HL Deb 13 January 1994 vol 551 cc251-316

4.43 p.m.

House again in Committee on Clause 1.

[Amendment No. 3 not moved.]

Lord Richard moved Amendment No. 4:

Page 2, line 3, at end insert:

("(3) In fulfilling the above functions the Secret Intelligence Service shall respect and uphold the following principles—

  1. (a) the rule of law is paramount;
  2. (b) the means of investigation must be proportionate to the gravity of the threat;
  3. (c) the more intrusive the technique, the higher the authority should be to authorise its use;
  4. (d) except in emergencies, less intrusive techniques must be preferred to more intrusive ones.").

The noble Lord said: This is another attempt to try to spell out in more detail than is done at present in the Bill the way in which the intelligence services should function. I think that it is important that they have clear principles within which to work; that the services should work within the law; that the use of particular techniques is proportionate to the threat; that more grave methods require authorisation from higher up within the service and, finally, that the least intrusive techniques are used where possible. Those do not seem to me to be principles which are either earth-shattering or which would make it more difficult for the services to perform their functions and to behave in the way in which Clause 1 sets out.

It is interesting that when the Royal Commission that was set up in Canada to look at the security services published its report, Freedom and Security Under the Law, in 1981, it suggested the principles which are contained in this amendment. These principles are missing from the Bill at this stage. Indeed, it is difficult to find any other principles openly stated in the Bill or implicit in its provisions.

It is possible to set out the principles which should inform the work and the organisation of the security services. They can be easily outlined and this amendment attempts to do that. The Bill gives no indication of what actions of the service are acceptable, what laws can be broken or for what purpose any laws can be broken, particularly the domestic laws of other countries. In practice, while the service will not have the resources to carry out highly intrusive operations for trivial aims—I entirely accept that—the amendment will not unduly affect its work. However, it introduces the important concept of proportionality—in other words, it says, "These are the principles which should guide the way in which the service should operate". They are benchmarks—unreasonable ones, in our submission—against which the way in which the service operates can be judged.

Ultimately, the acceptability or otherwise of the operations of an organisation such as the Secret Intelligence Service, has to depend—does it not? —on whether or not what it does is publicly acceptable. In our submission, those principles set out the basis upon which that acceptability can be gained by the service. I beg to move.

Lord Lester of Herne Hill

I rise to speak briefly in support of this amendment which also stands in my name. I hope and believe that it is common ground that in fulfilling the functions that are very broadly defined in Clause 1 the service will always act in accordance with the principles set out in the amendment. As I read them, those principles reflect the principles contained in the European Convention on Human Rights. The advantage—and also the disadvantage, according to one's perspective—of including those principles in the Bill would be that the activities of the service would be much more likely to be the subject of judicial review in accordance with the principle of proportionality.

As I shall explain later in relation to another amendment, that is exactly what happens in Israel in relation to its secret intelligence service. It is open much more to judicial review. That is a very effective safeguard against any possible abuse of the great powers enjoyed by the service. It would ensure compliance with the proportionality principle in the convention.

The Government will no doubt be reluctant to contemplate the possibility of effective judicial review of that kind, but I very much hope that the noble and learned Lord the Lord Chancellor will at the very least be able to assure the Committee that the Government fully accept the principles contained in the amendment and that they accept the need to take effective steps to ensure that the service acts in accordance with those principles and not otherwise.

The Lord Chancellor

As the noble Lord, Lord Richard, explained, the amendment seeks to apply a specific set of principles to the carrying out by the Intelligence Service of its functions. The principles are general, but the terms in which they are expressed have been derived from the Canadian report to which the noble Lord referred. The principles in themselves are laudable, but they have, essentially, and, where appropriate, been taken into account in the preparation of the Bill as a whole. Accordingly, we believe that the right way to deal with this matter is to see whether the principles have been put properly in place in the Bill.

Let me deal with each of the principles in turn. The first refers to the paramountcy of the rule of law. As I sought to explain on Second Reading, it is of course the Government's intention, in placing the SIS on a statutory footing, to underline that the service, as with the other agencies, is answerable and authorised under the ordinary law of the land. That is the development which the Bill has taken forward. I believe that to the extent that it does your Lordships have welcomed it. The fact that the Bill deals with the SIS and the other agencies in that way shows that the ordinary law of the land, as modified by the Bill, will regulate the affairs of the service. There is nothing in the Bill which puts the SIS, or indeed either of the other two agencies, outside the law.

The SIS is under the control and authority of the Secretary of State who himself must answer to Parliament. The Bill provides for a senior member of the judiciary to act as a Commissioner with powers of review of specific powers given to the Secretary of State. That is in accordance with the Convention on Human Rights and the way in which it has been found suitable to operate in this area in the past, I believe successfully.

There are mechanisms for complaint and redress provided for in the appointment of a tribunal. Taken together, those measures reflect a comprehensive and proper statutory framework of control. To state the paramountcy of the rule of law, therefore, is to add something that is unnecessary, because that is precisely what the Bill is doing.

The second principle is that the means of investigation must be proportionate to the gravity of the threat. Let me remind the Committee that the SIS is not itself based primarily on threats, nor is it an investigative service. Where, however, the Bill allows for physical intrusion in the warrant provisions in Clauses 5 and 6, it provides crucial safeguards. The Secretary of State may authorise such action only if he is satisfied that what the action seeks to achieve cannot reasonably be achieved by other means. He must also think it necessary for the action to be taken on the grounds that it is likely to be of substantial value in assisting the SIS, or the other services, in carrying out their functions.

A proportionality test is required in Clause 7. That clause allows the Secretary of State to authorise certain acts outside the British islands but only if he is satisfied that there are arrangements in force to secure that, for acts done in reliance on an authorisation, their nature and likely consequences will be reasonable having regard to the purposes for which they are carried out. That is stating well the principle of proportionality in its application to this subject matter.

The third principle states that the more intrusive the technique, the higher the authority should be to authorise its use. As I have already sought to make clear, any entry on or interference with property in the UK requires the express authority of the Secretary of State. Similarly, the Secretary of State's authority is required for acts committed abroad by the SIS which might incur liability under the extraterritorial provisions of UK law. It is not clear from the amendment what authority is envisaged beyond that of the Secretary of State, but it is clear on the face of the Bill that nothing less will do for this kind of intrusive activity. We have gone to the highest authority for all such authorisations in this area; namely, the Secretary of State.

The last principle refers to less intrusive techniques being preferred to more intrusive ones, except in emergencies. In a crucial respect the Bill as drafted is more demanding than the amendment, if it stood by itself, would allow. The Bill allows for no lesser standards in the event of emergencies than in ordinary times for any of the relevant provisions (Clauses 5, 6 and 7) except that in urgent cases senior officials can, but still only with the express authority of the Secretary of State, sign the necessary warrant or authorisation. So far as concerns the last principle, the Secretary of State's authority is required in all circumstances.

The Government believe that, where appropriate and taken as a whole, the Bill makes proper provision for the substance of the amendment; in other words, instead of just leaving these as principles stated separately from the structure of the Bill we have proceeded in the Bill in accordance with the principles. I believe that, on the whole and in the context of our method of legislating, that is the wise way to proceed.

I hope that in the light of those explanations the Committee will feel that while we subscribe to the principles as stated, the correct way to give effect to them in our legislation is in the way that I have sought to explain that we have done.

Lord Bridges

I sympathise fully with the motives lying behind the amendment, which I am sure are those for which we all have respect. However, if such provisions were inserted into the Bill they might prove difficult to apply in practice. I shall take them one by one. First: the rule of law is paramount". It is not stated whose law we are talking about; whether we are talking about the law of this country or the law applicable where the operation may be taking place. The laws may not say the same thing. That in itself is one of the difficulties which applies when entering into legal responsibility of any precise kind in relation to these activities.

The second item provides: the means of investigation must be proportionate to the gravity of the threat". It is difficult to know what that means in practical terms. Confronted with a grave threat, it would seem clear that the resources devoted to encountering and countering it should be greater than otherwise, but that the means should be proportionate. I am not sure how one can precisely relate those two things.

The amendment then refers to: the more intrusive the technique, the higher the authority should be to authorise its use". Techniques are not easy to classify in terms of intrusion. I do not know whether it is more intrusive to insert a microphone into someone's house or to tap a person's telephone. I would regard them both as intrusive. I can see that the more delicate an operation the higher the authorising authority should be, or the greater the embarrassment if the operation goes wrong the higher the authority should be, but I am not sure that intrusiveness is a tool which we could apply effectively here. Well-intentioned though the amendment is, it would be difficult to apply in practice. I hope that the noble Lord will, on reflection, withdraw the amendment.

Lord Richard

The noble and learned Lord the Lord Chancellor will, I know, understand when I say that the argument which runs, "It is already in the Bill, so you don't want it, do you?" is always equally countered by the argument, "Well, if it is already in the Bill, what is the objection to putting it in again?" In other words, it is a circular argument. I wonder whether I can try to break it.

The noble and learned Lord expressed some sympathy with the purpose of the amendment and for the principles set out therein. He then went on to tell us that we do not need it in the Bill because it is already there if the Bill is analysed with the degree of precision which he then applied to it. The noble Lord, Lord Bridges, says, again, that he has great sympathy with the object of the exercise but difficulties with interpretation and that therefore it is not perhaps entirely appropriate to be put into an Act of Parliament. I wonder whether the noble and learned Lord the Lord Chancellor will consider whether the Government—if they will not have it in the Bill—would be prepared to make a statement at some appropriate stage saying that those are the principles by which they, the Government, anticipate that the SIS should and, indeed, would operate; namely, that the rule of law should be paramount, that the means which they employ should be proportionate to the gravity of the threat, that the more intrusive the technique the higher the authority should be which authorises its use, and that except in emergencies less intrusive must be preferred to more intrusive techniques.

If the Government say that they accept those issues as principles, even if they are not prepared to see them enshrined in legislative form in an Act of Parliament, the Intelligence Service will know the parameters within which it should operate, the country will know the principles upon which the Government consider the Intelligence Service should operate, and Members on this side of the Committee will be more satisfied than if we receive nothing but a general expression of sympathy with our motivation, which is all that we have had so far. In order to give the noble and learned Lord an opportunity to consider the proposal, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Merlyn-Rees

I have no wish to hold up the progress of the Bill or to oppose it. I wish simply to use parliamentary procedure to clarify an issue. Clause 1 relates to Clauses 8, 9 and 10, which deal with the commissioner, the tribunal and the committee. They will adjudicate—that may be the wrong word—on what is contained in Clause 1.

