HL Deb 10 February 1988 vol 493 cc210-42

Lord Jenkins of Putney rose to call attention to the case for bringing the secret services under a greater degree of control and accountability; and to move for Papers.

The noble Lord said: My Lords, I make no apology for raising again a subject to which I drew attention in your Lordships' House just over a year ago.

In that debate the noble Lord, Lord Dacre, referred approvingly to Dr. Christopher Andrew's magisterial history of the British secret services. Perhaps a quotation from page 500 of that book might serve as my first text: The simple fallacy behind the argument that total disclosure is the only alternative to total secrecy (roughly equivalent to saying that a nuclear holocaust is the only alternative to complete pacifism) escaped serious challenge for so long because the intelligence community acquired the status of an unmentionable taboo exempt from any process of rational public or parliamentary debate. Fallacies breed fallacies. For example, the Master of the Rolls, Sir John Donaldson, in the Appeal Court recently, gave vent to the extraordinary view that the secret services are above the law. I understand that the expression of such a proposition in some countries would involve the immediate retirement from his position of the utterer of those words.

However, your Lordships will be glad to know that the Master of the Rolls thinks that while the secret services may break the law in any other way (he did not exclude theft or violence), they must stop short of murder—unless, I suppose, it happens by accident as is thought to have occurred more than once. Happily an earlier plan to murder a head of state was not proceeded with.

The noble and learned Lord, Lord Denning, has been kind enough to send me a note saying that on medical advice he has had to withdraw his name from the list of speakers today. I believe that each one of your Lordships will wish to join with me in expressing the hope that the noble and learned Lord will soon be restored to full health and will return to us.

Noble Lords

Hear, hear!

Lord Jenkins of Putney

The noble and learned Lord, Lord Denning, will not object to my saying that he did not agree with the Master of the Rolls. Indeed he has expressed that view pretty cogently (as is his custom) not only in his report on the subject, but more recently in the Independent newspaper.

Unhappily, the professor of public law at the London School of Economics told us in the Independent last week that the Royal prerogative is regularly used to excuse such breaches of the law and to provide reason for not prosecuting when they are discovered. Everything that has happened—or has not happened—since I last raised this matter must serve to increase disquiet. Nothing has been done; something must be done.

My next text comes from Mr. Peter Wright's book, Spycatcher. That is a book, which, at enormous expense, the Government have publicised so effectively as to bring Mr. Wright almost into the Jeffrey Archer class in terms of financial reward for his efforts—that is if he gets it, of course. Presumably this may do something to compensate a very mixed-up man for what he regards as an inadequate pension. What other reason can there be for the Government's incredible stupidity in this matter, unless it is that there is someone in charge who is both very determined and very unwise?

Mr. Wright says, at page 54—and the quotation is short so I shall read it from my notes rather than from the book: For five years we bugged and burgled our way across London Mr. Wright thought that it was all great fun but Miss Joan Miller and Miss Cathy Massiter, who were employed in similar ways, found that the game turned their more moral stomachs. Spying on the Campaign for Nuclear Disarmament was a typically absurd secret service effort, like sending the night into the day to discover by what mischief all that light is being created. The campaign is a public body. It would have welcomed television into its deliberations without all the havering and fuss they have been making across the way. As one who was both bugged and burgled at our flat in Putney during the time when I chaired the Campaign for Nuclear Disarmament, I can tell your Lordshps that it is no fun to be at the receiving end, to watch the embarrassment of the local police as they examine your home, your proverbial castle, which has been turned upside down with papers spread all over the place but nothing taken. It is a very eerie and strange experience to realise that you are outside the protection of the law.

The noble and learned Lord, Lord Denning, says in his report and in his letter to the Independent that, if they break the law, officers of MI5 can be brought before the courts and punished. Theoretically, perhaps, but not in practice, for the police can never find them. They do not exist. Although they break the law as a matter of course—and it is now generally known that they do—they have never been brought before the courts. To put it mildly, it is an unsatisfactory state of affairs.

I am less bothered about bugging. When as chairman of CND I spoke on the telephone to Dr. Cox, a vice-chairman whose telephone, it has since been officially admitted, was tapped, I used to wait for the clicks and then say, "Are you listening comfortably? Then we'll begin". But I fear that the line that Members of Parliament are not bugged may be just another case of a Minister, innocently or otherwise, retailing the usual secret service automatic denial of the truth—unless the policy has changed. We do not know.

My final text comes from my own book The Culture Gap, if I may be forgiven. On pages 13 and 14 I summarise the strange experience of how, having been seconded from the Royal Air Force to broadcasting duties in Burma, I applied on demobilisation to join the BBC and was twice accepted. After completion of the formal application papers the acceptance was twice cancelled. It became all too clear what the cause of the trouble was but, as I say in the book, the suspect cannot be told why he is under suspicion". And of course there can be no appeal, for, as the secret services do not exist, they cannot be admitted to have intervened.

This is not the occasion to detail how in my own case the error was subsequently and tacitly admitted. However, by this time I had decided to be a trade union official, which led me into politics and eventually into your Lordships' House. But for the intervention of the secret services in my affairs I should by now almost certainly be a long-retired disc jockey.

My Lords, there may be those among you who will, perhaps for the first time, perceive that there may be something to be said for bringing the secret services under more effective control. I must get on. Those who are interested to know more about this extraordinary episode must either read my book, which is in the Library, or perhaps get the BBC to let them have a cassette of my radio play "Lost Tune From Rangoon", which was broadcast last August.

Secrecy both attracts and breeds eccentricity. The secret services of the world are full of double agents, potential and actual. They batten on each other. The most valued defectors are spies, though no one can be quite sure whether they have really changed sides as the primary loyalty of those people who are in the secret services of the opposing side, as it were, often seems to be to their wretched trade, which Mr. Chapman Pincher has named treachery.

There are those who think that all secret services should be abolished, and in an ideal world that would be so. But I believe, with the late Lord Butler, that politics is the art of the possible. In the real world the best we can do is to follow the example of some other countries and bring our secret services under more effective supervision answerable ultimately to Parliament. If we fail to do that we shall find that democracy itself has been undermined.

This is no time to detail the way in which we might combine essential secrecy with equally essential accountability to an open Parliament. As I have said, like my noble friend the Leader of the Opposition on another occasion, I would settle for a committee of Privy Counsellors which would report annually to Parliament. As the Labour Party has said, after that what we need is not attempts to treat the sickness of secrecy but the removal of the cause by a freedom of information Act. The present position in which, for example, American congressional committees know more about British intelligence activities than any British Member of Parliament outside the Cabinet, and probably more than most of them inside it, is intolerable.

I do not go along with Mr. Neal Ascherson of the Observer in believing that the answer to the problem is that we must become a republic. He has only to look across the Atlantic to be cured of that illusion. But we must certainly not bring the word "Royal" into disrepute by pretending that when they break the law the secret services are exercising the Royal prerogative at several removes and without specific authority. That is intolerable and indefensible and must be stopped.

The Master of the Rolls has performed no public service by giving such a reprehensible idea the cloak of his office. What the noble and learned Lord, Lord Denning, says is the case must be given the substance of reality. Secret service officers do break the law. The noble and learned Lord should be given the assurance that what ought to happen actually takes place. It does not, and he must know that it does not. Now the Master of the Rolls says that, short of murder, the secret services are allowed to break the law, and there are those who think that even murder has taken place.

Sir John Donaldson seems to have overlooked the fact that if you remove the penalties of the law from the offender you also remove its protection from the victim. I do not know which is worse. Perhaps your Lordships will judge the question. Is it better to pretend that everyone is under the law knowing that some are not, or is it better to admit the existence of privileged wrongdoers and give them the cover of the Royal prerogative? Your Lordships will know the answer.

It is of course that neither of these things is compatible with a healthy society and that all of us without exception must be equal before the law and answerable to the law. We cannot hold up our heads in the world until this becomes the case, is known to be the case and seen to be the case. My Lords, I beg to move for Papers.

3.30 p.m.

Lord Campbell of Croy

My Lords, I am sure that I speak on behalf of the whole House when I thank the noble Lord, Lord Jenkins of Putney, for choosing this important subject, having won a ballot. He won a ballot in 1986 and we had a debate on 17th December in which his Motion was almost the same; it was about the accountability of these services. It gives the House a chance to review the situation and also to hear the Government's latest views upon the subject.

The noble Lord referred to secret services in the plural. As in the last debate, I should like to refer first to the security services, sometimes known as MI5, and to the other intelligence services, secondly, as "British Intelligence".

The Motion speaks of, a greater degree of control and accountability". In the previous debate the concern was merely accountability. I think that the noble Lord, Lord Jenkins, accepts that there is accountability now through the Home Secretary for the security service, and through the Foreign Secretary for British Intelligence. Of course, the Prime Minister is responsible overall. Those Ministers are accountable to Parliament. I am conscious that I am speaking in the presence of three former Prime Ministers. They are not down to speak in the debate but they have special knowledge of the subject.

