Intelligence Services Bill [H.L.]

HL Deb 03 February 1994 vol 551 cc1380-414

3.35 p.m.

Report received.

Clause 4 [The Director of GCHQ]:

Lord Wedderburn of Charlton moved Amendment No: 1 Page 3, line 26, leave out ("and").

The noble Lord said: My Lords, in moving Amendment No. 1, I wish to speak also to Amendment No. 2. The object of this amendment is to restore fundamental human rights to the staff at GCHQ but by way of agreements worked out on the ground which may be a more satisfactory way forward. The amendment is narrower than that moved in Committee in this Chamber. I regret that I was unavoidably absent on that occasion. I wish to explain the amendment's argument carefully because this may be the last time that the matter can be considered here, or indeed in another place, before international condemnation of the Government for this episode is finally pronounced.

Your Lordships will know that 10 years ago the Government banned membership of trade unions for GCHQ employees, with immediate effect, using their powers under the Royal Prerogative and under legislation. The Government pleaded the needs of national security and, to some extent, a conflict of loyalties at that place of employment; and required the staff to renounce their union membership immediately. The Government offered cash to those who would do so and threatened dismissal for those who courageously refused. Some employees were sacked, not because they broke or threatened to break any employment obligation or duty of loyalty—that is not alleged against them—but because they insisted on the basic right to be members of an independent union of their choice. Ever since, the Government have sought justifications both on the facts and in law.

On the facts, the Government have said the justification is that there had been some industrial action about four years earlier. However, it took that long for the Government to decide that the only solution lay in a draconian ban on union membership at GCHQ—a membership which had existed for some four decades before that. The Civil Service unions offered then, and offer now, agreements guaranteeing that no such stoppages will interrupt the work at GCHQ, but the Government have refused even to negotiate on that basis.

As regards the law, mainly international law—in fact exclusively so—the Government have been found to be in breach of their international obligations on freedom of association by everyone except themselves. The United Kingdom was among the first to ratify the 1948 Convention No. 87 of the International Labour Organisation—an agency of the United Nations. That ILO convention provides in Article 2 that workers, without distinction whatsoever, shall have the right to establish and … join organisations of their own choosing without previous authorisation". The only exceptions are the armed forces and the police. GCHQ staff had enjoyed those rights for many decades. In 1984 it may be said— some foreign commentators have said this—that they were put on a quasi-military footing.

The Government's main legal argument has been that a subsequent ILO convention—No. 151—dealing with aspects of the right to organise in the public sector, which was ratified by the United Kingdom in 1980, gave the Government an unfettered right, whatever Convention No. 87 had said, to strip civil servants totally of their freedom of association in trade unions in a number of areas. That is the argument which has been advanced repeatedly by the Government. The noble and learned Lord the Lord Chancellor also mentioned it in Committee at col. 276 of the Official Report. It is the bedrock of their case.

Apart from the inherent improbability of the argument—at least as it seems to me, because Convention No. 151 preserves more favourable rights, and Article 19 of the ILO constitution also seems be against the Government—the argument has been rejected by every forum to which it has been addressed over the past nine years. Everyone other than the British Government has come to agree that the argument is wrong. It has been rejected by the ILO Committee on Freedom of Association, by the governing body, by the Committee of Experts and—as the TUC pointed out to the Government last month at the ILO conference—by spokesmen for employers, workers and governmental representatives.

In 1991 an employers' representative said: Even if only 13 workers had wished to make use of their right freely to choose a union, —those were the workers who had been dismissed— it was the duty of the [British] Government to ensure that their freedom of choice was guaranteed". At the ILO conference which is to be held in 1994 the United Kingdom is in grave danger of being the subject of what is known as a condemnation by special paragraph. That is the final condemnation accorded normally, in this agency of the United Nations, only to authoritarian regimes. In its reports, the ILO Committee of Experts has annually, since 1985, both rejected that argument and also deplored the Government's refusal to negotiate. The guarantee of Article 87 has, as the experts put it in their last report in 1992, been seen to be based on a very broad consensus that has emerged in the ILO supervisory bodies.

The ILO Committee of Experts, to which the Government appear not to pay too much attention, is not a scratch team of hack lawyers. Its members include former judges of the international court, judges from national constitutional and high courts, many with experience in labour sections or tribunals, together with eminent scholars in the field of labour relations law. Yet the Government have addressed the same argument to the committee year in, year out, for nine years on the trot.

I thought that there was a touch of irony when I read that the noble and learned Lord the Lord Chancellor had chided the noble Lord, Lord Lester of Herne Hill, in Committee (at col. 277 of Hansard for 13th January) when the noble Lord criticised a decision which had gone against him elsewhere. The noble and learned Lord said: when one loses, one perhaps sometimes holds a less generous view of the quality of the judgment than one would hold in other circumstances". He is right. It is a well known phenomenon. It is perhaps excusable once or twice, but not nine years on the trot. Simply to put aside a judgment which goes against you in every relevant body for nine consecutive years needs some justification.

The amendment suggests negotiation at the place of work, where problems can be solved by agreement between the director of GCHQ and the Civil Service unions—including, as the unions have offered, any problems about continuous operation—as a means by which a step forward can be made. But negotiations must be with real trade unions. Government spokesmen at the ILO have claimed that the staff federation set up in 1984 with sole rights to represent staff at GCHQ is "a workplace-based union" which "operates like a normal union". In his Written Answer of 13th January in another place (at col. 255 of Commons Hansard) the right honourable gentleman the Prime Minister spoke of the staff federation, as other Ministers have, as a: registered trade union for GCHQ staff'. The courts have decided that the staff federation is nothing of the kind. First, it is not registered, because we have not had a register of trade unions for some 20 years. More important, it is not even an independent trade union. Both the certification officer and the Employment Appeal Tribunal have rejected its claim to be in any way independent. It failed to prove that it was free from: the dominance or control of an employer and: not liable to interference by an employer … tendirg towards such control". In giving judgment on appeal last December, Mr. Justice Wood concluded that the federation was at the mercy of management at GCHQ and also at the mercy of the Government. Therefore, he said it: operates under a basic constraint that its continued existence depends upon the approval of the Director". The federation is, and has been judicially pronounced to be, a puppet in the hands of the employers.

Sometimes the Government do not seem to understand why they are seen in such a bad light abroad on this matter. Perhaps they should reflect that it is somewhat unusual these days to find a government with pretensions to democratic values setting up a company union for its own employees and sacking the employees who resist. That reaches back to the notorious precedent of 1852, when masters closed down their works in Lancashire and London to compel their workers to sign what is known as the "document" renouncing trade union membership. However, I hasten to add that the history books disclose that Members of this House honourably went to join the subscriptions list to add to the funds to defend those workers. Sidney and Beatrice Webb described those dramatic events as turning points in the history of the trade union movement.

The Government could mark a turning point now. I beg them to consider doing so very seriously by accepting international standards for their employees at GCHQ and saying to the real unions that it is a special workplace which needs special agreements. Experienced officials of real trade unions are well practised in negotiating and administering jointly agreements suited to the workplace. As a first step on that road, and to avoid further and perhaps final condemnation at the ILO, I entreat the Government to accept this moderate amendment. I beg to move.

3.45 p.m.

Baroness Turner of Camden

My Lords, I rise to support the amendment moved by my noble friend. As he said, it is now 10 years since the announcement of the ban on trade union membership at GCHQ. Last Saturday there was another demonstration in Cheltenham, led by the TUC. I was there. Again we marched through the town with our banners flying. The local Member of Parliament—a Liberal Democrat—marched at the head with my right honourable friend the Leader of the Opposition in another place. Again the people standing on the pavements were largely welcoming and supportive. It was a very well supported and enthusiastic demonstration, although it would have been nice to have been able to say at that demonstration that the Government had at last changed their mind about the GCHQ ban.

The Government persist with this unpopular ban on the plea of national security. I am glad that in Committee the noble and learned Lord the Lord Chancellor dismissed the charge that the Government had acted, as they had, in the belief that trade unionists in general were some sort of threat to national security. However, many ordinary trade unionists feel that their patriotism has somehow been called into question. They constantly cite instances of actual convicted spies who were not union members, and indeed were opposed to joining unions.

The reason, we are now told, is that the Government require continuity of operation and there could be strikes which would disrupt that continuity. In fact, there have been no disputes since 1981, almost three years before the ban was imposed. According to one of the trade unionists from GCHQ who has been steadfast in his refusal to give up his union card—and lost his job in consequence—and who was one of the speakers at the demonstration last Saturday, even in those days cover was provided during the dispute. Moreover, since then times have changed considerably. The Government themselves have made it much more difficult for any dispute action to be called, and the unions, as we know, have offered a no-strike deal.

We are therefore left with a situation in which pure obstinacy seems to be the only reason left to the Government for their persistent flouting of ILO conventions. In Committee it was claimed that the Government had met the desire of the staff for independent representation by government agreement that the staff federation which has been established could join the Council of Civil Service Unions.

However, the Government's own legislation has provided a definition by which a trade union can be regarded as independent. The certification officer who operates under that legislation has refused to certify that that in-house staff organisation is independent. I understand that the certification officer based his judgment on the fact that its existence is dependent upon the approval of the GCHQ director, and the staff had no option to join any other union. Moreover, if that organisation wanted to assert a truly independent right and merge with another union, perhaps a union affiliated to the TUC, it would not be allowed to do so. So much for its independence.

Our amendment seeks to provide that there should be arrangements for consultation with one or more independent trade unions in respect of terms and conditions of employment of persons employed at GCHQ and of the conditions, if any, on which such persons may, if they so choose, become members of such a trade union.

This is a minimalist amendment. It is about as little as can be provided to staff to ensure that they have a real right of choice. Do not the Government constantly talk about how necessary it is that people should have choices in their everyday lives? What could be more important than the choice of an independent union? As I said in Committee, there still remain people in employment who would want to belong to an independent union if that did not endanger their employment. It required a great deal of courage, even back in 1984, for individual staff members to refuse to tear up their union cards and to lose their jobs in consequence. That has happened to a number of former GCHQ employees, who have found it very difficult to get back into any sort of employment.