Clause 1 (1) (a) and (b) and (2)(a) provides that the Secret Intelligence Service shall: obtain and provide information relating to the actions or intentions of persons outside the British Islands; and… perform other tasks relating to the actions or intentions of such persons… The functions… shall be exercisable only… in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty's Government in the United Kingdom". Defence intelligence services within the Ministry of Defence have the same responsibilities and functions as the Intelligence Service. Everyone knows that the RAF, in which I served and for which I was once a Minister, successfully operates abroad obtaining information about possible enemy aircraft, their engines, size, range and so forth. Therefore, they are performing much the same function as that laid down in Clause 1. Where would one find the recognition of their existence, functions and powers? If those are not available or written down, and if those services must act as provided in the Bill, must they get the SIS to act on their behalf?

I know that it does not occur now but, as I said on Second Reading, some years ago the Army intelligence service strayed over the line. There is no question that the information it was gathering, which was nonsense, could not possibly be contained in any powers. I do not believe that such instances happen today. But who checks on that with regard to the security services? How can we be sure that such an instance will not happen again? Why is not the defence intelligence service included in Clauses 8, 9 and 10 of the Bill? The issue is relevant at this stage in terms of functions. We are laying down functions in respect of the Secret Intelligence Service but not in respect of the defence intelligence service. Perhaps its functions are laid down elsewhere. If so, where would I turn to find them?

The Lord Chancellor

My understanding is that the Bill is concerned with the security and intelligence services. The activities undertaken, for example, by the Armed Forces in support of the security and intelligence agencies are therefore covered by the Bill. According to my understanding, the defence intelligence service is concerned with the analysis of information. It is not a security or intelligence agency and is not covered by the Bill.

In answer to the noble Lord, Lord Merlyn-Rees, two strands apply. In so far as any activity of any branch of the Armed Forces is in support of these agencies, that activity is covered by the Bill. However, the defence intelligence arrangements concentrate more on the analysis of information received than on gathering the information. Therefore, that department of the Ministry of Defence is not a security or intelligence agency and is not covered by the Bill.

I hope that Members of the Committee will allow Clause 1 to stand part of the Bill and that the noble Lord considers that I have given a satisfactory answer to his question.

On Question, Clause 1 agreed to.

Clause 2 [The Chief of the Intelligence Service]:

Lord Bethell moved Amendment No. 5:

Page 2, line 27, at end insert:

("( ) When considering the disclosure of the records referred to in subsection (3)(a) above the Lord Chancellor shall consult with the Chief of the Intelligence Service and the Secretary of State before any such records are disclosed to the public but such records shall be so disclosed as soon as their disclosure would no longer threaten national security or the national interest.").

The noble Lord said: The amendment would establish a procedure under which documents originating in the secret services could be considered at a suitable time for release to the public under the Public Records Acts 1958 and 1967. It relates to documents originating in the Secret Intelligence Service. I shall speak also to Amendments Nos. 9 and 27, which relate to GCHQ and the security service respectively.

There is an unusual background to documents which originate in the secret services. I believe that none, or hardly any, has been officially released in peace time since 1909 when the secret service came into existence. That has been due in part to the fiction which was maintained until recently that this country does not exercise spies in peace time.

A number of interesting documents from the Second World War were released some time ago. I have in mind the documents relating to the Enigma transmissions. Documents which come from the secret services can often be found in the Public Record Office in the files of other departments, in particular those of the Foreign Office and the Ministry of Defence. Until recently no document originating in peace time was considered for release.

In 1967 the Lord Chancellor, Lord Gardiner, laid clown a blanket edict that all documents originating from those services could be closed without submission to any higher authority. That led, I am afraid—and I speak as a historian and therefore must declare my interest—to the retention in the department of origin not only of individual documents but of whole files containing many thousands of papers purely on the ground that there were in their midst one or two documents with perhaps a passing reference to a security or intelligence matter. Even the inclusion of an item on the distribution list of a paper from the Foreign Office could mean that that paper was closed indefinitely. All papers relating to it, and all papers bound with it in the same file, were also closed. I found such instances frustrating in writing, for instance, about mandatory Palestine in the 1970s. Often documents relating to intelligence matters in 1945, even after hostilities had ended, were available to the public. It appeared that for the sake of bureaucracy the war continued until 31st December 1945. No relevant documents dated 1st January 1946 and after have been released. I believe that when the edict expired it was renewed by my noble and learned friend in February 1992. I hope that at some stage my noble and learned friend will be able to indicate the status of that edict which, as I understand it, states that secret service documents should, or may, or can be retained in their department of origin.

I agree with those who say that those documents are in a special category. They cannot simply be considered as others are under the the 30 year rule and released with a cursory glance unless there is nothing very sensitive about them. I am ready to accept that it would be impossible to lay down a fixed term at the end of which those documents should be released, whether it be 30, 50 or a 100 years. I am told that there are documents from 150 years ago relating to the Falkland Islands which are closed by the noble and learned Lord the Lord Chancellor. I would not quarrel with that because the national interest demands that they be closed. But I have noticed with great interest that recently documents of the joint intelligence chiefs have been released. I should be glad if my noble and learned friend would indicate by what procedure those documents were released. Did he authorise their release? Did they come before him? Were they released by the Prime Minister or through another procedure? I am not aware of any procedure which, in the normal course of events, would have allowed their release, happy though I am that they were released.

To be more specific about the amendment under discussion, some noble Lords may feel that it would be better to leave this sensitive matter well alone, that documents can be released under the Public Records Acts and that perhaps the least said about this the better. On the other hand, I argue that it would be helpful if we could have a procedure under which documents could be considered for release. I believe that my noble and learned friend is the key to that procedure. Under the amendment he will have the deciding voice in whether a document of a secret nature should be released at the end of 30 years, 50 years or whatever. He is the person who should decide.

With respect, I do not believe that it would be right to leave the matter entirely in the hands of the chief of the secret service because it would not be right to leave that person as the judge and jury in his or her own court. In other countries, in particular the United States, the matter is allowed to come before a judge. I have to say that while there are some who believe that to have been an unmitigated disaster the Central Intelligence Agency, of whom I have inquired, has indicated to me that this is something it can well live with and that it is not a disaster—indeed, that it is now a matter which is part of the American Government's procedure under the Freedom of Information Act.

I hope that I shall be seen to be suggesting a middle way. By putting the noble and learned Lord the Lord Chancellor in charge of this decision I hope that we are not being over-restrictive in leaving the matter entirely in the hands of those who are interested in it—the services themselves —or handing it over to the courts, which would be the freedom of information track. I should be very happy if my noble and learned friend would consider it in that light.

There are various reasons for taking carefully and seriously the question of the release of secret service documents. I suggest that it is right for those who work in those services—dedicated people as they always are, but who are nevertheless tempted sometimes to feel that they work in a very special category of public service and who are occasionally tempted, as has been indicated by the noble Lords, Lord Callaghan and Lord Merlyn-Rees, to overstep the mark—to know that they may be brought before the bar of history at some appropriate time. I certainly found this while researching a book about secret intelligence service operations in Albania from 1949 to 1953. Those were operations which led to very heavy loss of life of innocent people in Albania. I believe that there is a case to answer for saying that certain decisions were taken on an improper basis. Whether it is too early to release such documents I would not be in a position to judge, but. I hope that somebody will take the matter under consideration in due course.

Perhaps a more important reason for having a procedure for the release of documents is that it enables the successes of the secret services to be made known. In this world I would suggest that success breeds success. If it is thought that our secret services are efficient, work well and produce results, they will find it easier to obtain sources of information, to obtain recruits, and to work with the services of our allies, particularly those of the United States. We all know of the disaster that occurred in intelligence co-operation between ourselves and the Americans in the wake of the Philby affair. It took very many years before that debacle could be forgotten on the American side and before full co-operation was allowed to resume. The successes that we have had since then—I am thinking in particular of the Gordievsky affair—have contributed to the recovery of our reputation.

I hope that noble Lords will consider this to be a matter that needs to be addressed, that is perhaps not fully addressed in the Bill as it stands, and that the amendments I have proposed provide a balance making as they do the noble and learned Lord the Lord Chancellor the final arbiter of the release of documents. The amendment asks the noble and learned Lord the Lord Chancellor to consult the Secretary of State before reaching his decision. I believe that under existing legislation he is also entitled to consult the Secretary to the Cabinet. On that basis, I beg to move.

5.15 p.m.

Baroness Blackstone

From these Benches we have great sympathy with the amendments. Indeed, we should like strongly to support them. There is very little that I wish to add. The case for these amendments has been eloquently and carefully explained by the noble Lord, Lord Bethell, as well as being interestingly illustrated.

It seems to us that where the disclosure of records would no longer threaten national security or the national interest they should be made available. We also accept the procedure that is being proposed by the noble Lord that this should be in the hands of the noble and learned Lord the Lord Chancellor rather than those of the head of the Secret Intelligence Service. It is in the national interest that future historians of international relations should be able to gain access to such records in order that we can better understand our past. I say this as an academic as well as the Front Bench spokesman on foreign affairs.

Lord Lester of Herne Hill

From these Benches, we warmly and strongly support the amendment. I can explain why in a sentence. It is one from the great American jurist, Justice Louis Brandeis, who said: Sunlight is said to be the best of disinfectants; electric light the most effective policeman".

The Lord Chancellor

I suppose it is right that the Lord Chancellor should bring both sunlight and electric light into the arrangements so far as is possible. I believe it is fair to say that my noble friend's amendment runs very much along the lines of the Public Records Act 1958. Section 3(4) of the Act provides that records may be retained after the 30-year rule, if, in the opinion of the person who is responsible for them", they ought to be retained for "administrative purposes" or "any other special reason". The Lord Chancellor has to be informed of the facts and give his approval.

For example, as regards the present arrangement in relation to security records, the person responsible for them (which may be the director or the Secretary of State, depending on the precise status of the record) would need to have a view about whether or not they should be retained. However, that view would not be final; the Lord Chancellor has to be informed of the facts and give his approval. That is basically the procedure which my noble friend Lord Bethell has in mind in his amendment. Therefore, from that point of view, the amendment is not required because it seeks to achieve what the Public Records Act already provides.

However, there are some practical matters that I should like to mention in relation to the matter. Both I and my colleagues have made some changes in the operation of the arrangements in recent times. As my noble friend said, so far as concerns security and intelligence matters, my predecessor, Lord Gardiner, gave a blanket approval to the withholding of such records. As has been said, in February of last year I approved the continuation of that blanket. It is important to note that the blanket approval is permissive and not mandatory. Generally speaking, so long as national security and intelligence records are still sensitive, I am content that they should be retained.

The mere fact that that blanket permission has been given does not mean that records covered by it may not be released. Departments and agencies that have such records are required to keep them under review. It is because of that review procedure that some of the records—indeed, many of those to which my noble friend referred—have been recently released. Many more are currently under review.

