§ 3.8 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that the Bill be now read a second time.
A little over three months ago I presented the Security Service Bill briefly to your Lordships' House when we debated the gracious Speech on the Government's legislative proposals. I now welcome the opportunity to present it more fully as it comes to us from another place for your Lordships' consideration, and I look forward to hearing the contributions of others. This Bill is a tightly constructed and workable measure which in the Government's view achieves clear and proper objectives in an area of grave importance and great sensitivity. I hope that your Lordships will reach the same conclusion on examination of the Bill.
However, before turning to the effect and substance of the Bill itself, I should like to place on the record of the proceedings in your Lordships' House the Government's respect for, and gratitude to, the security service. Indeed, I hope that I speak not only for the Government but for all your Lordships. The dedicated and often courageous work of members of the security service is essential in discharging the fundamental duty of any state, which is to protect the safety and freedom of its citizens. Moreover, it is that safety and freedom which allow us to debate this Bill today. I am sure that, whatever views are held on the detail of the proposals in the Bill, there will be general agreement in this House that the security service deserves our support and our thanks.
Let us look now at the Bill's objectives. The Bill is intended to ensure that Parliament establishes the framework within which the security service must operate. It establishes clearly the arrangements for ministerial control of the security service and for deciding on where the balance between the national interest and respect for individual privacy and property should lie.
The Bill sets out to ensure that the security service is able to work effectively and with confidence as to its position under the law, with provisions to ensure that the Secretary of State may authorise actions to obtain information from property only in accordance with the necessary conditions established in statute and under the continuing review of an independent commissioner.
Finally, the Bill provides an avenue for complaints of any individual or any organisation that may feel aggrieved by anything that the service has done in relation to them or their property, together with the opportunity for effective redress. The Bill ensures too that lines of responsibility are clear and it preserves 860 the necessary degree of secrecy on which security depends.
I should like to pause a moment on these references to security and secrecy. My right honourable friend the Home Secretary said in another place that secrecy is at the heart of security. That is a fundamental consideration because it goes directly to the safety of this country and of all its citizens. The intentions of spies and of terrorists, or of others who pose a real threat to the safety of this country as a whole, are not plots in some entertaining work of fiction. If they are not identified, the intentions become actions which can result in appalling human misery and personal tragedy, as all who have witnessed the results of terrorist atrocities will know. If, having been identified, what is known of their plans is known by all, those who threaten the country will have little difficulty in replanning, regrouping and striking again.
Such threats form their substance because they are largely clandestine; secrecy and suspicion are their principal weapons. It is that which makes the security service's task so difficult and so painstaking; and it is that work which can be so easily frustrated to the peril of us all once it becomes known to those ranged against us.
The job of the security service is therefore to help to defend us from those threats. I believe that the whole House would agree with that. But it is not enough to concur with that proposition unless we are prepared also to make the necessary provision for the security service to carry out its work. Terrorism and treachery can only be identified and stopped if their perpetrators believe themselves able to operate undetected and with impunity. The essence of the work of the security service in a democracy is that it must work in secret, largely unnoticed and unsuspected; and it must have access to information which others do not know that it has.
So this Bill does not offer an easy compromise on these central questions of secrecy and security. It cannot do so without also compromising our safety. But what it can do is to offer the uncompromising clarity and safety of the law—provisions which set statutory limitations and safeguards on the work of the security service but which at the same time keep its secrets and allow it to work effectively.
In the context of this difficult area of secrecy, security and safeguards, I should like to explain briefly the effect of the functions set out in Clause 1 of the Bill. The law here must be comprehensive if it is to be effective. There must be no gaps. So it is vital that the provisions are both adequate and complete. For what the statute does not embrace, the security service cannot do, no matter what Ministers, Parliament or the public might want or expect in particular circumstances now or in the future.
The functions in Clause I are the protection of national security—which must, by its very nature, relate to our protection from threats to the nation as a whol—eand the safeguarding of our economic wellbeing from threats posed by those outside these islands. Both terms are recognised in the European Convention on Human Rights; both are used without elaboration in other statutes approved by your 861 Lordships' House and in another place. But in referring to national security the Bill identifies clearly, and I believe helpfully, the particular concerns of the security service. This, the Bill says, is what the security service is particularly about. It is about protecting us from threats from espionage, terrorism, sabotage, the actions of foreign agents and from the subversion of our parliamentary democracy. The central aspects of the security service's work are thus made clear to Parliament and the public. As my right honourable friend the Home Secretary said plainly in another place, within these functions as drafted in the Bill, the narrow party-political interests of the Government of the day have, and in law can have, no part to play in deciding on the necessary involvement of the security service.
These are matters to which your Lordships will wish to pay careful attention, but I believe you will conclude that the objectives of the Bill, and the responsible objectives of Parliament in putting the service upon a statutory basis, are effectively and well achieved.
I turn now to the way in which the Bill makes provision for ministerial responsibility for the security service. The Bill preserves and reinforces the clear lines of responsibility to the Secretary of State and of his accountability to Parliament. This is the second fundamental consideration which governs the operation of the security service. The fact that the service must operate in secrecy—the other fundamental consideration—makes clarity here all the more important and must govern the way in which we approach the proposals of those who would seek alternative or parallel structures.
We listened with great care, and thought hard over many months, about what has been said in this House—just over a year ago—and at other times both here and in another place about possible alternative models for the supervision of the security service. We also examined closely the arrangements and experience of other countries. As the Bill makes clear, we concluded that in this country the responsibilities of the security service and the structures of its governance required us to maintain the arrangements established through successive administrations that the security service must continue to be answerable directly to the Secretary of State and to the Prime Minister and that those responsibilities should not be shouldered by or devolved to others.
Those who have looked carefully at the long and lively arguments in another place may well be driven rapidly to the same conclusion. An assortment of bodies, including a parliamentary Select Committee, a security review committee of Privy Counsellors, a commission and various numbers of commissioners, inspectors general, or non-executive directors have been proposed: we shall no doubt have opportunities to look carefully at such proposals.
But those who advocate such alternative structures must, in my judgment, address and overcome the fundamental paradox which goes to the heart of the work of the security service. The deeper such bodies become embedded in receiving and reviewing the work of the security service, the less they can say to the outside world without compromising that very 862 work on which the country depends. The less the body says to the outside world, the less it is able to perform convincingly the public function for which it was established, the less credibility it has as a public watchdog and the greater is the temptation to intervene in the operational responsibilities of the service or the overall responsiblities of the Secretary of State. Those are not easy matters and I look forward to returning to them. But aside from all the detail and aside from the specified authorities which such bodies may have for some of your Lordships, I believe it is right to make clear that the government concerns go deep because they go to the fundamentals of the operation of the service and the burden of responsibility for that work in our democracy.
Some people have sought to escape those problems by asking whether it is really necessary to guard so closely information about the work of the security service. "Surely", it is said, "these things are well enough understood by our enemies; so why should they not be discussed within the forum of a responsible oversight body?" Or they seek to distinguish between particular operations and the policies, priorities and resources of the service.
As I have said, the importance that the Government place on maintaining tight security in those matters springs not from some obsession with secrecy for its own sake but from a sober appreciation of the real dangers. Of course sophisticated hostile intelligence services may think that they are aware of the sorts of methods the security service may employ against them; but that is very different from knowing what the scale of the effort is and how it is distributed. There is a fine line between success and failure in espionage operations. To possess such information about our defences could give a hostile intelligence service exactly the advantage it needs to tip the balance in its favour. The same is true of terrorist organisations. Such groups may be in little doubt that the security service is ranged against them. But there is a world of difference between deducing that and being presented with a picture of the true extent and thrust of the security service's operations, even if that picture is painted with a broad brush. It would surely be irresponsible to show our hand to terrorists in that way.
I think your Lordships will find too that as our debates progress the apparent clarity between policy and operations will quickly disappear. There is no such obvious distinction in practice. Policies cannot be divorced from the way in which they are achieved. Resources are ultimately spent on the ground, not on a balance sheet. A body with powers of revision and oversight cannot be left outside the pale; nor can it be given some broad generalisation and no detail. If there is, as the Government believe that there must be, a barrier of secrecy amid the security service, no effective oversight body could accept being brought within the barrier, only to be corralled into a corner of the compound.
