Security Service Bill

HL Deb 20 April 1989 vol 506 cc874-902

3.28 p.m.

Report received.

Clause 2 [The Director-General]:

Lord Mishcon moved Amendment No. 1:

Page 1, line 25, at end insert ("and shall be kept free from any political bias or influence")

The noble Lord said: My Lords, in moving Amendment No. 1, I should like, if I may, to remind your Lordships that the Security Service Bill for the very first time puts the security service under statutory protection and under statutory duties. It is therefore very important that we read with care and legislate with care what the director general, who is responsible for the conduct of that service, should have as his duty in regard to ensuring that the security service properly carries out its duties.

In the Bill there is an amazing phrase which deals with the question of where the security service ought to stand in regard to politics, under the director general's supervision. In Clause 2(2)(b) is to be found the phrase: The Director-General shall be responsible for the efficiency of the Service and it shall be his duty to ensure … that the Service does not take any action to further the interests of any political party". I can understand there being no reference to politics, and the Minister when he replies saying that that ought to be a matter that is taken for granted or that it ought to feature in some guidelines but not in primary legislation. However, the primary legislation does, in the wisdom of the Government, deal with the question of political activity, loyalty and action with regard to the security service. It states that the service must not take any action to further the interest of any political party. But what happens if the action is against a political party? What happens if the action does not further but is adverse to a political party? That is not a novel thought of mine, because it was in the mind of Sir David Maxwell Fyfe when he was Home Secretary. I am sure that your Lordships and the noble and learned Lord the Lord Chancellor will remember that he dignified the Woolsack later in his career.

Sir David Maxwell Fyfe gave some guidelines in 1952 which were deemed to be extremely carefully worded and were sacrosanct. As far as I know, they have been sacrosanct until now. In those guidelines he obviously used language that was not meant to be incorporated in whole in a statute. I wonder whether your Lordships will forgive me if I read one sentence from those guidelines. It deals with the political activity—rather should I say the non-political activity—of the security service. This is what he said: It is essential that the security service shall be kept absolutely free from any political bias or influence, and nothing shall be done that might lend colour to any suggestion that it is concerned with the interests of any particular section of the community or with any matter other than the defence of the realm as a whole". I and my colleagues who are associated with the amendment have merely borrowed those wise, carefully chosen words, which were used by the Home Secretary in those guidelines when he talked about the service being kept free from any political bias or influence. Those are the precise words which are used in the amendment. I say that they are necessary, because to leave the wording as it is creates not only a vacuum but an absurdity for legislators. It would leave the director general to see to it that the security service does not advance the interests of any political party, and of course do things which are adverse to the interests of a political party. I borrow the wise words of Sir David Maxwell Fyfe, as he then was, and I invoke that name in submitting the amendment to your Lordships. I beg to move.

Lord Annan

My Lords, I wonder whether there is not a difference here between a wise guideline and a clause incorporated in a statute. The first gives advice. In guidelines one gives the flavour one wants in a Bill. If this guideline was put in statutory form, surely one could envisage a case in which a party which is deemed to be inimical to democratic parliamentary government could claim that it was being unreasonably proceeded against by the security service.

Lord Hutchinson of Lullington

My Lords, I support the amendment. I say to the noble Lord, Lord Annan, that that is the very reason for having redrafted the amendment which was moved in Committee. I moved an amendment in Committee and merely added to Clause 2(2)(b), after "any action to further", "or hinder".

I should like to remind the noble and learned Lord of what he said when he replied to the amendment. He said that he respected and understood the intention of the amendment and that there was not a great deal of difference in regard to the basic aim and the spirit of the amendment between those who moved the amendment and himself.

The noble and learned Lord rightly pointed out what the noble Lord, Lord Annan, has pointed out: that the amendment as drafted would give complete immunity to any political group which intended to subvert the state or do something similar. The words of the amendment have therefore been chosen: and shall be kept free from any political bias or influence". That is exactly what the noble and learned Lord meant when he said that there was little difference between the basic aim of those moving the amendment then and his own view. It would not catch the political group, as has been suggested.

Lord Boyd-Carpenter

My Lords, the amendment would place a difficult task on the director general. How is it possible to keep anyone free from political influence? How does one prevent an individual member of the service being approached and an attempt being made to influence him in any political view? The proposal embodied in the amendment is somewhat impractical. I should have thought that to include it would weaken rather than strengthen the Bill.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, as the noble Lord, Lord Mishcon, has said, the words of the amendment are taken from the guidelines prepared under the wise guidance ofa distinguished predecessor of mine on the Woolsack, although at the time he was Home Secretary. The noble Lord asked whether I remembered that distinguished occupant of the Woolsack. It so happens that on the first occasion that I was instructed to appear in the Appellate Committee of your Lordships' House —I should perhaps say, in the presence of the noble Lord, Lord Hutchinson of Lullington, that it was a Scottish appeal—he presided. He demonstrated his wisdom on that occasion because we won the appeal.

The point that the noble Lord, Lord Annan, has made, supported from a broader point of view by my noble friend Lord Boyd-Carpenter, is not yet met by the amendment. As I said before, there is little between us on how we envisage the way that the security service will work and the atmosphere within which we think it should work. I hope that I can persuade your Lordships that we have gone as far in statute as we sensibly can to deal with those matters, and that to introduce aseries of injunctions or exhortations will take us no further forward.

There is, as has been pointed out, a real difference between the drafting medium of a non-statutory directive and the drafting medium of a statute. Your Lordships have widely welcomed the Government's decision to move from the medium of a directive to the medium of a statute. For a statute to work, if it is to be honoured and not to fall into disrepute, it must say what it means and mean what it says.

To achieve that in this area I believe that the Bill has to be positive in its drafting. It must require that the security service can do as much, but no more, than is set down in statute. It is about actions, rather than atmosphere.

It is no accident therefore that the functions of the security service in Clause 1 are expressed in active terms. National security is to be protected from threats, from activities and from actions. The requirements and safeguards in Clause 2 are also expressed in terms of actions and operations; constraints are placed upon the work of the service, for that is what matters. The effect of this is that anything which falls outside the positive scope and responsibilities of the security service as set out in the statute can be of no interest to, or factor in, what it does.

It would not serve to strengthen this positive approach if we were now to change tack and start to try to identify in legislation the characteristics or attributes which the service should or should not display in carrying out its work. That is what this amendment proposes. It would overlay the positive provisions of the Bill with broadly phrased prohibitions of general but uncertain application. That is really the point to which my noble friend Lord Boyd-Carpenter referred. Although the amendment is perfectly good for guidelines, it is surely of very uncertain application. How would the director general go about the task of keeping every member of the service free from any political influence?

Indeed, if we were to adopt this approach, in practice the amendment should be just the beginning of the task. For legislation to be effective it must be comprehensive. The full list of desirable attributes for the service would be long. So too would the list of prohibitions. The drafting would be complex. I am not sure, for example, that the concept of political influence which this amendment introduces is in any case sufficiently clear for the language of statute. We should always be driven back to acknowledging the functions of the service under Clause 1, which alone allow it to act, and the constraints already in Clause 2 which bear upon those actions. If we go down that road I believe that we would lose our way in a thicket of good intentions and would introduce a provision without the clarity which legislation of this nature undoubtedly requires.

I recognise that this amendment is really about creating the right atmosphere for the work of the service—the right ethos—with the right people. There is only so much that the legislation itself can do on such matters. I think many of your Lordships know that there have been considerable strides in the management of the security service in recent years. I pay tribute to the contribution which the Security Commission has made in this regard, as well as the service itself. These cannot be matters directly for legislation. They are matters properly for management. But I ask your Lordships not to underrate the very real effect which the clear and positive framework and safeguards at present in the Bill will have on these matters for the future. Their influence will be the greater because of the positive terms in which the Bill is drafted.

As the noble Lord, Lord Annan, has pointed out, if that kind of phrase were to be incorporated, there is at least a risk that some important activities of the security service, within the functions that have been described for that service in the Bill, would be inhibited or at least would be thought to be inhibited and restricted on the ground that they were political, notwithstanding that the very political influence that was under question was of a kind which might threaten the security of the United Kingdom as a whole.