Over the past 18 months significant progress has been made in reviewing and releasing previously retained records. They included a block of pre-1909 miscellaneous intelligence-related papers, the first tranche of the SOE archive and, again, for the first time, a collection of wartime GCHQ intercepts which were released directly to the Public Record Office. All Joint Intelligence Committee records which have been cleared for release, from its inception in 1936 to August 1945, are now in the Public Record Office. More releases are in the pipeline. In addition, papers reflecting the product of the agencies' operations are reviewed as part of the normal procedures and are released if they are no longer sensitive.

It is in the latter connection that we have made some changes. Under the White Paper on open government published last year, records retained by departments for other than administrative reasons are subject to regular review—that is, at least every 10 years—and, in the same way as closed records, are subject to the test of "actual damage" caused by release. In other words, the authority that has been given to hold them is subject to the condition that they be regularly reviewed and if, on review, there is no evidence that actual damage would occur as a result of their being released (and the actual damage is focused in the White Paper in more detail than I need give at present), the document is to be released.

I can assure my noble friend and those Members of the Committee who supported his approach to such matters that, when the sensitivity of a record has been passed, that record will be released at the first opportunity on review. As I said, that is at least every 10 years. One should not underestimate the administrative task of reviewing such records. There are very many of them. I have an officer in the Public Record Office who liaises with the departmental record officers. The latter are primarily responsible for carrying out the review, but the criteria that they adopt in doing so are set out in the White Paper. The officer in the Public Record Office, acting on my behalf, is responsible for ensuring that the policy in this connection is undertaken.

Accordingly, I believe that what my noble friend has sought to achieve by way of the amendment, and the other amendments to which he referred, is already being achieved under the present arrangements. Of course, the Lord Chancellor has the final word. I am glad to know that my noble friend thinks that that is a comfort and that the same is true of the noble Baroness opposite and of the noble Lord, Lord Lester of Herne Hill. The fact is that in America they have somewhat different procedures. It is not for me to say whether they be better or worse, but they are certainly different and fall against a different background. It is true that such matters are referred to a judge but the Lord Chancellor is himself a judge.

The present situation is satisfactory and reasonably flexible. I believe that we have recently been able to improve quite considerably on the standard test by reference to which documents are released. In his researches, I hope that my noble friend has already found a practical result of the latter. I believe that he will find even more practical results of it in the immediate future. In the light of those explanations, I hope that my noble friend will feel able to withdraw the amendment.

Lord Mayhew

Perhaps I may just intervene for a moment. While I have the greatest sympathy for the amendment moved by the noble Lord, Lord Bethell, I can also pay some tribute to the recent changes made by the Government in the field. The noble and learned Lord will recall that we debated quite recently the question of the Public Record Office. We all carefully studied the new White Paper on the release of documents. The noble and learned Lord may also recall that I asked him then whether there could not be a perfectly safe release of the files of an organisation called the Information Research Department of the Foreign Office. It is a secret department, committed successfully to a worldwide anti-Stalinist propaganda crusade in the late 1940s and 1950s. At that time the noble and learned Lord replied that he had reviewed the case for the release of those papers in 1992, but that he regretted it was not possible to release them.

However, using my rights under the White Paper, I made my appeal to Mr. William Waldegrave under the new principle of "actual harm" which could be caused by the release of such papers. The latter, in accordance with the Government's new policy, referred the matter to Mr. Douglas Hurd. The day before yesterday, I received a courteous letter from Mr. Hurd informing me that he had decided to authorise the release of the papers. I believe that that fact will come as news to the noble and learned Lord.

Having said that, I revert to the amendment. It may sound ungracious, but I wonder whether the idea of having a slightly broader decider of such matters is not right. I do not think that we should have a single judge as in the United States, but surely the person who decides whether or not such public documents should be released should be judicial, yes; experienced, yes; patriotic, yes; and, reliable, yes; but should be as far removed from the political scene as possible. It should never be for government to decide. Ministers are by definition the most self-interested people that one can imagine in that field because the papers concerned may be from their own department and may reflect badly on their department. They may reflect badly upon the department of a fellow Minister. The further one gets away from Ministers in this field the better; and it is quite possible to do so. No matter how distinguished, honourable and judicial the Minister may be, I maintain that the final decision on such matters should be non-governmental. On that point, I part company with the amendment while I support wholeheartedly the principle which the noble Lord enunciated.

5.30 p.m.

The Lord Chancellor

Perhaps I may respond to the noble Lord's kind invitation. The procedures which I explained, which we have set in place, have produced the results to which he referred because, as I mentioned, it is for the Minister or person responsible for the documents in the first instance to decide whether or not they may be released. As a result of a review of those documents, under the new test published in the White Paper, my distinguished colleague, my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs, has decided that the documents to which the noble Lord referred are no longer sensitive.

I believe that it is a practical arrangement which will bring good results. I do not believe that it is right for us to seek to amend the generality of the Public Records Act in the course of a discussion on the Intelligence Services Bill. Therefore, my noble friend' s amendment is more appropriate than the rather more generalised suggestion which the noble Lord made. But my ultimate position in relation to this matter is that the present arrangements are very much in accordance with the proposed amendment.

Lord Bethell

It is indeed good news that the documents relating to the anti-Stalinist information committee have been opened to the public. I am well aware of the considerable participation of the noble Lord in that work. While kept secret, that work played a great part in the struggle against Stalinism in the late 1940s.

I am reassured to some extent by what my noble and learned friend said. I have noted with satisfaction the more positive attitude of senior Ministers and of the services in the past year or two, which has enabled a number of documents which had been kept secret for many years to see the light of day.

I wonder how, in practical terms, my noble and learned friend will be able to ensure that those documents originating in the services will be reviewed and will come before him for possible release and eventual placement in the Public Record Office We are talking about documents that in some cases are 80 years old. I do not know what is the volume of them. It may be that my noble and learned friend is able to indicate that or will write to me about it. But there must be a vast body of such material and I am told by someone who knows about those matters that there is a great shortage of people who are sufficiently cleared and under budget to do what is called the "weeding" of them. I wonder whether it would be possible for the Government to do what my noble and learned friend suggested in a period of, perhaps, 10 years.

Therefore, were my noble and learned friend to accept the amendment, it would provide a spur to the Lord Chancellor of the day to ensure that documents are looked at properly within a reasonable space of time and that if disclosure of documents were no longer contrary to the public interest or to national security, then he would release them. It is not a question of wishing to release them but rather that it would be his duty to release them. Does my noble and learned friend see any merit in that?

The Lord Chancellor

The practical consideration to which my noble friend referred is important. In the White Paper the Government have undertaken—various departmental Ministers are responsible for the resources which they devote to it—that those documents should be reviewed on, at least, a 10-year cycle. I believe that that takes place and, as I say, an officer of the Public Record Office as well as the departmental record officers have responsibility in that area.

We have said that if there is no harm to be done by disclosure, the document is to be disclosed. Applying that to the circumstances of this case, that is what the amendment does. With great respect to my noble friend, I do not believe that it adds anything to the strength of the present arrangements, particularly as he has indicated that the main obstacle is the practical one of weeding out—that is, conserving what needs to be conserved and letting the rest go. That operation requires a degree of competence and the Government have undertaken that that should be done. As I said, my noble friend has already seen some of the results and the noble Lord, Lord Mayhew, saw yet another yesterday. I hope that those results will continue to flow and impress.

Lord Bethell

I am greatly reassured. As I understand it, those documents from the services which are now releasable will all be reviewed and released by the Lord Chancellor of the day within a maximum of 10 years. That is fair enough. On that basis, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [The Government Communications Headquarters]:

[Amendments Nos. 6 and 7 not moved.]

Baroness Turner of Camden moved Amendment No.8:

Page 3, line 12, at end insert:

("( ) In fulfilling the functions specified in this section, staff at GCHQ shall enjoy trade union rights in accordance with Convention 87 of the International Labour Organisation.").

The noble Baroness said: I believe that it would be useful to spend a little time explaining what the amendment is about and why I believe it to be particularly important. As Members of the Committee will know, GCHQ employs a number of civil servants working on secret spy communications. For a very long time such staff had been permitted, indeed encouraged under the system of industrial relations then in force, to belong to autonomous national trade unions. There was a well-established and efficient consultative apparatus.

However, all that was changed quite suddenly on 25th January 1984 when, without consultation, the Government announced new conditions of service that were imposed immediately. Their effect was that staff would no longer be permitted to belong to national trade unions.

I was a member of the TUC General Council at that time and that arbitrary action prompted immediate protests and demonstrations. It was widely seen in the trade union movement as a breach of international labour organisation conventions. As we saw it, it was also a breach of UK legislation which provides specifically for individuals to belong or not to belong to a trade union.

It should be noted that the ban related not only to representation by a trade union but also to actual membership. The Government's reason for taking that exceptional step was that it was necessary on grounds of national security. I do not recall that any evidence was ever produced to justify the ban on those grounds. There was no evidence whatever that membership of a national trade union inclined individuals towards security breaches or induced them to spy against the UK on behalf of other countries. Indeed, the cases on record of convicted spies appear to indicate that they tend to be non-union people. I refer particularly to the case of Vassall who was convicted of spying. He always refused to belong to a trade union. Incidentally, I believe that he was a member of the Conservative Party, but that is another matter.

In my view, the reason advanced was a slur on millions of trade unionists who are genuinely patriotic and devoted to the defence of their country. However, the Government were able to persuade the European Commission on Human Rights that that reason had motivated their action and provided justification.

However, the ILO took a very different view. The Committee of Experts decided that the ban on trade union membership at GCHQ was a breach of ILO conventions which the UK Government had ratified. It is useful to look at the notes issued by the ILO Committee of Experts in regard to the relevant conventions. They say that an important aspect of the right to organise is the protection afforded to workers and trade union leaders against acts of anti-union discrimination. That can take several forms. Article 1 of Convention 98 establishes in general terms that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. It provides that such protection shall apply more particularly in respect of acts calculated to make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership, or cause the dismissal or otherwise prejudice a worker by reason of trade union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours. The notes say that it follows from those provisions that workers must be adequately protected against anti-union discrimination both at the time of taking up employment and in the course of their employment relationships. The notes also indicate that public employees should have adequate protection against discrimination. Convention 87, to which our amendment refers, specifically includes the right to join and to form unions. It seems to me that both those conventions have clearly been breached by the actions of the UK Government in banning trade union membership among staff at GCHQ.