There is nothing new in the Government's position; we have steadfastly resisted any kind of confusion in that area. Certainly, the existence of a service which must operate clandestinely and in total secrecy raises peculiar and particular difficulties for 863 any democracy. We must face that squarely. The actions, operations, priorities and organisation of the service cannot be openly held up to public scrutiny without destroying what we must protect. We concluded that the honest approach is that the line of accountability must be structured in statute as it is in practice.
There are other questions too which I believe the Bill resolves. How is it possible to allow individual grievances against the security service to be investigated and remedied without providing a structure in which your enemies can find out whether you know what they are up to? How can such matters be considered independently in a judicial forum without individual adjudications unwittingly jeopardising the overall protection of the security of this country? How could such a system avoid usurping ministerial responsibilities, while ensuring that people's complaints are not overlooked? Above all perhaps, how can we be confident that that work is being carried out responsibly and independently?
I hope that your Lordships will find that the proposals we have made in the Bill provide the answers. They do so through the establishment of a commissioner and of a tribunal with powers of adjudication and investigation and the power to publish an annual report. Together, those represent full and effective means of dealing with grievances and complaints without revealing the secrets of the service or usurping the responsibilities of Ministers. They allow the expertise of a senior judge to be brought to bear on crucial issues, without involving different courts and different judges in the operational detail of the work of the service, which it is not their role to assume. In that way the Bill goes a long way towards settling the debates and discussions of recent years about the work of the security service, its responsibilities to Ministers and the means by which complaints can be remedied. The Bill steers a steady course through the constitutional and practical difficulties of legislating for the security service and provides a sound basis for its future. I commend the Bill to your Lordships.
§ Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 3.26 p.m.
§ Lord Elwyn-Jones
My Lords, I am sure that the whole House will agree with the noble and learned Lord the Lord Chancellor as to the sensitivity and importance of the matter that we are discussing. My noble friends and I readily acknowledge that our country needs a security service to fight against international terrorism and espionage. We also agree that its members and those who work for it should be sustained in that task. But—and it is an important "but"—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 and its safeguards of the liberty of the subject. To sacrifice the latter for the former would not only be unacceptable; it would diminish our security and not strengthen it.
864 In our view unhappily, in place of the unity which should exist if the matter had been properly conceived and developed, the Bill in its present form fails to achieve that balance. Among its other serious defects, which we shall examine in great detail during the various stages of the Bill, is that it makes no provision for parliamentary accountability or for any independent scrutiny of the activities of the secret service. Nor does the Bill provide adequate safeguards against abuse of the considerable powers that it gives to the secret service. Those powers, alas, are only vaguely and imprecisely defined in the Bill. Clause 1(1) provides:There shall continue to be"—so it is a continuance and not a new creation; I do not object to that need for a continuance of a security service—Security Service…under the authority of the Secretary of State".The Home Secretary is to be the supremo. His authority will be immense. Noble Lords will recollect the provisions of Clause 3(1):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".The issuing of the warrant is not to be subject to any judicial supervision or authority; it is to be a purely administrative decision taken by the Executive. It is breathtaking in its provisions. As I have said, no entry or interference with property shall be unlawful if it is authorised by the Home Secretary's warrant. By that warrant the Secretary of State gives to the security service the power and freedom to commit acts which, without statutory authority, would, or certainly could, amount to trespass, burglary and possibly criminal damage.
The words,No entry on or interference with property",merit consideration. How far will "interference with property" be permitted to go? Will it entitle and enable the security service employees to cause damage to private property, to force open cupboards, drawers and places of that kind in homes or offices? How far does "interference" lawfully go under the provisions of Clause 3(1) of the Bill? Would it include, for instance, placing bugging or other surveillance devices on someone's property?
As the Bill stands, there is hardly any limitation on the potential powers that are to be given, short of criminal assaults. No limitations are spelt out on what the security service can do under its very wide remit in the terms of the Bill. The Bill gives very extensive powers indeed. How far does "interference with property" permissibly go in accordance with the terms of the Bill? Perhaps the noble and learned Lord the Lord Chancellor will assist us in answering that question.
The issue of the warrant is not to be subject to any judicial authority. It is to be solely an administrative decision taken by the Executive. When one considers the breadth of these proceedings, while it is the case that MI5, as the security service has been known until now, is acknowledged to operate against espionage, terrorism, sabotage or subversion, Clause 1(2) of the Bill introduces a new—for these purposes at any 865 rate—and undefined concept of the protection of national security. The clause says:The function of the Service shall be the protection of national security".That is not defined. There has, I think, been no attempt to define it.
Clause 1(2) of the Bill goes on:The function of the Service shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means".That, again, is an enormously wide provision. Does it cover ordinary political activities—the activities of organisations or society—which are critical of some of our political institutions? How far is undermining parliamentary democracy by political means deemed to go? Are the words "or industrial means" intended to be aimed at possibly lawful strikes in given situations? Potentially they may, given the width of the language.
Perhaps it is as well to bear in mind what the European Court of Human Rights said in the case of Leander v. Sweden:Law has to be sufficiently clear in its terms to give ordinary citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to secret and potentially dangerous interference with private life".In my submission, Clause 1(2) fails to achieve that standard.
In February 1985 the Government produced a White Paper on the interception of communications which may or may not be a pointer to the width and embrace of these provisions. It provided that the Secretary of State may issue warrants on grounds of national security if he considers that the information to be acquired under the warrant is necessary in the interests of national security, either because of terrorist, espionage or major subversive activity, or in support of the Government's defence and foreign policies. Is the embrace now to be deemed as wide as that? Shall we bravely criticise government foreign policy in the face of the possible allegation that it ought to be susceptible to the interference of the security service? Perhaps that part of the White Paper has been abandoned or its intent has been foregone.
I found it disturbing, reading the record of proceedings in another place on the Bill, that an amendment that the security services should be,specifically prohibited from monitoring legitimate advocacy, protest or dissent",was opposed by the Government and defeated. Not a very good augury!
The Bill also provides in Clause 1(3):It shall also be the function of the Service to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands".How is it proposed that the power should be exercised by the security service? What does that role of the security service involve?
In another place the Home Secretary stated that a threat to our oil supplies would be a reasonable example of the circumstances in which Clause 1(3) of the Bill might be put into operation. What, in those circumstances, would the representatives of the 866 security service be empowered to do? Would they be empowered to engage in the whole range of interference and entry into property and the rest of it of those involved in the issue; namely, tapping telephones and activities in relation to the embassies of countries that may be involved in such challenges to our economic well-being? How far will the powers go? The provision conjures up somewhat alarming prospects. It is essential that the Government should make clear to Parliament the extent of the powers that we invest legally, not covertly, in the security service in that and other domains.
We welcome the provisions of the Bill for a security service commissioner and a tribunal to investigate complaints. One of the saddest and gravest features of present arrangements is that those adversely affected by the operations of MI5 felt they had no one to complain to. One most distinguished Member of Parliament who was subjected to its activities made that point very forcefully to me.
At any rate, there is an attempt to fill the gap with the provision of the commissioner and the tribunal itself. Unfortunately, their role and powers are limited. As I understand it, the tribunal cannot inquire into the merits of the activities of the security service as regards individuals or organisations; in other words, as I understand it, it cannot enter into the crucial inquiry as regards whether the action taken by the security service in a particular case was justified.
In this country where there is no freedom of information Act or privacy Act and the data protection laws are very limited, the possibility of the individual citizen knowing or discovering that the security service has its tabs on him, is holding a file on him, or has secretly vetted him, is remote. The decisions of the proposed tribunal and commissioner are not appealable or liable to any review by the courts, even on a question of law.
As I said in opening—the noble and learned Lord the Lord Chancellor referred to this issue—there is an absence from the Bill of any safeguards, by way of independent scrutiny, for the activities of the security service and there is an absence of any scrutiny against abuse of powers given to the Executive by the terms of the Bill. There is no provision for a parliamentary check; there is no independent oversight or supervision of any kind. The noble and learned Lord the Lord Chancellor was good enough to say that that would be investigated in due course, although he appeared to think, at this stage at any rate, that it was not necessary.
Is it not the case that we are the only Western democracy which has failed to bring its security service under any kind of supervisory control? It is, I believe, the case that our allies, the United States, Australia and Canada, all have systems of oversight. These are defined precisely. They are valued, in part, because they help to promote public trust and confidence in their security services. Why should we be denied a similar protection for the security service and a similar protection for the citizens of this country who might be affected?