I do not think it is desirable to confuse the clear structure and unequivocal message of the legislation with part of the language culled from a directive, however distinguished the author of the directive. I do not believe that the legislation will be helped by selective injunctions. This is not necessary in order to ensure that the service acts in the way in which all your Lordships would, I think, wish it to act. I hope therefore that the noble Lord will feel able not to press his amendment.

3.45 p.m.

Lord Mishcon

My Lords, I think that I should be lacking in my duty if I did not press the amendment, having heard all the replies to it. The noble Lord, Lord Boyd-Carpenter, said that he regarded it as quite impracticable that any director general should be under a duty to see, within the wording of the amendment, that his service was kept free from any political bias or influence.

Lord Boyd-Carpenter

My Lords, I am sorry; I should correct the noble Lord. I did not say that it was impractical to protect the service from bias. I said, "from influence".

Lord Mishcon

My Lords, I am most grateful to the noble Lord. I say at once that he thought it was impracticable for the director general to say that the security service should be kept free of political influence. If it was impracticable, it is extraordinary that the directive of 1952, which said that that is exactly what the security service should be kept free of, was worded so carefully by so eminent a Minister in the noble Lord's own government that it has stood the test of time from 1952 until now.

I am also told—and this is quite extraordinary—by the noble and learned Lord the Lord Chancellor, who measures his words with such care, that everything is so clear in this Bill that when it becomes a statute everyone will know exactly what his duty is. It will be abundantly clear and there will be no impracticality about it. With the deepest possible respect, I ask the noble Lord, Lord Boyd-Carpenter, and the noble and learned Lord the Lord Chancellor kindly to look at the wording of Clause 2(2)(a). Let us see how practical that is from the point of view of the statutory duty of the director general. He has to ensure, that there are arrangements for securing that no information is obtained by the Service except so far as necessary for the proper discharge of its functions". The practicality is this: does anyone in the Chamber think that when information first reaches the security service it has not got to be sifted for that which is necessary and that which is not necessary for the proper conduct of the security service in its obligations? "No", says the Bill, with the precision which the noble and learned Lord recommends. "With everybody knowing exactly what he has to do, it is the director general's duty to ensure that he has arrangements for securing that no information is obtained by the security service except what is necessary for its job".

It really is a nonsense. I would not mind so much if I were not dealing with a matter of great principle. If I thought that there was a history of the security service which all of us, on all Benches, respect, with never a suggeston of political bias or influence, I would not ask your Lordships so seriously to consider the amendment. Your Lordships know perfectly well whether the accusation was right or wrong. An inquiry was held because it was thought that the security service had been subjected to political bias or influence. Those associated with this amendment and I wanted to see, and I should have hoped that all your Lordships would have wanted to see, that the director general must ensure that there is no bias, no political bias or influence, in regard to the conduct of his department.

If it is practical that the director general must ensure that no action is taken to further the interests of any political party, I should like the noble Lord Lord Boyd-Carpenter, to examine and analyse, with his usual careful, analytical brain, precisely what that means by way of practicality. Is the director general to question every action taken by the security service to see whether it, first, furthers the interests of a political party and, secondly, if it does, whether the main intention of the action is to further the interests of the political party, or whether that is purely incidental and accidental?

The words are clear. The Maxwell Fyfe directive contained those words. Neither I nor my colleagues have tried to introduce words which do anything other than clearly express, as the Bill now does, that the department and the director general should ensure that this matter is not supervised, except distantly by a Minister. They should also ensure that, first, actions are not taken to further the interests of a political party and, secondly, that no bias is shown and there is no influence by any political party in regard to security service activities. I must ask for the opinion of the House to be taken on this important amendment. I trust that in an amendment of this kind it will not be a political division that divides us.

3.51 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 71; Not-Contents, 122.

DIVISION NO. 1
CONTENTS
Addington, L.	Lloyd of Kilgerran, L.
Amherst, E.	Longford, E.
Ardwick, L.	Macaulay of Bragar, L.
Aylestone, L.	McIntosh of Haringey, L
Birk, B.	Mackie of Benshie, L.
Bruce of Donington, L.	McNair, L.
Carmichael of Kelvingrove, L.	Mishcon, L.
	Mulley, L.
Carter, L.	Nicol, B.
Cledwyn of Penrhos, L.	Northfield, L.
Cocks of Hartcliffe, L.	Ogmore, L.
David, B.	Peston, L.
Dean of Beswick, L.	Ponsonby of Shulbrede, L. [Teller.]
Dormand of Easington, L.
Elwyn-Jones, L.	Prys-Davies, L.
Ewart-Biggs, B.	Reilly, L.
Ezra, L.	Ritchie of Dundee, L.
Falkland, V.	Sainsbury, L.
Fisher of Rednal, L.	Seear, B.
Fitt, L.	Serota, B.
Galpern, L.	Shackleton, L.
Gladwyn, L.	Shepherd, L.
Graham of Edmonton, L.	Simon, V.
Gregson, L.	Stallard, L.
Grey, E.	Stoddart of Swindon, L.
Hanworth, V.	Strabolgi, L,
Harris of Greenwich, L.	Tonypandy, V.
Hatch of Lusby, L.	Tordoff, L. [Teller.]
Hayter, L.	Turner of Camden, B.
Houghton of Sowerby, L.	Underhill, L.
Hughes, L.	Wallace of Coslany, L.
Hutchinson of Lullington, L.	Walston, L.
Irvine of Lairg, L.	Whaddon, L.
Irving of Dartford, L.	White, B.
Jeger, B.	Williams of Elvel, L.
Kirkhill, L.	Winterbottom, L.
Listowel, E.

NOT-CONTENTd
Ailsa, M	Joseph, L.
Airey of Abingdon, B.	Killearn, L.
Alexander of Tunis, E.	Kings Norton, L.
Alexander of Weedon, L.	Lloyd of Hampstead, L.
Ampthill, L.	Long, V.
Annan, L.	Lucas of Chilworth, L.
Arran, E.	Mackay of Clashfern, L.
Ashbourne, L.	MacLehose of Beoch, L.
Beloff, L.	Margadale, L.
Belstead, L.	Marley, L.
Bessborough, E.	Merrivale, L.
Blake, L.	Mersey, V.
Blatch, B.	Monk Bretton, L.
Blyth, L.	Morris, L.
Borthwick, L.	Mottistone, L.
Boyd-Carpenter, L.	Mowbray and Stourton, L.
Brabazon of Tara, L.	Moyne, L.
Brougham and Vaux, L.	Munster, E.
Butterworth L.	Nelson, E.
Campbell of Alloway, L.	Newall, L.
Campbell of Croy, L.	Newcastle, Bp.
Carnegy of Lour, B.	Nugent of Guildford, L.
Carnock, L.	O'Hagan, L.
Cathcart, E.	Orkney, E.
Cholmondeley, M.	Orr-Ewing, L.
Cork and Orrery, E.	Oxfuird, V.
Cottesloe, L.	Pender, L.
Cullen of Ashbourne, L.	Porritt, L.
Davidson, V. [Teller.]	Rankeillour, L.
Denham, L. [Teller.]	Reay, L.
Dundee, E.	Reigate, L.
Effingham, E.	Renton, L.
Ellenborough, L.	Renwick, L.
Elliott of Harwood, B.	Rodnev L
Elliott of Morpeth, L.	Romney, E.
Elton, L.	St. Davids, V.
Erroll of Hale, L.	Sanderson of Bowden, L.
Faithfull, B.	Seebohm, L.
Ferrers, E.	Selkirk, E.
Ferrier, L.	Sempill, Ly.
Fortescue, E.	Shaughnessy, L.
Fraser of Kilmorack, L.	Skelmersdale, L.
Gainford, L.	Slim, V.
Gisborough, L.	Somerset, D.
Glenarthur, L.	Strange, B.
Goold, L	Strathclyde, L.
Gray of Contin, L.	Swansea, L.
Greenhill of Harrow, L.	Terrington, L.
Hailsham of Saint Marylebone, L.	Teviot, L.
	Thomas of Gwydir, L.
Hardinge of Penshurst, L.	Thomas of Swynnerton, L.
Harvington, L.	Thurlow, L.
Hemphill, L.	Trefgarne, L.
Henderson of Brompton, L.	Trumpington, B.
Henley, L.	Vaux of Harrowden, L.
Hesketh L	Westbury, L.
Hives, L.	Whitelaw, V.
Holderness, L.	Wise, L.
Hooper, B	Wolfson, L.
Hylton-Foster, B	Young, B.
Ilchester, E.	Zouche of Haryngworth, L.
Johnston of Rockport, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.59 p.m.

