My Lords, I beg to move that your Lordships do agree with the Commons in their Amendment 1. I shall speak also to Commons Amendments 2 and 3, 26 to 43 inclusive, and 45.
Part 1 of the Bill makes significant changes to the system for independent oversight of the intelligence agencies and the wider intelligence community. It extends the Intelligence and Security Committee’s statutory remit, granting it additional investigative powers. It changes the ISC’s status to a committee of Parliament created by statute. The ISC in future will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The Bill also extends the remit of the Intelligence Services Commissioner.
When the Bill was last in this House, we had a series of detailed and well informed debates. At Report I made a commitment that we would bring forward amendments in the Commons concerning the status of the ISC. We have done that. We have also moved a number of other amendments in the Commons that address concerns that were originally raised in this House.
I turn first to Commons Amendments 1, 41, 43 and 45. These concern the status of the ISC. During the debates in Committee and at Report, there was some very well informed debate about the future status of the ISC. The noble Lord, Lord Campbell-Savours, who I regret is not in his place today, made the case for the ISC becoming a Select Committee. The noble Lord, Lord Butler, and my noble friend Lord Lothian, current members of the ISC, argued for changing the name of the ISC to the Intelligence and Security Committee of Parliament to make clear the parliamentary character of the ISC. Following that debate, I announced the Government’s intention to make clear the parliamentary character of the ISC and to make a number of necessary consequential amendments. The amendments that the Government moved in the Commons would deliver on the Government’s intention.
Amendment 1 would adopt the amendment first tabled by the noble Lord, Lord Butler, and my noble friend Lord Lothian, and would change the name of the Intelligence and Security Committee to the
Intelligence and Security Committee of Parliament. Amendments 41 and 43 would make the equivalent changes in Schedules 2 and 3. These amendments would more fully realise the Government’s intention that the ISC should be a committee of Parliament, created by statute.
Commons Amendments 40 and 42 are closely related to the “of Parliament” amendments that I have just discussed. The Data Protection Act 1998 applies to Parliament but with special rules to determine who the data controller is. The data controller is the person within any organisation on whom most of the obligations under the DPA fall. Section 63A of the DPA states:
“Where the purposes for which and the manner in which any personal data are … processed are determined by or on behalf of”,
either House,
“the data controller … shall be the Corporate Officer”,
of the relevant House. It is not appropriate that the corporate officer should be the data controller for data processed by the ISC, but this is the likely effect of Section 63A once the ISC is a committee of Parliament. For that reason, Amendment 40 would add a provision to disapply Section 63A of the DPA so far as the ISC is concerned so that, notwithstanding that the new ISC will be a committee of Parliament, its data controller can continue to be its clerk.
In addition, both the House of Commons and the House of Lords are subject to the Freedom of Information Act 2000—the FOIA. As a committee of Parliament, it is arguable that the ISC, too, would be subject to the FOIA, as other Joint Committees are. To avoid this consequence, Amendment 42 would add a provision to the Bill which would amend references to the House of Commons and House of Lords in Schedule 1 of the FOIA to make it clear that they are not subject to the Act as regards information held by the ISC. This amendment would preserve the status quo, in that the FOIA does not apply to information held by the ISC now and it would not do so in future.
In addition, Amendment 42 would add the ISC to the list of bodies in Section 23 of the FOIA. The result of this would be that ISC information—information which has been supplied to or by the ISC, whether directly or indirectly, or which relates to it—in the hands of another public authority subject to the FOIA would be exempt information for FOIA purposes.
We now turn to Commons Amendment 39, which would provide statutory protections for evidence given by witnesses to the ISC. First, such evidence may not be used in any civil or disciplinary proceedings. Secondly, evidence given by a person who is a witness before the ISC may not be used against that person in any criminal proceedings. These provisions would replicate an important part of the protection that witnesses before a Select Committee have by virtue of parliamentary privilege. They would provide encouragement to witnesses appearing before the ISC to be full and frank in their evidence. The protection against the use of evidence in criminal proceedings would be narrower than the equivalent protection for civil and disciplinary proceedings. They would not impinge on an individual’s right to defend him or herself in criminal proceedings. Of course, evidence that is deliberately misleading is of
no assistance to the ISC. Accordingly, the protections would not apply to evidence given by a witness to the ISC in bad faith.
