing from a member of staff of either agency. Nevertheless, I understand that an individual, who may or may not be a member of an intelligence agency, can volunteer to appear before the ISC and the Prime Minister or agency head would require an injunction to prevent them from appearing, although this person may be subject to various legal constraints, as I mentioned earlier.
My current concern centres on the ability of the ISC to compel a witness to attend. There is already a limitation on its ability to call witnesses employed by one of the agencies, but what about witnesses not so employed, such as a retired agent, a member of the police or an ordinary citizen? Can the Minister explain what powers the ISC has to compel such people to give evidence?
Amendment 73 and Government amendment 60 deal with the publication of reports. A strong message is clearly being sent to the Government and I was pleased to hear what the Minister said, with assurances given and an undertaking to consider a memorandum of understanding as a way forward. On Government amendment 55, it would be helpful if, in his final comments, the Minister could respond to the points raised by Members today.
Finally, amendment 71 appears to give the ISC a significant new role and appears to allow individuals to make requests to the ISC, which I believe is unprecedented, and it also appears to give the ISC a role in addressing wrongdoing—possible torts committed by the agencies against individuals—and providing some form of redress to those individuals. I am not clear about the purpose of the amendment, but on the face of it the Opposition do not support it.