HL Deb 27 April 1989 vol 506 cc1373-6

3.34 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I beg to move that the Bill be now read a third time.

As the noble Lord, Lord Mishcon, noted during the Second Reading of this Bill, this is indeed an "historic moment". For the first time in our history the security service is to be placed upon a statutory basis.

The decision to introduce legislation to achieve this has been welcomed on all sides by your Lordships. On all sides too there have been tributes to the courage and skill of the security service and to what it does for the country's survival and well being. Those two common strands have I believe provided the shared landscape against which our debates on this Bill have been held.

I believe that in due course the Bill will be seen to have had a very significant effect on the way the security service is perceived in this country. The legislation will provide members of the service with the reassurance and confidence that only legislation can provide of knowing that their vital work in the interests of the nation as a whole is conducted on the firm basis of statute.

But this Bill will go further than that. It will provide reassurance and confidence too to the citizens of this country. It will reassure them that the security service is there to protect the whole nation and that it has been enabled to do so effectively under proper ministerial guidance and authority. People will know too that Parliament has provided a means for complaints to be investigated without putting at risk the safety or security of the nation.

I should like to pay tribute to the careful analysis and examination which has accompanied the amendments moved by all noble Lords involved, particularly, perhaps, the noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Mishcon and Lord Hutchinson of Lullington. I pay tribute too to the clear-sightedness and wisdom which your Lordships have brought to all our debates and decisions. It would be tiresome for me to recite the names of all those who have participated; but perhaps I might particularly mention the notable contributions of the noble Lords, Lord Callaghan, Lord Mayhew, Lord Allen of Abbeydale and Lord Annan, and my noble friends Lord Whitelaw, Lord Dacre, Lord Thorneycroft, Lord Campbell of Croy and Lord Boyd-Carpenter.

My Lords, with a certain degree of confidence I invite your Lordships to give this Bill a third reading.

Moved, That the Bill be now read a third time.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for the very great attention that he has given to this Bill in all its stages. Indeed, he dealt with it single-handed from the Government side and all through the various long discussions that we have had, moving with agility from the Woolsack and taking two steps (I think) to the left—but not, alas, in any political sense of the word.

During our debates my noble friends and indeed other noble Lords have readily acknowledged that our country needs a security service to fight against international terrorism and espionage, and that its members (who are often placed in the front line of danger in the fight against terrorists) should be sustained in their work. Nevertheless, a balance must be struck between the operational needs of the security service and the need to maintain the values and requirements of our democracy, including its safeguards of the liberty of the subject.

The Bill as it now leaves this House, unamended in spite of many efforts in various parts of the Chamber by amendment to improve it, fails unhappily to achieve the balance to which I have referred. That failure is compounded by the restrictive provisions of the Official Secrets Bill, to which this Bill is closely related, and by the stubborn refusal of the Government to allow in the Official Secrets Bill the defence of public interest.

We welcome the fact that at long last M15 is to be put on a statutory basis. That, it may be noted, still leaves uncovered M16 and GCHQ. Perhaps their turn will come in due course. We shall await events with interest. Therefore as the noble and learned Lord has put it, this is an historic moment which sees a change in the constitutional position of MI5. But I submit that it is an historic moment of which best advantage has not been taken in this Bill.

Nevertheless, we welcome the provisions in the Bill for a security service commissioner and a tribunal to investigate complaints. However, during our discussions in Committee we became aware of the serious limitations that the Bill places on the ability of a complainant to make his right to complain really effective. We regret that the Government have stubbornly ignored many amendments put forward from different parts of the House and in Committee to protect the citizen's liberties and rights. For instance, there appear to be no limitations on what the security service may do under a warrant issued by the Secretary of State on his sole authority.

We submit that the Bill fails to provide adequate and effective safeguards by way of independent scrutiny—and we had a powerful and long debate on that—against abuse of power by the security agencies. The outcome at the end of the day, therefore, is that the British subject is thus left less protected against abuse of executive power than is his equivalent in Canada, Australia or the United States.

There are thus matters in the Bill of which we approve, other matters which we strongly oppose and others which we deem essential but which regrettably have been omitted.

Lord Hutchinson of Lullington

My Lords, I should like to echo and endorse what the noble and learned Lord has said about the general agreement and consensus on the main purpose of this Bill: to recognise at last the existence of MI5 and to put it on a statutory basis.