We really must try to bring about an end to this sorry chapter in the history of British industrial relations. As I said earlier, the amendment moved by my noble friend is about the minimum that could be provided to ensure that people have the rights that they ought to have under ILO conventions. It gives me pleasure to support the amendment.

Lord Lester of Herne Hill

My Lords, it gives me pleasure to support the amendment which also stands in my name on the Marshalled List. I made a full speech at Committee stage. I shall therefore not detain your Lordships for more than a few moments because I have already given my main reasons for supporting the approach.

However, the amendment does not confer any right to engage in or threaten industrial action. As has been said, it is the most minimalist amendment that one can think of. It provides a framework for consultation with independent trade unions at GCHQ. If the Government oppose the amendment, as I suspect they might, I should like to ask the noble and learned Lord the Lord Chancellor two questions.

First, why have the Government not sought to enter into a legally binding collective agreement with the Civil Service unions, giving membership rights but forbidding any rights to take industrial action? I raised the issue at Committee stage, I believe in an exchange with the noble Lord, Lord Tebbit, pointing out that, under Section 179 of the Trade Union and Labour Relations (Consolidation) Act 1992, a collective agreement can be made legally binding with the consent of both parties. If the Government wish to respect membership of trade unions as a constitutional right, I can think of no good reason why they could not make the collective agreement legally binding. Alternatively, if for some reason the Government thought that that approach was inappropriate, why could they not introduce a clause in the Bill giving statutory effect to what I have suggested—that is to say, membership rights but no right to strike?

That is exactly what the Government are doing in another place in the Criminal Justice and Public Order Bill in relation to prison officers. I do not say that I support that measure in another place, but it seems to me to be a perfectly appropriate way of conferring the substance of trade union membership without any of the adverse consequences of strike action.

If there is no satisfactory answer to those questions, I for one will conclude that the situation is a continuation of a narrow-minded, mean piece of bullying of a defenceless group of employees who are dedicated public servants. The best comment that I can make upon it was given by Shakespeare through Isabella's mouth in Measure for Measure when, in answer to Lord Angelo, she said, O it is excellent To have a giant's strength; but it is tyrannous To use it like a giant". If the Government persist in their obstinate position, I believe that only a change of Government will remove this minor but important form of tyranny.

Lord Monson

My Lords, to me, and I should have thought to any fair-minded person, the amendments appear to be a most reasonable and moderate pair of amendments, fully deserving of your Lordships' support.

The operative word in the second and substantive amendment is "conditions". If stringent conditions relating to a continuity of operation are not agreed to, then, reasonably enough, trade union membership will not be permitted. One would not disagree with that. On the other hand, if continuous operation is guaranteed —and the noble Baroness, Lady Turner, in Committee about three weeks ago said that assurances in regard to continuous operation have been forthcoming—there is no problem and no reason not to agree to trade union membership.

It is rumoured that the original ban was imposed at the behest of the Americans at the height of the Cold War. The Cold War is no longer with us, thankfully; and the Americans have not been exactly helpful to Her Majesty's Government over the past 72 hours. I therefore suggest that there is no longer any need to pay too much attention to American sensibilities in this matter.

The Duke of Norfolk

My Lords, I am totally against the speeches so far. The background to my remarks is this. I commanded the mission to the Soviet Army in East Germany. It was called the British Exchange Mission BRIXMIS. We toured Germany and photographed the 20 divisions there. We sent our photographs to the War Office where they were interpreted and used. There were other organisations, but the parallel organisation was GCHQ which listened to what the Germans or Russians were saying.

The point of the Bill is this: is GCHQ an intelligence gathering operation, or is it a non-intelligence gathering operation? It is clearly gathering intelligence and should not be treated differently from the British Services, the Army, the Navy and the Air Force. To impose on GCHQ special conditions for having trade union status is totally inappropriate.

Lord Boyd-Carpenter

My Lords, perhaps I may say how very much I agree with what was said in the last speech. GCHQ is part of the defence arrangements of this country. It was accepted by the noble Lord who moved the amendment that one would not have trade union representation in the police or armed forces. I suggest that the role of GCHQ is absolutely parallel. It is of the greatest importance to the whole of our arrangements for national defence. In my view it would be taking an undue risk to agree to the amendment and to trade union representation. I therefore hope that the Minister will resist the amendment.

Lord Richard

My Lords, before the noble Lord sits down, perhaps I may put this point to him. He says that GCHQ is analogous with the armed forces of the Crown. I hear and understand the point. In that case, why is it not manned by armed forces of the Crown? It is perfectly open for the Government to man it with soldiers if they so wish. They have chosen to man it not by people who are subject to Army discipline but by civilians. We are talking about the right of civilians, not of armed servicemen.

The Duke of Norfolk

My Lords, perhaps I may—

Lord Boyd-Carpenter

My Lords, perhaps I may reply since the remark was addressed to me My point is not whether or not the forces were armed. It is whether they are part of the defence arrangements of this country. It is quite clear—the noble Lord, Lord Richard, knows this as well as I do—that GCHQ is part of the defence arrangements of this country. That, rather than the question of whether they carry arms, is the material point, which he has simply ducked.

The Duke of Norfolk

My Lords, GCHQ is manned by people of sometimes considerable age, many of whom have served in the forces. They retire and go to GCHQ. The forces are, quite rightly, paid a great deal of money at present. GCHQ employment is far cheaper. That is why it is totally inappropriate to make it part of the armed forces.

Lord Richard

My Lords, I had not intended taking part in the debate. However, I am bound to say that I feel somewhat provoked by the remarks of the noble Duke and the noble Lord.

Perhaps I may make the position, as I see it, perfectly clear. We are not talking about the rights or non-rights of servicemen. We are talking about the rights of civilians. If the noble Lord, Lord Boyd-Carpenter, wished GCHQ to be manned by servicemen, the Government would be perfectly entitled to do so. Whether or not those people are armed is, frankly, neither here nor there. The fact is that the Government have chosen not to man GCHQ by servicemen but by civilians. We are therefore talking about the rights of civilians.

Those persons may be undertaking sensitive work, but so do many other people in this country. I merely pose this question. It is conceded that civilians have worked loyally for many years at GCHQ. Why should they be deprived of the rights that other civilians in sensitive areas of our society are granted?

Lord Mottistone

My Lords, I hope not to prolong matters, but at the Committee stage I gave a full answer to what the noble Lord, Lord Richard, has just said. The problem is the potential for divided loyalty from which any trade union member must always suffer between his employer and the trade union. I said at Committee stage that when, 30 years ago, we were considering turning what is now GCHQ into a civilian force instead of having it in the armed forces, we were seriously worried whether it would be right for it to have a trade union.

The reason was that there has been good experience to show that it can come about that the people involved have a problem with not knowing which orders to obey. It is important, and I trust that your Lordships will get on and defeat the amendment as quickly as possible.

4 p.m.

Lord Howell

My Lords, I am bound to say that the last argument is one of the most disgraceful that I have heard advanced in any democratic assembly. I speak as one who has been president of a trade union for 15 years and a member of my union for 50 years. No more patriotic set of people can be found than those with whom I have worked in my trade union. I deeply resent the suggestion—which I am glad to say the noble and learned Lord the Lord Chancellor discounted on a previous occasion—that there is any conflict of loyalty between trade unions and their employers. The noble Lord is really telling us that we should have no trade unions at all because inevitably there will be a conflict of loyalty between a trade unionist and his employer. That is not the case.

Likewise, the noble Lord, Lord Boyd-Carpenter, will not mind me saying that his logic was faulty when he suggested that it would be totally wrong to have trade unions at Cheltenham, and that dealing with high level defence matters is a unique situation. It is not a unique situation. People in the Department of Defence at a very high level, dealing with exactly the same matters, are members of a trade union. No one suggests that the Department of Defence is full of people who are a threat to the safety of the realm. That is a nonsensical argument.

The other point I wish to make in passing is that trade union membership at GCHQ is of very long standing. I defy any Member of your Lordships' House to produce a single incident in the whole of that period where anyone might suggest that trade unionists had a conflict with their employer or the state and where they had acted adversely. The noble Lord opposite shakes his head, and I am glad to see it. I presume that he agrees that no such evidence can be produced.

What it comes down to now is the prejudice which has been rejected by the noble and learned Lord the Lord Chancellor before and in all the speeches we have heard so far, that there is an inherent possibility of disloyalty or treachery on the part of people who happen to be members of a trade union. That is what Members opposite are saying. On behalf of millions of sensible, loyal trade unionists who have served this country well in the forces in times of great peril, I wish to say that we resent that innuendo.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I wish to address the amendment on two levels: first, and most important, on the point of principle. As has already been mentioned, your Lordships debated and disagreed to an amendment to Clause 3 on much the same topic during the Committee stage. It is plain that the purpose of this amendment, although modified, is to traverse the same ground.

It is obviously a subject about which many noble Lords have strong feelings. The principles were debated at some length in Committee, and I recall the noble Baroness, Lady Turner of Camden, saying: We have had a very good debate on this issue".—[Official Report, 13/1/94; col. 278.] I agree with that. Of course, different views were expressed and that is what makes a good debate. I certainly do not object to revisiting the matter now; but I think it is unnecessary for me to repeat what I said at Committee stage. Your Lordships will not be surprised to learn that the Government's position has not changed since we last debated the subject.

The key issue is to ensure the continued effective operation of GCHQ by making it free from external pressures of a kind that took place in the late 1970s and early 1980s. The kind of conflict of loyalty which was spoken of in that connection is the conflict between keeping the operation going and pressure to stop the operation in the interests of a particular trade union dispute.

I wish to make it as plain as I can on behalf of the Government that, in saying what I have just said, there is no suggestion that individual staff at GCHQ were disloyal, nor that trade unionists are inclined to be spies or anything of that kind. There is no suggestion of any treachery of that kind in this. What is suggested is that by the very nature of the arrangement a question is put into the mind of a trade unionist in that situation whether, assuming an instruction were given by the union which would have an effect on the operation of GCHQ, it would be obeyed rather than the requirement of the employer—namely, Her Majesty's Government —to keep the operation going.

It is the Government's firm view that the changes to GCHQ's conditions of service in 1984, which put GCHQ on the same footing with regard to these matters as the other intelligence and security services in the United Kingdom, were absolutely necessary for GCHQ to operate effectively and without risk of disruption.