On Commons Amendment 26, I said at Report that one possible consequence of the “of Parliament” change is that the ISC would have the power to take evidence on oath. Following further analysis, we concluded that the consequence of changing the status of the ISC to become a statutory committee of Parliament was that the ISC may, in future, take evidence on oath. Our view was that existing statutory powers applicable to Commons and Lords committees would give the ISC the authority to administer oaths. This view shaped amendments which the Government tabled, and which were agreed to, in Committee in the Commons. However, the House service raised a concern with the Government about this, disagreeing with our analysis that the “of Parliament” change gives the ISC the authority to take evidence on oath. Its view is that the Bill should contain an express power for the ISC to take evidence on oath. In response to that concern, the Government tabled an amendment in the Commons to put the ISC’s power to take evidence on oath beyond doubt. It is not necessary that the Bill specify who has the power to administer oaths on behalf of the ISC; that can be left for the ISC to determine, under its general power to determine its own procedure.
Commons Amendments 2, 3, 28, 29, 30 and 31 concern the ISC’s ability to oversee operational matters. The Bill extends the ISC’s statutory remit, and makes clear its ability to oversee operational matters. This is a crucial part of the Bill’s aim of strengthening oversight. The amendments would both extend and clarify the ISC remit to oversee operational matters; they respond to concerns of the ISC that were raised by the noble Lord, Lord Butler, during debates in this House. The noble Lord’s first concern was that there may be exceptional circumstances in which the Government might want the ISC to consider particular operational matters falling outside the existing criteria. His second concern was that the requirement that both the ISC and the Prime Minister be satisfied that the criteria for operational oversight were met might slow down the provision of information to the ISC on routine operational matters.
In response to these concerns, the amendments made in the Commons would mean that the Bill would provide for three routes by which the ISC may consider particular operational matters. The first route is the one that was already in the Bill—when the Prime Minister and the ISC are agreed that the matter is of significant national interest and is not part of any ongoing intelligence and security operation. The second route is when the Government request the ISC to consider a matter notwithstanding that either or both of those criteria are not met. This meets the first concern raised by the noble Lord, Lord Butler. The third route is where the ISC’s consideration of a matter is limited to considering information provided to the ISC voluntarily by the agencies or another government department. This meets the second concern raised by the noble Lord.
For the first and second routes only, the ISC and the Prime Minister would need, additionally, to be satisfied that the consideration of a particular operational matter
is consistent with the memorandum of understanding agreed between them. The ISC’s powers to require the agencies or other government departments to provide it with information would be available in the first two cases, but not for the third—on the consideration of information volunteered to the ISC. This would be the effect of Amendment 3 and consequential Amendments 28 to 31.
Amendment 27 addresses the future resourcing of the ISC. In Committee in the Commons, the Minister for Security made clear that it remained the Government’s intention that we should make the ISC more parliamentary and move it away from Government. Officials from government, the House service and the ISC secretariat have discussed what we think will be an acceptable solution agreeable to all parties. This is that the ISC secretariat should become a separate body, grant-aided by the House. This would be similar, for example, to the Commonwealth Parliamentary Association UK. The National Security Adviser has written to the Clerk of the Parliaments and to the Clerk of the House of Commons setting out formally that this is the Government’s intention. My understanding is that the House of Commons Commission and the House of Lords House Committee are willing in principle to take on responsibility for grant-aiding the ISC. This solution meets the Government’s policy intention that responsibility for the ISC secretariat should be moved away from government. As the ISC itself becomes a committee of Parliament so, subject to what I will say shortly, responsibility for the funding and resourcing of the ISC secretariat would pass from Government to Parliament.
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A key part of the discussions with the House service and the ISC has been the future accommodation and security of the ISC. The ISC is different from other parliamentary committees. It is housed on secure premises and its staff go through developed vetting. The committee routinely handles information up to top secret strap 2. For that reason it is essential that effective arrangements are in place for the security of its accommodation and IT. The best solution for all parties is probably for the ISC to continue to be accommodated on the government estate and for the Government to provide certain services, such as secure IT. Officials will continue to discuss the detailed implementation with the House service and the ISC secretariat. This will include the exact status of staff and details of the governance structure for any grant-aided body.
There is no requirement, in order for Parliament to fund the ISC, for an express provision on the face of the Bill. The clear implication of Clause 1(1) is that the committee will be resourced and funded by Parliament. However, if the ISC is to be funded or resourced to any extent by government, this needs to be provided for expressly in the Bill. That is the reason for tabling Commons Amendment 27. This would provide a clear statutory basis for the Government to provide additional resourcing for the ISC. We foresee this power being used in two sets of circumstances. First, it might be used to provide additional top-up funding in exceptional circumstances for a limited period—for example, when the ISC is facing an exceptional workload for one reason or another and its resource requirements have
temporarily increased. Secondly, the power could be used to provide additional funding or specific resources, such as IT security or physical security, where the ISC’s requirements, because of the nature of the work it does, are different and more costly to fulfil than the requirements of ordinary Select Committees. To be clear, this provision is only intended to allow Government to supplement the funding and resourcing that Parliament provides to the ISC. Parliament has the primary responsibility for funding and resourcing the new body.
