I can only say that decisions about the release of Mr Aamer rest entirely with the US Government. I underline that the British Government remain committed to engaging with the US with the
aim of securing Mr Aamer’s release and return to the UK as soon as possible. To conclude my remarks on the hon. Lady’s amendment, let me say that we believe there is an appropriate mechanism by which she or others can bring complaints to the Investigatory Powers Tribunal.
On amendment 74 and pre-appointment hearings, I do not wish to go back over the lengthy debate we had in Committee on this issue. I can only restate several points I made then: pre-appointment hearings are a relatively new phenomenon in the UK; the Cabinet Office has published guidance on the process to be followed for such hearings; and at the moment the list of posts subject to those hearings relates to public bodies, such as the chair of Ofcom or the Social Security Advisory Committee. The pre-appointment process has never been used for the appointment of civil servants. The heads of the intelligence and security agencies are permanent secretary-level civil servants, so the recruitment process is expected to follow the process for the appointment of civil servants of such seniority. We judge that this continues to be the appropriate mechanism.
On the Osmotherly rules, I made the point in Committee that the powers to withhold information from the ISC have been used sparingly and that we expect them to continue to be used only in exceptional circumstances. The Osmotherly rules set out categories of information, including information on officials’ personal views, as distinct from the views of Ministers, on policy options; information that could be supplied only after carrying out substantial research or at excessive cost; information about matters that are sub judice; and the papers of a previous Administration. The provisions in the Bill are necessary to safeguard the long-standing conventions that are reflected in the Osmotherly rules. We judge that the provisions, although they have been used only sparingly, remain appropriate.
3.30 pm
The hon. Member for Kingston upon Hull North (Diana Johnson) posed various questions. She asked whether the ISC can accept material and evidence anonymously. It can, but it might have doubts about what weight should be given to such evidence if it cannot be corroborated.
The hon. Lady talked about the protection of members of staff. The staff of the ISC all go through developed vetting. They are therefore able to handle protectively marked material. That is a central part of their job, in the same way as it is for members of agencies and Departments.
Agency heads are accountable to Parliament in the evidence that they provide to the ISC, including through oral evidence sessions and the upcoming public evidence sessions. Agency heads are accountable in the same way that permanent secretaries to Ministers are accountable for the decisions of their agencies.
On amendment 76, the hon. Lady asked whether whistleblowers would be protected. They would not be protected, but it is important that we strike a balance between encouraging the flow of evidence to the ISC and giving effective immunity for individuals who breach legal obligations, including under the Official Secrets Act 1989.
The hon. Lady asked whether the ISC can choose which witnesses can be called and whether it can compel witnesses to attend. At the moment, it cannot compel a particular individual to be a witness. However, the important element in the Bill is the power to compel information to be provided to the Committee. That is a powerful provision and an important step. In practice, the ISC, the agencies and others discuss and agree on who is the appropriate person to appear and give evidence on a particular point. The current practice is for the ISC to have regular oral evidence sessions with Ministers, agency heads and other senior officials.
I have heard clearly the points that have been made about the word “voluntary”. The Government believe that our amendments provide clarity. We are in no way seeking to suggest that the powers of the ISC are not significant or that the steps in the Bill are not important in providing what this House wants to see, which is enhanced, robust scrutiny of the agencies and broader security issues across government. We believe that the Bill provides effective new powers that will enable enhanced scrutiny, provide confidence and add to the approaches that the ISC already takes.
I want to put on the record my recognition of the work of the ISC in carrying out its duties. We believe that that work will be strengthened by the Bill and the Government amendments. I therefore encourage the House to support them.
Amendment 56 agreed to.
Amendments made: 57, page 17, line 4, leave out sub-paragraph (6) and insert—
‘(6) The ISC may take evidence on oath, and for that purpose may administer oaths.’.
Amendment 58, page 17, line 6, at end insert—
‘Funding and other resources
2A A Minister of the Crown—
(a) may make payments to either House of Parliament in respect of any expenditure incurred, or to be incurred, by either House in relation to the ISC,
(b) may provide staff, accommodation or other resources to either House of Parliament for the purposes of the ISC,
(c) may make payments, or provide staff, accommodation or other resources, to the ISC, or
(d) may otherwise make payments, or provide staff, accommodation or other resources, to any person for the purposes of the ISC.’.
Amendment 59, page 18, line 39, after ‘not’ insert ‘otherwise’.
Amendment 60, page 18, line 42, at end insert—
(za) the ISC and the Prime Minister are satisfied that publication or disclosure would not be prejudicial to the continued discharge of the functions of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities falling within section 2(2),’.
Amendment 61, page 19, line 5, at beginning insert—
‘(1) Evidence given by a person who is a witness before the ISC may not be used in any civil or disciplinary proceedings, unless the evidence was given in bad faith.’.
Amendment 62, page 19, line 6, leave out ‘, civil or disciplinary’.—(James Brokenshire.)