On that matter, I suggest that the principle which my noble friends Lord Boyd-Carpenter and the Duke of Norfolk enunciated applies precisely. The same conditions apply in GCHQ as apply to the other intelligence and security services in the United Kingdom.

I understand that in the aftermath of the 1984 ban two Civil Service unions' national conferences specifically rejected the idea of a no-strike agreement relating to GCHQ. There were discussions between the unions and the Government in 1992 and 1993. I understand that those discussions took place on a confidential and without-prejudice basis by agreement with both sides. I therefore feel inhibited from discussing the details of what was then suggested.

I believe that the Government have not been obdurate. For example, they have considered the suggestion that GCSF—the staff federation—might affiliate to the Council of Civil Service Unions. That represents a genuine shift in the Government's previous position, while enabling the essential requirements of national security to be met.

My remark at the Committee stage about the treatment by the noble Lord, Lord Lester of Herne Hill, of the decision in the case before the Commission has been referred to by the noble Lord, Lord Wedderburn of Charlton, as my "chiding" the noble Lord. That is about the last thing I would wish to do. I just wanted to put his remarks in context in relation to what he was saying about the Commission or the tribunal, for which I personally have considerable respect, even though from time to time I have found it necessary to disagree with its decisions.

The noble Lord, Lord Lester of Herne Hill, asked me two questions under the threat that if I did not answer them to his satisfaction then fairly drastic action on his part would follow. That at least encourages me to try to answer them. First, with regard to enforceable agreements, I remain of the view that I held last time; namely, that I, for my part, need to see in writing the detail of the agreement in question before I can conclude whether or not it is enforceable at law with the effect to which he referred. Also, I do not believe that it is appropriate to put any provisions in the Bill in relation to GCHQ when, as I explained, the other security and intelligence services are under arrangements of exactly the same kind. In principle the present situation is the right one.

I should point out that paragraph "(a)" in Amendment No. 2 should perhaps be paragraph "(c)". That is a minor matter. The effect of the amendment would be to place a duty on the director of GCHQ to ensure that there are arrangements for consultation with independent trade unions in two respects: the terms and conditions of employment of persons employed at GCHQ; and the conditions on which employees may become members of trade unions. I have to say that those matters are not fully within the director's powers. The general framework of those conditions is laid down centrally, although the director has discretion to vary some aspects. Furthermore, the instruction to change to conditions of service was made not by the director, but by the then Prime Minister in her capacity as Minister for the Civil Service. Consultation on the matter therefore needs to take place not with the director but with the Prime Minister or his appointee. That has already happened, as I mentioned last time, with the meeting on 20th December last year with the Prime Minister. As I said and as the Prime Minister indicated, the Government are willing to discuss any further proposals the unions may have.

My primary purpose in opposing the amendment is on the basis of the principle to which I referred at the outset. I do not know whether or not your Lordships would wish me to go into the legal arguments in detail regarding the relationship between Convention 151 and Convention 87. I believe that the Government have a good argument on that matter and no binding decision has yet been taken that would suggest that the Government's view is wrong. For those reasons I invite the noble Lord, Lord Wedderburn of Charlton, not to press his amendment. But, if he chooses to do so, I hope your Lordships will reject it.

Lord Shaughnessy

My Lords, before the noble and learned Lord sits down perhaps I may ask him, for my own enlightenment despite the legalese, whether the legislation as it stands—unamended —prohibits a civilian employee at GCHQ, whether or not a member of a labour union, from taking or joining industrial action under any conditions?

The Lord Chancellor

My Lords, the legislation does not deal with that matter at all. I explained at Committee stage that it would not be appropriate for this legislation to deal with matters of that sort. With regard to the terms of service, the decision was taken by the Prime Minister as Minister for the Civil Service in the exercise of her powers in that connection, and the question of whether or not those powers were properly exercised was the subject of a binding legal decision al the highest level.

Lord Lester of Herne Hill

My Lords, before the noble and learned Lord sits down, and without seeming, to press my questions too hard, perhaps I may seek clarification. I, for one, am left in a state of puzzlement regarding his answers. As I understand it, the Government regard this as a point of principle and. under no circumstances will allow pressure to be put upon employees of Cheltenham GCHQ by any third party. That I entirely understand. That form of pressure and instruction is normally one associated with threats of industrial action. But I cannot understand why the Government cannot concede the principle of consultation with trade unions while forbidding any pressure of that kind, whether in a collective agreement which they put forward to the unions as their draft or in the form of legislation. That seems to me to leave the Government devoid of any principle and I would be grateful for clarification.

4.15 p.m.

The Lord Chancellor

My Lords, we may be in danger of forgetting the rules of Report stage but perhaps I may ask for leave to answer that question. The situation is that the Government have left open and are willing to discuss with the unions any proposals that they may put forward. I believe that it is not for the director but for the Government to be involved in those discussions, in the person of the Prime Minister.

In answer to the reformulated question of the noble Lord, Lord Lester of Herne Hill, we await the proposals. Those matters are the subject of discussion and there is no point in discussing the matter in the abstract. The principle is perfectly clear and definite. The way in which it might be met is a matter for discussion and a matter for proposal. But there is no point in dealing with proposals in the abstract, except proposals that are actually made. I have said before and I repeat that it is unwise to take a view about the legal effect of documents which are not available and which have not been the subject of proposals.

Lord Wedderburn of Charlton

My Lords, there are two or three matters on which I ask your Lordships to reflect before we decide what to do. I am extremely disappointed with the reply from the noble and learned Lord. I am grateful to him for pointing out that the paragraph should have been "(c)" rather than "(a)". However, the notion that there is grave danger that external pressures from these trade unions—as has been pointed out, trade unions which organise in the middle of the Ministry of Defence—will disrupt the nation's security procedures is about as empty an argument and about as likely as saying that pressures to do so might come from the Carlton Club.

Noble Lords

More likely!

Lord Wedderburn of Charlton

My Lords, my noble friends have other views on that matter; I do not have any view myself. On the technical matter of the amendment of terms and conditions, the remarks of the noble and learned Lord this time compare oddly with what he said in Committee and indeed with other government statements. He said that we cannot accept the amendment because the terms and conditions are not to be discussed or consulted upon with the director. On the contrary, such consultations have taken place in the 40-odd years of the GCHQ. That is not the machinery by which they are fixed. But all sorts of consultations take place and it seemed to us right, in the minimalist amendment that we are putting forward, to see whether we could get conditions at the grass roots, at the place of work where some forward step could be taken on the matter.

My understanding—based upon what was published and having nothing to do with my knowledge (which is nil) of negotiations between the Civil Service trade unions and the Government; it was published and has never been denied and I apprehend it is the understanding of those Civil Service trade unions—is that the Prime Minister, in his interview with them, ended by saying that there were no conditions that they could offer which would satisfy a step back away from the Government's decision.

If that is not so, and if the noble and learned Lord is saying that there are conditions, such as those advanced by the noble Lord, Lord Lester, which might justify the Government taking another look, why do they not say to us, "All right, we think that your amendment is technically incorrect and is not the proper vehicle, but we admit to the spirit of it and we shall go away to see whether anything can be done, either at Third Reading or elsewhere"? I understand that the noble and learned Lord is not saying that. Unless he is saying that, in my view we should divide on the amendment.

4.20 p.m.

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

^* Their Lordships divided:Contents, 84; Not-Contents, 162.

Division No. 1
CONTENTS
Acton, L.	Howie of Troon, L.
Airedale, L.	Jay of Paddington, B.
Archer of Sandwell, L.	Jeger, B.
Ardwick, L.	Jenkins of Hillhead, L.
Ashley of Stoke, L.	Jenkins of Putney, L.
Aylestone, L.	Lester of Herne Hill, L.
Beaumont of Whitley, L.	Listowel, E.
Birk, B.	Lockwood, B.
Blackstone, B.	Longford, E.
Bonham-Carter, L.	Lovell-Davis, L.
Boston of Faversham, L.	McIntosh of Haringey, L.
Broadbridge, L.	McNair, L.
Bruce of Donington, L.	Mallalieu, B.
Carter, L.	Mayhew, L.
Castle of Blackburn, B.	Merlyn-Rees, L.
Cledwyn of Penrhos, L.	Milner of Leeds, L.
Clinton-Davis, L.	Monkswell, L.
Cobbold, L.	Monson, L.
David, B.	Morris of Castle Morris, L.
Dean of Thornton-le-Fylde, B.	Mulley, L.
Desai, L.	Nicol, B.
Diamond, L.	Ogmore, L.
Donoughue, L.	Pitt of Hampstead, L.
Dormand of Easington, L.	Plant of Highfield, L.
Eatwell, L.	Prys-Davies, L.
Ennals, L.	Redesdale, L.
Falkland, V.	Richard, L.
Fisher of Rednal, B.	Robson of Kiddington, B.
Fitt, L.	Russell, E.
Foot, L.	Serota, B.
Gallacher, L.	Shaughnessy, L.
Gladwyn, L.	Stallard, L.
Glasgow, E.	Stoddart of Swindon, L.
Gould of Potternewton, B.	Thomson of Monifieth, L.
Graham of Edmonton, L. [Teller]	Tordoff, L. [Teller]
Grey, E.	Turner of Camden, B.
Hamwee, B.	Wallace of Coslany, L.
Harris of Greenwich, L.	Wedderburn of Charlton, L.
Haskel, L.	White, B.
Hilton of Eggardon, B.	Wigoder, L.
Houghton of Sowerby, L.	Williams of Elvel, L.
Howell, L.	Williams of Mostyn, L.
NOT-CONTENTS
Aberdare, L.	Boardman, L.
Addison, V.	Boyd-Carpenter, L.
Ailesbury, M.	Brabazon of Tara, L.
Aldington, L.	Brigstocke, B.
Alexander of Tunis, E.	Brougham and Vaux, L.
Allenby of Megiddo, V.	Butterfield, L.
Alport, L.	Butterworth, L.
Annaly, L.	Cadman, L.
Archer of Weston-Super-Mare, L.	Caithness, E.
Arran, E.	Caldecote, V.
Astor, V.	Campbell of Alloway, L.
Astor of Hever, L.	Campbell of Croy, L.
Beloff, L.	Carnegy of Lour, B.
Bird wood, L.	Carnock, L.
Blatch, B.	Carver, L.
Blyth, L.	Chalker of Wallasey, B.