We can examine in Committee what kind of oversight would serve us best in ns of this 867 parliamentary democracy. There will clearly be much to debate in the consideration of this Bill, particularly as it comes before the House in the context of the Official Secrets Bill which we shall be discussing next week. This Bill is indissolubly linked with the Official Secrets Bill. That Bill also raises very serious problems as regards the security and liberty of the subject.
I appreciate that this is an important and sensitive field, but regrettably I must repeat my view that the balance between the protection of the security service and its activities and the liberties of the subject in this country has not been established by the terms of this Bill.
§ 3.45 p.m.
§ Lord Hutchinson of Lullington
My Lords, the noble and learned Lord the Lord Chancellor introduced this Bill in a most sombre manner. It is a sobering thought that this House is debating for the first time ever the role of those to whom we give the responsibility of protecting the security of the nation. The powers we give are extensive. They are operated necessarily in secret and they affect inevitably the rights and freedoms of the individual. Those rights and freedoms were significantly given no mention by the noble and learned Lord in introducing this Bill.
The noble and learned Lord the Lord Chancellor introduced the Bill in a most authoritarian address, if I may say so. This debate is therefore unique and of great significance. This Bill will settle for the foreseeable future the manner in which we, as a civilised and mature democracy, consider this crucial area of our society should be structured. On so important an issue this House should surely be able to find a responsible and sensible consensus, particularly if we have what is now described as a listening Lord Chancellor.
I wish to echo the tribute which has been paid to the courage and skill of those in the service, particularly in the area of counter-terrorism where their efforts have been quite outstanding. We must congratulate the Government on putting MI5 on a statutory basis at long last. We should particularly welcome the complaints procedures proposed in Clause 5 and Schedule I which follow in form those in the Interception of Communications Act which was so recently before the House.
This Bill of course is not the spontaneous product of an enlightened administration. It is the pressure of the European Court, the threat of decisions to come and the humiliations of the Spycatcher saga which are the true begetters of it. We have come a long way from the days when one was told in court that MI5 and MI6 did not exist and that Curzon Street, Cheltenham and Cyprus had no special significance. Indeed let it be not forgotten that the persistence and courage of the independent Bar fighting for the individual's civil rights against executive power in a long series of cases has had an important input into the appearance of this Bill and that of the Official Secrets Bill to come.
This Bill must be judged against the backdrop of recent history. That history reveals a roll call of 868 disloyal members of the two services and a flood of books disclosing iniquity and incompetence. It must also be judged against the flow of leaks, notably to Mr. Chapman Pincher, the turnover of directors-general—five in 10 years—the internecine warfare between MI5 and MI6, the repeated refusal of juries to convict when they perceive that the public interest demands acquittal, and the series of reports, White Papers and draft Bills. The Franks Report was preeminent among the reports. All of that has given rise to an intelligent, informed and concerned interest in the activities of MI5, as well as a parallel damaging degree of speculation.
Then there have been the decisions of the courts. Public confidence was seriously shaken by the expensive pursuit on the part of the Government of a glaringly hopeless proposition of principle and of law. The Vice-Chancellor described that proposition as making the law look an ass, and as one which, if approved, would have brought the law into disrepute.
The claim for the absolute protection of the security service was described by Mr. Justice Scott as one which could never be achieved this side of the Iron Curtain. The Judicial Committee of this House has laid it down that the protection of official information in civil law depends not on the say-so of the Executive, but on the consideration of the public interest. As the noble and learned Lord, Lord Elwyn-Jones, has already mentioned, the European Court has ruled that the citizen is entitled to know the legal limits of the state's interference with his freedom and to some guarantee against any abuse of power by the Executive.
Finally, we have the evidence from those who have worked in the service of the behavioural problems that arise from the very nature of that work, which the noble Lord, Lord Dacre—who I am glad to see is taking part in this debate—recently described as:The occupational disease of the secret world, the paranoia bred by the combination of secrecy, introversion and insulation and the variant of pure fantasy".Sir Reginald Hibbert, our last Ambassador to France, has warned of the same dangers and emphasised the desirability therefore of some form of accountability.
All that, I suggest, leads to some clear conclusions. First, the functions of the service must be clearly stated, limited in scope, covered by the rule of law and assessed on something other than subjective judgment. Secondly, the work of the service must be subject to some form of general independent oversight or scrutiny so that Parliament and the people have confidence in its work. Thirdly, the service should be free from political bias or influence and should respect and uphold all lawful protest and dissent.
Does the Bill further those aims? The nub is clearly Clause 1. which deals with the functions of the service. Those functions are set out in five words:The protection of national security",which are followed by examples following the words "in particular". Those five words appear in other legislation and in the European convention. However, when used to describe and embrace the 869 lawful parameters of the conduct of a Minister one is entitled to ask what are the limits of the concept. Are they, as I suspect, as they are at present and have been through recent history: whatever the Secretary of State or the Director General rules that they are?
We have discussed those words before in this House when dealing with the Interception of Communications Bill. The Government accepted then that the words have no legal meaning. They are words which are entirely within the interpretation of the Minister. Clause 3(2) compounds that view, for the Secretary of State may issue a warrant and so make breaking-in or bugging lawful if he thinks that it is necessary to obtain information likely to be of value. There is no judicial control over that vital function and so the matter is purely administrative.
The Franks Report faced up to that situation. Franks said that "national security" was too vague a concept by itself to be of any help in identifying the major categories of information requiring special protection. The report wanted a limitation and suggested that protection should apply only to information likely to cause serious injury to the security of the nation. Therefore I suggest that Clause 1 could be less widely drawn. "In particular" could be replaced by the words "that is" so that what follows defines national security from the point of view of the clause.
The last 10 words of Clause 1(2) also need close inspection. As the noble and learned Lord, Lord Elwyn-Jones, has said, they are enormously wide. Under the concept of subversion—the word used by the noble and learned Lord the Lord Chancellor—do they permit, and should they permit, surveillance of members of lawful organisations such as CND, the NCCL, trade unions and indeed, the Bar, as we know has happened in the past?
Under Clause 1(3) is it really an appropriate function of the service to investigate the intentions of foreigners towards our economy? The words used are:to safeguard the economic well-being of the United Kingdom against threats posed by the intentions of persons outside the British Islands".I ask the noble and learned Lord to enlarge upon that somewhat novel concept at the end of the debate.
Read with Clause 1, Clause 2(4) makes permanent the exclusive oversight of the service by the Secretary of State and the Prime Minister. It sets in concrete the status quo. It insulates the service from all democratic oversight or examination. It means that in this area of huge responsibility and power Parliament and the people must simply say "Trust me" to the Home Secretary and Prime Minister of the day.
Surely the long history to which I have referred proves overwhelmingly that that supervision has signally failed the nation in the past. Information has been given to Ministers only on a "need to know" basis. On a number of occasions both Ministers have been shown to have been misled. The recent case of the unfortunate noble Lord, Lord Armstrong, is known to us all, as are the unforgiveable mess-ups in the Blunt and Bettany cases, in the Burgess and Maclean cases and in the mystery surrounding the case of Stephen Ward.
870 As has already been said, we are the only English-speaking democracy without some independent oversight. Australia has a parliamentary committee and an independent inspector general; Canada has its Security Intelligence Review Committee; the United States has its Senate committee. The Federal Republic of Germany, Holland and Sweden all have similar bodies. We must do what we cart to restore the reputation of the service, remove the public unease expressed throughout the media as to the lawfulness and efficiency of its activities. The service itself, one understands, would welcome some acceptable independent scrutiny.
Perhaps we might have a review committee of selected Privy Counsellors chaired by a Lord of Appeal in Ordinary. The role of the commissioner might be enlarged. The precise form is open to debate. As the noble and learned Lord said, it is not an easy matter. However, I was encouraged by the manner in which he raised the question.
Surely this House, with its wealth of experience in disinterested service to the state, is peculiarly well suited to put forward sensible, workable proposals that could win the trust of Parliament and the people. It is said by the noble and learned Lord that such a body would be either within the magic circle of secrecy, in which case it would be effectively silenced, or outside, in which case it would be ineffective. That is uncharacteristically disingenous. Of course the body would not probe operational matters, any more than domestic police committees do. The structure and management of resources, the recruitment policy, the legality of the operations and the efficiency of its ever-expanding bureaucracy are all legitimate matters for parliamentary concern. After all, it is the duty of Parliament to scrutinise the actions of the Executive. Such a body would act on behalf of Parliament and its very existence as a questioning watchdog would go far to maintain the reputation of the service and allay current anxieties. It would also prevent yet another humiliating excursion to the European Court.