Therefore, it is not surprising that trade union rights at GCHQ have become something of a cause célèbre for the trade union movement. Numerous representations have been made to the Government. At the last TUC it appeared that some progress was being made. A report was made to the effect that the Government were in touch with the Civil Service unions and appeared willing to make some move towards an amicable solution. I must say, however, that the solution of a non-independent staff association is certainly not acceptable. Nor would it be in conformity with ILO conventions to which reference has been made. Meantime there is still a core of the staff at GCHQ who resent the fact that their rights have been taken away and who still remain trade unionists at heart if not in actuality.

I have to tell the Government that their actions in regard to GCHQ are not at all popular. Ever since the ban the TUC has held demonstrations and marches in Cheltenham where GCHQ is situated. I have been to a number of those demonstrations. I have joined the marches through the town. I have always been pleasantly surprised by the amount of local support we receive. That is in Cheltenham, once but perhaps not so much recently regarded as a Conservative bastion. People on the pavements have been genuinely sympathetic and supportive. This issue now has a 10-year history. Is it not time to bring this sorry chapter to a close?

Before I came to your Lordships' House this morning, I had some discussions with the TUC. It transpires that there was a meeting with the Prime Minister on 20th December but I regret that no agreement was reached. As a result, the TUC has written again to the Director General of the International Labour Organisation to complain about the situation at GCHQ.

That is an enormous pity because, looking at the letter, it would seem that the only barrier that still exists is the belief held by Ministers that a conflict of loyalties must exist if national trade unions were allowed to have members in GCHQ. The trade unions then asked the Prime Minister if there were any assurances that they could offer which would remove the anxiety about conflict of loyalty from ministerial minds. The Prime Minister indicated that he could not think of any. No doubt Sir Robin Butler, who is head of the Civil Service, would have indicated if he could think of any. He readily acknowledged, however, that the trade unions had shown good faith and determination to bridge the gap and thereby reach an agreement.

As I said earlier, this issue has now been outstanding for 10 years. There will be another demonstration, in which I shall again participate, in Cheltenham on the 29th of this month, when the 10th anniversary will be celebrated. I would hope that we could celebrate it by being able to tell the trade unionists who come to the meeting that the Government have seen the virtue of what we have been saying for so many years and have decided that trade unionists at GCHQ should have the rights indicated in our amendment. If that is not so, I am afraid that once again we shall be marching through Cheltenham and once again, no doubt, attracting a great deal of public support. I beg to move.

5.45 p.m.

Lord Lester of Herne Hill

I rise to support the amendment, to which I also have put: my name.

The right to freedom of association with others is a basic constitutional right in a democratic country such as ours. It includes the right to form and join trade unions. The work done by GCHQ is of great importance and involves handling secret information which is vital to national security. I understand and accept that it may be necessary to forbid industrial action which endangers the work done at GCHQ, but the ban is very much wider than that. It extends to mere membership of a tirade union as distinct from a staff association.

I had the privilege of representing the Civil Service unions in their unsuccessful challenge to the ban before the European Commission on Human Rights where the Commission took a narrowly legalistic view of the claim. The ban applies to all GCHQ staff, however junior in grade or menial in function—cleaners and catering staff, clerks, typists, engineers and managers alike are all banned from belonging to any independent trade union. The ban runs directly contrary to the policy of successive governments since 1947, when GCHQ was set up, to encourage membership of national unions among staff at GCHQ, to recognise such unions where appropriate and to negotiate with them as representing the staff.

As the noble Baroness, Lady Turner, has already indicated, the Government's action 10 years ago was taken unilaterally with no consultation with the unions represented among the staff at Cheltenham or any other trade union organisation. The first intimation of the Government's move was when the then Cabinet Secretary read to the general secretaries of the Civil Service unions the text of a statement 10 minutes before the Foreign Secretary made his Statement to Parliament. The Government's actions were quite unprecedented, as were the means employed. The workers' rights were removed by certificates issued under provisions of the Employment Protection Acts and by legal instruments made under the Royal prerogative. Those powers have never before been used to deprive workers of any kind of their right to belong to a trade union.

Staff at GCHQ have always been subject to stringent duties of loyalty, confidentiality and secrecy under the criminal and civil law as well as under their professional codes of conduct, and it has never been suggested that they have broken those legal or professional duties. On the contrary, they have displayed a high devotion to duty. That was particularly highlighted, for example, during the Falklands campaign, when their contribution was invaluable, as the Government acknowledged at the time.

GCHQ staff and their unions regard the Government's actions as casting a wholly unjustified slur across the work of the staff and the responsible role of their unions. The slur is the suggestion that by belonging to an independent trade union their loyalty to the nation would be somehow undermined.

The Civil Service unions, as I know, have always accepted that the Government have the power and the duty to determine what are essential intelligence services and to take such action as is necessary to protect the security of the nation. The unions have made it quite clear to Ministers that they were and are entirely willing to meet the Government's needs to ensure the complete protection of national security within GCHQ against any possible impairment. They have also informed the Government that they would consider any amendments to collective agreements, or any extra provisions required to maintain the essential intelligence services at GCHQ, while at the same time preserving the right of staff to join a union of their choice, which is the most basic and long standing of all trade union rights.

As we have just heard, the ILO Committee on Freedom of Association and the Committee of Experts have concluded that the unilateral action taken by the Government to deprive the staff at GCHQ of their right to belong to a trade union was not in conformity with ILO Convention 87. The Council of Civil Service Unions has responded positively to the ILO's recommendations. However, far from accepting the recommendations, the Government continue to threaten to dismiss trade unionists at GCHQ if they do not sign away their rights to belong to a trade union; and those who refuse to accept the Government's diktat have been penalised in a variety of ways.

The Committee of Experts of the ILO is a particularly valuable source of impartial and objective interpretation of the meaning of the various ILO conventions. In 1985 and in 1989, the experts drew the Government's attention to their failure to meet the minimum international standards. However, the Government have remained unmoved by the moral authority of the ILO to lift or modify the ban.

I believe that it is deeply regrettable that the Prime Minister has recently rejected a sensible compromise compatible with the legitimate aims of protecting national security. The ILO's criticism is well founded. The blanket ban on union membership is wholly disproportionate; and after 10 years it is time that the Government properly recognised the fundamental right of staff at GCHQ to join a national Civil Service union in accordance with the international obligations of the United Kingdom under Convention 87.

If the aim of the amendment is not accepted by the Government, the United Kingdom will face inevitable humiliation and ignominy in June when the ILO will surely adopt the special paragraph procedure whereby the Government's failure to comply with the rulings of the ILO supervisory bodies will be singled out for mention in a single paragraph of the report of the committee on the application of standards—something that I believe has never happened in the history of this country.

Lord Moyne

If ever there was any point to the ban—perhaps there was 10 years ago—that point was connected with the existence of the Soviet Union, of Soviet communism and the danger (which may have been small but was perceived) that influences from that area might affect the unions. I believe that it is now unnecessary to extend that ban because the Soviet Union has collapsed.

Lord Callaghan of Cardiff

We have heard two distinguished speeches from my noble friend Lady Turner and the noble Lord, Lord Lester. They have set out the complete case on the issue. I wish to add to what they said.

Perhaps noble Lords will forgive the personal reminiscence. As I sat here, I calculated that it is 65 years since I joined my trade union. I have been proud to be a member ever since, and to have achieved the honour of life membership of such unions as the National Union of Mineworkers, the General, Municipal, Boilermakers Union and others. I am proud to speak up as a trade unionist. I wish to address the Committee today as such.

I wish the noble and learned Lord the Lord Chancellor to understand that this is an issue of principle. We have discussed the matter today, correctly, on a pragmatic basis, but it is an issue of principle. That is why the matter will not go away. That is why this Government, or some other government, one day will have to concede the issue.

I fear that one of our difficulties is that governments who have been in power for too long, as this one has, dig themselves deeper into attitudes of complete obstinacy from which they are unable to change their minds. I say to my noble friend Lady Turner and the noble Lord, Lord Lester, that we are battling at an impossible door. I do not believe that the Government will give way on the issue. That only confirms my view of the Government's obstinacy and their unreasonableness towards concession on this principle.

The Civil Service as a whole has served all governments extremely well. There has not always been the same attitude to trade unionism in the Civil Service. My noble friend Lord Houghton will recall that when the tax clerks at the beginning of the century tried to form a trade union, they asked modestly whether they could come and see those in power over them. The reply was, "if you're not satisfied with your wages"—I believe that they were about 23 shillings a week—"you may find another job". That reply did not deter my noble friend Lord Houghton or those associated with him. That attitude has persisted up to the Second World War. In the First World War, the Civil Service formed the Civil Service Rifles. My noble friend was a drill sergeant in the Civil Service Rifles. I cannot imagine anything worse than having my noble friend as a drill sergeant, but we all survived in our various capacities!

However, we intend to stick to this issue of principle. It is offensive that a man or woman is not allowed to join a trade union of his or her choice when such action is perfectly legal. That is the issue. It will not go away; it will be a permanent blot on the record of this Government —heaven knows, they have enough already—if it is not removed. Just as in the earlier days the 1927 Act required a Labour Government to remove that blot in 1946, I fear from what has occurred so far that it will take another Labour Government to repeal this legislation and to permit members of GCHQ to be members of trade unions.

I have followed the discussion. I cannot think of any further concession that the unions could make to the Government after that sad and wrong business in the early 1980s (which has now been lived down by what has occurred since, in the Falklands War and elsewhere). I cannot envisage what other guarantees the unions' side could give to the Government that would ensure the continuance of work at all times in all circumstances, whether or not there was a national emergency. The unions have given every conceivable guarantee. The leadership which took over from those few who handled the situation in the early 1980s has given those guarantees.

I say this to the Government. I much regret that that legislation was a rush of blood to the head two or three years after the incident occurred. Mrs. Thatcher pushed the measure through. I have never challenged the noble Baroness's capacity to secure her objective. It is always the objective that I found difficult to stomach. The Government have had to carry on with what the noble Baroness, Lady Thatcher, then decided. It is known that there are differences of view in official circles about the matter. It is known that many people will be willing to concede that everything has now been done that could satisfy any reasonable Government or Minister about the situation. It is known that many people in official circles would welcome the removal of this blot of refusing an individual the right to belong to a trade union.

I make one more appeal to the Government. I do not expect to receive a satisfactory response from the noble and learned Lord the Lord Chancellor. However, I wish him and everyone else to know that the issue will not go away. We shall continue to work at it until the blot is removed. If the Conservative Government wish that blot to remain on their record, so much the worse for them. But if they were wise, the Government would remove it straight away.

6 p.m.

Lord Mottistone

There is another view. I greatly respect what the noble Lord, Lord Callaghan, said; and it is worth thinking about what GCHQ is doing, what it is at and looking at it from that view. I had the privilege of being responsible for what was then the naval unit which, in the 1960s, did some of the work which GCHQ does now. With the formation of the Ministry of Defence and abolition of the Admiralty, there was an arrangement by which all signals intelligence would be taken over by GCHQ.