Charteris of Amisfield, L.	McColl of Dulwich, L.
Chelmsford, V.	Mackay of Ardbrecknish, L.
Chesham, L.	Mackay of Clashfern, L.
Clark of Kempston, L	[Lord Chancellor.]
Cockfield, L.	Macleod of Borve, B.
Coleraine, L.	Malmesbury, E.
Colnbrook, L.	Mancroft, L.
Courtown, E.	Marlesford, L.
Cox, B.	Merrivale, L.
Cranborne, V.	Miller of Hendon, B.
Crathome, L.	Milverton, L.
Cullen of Ashbourne, L.	Morris, L.
Cumberlege, B.	Mottistone, L.
Dacre of Glanton, L.	Mountevans, L.
Darcy (de Knayth), B.	Moyne, L.
Davidson, V.	Munster, E.
Denham, L.	Nelson, E.
Denton of Wakefield, B.	Newall, L.
Digby, L	Norfolk, D.
Dixon-Smith, L.	Orkney, E.
Downshire, M.	Orr-Ewing, L.
Dudley, E.	Oxfuird, V.
Dundee, E.	Palmer, L.
Eden of Winton, L.	Park of Monmouth, B.
Elles, B.	Pearson of Rannoch, L.
Elton, L.	Peel, E.
Erne, E.	Peyton of Yeovil, L.
Faithfull, B.	Plummer of St. Marylebone, L.
Ferrers, E.	Polwarth, L.
Fraser of Carmyllie, L.	Pym, L.
Fraser of Kilmorack, L.	Rankeillour, L.
Gainford, L.	Rawlinson of Ewell, L.
Gardner of Parkes, B.	Reay, L.
Geddes, L.	Rees, L.
Gisborough, L.	Renwick, L.
Glenarthur, L.	Rodger of Earlsferry, L.
Goschen, V.	Romney, E.
Greenway, L.	St. Davids, V.
Gridley, L.	Salisbury, M.
Hacking, L.	Sandford, L.
Haddington, E.	Seccombe, B.
Hailsham of Saint Marylebone, L.	Sharples, B.
Halsbury, E.	Simon of Glaisdale, L.
Harding of Petherton, L.	Skelmersdale, L.
Harlech, L.	Strathclyde, L.
Harvington, L.	Strathmore and Kinghorne, E.
Hayter, L.	[Teller.]
Henley, L.	Sudeley, L.
HolmPatrick, L.	Swansea, L.
Hood, V.	Swinfen, L.
Hooper, B.	Thomas of Gwydir, L.
Howe, E.	Thurlow, L.
Hylton-Foster, B.	Tollemache, L.
Ilchester, E.	Torrington, V.
Jenkin of Roding, L.	Trefgarne, L.
Keyes, L.	Trumpington, B.
Killearn, L.	Ullswater, V.
Kimball, L.	Vivian, L.
Kitchener, E.	Wakeham, L.
Knollys, V.	[Lord Privy Seal]
Lane of Horsell, L.	Waverley, V.
Lawrence, L.	Westbury, L.
Leigh, L.	Wharton, B.
Long, V.	Wilberforce, L.
Lucas, L.	Wynford, L.
Lucas of Chilworth, L.	Young, B.

On Question, amendment agreed to.

[^* The Tellers for the Not-Contents reported 162 names. The Clerks recorded 161 names.]

4.29 p.m.

[Amendment No. 2 not moved.]

Clause 7 [Authorisation of acts outside the British Islands]:

Baroness Blackstone moved Amendment No. 3: Page 5, leave out lines 41 and 42 and insert ("The power of the Secretary of State to give an authorisation shall be restricted so that any authorisation").

The noble Baroness said: My Lords, in moving this amendment, I am also speaking to Amendments Nos. 4 and 5. The purpose of these amendments is to ensure that the Secretary of State's authorisation for intelligence activities outside the United Kingdom is clearly limited. Clause 7 allows acts to be authorised outside the United Kingdom which might otherwise breach the civil or criminal law in the United Kingdom. As far as I understand the clause, it will do two things. First, it will provide control of the activities of the intelligence services outside the United Kingdom; and, secondly, it will authorise those acts in law so that those involved in illegal acts cannot suffer liability in this country. In fact, most illegal acts abroad would only give rise to liability in this country in very particular and restricted circumstances; for instance, perhaps where the illegal activity was directed at a British subject.

This clause does not of course change what is illegal under the law of another sovereign state. No Act of Parliament passed in this country could make what is illegal into what is legal in another country. However, what is of some concern is that subsection (4) allows authorisation to be given both individually and specifically for acts abroad, but also allows for a general authorisation by description; in other words, a licence to act illegally.

The reality of such a licence is that it is possible, and indeed quite likely, that it will allow the delegation of authority to quite junior officers and at the same time deprive us of the safeguard that authorisation for such acts is given by the Secretary of State himself. This is a controversial and important power and as such should be exercised only by the Secretary of State personally.

I hope that, in responding to this amendment, the noble and learned Lord the Lord Chancellor will not fall back on the argument that the Secretary of State has too little time to authorise individual activities and that therefore he must ultimately simply trust the professional expertise of the heads of the services and indeed of their staff right down, as I have already suggested, to quite a junior level.

I hate to bring in controversial matters of this kind, but if we consider the investigation by Lord Justice Scott into the Matrix Churchill affair, we can see precisely what can go wrong if Ministers do not have a real grip on affairs. If the Secretary of State has to take responsibility for illegal acts, that should ensure a degree of accountability previously absent. After all, that is what this Bill is about.

If the House is to be denied information about operational matters—I shall come back to that question in a later amendment—it is all the more important that this amendment is accepted and that the Secretary of State should be directly responsible for all these activities and for authorising them. We do not accept the view that the noble and learned Lord the Lord Chancellor stated in Committee, that it is enough to rely on the powers of the commissioner who will have responsibility for reviewing the exercise of such authorisation. As we all know, the commissioner is to be a senior judge. Almost certainly he will be primarily concerned with issues of legality. We want to be assured that control of these quite draconian powers is in the hands of the Secretary of State and that, as an elected politician, he is answerable for the use of them. I beg to move.

The Lord Chancellor

My Lords, I believe that reference to "lines 41 and 42" in this amendment is a misprint for lines 42 and 43.

I understood the noble Baroness to be concerned that the Secretary of State should be personally responsible for granting these authorisations. She referred to the present investigation going on under Lord Justice Scott. Your Lordships will not expect me to refer to an unfinished investigation. I prefer to wait until Lord Justice Scott has finished and come to his conclusions before expressing any view in relation to that.

As regards the question which arises in this particular amendment, I would like to point out that under Clause 7(5) of the Bill, An authorisation shall not be given under this section except— (a) under the hand of the Secretary of State". That means personally using his own hand and nobody else's and not by an official, or, (b) in an urgent case where the Secretary of State has expressly authorised it to be given and a statement of that fact is endorsed on it, under the hand of a senior official of his department". Subsection (6) states, An authorisation shall, unless renewed under subsection (7) below, cease to have effect— (a) if the authorisation was given under the hand of the Secretary of State, at the end of the period of six months beginning with the day on which it was given; and (b) in any other case, and that is in any case in which it was done by a senior official acting on his behalf— at the end of the period ending with the second working day following the day on which it was given". In other words, authorisation must be given, as a general rule, by the Secretary of State personally. If, in a very urgent case, the Secretary of State is not available to sign the authorisation, then the procedure in subsection (5) (b) has to be followed. But, in addition, the authorisation itself falls at the end of the second working day following the day on which it was given.

These conditions are intended to address precisely the problem that the noble Baroness raised. I believe that they address the problem as fully as the circumstances could possibly allow.

Turning to the actual amendment, I believe that there may be some misunderstanding of the purpose of Clause 7(4). The effect of subsection (4) as it stands is to give the Secretary of State the power to include conditions or descriptions of various kinds in any authorisation which he may give. The purpose of the subsection was to make quite clear what may not otherwise have been apparent —that the authorisations may vary in kind.

The effect of the amendment is to attempt to turn the all-embracing description contained in paragraphs (a) and (b) into a restriction. It seeks to say that you can only do what you have described yourself as able to do. I would suggest that the subsection as drafted already achieves precisely what the amendment seeks to achieve. Thus, under subsection (4), the Secretary of State may authorise acts of one of the three descriptions specified in paragraph (a); he may address the authorisation either to a particular person or to persons of a specified description, such as any persons who would otherwise be liable for acts done overseas; and he may specify certain conditions.

The noble Baroness's amendment expresses itself as dealing with paragraphs (a) and (b)—that is to say, (a), acts and the descriptions of acts; and (b) refers to the person or persons. The amendment does not address itself to paragraph (c) and I am not surprised. It would be mighty difficult to apply this doctrine to that paragraph. This amendment is trying to turn what is essentially a description into a restriction. As I have said, the test is paragraph (c) and to try to apply this doctrine to that paragraph does not make sense at all. Of course the noble Baroness does not seek to do that. It is very difficult to think of a restriction in this way which applies to a person of a description specified by the Secretary of State. That is about as full a description as you can have and so it is not a very good phrase to have in a restriction. I would ask the noble Baroness whether she is able to envisage a single example of an authorisation which would not fall within paragraphs (a) to (c)—the very ones she intends to be a restriction.

I cannot think of any example, and I have applied my mind to this ever since the amendment was tabled. To allow the Secretary of State to give any authorisation he likes, as described in paragraphs (a) to (c), and then to describe that as a restriction upon him appears to me to be somewhat contradictory. As I have already pointed out, Clause 7 places a number of restrictions on the giving of authorisations and the one that was particularly addressed by the noble Baroness in moving this amendment I have already mentioned; namely, speaking generally, the Secretary of State is required to give authorisations personally. If in very exceptional circumstances that is not possible, it can be done only by a very senior official and in very exceptional circumstances and, if so done, it falls after two days.