Finally, perhaps I may deal with Clause 4. I ask the noble and learned Lord to explain more fully the duty of the commissioner. Is he merely to satisfy himself that proper procedures have been followed or is he to confirm the operational necessity of every warrant ex post facto? If it is the latter, it is difficult to see how a busy member of the judiciary within the magic circle is ever likely to take a different view. Would it not at least give some comfort to Parliament and to the people if it were the commissioner who authorised the warrant at the very start? In that way the exercise would be subject to some judicial control.
This Bill is very welcome so far as it goes. Perhaps we in this House can extend its provisions further and seize a unique opportunity to put an end once and for all to the controversies and mistakes of the past 30 years.
§ 4.2 p.m.
§ Lord Dacre of Glanton
My Lords, this Bill is intituled:An Act to place the Security Service on a statutory basis",and that is surely a very good beginning. Two years 871 ago I was in Australia and received a copy of the summing-up by Mr. Justice Powell in the Spycatcher case. It was a very long summing up, about 100,000 words, and made fascinating reading. It is the best history that I know of the whole story of leakages from M15 and publication of those leakages over a long period. But one of the points that struck me was that the whole case brought by this Government was rendered vulnerable by the fact that the security service did not have a statutory base and rested on Royal prerogative. It seemed to me that the Government would have had a better case if the security service had rested on statute and I therefore welcome the proposals to rest it on statute as embodied in the Bill.
It was in Australia that the story began or at least that the present stage of it was precipitated. Mr. Peter Wright's deplorable behaviour and deplorable book have caused us all to think about this subject and forced us to ask the question: what kind of a security service do we want? I think that we want the service to be efficient, secret and responsible. Those three conditions hang together. There are some security services in other countries which are efficient and secret but not responsible and there are some people who would like our security service to be responsible at the expense of being secret and efficient. But I think that the three conditions hang closely together. If the security service is responsible, it can afford to be secret and if it is secret, it must be held responsible; that is, accountable. Most of us, knowing the difficulty of their task, want our secret services to be secret, but when the Bill to reform the Official Secrets Act comes up I shall be readier to vote for it if secrecy is related to responsibility.
How can we so relate it? In what circumstances do we feel satisfied that an organisation is responsible when we know that we cannot check its operations because they are secret? I think the answer is that we are satisfied if we are confident through the assurance of independent persons whom we trust that the service concerned is neither out of control altogether nor controlled by a particular party in its own interest.
The revelations of Mr. Wright's book, or rather the fallout which followed that publication, showed the security service of his time to be out of control. It showed a picture of accusations being made within the service against its own chief and against the elected prime minister. I do not believe that there was a shred of truth in either of those accusations and one is therefore inclined to dismiss them and say that they were simply rubbish that can be ignored.
Unfortunately, although we can ignore the accusations in respect of particular persons and circumstances, I do not think that we can altogether exclude the general problem of the hypothetical possibility of such a situation existing. After all, a foreign statesman was forced to resign because he gave his trust to persons who were found to be agents of another government. Then there is the case that I cannot forget of my old friend Kim Philby. But for a couple of accidents—mere accidents, as it seems to me—Philby would have become head of the British secret service. Such things can happen and their 872 consequences are extremely grave. We should have some protection against that possibility.
This Bill provides a mechanism—whether or not it is sufficient is a matter for debate—for the protection of the aggrieved citizen who suffers from the attentions of the security service. But it does not provide a cure for the internal situation that can arise within the service involving members of the secret service or the security service who have doubts about the legitimacy of their own actions or about the loyalty of particular persons and who in consequence, in that closed world, have been led or are directed into irresponsible actions.
I should like to see a safety valve through which the exaggerated fears sometimes verging on paranoia can be evacuated and controlled and real apprehensions, which may be justifiable, can be ventilated and examined. I see no practical way of ensuring that except by the constitution of a non-partisan umpire who can be trusted and whom all political parties are willing to trust without demanding reasons. The security service should be, and should be seen to be, an organ of the nation and not of party. How should that body be constituted? I should not like to be dogmatic in such a matter. I do not pretend that the answer is easy. Many suggestions have been made and objections are possible to all of them.
I remember from my own time in the secret world how distrusted by the service were politicians. They were regarded as leaky vessels. I remember that if a politician came to visit us all kinds of papers were hidden away lest they should be seen and inconvenient questions asked.
No one could have more respect than I have for judges, but judges are interpreters of the law and there must be moments when the security service must operate a little on the margin—perhaps over the margin—of the law. We cannot afford, through over scrupulosity, to allow jumbo jets to be blown up in mid-air or the populations in villages massacred because we are too fastidious to steam open envelopes at short notice.
I see that there are great problems in constituting such a body. Nevertheless, it cannot be an insoluble problem. Other countries have solved it. I feel that we are in an unreformed state, and alone in that unreformed state. With the noble Lord, Lord Hutchinson, I believe that we should face this problem and come into line with other civilised countries, without diminishing the efficiency of the service or its necessary secrecy, to make it responsible in this way. In my opinion the Bill is a step in the right direction. I should merely like it to be carried a little further. I hope that when it comes before us in Committee it can be carried a little further.
§ 4.13 p.m.
Lord Campbell of Croy
My Lords, I should like to thank my noble and learned friend for his clear and helpful explanation of the Bill and its purposes. Noble Lords will recall that I initiated a debate on the security and intelligence services nearly a year ago, having been successful in the ballot for debate. That debate was on 16th March. From what I said then, my noble and learned friend will have guessed that I 873 am broadly in favour of this Bill. Indeed I welcome the move to place the security service on a statutory basis and to provide visible means of control and a system for complaints by the public.
Beside the other functions in which the service is engaged is the important one of countering terrorism. In this it should receive increasing support from the British public. There will be more confidence in its activities if more can be publicly known. It is likely to attract the respect of the public rather than the suspicion which it has often attracted in the past. Of course operations have to be kept secret. However, the existence of the security services—or MI5 as it has been known for many years—has been publicly acknowledged for a long time, nearly 40 years to my knowledge. When I was private secretary to the Secretary of the Cabinet, and at the same time secretary of the first ever Conference of Privy Counsellors in 1955 and was drafting its report and the accompanying White Paper, it was already accepted practice to refer to the security service in public documents.
I hope that the Government will consider from time to time whether they can go further than anything in this Bill; that is to say, to authorise the release of general information about the work of the security service. Such information would have to be carefully prepared to avoid any disclosure of secret operations or methods. However, if that were possible it would do much to reassure the public and to gain their support, especially in the campaign against international terrorism.
There is another benefit that I hope will accrue from the Bill and the new system it introduces. It has not yet been mentioned in this debate. Hitherto, senior members of the service have had no means of responding to criticism, or even to the wilder allegations that sometimes have been made about the service. The new commissioner will be in touch with them. His annual reports will be laid before Parliament. In addition, the service will have opportunities to answer on complaints made from outside under the system of investigation and reporting which is proposed.
The Bill establishes a tribunal and a commissioner. I note that all the members of the tribunal and the commissioner are to be learned in the law. The members of the tribunal are to be lawyers of at least 10 years' standing. The commissioner is to be a judge or former judge. I make no complaint about that. As the noble Lords know, I have the greatest respect and admiration for lawyers. I do not say that simply because most of the speakers in this debate are eminent members of the legal profession. The commissioner and the tribunal are likely to be concentrating on rights in law, involving the liberty of the individual and the use of property.
However, I have two questions for the Government. Can my noble and learned friend tell us why it was decided that no place should be left open, either now or in the future, for a member of the tribunal who is not a lawyer? Secondly, can he confirm that the commissioner and all the tribunal will be brought within the official veil of secrecy? That has in the past been regarded as one of the problems 874 of establishing a body which would carry out any kind of oversight.
Am I right in thinking that the Government cannot estimate with any accuracy at present the number of complaints that are likely to be raised in the first two or three years? There may be quite a lot. Once it is known that a procedure is in existence for the first time, numbers of people may register complaints under the impression that their telephones are being tapped, their houses are being burgled—not by ordinary burglars—or that they or their dwellings are under surveillance without reason, or complain about alleged harassment of other kinds. Much of this will be imagined, I am sure, but it will not simply be coming from cranks. I hope therefore that the Government will be prepared for many, or few, complaints. With the opportunity to complain in this field available for the first time in our history, it must be difficult to foresee the amount of work that is likely to arise.