Since the previous debate, as I understand it, there has been progress (we look forward to hearing about that from my noble friend Lord Ferrers when he replies) on internal procedures, whereby matters raised, whether they be complaints or anxieties, by members of the security service or British Intelligence can be dealt with by new procedures or by some internal ombudsman.

In general, I am in favour of less secrecy in government. I am in favour of replacing Section 2 of the Official Secrets Act, as I am sure are most of your Lordships. I spoke in the only debate on the Bill, which took place on Second Reading in your Lordships' House in 1979, when the Government were trying to replace Section 2. That Bill was then dropped. I applaud the fact that the Government now propose to introduce another Bill and to have another shot at the difficult task of replacing Section 2.

That section has little to do with the subject with which we are dealing today. There is little application to the security service and British Intelligence of opening up the Official Secrets Act. Those two organisations must operate in secret if they are to do their jobs. Almost everything connected with their work must be secret if they are to be effective. To try to expose publicly their functions and organisation is a disservice to our country and diminishes to some extent the safety of all its inhabitants.

As I see it, the main issue raised today is whether the present accountability by designated Ministers to Parliament is enough. On the principle "the fewer who know, the better", it must be said that at present a small number of officials in the Foreign Office and the Home Office are informed of what are considered to be relevant activities. Ministers are brought in when it seems appropriate. Therefore one must conclude that it is the directors-general and the few officials concerned who decide whether a Minister should be informed or consulted. Those must be delicate and difficult decisions. Ministers are transient. They occupy a position for three or perhaps four years. Doubtless they will give the right political consideration to a secret matter which is put to them, but they may never have had previous experience of the subjects, which would be completely new to them. Ministers are also extremely busy men, with their responsibilities to Parliament, and thus have little time to deal with such matters.

Should there be some new body to take part in the process to help the Ministers with their responsibilities? In the previous debate it was suggested that something like the Security Commission, which already exists, might be established. I agree with the Government's view, which was given on that occasion by my noble friend Lord Caithness, that any new body should not detract from Ministers' responsibility to Parliament; and that the services will suffer and be less efficient if there are two separate authorities attempting to supervise them.

A committee of Privy Counsellors has been suggested. My view is that a conference of Privy Counsellors, as has been convened on a number of occasions, can be usefully set up to act for a particular purpose and with a limited duration. That is the way that such conferences have been used in the past. Some of your Lordships may know that I was involved in the establishment of the first of these Privy Counsellors' committees in 1955. It was called a Conference of Privy Counsellors. I was then, as a Foreign Office official, the private secretary to the Secretary of the Cabinet, who later became Lord Normanbrook.

If there is to be a new body with a role to play with the security service and British Intelligence, I believe that it should have a wider membership than Privy Counsellors who have occupied ministerial positions and served in Parliament. For example, it could contain a former senior official, or a judge or other eminent lawyer, and other people whose knowledge and wisdom of the world would enable them to contribute. The body would not be large, but I believe that the appointment should be something like four years at a time so that it would be normal for a member to serve for about eight years, or perhaps more.

It would be a comforting assurance to Parliament and the public that there was a body in existence available to consider the roles of the security service and British Intelligence. It would be consulted and would be able to give advice to Ministers and the directors-general. It would not be an executive body and would not replace Ministers as responsible to Parliament. Therefore it would meet the objections which were raised in the previous debate.

Is it worth creating such a body, given the necessary limitations? I believe that it may now be worth while, as much has happened over the past few years to produce an apparent conflict between secrecy and what the public and taxpayers should be entitled to expect to be done in their interests.

I have not mentioned the Peter Wright book and such matters, which were mentioned by the noble Lord, Lord Jenkins. I do not believe that we need discuss that subject today. Your Lordships will have noticed that I also have a Motion on the Order Paper, down for ballot, which concerns the recruitment process to the security service and British Intelligence and the case for a legally enforceable contract of silence to be entered into at the time of recruitment. However, I suggest that is a subject for another day, if one of us is fortunate enough in another ballot.

My intention has been to speak constructively on accountability and to suggest, if something needs to be done, the way in which I believe progress can be made.

3.39 p.m.

Lord Bonham-Carter

My Lords, I should also like to thank the noble Lord, Lord Jenkins of Putney, for giving us an opportunity to discuss the security services. I also have great pleasure in following the noble Lord, Lord Campbell of Croy, with whose conclusions I find myself in general agreement. I think the subject is an interesting and important one because it strikes at the very heart of democratic politics. It raises in an acute form the doctrine of accountability, as has already been said, and it also raises in an acute form the rule of law.

Unless servants of the Crown are accountable and unless we know to whom they are accountable, we cannot tell when things go wrong (and you can be sure that with the absolute regularity of a metronome things will go wrong) and to whom responsibility should be assigned. The security services by definition fit extremely uneasily within the structure of democratic politics. Indeed, in the early days of the United States of America, the idea of having a secret service was a sign of original sin from which they were going to escape. But the fact of the matter is that as nation states live in a state of nature, as it used to be called, and engage in espionage, and because, as we know today, terrorism is widespread, in these circumstances counter-measures are essential and secrecy is unavoidable. Hence, disagreeable though it may be, in the world we know security services are essential and secrecy is essential to their operations.

This confronts democratic societies with the rather uncomfortable dilemma as to how you reconcile that kind of secrecy and those kinds of operations with accountability. This dilemma has become over the last few years a matter of controversy because of the series of incidents, allegations and revelations which have made people ask themselves whether the security services are properly controlled and properly accountable and if so, to whom. I need hardly list the incidents with which people are very familiar: the long running Hollis saga; the extraordinary story of the recruitment and continued employment of Bettaney; the revelations, true or false, of Wright; and, finally, more recently, the Stalker story. This succession of events has inevitably caused concern and has rightly worried people. They have asked themselves: who are the people employed in MI5 and MI6? To whom are they really accountable in practice? Do they regularly break the law? Are they politically motivated?

The answer given to some of these questions, in particular to the last question, the allegations that there were attempts to destabilise the Government when the noble Lord, Lord Wilson of Rievaulx was Prime Minister, was given in your Lordships' House on 6th May 1987. The noble Viscount, Lord Whitelaw repeated a Statement made by the Prime Minister in another place. We were informed that a full inquiry into the allegations of an attempt to destabilise the Government when the noble Lord, Lord Wilson, was Prime Minister had been undertaken by the director general of the security services, who had found that there was no truth in the allegations; that the stories retailed were false; that all the security officers denied being involved in plans to undermine the Government. We were refused any fuller inquiry, despite the request made by the noble Lord the Leader of the Opposition and my noble friend Lord Diamond.

At the same time we were asked to have the fullest confidence in the security services. My Lords, how could we? The air was full of smoke. How could we have full confidence in services which employed people like Mr. Bettaney, on the one hand and Mr. Peter Wright on the other hand? How could we believe that an inquiry into the activities of those services had been rigorous when the noble Lord, Lord Glenamara, who was a victim or appeared to be a victim of dirty tricks, had never been involved nor questioned nor even approached? I may add that Mr. Cavendish's recent book confirms or supports both the destabilisation stories and the allegation that the noble Lord, Lord Glenamara, was a victim of dirty tricks. So much, therefore, for the anxieties which people naturally felt in the light of these events and the extent to which they raised the question of accountability.

I now turn to the rule of law to which the noble Lord, Lord Jenkins of Putney, has referred. It has been alleged that the secret services had breached this on a number of occasions. The noble and learned Lord, Lord Hailsham of Saint Marylebone, has recently written: In English law, members of the security or secret services are as much subject to the laws of homicide, assault, perjury, conspiracy or even trespass as any other of Her Majesty's subjects. That is a comforting and categorical statement. The noble and learned Lord, Lord Denning, agrees with it.

On the other hand, as the noble Lord, Lord Jenkins of Putney, has said, the Master of the Rolls, in a series of extraordinary interjections in a recent case, has put a totally contradictory opinion. He has said that the secret services were not obliged to follow the letter of the law and indeed it was inevitable that they would not; that in those circumstances it was all right to use the prerogative of power not to prosecute intelligence officers. Most extraordinary of all, he said that if there were a plan to assassinate the head of a friendly power, it would be against the public interest for this to be revealed. It makes one worry about the judiciary, let alone the secret services.

This leads one to the Stalker case. Who was responsible for stopping the Stalker inquiry? Was it the RUC or MI5 or somebody else? Who was responsible for charging him with offences of which he was subsequently cleared and which would, in a cruder form, be called framing him? Was it the RUC or MI5, or was it authorised by a Minister of the Crown? It seems to me that these are legitimate questions to which one should reasonably expect an answer. It was grossly unjust to accuse a man, if the motive for accusing him was just to stop an inquiry into unlawful behaviour. These worries cause disquiet; they call into question whether the democratic doctrines of accountability and the supremacy of the rule of law are being followed.