We have tried to make these restrictions as important and considerable as the circumstances properly allow. I believe that these restrictions, taken with the others in the provision, ensure that the Secretary of State will not authorise acts lightly but only where there is good reason and where they will be properly carried out. I hope that, in the light of that explanation, the noble Baroness may feel able to withdraw the amendment, on the footing that what she seeks to achieve is sought to be achieved in a slightly different way by the drafting which we have adopted and that our drafting is on the whole more suitable, particularly having regard to paragraph (c).

Baroness Blackstone

My Lords, I am most grateful to the noble and learned Lord for that response. I of course accept that there are a number of restrictions on the giving of authorisations embodied in this clause. I also understand that subsections (5) and (6) create a time limit for these authorisations and also make it absolutely clear that only as a matter of urgency and in restricted circumstances should this power be delegated to a senior official in the Secretary of State's department.

I am also grateful to the noble and learned Lord for his clarification of subsection (4). This amendment was in many ways a probing amendment, to tease out the meaning of that subsection. I am reassured by what the noble and learned Lord has said and I accept that the current wording looks as if it should be satisfactory from the point of view of my anxieties. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 and 5 not moved.]

Clause 10 [The Intelligence and Security Committee]:

4.45 p.m.

Lord Richard moved Amendment No. 6: Page 7, line 40, leave out subsections (5) to (7) and insert: ("(5) The Committee shall make an annual report on the discharge of their functions and shall lay a copy before each House of Parliament together with a statement as to whether any matter has been excluded from that copy in pursuance of sub-section (6) below. (6) If it appears to the Committee, after consultation with the Director-General of the Security Service, the Chief of the Intelligence Service or the Director of GCHQ, as appropriate, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of either of the Services or, as the case may be GCHQ, the Committee shall exclude that matter from the copy of the report as laid before each House of Parliament but shall send a copy of the full report to the Prime Minister without any matters being excluded. (7) In the event of disagreement between the Committee and the Director-General of the Security Service, the Chief of the Intelligence Service or the Director of GCHQ as appropriate, as to the matters which should be excluded from the Committee's report that dispute shall be resolved by the Prime Minister. (8) Any matters not in the annual report as a result of subsection (6) above shall instead be included in a report by the Committee to the Prime Minister.").

The noble Lord said: My Lords, this is a return to the charge after the discussion we had in Committee and I hope that the Government, and particularly the noble and learned Lord the Lord Chancellor, will consider seriously the matters which are the subject of this amendment, which we moved in Committee in substantially the same form. There are now of course some significant differences.

The object of the amendment is to ensure that the committee's report is presented directly to Parliament. It is terribly important that, if this Bill is setting up scrutiny machinery— and it is going to have a committee of parliamentarians to scrutinise the workings of the intelligence services and of GCHQ— the link between that committee and Parliament is an overt one and not merely a covert one. If the report is presented directly to Parliament the link is clearly directly established.

This amendment would also allow possibly sensitive contents of the committee's report to be discussed with the heads of the three services and for sensitive issues to be left out of the report to Parliament—I totally accept that— but to be included in the report to the Prime Minister. I believe that that was something which the noble and learned Lord was anxious about when we last discussed the matter. The amendment also provides for the Prime Minister to adjudicate on any dispute about the content of the report and on what should or should not go to Parliament.

The Bill as drafted fails to give real and substantial control of the work of the services to Parliament itself: so be it. I accept that. The role of the committee, after all, is to represent Parliament and therefore the committee should report directly to Parliament and not to the Prime Minister. It should be clear that the committee is responsible to Parliament and not to the Executive. As such, the report should be so directed. I totally accept, and indeed it is in the amendment, that the annual report of the committee should be very carefully shorn of any information that might damage national security. Currently, Clause 10(7) gives the Prime Minister the right to censor the report if it would be prejudicial to the continued discharge of the functions of the services.

My amendment accepts that matter which could be prejudicial to the discharge of the functions of the services should be taken out of the report before it goes to Parliament. I accept that, but the question is: who decides what should or should not go in? The Bill at the moment might prevent the disclosure of matters where there has been some abuse of the functions of the service or some kind of scandal which still could, on the Prime Minister's view, damage morale and thus the continued discharge of the functions of the services. I am not sure that we should rely only on the Prime Minister's view as to what would be prejudicial to the discharge of these functions. The amendment restricts disclosure only if it would be prejudicial to the continued discharge of the functions of the services. The initial decision as to what should or should not go into the report would be taken by the committee and not left for censoring by the Prime Minister. The amendment puts the committee under a duty to consult the heads of the services before reporting, and then gives the Prime Minister a final right to adjudicate in any subsequent dispute over this.

In Committee the noble and learned Lord the Lord Chancellor opposed this amendment on, among other grounds, the ground that—and I quote from col. 301 of the Official Report of 13th January 1994: So far as the net result of these operations is concerned, it will be much the same". In other words, whether we have the structure which is set out in the Bill or the scrutiny mechanism embodied in my amendment, it amounts to very much the same sort of thing and the noble and learned Lord considers that it arrives at more or less the same conclusion. If that is the case and it is much the same, our amendment would allow a greater input by the committee without risking security issues. Therefore why cannot it be accepted? If it produces much the same result with just as great or as little risk attached to it, why cannot the overt link between the committee and Parliament be accepted by the Government?

The noble and learned Lord also stated in the same debate over our previous amendment in Committee— and I quote from col. 302—that, the full report of the Committee, without limitation and without pulling any punches whatever, should be sent to the Prime Minister. We have taken on board that point and have included it in this amendment. In view of the fact that on the last occasion the noble and learned Lord said that the point did not make very much difference and that since then we have taken on board his point about sending the whole report to the Prime Minister, I hope that he will feel able to accept the amendment in its amended form. I beg to move.

The Lord Chancellor

My Lords, I have reconsidered this matter carefully in the light of the discussions that we had in Committee and out of respect for the care and detail of the arguments that were put forward by the noble Lord, Lord Richard.

I remain of the view that the result of what is now proposed so far as what ultimately reaches Parliament is concerned may not be very different from what we are proposing—that is even more so, given the addition in the amendment. However, it is important to look at this matter in its full context. The first effect of this amendment would be that the oversight committee would report directly to Parliament, rather than to the Prime Minister, after making any necessary security excisions. As I said at Committee stage, it is, quite rightly, the Prime Minister who has overall responsibility for intelligence and security matters. He is the person responsible to Parliament and the country for intelligence and security matters. I believe that, having regard to the nature of these matters, it is absolutely vital that that should remain the case: namely, that it should be the Prime Minister and not Parliament who has overall responsibility for intelligence and security matters. It is the Prime Minister who appoints the members of the oversight committee after consultation with the Leader of the Opposition. It follows, I believe, that it is the Prime Minister to whom the committee should report. It is important that it should be able to do so directly. After all, the Prime Minister has overall responsibility and he, with the help of, and after consultation with, the Leader of the Opposition, appoints the committee. Therefore, it is surely right that the committee should report to him.

Under the Bill as framed, the committee's report to the Prime Minister will then go from the Prime Minister to Parliament, subject only to necessary excisions. Parliament will receive from the Prime Minister the report of the committee (which he has appointed after consultation with the Leader of the Opposition) with only such excisions as are necessary in terms of the Bill as we have framed it.

The second effect of the amendment would be that the committee would consult the heads of agency about matters to be excluded from the version of its report which was laid before Parliament. The Prime Minister would be referred to as required to resolve any disagreement over matters to be excluded. It is a little strange that the noble Lord should seek to include the heads of agency in this process. It is the committee's job to review the expenditure, policy and administration of the agencies, and it would, I believe, be quite wrong for the agency heads themselves to play any role —even a preliminary one—in deciding on how much Parliament should learn of the committee's work. After all, the committee is intended as an oversight committee for the agencies, including the heads of agency. Would that not come close to the agency heads being placed in a position where they could influence the reports of the very committee which is to oversee and act as an independent safeguard on, the agencies and to report on that to the Prime Minister?

Finally, the amendment would have the effect of restricting the committee to one annual report. It would remove its powers to report to the Prime Minister at any time on any matter relating to the discharge of its functions. That may not be an essential characteristic of the amendment for all I know, but, as the amendment is framed, it has that effect. I consider the committee's power to be able to report as and when it feels it right to do so to be an important one. I am not sure of the reason behind the proposal to cut it out, which is why I said that that is perhaps not an essential feature of the underlying idea.

Under the Bill as drafted, the committee would have direct access to the Prime Minister at any time. Apart from the obvious ability this gives it to act immediately on any issue of concern, this power should also encourage a closer and more effective relationship between the committee and the Prime Minister.

On a practical note, I believe that the noble Lord may perhaps have intended to omit subsection (8) of the amendment when tabling it. I am not certain of that. Given the provision in subsection (6) that the committee should forward a copy of the complete report to the Prime Minister, it would seem unnecessary to make separate provisions in subsection (8).

As I have said, I have considered carefully what the noble Lord said in Committee when he tabled a very similar amendment. He expressed the view that Parliament's confidence in the committee depended on a direct link between the committee and Parliament. I understand his concern. But the Bill does, of course, provide links between the committee and Parliament. I do not believe that the additional proposed link is justified. I would also re-emphasise the importance of the direct link between the committee and the Prime Minister. Parliament, so far as I know, has no quarrel with the Prime Minister's overall responsibility for security and intelligence matters. Indeed, it is my belief that it values the fact that it should be the highest Minister in the land who should hold such responsibility. It will, I believe, enhance Parliament's confidence in the committee to know that the committee has direct access, not just to the heads of agency, but, far more importantly, to the Prime Minister himself, not only once a year but at any time on any matter relating to its remit.

Therefore, although I accept that the matter is extremely important and was enunciated very clearly by the noble Lord, Lord Richard, in Committee, and we have considered carefully what was said then, we remain of the view that, in principle, it is the Prime Minister who should be responsible to Parliament for the agencies; that the committee appointed by him with the help of the Leader of the Opposition should be a committee reporting to him as its appointer; and that the link with Parliament should be in the form of the Prime Minister reporting to Parliament what the committee has reported to him, subject only to such excisions as, on his responsibility, he thinks necessary to achieve the purpose of such excisions as stated in the Bill. I hope that, in the light of that explanation, the noble Lord will feel able to withdraw his amendment.

