My Lords, this amendment is in my name and that of the noble Marquis, Lord Lothian. I shall couple with it Amendment 23. I am grateful to the Opposition, who have given their support to these amendments. They relate to circumstances in which the ISC may consider operational matters. At the moment, these are defined in Clause 2(3), which states:
“The ISC may … consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that
(a) the matter—
(i) is not part of any ongoing intelligence or security operation, and
(ii) is of significant national interest, and
(b) the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
The problem is that that is too restrictive, but I want to make clear at the outset that the ISC does not aspire to consider current operational matters unless the Government have some particular reason for asking it to.
The reason why the wording is too restrictive is that at present there are three tests that have to be passed by an operational matter for the ISC to continue to consider it. The first is that it,
“is not part of any ongoing intelligence or security operation”.
The second is that it,
“is of significant national interest”.
The third test is that,
“the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
However, the preface to that is that the ISC and the Prime Minister must be satisfied that those conditions are met. That would curtail the present operations of the ISC considerably.
I shall cite one example. When the SIS operation in Libya went so badly wrong and it got into the newspapers, the first thing that happened, quite rightly, was that the chief of SIS wrote a letter to the committee to explain what had gone wrong. If the words of this provision were taken literally, he could have done that only if he had first cleared his lines with the Prime Minister. I could repeat lots of examples of matters where something appears in the press and the heads of the intelligence agencies then report to the ISC. However, the provision says that before any operational matter can be considered, the Prime Minister has to be satisfied that the three tests are passed. My first amendment would omit the words,
“the ISC and the Prime Minister are satisfied that”,
so that the provision would read, “The ISC may consider any particular operational matter but only so far as” the three tests were passed. In other words, it would remove the hurdle of satisfying the Prime Minister, which certainly does not apply at the moment. To have to satisfy the Prime Minister in each case would add a new and cumbersome bureaucratic procedure, which I doubt very much that the Prime Minister would welcome, let alone the ISC.
Doing that alone, however, is not sufficient, and that is where Amendment 23 comes in. That amendment says that the three tests would have to be passed before the ISC could consider an operational matter, and one of those tests would be that it was not part of any ongoing intelligence or security operation.
As I said, the ISC has no aspiration to consider an ongoing operation, unless the Government ask it to. We normally looks at operations retrospectively, but there are circumstances in which it suits the Government to ask the ISC to look at an ongoing operation, so Amendment 23, which my noble friend and I have tabled, states:
“The ISC may, notwithstanding subsection (3), consider any particular operational matter if the relevant Minister of the Crown agrees to consideration of the matter or it is consistent with the memorandum of understanding”.
An example of where this was necessary was cited by the noble Lord, Lord King. When he was chairman of the committee, it was asked by the Home Secretary of the day to consider the Mitrokhin case. That was a circumstance in which it suited the Government to ask the ISC to consider that operational matter. It would be very quixotic if the ISC had to say to the Government, “Sorry, you may have asked us to look at this matter because it would help you, but I am afraid we’re not allowed to because there is an absolute ban on it in the Bill”.
The purpose of these two amendments is to give more flexibility to the Government about the circumstances in which the ISC may look at an operational matter. It is not the ISC’s wish, in normal circumstances, unless the Government want it to, to look at matters retrospectively. The purpose of this amendment is to increase the flexibility which has been removed by the current drafting of the Bill. I beg to move.