At this stage I shall make only one comment on the working procedures proposed. I hope that in appropriate cases the tribunal will be able to act with reasonable speed. If months or years pass after a complaint has been made before a finding is reached, much of the purpose and effectiveness of this new system could be lost. I presume that members of the tribunal will be part time. Some of them may be very busy barristers or advocates. I note that as few as two of them can be allocated to deal with a particular complaint. That should help to avoid delays. However, I should be grateful if my noble and learned friend could say something about these appointments today and whether the members of the tribunal will be expected to give priority to these functions in their heavy programmes of work in other fields.
These new arrangements are all for external complaints. I assume that no change is being made in the recently created machinery for internal complaints or anxieties about the propriety of work being done within the service, namely the procedure for a staff counsellor—at present Sir Philip Woodfield, who also covers the secret intelligence services as well.
I listened with care to the noble and learned Lord, Lord Elwyn-Jones. He was worried about the extent of the powers to be granted under the Bill to the Secretary of State in the issue of warrants to authorise entry or action concerning property. But surely that is preferable to members of the security service acting on their own, which I am sure has happened in the past. In future, as I see it, the Home Secretary will have to be satisfied that action is necessary and, when complaints arise. the tribunal can investigate and report whether authority has been exceeded or the tasks carried out improperly. Surely that is better than the service simply acting on its own decision without the warrant of the Secretary of State. I regard the arrangements proposed as improving control and redress where the privacy and property of individuals are concerned.
Now that the security service is to be on a statutory basis, can the Government enlighten us about the future status of members of that service? I refer to 875 career officers of the service, not to agents who may help voluntarily or for reward for periods. Presumably members of the service are not civil servants. They are not part of the home Civil Service. Are they to be Crown servants or are they to be in a separate category of their own? I am ready to wait for answers and explanations when we reach the Official Secrets Bill which we are to consider in a few days time. I perceive that there is an overlap between the two Bills. That Bill in Clause 12 defines "crown servant", but only for the purposes of that Bill, and in its first clause the Bill deals with questions of disclosure of unauthorised information by members of the service or former members of the service. I recognise therefore that issues of status, employment and important matters of rules and obligations affecting the security service will be for general discussion when we come to the Official Secrets Bill.
I end on perhaps a lighter note. On the drafting of the Bill, I note that the Prime Minister is referred to as "him". I confidently expect the Prime Minister to be a "her" for a very long time to come, though I also realise that the Bill is drafted on the principle that man embraces woman.
In welcoming the purpose of the Bill I add a tribute to the men and women who work quietly and efficiently in the security service, because their work is essential for the defence and security of our country.
§ 4.24 p.m.
§ Lord Annan
My Lords, I apologise to the House for not having put my name down to take part in the debate in time. I am grateful to the noble and learned Lord the Lord Chancellor for the way he introduced the Bill by reminding us just what the security services do and how important their work is, particularly in relation to terrorism. It may be that Mr. Salman Rushdie, who has said that this country is in some ways like a police state, will find that he owes his life to the activities of our security services.
I thought that the noble Lord, Lord Dacre, put it entirely right when he said that the requirements of the services were to be efficient, secret and responsible. We have to bear in mind that there are some areas of our national life in which the security services are bound to be interested, even though at first sight it may not be apparent that they should be. For example, the noble and learned Lord, Lord Elwyn-Jones, referred to industrial action. It is well known that since the early 1920s the Russian secret services were deeply interested in fomenting industrial unrest in this country, and it was a perfectly legitimate concern of the security services to investigate such activities.
As has already been said, concern with this matter arose from the Spycatcher case. I welcome the many new safeguards which have been introduced into the Bill, but the noble Lord, Lord Hutchinson, was right when he said that there were very grave irregularities in the 1960s and 1970s. Not by the directors-general of the security services, certainly not by the permanent secretaries of the Home Office, less so by the Home Secretaries of the time. Nevertheless, Mr. 876 Peter Wright, that infamous and treacherous character, said in his book that he was aware that there was a body of some 30 officers who were engaged in irregular activities. On television he later revised that and admitted that he himself was the ringleader in those activities and that the number involved was some half a dozen people, not all of whom by any means were or had been in the security services.
I do not believe that it can seriously be doubted any longer that those activities took place. There is now a wealth of evidence that they did. The activities of these cowboys meant that the Prime Minister and the Leader of the Labour Party were harassed, as were numbers of people, who for no reason at all were put under one kind of suspicion or another. Such activities included the burglary of Lord Goodman's offices. That could be explained in no way other than that these people were operating unofficially.
I have said that there was no question of the directors-general of the security services being involved, but I believe that the directors-general in those days did not live up to the standard that one would have expected in respect of these activities. First, I believe it was a grave error of Sir Roger Hollis to promote Mr. Wright—who was no more than a superior technician—to be a case officer. I believe also that although no doubt the directors-general, Sir Martin Furnivall-Jones and Sir James Hanley, had no official cognisance of what was going on, nevertheless they must have had some knowledge of what was going on. After all, one would expect a director general to know in some detail what the officers in his service were doing. That was a grave error. It is an error to which we have to address ourselves if we are to see that it does not occur again—in so far as it is ever possible to prevent error re-occuring.
I must join those who think that some oversight body is needed in addition to the safeguards proposed in the Bill. We have models before us. There is the very open system in the United States where a congressional committee sits and supervises the work of the CIA and the FBI through public hearings. I have heard officers of those services in America say that, despite all their fears and apprehensions, such congressional supervision has in fact strengthened the hands of those services. Now the services have an opportunity to put their case in public and to campaign for more funds and for better support.
I do not myself think that the congressional model is one which would be acceptable in this country, but I think that we and the Government ought to have given more cognisance to the Canadian way of doing things. In Canada there is a small body, a parliamentary authority, which receives a report and which holds public hearings on the security services. I very much wish that we could have seen in this Bill something akin to that. I must also join those who think that a tribunal entirely composed of lawyers is not necessarily the best way to deal with public complaint. Lawyers are very remarkable men but they sometimes, and particularly when they get on the Bench, seem to have lost all touch with what actually goes on in life.
877 Perhaps I may end by saying this. Seeing the noble Earl, Lord Ferrers, on the Front Bench I cannot refrain from doing what I did in the debate which the noble Lord, Lord Campbell, initiated on 16th March, when I referred to what Shakespeare said in Troilus and Cressida. The noble Earl may remember that on that occasion I quoted a passage in which Ulysses drew the attention of Achilles to the fact that there was a security service which knew everything about the intrigue he was engaged in with his Trojan princess. In that passage Shakespeare referred to the press, which he said never dared to meddle with the security service. Today the press does meddle in these matters and it is no good thinking that you will stop the press wanting to know what is happening.
But today the passage to which 1 want to refer is one in which Ulysses draws attention to the principle which keeps the state secure and on an even keel. It was the principle of degree, and by "degree" Shakespeare meant the acceptance that an Earl is superior to a Baron and that both are superior to commoners. In our day we do not base the security of the State on those principles. Nevertheless, what Shakespeare then went on to say about the situation was interesting. He said:Take but degree away, untune that string,And, hark, what discord follows! each thing meetsIn mere oppugnancy …Strength should be lord of imbecility,And the rude son should strike his father dead:Force should be right: or rather, right and wrong,Between whose endless jar justice resides,Should lose their names, and so should justice too".Justice is not right and it is not wrong. It is somewhere between the two, and never more than in security matters. Security is a very difficult thing. It depends on hearsay and on reports, some of which are false, some of which are partly true and some of which are true. But it is very difficult to establish, and it is precisely because justice in these matters is neither right nor wrong but lies between the two that we need this independent body which can command the support of all parties; and we need it in this Bill.
§ 4.35 p.m.
§ Lord Mayhew
My Lords, happily we have had very little Shakespearian discord in this debate, though I must say that I doubt whether all noble and learned Lords would agree with the strictures of the noble Lord, Lord Annan, on the detachment from life of the legal profession. Nevertheless, there has been a large measure of consensus. I think every speaker has agreed that the three new reforms contained in the Bill are very welcome so far as they go. In particular, the noble Lord, Lord Dacre, so rightly pointed out that at long last—and very welcome, too—MI5 is being put on a statutory basis. Again, as he suggested to the Government, not only would there not have been the Spycatcher case in Australia; there is a great gain in the long run in public acceptance of MI5, from having a statutory basis to being less remote, less mysterious and more respectable. This is something warmly to be welcomed.