I remember that we talked about the effects of that and how it might go. I do not suppose there is any record of it, and the Committee will have to take my word for it. We discussed what would happen with the new system of making all civil servants responsible to GCHQ and not under Admiralty control and whether or not they would have to have a trade union. We wondered whether, in the nature of the work that GCHQ has to do, it would be an easy situation for people who had to do the job.

The problem is—and there is no question of loyalty to the country and the points mentioned by the noble Baroness, Lady Turner—there is always inevitably the potential between employers and the organised trade union for a conflict of loyalties. That potential is not important for the activities within a company if the relationships between the management and its own union representatives are good. Where the problem starts to raise its head is if the union is a national one conducting a national campaign of some kind in which it asks its members in companies not directly connected to the issue to come out, for whatever reason. That is not so easy now as 10 years ago because of the legislation which has been passed in the meantime, but it is still a possibility. That situation means that such individuals —and I have talked to many and have employed some—have great difficulty in deciding whether they should be loyal to managers or loyal to the trade union.

One of the features of the work that GCHQ does is that sometimes—one might say always—continuity of activity is vital for the interests of the management. Thus, if there is a suggestion—as there was for GCHQ, as my noble and learned friend the Lord Chancellor mentioned at col. 1075 of Hansard for 9th December 1993—where pressure to engage in industrial action was coming from outside and not within the organisation, then one wonders whether what is being done is not right.

I honestly believe that there are situations in which, with that kind of activity at GCHQ, there may be a threat. I have to say to my noble friend that this has nothing to do with whether the Soviet Union is a threat to us. The whole point of the Bill concerns any threat that may come at any time in the future.

One has to ask whether we have to have the kind of protection that we do if there is no threat of conflict of loyalties from an internal trade union within this country. If that threat is a possibility—and it may have nothing to do with what is going on at GCHQ itself—then it is better that the situation we have at the moment should continue. I certainly think it would be most unwise to put the proposed subsection in Amendment No. 8 into the Bill, to provide it in this legislation. I am all for discussion between the TUC and the Government to see whether there is a modus vivendi whereby the union could say: "All right, under certain circumstances we will not press our members in GCHQ to come out, even if we are trying to do that with everyone else". I do not know whether they have said that. I received the impression from the noble Lord, Lord Callaghan, that they had. In that case, there is a good argument. However, it must be extremely firm, as firm as the IRA not using bombs at all, and they will not do that yet. Therefore, the amendment is certainly not suitable for insertion into legislation like this.

One final point is that the noble Baroness, Lady Turner, said that a staff association would not do instead for the members. I had the happy privilege in the early 1970s of being director of an industrial training board with trade union, employer and educational bosses on the board. When I arrived, there were about 50 or 60 employees, though the number grew later on. I asked whether we had an organisation for talking to staff. I was told no, we did not. I said: "Then you'd better find out what they want." So we gave the employees the option of not having one, and I would not let them do that; but that is neither here nor there. We asked whether they would like a staff association or a trade union; and by far and away the majority, if not all employees, said that they wanted a staff association. I asked why and they said, "Because then we would not be subject to pressures from outside the organisation". That was the situation ab initio in 1969. I put it to my board, and the trade union members were horrified and said: "You can't do that, it's totally against all the rules". So we had to have a trade union, although the staff did not want it.

I have no doubt that when the staff built up to 400, they probably then wanted a trade union, but it is possible for people not to want pressures from outside which they do not need. I therefore hope that the amendment is not pressed.

Lord Murray of Epping Forest

The amendment and the debate taking place raise two issues. The first is the right of a man or woman to join a trade union of his or her choice. The second is the question raised by the noble Lord, Lord Mottistone, of the importance of the particular job and of continuity. Those are not entirely separate; but for the purposes of discussion, we ought to try to look at them separately.

On the first issue of joining a union of one's choice, the arguments for the amendment and the case for the principle of the amendment have been made again and again from the Benches opposite—not least during the debates on the Employment Bill last year. That is, the right of individuals to choose to which union they shall belong. To that end, the Bridlington principles themselves were destroyed as a means of achieving the objective of ensuring to an individual the right to choose to which union he would belong. That was the Government's emphasis. Again and again they emphasised that the right not to join a trade union—to which they attached importance—was, in their view, matched by the right to join a trade union. They held a balance between the two. That is what the amendment is about—the right to join an independent and autonomous trade union, not to join a union of the Government's choice.

The noble Lord, Lord Mottistone, has remarked that he was impressed by the so-called liberal—I apologise to the Benches on my right—employers who put their right hands on their hearts and say: "You can join any union you like, so long as you like the union I like". That is what the Government are saying to the staff of GCHQ. They are saying: you can join a union or a staff association, but we will not recognise any other. The Government are going well beyond the point of saying: you can join a union but we will not recognise you. They are saying what the noble Lord, Lord Mottistone, would never have said to his employees. They are saying: you shall not have the right to associate with people who belong to another trade union, no matter whether you belonged to that union for many years before coming to GCHQ; no matter whether you see your future as being involved in work outside GCHQ for which that union would be appropriate; no matter whether you merely wish to join the union to get the benefits which are provided by that union, short of negotiating your wages and conditions; if you refuse and associate with people in another union, you will be sacked.

The Government said that at a time when even members of the Armed Forces were not deprived of the right to join a trade union of their choice. At that time, as we pointed out to the then Prime Minister, many members of the Armed Forces who were perhaps about to leave the service had, as had been the adopted practice, joined trade unions before leaving so that when they moved out into civilian life they would continue as members of that particular trade union. It was no good to them in terms of their membership being recognised for negotiating purposes by the Army, the Air Force or the Navy. But they had the simple right to have a trade union membership card in their pocket without being discriminated against.

The argument for the basic right—as my noble friend Lord Callaghan said, the principal right—to join a trade union is surely in itself overwhelming. However, as the noble Lord, Lord Mottistone, said, there are other considerations.

As I accepted in the discussions with the then Prime Minister, the Government, as the employer, must have an assurance that this critically important job must and will be done. Arrangements can and have been made to ensure that. One instance is in the case of the fire service. As a result of the present agreement, which was negotiated, I believe, in 1977 (my noble friend, Lord Callaghan, will remember it very well indeed), the idea of taking industrial action has in practice disappeared—although I have been worried on occasions to see that the Government have even contemplated undermining that particular arrangement. That is one instance. The offer made at the time by the Council of Civil Service Unions was designed precisely to meet that argument, and to meet the problem rightly raised by the noble Lord, Lord Mottistone, and others. It was designed to give an assurance that employees in GCHQ would act with due consideration for the national interest and would act responsibly.

We are rightly told that rights must always be accompanied by responsibilities. I accept that. It is equally true that responsibility should also be accompanied by rights. Here is another case where trade unions are criticised half the time for acting irresponsibly, and the other half of the time are denied any responsibility. Men and women are being told—and comparisons have been made this afternoon that come near to it—that the mere fact of joining a trade union, of combining with their fellow men and women and belonging to a trade union, casts a shadow over them in terms of potential treachery. As has been said already, and I repeat it from my own experience, the patriotism and loyalty of people who work for GCHQ has never been, and cannot be, in question.

I could understand it if the Government say, and emphasise, that this job is so important and critical that it needs to be continually undertaken and that there must be rigid requirements relating to the operation and conduct of the people concerned. It is reasonable that on our behalf the Government should make that assertion. I claim that the unions concerned, and more importantly the employees in GCHQ, have demonstrated their ability and their willingness to meet that demand. We are talking here of a basic right. It is a right which, as the noble Lord, Lord Lester, has so well demonstrated, is valued throughout the whole of the civilised world. It is the right of men to combine to pursue their legitimate interests. The importance of this amendment is that it meets both questions that have been raised in the mind of the Government historically, and indeed more recently. Above all, it meets the question as to whether people can be trusted to be members of trade unions and to continue to act responsibly. The amendment is important not only for its own sake. It is important because it would put beyond doubt the sincerity of the view, asserted by the Government, that men and women have the right to join independent unions of their own choice. As has been said already, the Government's acceptance of this amendment would restore Britain's standing on the international scene.

6.15 p.m.

Lord Houghton of Sowerby

This is the second time that a Conservative Government have taken retaliatory measures against the Civil Service trade unions and have failed to relent on the action that they took, based on fear and divided loyalties, during two periods of industrial disputes.

I was present in the Memorial Hall in Farringdon Street at the end of April 1925 and in 1926, when the General Strike became a reality in British trade union history. At the end of that dispute, some government fears about divided loyalties in the Civil Service took hold of their attitude towards the Civil Service. In 1926 some naval staffs at Devonport had strong affiliations with industrial workers of comparable occupation. The Trades Union Congress was claiming the loyalty of industrial trade unions in that particular field on that particular occasion. The only people who went on strike in the Civil Service at the time did so feeling a sense of loyalty to the industrial workers outside. They took unofficial action (not at the request of the union), and it was that which sparked off the strike. Winston Churchill, who was Chancellor of the Exchequer and in charge of Civil Service affairs at the time, said that the action at Devonport raised grave issues of divided loyalties in the Civil Service. On that occasion the Government did not ban the members of the unions from joining a Civil Service union. They banned the unions themselves. They excluded Civil Service unions from any association with outside bodies that contained industrial workers upon whose loyalty the trade union might have to rely.

At GCHQ it was not what happened but what the Government feared might happen. I regret to say that their fear of what might happen was fuelled by the foolish, random threats that were made by the general secretary of one of the unions at that time. I clearly recall what I considered to be the dangerous use of threats to bring into a dispute the sacred activities of intelligence staffs. That was the fear then. It was not necessary to take action because those fears never materialised and never would have done so. But on both occasions retaliation against the Civil Service took place.

On the first occasion the Conservative Government did not relent. The provisions of the Trade Disputes and Trade Unions Act 1927, which threw the Civil Service unions out of the general trade union movement, were not reversed until 1946 under a Labour Government. For 20 years they were kept outside association with organisations of professional workers. Any organisation that had anything to do with conditions of service was barred from a relationship with the Civil Service. Certificates of approval had to be obtained in order to join the union at all.

Why did the Government stick to that for so long? Why are they sticking to GCHQ for so long? Times have changed. It is true that on the first occasion 20 years had transpired after the General Strike. An entirely new world had dawned when the war was over. But there was a serious flaw in the Government's thinking to have regarded it as something to retain indefinitely.

So here we are again. There ought to be strong hope at this time of the Government deciding to start afresh. But the experience to which I referred gives very little substance to hopes of a change of mind and a more liberal approach to the situation. There never was any fear that was worth the Government taking the action that they did.