Viscount Hanworth moved Amendment No. 2:

Page 2, line 9, at end insert— ("( ) The Prime Minister shall appoint a Security Service Review Committee ("the Committee") consisting of five members of Her Majesty's Privy Council (at least one of whom shall be the nominee of the Leader of the Opposition) and one present or former Lord of Appeal in Ordinary. The Committee shall keep under review the exercise by the Service of its duties and functions as set out in section 1 above and shall report annually to the Prime Minister and the Home Secretary. If the majority of the Committee consider there is any matter which should be brought to the attention of Parliament they may do so provided such an action is consistent with a duty to protect the security of the nation and not prejudice the functioning of the Security Service. It shall be the duty of every member of the Service and of every official of the department of the Secretary of State to disclose or give to the committee such documents or information as the committee may require for the purpose of enabling the Committee to discharge its functions.").

The noble Viscount said: My Lords, this is not a slightly modified version of the amendment which we discussed for nearly two and a half hours in Committee. The first few lines, which seek to set up an impartial review committee to oversee the security services, are the same as those in the previous amendment. But in my amendment this review committee reports only to the Prime Minister and to the Home Secretary on a confidential basis. Only very exceptionally can any report be made to Parliament. I might have included the provision that there is no parliamentary right to see documents. To emphasise the point, I shall read out the relevant part of the amendment: If the majority of the Committee consider there is any matter which should be brought to the attention of Parliament they may do so provided such an action is consistent with a duty to protect the security of the nation and not prejudice the functioning of the Security Service". There are just two major points in favour of the amendment. First, I maintain that neither the Prime Minister nor the Home Secretary has time to have adequate knowledge of what the security service is doing. Secondly, some independent surveillance is desirable. I may be wrong, but it is my understanding that this is the kind of arrangement which exists in other countries.

I earnestly hope that we can limit the length of speeches on the amendment to a very few minutes. All I want to know is whether, if the Government disagree with the amendment, it is worth dividing the House. I beg to move.

Lord Campbell of Croy

My Lords, as the noble Lord who has just moved the amendment pointed out, we had a great deal of discussion on a very similar amendment in Committee. We note the change which the noble Viscount has made to the wording. However, I believe that the overriding consideration should be that responsibility for the security service must remain, and must clearly be seen to be, with Ministers. I believe that in previous debates most noble Lords were agreed on that. A review body such as that now proposed, which would be permanently in existence, would appear to take on some of that responsibility.

I understand that that committee of Privy Counsellors would be within the veil of secrecy. That was the position in regard to the earlier amendment. How active would the committee be? It might do very little or the committee might feel that it was its duty to be continually following the main activities of the security service in order to, keep under review the exercise by the Service of its duties and functions". In that event there would surely be some confusion as to who was in charge and who was responsible.

In the Bill the Government are introducing important new elements—a commissioner and a tribunal with functions involving warrants and complaints. They are to be within the veil of secrecy. That is the way chosen by the Government to increase accountability of the service and to meet public concern over the correctness of its conduct. If that proposed new system remains in the Bill—and so far I have detected no opposition in principle within your Lordships' House to that proposal—there does not seem to be a need for the proposed review body as well.

In the debate at Committee stage the noble Lord, Lord Callaghan, suggested that a committee of Privy Counsellors, as suggested in the earlier amendment, could act as a long stop. I listened to his speech and I read it later. I commend his speech to any who did not hear it as a masterly exposition of what relationships between Ministers, civil servants and the security service should be. His speech was backed by his experience and good sense. He came out, on balance, in favour of a review committee but clearly he had reservations concerning refinements of that proposal.

I hope that the commissioner and the tribunal proposed by the Government in the Bill will act as a long stop. I nearly suggested a fielder in another position but thought better of it. Cricket was discussed freely in our last debate. If the House will forgive a little levity, I should remind your Lordships that there is another player on the field who is expected to back up the wicket-keeper. However, his designation is unfortunate in the context of security and this Bill because his position on the field is third man.

I spoke in the first debate mainly because I was involved in the idea of a group of Privy Counsellors when the first such committee was appointed in the 1950s. I was made the secretary of the committee. That committee considered security in general after Burgess and Maclean had disappeared and then reappeared in Moscow three years later. Incidentally, neither Burgess nor Maclean was a member of the security service in case of any misunderstanding. That first ever committee of Privy Counsellors completed its task and reported within five months. Subsequent committees of Privy Counsellors appointed to consider such matters as telephone tapping and the Falklands war acted. in a similar way. They did the job, reported and then ceased to exist.

I believe that those ad hoc committees of Privy Counsellors have proved appropriate for the kind of inquiry that they have undertaken. I have said so before on other occasions in your Lordships' House in recent years and that is why I make my view clear in relation to the present proposals. I do not believe that a continuing review body of Privy Counsellors is appropriate or necessary in addition to the new arrangements which the Government are making in the Bill.

Lord Annan

My Lords, I was in favour of an amendment on these lines at Committee stage. However, I was surprised to see this amendment appear today because it seemed to me to resemble the Ghost in Hamlet. This amendment seems to be popping up at every stage in the Bill, although we had a Division on it in Committee. Surely we ought to say to this amendment what Hamlet said to the Ghost: Rest, rest, perturbed spirit".

The Lord Chancellor

My Lords, that is also my sentiment.

The amendment considered in Committee was taken: as an example by which to test the principle and to determine whether any such body is possible within the framework of our service." — [Official Report 21/3/89; col. 624.] Your Lordships looked carefully at the principle in Committee and decided, I believe rightly, against such a body.

The amendment now before your Lordships reinforces my belief that that decision was the right one. The drafting appears to water down the responsibility of the review committee to report to Parliament. At best that is a compromise which should please nobody.

The compromise is as follows. Those who look for some form of independent parliamentary oversight from the committee will look in vain. The members of the committee do not have to be Members of this House or of the other place. We know from the amendments and the debates in another place that the party of the Official Opposition would like such a parliamentary body and not the kind of committee proposed here. At best this is, for them, a half-way house.

If the principal purpose of the committee is now to assist Ministers, as the new amendment appears to suggest, it is not the kind of parliamentary oversight which some noble Lords have looked for. Indeed it is hardly parliamentary oversight at all.

Its primary justification must now be that the Home Secretary needs the help. The noble Lord, Lord Mayhew, referred in our previous debates to a degree of sharing of responsibility for any final decision. This is not an area where the responsibility can safely be shared in this way. The lines of responsibility and accountability must be clear. No Secretary of State should be inveigled into the false belief that he can let some review body do his work for him. My right honourable friend has certainly not requested that.

The review committee proposed in this amendment would have to have full access to every detail relating to the work of the security service. Indeed, the amendment obliges the security service to give the committee any document or information that it requires. The committee cannot deal in generalities. It must be able to know of and to be informed of all the operational details of the service. There is no other way in which a committee of this sort could responsibly seek to discharge the duties placed upon it.

A committee functioning in this way would therefore have to be fully cognisant of everything that the security service does, but ostensibly it would appear to have no responsibility for what the service does. This would create a most unsatisfactory situation. In a matter so close to the heart of the nation's security, the power to know cannot be separated from the power to decide. By trying to keep them apart, the amendment would create powerful and conflicting pressures which I do not believe it is possible satisfactorily to resolve. The result would be an inherently unstable structure, constantly needing to be reviewed, constantly requiring change.

I believe that a review body constituted in that way would speedily prove a disappointment not only to itself but to those who have sought to have it set up. I hope that the noble Lord may feel encouraged, in the light of the responses that he has heard, not to press the amendment.

Viscount Hanworth

My Lords, I believe that my decision is an easy one. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Clause 4 [The Security Service Commissioner]:

Lord Elwyn-Jones moved Amendment No. 3:

Page 3, line 20, at end insert— ("( ) The annual report mentioned in (5) above shall include the following matters—

1. (a) the number of warrants issued under section 3 of this Act;
2. (b) the number of complaints referred to the Tribunal under section 5 of this Act; and
3. (c) the number of persons who have been refused employment or continued employment or any office or capacity specified by him as a result of information disclosed by the Service.").

