Intelligence Services Bill [H.L.] (Hansard, 14 February 1994)

§ The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I beg to move that the Bill be now read a third time. I am glad, though not surprised, that this Bill has been welcomed on all sides by your Lordships as a step forward. Placing the Secret Intelligence Service and GCHQ on a statutory basis will rightly bring them into line with the Security Service.

Some of your Lordships may still believe that the legislation goes too far in terms of openness, and others that it does not go far enough. But I believe that the Government will be seen to have struck the right balance in the interests of this country and its citizens. That balance lies between accountability and unprecedented openness on the one hand and, on the other, the essential need to safeguard national security, the secrecy of operations and the personal safety of those who work for the security and intelligence services.

The Bill contains several important elements: a definition of the functions of SIS and GCHQ; a procedure for the investigation of complaints against them; the establishment of an independent commissioner to keep under review the Secretary of State's power to issue warrants and authorisations; and last, but by no means least, a committee of parliamentarians with an oversight remit which applies to all, three services.

11 Moreover, these provisions do not supplant existing safeguards and ministerial responsibility. They complement them.

With this new framework in place, I believe that the confidence of the public and Parliament in the activities of the three services will be enhanced and that those who work for the services will feel more secure. I was particularly glad that during the Second Reading the noble Lord, Lord Richard, felt that, broadly speaking, the Government had got that framework "about right".

Let me say a further word about the committee of parliamentarians. The committee has a wide brief. Its function is to examine expenditure, administration and policy. Subject to certain provisions, it can determine its own procedures. I am sure that as it settles into its role the committee will come to appreciate the value of its access to the three agencies, of the unprecedented amount of information relating to national security which will be available to it and of its direct line to the Prime Minister, who has overall responsibility for intelligence and security matters.

I am glad that the noble Lord, Lord Jenkins of Hillhead, welcomed both the thrust of the Bill and, more specifically, the introduction of the oversight committee. He and others, including the noble Lord, Lord Lester of Herne Hill, referred to the importance of choosing the right kind of people for that committee. I am sure that the Prime Minister, through his consultations with the Leader of the Opposition and I imagine with others, will attach the utmost importance to that point. It is in everyone's interest that he does. Thorough and effective oversight within a secure ring of secrecy is essential.

With regard to secrecy, an especially appropriate subject perhaps on St. Valentine's Day, I welcome the acknowledgement by the noble Lord, Lord Richard, that exposure should not be total and that paths that need covering should remain covered. We must not lose sight of that. After all, secrecy is the essence of intelligence and security work. It is not realistic, nor would it be effective, to deal with espionage, subversion, terrorism and threats to the country's economic well-being by overt means alone. That applies both to the business of obtaining information about such matters and to the taking of counter-action. Sadly, the end of the cold war has not made the task any easier. I believe the public and your Lordships appreciate that. Nonetheless, this has not stopped the Government from allowing the cloak of secrecy to be lifted to a considerable degree, in particular through the establishment of the oversight committee. That is a fundamental change and one that I hope is recognised as such. The committee's reports, after any necessary security excisions, will be compulsory reading, I am sure, for the rest of Parliament and for members of the public.

I should like at this point to pay tribute to the care and attention with which your Lordships have examined this Bill. It has been the object of very well informed debate. We have had some lively exchanges about the oversight committee and on the question of GCHQ and union membership. This House has been fortunate, as is often the case, in being able to draw on much relevant 12 experience. I should like to pay tribute to the thoughtful contributions of the noble Baroness, Lady Blackstone, and the noble Lords, Lord Richard, Lord Jenkins of Hillhead and Lord Callaghan of Cardiff. I shall not recite the names of all who have participated, but I should also like to mention the valuable contributions from my noble friends Lord Campbell of Croy, Lord Glenarthur, Lord Mottistone, Lord Vivian, Lord Bethel and Lady Park of Monmouth, with her special insight into these matters. I should also like to mention the valuable contributions from the noble Lords, Lord Chalfont, Lord Merlyn-Rees, Lord Bridges and Lord Monkswell, the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Wedderburn of Charlton. I should particularly like to thank the noble Lord, Lord Wedderburn of Charlton, for correcting me on the status of the GC Staff Federation.

I believe that noble Lords all recognise the advances embodied in the Bill. They should not be underestimated. Considerable effort and care have gone into making it a clearly worded Bill and one which the Government believe strikes the right balance. The noble Lord, Lord Callaghan of Cardiff, thought that the Bill went about far enough in matters of accountability. I think that is right. National security and secret intelligence matters cannot be dealt with in exactly the same way as other departmental affairs. While lessons can be learnt from systems in other countries, those systems do not necessarily bring better results, nor are they necessarily right for our own institutions and services.

I believe that the Bill represents the best way forward, and that it will stand all of us in good stead in the future. I therefore invite your Lordships to give it a third reading.

§ Lord Richard

My Lords, I begin by echoing some of the sentiments expressed by the noble and learned Lord the Lord Chancellor. On the whole this House did a workmanlike and good job in examining the detail of the Bill. Like him, I accept that the affairs of the security services cannot be dealt with properly— nor should they be— in the glare of publicity. Therefore, as the noble and learned Lord said, we are concerned with a question of balance between the necessity for secrecy in the operations of the intelligence services on the one hand, and the necessity for some knowledge and scrutiny by the elected representatives of the people and, indeed, by the people themselves on the other.

I pay tribute to the work the services carry out. It is right that we should do that and therefore right that we accept that the services deserve protection. A number of Members of your Lordships' House have had experience of one kind or another in dealing with one or other of the services. For my part, in some of my previous incarnations, I found that they made my work easier rather than more difficult. Further than that I am sure your Lordships would not expect me to go. Nevertheless, as a consumer— if I can put it that way — I developed a healthy admiration for the skill, determination and dedication of the services. It is right that we place that on record.