I beg the Government to get rid of their grievance. I have used my best endeavours with those who were responsible at the time and others since. So far I have failed. It is time for the Government to restore their confidence, which was so rudely withdrawn from that section of the Civil Service. It is a slight on subsequent entrants to the service and on those who were serving at the time. For heaven's sake, let us get rid of it! Otherwise, it will rest with the next government—which will be a Labour Government—to repair the situation left behind by the retaliatory measures of the Conservative Government.

Lord Tebbit

There are just two points which do not seem to me to have been made sufficiently clearly so far in this debate. I say that with every respect to the extremely distinguished Members who have taken part already. The first point is that whatever "guarantees" may be given by the present leaders of trade unions or the trade union movement as a whole, and however copper bottomed or solemn and binding they may be, there is no way in which they can be regarded as absolutely enforceable. Surely, there can be nobody in this Chamber more acutely aware of that than the noble Lord, Lord Callaghan.

A second point which it seems to me has been missed—and an outsider, not familiar with these matters, who is listening to this debate might not be aware of it at all—is that this is not a case where GCHQ is a stand alone business. GCHQ is not an employer. The employer is Her Majesty's Government. Civil servants are not being told that they may not join a trade union. What is being said is that if one is a civil servant who wishes to belong to a trade union, one may not work in that particular part of government. That is a very different matter.

I see that the noble Lord smiles. But it is a distinctly different matter. In just the same way Her Majesty's Government do not say that government employees cannot be civil servants but that members of the armed services should not be members of a trade union. That is the acute difference.

What is asked by those in favour of this amendment is not that civil servants should have a right to belong to a union. That right is there. They are saying that trade unionists should have the right to work in a particular part of the government service. It is a different matter.

Surely, if, in the judgment of those involved, there are some parts of the government service where those who work should not be members of a trade union, it is not so much a great issue of principle as one of practicality and judgment. As I said, it has to be judged particularly against the background that whatever the goodwill of those involved who give solemn and binding undertakings, those solemn and binding undertakings are simply not bankable.

The Lord Chancellor

It is clear that this is an important matter. I wish to approach it on the basis of the principle on which the Government's attitude rests. I should like to make it as clear as I can that there is no suggestion whatever that individual members of GCHQ were in any way disloyal or that there was anything in the nature of treachery or any idea of that sort.

The problem is not that trade unionists were thought more likely to be spies, as the noble Baroness, Lady Turner of Camden, mentioned in the course of her opening remarks. That is not the problem. The problem which faced and faces the Government is that in their view—I believe that most Members who have spoken also accept it—it is essential for the continued protection of this country that GCHQ operations should be continuous. Perhaps I may say to my noble friend Lord Moyne that that is true whether or not there is a threat from the Soviet Union. It is essential that the continuous operation of GCHQ should be guaranteed.

As I mentioned at Second Reading—it is right that I should mention it again—from 1979 to 1981, considerable disruption occurred at GCHQ with the loss of some 10,000 man-days in total. Because of the experience of that disruption, the Government concluded that the change to conditions of service for staff at GCHQ was indeed necessary. In other words, the reason Was to secure the continuous operation of GCHQ; and the action was taken in the light of the experience of the discontinuity in that operation over the period between 1979 and 1981, amounting to 10,000 man-days in total. The view of the Government—I do not understand that any Member who has so far spoken dissented from this view—is that disruption at GCHQ would pose a great threat to the country's security.

The staff at GCHQ are represented by a staff federation. It is registered as a trade union and proved itself effective with membership comprising well over half of the staff at GCHQ. It is therefore not right to imply that GCHQ staff are unrepresented and at the whim of management.

As I said at Second Reading, discussions recently took place between the unions and officials, and the unions then met the Prime Minister to discuss the matter. The Prime Minister set out the substance and outcome of the meeting in a Written Answer today. As that is important in the context of this debate, I shall set it out. The Prime Minister said: I met representatives of the Civil Service unions to discuss trade union membership at GCHQ at their request following a series of discussions they had with officials. I explained that the Government's overriding objective remained to ensure the maintenance of continuous operations at GCHQ necessary for the protection of national security. In that context it was necessary also to ensure that the staff were not subject to potential conflicts of loyalty". The conflict of loyalty in question is that between a request not to work at GCHQ and the need for its continuous operation. It is nothing to do with treachery or disloyalty in that sense. The Prime Minister continued: Against that background, however, I indicated that the Government was prepared to enable the Government Communications Staff Federation, the registered trade union for GCHQ staff, to affiliate to the Council of Civil Service Unions subject to conditions to guarantee its continuing independence. This would have allowed the staff of GCHQ to be represented in discussions between the Government and the unions on matters affecting the civil service generally in a way which they are not at present. The national trade unions have indicated that they do not regard this as acceptable … There are no plans for any further meetings but the Government remains willing to discuss any further proposals on the subject that the unions may wish to put forward". I turn to the International Labour Organisation. I am aware of the view of its Committee of Experts on the matter. The Government do not accept that Convention 87 can be viewed in isolation from Convention 151, which relates specifically to employment in the public service and makes allowances for exactly the situation at GCHQ. Convention 151 was adopted expressly because of earlier disputes about the application of Convention 87 to the public service. In considering the amendment it is the Government's view that rights in accordance with ILO Convention 87, read in conjunction with Convention 151, do indeed exist at GCHQ.

That point, which the Government made to the ILO, is one which was recognised by the European Commission of Human Rights in January 1987 when it considered the admissibility of an application by the Council of Civil Service Unions in respect of the Government's action at GCHQ.

As the noble Lord, Lord Lester of Herne Hill, reminded us, on that occasion the unions had the benefit of his great expertise as an advocate and therefore one can be certain that the Commission was apprised of every possible argument that could be used in favour of the application that was being put forward. The noble Lord was inclined to suggest that, as the Commission did not completely accept his submission, it proceeded on a rather legalistic basis. However, when one loses, one perhaps sometimes holds a less generous view of the quality of the judgment than one would hold in other circumstances.

In its ruling, which rejected the application, the Commission noted that it was, confronted with a special institution, namely GCHQ, whose purpose resembles to a large extent that of the armed forces and the police insofar as GCHQ staff directly or indirectly, by ensuring the security of the respondent Government's military and official communications, fulfil vital functions in protecting national security". I believe that that accurately reflects the role of GCHQ. It is one of the security and intelligence services and forms an integral part of the UK's organisation for defence and national security. As is made clear in the Bill, the Armed Forces play an integral role in GCHQ operations and many of the functions of the civilian staff of GCHQ are identical with those of the service personnel. A technical point therefore arises on the application of the amendment in that, in view of the definition of "GCHQ" in Clause 3(3), it would include units of the Armed Forces.

Finally, the Bill is primarily about the functions, purposes and oversight of the intelligence services. Following the parallel of the Security Services Act, it does not set out to cover matters such as conditions of service. I wonder, therefore, at the appropriateness of singling out one specific aspect of conditions of service at one of the agencies in this way for inclusion in the Bill in the way that the amendment seeks to do. However, my primary reason for inviting your Lordships not to accept the amendment is the reason of principle which I explained at the outset; namely, the essential character of continuity of operations at GCHQ.

In the light of those considerations I hope that the amendment will not be pressed. If it is pressed, I hope that your Lordships will reject it.

Lord Lester of Herne Hill

Perhaps the noble and learned Lord will indicate whether or not he agrees with me, in answer to the point made by the noble Lord, Lord Tebbit, that there would be nothing to stop the solemn and binding undertakings—which the noble Lord referred to as being "not bankable"—being reduced into a collective agreement; being given contractual force by agreement between the unions and the Government, and therefore being fully enforceable in court by an injunction if necessary.

The Lord Chancellor

I have been asked for advice on matters of this sort long enough not to be willing to give it without seeing the terms of the document in question. The Prime Minister's Written Answer indicates that any further proposals on the subject that the unions may wish to put forward may be considered. I would be content that legal advice other than my own should be taken on any document that may be submitted in furtherance of that objective.

Baroness Turner

I am disappointed with the response of the noble and learned Lord to the submissions made from this side of the Committee, not only by myself but by a number of other Members who spoke in the debate. First, the noble and learned Lord referred to the disruption in 1979–81. I simply echo what was said earlier by my noble friend Lord Houghton; that times have changed. Not only that, but the Government introduced their own legislation. It is true that I do not like it very much, but that legislation makes the whole business of calling industrial disputes much more, difficult for unions and involves balloting members and so forth.

Moreover, with regard to the assurances given by the unions (they were forthcoming from the Civil Service unions under the auspices of the TUC) the Prime Minister was asked whether there were any assurances that could be offered which would remove the anxiety about a conflict of loyalty. Therefore, the unions themselves are willing to bend over backwards to meet the Government's fears on the issue of GCHQ's continuous operation.

It was made clear from this side of the Committee that the Civil Service unions are willing to accept that GCHQ is a special case and therefore assurances in regard to continuous operation should be and have been forthcoming. As the noble Lord, Lord Lester, indicated, they could be enshrined in a collective agreement which could be made enforceable. The whole point about the offer that has been made to permit the staff association to apply for membership of the Council of Civil Service Unions is not felt by the TUC or the unions concerned to be an adequate response. I quote again from the letter I had from the TUC: It is the trade union view that this does not extend to the employees concerned any guarantee of a right to choose freely an organisation to represent them". We have had a very good debate on this issue. I feel, as the Committee will well understand, very strongly about it. There is an important point of principle at stake here. The noble Lord, Lord Callaghan, has spelt that out very clearly. I therefore wish to take the view of the Committee.

6.40 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 44; Not-Contents, 103.