Hence we must ask why Her Majesty's Government have continued to refuse proposals made on 3rd December 1986 in another place for a committee of Privy Counsellors on the lines supported just now by the noble Lord, Lord Campbell of Croy, from both Houses to oversee in some way or another. The noble Lord suggested some of the ways in which it might be done, and my noble friend Lord Jenkins of Hillhead elaborated rather further on this matter in another place. This proposal has had support from all parties, from Ministers, from people with experience of office. Of course, there are precedents in this country for committees of this sort and there are analogues in the United States, Canada and Germany for a committee performing precisely this function.

I wholly agree with the noble Lord, Lord Jenkins of Putney, that this country has too many secrets and is obsessed with secrecy. This Government's passion for secrecy seems to be disproportionate. Their pursuit of Mr. Wright has made this country a laughingstock all over the world. A government keen on economy have spent over £2 million on this wild-goose chase, this self-defeating exercise. A government keen on law and order have stopped or have appeared to stop an inquiry into unlawful behaviour.

Inevitably, one must ask in these circumstances: quis custodiet custodes? The committee which has been proposed in another place, supported today by the noble Lord, Lord Campbell of Croy, would provide some reassurance to those of us who are worried that the security services which are created to preserve democracy may be exceeding their role.

I should like to end by quoting from Rebecca West in her book The Meaning of Treason, in which she raises the dilemma with which we are concerned: If we do not keep before us the necessity for uniting care for security with determination to preserve our liberties we may lose our cause because we have fought too hard. Our task is equivalent to walking on a tightrope over an abyss".

3.50 p.m.

Lord Hankey

My Lords, I feel that this is a subject where angels fear to tread; but in my 38 years as a diplomat I learned a lot about what goes on and I know a certain amount about the matter. There is a very awkward but fundamental reason why the secret services are more important now than they used to be. There are many more guerrilla organisations and terrorists than formerly which are far more sophisticated both in their internal structure (which is hard to penetrate) and in their extremely modern equipment. They also have unprecedented access to funds from abroad.

The army and the police by themselves cannot cope with the terrorist situation. I believe that without the secret intelligence services our whole liberal and democratic civilisation would be at risk. Not long ago the Prime Minister and the Government were nearly blown up in Brighton, and some Ministers suffered terribly. It is not good enough to bring the culprits to trial, although it is sufficiently remarkable that that was done. It is necessary to know in advance what is going to happen and to take preventive measures. That can be done only by superior intelligence involving many clever people and much money.

Whether we are talking about the IRA, the INLA, or Colonel Gaddafi's merry boys, all sorts of people are involved who are in touch with one another across the international spectrum. The people in Italy and Germany are often in close touch. I believe the Action Directe is also in touch with them. This is not something that the army and the police can deal with by themselves.

It is interesting to reflect that Mr. Begin and his guerrillas got us out of Palestine really by defeating us there. Subsequently, it is very strange that Mr. Begin, as Prime Minister, made the mistake of sending the Israeli Army into Lebanon where it came up against Arab guerrillas who knew just about as much as the Israelis did. When Mr. Begin discovered what he had done, he had a nervous breakdown and disappeared from public life, and the army ultimately had to be withdrawn. After our postwar defeat in Palestine it was not by chance that we sent our leading intelligence general, General Templer, to deal with the situation in Malaysia.

In Poland, where I served after the war, it was not the Soviet or Polish armies which destroyed the well-armed guerrillas who controlled the forests and large parts of Poland under the control of the Polish Government in London. It was the Polish secret police under the control and training of the Soviet secret police. They did a most effective and rather brutal job, which was a horrifying affair.

Let us look to see how it is today. The IRA, funded from America and Libya, are really as big a menace to Ireland as they are to this country. Some years ago the Basque movement, Eta, blew up the Spanish Prime Minister. In France the Action Directe is a real menace to the French body politic. In Germany and in Italy it is the same story. In Sweden Mr. Olof Palme, a real democrat for whom I had a great personal regard, was killed by an allegedly Kurdish organisation. He was without his bodyguard, which was very unwise. I do not know what degree of intelligence back-up the Swedish police had, but they never discovered who did it.

I maintain that our liberal and democratic civilisation, for which I have the deepest and most passionate regard, will be in real danger if it is not recognised that to face the modern threat of highly sophisticated terrorist guerrillas effective secret services are a vital adjunct to the police and armed services, and to the effective application of the law. I should particularly like to underline the latter point because the law is the foundation of the civilisation in which we are lucky to live. The secret services are also very important adjuncts to the other departments of government; but I shall not go further into that today.

That brings me to my next point. We have allowed our very essential secret services to be undermined by the media of all sorts and by the lure of financial gain from writing books. Spycatcher has been referred to today. The author was under an obligation not to reveal what he did, and it is really scandalous that he should have been able to do it. Unfortunately, the Government have not got away with stopping the book, and sooner or later we shall all have copies of it, just as my noble friend has. I do not know why previous books about the secret services escaped equal condemnation, apart from the fact that they were not written by former members of the secret services.

As the Middle East censorship authorities discovered during the war, there was not in Britain then and has never been any means of preventing the publication of a book as such, even if it is contrary to the national interest. But the more recent revelations by the media, especially by television, with names, pictures of institutions, persons and buildings, and details of incidents in the secret services have really been much more serious. This has been an inexcusable lapse of national discipline. The secret services must be secret if they are to be an effective protection for our liberal and democratic system, starting with our own democratically-elected Government. There must be better discipline effectively enforced. I am extremely glad that the Home Secretary, (once a member of the diplomatic service himself), is taking so seriously the need to reform the Official Secrets Acts. They are in desperate need of reform. We must have Acts which are sufficiently supported by the courts and by juries to be made effective.

On this background, what conclusion should one draw about the control of the secret services? I have several points to make. First, the need for real secrecy is the primary requirement. Otherwise, the IRA and others will discover what we are trying to do and will be much better able to conceal their own nefarious intentions. That means that only those who really need to know ought to be told. A slip of the tongue in those matters can easily cost the life of one of our agents. I say that to your Lordships quite seriously.

Secondly, whoever controls the secret services at the highest levels must be a person of real wisdom and impeccable common sense, with an unquestionable devotion to our libeal democracy and with real experience of public affairs. Thirdly, I think this clearly points to the tough and experienced characters who rise through Parliament—a splendid training ground if ever there was one—to be Home Secretary and Foreign Secretary. They should clearly consult the Prime Minister and keep him or her informed. Obviously the Secretary of State for Northern Ireland must be kept informed, as must the Secretary of the Cabinet.

However, if we want the system to be watertight —and it must be that—then only those who must know should be currently in the picture. I know how awkward that can be. However, we must be aware of even distinguished gentlemen who confide in one another in the bar. Many very sophisticated listening and recording devices that only the secret services used to use are now on sale in London. They are even beginning to get into the commercial community.

I cannot go as far as my noble friend Lord Campbell of Croy, for whose wisdom I have a great and long-standing admiration. I do not believe that an extra advisory body would be sufficiently reliable and secure. It is not that I distrust the reliability of the people. However, the media is so frightfully clever at questioning one person after another and setting off what is innocently said by one against what is innocently said by another. Almost any secret can be winkled out in that manner.

To sum up, if Parliament really does not trust the Government to run the system properly in that way, then it should get a new and better government. I believe that our present Government are eminently suitable and trustworthy to handle the secret services. However, a new official secrets Act is urgently needed. It should be rigidly enforced in the courts.

4 p.m.

Lord Hatch of Lusby

My Lords, tension between the executive and the legislature is an essential part of the history of democratic advance. However, we are living in a new age in which the authority of the executive itself is under threat. Two former Prime Ministers—my noble friend Lord Wilson and the right honourable Mr. Heath—have testified to that fact. Furthermore, a former Lord Chancellor, my noble and learned friend Lord Gardiner, stated that he: thought it more likely than not that MI5 was bugging the telephones in my office. He further stated that when he had confidential discussions with the Attorney-General, they went out in his car, where his chauffeur had made sure that they could not be bugged.

That is a threat to the authority of the executive and the legislature, as well as to the authority of our democratic system. It suggests that there is the danger of a Fifth Estate being established in this country—the estate of the secret services. That is a national rather than a party issue, although I must say that libertarianism has usually been supported by those on the left of the political spectrum and authoritarianism supported by those on the right. That is still the case.

It is our task as a Parliament—a task which has now become urgent, as my noble friend Lord Jenkins has aptly and amply demonstrated in his speech —that we must define by consensus where the line is to be drawn. The line must be clear between national security and the freedom of information which is essential to a democratic society. That freedom must be based on the accountability of every institution in the state.

There has been an increasing tendency towards what my noble friend Lord Jenkins mentioned in his opening speech. He said: the intelligence community has acquired the status of an unmentionable taboo exempt from any process of rational public or parliamentary debate". It was as recently as 1963 that Mr. Macmillan, as he then was, stated to the Commons after the defection of Philby: It is dangerous and bad for our general national interest to discuss these matters. That taboo, which dates from the 1920s when Austen Chamberlain was Foreign Secretary, is still with us. It has been evident time after time during the lifetime of the present Government.