We now come to consider Commons Amendments 32 to 37, which concern the power of Ministers to withhold information from the ISC, where the ISC has requested the information using its powers in paragraph 3 of Schedule 1. The Bill provides that Ministers may decide that information should be withheld from the ISC on two grounds: first, if the Minister considers that it is “sensitive information”, as defined in the Bill, which in the interests of national security should not be disclosed to the ISC; and, secondly, on the grounds that it is information that the Minister would consider it proper to withhold from a departmental Select Committee of the House of Commons, having regard to the relevant government guidance—currently the so-called Osmotherly rules. Equivalent powers to withhold information from the ISC are contained in the Intelligence Services Act 1994.
Where agencies’ material is concerned, the Bill provides that decisions to withhold information from the ISC must be taken by the Secretary of State. However, where the ISC requests information from another government department, the Bill states that a decision to withhold is taken by “the relevant Minister of the Crown”. At Report stage the noble Baroness, Lady Smith, proposed an amendment that would have restricted the power to withhold to a Secretary of State or a Minister of equivalent level. The noble Lord, Lord Butler, on behalf of the ISC—if I may say that he was speaking in that capacity—supported that amendment. Since then, the Government have given the debate on this matter further consideration. As a consequence, during consideration of the Bill in the Commons, we moved Commons Amendments 32 to 37, which together would have the effect of restricting the power to withhold, on behalf of government departments, to the Secretary of State, rather than any Minister of the Crown.
It might be thought, and indeed it was initially the Government’s view, that this would be problematic for a department such as the Cabinet Office, which has no Secretary of State. However, most information that the ISC might request of the Cabinet Office, and which the Government may wish to withhold, will be sensitive primarily because of the interests of another department. Accordingly, the Foreign Secretary, Home Secretary or Defence Secretary, as appropriate, would be perfectly well placed to take a decision on withholding. A minority of information that the ISC might request from the Cabinet Office may be sensitive on other grounds, but on further consideration we do not think that this should prevent us reserving the power to withhold to the Secretary of State.
Commons Amendment 38 places restrictions on the ISC’s ability to publish material that it receives privately in connection with the exercise of its functions.
This amendment would address a consequence of the ISC being a statutory committee of Parliament. As a committee of Parliament, the ISC will have a general power to publish information, sitting alongside its express power to publish reports to Parliament. Absent a restriction on this general power, the new ISC would be able to publish evidence it has received other than through its reports to Parliament. While the Official Secrets Act 1989 gives protection against disclosure of most information supplied to the ISC by the agencies, other information coming to the ISC would not be sufficiently protected and this would undermine other safeguards for the protection of sensitive information in the Bill.
The provision would take the form of a general prohibition on the publication of information received by the ISC in private in connection with the exercise of its functions, subject to certain exceptions or gateways permitting publication. There are four gateways in all. These permit publication, first, through the ISC’s reports to Parliament; secondly, of material that has already lawfully been placed in the public domain; thirdly, where publication is necessary to meet a legal requirement; and lastly, where the Prime Minister and the ISC agree that publication will not cause prejudice to the functions of the agencies or other HMG security and intelligence bodies. The ISC would also be prohibited, except where a gateway applies, from disclosing any personal information received by it in connection with the exercise of its functions if the ISC considers that there is a risk that the intended recipient would publish the information.
The gateway enabling publication or disclosure, where the Prime Minister and the ISC agree that this will not cause prejudice to the functions of the agencies or other HMG security and intelligence bodies, uses the same criteria as are used in Clause 3(4) of the Bill, which allows the Prime Minister, after consultation with the ISC, to require that the ISC should exclude a matter from any report to Parliament. The consequence of including this gateway would, therefore, be that the ISC would be able to publish informally any information that it will ultimately be permitted to include in its reports to Parliament. As I have said, the criteria are exactly the same.
In summary, following the detailed and well informed debates on the Bill in this House—I am sorry to have taken so long to report on their consequences, but I feel that the detail is important—we were able to move amendments in the Commons that address a number of the concerns raised in this House. The amendments make clear the parliamentary character of the ISC, while placing limitations on its power to publish the evidence it receives; they clarify the Data Protection Act and Freedom of Information Act status of the ISC; they provide statutory protections for evidence given by witnesses before the ISC; they give the ISC an express power to take evidence on oath; they clarify and extend the ISC’s powers to oversee operational matters; and they restrict the power to withhold information from the ISC to Secretary of State level.