In the debate just tributes have been paid to MI5. In the other place some critics of the Bill started off by insisting that an efficient security service was 878 needed by the nation. But then they often went on to show a pronounced hostility not only to MI5 but to any measure to give them the powers they need to fulfil their function effectively. There has been no attitude like that in this House today. Nevertheless, all speakers have had reservations and all speakers have put forward ideas which I am sure we shall be discussing at a later stage.
We have to recognise that MI5 has a unique disadvantage so far as public acceptance is concerned—what I say is obvious but I do not think we always allow for it—namely, the fact that when it fails the failure tends to become public and is joyfully written up by its enemies and traitors, such as Wright and Philby; whereas when MI5 succeeds, when the secret does not leak, when the bomb does not go off, none of us hears anything about it. When we try to assess the merits or demerits of the service we should always bear in mind that we are hearing only one side of the case and that any institution which suffered from this disadvantage would have the very greatest difficulty in maintaining a good public reputation.
But though we welcome the Bill, my noble friends and I say that improvements and changes are needed. My noble friend Lord Hutchinson spelt out a number, particularly the excessive width of definition in Clause 1. I must reveal that he asked me to speak on Clause 1(3) to explain to the House about the economic sabotage of the country, and, nobly, I set my mind to work on that part of the Bill. I have to confess to noble Lords that I do not understand at all what it means, and I noticed that the noble and learned Lord the Lord Chancellor did not speak about it at any length. Far be it from me to suggest that there might be some passage in a Bill presented by the noble and learned Lord which he himself does not understand. But we appeal to him, when he comes to wind up this debate, to set our minds at rest. I simply have no idea at all what it means and what it implies MI5 should do or should not do in connection with that problem.
The major improvement in the Bill which all speakers emphasised, with the exception of the noble Lord, Lord Campbell of Croy, is the need for some kind of watchdog. It is self-evident that Parliament and the public are entitled to ask for safeguards beyond the mere say-so of the Prime Minister and the Home Secretary to ensure that the extraordinary powers granted to the security service are used only in the manner and only for the purposes intended by Parliament.
The noble and learned Lord the Lord Chancellor explained the objections that the Government have. I think that I am quoting him accurately:The trouble is that the more deeply embedded a review body gets in the secret work of the security services, the less they can say without compromising secret operations. On the other hand, the less the review body knows of the secret work, the less credibility it has as a watchdog".I ask with respect whether that does not depend on the kind of review body it is.
I side with the Government against the proposal made by the official Opposition at the Committee stage in the other place. I think that a Select Committee of Parliament has too many difficulties, and I understand the Government's reservations 879 about it. It would be appointed by the Whips; the majority would be appointed by the Government Whips; it might not necessarily have the independence required to fulfil its job. There might be party tensions within a Select Committee. As stated by opposition spokesmen in another place, its powers would be far too intrusive and far too wide, making the operation of the security service infinitely more difficult than at present.
There is also the problem which only the noble Lord, Lord Dacre, had the courage to mention—the question of the loyalty and discretion of politicians. It is a dangerous subject but it is relevant to what we are discussing. I am much less worried about loyalty than discretion. I agreed with the noble Lord, Lord Dacre, who I do not think would rank himself as a politician, when he expressed doubts about the discretion of politicians. Speaking for myself, I am bound to say that if we compare ourselves with members of other professions—for example, the law, medicine, the Church and teaching—we politicians are exceptionally indiscreet. It may be that we are subject to greater temptations than other professions. It may be that a political leak is a great deal easier and more rewarding than leaks of other kinds; but that is the situation. I am speaking of course only for myself.
I know that I am on dangerous ground, but which of us has never met a Privy Counsellor who leaked like a sieve? These are facts of life. Do Cabinet Ministers never leak information? I am saying this not in a negative sense, because I should like to come to the positive point, which is that there are a select group of people who can, slightly on the Canadian model, form a review body acceptable to the Government, acceptable to MI5 and credible to Parliament.
I think that Dr. David Owen was wrong when he stated in an otherwise admirable speech at the Committee stage in another place with regard to the composition of the review body:I agree that we cannot have only old lags, people such as me, who have been in Government. There must be an injection of new blood if Parliament is to feel confident".I doubt that statement. I think that as members of a review committee Dr. David Owen, Mr. Merlyn Rees and the noble Lord, Lord Mason, would be highly acceptable and trusted by Parliament, far more so than young, inexperienced and doubtless ambitious politicians who have not been Home Secretary, Secretary of State for Northern Ireland, Foreign Secretary or a Law Lord. A small committee of four or five such people might solve the problem.
I accept the difficulties that were pointed out by the noble and learned Lord. But is it not possible for such a committee to be given access to as many secrets of the security service as are reasonably necessary in order to supervise policy, finance and administration? Does the noble and learned Lord not think that it would be acceptable if the committee then said to Parliament. "We have been given the information that we asked for and on the basis of that we are satisfied that the powers given to the security services by Parliament have not been exceeded and have not been abused"? It may be that some MPs would still not be satisfied. However, my view is that 880 the overwhelming membership of both Houses would find that solution reassuring. I cannot believe that the Government have strong grounds for rejecting such an idea or that MI5 would not be perfectly happy with it. I warmly urge the Government to think about this possibility. This is not an insoluble problem given good will on both sides.
There is one concession that must be made. It might be that, if there were to be this arrangement, on high level policy decisions there would be a sharing of responsibility between the Prime Minister and the Home Secretary on the one hand and the review body on the other. I ask myself why the Prime Minister and Secretary of State should resent this. Why should they resent using a sounding board, so to speak, that would have an element of bipartisanship and include people with experience that might in some cases go beyond their own experience? I earnestly beg that a consensus be reached in trying to work out a solution such as a review body which is acceptable to Ministers, which is credible to Parliament and which in my view would be a great safeguard for MI5 itself.
§ 4.48 p.m.
§ Lord Mishcon
My Lords, in another place someone very adept both by pen and voice in the use of the English language, and indeed a notable Member of that House, described this Bill in the following language. He said that,The Home Secretary must not try to paint this figleaf of a Bill as though it were a symbol of virility of Freudian proportions".I cannot imitate that language through sheer incapacity to use English in the way that the right honourable gentleman did; but I should like at this-winding up stage of the debate, to echo what has been said about the courage of the security service and what it does for the welfare us all. The existence of a security service such as we have is not in question. However, at this historic moment, a service that is 80 years old is for the first time being brought under statutory control. It is interesting to note that 25 years ago, in the wake of a political crisis, the noble and learned Lord, Lord Denning, stated in a report which many noble Lords will remember:The members of the services are in the eye of the law ordinary citizens with no powers greater than anyone else. They have no special powers of arrest such as the police have. No special powers of search are given to them. They cannot enter premises without the consent of the householder even though they may suspect that a spy is there".That was the position as regards Ministers, although, according to the noble Lord, Lord Mayhew, politicians do not deserve very great respect in regard to the discretion which they show. However, that was the position. It may well be that Ministers were happy to be able to answer every question asked on the security service by saying that such matters are not disclosed in Parliament and put up with the fact that illegal acts were being committed week by week, saying, "We have no responsibility whatever for them".
The Bill before the House correctly puts statutory provision in regard to the security service. Like speakers from all sides of your Lordships' House, we welcome that. However, let us not allow the opportunity to pass without ensuring that the Bill 881 contains the kinds of provisions which the public would expect from us.
I should like to deal first with a matter which has already been discussed, so I shall not spend a great deal of time on it. I refer to Clause 1(3). The noble Lord, Lord Mayhew, has done his best to ascertain its meaning. As he did so at the request of the noble Lord, Lord Hutchinson, one imagines that a lawyer found it difficult to understand and thought that a layman might have a shot at it. This lawyer will attempt to understand the subsection. As part of the function of the service to safeguard the realm against threats posed by the actions or intentions of persons outside the British islands—which is the only way I can understand it—it makes my mind boggle.
I mentioned on a previous occasion an example that would presumably be caught by the subsection. It was that of a perfectly honourable member of a merchant bank advising someone overseas to sell sterling because he anticipated that, after the Budget speech, sterling would drop in value on the international markets. Presumably MI5 is entitled to take action not only to bug the telephone of the merchant bank but also to seek a warrant to search for, and take possession of, any correspondence on such matters. The House must look at the clause most carefully at subsequent stages of the Bill.