On these Benches we have welcomed that fact from the start. We have indeed welcomed the provisions for complaints. However, one matter which became overwhelmingly clear during the debates on the Bill was that the present arrangements for accountability and supervision of MI5 have since the last war failed the nation. That is a matter which has never been denied by the Government throughout the passage of the Bill. The sad thing about this Bill, which might have been a landmark in this part of the law, is that it leaves this House with exactly the same provisions for accountability and supervision as have existed since the end of the last war. MI5 still remains accountable only to the Prime Minister and to the Home Secretary.

Support for the principle of some supervising body, both in another place and in this House, came from no fewer than three ex-Prime Ministers, two distinguished ex-Home Secretaries, an ex-Foreign Secretary, an ex-defence Minister, a number of Privy Counsellors and, in this House, a number of persons who had worked in MI5 and—a matter that was never denied by the Government—apparently no fewer than three ex-directors general of MI5 itself; yet the noble and learned Lord remained throughout totally intransigent on this principle. On these Benches we feel that this is a very sad aspect of a Bill that, having passed through this House, could have attracted general approval and enthusiasm. Surely everybody in this House must agree, first, in admiration of the work that is done by the service and, secondly, that the security of the nation is perhaps the most important of all subjects under discussion here.

However, it is sad that the Bill leaves this House with no provision in the sense for supervision or accountability to the public for the activities of the service, and that the noble and learned Lord has remained so opposed to advances which have been made in other democracies throughout the world on this question of the balance. It is a matter to which the noble and learned Lord, Lord Elwyn-Jones, has referred.

Apart from that fundamental sadness, we welcome the existence of this Bill and only hope that these forebodings will not be realised in the future.

3.45 p.m.

Lord Boyd-Carpenter

My Lords, I have more enthusiasm than the noble Lord, Lord Hutchinson of Lullington, for this Bill. First, the Government are to be congratulated on bringing it forward. It marks a very considerable advance in regularising in our constitution the position of our security service. It takes account of the need to arrive at a balance between what are clearly conflicting views. One view is that one should emphasise above all the rights of the citizen. Reference has just been made to the idea of a supervisory body and so on. Another view is the concern that most of us must feel with the need to protect the service from being too closely investigated or publicised in the situation in which it has to work.

We live in an enormously dangerous world. We live in a world in which sabotage, terrorism and spying are as prevalent as perhaps they ever have been. We owe a great deal to our security service. It has in very large measure protected us in this country from the dangers that that situation produces. This Bill strikes a reasonable balance. I feel rather strongly, contrary to what the noble Lord, Lord Hutchinson of Lullington, has said, that the right to know exactly what the service is doing should be confined to the responsible Ministers. With the best will in the world, if one has not only a supervisory body but the staff that such a supervisory body would have to have, one risks breaches of security that might be very harmful. It is right that those who are responsible for the safety of our country or for its governance should be the people, and the only people, able to obtain full knowledge of what is being done. We should trust them, as we have every reason to trust them under all governments, to exercise that grave responsibility seriously.

I support what the noble and learned Lord, Lord Elwyn-Jones, said about the firm and effective conduct of the Bill by the noble and learned Lord the Lord Chancellor. He carried the full burden, as the noble and learned Lord, Lord Elwyn-Jones, has said, of a complicated Bill. The fact that he resisted firmly amendments which in the view of many of us would have damaged the effectiveness of the Bill naturally reinforces our appreciation of the way in which he has handled the Bill. It has been a great success for him. I believe that the Bill is a very considerable achievement by the Government and I wish it well.

Lord Jenkins of Putney

My Lords, although I have taken no part in the proceedings on this Bill, I have followed its course with great interest. It will not entirely surprise noble Lords to know that the noble Lord, Lord Boyd-Carpenter, can hardly contain his enthusiasm for the Bill. It would have been surprising had he been unenthusiastic about it. But the Bill is typical of that example to which I referred just now of being a change rather than a reform.

However, there is one point on which the Bill can reasonably be regarded as being a reform. It is the point to which reference was made by my noble and learned friend on the Front Bench and by the noble Lord, Lord Hutchinson. For the first time we shall have on the statute book an Act covering the security service. That means that, having such an Act, it is open to an amending Bill. That seems to me to be the biggest advantage of the Bill that your Lordships are about to pass this afternoon.

The Lord Chancellor

My Lords, I should like to thank those of your Lordships who have spoken for your kind remarks about the matters on which we have been able to agree. I reckon it as a particular achievement that the noble Lord, Lord Jenkins of Putney, sees in this Bill a real reform.

The arrangements which the Bill proposes are new in respect of the commissioner and the tribunal. However, it would be inappropriate for me to reopen the questions which your Lordships have already decided—and in my view, with all respect, wisely decided—in the course of our discussions on the Bill. Therefore, I renew the Motion that I moved.

On Question, Bill read a third time, and passed.