Lord Monkswell

My Lords, before the noble and learned Lord sits down, can he explain to me and the House how Parliament will hold the Prime Minister accountable for the job that he undoubtedly has to do as the head of these activities, bearing in mind that in every other sphere of government activity where a Minister is held accountable, there are other mechanisms for getting information to Parliament about the operations of that department? In this one instance of the intelligence services, there is legally no other mechanism for Parliament to be informed other than through the Prime Minister or, if the amendment is agreed to, by the committee's report direct to Parliament. Unfortunately, if the amendment is not accepted, the only way in which Parliament can be informed is by the Prime Minister.

It seems illogical that a Prime Minister should inform Parliament about acts or omissions in which he may or may not have been involved which would cause Parliament to question his actions. However, there would be a mechanism for Parliament to be given a different view of what was going on if the committee could report direct to Parliament. That would enable Parliament to hold the Prime Minister accountable for his actions.

Lord Chancellor

My Lords, as this question was addressed to me before I sat down, perhaps I should answer it before the noble Lord, Lord Richard, says what he wishes to be done with the amendment.

The whole purpose of this Bill is to introduce new statutory arrangements for the intelligence services and GCHQ, and to introduce a new arrangement in respect of the Security Service. In considering what those arrangements are to be, one has to have regard to the functions of the agencies. There is no point in having a secret service which publicly reports. It is generally accepted that is a rather unsatisfactory arrangement. Therefore, the reporting arrangements must fit in with the idea that there is to be a secret service.

At present the Prime Minister is accountable to Parliament for that service. The Bill enhances the arrangements for that accountability by providing that the Prime Minister should appoint a committee of parliamentarians after consultation with the Leader of the Opposition. That committee is to be responsible for consideration of the expenditure, policy and administration of the services, and will be the extra part of the new arrangement or enhancement. The only important issue between the noble Lord, Lord Richard, and myself on behalf of the Government is whether that committee should report directly to Parliament or the Prime Minister should submit the report of that committee to Parliament. What I say to your Lordships is that a system whereby the Prime Minister has direct accountability to Parliament is better served by an arrangement under which the committee reports to the Prime Minister and he is under a statutory obligation to submit that report to Parliament.

Nobody has suggested—in particular, I include the noble Lord, Lord Richard— that the Prime Minister should be cut out of questions about what should be excised from the report. In the event of a dispute between the heads of agency and the committee, the amendment of the noble Lord suggests that the Prime Minister should be the referee. We all agree that the Prime Minister's role in this matter is crucial. I say that it is more logical to recognise that fact and impose upon the Prime Minister the obligation to lay before Parliament the committee's; report, with only such necessary excisions as the reasons given in the Bill may require, rather than that the committee—not appointed by Parliament but by him—should report directly to Parliament through the Prime Minister. Under the arrangement proposed in the amendment, the Prime Minister would have the opportunity to consider any dispute between the heads of agency and the committee, assuming that was a suitable arrangement in the first place, on what should go in the report.

I suggest to the noble Lord that the answer to his question is that the committee is the additional feature, and that its report will go to Parliament in an appropriate way under the machinery proposed by the Bill.

Lord Richard

My Lords, I have listened to the noble and learned Lord explain again why he thinks that this matter should go to the Prime Minister direct and from the Prime Minister to Parliament, rather than from the committee to Parliament. I find his argument just as unconvincing as he obviously finds mine.

It seems to me that if a committee consisting of, parliamentarians is to be set up, even if it is done by the Prime Minister, as it has to be under the Bill, the object of the exercise is that that committee should exercise some kind of scrutiny over the expenditure, administration and policy of the services. It is there to provide a flow of information from the services on the one hand to Parliament on the other.

It does not seem to me that the fact that it is set up by the Prime Minister detracts for one instant from the object of that committee; nor does it derogate from the function that the committee will have to fulfil. If that is the object of the exercise, one should not forget that the six people on the committee will undoubtedly be carefully chosen by the Prime Minister after consultation with my right honourable friend the Leader of the Opposition. Presumably, they will be people who have already been vetted, or perhaps are so great and good that they do not need vetting, if any such exist in this country. If they do, they are the kinds of people we are talking about.

In those circumstances, the committee can have an important say in what Parliament is entitled to be told. This is nothing to do with the accountability of the Prime Minister for the operation of the services; it is only to do with the flow of information about the services from the services via the committee to Parliament. It seems to me that the formality of the links between the committee and Parliament is important and ought to be expressed.

However, I am conscious of two matters. First, I am unlikely, to put it mildly, to convince the noble and learned Lord the Lord Chancellor of the strength of the argument that I put forward. Secondly, I do not think that this is an appropriate subject on which to divide the House. Therefore, I beg the leave of the House to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Investigation of Complaints]:

The Lord Chancellor moved Amendment No. 7: Page 9, line 13, after ("above") insert ("and paragraph 4 below").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 7 I should also like to speak to Amendment No. 8. The amendments have been tabled in order to make clear the respective responsibilities of the tribunal and the commissioner in dealing with complaints about activities abroad which are alleged to have been committed by the Intelligence Service or GCHQ. The schedule follows closely the similar provisions for the Security Service Tribunal in the Security Service Act 1989 which states that complaints about property will not be investigated by the tribunal but will be the responsibility of the commissioner. This reflects the responsibilities of the commissioner to review the exercise of the Secretary of State's powers to issue property warrants.

In the same way, it is the intention that complaints about activities abroad which are or should have been the subject of an authorisation given under Clause 7 should also be the responsibility of the commissioner rather than the tribunal. This will also reflect the commissioner's responsibilities to review the exercise of the Secretary of State's powers in granting authorisations. The commissioner will be in a much better position than the tribunal to deal with all aspects of a complaint concerning an authorisation, since he will regularly be reviewing the giving of authorisations. The amendments are intended to make the provision clear in accordance with that policy. They are of a technical nature, and I commend them to your Lordships.

The Lord Chancellor moved Amendment No. 8: Page 9, line 22, leave out ("that matter") and insert ("so much of the complaint as relates to the doing of that act")

Schedule 3 [The Intelligence and Security Committee]:

Lord Richard moved Amendment No. 9: Page 13, leave out lines 17 to 28 and insert: ("(2) Information shall be disclosed to the Committee unless the Secretary of State is of the opinion that

1. (a) it is sensitive information;
2. (b) its disclosure to the committee would damage national security; and
3. (c) that notwithstanding sub-paragraphs (a) and (b) above it is not in the public interest to disclose it.").

The noble Lord said: My Lords, this amendment looks at the committee from the other point of view. It is not concerned with what the committee does with its deliberations and conclusions but what information it gets in order to deliberate and reach conclusions. In the amendment we have sought to clarify the situation as set out in Schedule 3 on page 13 of the Bill. We have some anxiety that the committee will not be able to carry out its work properly because of the danger that it may be denied the information that it needs to make proper assessments and judgments. Lest people throw up their hands in horror, I remind them of what I said in relation to the previous amendment. The people who will sit on the committee will be very carefully selected. I would have thought that prima facie it ought to be entitled to see just about everything it thought it necessary to see.

So far, the Government have said very little that reassures me on the point. The schedule is already structured in such a way that the onus is put on the committee to request information rather than that there is a presumption that information is automatically available to it. At the very least, the responsibility for providing information to the committee must be that of the Secretary of State. In our view, he should be the only person able to deny information to the committee.

Since the Committee stage I have thought about the words of the noble and learned Lord the Lord Chancellor, but I have to say that I do not believe that the schedule, as currently drafted, is better. I do not feel that it is appropriate for the heads of the services to have placed upon them the responsibility, in the first instance, of denying information to the committee of parliamentarians. I did consider the possibility that the heads of the agencies might be more liberal in releasing information than some Secretaries of State. On the other hand, even if that were to be the case, it is likely that the Secretary of State would be involved closely in the decision, regardless of the attitudes or leanings of the heads of the agencies or the directors.

What is more important, the necessary act of balancing the need for sensitivity and security, on the one hand, against the need for appropriate accountability to Parliament, on the other, is one that can be exercised only the Secretary of State himself. It is he or she who must account for any refusal to the committee, and ultimately to Parliament itself. Having considered what the noble and learned Lord told us on a previous occasion—we have taken on board some of his helpful words in other ways—we have set out in the amendment the tests that the Secretary of State would need to follow when deciding whether information should be disclosed. To deny a request for information would require the Secretary of State to be of the opinion that the information was sensitive and that its disclosure to the committee would damage national security. I believe that to be right and sensible.

The Secretary of State finally will have to consider whether, despite that danger, it was in the public interest for the information to be disclosed. The tests are not novel. They are extracted from the Government's drafting of the existing clause. We do not wish the procedures to be adopted under the Bill to cause any danger to those who work directly for those services or those who, sometimes at great risk to themselves, assist them in their work. The issue here is not total disclosure; the issue is disclosure to this small hand-picked committee.

What gets from the committee to Parliament, and therefore out into the public arena, is something that we discussed in relation to the previous amendment. Clearly the committee should have access to a greater flow and amount of information than Parliament itself will have eventually, as we know that censorship machinery will be built in to be exercised by the Prime Minister. That is the amendment. It simplifies the existing procedures set out in the Bill. It places responsibility for refusing information firmly on the Secretary of State, and it defines, fairly precisely, the grounds upon which the Secretary of State can refuse the information. I beg to move.

5.15 p.m.

The Lord Chancellor

My Lords, if this amendment is agreed to, I cannot call Amendments Nos. 10 and 11.

I listened carefully to the noble Lord. It is difficult to understand how the amendment is supposed to work. The result of the amendment would be a great inconsistency between the existing provisions of paragraph 3(1) and the amended paragraph 3(2). The amendment proposes that the Secretary of State must disclose information unless it meets all three criteria listed. At the same time, paragraph 3(1) already provides that the heads of agencies may withhold sensitive information. From the description given by the noble I. Lord Richard, I understood that he intended that the heads of agencies should be cut out altogether. However, I may have misunderstood that, and, if so, some amendment of paragraph 3(1) will be required.