I am worried about another provision in the Bill. It has as background great deeds done and tremendous blunders obviously committed. I wonder whether there is another security service where the head was very probably—and I am prepared to say "positively"—accused wrongly of being a spy for a supposed enemy country. I wonder whether that has occurred in any other security service—
§ Lord Annan
My Lords, perhaps the noble Lord will allow me to interrupt. It was done in the United States of America when Mr. Angleton accused Mr. Colby, the head of the CIA, of being a Soviet agent. Mr. Colby sacked Mr. Angleton.
§ Lord Mishcon
My Lords, that appears to be humanly understandable. I reiterate the fact that it was not a question of one person accusing another. In this country we had to have an investigation—however secret it may have been—in order to try to satisfy Parliament that the allegation was not correct. I can think of no other instance of such an occurrence.
I wonder also whether there has been any other inquiry into why a head of government was being investigated with a view to unsettling that government. It was not only Mr. Wilson, as the noble Lord then was; it was also said that Mr. Heath was under a similar threat from MI5.
Against that background I look at the wording of Clause 2(2)(b). It provides that the director-general shall ensure,that the Service does not take any action to further the interests of any political party".I could understand if the Bill provided that it shall be the job of a director-general to ensure that the service does not take any action against the interests of any political party.
882 I remember well the Maxwell Fyfe directive; it was absolutely clear. One does not know why, in order to put it into statutory language, the same wording or a paraphrase should not be used. It is as true today as it was in 1952. It is quite different from the subsection which I have quoted. The directive stated: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".That is excellent language, and I should love to see it incorporated in the Bill.
I wish to deal with an issue which has concerned Members of your Lordships' House on all sides. It has concerned the Cross-Benchers; the noble Lord, Lord Dacre, speaking from the Government Benches; the noble Lords, Lord Hutchinson and Lord Mayhew; and my noble and learned friend Lord Elwyn-Jones. All Members have been concerned to ensure that somehow or another we in this House manage to hit upon a formula which will provide independent supervision of the service. To take one other point, the service spends £100 million per year on the basis of a ministerial note to the Auditor General that the money has been expended—full stop! Is it right that we, the custodians of the public purse, do not see that some sort of independent voice is uttered as to the propriety of that expenditure -not, obviously, in any detail but as a matter of general policy?
I should like the noble and learned Lord the Lord Chancellor to tell us, if he will, whether it is correct as was stated in the other place that three successive directors-general of that service have said that they had no objection whatever to such supervision of a proper kind being invoked. If the directors-general of this very service have no objection on the grounds of security or secrecy, what objection should Parliament have? What objection, if I may say so with deep respect, ought the noble and learned Lord have on behalf of the Government?
Difficulties have been expressed. They were expressed by the noble Lord, Lord Mayhew, in what, as we always expect of him, was a lucid speech. The noble Lord was doubtful about the discretion of Privy Counsellors. Clearly he has met a great number of them and finds that they all leak like sieves.
§ Lord Mayhew
My Lords, I am afraid that I must interrupt. I think, on reflection, that I perhaps got into deep water, provoked by the remarks of the noble Lord, Lord Dacre, who is not a politician. I have to concede to the Government that a review body would be much better composed of people—I mentioned them—who had been Home Secretaries, Secretaries of State for Northern Ireland, Foreign Secretaries, and so on. That would have the confidence of Parliament without worrying MI5 or the government.
§ Lord Mishcon
My Lords, I am not sure whether, when the noble Lord said that he was in deep water in regard to Privy Counsellors leaking like a sieve, that was a self-confession and a personal admission. I acknowledge the noble Lord's desire not to be taken 883 literally on that matter. We are all sometimes driven on by our own eloquence into phrases that we subsequently regret.
The point I wish to make is this. Where was the difficulty found in the Select Committee appointed to deal with defence? We are referring to defence of the realm. That Select Committee has divulged to it—members of all parties—all matters that it requires to consider in regard to defence; the very matters that we are looking at, the defence of our realm. Where was the difficulty in setting up a Select Committee on foreign affairs so that all our secrets of diplomacy could be probed by members of that committee, perfectly properly? Why do we fall down on a Select Committee in regard to security matters when already those committees are in existence?
Perhaps there will be unanimity in the House at subsequent stages of the Bill so that, with government consent as well, a body can be created that is independent and supervisory. I should like to say here and now that that would be considered very carefully on these Benches. We would obviously like to see parliamentarians on that body. We have said so. We would welcome also the possibility of Privy Counsellors being appointed to this mission, if that is the correct way to describe it. If there were to be unanimity as regards a satisfactory independent body, I am perfectly sure that it would be considered very seriously by these Benches. I say that because, before the Bill leaves this House, we want to see that an essential supervisory role is there for the protection of the civil liberties of all of us. At the same time we wish to protect the security of the realm which all of us have at heart.
§ 5.5 p.m.
§ The Lord Chancellor
My Lords, I think I am right in saying that all noble Lords who have spoken in this debate took the view that the Government are right to put the security service on a statutory basis and that this Bill represents a step forward because it does just that.
A number of matters have been raised which I can perhaps deal with briefly. My noble friend Lord Campbell of Croy asked about the number of complaints to be expected. It is difficult to give an estimate. We have some indication from the number of complaints that were dealt with under the Interception of Communications Act. I believe there were 32 applications to the interception tribunal in the period 10th April 1987 to the end of that year. It is obviously the Government's intention that the necessary arrangements should be made for such matters to be dealt with properly.
My noble friend also asked why lawyers have been appointed. That was echoed to some extent by the noble Lord, Lord Annan, who suggested that judges may—I think "may" was the word he used—on attaining the Bench to some extent part with what goes on in life. I do not think that is a view universally shared. In fact, I believe that judges find themselves confronting situations in life which very few of the rest of us actually have to confront. They deal with a great variety of matters.
884 However, perhaps the best answer is contained in the speech of the noble Lord, Lord Annan. He said that we are essentially concerned with justice. It is suggested that those appointed as commissioner and to the tribunal should be from the profession and have had long experience in the provision of justice to their fellows. Therefore, I believe that the proposed constitution is a good one.
The noble Lord, Lord Hutchinson of Lullington, possibly in a reference to matters we shall be discussing more fully on another occasion, referred to me as a listening Lord Chancellor. It is indeed part of my functions and responsibilities to listen and to take account, so far as I can, of all that is said. Perhaps slightly in the same connection, I was interested to hear that a member of the independent Bar, confronted with what he considered a difficult question of law on the construction of Clause 1(3), referred it to the noble Lord, Lord Mayhew.
I should like to say a few words about the provisions of Clause 1(2) and (3). It is to be noted that the functions of the service are, in Clause 1(2), referred to as "protection". Of course it is not the full range of protection with which the security service is concerned, but it is the protection of national security. In particular, it is,protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means".I suggest to the House that, first, it is necessary that that definition, or scope, for the security service should be comprehensive. Indeed, that is a point that my noble friend Lord Dacre mentioned—that if one is dealing with lawyers one does not want to be on the fringe, so to speak, of legality. Therefore, it is very important that the scope of the operations for which the security service is authorised should be set out on the face of the Bill in a way that is likely to cover all reasonable eventualities so that it will be acting lawfully when it is doing what we expect it to be concerned with.
I suggest to your Lordships that it is an aspect of this definition that is important that it be in the positive form of protection. By Clause 1(2) the security service is authorised only to do that which can be regarded as protection. It is therefore perfectly appropriate that when one comes to deal with the possibility of political bias that the noble Lord, Lord Mishcon, dealt with, that should also be a prohibition framed against a positive act, because the whole scope of the security service functions is described positively. Therefore, the correct way to prevent it from exhibiting bias is to say that it shall not be empowered to take any action to further the interests of any political party.
As regards Clause 1(3), I do not share the difficulty that the noble Lord, Lord Mayhew, expressed. The phrases there used are also recognised in the European Convention on Human Rights. I believe that all the words are perfectly reasonable; namely,the economic well-being of the United Kingdomas a whole and not any particular part of it. The economic well-being of the United Kingdom as a whole is to be safeguarded.against threats posed by the actions or intentions of persons outside the British Islands".885 The actions themselves may be important but the intentions that can be discerned may be even more important. If one can ascertain what is intended one may be able to take protective action to safeguard in a way that one would be unable to do if one had to wait to witness particular actions. I suggest to your Lordships that, considering the nature of the problem that is being addressed in this provision, it is addressed well. There must be an obvious risk to the United Kingdom other than physical attack, in the form of an attack on its economic well-being. The nation can be subverted by an attack on its economic well-being as well as by any other kind of physical attack.