Division No. 1
Acton, L. Gallacher, L.
Airedale, L. Gould of Potternewton, B.
Archer of Sandwell, L. Graham of Edmonton, L. [Teller.]
Blackstone, B. Hamwee, B.
Brimelow, L. Harris of Greenwich, L.
Callaghan of Cardiff, L. Haskel, L.
Dean of Thornton-le-Fylde, B. Hilton of Eggardon, B.
Dormand of Easington, L. Houghton of Sowerby, L.
Ennals, L. Howell, L.
Hutchinson of Lullington, L. Murray of Epping Forest, L.
Jay, L. Nicol, B.
Jeger, B. Ogmore, L.
Jenkins of Putney, L. Pitt of Hampstead, L.
Kagan, L. Rea, L.
Kilbracken, L. Richard, L.
Lester of Herne Hill, L. [Teller.] Sefton of Garston, L.
Lockwood, B. Serota, B.
McGregor of Durris, L. Stoddart of Swindon, L.
Mclntosh of Haringey, L. Turner of Camden, B.
Mayhew, L. White, B.
Merlyn-Rees, L. Williams of Elvel, L.
Mulley, L. Williams of Mostyn, L.
Addison, V. Lauderdale, E.
Aldington, L. Leigh, L.
Archer of Weston-Super-Mare, L. Lindsey and Abingdon, E.
Armstrong of Ilminster, L. Lyell, L.
Arran, E. McColl of Dulwich, L.
Astor, V. Mackay of Ardbrecknish, L.
Astor of Hever, L. Mackay of Clashfem, L. [Lord Chancellor.]
Blatch, B. Macleod of Borve, B.
Boyd-Carpenter, L. Malmesbury, E.
Braine of Wheatley, L. Mersey, V.
Bridges, L. Miller of Hendon, B.
Burnham, L. Milverton, L.
Butterworth, L. Mottistone, L.
Cadman, L. Nelson, E.
Campbell of Croy, L. Newall, L.
Carnegy of Lour, B. Onslow, E.
Carnock, L. Orr-Ewing, L.
Chalker of Wallasey, B. Park of Monmouth, B.
Chelmsford, V. Plan of Writtle, B.
Clanwilliam, E. Rankeillour, L.
Craigavon, V. Reay, L.
Craigmyle, L. Renton, L.
Cranborne, V. Renwick, L.
Cumberlege, B. Rodger of Earlsferry, L.
Dacre of Glanton, L. Romney, E.
Dean of Harptree, L. St. Davids, V.
Denham, L. Seccombe, B.
Dixon-Smith, L. Skelmersdale, L.
Dormer, L. Stevens of Ludgate, L.
Eccles of Moulton, B. Stewartby, L.
Elliott of Morpeth, L. Strathcarron, L.
Faithfull, B. Strathclyde, L.
Ferrers, E. Strathcona and Mount Royal, L
Flather, B. Strathmore and Kinghorne, E. [Teller.]
Fraser of Carmyllie, L. Sudeley, L.
Gilmour of Craigmillar, L. Swinfen, L.
Gisborough, L. Tebbit, L.
Glenarthur, L. Thatcher, B.
Goschen, V. Thomas of Gwydir, L.
Greenhill of Harrow, L. Thurlow, L.
Greenway, L. Trumpington, B.
Harmsworth, L. Tugendhat, L.
Hayter, L. Ullswater, V. [Teller.]
Henley, L. Vivian, L.
Hertford, M. Wade of Chorlton, L.
HolmPatrick, L. Wakeham, L. [Lord Privy Seal.]
Hood, V. Westbury, L.
Hooper, B. Wilberforce, L.
Howe, E. Wilson of Tillyorn, L.
Jeffreys, L. Wynford, L.
Kenyon, L.
Knutsford, V.
Lane of Horsell, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.49 p.m.

Clause 3 agreed to.

Clause 4 [The Director of GCHQ]:

[Amendment No. 9 not moved.]

Clause 4 agreed to.

Clause 5 [Warrants: general]:

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Skelmersdale

It is with some trepidation that I enter into such an erudite subject as the Intelligence Services Bill, on which few of us are qualified to speak. But I believe that many of us are qualified to speak on the subject of drafting. Clause 5(1) starts with the most horrendous double negative: No entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section". Responding to the first amendment today, my noble and learned friend said that the way in which Acts of Parliament are drafted is a matter of judgment. Unintentionally no doubt, he made a rod for his own back, as far as I am concerned, in saying that.

I would like to ask what the horrendous phrase actually means. My first thought was, "I should hope not, indeed." My second and probably more mature thought was: does it mean that entry and so on shall only be lawful if it is so authorised or indeed that entry, and so on, shall be unlawful unless so authorised? It occurred to me that other Acts of Parliament could be involved here where authorisation under this Bill would not be necessary but nonetheless the activities contained in Clause 5(1) would still be legal. Can my noble friend help me and consider whether it would be appropriate to seek a happier and more elegant method of drafting the introduction to the clause?

The Lord Chancellor

I would be sorry to make a rod for my own back if I could avoid it, and I doubt if I have done so on this occasion. I believe that the drafting is as neat a way of expressing the underlying idea as can be devised. The problem is that there are plenty of entries on to property which are perfectly lawful. There are entries on to property which can be authorised in all sorts of ways.

In order to give effect to a warrant one wants to have a situation which prevents the entry being unlawful as a result of the warrant being given. I cannot think of any better way of expressing it than that chosen. I know that my noble friend is critical. If he can suggest a better way of expressing the same idea and without unnecessary words, I shall be happy to consider it.

Lord Skelmersdale

I am very grateful to my noble and learned friend.

Clause 5 agreed to.

Clause 6 agreed to.

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

[Amendment No. 10 not moved.]

Baroness Blackstone moved Amendment No. 11:

Page 6, line 22, at end insert:

("(9) The Secretary of State shall report to the Intelligence and Security Committee once a year on the number and general description of all acts authorised under section 7 in the previous year.").

The noble Baroness said: The purpose of this amendment is to ensure that the committee is properly informed about all authorisations of illegal acts. The whole point of setting up a special parliamentary committee is to make the work of the intelligence and security services more accountable. Accountability to Parliament is necessary because, first, agents of the state who act on its behalf must be subject to adequate control by the elected representatives of the people. Secondly, the three services must be accountable to ensure that the quite considerable sums of public money spent on them are efficiently and effectively used and not wasted. I regret to say that secrecy can easily encourage inefficiency.

Thirdly, decisions about invading the privacy of others and acting outside the civil and criminal law should not be made by people who have a monopoly of information, who know that they need not share their knowledge and who thus have power without responsibility. Fourthly, accountability and openness can promote public trust and understanding of the reasons for the need to have services of this kind.

It is an essential part of the function of the committee to oversee the work of the intelligence services. The authorisation of activities under Clause 7 by the Secretary of State is likely to involve some of the most controversial issues. It is therefore important that the committee has sufficient information in order to carry out this important task. The lack of any requirement that such authorisation should be agreed by any independent mechanism such as a court makes scrutiny by the committee all the more important.

On this side of the Chamber we have some doubts that the committee will be able to exercise adequate monitoring of the three services because of the controls on its access to information about those same services. In the United States, Canada and Australia, reforms have been introduced over the past decade which give greater accountability than that proposed by this Bill.

If a better scheme is possible in those countries, surely there is no reason why it would not work here, too. The Bill imposes no real controls on how the Secretary of State should exercise his or her discretion. The provisions in the Bill imply that the members of the committee cannot be trusted with sensitive information. I assume that members of the committee will be carefully selected and that they will be people of responsibility who can be trusted with such information. The fact that they are not to be trusted with sensitive information is contrary to the position of the commissioner who has free access to all information. I beg to move.

Baroness Park of Monmouth

Under Clause 8 the commissioner will be reviewing all the warrants issued by the Secretary of State. The amendment therefore confuses two sets of functions—those of the commissioner and those of the committee. Moreover, the amendment would be a threat to the need-to-know principle. The committee is there to look at expenditure, administration and policy, not at delicate operations. I cannot stress too much that to extend its powers in the manner proposed cannot but have an adverse effect on the readiness of delicate sources, both actual and potential, to risk their identities becoming known and in many cases their lives being put at risk because the ring of secrecy has been unnecessarily widened. Need-to-know really matters.

In any dictatorship—and many still survive—intelligence on its undisclosed intentions is among the requirements Ministers will place on the service. An official or a member of the local services, or someone close to the dictator, will have right of access. The activity which he or she carries out on our behalf could very easily put them in breach of the law; for instance, in providing official documents. As in the case of a source reporting from inside a terrorist organisation, his life could be forfeit on discovery. It is vital that such sources feel that identities will be known only to the smallest possible circle. In the United States, which has been cited, one of the serious ill effects of the system of oversight—although the DDO, which is the CIA equivalent of the SIS, reports only at intervals on covert operations and not on sources and methods—has been the chill factor. Major sources were frightened off by the fear of leaks, and liaison services, whose co-operation and trust is vital to many operations abroad, ceased to confide and co-operate. In this dangerous world we really cannot afford that.

7 p.m.

Lord Richard

I rise only because I was slightly provoked by something that the noble Baroness just said about the composition and the functions of the Intelligence and Security Committee under Clause 10. I may as well raise it now so that the noble and learned Lord the Lord Chancellor can deal with it. If I heard her correctly, the noble Baroness said that the function of the committee was only to examine expenditure, administration and policy—not operations. For the life of me, I do not see how one can consider the administration and expenditure of the service without knowing at least something about the sort of operations upon which it is spending its money. I should be grateful if the noble and learned Lord could clear up what on the face of it seems a difficult ambiguity. If the provisions mean what the noble Baroness says that they mean, I fear that we may have to table some additional amendments on Report.

Baroness Park of Monmouth

Perhaps I may reply to that. I think that I said that the committee would not be responsible, as the commissioner would be, for operational sources and methods—that is, the detail.

The Lord Chancellor

I think that it is important in this Bill, particularly having regard to its specialised subject matter, to notice that there are three distinct provisions for oversight: the commissioner, the tribunal and the committee. The commissioner, who will be independent and a high judicial officer, will review warrants and authorisations. The tribunal will, again, be of a high quality of impartiality and will investigate complaints. The business of the oversight committee of parliamentarians will be to examine the expenditure, administration and policy of the three services. The oversight committee will have all the information that it needs to fulfil that function. Schedule 3 makes that clear.

The extent of the information that will be required in order to fulfil that function is a matter for which, ultimately, the Secretary of State has responsibility in connection with ensuring that information which is withheld is withheld only if it would not be proper to hand it over to an ordinary Select Committee. The level of detail that will be required in that connection would need to be judged in accordance with the circumstances. However, I think it highly unlikely that the very detailed information which would identify sources, for example, would be part of that. The number of persons having access to information which could identify and therefore put at risk the lives of sources would have to be strictly limited.

The commissioner has responsibility for reviewing the exercise by the Secretary of State of his powers to give authorisations and to issue warrants. The Bill therefore empowers him to have unlimited access to information, including operational information, in order to fulfil that function. I believe that that is a sensible and effective division of functions between the commissioner and the committee.

The Bill provides that the commissioner makes an annual report which is laid before Parliament. The committee, which will consist of parliamentarians, will therefore see the annual report which the commissioner will lay before Parliament on the discharge of his functions, which will include his review of the Secretary of State's giving of authorisations. Therefore, I venture to suggest that the amendment confuses two distinct means of safeguarding the oversight of the activities of the agencies and the relevant activities of the Secretary of State. It is right that the commissioner should have responsibility for his area. The general remit in relation to expenditure, administration and policy should be for the committee. In connection with that, it will receive the commissioner's report which is laid before Parliament. That is the information on that matter which it is proper that the committee should have. Accordingly, and in the light of those considerations, I invite the noble Baroness not to press the amendment.

