My Lords, legislation is often a process of distillation and this evening the House has distilled itself down to this particularly rich mixture.
The Government intend to use the memorandum of understanding to make a substantial contribution to central government’s intelligence and security activities. It will be subject to ISC oversight. It is our intention
that the activities should include certain activities within the Ministry of Defence, the Office for Security and Counter-Terrorism in the Home Office and the central government intelligence machinery in the Cabinet Office, including the Joint Intelligence Organisation. The scope of the memorandum, therefore, is wider than the three core agencies.
As my noble friend Lord Henley said in response to an amendment from the Opposition on this same subject in Committee, it is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the memorandum of understanding can make provision at a level of detail which is not appropriate in primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may be engaged in other activities which would not properly fall within the remit of the ISC.
The House will know that things change over time—departments reorganise. Functions done in one department one year may be done in another the following year. The intelligence world is no different from any other part of government. A memorandum of understanding is flexible. It can be changed much more easily than primary legislation. It will enable the intention of the Government to be realised now and in the future.
The effect of the amendment spoken to by my noble friend Lady Hamwee would be that, instead of the ISC’s widened remit beyond the three agencies being defined precisely in a memorandum of understanding, it would be defined in primary legislation, which is not in the interests of a good definition of the ISC’s role and is less flexible as I have said.
The Government’s intention is that the memorandum of understanding will enable the ISC to oversee certain activities; for example, within the Ministry of Defence as I have described. A memorandum of understanding is the best place to make provision at this level of detail.
The effect of Amendment 22, as proposed by the noble Baroness, Lady Smith, would be that a memorandum of understanding agreed between the Prime Minister and the ISC for the purposes of Clause 2 would need to be approved by a resolution of each House of Parliament before it could take effect. The memorandum of understanding is an important document. It will define the activities of government in relation to intelligence or security matters, other than the activities of the agencies, which the ISC may oversee. It will also specify additional principles and provisions, other than the criteria specified in the Bill, with which the ISC’s consideration of operational matters must be consistent. It will also specify the arrangements by which the agencies and other government departments make information available to the ISC.
The Bill also provides that the memorandum of understanding may include other provisions about the ISC or its functions. It must be agreed between the Prime Minister and the ISC and can be altered or replaced at any time by agreement. It is therefore different from a parliamentary document.
While the ISC is dissolved on Dissolution of Parliament, the memorandum of understanding will continue in place during a succession of government until a new memorandum of understanding is agreed with the Prime Minister.
As is usual for a memorandum of understanding, there is no parliamentary approval procedure. While the memorandum of understanding will be an unclassified document which is published and laid before Parliament, its precise terms are very likely to be shaped by matters which are sensitive in terms of national security and cannot therefore be made public. However, there is no restriction on the document laid before Parliament being debated in Parliament, and, indeed, one might expect on occasions for it to be so debated. Of course, the terms of the memorandum of understanding must be agreed with the ISC itself: a committee composed of parliamentarians that, as a result of the changes that we have been talking about, will be a committee of Parliament appointed by and accountable to Parliament. Requiring these parliamentarians to seek the approval of their parliamentary colleagues would be quite a restriction on the independence of that body.
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In answer to the question posed by the noble Lord, Lord Campbell-Savours, the Government expect before Third Reading to publish a document setting out the areas that the Government expect the memorandum of understanding to cover. In other words, it will be a framework document premised on the assumption that the ISC-related provisions in the Bill are enacted, substantially, in their current form. I should make it clear that the document which we will publish can at this stage record only the Government’s intention, as the memorandum of understanding itself needs to be agreed between the Prime Minister and the ISC and we cannot presume on the ISC’s reaction to that document. However, it is our intention to publish that document before Third Reading.