The noble and learned Lord said: My Lords, this amendment proposes important additions to what is to be contained in the annual report that the Bill provides that the security service commissioner should make to Parliament.

Clause 3(1), which we have previously considered, gives to the Secretary of State and the security service exceptional—indeed awesome—powers to enter on or to interfere with a person's property. It reads: No entry on or interference with property shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section". It is an almost unprecedented provision in our law. There is no qualification as to how entry upon the property may be achieved, so that, without the authority of the warrant, it could well amount not only to trespass but to breaking and entering. Then, when entry has been achieved, property within the premises may be interfered with—to use the language of the clause—and searched and investigated at the discretion of the members of the security service who perform the operation.

Clause 4(3) provides that the security service commissioner, shall keep under review the exercise by the Secretary of State of his powers under section 3". Under Clause 4(5), the security service commissioner is required to, make an annual report on the discharge of his functions to the Prime Minister". Clause 4(6) provides that the Prime Minister in turn, shall lay before each House of Parliament a copy of each annual report made by the Commissioner". The amendment provides that three specific matters should be included in that report. These are: first, the number of warrants issued under section 3 of this Act"; secondly, the number of complaints referred to the Tribunal", which is set up under Section 5 of the Act; and, thirdly, the number of persons who have been refused employment or continued employment or any office or capacity specified by him as a result of information disclosed by the Service". Those three matters are all matters of importance. Parliament should know how the powers are operated, as should the public.

As is apparent, we are concerned here with great powers affecting fundamentally important liberties of the subject, his privacy and his property. It is therefore important that the public should know the extent of the usage of those warrants and that there should be a specific reference in the report to the number of warrants issued. I see no grounds for apprehension that the security of the state would be endangered by that requirement. Information about what goes on should be available to the public with regard to a power which potentially affects the public's rights and liberties so fundamentally.

The next proposal is that the report should include the number of complaints referred to the tribunal under Section 5 of the Act. Again, that is not only something that Parliament would be interested to know, but, bearing in mind its overall responsibility, is something that Parliament and the public should know.

The third element relates to a matter that has caused a great deal of concern to those who have been affected by what has been going on. They find themselves cut off from employment or the prospect of employment on the basis of information disclosed by the security service. I shall not venture to identify any particular cases, but they have caused great distress when they have occurred. It is therefore proposed that the annual report should also include the number of persons who have been adversely affected in their employment by reason of information disclosed by the service.

The measures are intended to reassure the public. The public should know whether the figures are reassuring; the public should be reassured. If the figures prove alarmingly excessive, the public should know that too and those in authority should have to be called to account in respect of them.

I submit that this three-part amendment is a useful addition to the rights and liberties of the subject and does not harm the security of the state. I beg to move.

Lord Hutchinson of Lullington

My Lords, perhaps I may support the amendment which was moved in Committee. As there has been a great deal of talk about cricket at this stage of the Bill, I should point out that the noble and learned Lord adopted what one might now call his Boycott stance. If only he had rather better residential qualifications, he might well make the ideal opener for whom the English team has been looking for a long time.

The noble and learned Lord made two points. First, he said, "Leave it to the commissioner. Why put it in the Bill? Leave it to the commissioner to put in his report whatever he likes". That seems to be the reply of the Government to so many suggestions. They say, "Leave it to the Attorney-General" when it comes to prosecutions. They say, "Leave it to the Minister". They say, "Leave it to the commissioners". However, what happens if a commissioner includes nothing in his report of any interest at all and makes a totally anodyne report, as is likely to happen? What possible objection is there to at least setting out the minimum number of points that should appear in his report?

The second statement of the noble and learned Lord—a rather streaky shot, I suggest—was that if one discloses the number of warrants it might indicate the amplitude of the detection of the extent to which the activities of any person working against this country had been disclosed. The noble Lord, Lord Monson, who is not in his place today, answered that point, because it only has strength if there were one source. If there were more than one source the point does not apply at all.

I suggest that the commissioner is there to assure the public that to some extent the operation of the service is conducted according to law. He is only there, as we know, after pressure from the European Court, and because of the huge number of credible leaks that there have been in the past. This amendment simply ensures that the public are given the very minimum degree of information, which, I suggest, they are quite entitled to receive.

The Lord Chancellor

My Lords, I doubt whether a particularly attractive feature of an amendment is that it should be designed to ensure that the public are given the very minimum of information about the matter upon which the commissioner can report. The commissioner has the duty to report, surely, in what he considers would be an appropriate way. The commissioner is to be a person of considerable stature. I think one can see how this might develop by looking at the report by the commissioner under the interception Act. I do not know whether or not the noble Lord's assessment of that would be in accordance with what he predicts in respect of this particular report.

The only effect of the amendment is to require the commissioner by statute to produce certain statistics in his report to the Prime Minister. I suspect that the Prime Minister does not need a statutory power in order to find out these figures; nor does the commissioner in order to report them. If he thought these figures were useful and he had all of them available, no doubt he would consider it right to put them in.

If the commissioner is not able to exercise sufficient judgment to decide whether or not he should put these numbers in his report, then I think that your Lordships might fairly have little confidence in the way in which he exercises much more delicate judgments. There is no need for statutory requirements which appear to take the commissioner's decisions for him. He must be in the best place to take such decisions in the light of the work which the legislation will require him to undertake. I have mentioned already the example of the interception commissioner.

There is no statutory requirement of the sort proposed in this amendment in the Interception of Communications Act 1985. Yet in each published annual report the commissioner has given figures of the number of complaints to the tribunal. He has also given certain figures relating to the number of warrants issued. For the first time this year he gave the number of warrants issued over the year by my right honourable friends the Home Secretary and the Secretary of State for Scotland, as well as the number in force at the end of the year. Therefore I believe that to date he has shown that he produces matters of interest in his report.

I think that your Lordships might agree that this shows that the provisions in the 1985 Act relating to the commissioner's report work sensibly and well, and in the way that many of your Lordships would wish. The Bill before the House follows the same path. I do not believe that it is necessary to add further embellishments. I would only add that the commissioner in practice could not meet all the requirements of this amendment because the security service does not always know when someone about whom it has reported has been refused a posting or employment, let alone the reasons for that refusal. Therefore the commissioner could not necessarily have the numbers of such refusals available to him.

I have laid it aside really, but there is a point about the amendment which I do not understand; namely the reference to "specified by him" in the penultimate line after the word "capacity". The amendment refers to, continued employment or any office or capacity specified by him as a result of information disclosed by the Service". I am not sure to whom that refers. Obviously the wording could be adjusted to make it plain if any clarification is required. I answered the amendment as a matter of principle, and I hope that, in the light of the explantion that I have given, the noble and learned Lord will feel able to withdraw the amendment.

Lord Elwyn-Jones

My Lords, I think that "him" refers to the commissioner. I am now on my feet: if I had time I should be able to make the identification immediately. However, I think that that is the position. The reply of the noble and learned Lord the Lord Chancellor is disappointing. The initial point—namely, that the language: The annual report … shall include would be restrictive, is a doctrine which sometimes comes from Ministers. However, the amendment provides that the report shall include and not that it shall only include.

The Lord Chancellor

My Lords, I should perhaps say that I was simply taking up the concluding remarks of the noble Lord, Lord Hutchinson. I was not necessarily implying that that was the proper construction of the noble and learned Lord's amendment; I should not like my remarks to be taken that way. I was perhaps following up too quickly what the noble Lord said and the way in which he expressed it.

Lord Hutchinson of Lullington

My Lords, perhaps I may say that I never suggested that this was all-inclusive. I think I used the words, "minimum information".

Lord Elwyn-Jones

My Lords, I do not think that we need to split any more hairs on that point. Clearly, it is not exclusive of everything else, but it is certainly inclusive of those three matters. I still submit to the House that these are matters of great importance about which the public is genuinely concerned. Perhaps the noble and learned Lord the Lord Chancellor can indicate—he may have had it in mind—that to be effective, the annual report could well, and should, include these matters without making it a statutory duty to do. I detect, perhaps too optimistically, that that is the mood which has emerged from the discussion of these amendments. I hope that I am right. In that hope and possible expectation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Investigation of complaints]:

Lord Mishcon moved Amendment No. 4:

Page 3, line 36, at end insert— ("( ) Where, by reason only of the denial of a security clearance by the Service, a decision is made to deny employment to an individual or to deny any office or capacity specified by an individual, the Director-General shall (unless there be good reasons on security grounds for not so doing) send within 14 days after the decision is made a notice informing the individual of the denial of security clearance.").