It has been only two or three weeks since the issue was raised in another place. It was raised by a Conservative Member of Parliament, the honourable Richard Shepherd. Cross-party concern over the issue was shown by the fact that when the Bill was debated in the Commons, around 100 Conservative Members either abstained or voted for the Bill, despite the fact that the Government had imposed a three-line Whip. A government which imposes a three-line Whip on an issue of that kind apparently does not believe in consensus.

When we note that in that debate a former Prime Minister—the right honourable Edward Heath—and a number of former or present Cabinet Ministers—the right honourable Members Sir Ian Gilmour, Merlyn Rees, David Owen and Roy Hattersley—all supported the Bill, we have a very clear sign that the Government are opposed to any attack on the secrecy which has disturbed large sections of our nation.

Following the debate on the Bill, Mr. Shepherd and his supporters wrote to the Prime Minister. They stated: We therefore request that before publishing proposals in the form of a White Paper"— which had been promised during the debate— the Home Secretary should engage in discussions with representatives of other parties in an endeavour to arrive at agreed structures to replace Section 2 so that these discussions might proceed with the declared support and goodwill of government and opposition". That proposal was rejected. Why? Do we not want and need a consensus over a matter of such grave national importance and concern?

Mr. Justice Scott said in a recent verdict: we can never enjoin anybody to a life-long duty of confidentiality … we are asking them, when confronted with something that goes to the very heart of our democratic processes, which talks to us about the form of our democracy, that they should in no circumstances reveal such information. I hold that to be a dangerous proposition". So do I, my Lords. One has only to think of the Tisdall case, the Ponting trial and the Wright and Cavendish books to see that that legal judgment has a clear political repercussion.

In the Franks Report it was stated: that too often the Official Secrets Act was used to protect not the interests of the State or the country but to protect the political interests of the Government of the day". Again I refer back to the Ponting case, and to the Tisdall case.

There are certain practical consequences of this deep, profound and widespread tendency towards secrecy in government and the protection of those who are acting in secret. I shall give three instances. Firstly, we have all criticised the secrecy of the Soviet Union over the Chernobyl disaster, but let us not forget that there was also secrecy over the Windscale disaster of 30 years ago and that that secrecy was exposed only after the 30-year rule had expired. That is the kind of practical consequence of the application of secrecy in government.

My second example is the recent leak of the government document which described as "dangerous" the proposals on flammable foam-filled furniture. That affects the daily life of our people. It was partly because of the leak of that report that the Government were forced to announce a ban on the highly flammable foams which they had intended to leave on the market. The leaked document, which was a memorandum from the Crown Suppliers, criticised the plans of the Minister, Mr. Maude, to phase out a highly flammable foam over a three-year period, replacing it with a foam which was almost as dangerous.

That was a leak; it was a breach of confidentiality. If it had not happened the lives of many people would have been in danger. If it had happened in Australia, Canada, New Zealand or in the United States, where there is freedom of information legislation, the document involved would have been available to the public. It should be available in this country. I am glad that there are public servants who put their moral responsibilities before their political allegiance.

My third example relates to the dangers that accumulated before the war, when government security was neglected and the intelligence services run down. The threat was to national security as a whole because those intelligence services were quite deliberately withholding information on many of the aspects of the threat posed by Nazi Germany to this country and the whole of Western Europe. We know now that during that period there was a very deep-seated conspiracy to persuade the people of this country that Nazi Germany was not as bad as it appeared to be, was really a friend of the West and should be supported against the Soviet Union

I suggest that that is a danger which is present today in the new international atmosphere. It is a danger to the prospects of peace and understanding between East and West which we have all welcomed but which can be sabotaged by the same forces which were working before the war to sabotage those of us who were opposed to Nazism.

I am glad to know that the public is now beginning actively to take note of those dangers and that a campaign for freedom of information has already been established to mobilise a coalition of organisations and of individuals to oppose any restrictive secrecy legislation that it is proposed should be introduced later this year. It is not enough for the Government to say, as they did in the Shepherd debate, "wait and see; give us a blank sheet to draw anything on". After all those revelations the Government have a responsibility to Parliament and to the people of this country to reveal what considerations they are discussing in preparation for the White Paper to be issued in the summer and for probable future legislation. That is a matter which concerns the whole of the country; it is a matter which both Parliament and people have a right to engage in now. I hope that the noble Earl who will wind up this debate will be able to say something more specific than did his friend in another place at the end of the Shepherd debate.

4.17 p.m.

Lord Birdwood

My Lords, I think that we are all grateful to the noble Lord, Lord Jenkins of Putney, for raising this subject today. A year ago he was disappointed by an apparent inflexibility of response. Who knows? He may find himself less disappointed on this occasion.

I propose to take up not more than a few moments of your Lordships' time this afternoon to make just one point. It is really a question. In this groundswell of disclosure, who is it who actually benefits? Who would benefit by the creation of an extra mechanism of accountability?

When I saw that this debate had come up for an airing a year after the noble Lord had first raised the subject in this House—with wording which is virtually unchanged—I was curious to know what new arguments we should hear. In the year that has elapsed a lot of column inches have been devoted to the idea of accountability. The Government's emissaries have looked less than magisterial as they have been reported bolting empty stables all over the place. The voices calling for an oversight body have now become almost a clamour.

In my view, nothing has changed from a year ago. Politicians in opposition use accountability as a fine word to goad their opponents. They say that a society's freedom is measured by the openness of its machines of state. They say: "Look at the Americans; look at the Senate Intelligence Committee". Well, we have looked and so have the Americans, and openness does not work. In passing, I should mention that the most consistent feature of Left-wing political systems is a consuming passion for secrecy.

That is what I thought and said a year ago. I pointed out that the oath of secrecy is not some negotiable condition in an employment contract. It is willingly taken, binding and permanent. I remarked that discretion had become mixed up in people's minds with conspiracy. I said then that nowhere did we find an able and cogent case for a permanent programme of accountability. It is not found in the American example, not in the Franks' remodelling of the JIC, not in the Canadian nor the French model, and not in any of our NATO partners. In the past year we have had numerous suggestions for an oversight body consisting perhaps of Privy Councillors from all parties and both Houses; or it might be a panel of judges, (which I favour); or even a committee of three or four individuals drawn from outside Parliament and the law. As it is, we shall have the appointment of a security services ombudsman and that has been broadly welcomed.

Returning to the core issue of accountability, surely there is a break in the logic. As I understand it—and my understanding is strictly that of an outsider in these matters—the purpose of the intelligence forces is to gather information using covert means. They have no purpose if it is not that. In order to function, an organisation having such a horizon would need to operate on two timescales, so to speak: that of its ongoing broad objective, and that of the short-term enclosed operation. Which of those would an accountability machine be in a position to monitor?

The ongoing strategy is established by allowing the existence at all of the services, voting them a budget and allowing them access to the Royal Prerogative. I suggest that the short-term operations could hardly be cleared by a committee. As it is, the reporting structure for prior approval is absolutely clear and has been mentioned in the House this afternoon. It entails the Home Secretary, the Foreign Secretary, the appropriate Permanent Under-Secretaries in person and the Prime Minister.

To return to my main point, if not my only one: who benefits from creating a new body of accountability? I suggest that it would do real harm to the people who are serving today in the intelligence community. I am sure that the threat that sometime in the future, perhaps immediately, an operation would have to be scrutinised by people other than professionals would be deeply damaging to effectiveness, morale and recruitment. Our security professionals face the same threat as do we all; namely, a Soviet state apparatus of great age and great sophistication. However brisk and refreshing are the changes at the top—and we welcome them—subversion and secret dealing are built into the constitutional fabric of communist political ideology. Each step away from tyranny is an inch toward an ethical framework with which we in the West can identify. But let nobody be in any doubt about the deepest drives embedded in that ideology: they are conquest.

Our intelligence services and the men and women who work in them are there to gather and assess information. Their mission is to predict intention and present their findings to their political masters. Their mission is not to decide policy, and I submit that it never has been. I hope that it never will be. They must be left alone to do their work. There is accountability enough.

4.22 p.m.

Lord Annan

My Lords, I am very grateful to the noble Lord, Lord Jenkins. Even though I do not follow him in all his surmises, I think that he has performed a real service in opening out this question. I am bound to say to him that I do not believe that Mr. Wright's book, Spycatcher, is a very good source for the truth. Of course it was not written by Mr. Wright but by a Mr. Greengrass, who embroidered a manuscript of Mr. Wright and did so for one purpose only, which was to obtain the maximum sales. It was not written in order to tell the truth and is a fine line in fiction.

Leaving that matter on one side, I should like to mention just one or two points that were raised by the noble Lord, Lord Jenkins of Putney. The reason why there must be further surveillance, he said, was that at one time the security services had contemplated the assassination of a head of state. According to the best reports, it was the Prime Minister of the day who asked whether that could not be done and in fact it was the secret intelligence service which declined to do so. Indeed, the succeeding head of the secret intelligence service laid it down as a maxim that assassination was not part of the duties of any officer in the service. I am sure that your Lordships will think he was right, though I am bound to say that I personally regret that it prevented a certain just fate overtaking Philby, who sent so many British agents to their death.