As I said, I am not certain that the amendment sits comfortably with the existing text. However, perhaps I may try to deal with the matter on the assumption that the three conditions specified in the amendment should be read cumulatively and be of general application; that is, all three conditions must be met in full before the Secretary of State may withhold information from the committee. I believe that that is the essence of what the noble Lord was proposing. That being the case, notwithstanding sub-paragraphs (a) and (b) above contained in sub-paragraph (c), would have little purpose.

The amendment may be prompted by a misunderstanding of the scope of the Secretary of State's power to withhold information from the committee. Perhaps I may be permitted this opportunity to re-emphasise that the Secretary of State's power in that respect is limited and clearly set out in the Bill. He may withhold only information which it would not normally be appropriate to disclose to a departmental Select Committee but not on national security grounds alone. That is attempting to deal with the fact that this is a special committee operating very much in the area of national security. It will operate as closely as it can to a departmental Select Committee from the point of view of receiving information, but whereas for an ordinary departmental Select Committee national security grounds alone might serve as a proper reason for withholding information, that will not be so in relation to this committee. That is a reasonable and limited provision which will not hinder the committee's ability to fulfil its functions. The Secretary of State is always able to overturn a decision of an agency head to withhold information if he considers it to be in the public interest.

If the purpose of the amendment is to enable the Secretary of State to oven-tile, on the grounds that disclosure did not harm national security or was in the public interest, a decision by the head of the agency to withhold sensitive information, it would limit dangerously the type of information which may, arid often should, be withheld. Sub-paragraph (2) (b) of the amendment introduces a new test into the Bill; namely, that information should not be disclosed if it would damage national security. However, while there are circumstances in which disclosure of certain information could not be said to pose a threat to national security, those same circumstances could be of a nature which might identify and therefore put at risk an individual.

From what the noble Lord said earlier, I am sure that he agrees that it would be wrong to put at risk the life of an individual who is, for example, informing on a major drugs operation, merely because the information requested had no direct consequences for the security of this country. In a large criminal drug operation it might be dangerous if the identity of an individual were to be disclosed. Indeed, we have sad examples of the ruthlessness of people involved in those operations. The noble Lord would not wish to put at risk anyone who was giving information on such an operation.

The amendment places on the Secretary of State the onus for determining which information should be disclosed to the committee. The provision in paragraph 3(2) that the head of the agency may decide to disclose sensitive information to the committee if he considered it safe to do so is the passage to which I referred earlier. It seems odd that there should be any wish to exclude the head of the agency's positive role in that respect, especially when in relation to an earlier amendment the noble Lord argued that the heads of the agencies should be involved closely in discussing with the committee what information should be withheld from the annual report to Parliament (on the basis of a strong working relationship).

The point of note in the Bill is that the Secretary of State may, by virtue of paragraph 3(3) overrule the head of agency's initial decision to withhold information, on the basis that disclosure is in the public interest. That is a useful power. It is a power tending to release information to the committee.

The amendment also deletes paragraph 3(4) which provides that the Secretary of State may withhold information which he would normally think it proper not to disclose to a departmental Select Committee, other than on national security grounds. The guidelines covering the procedures of Select Committees stipulate that a variety of matters, including for example, the advice given by a law officer, matters which are sub judice, legislative proposals 'which are not yet public and information on individuals given in confidence, may be withheld. I can see no reason why the committee of parliamentarians established under this Bill should have greater access in this respect than a normal Select Committee, nor can I see why their functions require them to have access to such information.

I hope that my explanation has allayed some of the anxieties which underlie the amendment. I have sought to deal with the principle of the amendment as the noble Lord explained it; but I must point out that there are certain difficulties with the drafting of it.

Lord Richard

My Lords, I do not believe that the noble and learned Lord has allayed any of our worries but he has certainly exposed the inadequacy of the drafting of the amendment. Therefore, I shall ask leave to withdraw the amendment. I shall take careful note of what the noble and learned Lord said about the drafting. While one does not wish to give any warnings as to what may happen at a subsequent stage, it may be that if we can get the drafting right, we shall return to the matter.

Amendment, by leave, withdrawn.

Lord Richard moved Amendment No. 10: Page 13, line 19, leave out ("it safe to disclose it") and insert ("that the disclosure to the Committee is unlikely to damage national security").

The noble Lord said: My Lords, I do not believe that there is any problem with the drafting of these amendments. Amendment No. 10 is simple. Subparagraph (2) states: The fact that any particular information is sensitive information shall not prevent its disclosure … if the Director-General … considers it safe to disclose it. The amendment seeks to take out the words "safe to disclose it" and to insert the words: that the disclosure to the Committee is unlikely to damage national security". Amendment No. 11 deals with very much the same point, save that it is in relation to line 22 rather than line 19.

We are concerned that the committee will not be able to carry out its work properly because it will be denied the information that it needs. The expressions used in the sub-paragraph are too imprecise. It is not clear what "considers it safe to disclose" may mean. It may mean politically safe rather than the meaning which we assume the Government intend. We should prefer the test to be specific. It should be targeted upon the mischief to be avoided; namely, whether disclosure would damage national security.

As I said earlier, I should not wish any of the procedures adopted under the Bill to be a danger to any of those who work directly for the services or to those who assist them. I remind the House that the issue here is disclosure to a small hand-picked committee. In our submission to the House, these two amendments would make clearer, more precise and therefore more comprehensible the procedure whereby the committee has access to information. I beg to move.

The Lord Chancellor

My Lords, having listened to the noble Lord, I understand that one of the main reasons for moving these amendments is a worry that the heads of agencies and the Secretary of State may withhold information, on some unspecified criteria, which should properly be made available to the committee. I agree that the terms "safe" and "public interest" are somewhat general. But there are practical reasons for the choice of these words in the drafting of the Bill. It is fairly plain that in the context of the Bill, the word "safe" is not used in the sense of politically safe, assuming that there is any such thing. It is used in the sense of safety of the people involved.

It would not be right to replace the test of "safety" by one of national security. There are circumstances in which the disclosure of information would not harm national security, but where it might, for example, put at risk the life of an individual who has given information about a drugs operation to the services. The judgment about whether it is safe to disclose information which comes within the categories of sensitivity listed in the Bill must be left to those most closely involved. Each case must be considered individually in the light of all the relevant circumstances. It is crucial that the head of the agency should be able to decide whether it is indeed "safe", in a particular case, to disclose the information requested.

That does not mean that information which could reasonably be disclosed to the committee will be needlessly withheld. That is very much against the spirit of this legislation. Indeed, as I said on Second Reading, the agencies are very much behind the Bill. They wish it to be enacted because they believe that it will be in the interests of the proper administration of the services and will be for their general benefit.

The first test which the head of agency must apply is whether the information falls into the category of "sensitive information" as defined in paragraph 4. If it does, he must then consider whether it is, nevertheless, safe to disclose it. He has a discretion to disclose it if he believes, in all the circumstances, that it is safe. The Secretary of State may then overrule any decision by the head of agency to withhold information if he considers it in the public interest to do so. Therefore, in a sense, that is directing more information to the committee. Notwithstanding the sensitivity of the information, the head of agency can allow it to be disclosed. The Secretary of State can disagree with the head of agency and can allow disclosure, even against the will of the head of the agency.

The first test which the head of agency must apply is whether the information falls into the category of "sensitive" information as defined in paragraph 4. If it does, he must then consider whether it is nevertheless safe to disclose it. The Secretary of State may then overrule any decision by the head of agency to withhold information if he considers it in the public interest to do So.

Amendment No. 11 seeks to delete the phrase "public interest" and replace it with the "national security" test. Again, national security is not the only appropriate consideration here, for the reasons I have given. Furthermore, the amendment may be unnecessarily limiting. As currently drafted, the Bill enables the Secretary of State to order the disclosure of information even if it impacts on national security. I should have thought that such a provision would be welcomed because, as the noble Lord has said, the committee is looking at matters which are very close to national security. Therefore, even if national security were involved, it might still be appropriate for the Secretary of State to think that the information should be disclosed. It is intended that the committee should have access to as much information as possible to enable it to fulfil its remit. Conceivably, almost all information relating to the work of the services could be withheld on the grounds of national security. I consider it one of the strengths of the Bill in relation to the committee that the Secretary of State may not make a decision to withhold information on national security grounds alone. I consider that to be an important proviso as regards the openness of the committee. As I said, that in that respect, the amendment goes in the opposite direction, although I am sure that is not what the noble Lord intends. However, that is its effect.

I hope that in the light of those explanations, the noble Lord will withdraw the amendment.

Lord Richard

My Lords, it seems to me that I criticise the words "safe" and "in the public interest" as insufficiently precise, and the noble and learned Lord criticises the words "national security" on the grounds that they are over precise and unnecessarily restrictive. There are arguments on both sides.

I should have thought that somewhere between the generality of the words "safe" and "public interest" on the one hand, and the restrictiveness of the phrase "endangering national security" on the other, it may be possible to arrive at a phrase which would satisfy both the noble and learned Lord and me. Between now and Third Reading we shall try to see whether we can achieve that. With that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

5.30 p.m.

Baroness Blackstone moved Amendment No. 12: Page 3, line 45, at end insert: ("5. For the purposes of section 10(1) of this Act the expression "expenditure, administration and policy" shall include operational matters and subject to paragraph 3 above the Committee shall therefore be entitled to examine them.").

The noble Baroness said: My Lords, the amendment defines the meaning of the words "expenditure, administration and policy" and thus the remit of the committee's work, subject to certain safeguards. In Committee, the noble Baroness, Lady Park, said: The committee is there to look at expenditure, administration and policy, not at delicate operations".—[Official Report, 13/1/94; col. 281.] The noble Baroness is something of an expert on such matters. She was not, of course, speaking for the Government. However, it is fairly clear that her views are not simply those of the services concerned but also those of the Government. If the committee is not to have at least some broad and general information about operations, how can it have any real role?

I am not suggesting that the committee needs to be given detailed information about individual covert acts. For example, I do not believe that the committee need know the date, time and method of breaking into the Ruritanian embassy. Surely, however, it should be told about the general extent of different classes of intelligence work by the Secret Intelligence Service arid GCHQ. A committee cannot assess the level of expenditure without knowing the level of need, how the resources are being targeted and how efficient and effective the services are, given the resources that they are allocated.