The noble Lord said: My Lords, the noble and learned Lord the Lord Chancellor has already called attention to one error that may have occurred in the previous amendment. I myself noticed that there was a bracket that should not have been there. Perhaps I may also say that in the case of this amendment the bracket which occurs in line 4 after the word "shall" should indeed be completed by another bracket in the next line before the words, send within 14 days after the decision is made". Perhaps noble Lords will kindly treat that bracket as being in the correct place. I shall briefly give the reason for moving this amendment.

At the very beginning of Schedule 1 the duty of the tribunal so sensibly set up under this Bill is made clear. The tribunal is to consider the cases of people who complain about being aggrieved about what the service has done in relation to them or to any of their property, and unless the tribunal finds that it is a vexatious application it is its duty to look into the matter. I suppose that one of the greatest interferences in someone's liberty would be that, as a result of somebody's action that he cannot properly answer, he has lost his job, or, if in a job, he has lost the chance of preferment which he ought genuinely to have.

We are considering a service which has a vetting procedure the extent of which is quite extraordinary. As noble Lords will know, there is a negative and a positive procedure. Perhaps I may take the positive procedure first; it is a procedure which is known. The negative procedure is not known; it is a secret one. With regard to the positive procedure I am told—I have no reason to think the information wrong—that it embraces about 600,000 civil servants and a number of other jobs in the nuclear industry, in British Telecom, in the Post Office and among defence contractors. No one can give noble Lords the figures that are likely for annual consideration under the negative clearance procedure. Therefore the possibility of human error with those numbers involved, quite apart from any question of misconduct, can be quite considerable.

This amendment has been very carefully worded. I have tried by anticipation to answer the objections that no doubt the noble Lord, Lord Boyd-Carpenter, will have. I hope that I am wrong in thinking that, and in thinking that I have an adversary to this amendment in the noble Lord, Lord Campbell of Croy. I have tried to cover all the points which they so usefully make for the delectation of the House and the good sense of the Bill. This amendment provides that where there is a denial of a security clearance by the service—that is, whether it is by positive or negative procedure—a decision is made to deny employment, preferment, or alternative office. That arises purely and simply because of the result of a clearance. The director general is required—but only required: unless there be good reasons on security grounds for not so doing" — within 14 days after the decision to inform the individual, not of the reasons, but merely that a denial of security clearance has taken place.

This amendment covers the question relating to security: "How can the security service be expected to give its reasons for having said no to a security clearance?" That point is covered; they do not have to. What happens if merely telling somebody that security clearance has been denied will breach security? That is covered because if there are good reasons on security grounds he need not do so. However, where, as a result, employment has literally been terminated or refused, or a preferment has been refused, this amendment gives the individual the opportunity—and noble Lords may think very rightly so—to apply to a tribunal. The tribunal will then consider it within the very careful framework of Schedule 1, which safeguards security so adequately. He will be able to go before the tribunal saying, "The one thing that I know as a result of this notice is that I have been denied a clearance. I say that that is quite wrong, and please would you look into it?" I beg to move.

4.30 p.m.

The Lord Chancellor

My Lords, at page 3, line 36, at end insert the words as printed on the Marshalled List, with a bracket inserted after the word "doing".

Lord Mishcon

My Lords, the noble and learned Lord is most kind. Perhaps I may just consider that. The noble and learned Lord is right, as is so often the case, and I thank him.

The Lord Chancellor

My Lords, at Committee stage, I explained fully the role of the service in respect of vetting. I shall not go back over old ground. I am not in a position to say anything about the numbers that the noble Lord mentioned in moving this amendment. They do not make any difference in relation to the principle of the matter. There is also a passage in this amendment with which I have slight difficulty. There is reference to "specified by an individual". I am not quite clear how that is supposed to work.

I see from this amendment, however, that I have not made it clear to your Lordships that it is not, in this country, the responsibility of the security service to refuse employment to someone seeking work with another employer. That is a matter for the employer. I think your Lordships would agree that that must be the right approach. The judgement is with the employer. The security service should not be the final arbiter of these decisions. The consequence, however, is that in some cases the security service may not know what decision has been made on a person's employment. Nor would it always be in a position to know the reasons for any decision, let alone whether it was made only because of the information the service had properly provided, which is the only ground on which this amendment would operate. To create a statutory obligation on the security service would therefore extend the responsibilities of the service in the operation and administration of employment decisions.

I recognise that the amendment seeks to meet the problem of putting terrorists on notice that the service is aware of them. It therefore provides a discretion about informing an employee. But it leaves that discretion to the security service. The service may not be in a position fully to assess and decide on all the implications of a decision to inform an employee, since the final judgment will not have been theirs. I doubt if any of your Lordships would welcome increasing unnecessarily the responsibilities of the service in these matters.

This amendment would, I submit to your Lordships, operate in a rather unpredictable and arbitrary way. It would operate only where it was clear that that decision had been made solely on the basis of the security service's information. It would operate only where the security service itself had decided that the individual could safely be informed. It would appear to suggest that without a communication from the security service, it has not been involved, and that, as the amendment acknowledges, would not be so because of the bracketed portion.

I believe that, on reflection, many of your Lordships would therefore have grave doubts about an amendment which created such a statutory obligation on the security service, both because of the implications it would have for the nature of the responsibilities of the service, and the implications it might have for national security. Your Lordships may come from different points in approaching this amendment, but I hope that you will all come to the same conclusion. I hope that in the light of that explanation the noble Lord will feel able to withdraw his amendment.

Lord Mishcon

My Lords, it is with some grief that I again come to the Dispatch Box to consider arguments against the amendment. Any disadvantages are far outweighed by the advantages and the fairness of agreeing with the amendment. The security service knows perfectly well that it has denied a clearance. We are talking about a security clearance in regard to members of the Civil Service and similar organisations. One knows perfectly well that there will be a response to the security service: "We note the lack of clearance here. In the circumstances we are not employing Mr. X". That would be necessary for the records of the security service. One has protected the question of security by saying that if there are good security reasons for not then serving the notice, the notice need not be served.

The noble and learned Lord immediately referred—and it is always an emotional reference but it is perfectly fairly made—to the terrorist. There are not many terrorists in the clearance activities of the security service. If it has to give clearance to a terrorist I should have thought that it would be an amazing example of its work on security clearances of this kind. What is the poor employee to do? He suddenly hears that his employment has been terminated, or it is not being renewed, or that a promotion is being denied him. He does not have the vaguest idea why, but thinks that a mistake might have been made by the security service because he knows he has had a positive clearance test by the security service. What is he to do? How can he go to the tribunal? He may feel—as may the tribunal—that the decision has been taken as a result of the fact that he turned up late for work three times in the previous week. How is he to know unless he is given this notice?

This is a gap in the Bill and a gap in fairness, in justice and in the protection of the rights of ordinary folk. We are told that the reason he is not being told this is because it would put a heavy duty on the director general and would create bureaucracy and so on, and that the director general and the security service would not know what was the result of their failing to clear on a security basis. I repeat that it would be an extraordinary security service that did not follow up what it had done so as to know whether the man was being employed or not. If he has been refused clearance the service had better keep a watch on him, one might think.

It is with terrific disappointment that I listened to the noble and learned Lord's answer to this amendment. But at this stage it would appear open to me only to beg leave to withdraw the amendment, to consider again what he said, possibly finding something that I did not appreciate, and, if necessary, coming back at Third Reading with something further on this matter.

Amendment, by leave, withdrawn.

Schedule 1 [Investigation of Complaints]:

Lord Mishcon moved Amendment No. 5:

Page 5, line 33, at end insert ("and that the service was so doing in the proper discharge of its functions").