I turn next to the noble Lord's reference to Wright "bugging and burgling his way across London". One of the points that was made by the noble Lord, Lord Jenkins of Putney, was that there should be a specific authority for any action of that kind. Am I not right in thinking that if MI5 wants to bug a telephone it has to obtain the express permission of the Home Secretary? Is it not the case that every so often a list of those people whose telephone conversations are being intercepted is laid before the Home Secretary?

Finally, the noble Lord, Lord Bonham-Carter, mentioned destabilisation of a government. That is a story that even Mr. Wright did not believe was true, although he mentioned it as a rumour. Can one really believe that 30 officers of MI5 were engaged in such a plot and that it was unknown in Whitehall, unknown to the Permanent Secretary and even unknown to the Director General of MI5? Really! Credulity can go no further.

I do not think that there is widespread concern in the general public about the security services but there is some concern in what are usually called "informed circles". I should like to suggest two improvements. First of all, I ask the Government whether we cannot move from the age of John Buchan into the age of John Le Carré. Those who read John Buchan will remember that the head of the secret service was an enigmatic, patrician figure, who was known only to a few members of the inner circle who ruled the country. He was known as "C". He signed all documents in green ink. That prototype of the chief of the secret intelligence service has vanished today. As Mr. Le Carŕe tells us, the names of heads of the security and intelligence services are known to the KGB and the CIA; they are also now known to a large number of informed people in this country and have even begun to be mentioned in the press. I suggest that it would be of value if the heads of the services were publicly named.

I think that there would be certain advantages, the first being that the Secretary of the Cabinet would not have to be sent to Australia to give evidence about matters of which he could not have had first-hand knowledge and could not be put in the position of having to decline to admit that he even knew of the existence of a body such as MI6. Another advantage would be that the heads of the services could if necessary speak for any of their members who were attacked in public. One of the most odious spectacles in the Spycatcher case was the sight of as distinguished and patriotic a Member as any in your Lordships' House being slandered and traduced by a Member of another place who made the allegation that the noble Lord was a Soviet spy.

It is all very well for the Home Secretary to say on radio that confidentiality by and about members of the security services should extend to the grave. No member of the services should feel that his reputation cannot be defended by his chief and the head of the service. To give this responsibility to the heads of the services is only to fall in line with the normal responsibility that the executive arm of the Government always possesses.

Secondly, like the noble Lord, Lord Campbell of Croy, I have come to the conclusion that it would be of service to the nation if a body of some kind were to be set up. I have an open mind as to whether it should consist of three privy counsellors or whether it should contain a member of the judiciary, but I think that it should be a very small body appointed by the Prime Minister and from nominations made by the heads of the political parties. I think that it would be of service if there were such a body to question the three services from time to time about their activities.

It may be objected of course that we already have the Security Commission, but I think I am right in believing that the commission meets only if some scandal has occurred. A body of the kind that the noble Lord, Lord Campbell of Croy, mentioned exists in the United States, although there it is much larger and it can be very time-consuming if busybodies get on to the committee. But a body of three or four people would be very different. It would have the effect of legitimising the services more clearly in the public mind and if there were any wild men operating indiscreetly a little gentle probing by such a body would reveal what they were up to.

I realise that any such suggestion will be opposed probably by the Government and certainly by the Civil Service, who will follow the line—I accept that it is an extremely powerful line—put forward by the noble Lord, Lord Birdwood, that we already have ministries, civil servants and the Home Secretary for MI5 and the Prime Minister for the secret intelligence services. They are the Ministers responsible and they and no one else can exercise surveillance. The trouble is that Ministers and civil servants have many pressing day-to-day matters on their hands. I wonder whether anyone really believes that the Prime Minister exerts a strict surveillance of the affairs of the secret intelligence service or that the Home Secretary can spare a great deal of time for what is actually being done by MI5.

I am not one of those who want the services to be what is called "more open". What on earth is the point of a secret service if it is not secret? The admirable speech of the noble Lord, Lord Hankey, put more clearly than anyone in the Chamber has put so far the reasons why the services have to be secret. I sometimes wonder whether those who attack the services and declare that they are out of control have got in mind the activities of some of the Middle Eastern intelligence services operating in this country. Their agents assassinate their own citizens here in London. Would these critics not be the first to complain if there were no surveillance of the agents of those countries?

Although I do not think that his speech had much to do with the surveillance of the security services, the noble Lord, Lord Hatch of Lusby, suggested that the security services were part of some anti-Soviet conspiracy. Soviet agents naturally come under surveillance in this country, but it is not they who are at the moment threatening the stability of this country. Our greatest difficulties come from the guerrilla organisations such as the IRA to which the noble Lord, Lord Hankey, referred.

I have no sympathy at all with journalists like Mr. Duncan Campbell, who regard it as good fun to try to circumvent the very proper security that surrounds the activities of these services. There is this point to bear in mind. We rely more and more on the press for uncovering irregularities in our institutions. If the security services are, as I believe they should be, an area in which the press cannot operate as it normally does, then there is a case for a quasi-public body to conduct the surveillance of the services, and that case seems to me to be strong.

4.34 p.m.

Lord Paget of Northampton

My Lords, I apologise for putting my name down too late: I had to put it on the list of speakers after the printing had been done. I shall take only a few minutes of your Lordships' time.

When I was Shadow Defence Minister in the other place many years ago, my opposite number, whose name was Godber, was a very nice man and we became good friends. I remember talking to him once and saying when we were having lunch, "If you were captured by the Russians and given a truth drug that took your will away so that you had no alternative but to answer anything that you were asked, can you think of anything that you could tell the Russians that would be any good to them?". He thought for a minute and said, "Yes, I can think of one thing that might save their research department anything up to a fortnight." It was the level of secrets. I am sure that the Secretary of State for War would have agreed that security consists of two things, defending our secrets and finding out the other chap's.

Do we really have any secrets that matter? I very much doubt it. I heard the noble Lord, Lord Hatch of Lusby, express anxiety about having his telephone bugged. Anybody may bug mine—I should not care in the least. Perhaps it is just a badge of senility, but it is a very long time since I have had a secret from anybody. I feel that this is a highly priggish point of view, but that the Government's innocence assures most of us that there are not any guilty secrets, certainly none which require protection at the level of expense that is being given.

That is the defensive side. There is the aggressive side. That, in a terrorist and criminal world is highly important. We want to improve our capacity to find out the other chap's secrets. A chap who is going to rob a bank has a secret that Her Majesty's Government want to know and have every business to know. The most valuable members of our secret service are probably the dishonourable company of the grasses and the narks. You want to infiltrate the criminals and you want equally to infiltrate the terrorists. One cannot pretend that those who have many guilty secrets pointed at us are friends.

I was a little alarmed to hear that we would give an assurance that our agents would never kill. There are circumstances in whch they ought to kill. You cannot live in the same world as Libya and say that only our side shall be killed. I hope that the noble Earl when he replies will deal with that attitude. We are in a very tough, terrorist world at present and the job of our secret services is to fight back.

4.39 p.m.

Lord Kennet

My Lords, I rise to make one point only. Forty years ago when I was a very junior officer in one of the secret services and, for the first time, the names of the heads of those services, their addresses and telephone numbers and so on began to be published, I suggested that it might be a good idea if each service was divided into two parts, one which was visible to the public consisting of two or three people with good manners and a nice bottle of sherry in the front office who were accessible only on confidential terms; the rest being the operational side which remained totally unknown to everybody. It seemed to me that that was the safest way to save the bacon of those services from undue publicity at that time. The proposal was turned down for the very interesting reason that the senior officers did not think that they could find anybody to undertake the very boring job of being in the front office with the sherry!

Later in life I hoped that perhaps something like that was happening, but it is now pitifully clear that it never did and the amount of press floodlight and publications floodlight that is thrown on all the operations is quite paradoxical and negates the whole purpose of the services' existence, as the noble Lord, Lord Birdwood, has been saying in other words.

Those who call for greater public knowledge of the secret services are asking for a nonsense. They have only to look at the CIA, most of whose operations are known within a week or two and all of them, I think it is true to say, are known within four to five years now and to consider whether the CIA is really an asset to the national policy of the United States or, on the other hand, a burden round its neck.

I fear that the dilemma will continue as long as the existence of nation states in the condition of total independence and total sovereignty is held to require the existence of secret services of one kind or another. I do not honestly see that a small group of Privy Counsellors, which is an idea put forward by many wiser persons than me, has great merit. What is the difference between a Privy Counsellor and the rest of us? A Privy Counsellor is very experienced in politics, but many other people of course are experienced in other walks of life which would be just as relevant to the job in question.

A Privy Counsellor has taken a great oath which the rest of us have not taken, but the Privy Counsellor's oath contains nothing about secrecy. It is in no way comparable in that respect to the Official Secrets Act declaration that one takes. A Privy Counsellor is special in that he is an experienced person who has never done anything wrong, as far as is known. There is another paradox there, because if the heads of MI5 and MI6 are not also experienced persons who have never done anything wrong, then they ought to be. Merely to make the comparison is to suggest an unspoken criticism of those Ministers, the troika—the Prime Minister, the Foreign Secretary and the Home Secretary—who have been responsible for making these appointments over the years.