§ Lord Mishcon
My Lords, does the noble and learned Lord, with his usual courtesy, care to deal with the point that I tried to make, however ineffectually, as regards the subsection? Obviously the economic well-being of the United Kingdom is affected by the heavy sale of sterling. Does the noble and learned Lord really believe that MI5 would enter a situation where there was heavy selling of sterling as a result of advice given from the United Kingdom?
§ The Lord Chancellor
My Lords, as the noble Lord, Lord Annan, said in another context, the matter may well be one of degree. It depends what is in question. I do not believe that one can answer a hypothetical situation of that kind without knowing the full circumstances. What is required is that the function of the service is to safeguard the economic well-being of the United Kingdom; that is to say, the entity as a whole. I believe that what is referred to in this provision, when one looks at it in the context, is some form of threat. There has to be a threat posed by the actions or the intentions of persons outside the British Isles that have the purpose of subverting the economic well-being of the United Kingdom.
I do not believe that I can deal in this kind of detail with particular examples without a very full account of exactly how far the intention was supposed to go. As I understood the example suggested by the noble Lord, Lord Mishcon, it was related only to a particular transaction. Whether a transaction of that sort would be sufficiently serious to threaten the economic well-being of the United Kingdom as a whole would be open to question.
§ Baroness Seear
My Lords, I am sorry to interrupt the noble and learned Lord, but I do not believe I am alone in still being somewhat confused as regards what is meant by the economic well-being of the United Kingdom. For example, would it include the economic well-being of substantial companies which were threatened by a raider from overseas which was trying to purchase them? What is the criteria by which you know that it is the United Kingdom that is threatened? It is not clear to many of us, and it may be our stupidity.
§ The Lord Chancellor
My Lords, I doubt whether there is any question of stupidity involved. I believe that what may be involved is the difficulty of applying a concept that we perfectly recognise—the economic well-being of the United Kingdom—to particular 886 matters. I believe that is a question that depends on the full circumstances of the case.
The next matter I wish to deal with briefly is the question of accountability. A number of suggestions have been made on this subject and I believe that the principle of what is required was well stated by my noble friend Lord Dacre when he said that the security service would be required to be efficient, secret and responsible. This Bill makes it absolutely plain that the responsibility for the operation of the security service under this Bill goes to the Secretary of State. He is the person responsible. As the noble Lord, Lord Mayhew, explained, his proposals—I believe it is also true of all the other proposals in the different varieties that were put forward—involve to some degree a sharing of that responsibility. We believe that is not correct. It is not correct to share that important responsibility. It should be in the Secretary of State accountable to Parliament.
We see (this Bill makes provision for it) that there should be the possibility of complaint against the operations of the security service by those who believe that they are affected by it. We have provided for that in the tribunal. I believe that is a very important advance and one which would work perfectly well in the context of this democratic institution of which we are proud to be Members. I believe it is right that we should fashion our system to deal with the parliamentary institutions of this country. That is what this Bill does.
The other aspect of this matter is the commissioner. His duties are to be defined in terms of Clause 4 as keeping under review,the exercise by the Secretary of State of his powers under section 3of the Bill. That is the power to grant warrants. The Secretary of State's powers to grant warrants is very closely defined by the terms of Clause 3. Obviously no warrant is justified unless it is in order and necessary,for the action to be taken in order to obtain information which is likely to be of substantial value in assisting the Service to discharge any of its functions".That brings us back to the scope of the service. The second point is where it,cannot reasonably be obtained by other means".I believe that these are the principal and leading provisions safeguarding this matter, though there are other provisions in the clause that your Lordships see.
It is the duty of the commissioner to keep under review the exercise of the Secretary of State's powers under that clause. If a complaint arises in relation to any matter of this kind, under paragraph 4 of Schedule 1:If and so far as the complainant alleges that anything has been done by the Service in relation to any property of his, the Tribunal shall refer the complaint to the Commissioner who shall investigate whether a warrant has been issued under section 3 of this Act in respect of that property and if he finds that such a warrant has been issued he shall, applying the principles applied by a court on an application for judicial review, determine whether the Secretary of State was acting properly in issuing or renewing the warrant".So the actions of the Secretary of State in issuing or renewing a warrant under the provision are within the jurisdiction of the commissioner, who is a person of the highest qualification, as are the others.
§ Lord Hutchinson of Lullington
My Lords, can the noble and learned Lord go a little further on this point? Is the commissioner simply to satisfy himself that the procedures under Clause 3 have been properly followed, or is the commissioner to put himself in the shoes of the Secretary of State and think himself that it is necessary for the warrant to be issued? In other words, does he have to satisfy himself in every case that the operational necessity is there for the issue of the warrant? Those are two different things.
§ The Lord Chancellor
My Lords, I am sure the noble Lord knows at least as well as I do, if not better, what are the proper factors to be taken into account on an application to the court for judicial review. He will know that it goes beyond a mere matter of procedure. For example, the court would certainly entertain the question whether the warrant was within the powers granted to the Secretary of State. It cannot be better put than by saying that the correct approach is the one the court uses to supervise administrative action, applying the principles applied by a court on an application for judicial review. The court is concerned not merely with the procedural aspects but also with the other matters at which, on an application for judicial review, it may look.
One important aspect of the Bill which I should like to underline and emphasise is the provision that the commissioner shall make an annual report to the Prime Minister on the discharge of his functions, and may at any time report to him on any matter relating to his discharge of those functions. Perhaps I may say to my noble friend in passing that, notwithstanding his belief, which I share, the parliamentary draftsmen should use the masculine pronoun on this occasion.
The next point to be made is that the Prime Minister has the responsibility of laying before each House of Parliament a copy of each annual report made by the commissioner under that preceding subsection, together with a statement as to whether any matter has been excluded from that copy in pursuance of the immediate following subsection. That allows for a matter to be deleted if it contains something the disclosure of which would be prejudicial to the continued discharge of the functions of the service. Therefore a full type of accountability to Parliament arises from the report of the commissioner.
These arrangements are the appropriate ones to be made for the scrutiny of the security service in our parliamentary system. I entirely accept that some of those named by the noble Lord, Lord Mayhew, are people of the highest integrity and experience in whom I personally would have the utmost confidence. However, I repeat the point I made at the beginning. The principle here is that one must either be within the security and secrecy of the service or outside it. It does not appear that any of the proposals put forward measure up to that essential principle.
§ Lord Mishcon
My Lords, I hesitate to interrupt the noble and learned Lord again. However, he replied to the noble Lord, Lord Hutchinson, in a way that leads one to believe that the tribunal will sit in exactly the 888 same way as a court would sit when considering an application for judicial review. I am sure he is aware that Schedule 2 specifically says:The Tribunal shall not...give any reasons for a determination notified by them to a complainant".That is hardly the case with a court sitting for judicial review, coupled with the fact that there is no appeal procedure.
§ The Lord Chancellor
My Lords, my answers to the noble Lord, Lord Hutchinson, related to the powers of the commissioner. I was reading from paragraph 4 of Schedule 1. I used precisely the words which are there used. The noble Lord asked me how the commissioner would deal with that matter. That is what I was dealing with.
§ Lord Mishcon
My Lords, the same thing surely applies to the commissioner; or will the commissioner give full reasons to any complainant for the decision? Will there be a judgment in the same way as there would be with a court sitting and operating under the procedure for judicial review?
§ The Lord Chancellor
My Lords, I was asked about the grounds on which the commissioner could interfere and whether it would be only a matter of procedure. My point is different from the one the noble Lord now mentions. The grounds on which the commissioner could do so are the grounds that would apply if he were applying the principles applied by a court on an application for judicial review. That is what the Bill says and that is what I understand to be the position. I believe that it was a proper answer to the question I was asked.
This Bill makes a most important and appropriate legislative response to the desirability of putting the security service on a statutory basis. I do not believe that the need for that is related to any particular case but is something that is desirable in itself. The Bill will help to attain an object to which all noble Lords have subscribed. It therefore gives me particular pleasure to renew my Motion that the Bill be now read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.