13 But that is not an end to the matter. If it were, if that were the only issue involved, then clearly there would be no need to alter the present arrangements. Total secrecy is obviously something under which intelligence operatives prefer to work. But in this case it is a question of balancing that secrecy on the one hand with the knowledge and necessity for disclosure on the other.

That gives rise to a number of questions. How much information should be disclosed? To whom should the information be disclosed? What should be the form of that disclosure? As the noble and learned Lord the Lord Chancellor intimated, it is in that regard that we are unhappy with the Bill. We recognise that the Government made substantial efforts to put the intelligence security services at GCHQ into a recognisable and comprehensive legal framework. For that we are grateful. But I have difficulty accepting the provisions in the Bill for oversight and scrutiny in their present form.

The parliamentary committee must have access to sufficiently comprehensive and up-to-date information to be able to do its job properly. I am not entirely satisfied that that is necessarily provided for in the Bill. After all, we are dealing with disclosures not to Parliament as a whole; not to a Select Committee of the House of Commons; but to a very restricted and select group comprising as few as six distinguished parliamentarians to be chosen by the Prime Minister following consultation with my right honourable friend the Leader of the Opposition. No doubt they will be carefully chosen. They will need, I imagine— clearly, it would be sensible— the broad acceptance of the directors of the services themselves or at least of the senior Ministers who are answerable to Parliament for those services.

My view is that once the six are chosen and the committee set up, then prima facie the duty of the services should be to disclose to the committee rather than to conceal. In other words, if there is doubt as to whether the six wise men and women should or should not know something, then the presumption ought to be in favour of knowledge being passed to them rather than knowledge being concealed from them. For that system to work it will need the close co-operation of the directors of the services and the committee itself. I am not entirely satisfied that the present arrangements will necessarily foster that co-operation.

I should like to make one further point in regard to the committee before we finally pass the Bill. I refer to the linkage of the committee to Parliament itself. It should be a parliamentary committee rather than just a committee of parliamentarians. By that I do not mean that it should operate according to the normal rules of a parliamentary committee, either in the other place or here. It would be a special kind of parliamentary committee with restrictions on its membership, operation and procedure. I accept too the need for the Prime Minister's right of censorship. Before anything moves into the public domain it is right that the executive— in this case the Prime Minister— should have the opportunity of looking at the report and 14 deciding whether or not a matter is too sensitive for it to be included in the general report to Parliament or to the country.

However, I insist that the linkage of the committee should be to Parliament rather than to the Prime Minister. From the point of view of the operation of the Bill and the future health of the security services themselves it is important that there should be an overt and direct link between the oversight committee arid Parliament. Otherwise it will be a committee not directly responsible to Parliament but responsible to the Prime Minister who will vet the report before it is published. That cannot be in the interests of the services themselves. It will be impossible to avoid the suspicion or allegation that matters which should properly be disclosed are being concealed. The Government do not accept that. The noble and learned Lord the Lord Chancellor expressed the contrary view on a number of occasions. Because of that the Labour Party in another place will feel free to examine the arrangements afresh. It is an issue about which we feel strongly.

Another issue about which we feel strongly is trade union rights at GCHQ. Again the Government failed to recognise the justice of our argument. Frankly, I do not understand their obduracy and opposition. I do my best to understand the Government's position on a whole host of matters. Some are difficult. There are, however, occasions when I manage to understand at the seventh reading. Their attitude on GCHQ totally escapes me.

As I understand the position, the Government say that there is no allegation against the loyalty of any member of the workforce at GCHQ. We therefore start from the basis that they are loyal workers who have been doing their job in the interests of the country and, as mentioned on all sides, doing it well. However, we say that they cannot exercise their basic right of belonging to a trade union of their choice. That is absurdly illogical, particularly if one takes the following proposition. As a member of the intelligence services, a member of the Foreign Office at diplomatic level or a civil servant at a fairly high operative level, there would be nothing whatever to prevent one joining the trade union of one's choice. It seems to me the height of absurdity to have a situation in which a senior executive of MI6 can belong to a trade union of his choice but a workman or typist at GCHQ is prevented from exercising that same democratic right.

I do not press the point any further. The argument has been heard; we were beaten three times in the course of the Bill. I say only to the Government that it is an issue to which we shall return. As my noble friend Lord Callaghan of Cardiff said at Second Reading, it may be necessary to wait until a Labour government are in power for that injustice to be remedied.

I wish to say a few words in regard to the personnel on the Bill. I pay tribute to my noble friends Lady Blackstone and Lady Turner for the help they gave at various stages of the Bill. pay tribute also to the noble and learned Lord the Lord Chancellor. He always listens with great courtesy, with great patience and with great silence. How much he actually agrees behind the wig 15 and the mask is difficult sometimes to tell; nevertheless he treats us with unfailing courtesy. For that at least, if not for any concessions, we are extremely grateful.

So far as we on this side of the House are concerned I suppose that it is just about two cheers for the Bill. The Government have probably been wise in placing the intelligence services in a proper legal framework. They have been wise too in setting up the commissioner. They have been wise in setting up a committee to oversee the services. But as someone in another place said on another occasion, the devil is in the details. Were it not for the details, perhaps of some of the intricacies of the oversight procedure, we might have been able to give the Bill three cheers rather than two. We welcome the exit from the closet. We cannot welcome, I am afraid, the arrangements proposed for parliamentary scrutiny. That probably sums up our position on the Bill.