I do not believe that there is a way forward except an increasing secrecy surrounding the work of these services, which I believe would be a help everywhere, and possibly some internal reform in the mechanisms by which the troika of Ministers exert their control. I do not know enough about that to know what that should be, but one can think of any number of different plans.

Lastly, I also urge that whatever is set up should not simply be a body which sits there like the Security Commission and waits for something to go wrong or for somebody to bring it a complaint from whichever side of the interface—from inside the secret services, or from Parliament or public—but should be a strengthening of the flow of information between the three Ministers whose job it is and the secret services themselves. There are quite a number of structural devices that one could think of to achieve that which would not involve any formal change in the structure.

4.44 p.m.

Lord Mishcon

My Lords, a year ago I had the privilege to wind up for the official Opposition in the debate that was then initiated by my noble friend Lord Jenkins of Putney on the self same issue of secret services and their accountability. I thanked him then for bringing a matter of national importance before your Lordships' House and I thank him once again for doing so.

It was an interesting debate. There was one participant, as your Lordships may remember, Lord Dacre who spoke with the unusual experience of having served both in MI5 and MI6. His speech, which I remember was couched in the most beautiful literary English, contained a phrase that one would not have anticipated from his own experience in MI5 and MI6, as a faithful and useful member of those services. This is what he said, referring to the damage that had been done to the security services at that time: The root cause of the damage is, I believe, a lack of control, both external and internal, a lack of consistent policy and excessive secrecy.", After a sentence which is not relevant he went on to say: The services need control not only to ensure discipline, but also for their own protection—protection especially from themselves". —[Official Report, 17/12/1986: col. 178.] One starts off with at least one experienced Member of your Lordships' House who has served in MI5 and MI6, who felt that greater accountability, greater control and greater discipline were necessary. I hope that your Lordships are merely concerned with that issue and that issue alone this afternoon and how we can best deal with accountability and responsibility. I say that for a very definite reason. It is my belief—which I understand is shared by my noble friends and I hope by many in all parts of the House—that in matters of security and national defence we ought to have as much of a bipartisan policy as we possibly can. About that I do not have the slightest doubt.

When matters of principle occur which come between opinions which are honestly held, obviously one adheres to the principles. My party believes that we should have a freedom of information Act. When such a Bill comes before Parliament when my party takes power (as I hope it will in the near future) it will be debated in Parliament. I have an idea that there will be considerable consensus of opinion in regard to what should be freedom of information. But there is bound to be an area where we all ought to agree that the security of our country depends upon the adequacy of a proper security service and a proper intelligence service. We are dealing with the matters, as I assume, that would come outside any freedom of information legislation.

At present, as we very well know, we have covered one aspect—the aspect of complaints within the service, which could not properly be voiced. We were told only a few months ago that an internal ombudsman had been appointed to deal with those complaints. That was a very serious issue because there did not appear to be a way in which, unless somebody went to the media, that person was able properly to explain a material point of view that something was going wrong inside the service.

I ask the noble Earl when he replies to this very useful debate—although I appreciate that the ombudsman has been appointed only since the autumn of last year—whether there have been any complaints? How many have there been? One obviously does not expect to know their nature. Has it been made abundantly clear to the members of both services that the procedure for going to the internal ombudsman is an easy process that does not inflict any sort of penalty upon the member of the security staff involved? I believe that your Lordships will probably be interested in hearing the reply to those questions.

What is it that affects the public? I believe that the noble Lord who said that at the moment the public are not particularly perturbed about all apsects of the security service was absolutely right. My own impression is that in the main the public are concerned about two issues. The first concern is that people should be allowed to earn a great deal of money from breaching the confidentiality of the promise which they made when they became servants of the security services. It is not the breach of confidentiality which causes concern—that is bad enough. It is seeing people gather in fortunes, helped by government legislation which, more than anything else, seems to publicise the product of the author's literary efforts. There is deep concern that people should be allowed to make money from that kind of thing.

Secondly, in the past there appeared to be breaches within the confidentiality of the services which appeared to be very worrying. Gratefully, we have not recently heard about such circumstances. In addition, there were among the membership of the security services people who were playing a most treacherous game. We have heard nothing about that aspect recently, and it is a good thing.

As has been mentioned in the debate, I believe that there will be concern about the pronouncement of the Master of the Rolls. I do not like the idea of castigating a new Member of your Lordships' House in his absence. I merely register the fact, which I put in respectful language, that I believe that what he has said needs a great deal of explanation, amplification and possible debate as to whether our law is in such a state that there are people who are permitted to commit crimes and who are outside the law. That does not appear to be right, especially if they happen to be in governmental employ.

I turn to what I believe to be of interest to your Lordships in the debate. Is there lack of control and supervision, as the noble Lord, Lord Dacre, thought when he contributed to your Lordships' debate a year ago? If there is a lack of control and accountability, is there a way of improving it? It was said a year ago, and it was said in this debate, that in regard to MI5 the Home Secretary is in charge, in regard to MI6 the Foreign Secretary is in charge; and over all there is the Prime Minister if needed.

On the last occasion a statement that seemed to make an impression on your Lordships—I believe that it has been repeated in this debate—was that the burdens upon the Foreign Secretary and the Home Secretary are such that it cannot be pretended that they personally would be properly able to supervise the security services in the way that we have in mind? It was also said that however one may wish to think in terms of a degree of permanency, one knows very well that those holding political positions can change jobs in a short space of time. Given that, is there the continuity of supervision that there should be on a policy level?

At that time the suggestion of Privy Counsellors was put forward to your Lordships. It has been put Toward again today. The objection to Privy Counsellors—not heard this afternoon but mentioned on a previous occasion—is that Privy Counsellors, sitting as they do and as they ought (as we see this afternoon), in privileged places both in your Lordships' House and in another place are not at the time Ministers of the Crown. It was thought to be somewhat unacceptable to have a committee consisting of Members of Parliament other than Ministers dictating to ministers their responsibility as a result of their supervision of the security services. I proffer no opinion. My parliamentary experience does not entitle me to express any opinion in the presence of Members of your Lordships' House who have grown old in the country's service in both Houses of Parliament.

I should like to repeat what I said on the last occasion. It would appear to me that there is some merit in taking hold of an existing organisation which has the respect of the nation; that is the Security Commission. I believe it was said by the noble Lord, Lord Campbell of Croy, during the last debate that the answer given from the Government Benches to that suggestion was that the Security Commission was outside Parliament. And being outside Parliament, it was not an acceptable body for this purpose. I ask the noble Lord most deferentially to look at the answer given on that occasion to my suggestion by the noble Earl, Lord Caithness. It was a different one——

Lord Campbell of Croy

My Lords, I am grateful to the noble Lord for giving way. We have a little time to spare due to the restraint of earlier speakers. I should like to avoid any misunderstanding and point out that it was not I who said what the noble Lord has quoted. In my speech today I recommended a body similar to the Security Commission. It might contain two or three Privy Counsellors but it would also have other people. I was secretary of the first Privy Counsellors' Committee in 1955. It has always been used for specific subjects, for a limited time and for a limited purpose. I believe that to be its place. However, I agree that a body similar to the Security Commission, but not necessarily that, is appropriate.

Lord Mishcon

My Lords, I am grateful. If I misunderstood the noble Lord, I apologise. I thought that he was quoting an objection from the Government, not necessarily his own, but it may have been that of another noble Lord. The answer to the suggestion made on the last occasion was on a different line. It was that this was an ad hoc body; it was meant to deal with specific matters; and it was not the kind of continuing body necessary for this purpose. I see no reason why it should not be made a continuing body. It contains some distinguished people. I imagine that when their turn comes to cease membership of the Security Commission, equally distinguished people in public life will be appointed in their place. As the noble Lord, Lord Campbell of Croy, has said, to add to that body would make it one which would be competent to deal with matters that we have in mind in this debate.

I should like to conclude by saying, first, that nothing—and I repeat "nothing"—should be said which would in any way interfere with the morale, the dignity, or the nation's appreciation of members of the security service. They carry out an extremely brave job for the nation. As in all walks of life, the fact that some do not do credit to the majority is in no way a matter which entitles anybody to cast a slur upon those services. I do not do so at all from these Benches.

I should like to say, based on all the experience of the noble Lord, Lord Dacre, that security services need supervision in the public interest and in their own interest. Somehow the Government must find an appropriate way of dealing with the matter. What takes place at the moment is not sufficient. I believe that all noble Lords will listen with interest to the reply of the noble Earl, Lord Ferrers.

5 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I should like to start by thanking the noble Lord, Lord Jenkins, for tabling this subject for debate today. Having said that, I turn to almost the last thing that was said by the noble Lord, Lord Mishcon, when he said that he felt that nothing should be said which would interfere with the dignity, morale and stature of the security services which we all admire and respect so much. I wholeheartedly endorse that and I think that the noble Lord, Lord Mishcon, is absolutely right.