The noble Lord said: My Lords, this amendment deals with the first schedule, to which I ventured to refer your Lordships when I was moving a previous amendment. That first schedule deals with the investigation of complaints by the tribunal. As the Bill stands, your Lordships will see in paragraph 3 that if the complainant, alleges that the Service has disclosed information" — actually disclosed the information— for use in determining whether he should be employed, or continue to be employed … the Tribunal shall investigate whether the Service has disclosed information for that purpose and, if the Tribunal find", that that disclosure has been made, they shall determine", not whether the service had acted properly in making the disclosure as a result of which the man has lost his job, but, whether the Service had reasonable grounds for believing the information to be true". That is the limit. There is no question of determining whether the information was true or whether the service, in disclosing, was doing so in the proper discharge of its functions.

It is in relation to those last words concerning the proper protection of the individual about whom this disclosure has been made, and as a result of which he has lost his job, that we say in the amendment that the tribunal shall at least consider the question whether in the making of the disclosure the service was doing it in the proper discharge of its functions. I beg to move.

4.45 p.m.

The Lord Chancellor

My Lords, as your Lordships know, anyone may complain to the tribunal if he is aggrieved about anything which he believes the service to have done in relation to him. This may, of course, include a complaint about the role of the security service in relation to some employment matter.

In all cases the tribunal must investigate whether the security service has made inquiries about the complainant and, if so, whether those inquiries were reasonable in the discharge of its functions. That applies to complaints about the security service's role in vetting matters as it does to any other. The tribunal address questions relating to functions under that head.

When it comes to looking specifically at the role of the service in respect of an employment matter, the question turns on the disclosure itself. The tribunal must investigate whether the security service has disclosed such information for employment purposes—and if it has, the tribunal must then decide whether the service had taken reasonable steps to check out the truth of what it has said. That is the central question for the tribunal in respect of the individual complainant. The amendment would require the tribunal to move into areas which are more properly matters for the commissioner. The Bill at present provides a good and sound distinction between the work of the tribunal in relation to a particular complaint and the work of the commissioner, who can consider the wider issues and implications.

I do not believe that it would be right to ask the tribunal to get involved in the work of the commissioner, but that would be the effect of this amendment. The result would be a confusion of rsponsibilities. It would leave the tribunal grappling with issues which went well beyond the context of a particular complaint. It would not make for a fair, consistent or reasonable application of the provisions. Accordingly, I believe that the balance in the Bill concerning the individual complaint is correct and I hope that on this occasion the noble Lord will perhaps be even happier not to press his amendment.

Lord Mishcon

My Lords, I at once recognise, and immediately say, that the noble and learned Lord, in replying to my amendment, has given reasons which I find acceptable. I wish that that had applied to other amendments that I have moved. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [The Tribunal]:

Lord Elwyn-Jones moved Amendment No. 6:

Page 7, line 37, leave out sub-paragraph (2) and insert— ("

1. (2) In the course of an investigation of a complaint by the Tribunal, the complainant shall be given an opportunity to make representations to the Tribunal, to present evidence and to be heard personally or by counsel.
2. (2A) The complainant shall be entitled to have access to any documents or information disclosed or given to the Tribunal unless the Tribunal considers that, in the circumstances, such access would be prejudicial to National Security.").

The noble and learned Lord said: My Lords, Clause 5 provides for the setting up of a tribunal, for the purpose of investigating complaints about the Service in the manner specified in Schedule 1 to the Act". We on this side of the House welcome the concept of a tribunal to investigate complaints about the service. But, when one examines the schedule setting out the constitution of the tribunal and its procedure, there is not one word about the rights that are to be given to the complainant in stating, explaining or elaborating his complaint: not one word.

Additionally, Clause 5(4) shuts out the courts completely from the study and examination of the matter. It states: The decisions of the Tribunal and the Commissioner under that Schedule (including decisions as to their jurisdictions) shall not be subject to appeal or liable to be questioned in any court". Apparently they cannot even be questioned on a point of law. Although we welcome the tribunal, these are important and significant elements which the House should consider.

My particular concern is that the elementary principles which are set out in the amendment are a statement of principles of natural justice which one would expect to be expressly provided for when one is dealing with the creation of a new tribunal with a new jurisdiction. The amendment proposes that: In the course of an investigation of a complaint by the Tribunal, the complainant shall be given an opportunity to make representations to the Tribunal, to present evidence and to be heard personally or by counsel". Secondly, the amendment provides: The complainant shall be entitled to have access to any documents or information disclosed or given to the Tribunal unless the Tribunal considers that, in the circumstances, such access would be prejudicial to National Security". There is nothing revolutionary, startling or unprecedented about those rights. They are part of the provisions of any self-respecting tribunal and are applied in any self-respecting court.

I must confess that as a result of an answer given by the noble and learned Lord in Committee my surprise moved almost for the first time towards anger. I am sorry if it sounded like that but I fear that it was my response to what was said by the noble and learned Lord. I hope that the House will forgive me and I should like to read what the noble and learned Lord said. It was: I do not believe it is either necessary, nor would it be practicable to give a right of oral representation to every complaint to the tribunal. The tribunal must, after all, consider the reasonableness of decisions made by the security service. The complainant may give the tribunal what evidence he wishes to substantiate his complaint. There is no need for this amendment in order to achieve that. But equally, the complainant is under no obligation to offer any evidence to substantiate his complaint. He only needs to make a complaint. He does not need to offer evidence to substantiate it". But what if he does? The noble and learned Lord continued: It is for the service, not the complainant, I o respond to the tribunal's investigations. That is surely the right focus of the tribunal's work; and, if that is right, it could only be time consuming and unhelpful to give each and every complainant a statutory right to put his grievances and allegations in person, or through counsel".—[Official Report, 21/3/89; col. 665.] I am sorry to say that I detected an excessively authoritarian touch in those observations of the noble and learned Lord. They were quite out of keeping with his normal response. However, I may be wrong and I return to the merits of what I have said. I do so quite apart from any view on the way in which the serious matter was imperiously brushed aside with no indication of a serious examination of what was being claimed and asked for.

In those circumstances, and because of the total absence of any anger in my voice or demeanour, I hope that this time the noble and learned Lord will see the merits that the principles of natural justice should be incorporated into the terms of the proceedings and the procedure laid out for the tribunal. I beg to move.

Lord Hutchinson of Lullington

My Lords, I should like to support the amendment. Perhaps I can introduce a little anger into the proceedings. At the late hour of night when we discussed the matter in Committee I found it almost unbelievable to hear the words which fell from the lips of the noble and learned Lord. We are talking about a person who is aggrieved and has complained because he has been adversely affected by the activities of MI5. We are talking of a member of the public who is aggrieved because, he says, MI5 has acted unreasonably and wrongly towards him. It has done him a severe injury on what was perhaps completely wrong information. Therefore he makes a complaint.

The simple suggestion in the amendment is that in those circumstances he shall have the normal civil rights and rules of natural justice as they then apply. He shall have the right of being given an opportunity to make such representations as he wishes and to present any evidence to support his case.

The noble and learned Lord said that it is for the service to respond to the tribunal not the complainant and that it is not the complainant who is being investigated. That is a play on words. It is the complainant who has raised the matter; it is the complainant who is the member of the public who has been injured; and it is not the tribunal which is being protected in the clause. However, it may be put in such a way that it is for the tribunal to respond.

The noble and learned Lord said that there is nothing to preclude the tribunal from hearing evidence if it wants to do so but that it may be time-consuming to give the aggrieved person these rights. Sometimes one has to protest over and over again because people's rights are being trampled on by the legislation which comes before Parliament. To suggest that it may be time-consuming for a member of the public who has been aggrieved and seriously injured to put forward his case and to be entitled to produce evidence in support appears to be taking matters very far indeed.

The noble and learned Lord said that it may be unwise for such a person to have access to any document concerned in the matter. Is that really where the rights of people have come to under this piece of legislation? As we have already seen, it is made extremely hard and even impossible for someone who is informed against perhaps on completely wrong evidence and perhaps because they fall into a class or group of people which the security services believe to be subversive. We know from many cases that people have lost their employment as a result of a total misapprehension of what they were doing or of the group to which they belonged.

There are the gravest possible dangers for the individual in the passing of such secret information. Sometimes that is absolutely right; sometimes that is absolutely wrong. If it is wrong then the very least a person should have are the rights set out in the amendment.