Similarly with administration, discussions of policy without any understanding of how that policy is being implemented is, frankly, pretty useless. It would be unacceptable and, indeed, laughed out of court in arty other area. Perhaps I may give the House an illustration. It may be said that it is an appropriate policy to collect intelligence on the development and possible use of nuclear weapons by other countries. Clearly that would be a perfectly good use of such services. However, should that include spying on American bases? Further, what kind of techniques should be used? We may think it quite acceptable to bribe and blackmail members of the armed forces of Iraq to ascertain more information about chemical weapons in that country. But are we to authorise the use of torture to gain such information? How much information on policies relating to particular methods of operation will be available to the committee? Perhaps the noble and learned Lord can enlighten us. Will there be any information at all? If there is, what kind of things will be involved? Perhaps the noble and learned Lord can provide some illustrations.

I return to the amendment. Is the use of particular methods an issue of policy or does it stray into discussion of what the noble Baroness, Lady Park, referred to in Committee as "delicate operations"? Again, perhaps the noble and learned Lord can inform the House. If the Bill was amended to allow discussion in the committee about which countries and in what circumstances particular techniques were used, that could surely be done without disclosing details of individual operations and certainly without disclosing the names of the persons involved. Does the noble and learned Lord agree that problems of efficiency or lack of effectiveness, as well as problems with the way policy is implemented, are sometimes only discovered or illustrated by looking at the actual way that a system is operated? Of course, scandals are often individual lapses, but they are illustrative of wider problems.

As we were happy to concede in Committee, we would not wish the procedures adopted under the Bill to cause harm to any of those who work directly for the services, or those who, sometimes at great risk to themselves, assist them in their work. The issue here is disclosure to a very small, hand-picked committee, all the members of which, we assume, will be vetted for security clearance by the services themselves and who, as such, can surely be trusted. Contrary to what was said by one noble Lord in Committee, the notion that those six members will be helped by two or three researchers who would have access to sensitive information is surely absolute nonsense.

If the Government are genuine in their wish to make the services more accountable, they will accept the amendment and thereby make the legislation meaningful rather than leaving the committee which the Bill sets up to work with its hands tied behind its back because of insufficient information and, therefore, unable properly to fulfil its remit to scrutinise the work of the services. I beg to move.

The Lord Chancellor

My Lords, the amendment specifies that, subject to the provisions regarding access to information in paragraph 3 of Schedule 3, the remit of the oversight committee will include "operational matters". In Committee, your Lordships debated the provisions for the oversight committee in some detail. I am grateful for the further opportunity to set out some thoughts on that committee and to reassure the House of the importance the Government attach to its playing an important and effective role.

The remit of the committee, as set out in the Bill, is to scrutinise the expenditure, administration and policy of the Security Service, the Intelligence Service and GCHQ. That is a very wide remit; it is meant to be so. It is the Government's intention that the committee should be given as wide a mandate as possible to enable it to play an important and effective oversight role. It is for that reason also that the Bill provides for the committee to have unprecedented access to security and intelligence information.

As regards the information the committee can obtain, the answer is provided in the earlier provisions of the schedule. I should weary your Lordships if I were to repeat them because we discussed them in relation to an earlier amendment. Basically, all information about the service is available to the committee for the purpose of discharging its remit unless it is excepted under the provisions of paragraphs 3 and 4 of the schedule. Perhaps I may refer to the latter. The provisions prevent information being given to the committee in some circumstances if it is "sensitive". The term "sensitive information" is defined in paragraph 4(a), (b) and (c). So, even if it is sensitive, the information may still be given. Moreover, if the Secretary of State thinks that the director-general was wrong in not giving it and that, although sensitive, it should be given in the public interest, the Secretary of State shall disclose it. Again, under paragraph 3(1) (b) (ii) the Secretary of State could determine that it be not disclosed but only on the grounds allowed under paragraph 3(4) which we have discussed. Therefore, there is ample provision for full information to the committee about the matters covered by its remit.

I suggest to your Lordships that it is a confusion to put into the description of the committee's remit the reference to "operational matters". The purpose of the remit is to define what it is that the committee is supposed to report on. The committee is supposed to report on the matter referred to in its remit; namely, scrutiny of the expenditure, administration and policy of the two services and GCHQ. It is not intended that the committee should review the operations of the agencies, nor that the operations should in any way be subject to the committee's approval. The proposed amendment might, if operational matters are put into the remit of the committee, lead to the idea that one of the purposes of the committee was to explore operational detail.

I would suggest to your Lordships that we have the balance right. What we have done is to say what is the appropriate remit of the committee, and indeed I did not perceive the noble Baroness, in supporting the amendment, as wishing to enlarge that remit. Her concern is whether the remit can properly be discharged. Her concern is that, because information might be withheld, it would be impossible to discharge that remit. I am saying that under paragraphs 3 and 4 of Schedule 3 there is unprecedented access to information for the purpose of this remit being fulfilled.

Accordingly, I would suggest to your Lordships that it is not appropriate to alter the remit to insert in it operational matters. I also suggest that that is not necessary in order to secure that sufficient information on operational matters will be available properly to enable the committee to discharge its remit, having regard to the provisions of paragraphs 3 and 4. I believe that these paragraphs represent the protections necessary to secure the information, having regard to the nature of the services in question, and no more. Therefore I believe that the balance of the Bill is right. My particular objection to the amendment is that it seems to alter the remit itself and I believe that that cannot be right in the circumstances. Indeed I do not know whether the noble Baroness wishes to alter the remit in that way. Rather, her concern was as I have sought to express it, and I believe it is met by the provisions of paragraphs 3 and 4.

Lord Monkswell

My Lords, before the noble and learned Lord sits down, I hope he can try to explain something to me. My understanding is that the object of the Bill is to ensure that Parliament can be satisfied that the security services are operating satisfactorily, and also to check the correct expenditure of public funds. Obviously the committee needs to have the ability to look into the expenditure of the funds to ensure that that expenditure is properly administered, and to ensure that the policies of the intelligence services are what might broadly be termed legitimate policies that Parliament could accept. But given the nature of the services that we are talking about—the very clandestine and secret nature of these services—one of the difficulties is how we in Parliament will be sure that the activities of the services comply with the stated policies, if one can use that as an example.

Initially, the remit of the committee to have oversight of the financial expenditure would seem to act as a close control. However, one only needs to remember the Iran/Contra affair, led or organised by Oliver North in the United States, when a clandestine operation took place which was self-financing in the sense that arms were being sold in one area and the proceeds from that were being used in another area. The expenditure for the CIA was minimal and therefore would not have been picked up by a check of the financial expenditure. It would seem to me that for the committee to be able to report to Parliament that the activities of the intelligence services were such as Parliament would approve of, the committee needs to have some ability to relate the expenditure, the administration and the policy to what happens on the ground. In that sense the amendment before us seems to be a mechanism to do that.

5.45 p.m.

The Lord Chancellor

My Lords, again I believe I am entitled to reply as, theoretically, I have not sat down. However, I ought to ask for leave to do so just in case it might be thought that I am trespassing on our rules. The noble Lord, Lord Monkswell, accepts that the remit should be to examine the expenditure, administration and policy of the three agencies. He then asks how one can find out what are the expenditures, administrations and policies of these services. The noble Lord referred us to Oliver. North and his activities.

One of the points about this is that the agencies will require money. They will have an administration and they will be following some sort of policy. The committee is not required to examine those matters in the air, but rather to examine them against the facts of the situation and the information about the activities of the agencies that is made available to it. If, for example, the committee discovered that one of the agencies was making money in the manner described by the noble Lord, I would think it might wish to report that something of that kind was going on within the agencies, and consider whether that was proper.

The question of obtaining the necessary information in order to do that is what is provided for by paragraphs 3 and 4 of the third schedule. I have said—I believe it to be true —that paragraphs 3 and 4 give the committee really unprecedented access to such information to enable it to fulfil its remit, and give it access to all the information to which it is reasonable that it should have access in the circumstances of the work the agencies do. I would be surprised if, in the light of those provisions, anything significant in the way of expenditure, administration and policy could be undertaken without that coming to the attention of the oversight committee. It is not as though the committee is asked to examine these three matters in vacuo; it is asked to examine them in the light of the information made available to it under the paragraphs I have mentioned.

As I said earlier, I believe it causes confusion to include in the remit the matter of operations. The information on operations is not part of the remit; it is part of the material that the committee requires to obtain in order to fulfil the remit. That is the logic of the way in which it is treated in the Bill, and I believe that that is correct.

Baroness Blackstone

My Lords, before the noble and learned Lord sits down, I hope he will make what he is saying absolutely clear to me. Am I right in thinking that he is saying that there is absolutely no reason why information on operational matters will be withheld under paragraph 3 of Schedule 3, which concerns access to information? Will the committee be able to have such information?

The Lord Chancellor

My Lords, what I have said is that all information in the hands of the agencies is available to the committee subject to the provisions of paragraphs 3 and 4. These provisions relate to sensitive information and the committee would not, in the ordinary course, have access to sensitive information. However, the sensitive information is very closely defined and is intended to show the sort of information that is of a character that is so detailed that it is likely, if disclosed to anyone, to" have damaging effects, perhaps for individuals and certainly for operations. The answer is that the committee will have access to operational information but only in so far as that does not transgress the criteria for sensitivity and the other criteria for withholding information, which are specified in the paragraphs of the third schedule I have referred to. I repeat, I believe that these criteria are the minimum criteria necessary for securing—as the noble Baroness wishes to secure—the safety and integrity of the operations covered by the services.

The full answer to the question of the noble Baroness is that the committee will have access to operational information in so far as disclosure of that information to the committee is not prohibited under the provisions of paragraphs 3 and 4 of the third schedule. Those prohibitions are the minimum necessary to secure the integrity of the services as defined.

Baroness Blackstone

My Lords, I am most grateful to the noble and learned Lord for that clarification. That is exactly what I wanted to hear. It is clear from what he said that the committee will have access to operational information subject to the safeguards in paragraph 3 which he mentioned. In the light of that reply, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.