This has been an opportunity to have a discussion about the security services, the way in which they are controlled and so forth. It is interesting that throughout your Lordships' views there has been the desire to have more openness, which is a perfectly natural desire, and yet there exists a dilemma as to how far that should go.

The noble Lord, Lord Jenkins, said in his opening speech that the Government are obsessed with secrets and secrecy. I think that that view was also reflected by the noble Lord, Lord Bonham-Carter. I believe that one must start from the premise that there are secrets, that there are bound to be secrets and that some matters will always have to remain secret. I do not believe that any reasonable person would dispute that. The question is where one draws the curtain. What must remain secret and what can be divulged? New techniques and new technologies are sophisticated to such a degree that they confuse the whole area and make the problem of secrecy and non-secrecy even more complicated and diffuse.

The starting point for any discussion must be to acknowledge the vital task that the security and intelligence services perform, on behalf of all of us, in defence of national security. The security and intelligence services play a vital part in protecting the state against external and internal dangers. The threat of espionage from the Soviet bloc is undiminished. Noble Lords and the public have in the past expressed great concern—quite rightly—when our defences have been penetrated by hostile intelligence services. It is a vital function of the security service to build and to maintain our defences against this threat.

There is always a threat to departments of state and our parliamentary democracy from subversion from the far left and the far right. Of particular concern to everyone in this country has been the threat from terrorists who have brought death and misery to our streets. For reasons with which your Lordships are all too familiar, I do not propose to go into details of the work of the security service in these areas.

I hope that noble Lords who are critical of the present arrangements will pause to join me in recognising the crucial part which these services play in defending the nation. Their staff undertake difficult and often highly dangerous work at no small risk to their own safety. When politicians criticise them, these people are unable to answer back. That was a point which the noble Lord, Lord Annan, drew to our attention. He said that he felt people ought to be more known so that they could answer back on behalf of those who are junior to them. It has always been the policy of successive governments that the names of people who run the service should not be known because that compromises the difficulties down the line and in fact creates more problems than it solves. I hope your Lordships' will agree that we should condemn those who decry the work of these services, which can benefit only those who seek to undermine and destroy our society.

It forms no part of the Government's case to suggest that the security and intelligence services should be free from control and should be unaccountable. However, it is axiomatic that their operations, their work and their personnel, along with other matters, must remain secret if they are to be effective. It is idle to suggest otherwise. Indeed, I would go further and say that because it is so obvious, it needs to be re-stated.

It is impossible to conduct any effective counterespionage operation, if the veil of secrecy is lifted. Details, which can appear harmless to those who are well-intentioned, can be—and are—valuable to our enemies, be they hostile intelligence services or terrorist groups. Open government is fine but divulging secrets even inadvertently, is not. The noble Lord, Lord Hankey, referred to this. The noble Lord, Lord Annan, also stressed the need for secrecy and the importance of it. One cannot get away from the fact that even small items of information in themselves may be innocuous but when put together by the professional can open up a whole series of possibilities about which the person who had divulged the original secret would not know.

The work of the security services is like a jigsaw: a piece of information about it can appear meaningless when taken in isolation, but for individuals or groups, who are specialists and can put the information together, it can be invaluable. This is why, like successive governments, we believe that the details of the security and intelligence services, which are known to current or former members of those services must be kept confidential. This is the principle which we have been seeking to protect in the courts.

Like all other people who previously occupied this position, your Lordships would not expect me to divulge any of these particular questions which have been so much at the forefront of our minds. However, the noble Lord, Lord Jenkins, tried to lampoon the Government over the Spycatcher book, as did the noble Lord, Lord Bonham-Carter. I say to the noble Lord, Lord Jenkins, that Mr. Wright, like all present and former members of the security service, owes a lifelong duty of confidentiality to the Crown, without which there could be no effective security service. I am aware that there have been judgments given in the Court of Appeal today to which your Lordships would not expect me to refer.

The noble Lord, Lord Hatch, referred to Section 2 of the Official Secrets Act, as did my noble friend Lord Campbell of Croy and the noble Lord, Lord Hankey. The noble Lord, Lord Hatch, was not quite so lightfooted in his remarks about Mr. Shepherd's Bill which went through in another place. He went in with all burners firing. He said that the Government did not believe in consensus and was openly opposed to attack on secrecy. What the noble Lord said is not really accurate. The Government recognise that the Official Secrets Act needs to be updated, and secrecy is at the heart of government. When a Bill is produced, amendments are bound to be made and put forward in the course of its parliamentary passage, and the Government are obliged to respond. How can the Government respond constructively when their views are not yet clear? The Government are considering all the issues in this very complex, highly sensitive and extremely important area. We have always recognised that the Official Secrets Act needs to be updated but my right honourable friend the Home Secretary said that when the Government's thoughts are clearer, a White Paper will be introduced which will then be open for public debate.

No doubt it will be debated in the Houses of Parliament, though that is a question for the usual channels.

As a result of this discourse about the White Paper, when a Bill is produced it will go through parliament and it will be subjected to parliamentary approval, amendment and discussion. I fail to see how anyone with even a limited desire to be fair could say that it is the explicit intention of the Government to be opposed to an attack on secrecy. We intend to reform the Official Secrets Act, but that is the reason why we have acted in the way that we have. When your Lordships consider that, you will see that it is a perfectly reasonable attitude to take.

Lord Hatch of Lusby

My Lords, my point was that because this is a national non-party issue surely it would be far better, while the Government are considering their own views and before the White Paper is produced, for them to consider the views right across the political spectrum and outside the political spectrum so that the White Paper can at least approach consensus. That is what the noble Earl's honourable friend in another place asked for after his debate and it was refused.

Earl Ferrers

My Lords, I do not want to go too far down that particular line of thought. I have explained at some length why the Government took the action that they did. The reason is because the Government intend to produce a White Paper when their own views are known which can then have the full panoply of discussion which the noble Lord, Lord Hatch, is so anxious to see.

None of this will affect the central point for the purposes of today's debate, which is that secrecy is crucial if security service work is to be organised and is to be effectual. The need for secrecy blurs the arguments over accountability; but the need for secrecy does not imply nor invite a lack of control over the security and intelligence services. The question as we see it is over what are the best mechanisms for control and accountability which are compatible with effective security.

I make no apology for setting out in some detail the present arrangements for the accountability of the security services. As some of your Lordships will know, the security service operates within a framework laid down by Ministers. They are of long standing and have been applied under successive governments. Your Lordships will be aware of the directive issued to the Director General of the service in 1952 by the then Home Secretary, Sir David Maxwell-Fyfe, and which was published in the report of the noble Lord, Lord Denning, on the Profumo affair in 1963.

The directive gave the security service a clear remit and made it crystal clear that the Director General is not to regard himself or the service as beyond control. The directive, which still applies today, makes the Director General personally responsible to the Home Secretary for the proper and efficient implementation of the tasks which are given to the service. At the same time the Director General is entitled to have access directly to the Prime Minister on appropriate occasions.

The noble Lord, Lord Jenkins, suggested, as did the noble Lord, Lord Bonham-Carter (and the noble Lord, Lord Mishcon, referred to it) that some members of the security service may have immunity from the operation of the criminal law because they could be said to be working in pursuance of the Royal prerogative powers. The point of concern was that the noble and learned Lord the Master of the Rolls had made some observations. At no time have the Government asserted that any of the alleged actions concerning security operations could lawfully be done under the prerogative when they would otherwise he criminal offences.

The noble Lord, Lord Paget, said that he would like to see the Government being tougher with terrorists. I entirely agree that we ought to be tough with terrorists; but it is the job of the police to catch them and for the courts to sentence them. The security service is there to collect intelligence and not to take that action.

Lord Paget of Northampton

My Lords, will the noble Earl permit me? What is the position when we catch them abroad? When terrorists are operating abroad we have to go and find them.

Earl Ferrers

My Lords, that is an operational matter and I do not propose to be drawn down the line of what we do and how we operate the security services of the country.

I return to the subject of real accountability and control of the security services. It may be helpful if I explain how this process, which is described in the directive, works. When issues arise—for example, about the priorities of the security service—the Director General looks to the Home Secretary for guidance. That does not mean that the Home Secretary is drawn into the particular operations. The rule is that the security service should be kept absolutely free from any political bias or influence.

I want to make it quite clear that the security service is not engaged in collecting information for the party political purposes of the government of the day, whatever that government may be, but in order to protect the country against dangers, both external and internal. Therefore, it is no business of the Home Secretary to become involved in particular operational matters. Those are rightly for the Director General; though the Secretary of State does play a part, by long tradition, in the authorisation of interception of communications.

Putting the operational details aside, on key issues which affect the setting of objectives and the performance of the security service, the service is in practice accountable to the Home Secretary and, through him, to the Prime Minister. In line with those arrangements, perhaps I may assure your Lordships that the Home Secretary is well-informed about the work of the service, its priorities, how it is deploying its resources, and about the overall effectiveness and efficiency of its operations. The Home Secretary receives reports, he asks questions and from time to time he visits the service and meets the Director General for wide-ranging discussions about the direction in which the service is going. Your Lordships will understand that the Prime Minister, too, plays an important personal part in the arrangements for control and accountability.