Lord Boyd-Carpenter

My Lords, I speak subject to correction but the amendment appears to give rights to the full court procedure in respect of any complaint to the tribunal. That is any complaint however trivial or irrelevant it may be. As I understand it, on an earlier occasion the noble and learned Lord said that in a serious case the tribunal could handle the matter as it thought fit, including hearing evidence and argument. But to give— —

Lord Hutchinson of Lullington

My Lords, will the noble Lord— —

Lord Boyd-Carpenter

My Lords, perhaps the noble Lord will restrain his impatience. On the other hand, the amendment appears to give the right to the court procedure in all cases, however trivial or small. I shall now give way.

Lord Hutchinson of Lullington

My Lords, I should like to point out to the noble Lord that they are not the full rights of procedure. They are limited because there is no right to cross-examine or to follow all the procedures in a normal court of law. The amendment gives a right and opportunity to make representations and to present any necessary evidence. That is all.

5 P.m.

Lord Boyd-Carpenter

My Lords, that is not quite all. It is also to be heard by counsel, and that is very largely introducing the mechanism of a court. It goes a great deal further than saying that a complainant may come and present evidence. He can be represented by counsel and plainly the purpose of that must be, if he is to go to that trouble and expense, that some legal argument should be presented on his behalf. Therefore, the noble Lord is not quite right, when it is merely for the complainant to make the complaint himself.

For that reason, it seems to me very doubtful whether we need burden the machinery of this tribunal with that universal right in the case of any complainant to have a procedure of that sort followed.

While I am on this point, I was rather amused to see that the complainant could, if this amendment is accepted, be represented by counsel. If we may touch on other matters which your Lordships have discussed recently and will discuss in future, the right of audience before this tribunal would be restricted to counsel and not allowed to a solicitor. In those circumstances I was rather surprised to see the name of the noble Lord, Lord Mishcon, on the amendment.

The Lord Chancellor

My Lords, perhaps I may be allowed to leave the last point for another occasion.

This is an important matter and I have certainly never treated it lightly. Whether or not my responses have produced anger is not particularly my responsibility. However, this is an important matter and I agree that we must look at it carefully.

It is vitally important to remember that this Bill puts a certain duty on the tribunal at Schedule 1 (1), which states: Any person may complain to the Tribunal if he is aggrieved by anything which he believes the Service has done in relation to him or to any property of his; and, unless the Tribunal consider that the complaint is frivolous or vexatious, they shall investigate it in accordance with this Schedule". The responsibility is placed upon the tribunal to investigate any complaint that may be made to it unless it can exclude it as frivolous or vexatious.

The tribunal is set up under this Bill distinct from the ordinary courts of law. If it were appropriate for complaints of this sort to be investigated in accordance with ordinary procedure by the ordinary courts of law, what would be the point of having a tribunal, and particularly a tribunal made up of very highly qualified lawyers? This is a tribunal which is different from our courts system and it is different from our courts system, generally speaking, in a most important feature; that is, that it has a duty of investigation. It is in the nature of an inquisitorial tribunal—and we have had discussions about that distinction in connection with other matters. That is the important matter. Every person who complains has a right not merely to be heard—that is not the important matter—but also to have his complaint investigated. If anything he has to say about it is relevant to that investigation, then that will be covered by the duty to investigate.

Your Lordships will see that there is not only the first part of this amendment but also a second part, which states: This complainant shall be entitled to have access to any documents or information disclosed or given to the Tribunal unless the Tribunal considers that, in the circumstances, such access would be prejudicial to National Security". That describes the notion that underlies this amendment. This amendment tries to come as near to the ordinary courts as possible.

Lord Mishcon

My Lords, it is only because the noble and learned Lord rightly said how important this is that I take the liberty of intervening. He has talked in terms of the duty of the tribunal to investigate. If he will kindly refer to paragraph (2)(1) where the word "investigate" occurs, that is purely and simply limited to whether or not the complainant has been the subject of inquiries and not as to the nature of them or any other matter. If I am wrong, I know that the noble and learned Lord will say where I am wrong, but that is where the word "investigate" occurs.

The Lord Chancellor

My Lords, I am sorry, but the noble Lord is not correct. The word "investigate" first occurs in the passage which I read out in paragraph (2)(1) where it refers to "shall investigate". There is a duty to investigate the complaint in accordance with the schedule. There is no proposal to do anything other than investigate the complaint.

The amendment does not seek to enlarge the jurisdiction of the tribunal or anything of that sort. It merely seeks to add a responsibility on the tribunal to hear the complainant personally or by counsel, plus other matters about documents to which I have just referred. Therefore, with great respect to him, the noble Lord's intervention does not assist on this point. The obligation is to investigate the complaint in accordance with the schedule and this amendment only requires in addition to that that the complainant be heard. However, the idea must be that the complainant is heard for the purpose of enabling the tribunal better to investigate the complaint according to the schedule.

Lord Mishcon

My Lords, now I risk the noble and learned Lord being angry with me instead of anyone being angry with the noble and learned Lord. At all events, that is ambiguous and I am sure that he will see that. The duty to investigate is to investigate in accordance with the schedule; and the only duty in the schedule to investigate relates to whether or not the complainant has been the subject of inquiries, and it goes on "if the Tribunal find" and so on. The duty to investigate in accordance with the schedule is set out as a duty in Schedule 1(2)(1). The investigation is as to whether the complainant has been the subject of inquiries by the service. I may be wrong in my submissions, but at the very least I believe that I can say that the matter is quite ambiguous.

The Lord Chancellor

My Lords, I am very sorry but for once I do not understand the point made by the noble Lord. The obligation on the tribunal is to investigate the complaint in accordance with the schedule, and there are subject matters for the investigation not only in paragraph 2(1) but also in later paragraphs of the schedule; for example, in paragraph 3 which states: If and so far as the complainant alleges that the Service has disclosed information for use in determining whether he should be employed, or continue to be employed … the Tribunal shall investigate whether the Service has disclosed information for that purpose and, if the Tribunal find that it has done so, they shall determine whether the Service had reasonable grounds for believing the information to be true". Therefore, it is not correct to say that the complaint is restricted to whether or not inquiries were being made.

Even if the noble Lord is right, that does not help in relation to this amendment. The point in this amendment is that the responsibility for investigation is put upon the tribunal and that distinguishes it from the court. The court is there to hear what is put before it. Generally speaking, that is an adversarial system and is part of the principle of natural justice as applied to an adversarial system when each of the adversaries must have a chance to say what he or she wants to say. However, where the duty is on the tribunal to investigate, the situation is different.

I must say that I believe that this amendment is important in relation to the tribunal and its constitution. This tribunal is given an investigative role because that is the approporate way in which investigations should be carried out in relation to security matters.

The creation of a complaints machinery raises peculiar problems when it is a complaints machinery related to security matters. They are problems that mean that we cannot rely on the normal courts or indeed the normal procedures of the courts. This is because the material that the tribunal must handle must not become public knowledge. It must not, in particular, be made available to the person to whom it relates.

The conventions and procedures followed by a court cannot therefore be applied directly. That is the reason for having a tribunal. The adversarial model is not the one that we are able to follow for dealing with this sort of complaint. It is not possible for both sides to be given all the available information, for both sides to argue their case and for the court to decide. That is why we have established not an adversarial but an investigative tribunal. It is not its job to sit back and decide on the basis of the evidence put before it; its job is to investigate and to look into every relevant part of the complaint with which it has to deal. The Bill clearly gives the tribunal the power to do so. The onus is on the tribunal, not on the complainant.

I do not believe any other system would work as well in this area; nor would it be able to work with any assurance that complaints could be investigated and resolved without vital secrets being divulged. I do not believe it is possible or consistent with the necessary principles on which the tribunal is established under the Bill to graft on aspects of an adversarial procedure such as are proposed in these amendments. To do so would create a presumption that a complainant should know the security service's case; a presumption reinforced by the modified right of access to information given by sub-paragraph (2A) of this new clause. A right to be heard adds little of substance or relevance unless there is also a right to know.

That is not the way the security service tribunal can or is intended to work. Under the structure that the Bill proposes the complainant can put as much or as little information to the tribunal as he likes. Unless his complaint is frivolous or vexatious, the onus is then on the tribunal to conduct its own investigations and to get at the truth. The security service is obliged to give it all the information it needs and can do so in the confidence that the information will not be divulged. The tribunal can ask the complainant for more particulars, it can certainly ask to see the complainant in person and it can of course, if it would help, agree to his being represented. That is in no way restricted. The complainant too has the assurance in the Bill that his confidences to the tribunal must be respected and not divulged to the security service.