Therefore, I suggest that the question which arises is not whether there should be control and accountability of the security service but whether the present arrangements are proper and adequate, and whether they could be or should be improved upon. This debate has shown, again, that some of your Lordships feel that the arrangements can and should be modified by the creation of new institutions; but I think it would be wrong to consider this an easy nut to crack. I do not think that it is. There is an underlying dilemma and the noble Lord, Lord Bonham-Carter, put his finger absolutely on that dilemma, as did the noble Lord, Lord Kennet.

On the one hand, any arrangements which are devised must preserve the secrecy of the security service's work. That must be a cardinal principle which cannot be compromised. Most noble Lords and most members of the public will agree that we would be paying too high a price for public accountability if, as a result, the security of the security service was imperilled. On the other hand, there would be no purpose in making any change unless an enhanced confidence in Parliament and among the public in the work of the service would result.

Frankly therefore how can these two aims be reconciled? Among the difficulties is this. If a new review body is to be put on the inside, in a position where it can genuinely probe and monitor the internal workings of the security service, the question then arises on how it could be allowed to communicate its findings conclusively to the public while preserving the necessary confidentiality. However, if a new body was to be put in the position merely as an onlooker to the system without internal access, how could it satisfy itself that the service was acting properly and effectively? It would not have access to the sensitive material which would be necessary, as many would see it, for its findings to have any credibility.

Then one comes to the problem of who the members of this review body would be. How would any new system avoid undue interference with the Director General's responsibilities? How would any new arrangements fit in with the Home Secretary's key role in the accountability of the services? These are not simple matters to resolve, but they have to be faced if the well-established arrangements are to be modified.

My noble friend Lord Campbell of Croy referred to the possibility of a Committee of Privy Counsellors being used for the purpose of the security service. He thought that its membership should be rather wider than Privy Counsellors. I believe that the noble Lord, Lord Kennet, thought that there ought to be a Committee of Privy Counsellors as well.

Lord Kennet

My Lords, just to correct the record, the purpose of my intervention was to say that I thought probably that there ought not to be.

Earl Ferrers

My Lords, I evidently misheard the important word "not". I am most grateful to the noble Lord, Lord Kennet, for correcting me over that and I apologise for having put words into his mouth which were precisely the reverse of those he used.

My noble friend Lord Birdwood favoured a judicial body. It is not apparent from what your Lordships have said today how any of these ideas would overcome the problem which I have described of having to put any new body either inside or outside the veil of secrecy. If it is inside, the body which is chosen may still not be acceptable to the wider audience because it would be prevented from disclosing the sensitive material on which its judgments were based. However, if it is on the outside and dependent on more general reports and impressions of the security service, what sort of real monitoring could it hope to achieve? That is the problem.

With regard to the Security Commission, this is a body which has done invaluable work in its investigations into individual cases when there has been a breach of security. Much has stemmed, for example, from the Security Commission's report in 1985 on the Bettaney case. Management and personnel improvements have been made, and a new office, that of staff counsellor, has been created.

At the end of the day, the Security Commission is not a permanent watchdog body, and it is not engaged in the continuous monitoring of the security service. To see it as the answer to the question of accountability is, I believe, to argue not for a modification in the Security Commission's role but for a complete change in the function of the commission and its structure and membership. Our position is not an obdurate, unthinking one. We have taken a constructive attitude throughout the discussion on matters relating to the security services and we have taken initiatives.

My noble friend Lord Campbell of Croy wondered about those and the staff counsellor. The appointment of a staff counsellor for the security and intelligence services is one example of what we have done. He will deal with issues of conscience of individual members of the service. The establishment of this post provides Ministers, Parliament and the public with an assurance that legitimate anxieties of members of the security and intelligence services about their work will not be overlooked or overridden. I hope that your Lordships will welcome the creation of this new post and the fact that Sir Philip Woodfield has accepted the appointment as the first staff counsellor.

The noble Lord, Lord Mishcon, asked how many complaints had been made to the staff counsellor. The counsellor deals with inquiries in confidence and he would not normally report to the government that he had received a complaint. However, he will report annually to my right honourable friend.

Lord Mishcon

I hope the noble Earl will forgive me but I did ask another question. If the noble Earl is unable to deal with it I shall well understand because I gave him no notice. The question was whether it had been made abundantly clear to the security staff that they would suffer no harm whatever should they register complaints and that the procedure was a perfectly easy one.

Earl Ferrers

My Lords, if I may I shall take up the noble Lord on his offer. It is a question of detail and I shall find out the exact facts and write to him about them.

Another initiative the Government have taken was the introduction two years ago of the Interception of Communications Act. This created an offence of unauthorised interception of communication and it provided safeguards and remedies. It showed our willingness to act decisively and radically in a peculiarly delicate area when such action is justified and where it can produce a real improvement in the present arrangements.

Under Section 1 of the 1985 Act, interception of a telephone call on the public telecommunications network is a criminal offence unless the interception has been authorised personally by the Secretary of State. This is the exception to the rule, to which I referred earlier, under which the Home Secretary plays no part in operational matters which are essentially and wholly for the Director General of the security service.

The 1985 Act provides for a Tribunal which has full powers to investigate whether an interception has been authorised, where there has been a complaint, and, if so, whether the authorisation met the requirements of the Act. The Act also provides for a commissioner to keep the whole system of interception under review. In introducing this legislation, the Government showed a willingness to have an open and not a closed mind on security issues, and to improve upon the existing arrangements where a clear case had been established that there would be advantage in so doing.

There is in place, at present, a system for controlling the security service and for continuing and ensuring its accountability to the government of the day, which is effective and efficient. I hope your Lordships realise that this is a difficult message to get across to some people because it is a system which is based on Ministerial accountability. But there are some issues which have to have Ministerial accountability and where the buck has to stop with Ministers. These are matters of quite legitimate debate and your Lordships have debated them this afternoon. We shall certainly take account of all that has been said.

5.27 p.m.

Lord Jenkins of Putney

My Lords, we have used up our time and therefore I cannot reply to the points which have been made. Perhaps I may confine myself to a single point.

First, I should like to congratulate the noble Earl on his return to office. It may be a little belated but he has mastered the art—and it is a valuable one —of replying comprehensively, courteously and affirmatively without committing the Government to anything. This is a Ministerial art which is not always in ready supply, and he has preserved it this evening.

Earl Ferrers

My Lords, perhaps I may interrupt the noble Lord because I should not like him to be under a misapprehension. I am enjoying his speech so much that I should not like him to confine his remarks to only one point because he has a quarter of an hour of the debate left.

Lord Jenkins of Putney

My Lords, I am most grateful to the noble Earl but I shall not take full advantage of the quarter of an hour available. Other people might wish to be getting on.

I shall take advantage of what he has said to this extent. This debate, good though it has been, has failed to lock its horns. There has been one debate going along here and one along there and it has failed to come into contact. I believe the problem is this. Parliament is supposed to be a watchdog of the executive. It cannot fulfil its function at present in this capacity. It is bound to take what the executive says on this issue. What we are seeking to do is to create a line between the executive and Parliament which at the same time preserves essential security and creates essential accountability. Accountability does not stop at government level; it comes down to this level. In coming down to this level it reaches the people who are represented here and, more effectively, those elected in the other Chamber.

I do not believe that we have heard the last of this debate today. As the noble Earl said, it is a difficult point. One must preserve security on the one hand, but on the other it is not sufficient to be told that things are not going wrong when so many people know from their personal experience that they are going wrong. On the one hand, we have the Government's assurance that everything is all right; and on the other hand, we have a wide and growing body of reputable knowledge which suggests that things are not as they are said to be. I do not think that we can allow this situation to continue.

What I hope will happen as a result of the debate—and this is where I draw what I have to say to a conclusion—is that when the Government produce their White Paper they will extend it beyond the point that they have been thinking about until now which is to deal only with the Official Secrets Act. They must take account of the fact that without breaching essential security it is vital that the people of this country, and their elected representatives, shall be able to assure themselves that we do not have a body of people who though they are within the law—and I was glad to have the assurance of the noble Earl that they are within the law—are pretty widely suspected of operating outside the law. This point has to be tackled. I hope that as a result of our discussions today the Government will agree with the many speakers on both sides of the House that in one way or another this matter must be tackled. I hope that we shall hear rather more of what we have been talking about today on another and not too distant occasion.

Noble Lords

Beg leave to withdraw!

Lord Jenkins of Putney

My Lords, I do not know whether I should beg leave to withdraw. I am only asking for Papers. So far as I can see there is no reason why I should withdraw a request for Papers. If it is desirable to withdraw, I shall; but before I do so, I should like to thank all noble Lords who have taken part in this informed and at the same time good-humoured debate. I beg leave to withdraw my Motion.

Motion for Papers, by leave, withdrawn.