In order to work satisfactorily it must be the Tribunal's investigation. It must be the responsibility of the tribunal to get at the truth. There is therefore an important point of principle here that goes to the very heart of the complaints procedure in the Bill and to the reasons for having a tribunal in place at all. The amendment, if it were given effect to, would detract from the central responsibility of the tribunal. It would tend to put the onus on the complainant to make his case, to substantiate his concerns and to bring along evidence to try to show the position. The tribunal might be tempted to judge the strength of the complainant's case on the basis of what he had represented, however thin or poor the representations might be. That would weaken rather than strengthen the complainant's position.

It was for similar reasons that your Lordships approved the special investigative structure of the interception tribunal under the 1985 Act. For much the same reasons, I ask your Lordships to approve a similar structure in the Bill.

This is an important matter, as I say. It is important to realise that the principle upon which the tribunal must work is a very different one from the ordinary principle that the courts of law have to follow. We have tried to make available a procedure that will be effective and put responsibility for the investigation where it properly belongs—clearly on the shoulders of the tribunal.

I hope that the noble and learned Lord who moved the amendment will feel able in the circumstances to accept the argument. The matter is of sufficient principle that, if he is not able to do that, one should seek to have it decided.

5.15 p.m.

Lord Hutchinson of Lullington

My Lords, perhaps I may ask the noble and learned Lord whether he makes a distinction between the adversarial court and the investigative tribunal which is getting at the truth, so that in an investigative tribunal, say, one that is seeking to find the cause of an accident, these rules of natural justice do not apply.

The Lord Chancellor

My Lords, the distinction is between a tribunal that has the duty to investigate and a tribunal that has the duty only to adjudicate between cases presented to it. Consequences flow from that distinction. It is on these consequences that I have sought to rely.

Lord Elwyn-Jones

My Lords, I can only regret the response of the noble and learned Lord the Lord Chancellor. The field with which we are concerned responsibly today is an important and delicate one, and we should be able to carry Parliament and the public with us.

Here is a power that is given in precise language in the Bill that we are considering: No entry on or interference with property shall be unlawful if it is authorised by a warrant issued by the Secretary of State". It is a statement of authority and power which, so far as I know, has no equivalent in our law. That power is given to the Secretary of State, the state and its representatives. As to the citizen, foreigner or whoever may be concerned, he can be affected most fundamentally in his career and in his life by the decision of the security service. It can ruin his life, especially if he is innocent. There is a man who may well claim that he is wholly innocent.

Merit is made of the fact that at any rate a tribunal has been set up, and I welcome it. The fact that it is a tribunal does not exclude or leave out—this is the procedure to deal with complaints—the necessity for the complainant to be given the fullest opportunity that he seeks, not that the tribunal thinks it right to give him, to state his case, to state his complaint and to give evidence to support his claim.

I am very willing to reconsider in all the surrounding political circumstances the somewhat tactless reference to "counsel". I am very willing to substitute "a representative of his choice". That should embrace all lawyers and non-lawyers.

I come to the serious matter that we are considering. What is proposed is modest; it is minimal. It is proposed that there shall be written into the procedures to be applied by the tribunal two elementary requirements of natural justice. In the course of an investigation of the complaint the complainant shall be given an opportunity to make representations to the tribunal, to present evidence and to be heard personally or by counsel. It is surely not to be tolerated that the fact that it might take more time should be a factor governing so important a decision and so important a situation for him. For him in those circumstances to be given the fullest opportunity within reason to be heard and to make representations on his behalf is a minimal right. He should also have the right of access to all the relevant documents.

To allow this amendment will inspire confidence in the security service and not detract from it. At this critical stage in our affairs it is important that we are serious in dealing with the threat of terrorism and the rest of it. We in this part of the House are as eager to sustain that battle as anyone else. To reject the amendment will damage the standing of the legislation and do a disservice to the security of the country. It is on the basis of that approach that I invite the House to come to a conclusion.

5.20 p.m.

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 51; Not-Contents, 107.

DIVISION NO.2
CONTENTS
Amherst, E.	Hutchinson of Lullington, L.
Ardwick, L.	Irvine of Lairg, L.
Aylestone, L.	Jeger, B.
Blackstone, B.	Listowel, E.
Bottomley, L.	Lloyd of Hampstead, L.
Broadbridge, L.	Lloyd of Kilgerran, L.
Bruce of Donington, L.	Longford, E.
Carter, L.	McIntosh of Haringey, L.
Chorley, L.	McNair, L. [Teller.]
Cledwyn of Penrhos, L.	Mishcon, L.
Cocks of Hartcliffe, L.	Nicol, B.
David, B.	Ogmore, L.
Dean of Beswick, L.	Ponsonby of Shulbrede, L. [Teller.]
Dormand of Easington, L.
Elwyn-Jones, L.	Ritchie of Dundee, L.
Ewart-Biggs, B.	Serota, B.
Falkland, V.	Shackleton, L.
Galpern, L.	Shepherd, L.
Gladwyn, L.	Stoddart of Swindon, L.
Graham of Edmonton, L.	Tordoff, L.
Grey, E.	Turner of Camden, B.
Hardinge of Penshurst, L.	Wallace of Coslany, L.
Henderson of Brompton, L.	Walston, L.
Houghton of Sowerby, L.	White, B.
Howie of Troon, L.	Williams of Elvel, L.
Hughes, L.	Winterbottom, L.
NOT-CONTENTd
Abercorn, D.	Butterworth, L.
Airey of Abingdon, B.	Buxton of Alsa, L.
Aldington, L.	Caithness, E.
Alexander of Tunis, E.	Campbell of Croy, L.
Ampthill, L.	Carnegy of Lour, B.
Arran, E.	Carnock, L.
Ashbourne, L.	Carr of Hadley, L.
Belhaven and Stenton, L.	Cathcart, E.
Beloff, L.	Clitheroe, L.
Belstead, L.	Coleraine, L.
Bessborough, E.	Cork and Orrery, E.
Blake, L.	Cottesloe, L.
Blatch, B.	Cox, B.
Blyth, L.	Craigavon, V.
Boardman, L.	Craigton, L.
Boyd-Carpenter, L.	Cullen of Ashbourne, L.
Brabazon of Tara, L.	Davidson, V. [Teller.]
Brougham and Vaux, L.	Denham, L. [Teller.]
Buckinghamshire, E.	Digby, L.

Dundee, E.	Monk Bretton, L.
Elibank, L.	Morris, L.
Elliot of Harwood, B.	Mottistone, L.
Elliott of Morpeth, L.	Mountgarret, V.
Elton, L.	Moyne, L.
Faithfull, B.	Munster, E.
Ferrers, E.	Nelson, E.
Ferrier, L.	Newcastle, Bp.
Fortescue, E.	Orkney, E.
Fraser of Carmyllie, L.	Oxfuird, V.
Fraser of Kilmorack, L.	Pender, L.
Gisborough, L.	Rankeillour, L.
Glenarthur, L.	Reay, L,
Goold, L.	Renton, L.
Gray of Contin, L.	Renwick, L.
Greenway, L.	Rippon of Hexham, L.
Hailsham of Saint Marylebone, L.	Romney, E.
	Rootes, L.
Havers, L.	St. Davids, V.
Henley, L.	Sanderson of Bowden, L.
Hesketh, L.	Skelmersdale, L.
Hives, L.	Strathclyde, L.
Holderness, L.	Terrington, L,
Hooper, B.	Teviot, L.
Hylton-Foster, B.	Thomas of Gwydir, L.
Jenkin of Roding, L.	Thomas of Swynnerton, L.
Johnston of Rockport, L.	Torrington, V.
Joseph, L.	Trafford, L.
Killearn, L.	Trefgarne, L.
Long, V.	Trumpington, B.
Lucas of Chilworth, L.	Vaux of Harrowden, L.
Mackay of Clashfern, L.	Whitelaw, V.
Margadale, L.	Wise, L.
Merrivale, L.	Young, B.
Mersey, V.	Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.