Lord Richard

Perhaps I may press the noble and learned Lord on this point. Looking at the wording of the amendment, is he saying that the Intelligence and Security Committee would not be entitled to receive once a year information on the number and general description of all acts authorised under section 7"? Such information is given to the commissioner. I do not see how the Intelligence and Security Committee can consider the policy, particularly on the issue of warrants or unauthorised acts, unless it is entitled to receive the information which is referred to in the amendment. In other words, is such information to be solely within the purview of the commissioner or is it open to the Intelligence and Security Committee to receive such information as well? If that is so, I submit that the overview is too compartmentalised.

The Lord Chancellor

The way I see it is this: the detail in relation to authorisations and warrants is a matter for the commissioner. The commissioner then makes a report upon that in which he will no doubt comment, so far as is necessary, upon the policy underlying the granting of those warrants. That report will be available to the committee which can make known such views about it as it wishes. It will receive the report which the commissioner has made having seen the full details. That seems to me to be a satisfactory arrangement which does not in any way unduly compartmentalise the information. However, in this connection, it is important that the information is not unnecessarily distributed. When the commissioner gathers the information that he requires for his purpose, he will make his report upon it which will contain, I should think, all that it is necessary for the committee to know in respect of the policy which governs the granting of those warrants and authorisations.

Baroness Blackstone

If I understand him correctly, I think that the noble and learned Lord is saying that the committee will receive a report from the commissioner which will set out the kind of information that we are asking that the committee should receive on the number and general description of all acts authorised under Section 7". I think that I have understood that correctly.

It seems to me, however, that it might be helpful if the committee were to get that information direct from the Secretary of State when it needs it. It is difficult to have oversight over expenditure if one does not have direct information in the broadest possible terms—I am not asking for great detail on matters such as methods, to which the noble Baroness, Lady Park, referred. However, I say again that information is required in the broadest sense. The amendment refers to, the number and general description of such acts. I am a little bemused about why, if such information is to be included in the commissioner's report, it cannot go direct to the committee from the Secretary of State.

I should like to make it clear that we on these Benches accept the need for such information to be strictly limited, and that we accept it should not be unnecessarily distributed. However, I think I am right in saying that, as presently drafted, the Bill proposes a very small committee of only six people. That is hardly a very large number of additional people to whom such information should be distributed. As I said earlier, I assume that they will be carefully selected.

I do not wish to press the amendment but will reconsider the matter between now and the next stage when we may want to return to it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 [The Commissioner]:

Baroness Blackstone moved Amendment No. 12:

Page 6, line 42, at end insert: ("( ) Any reports made to the Prime Minister by the Commissioner shall at the same time be made to the Intelligence Services Committee referred to in section 10 of this Act.").

The noble Baroness said: As I said on the previous amendment, it is an essential part of the committee's function to oversee the work of the Intelligence Service. The current provisions in the Bill imply that the members of the committee cannot be trusted with sensitive information. That is contrary to the position of the commissioner who, as we have already agreed, is entitled to free access to all information. His or her report will provide essential information to the committee members who should be able to see it.

I assume from what the noble and learned Lord said on the previous amendment that he will have no difficulty in accepting this one. There is a real danger that the committee will be unable to have any influence on any of the three services if there are to be draconian controls on its access to information about the services. But I understand from what the noble and learned Lord said last time that such controls will not exist because the committee will be able to have access to the commissioner's report, which will provide that information. I hope that on this occasion, which will be the first time in this Committee, the Government can accept the amendment. I beg to move.

The Lord Chancellor

I am sorry to disappoint the noble Baroness. The effect of the amendment, as she has explained, would be to give the committee automatic access to all reports made by the commissioner to the Prime Minister, including material which the Prime Minister would be entitled to exclude before presentation to Parliament under Clause 8(7). Clause 8(7) provides that the Prime Minister may exclude material if it appears to him, after consultation with the commissioner, that it would be prejudicial to the continued discharge of the functions of the SIS or GCHQ. There is a similar provision for the Security Service in the Security Service Act.

The essential point that I sought to make in relation to the previous amendment was that we have tried to take care to establish clear, proper and separate roles for the commissioner and the committee. Those roles are set out in Clauses 8 and 10 respectively. By virtue of the commissioner's role, which has to do with a review of the exercise of the Secretary of State's powers under Clauses 5 to 7, and essential matters affecting the tribunal and its work, the commissioner must necessarily have unfettered potential access to the entirety of the services' work and record. That must, as appropriate, include access to crucial operational details. It might well be that the commissioner would think it right, in his report to the Prime Minister, to make specific reference to precise operational detail about which he thought the Prime Minister, as responsible ultimately for the Security Service and the Intelligence Service, should know. However, the committee's position is different. The business of the committee is to scrutinise the expenditure, administration and policy of the three services. As I said, that remit is distinct from, although complementary to, that of the commissioner.

In order properly to do its job, the committee does not need —I believe that this was accepted by the noble Lord, Lord Richard, on the previous amendment—to have the same level of access and the same detail as the commissioner. Therefore, to reflect the different access that the respective roles of commissioner and committee require, the Bill contains detailed provisions in Schedule 3 governing access to information by the committee.

The commissioner's report, as I said, might well find it necessary to refer to the detail of a current operation. Automatic disclosure of that information to the committee might well not be appropriate. It does not necessarily mean that in some circumstances it might not be able to obtain it, but the amendment would make that automatic. Accordingly, the Government consider that it is entirely appropriate that the commissioner should report directly and only to the Prime Minister who carries the ultimate responsibility for protecting national security, and that the report to which the committee would automatically have access would be the commissioner's report, as presented to Parliament, subject to the excisions which the Prime Minister could make under Clause 8(7).

7.15 p.m.

Lord Richard

I am sorry to intervene again on this point, but I had thought that on the previous amendment we had this reasonably clear. I am not sure now whether we have. I thought that on the previous amendment the noble and learned Lord told us that the commissioner would send a copy of his report, at least on the generality of the issues, to the committee. I gather from what he is now saying that he did not believe that to be the position. We are not asking that the commisstoner should send to the committee every part of his report on detailed operations that he makes to the Prime Minister, but I do not for the life of me see why he should riot report to the intelligence committee once a year on the number and general description of all acts authorised in the previous year under Clause 7. I thought that on the previous amendment the noble and learned Lord was accepting that there should be that kind of general report, which is what we were asking for on the previous amendment, but that it should come from the Secretary of State and not the commissioner.

The Lord Chancellor

There may be some confusion. My understanding of Amendment No. 12 is that it wants any reports made to the Prime Minister by the commissioner to be made at the same time to the intelligence services committee referred to in Clause 10. That is the whole report. There may be detail in that, in relation to the operational matters, which it is not appropriate to hand out to the committee. I believe that the noble Lord accepts that. If he accepts that there may be detail in the report made to the Prime Minister which is not appropriate to go to the intelligence services committee, then the amendment does not work because it requires the whole report to be sent to the committee. Therefore, what the noble Lord is saying, while it might be acceptable, is not what the amendment asks for.

Lord Richard

No, with great respect it was the previous amendment. The only difference is that it should be the commissioner instead of the Secretary of State who sends it. I thought that the noble and learned Lord was accepting that on the previous amendment. If he is saying that he cannot accept the amendment which demands that all the detailed reports should go to the committee, but that he will accept that the commissioner's report on the generality of the issue should go to the committee, I am content to leave it there, and no doubt suitable drafting can take place between now and Report.

The Lord Chancellor

What I am saying, and I hope that it is clear, is that the commissioner's report goes to the Prime Minister. The Prime Minister can make excisions for reasons given in Clause 8(7). The resulting report, subject to the excisions, will go to Parliament. Therefore the committee will receive it because its members are all parliamentarians. That is what I said in answer to the previous amendment. So the general report, subject to the excisions, will be available to the committee, in accordance with the arrangements made, because its members are all Members of Parliament. No doubt other matters may have to be raised, but that is the essential of it. Therefore the committee will receive the commissioner's report in so far as it is appropriate for Parliament to receive it, subject to the excisions. That is what I said on the last amendment. I believe that what I am saying on both amendments is consistent.

Baroness Blackstone

I do not want to pursue this matter much further other than to say that there must be some anxiety in a Bill that is designed to make the services more accountable, including more accountable to Parliament, that the Prime Minister, as head of the Government, has carte blanche to take out of the commissioner's report anything he wishes, therefore denying the carefully selected members of the committee of Parliament the opportunity to see what it seems to me they should be able to see if the services are to be accountable and they are to have proper oversight of the expenditure of these services. However we will look again at this issue and come back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 agreed to.

Schedule 1 [Investigation of Complaints]:

Baroness Blackstone moved Amendment No. 13:

Page 9, line 19, at end insert ("and

(c) whether any information collected should now be destroyed because it is no longer necessary for national security to retain it.").

The noble Baroness said: The purpose of the amendment is to ensure that the tribunal can consider whether material collected on individuals or organisations either by the Secret Intelligence Service or GCHQ needs to be retained or whether it can at an appropriate time be destroyed without any damage to national security. At present the Security Service keeps its records on individuals for ever. That was made clear in the 1991 report of the Security Service Commissioner. The Security Service tribunal has absolutely no power to order the destruction of the files. This anomaly will be introduced by the Bill for both the intelligence services and GCHQ.

Perhaps I may give a particular example. In 1985 there was evidence from an ex-member of the security services, Miss Cathy Massiter, that Patricia Hewitt and Harriet Harman, former General Secretary and Legal Officer of the National Council for Civil Liberties respectively, had been subject to surveillance for a long period of time. Following an application to the European Commission of Human Rights by Liberty, then the National Council for Civil Liberties, the commission found a breach of Article 8, the right to privacy, and of Article 13, the right to an effective remedy.

The Government then produced the Security Services Bill 1989. Following an application made by Miss Hewitt and Miss Harman in July 1981, the new Security Service tribunal rejected their complaint stating that it had no jurisdiction to investigate any complaint concerning the retention of files on the two women. An application to the High Court for judicial review failed and the court said that the 1989 Act did not allow it to review the tribunal's decision.

In the commissioner's annual report he commented on the problem of retention of files and explained the procedure. However, he was clearly unable to do anything else about it. A further complaint was made to the European Commission of Human Rights but in September 1993 the commission decided that it was inadmissible. Thus information collected on these women—one who is now a Member of Parliament and a member of the Shadow Cabinet, and the other who is a well-known public figure, Deputy Director of the Institute of Public Policy Research and the Deputy Chairman of the Commission on Social Justice—will be kept indefinitely with no legal controls on who has access to it.

Can it really be acceptable that information that was collected through the surveillance of individuals should be retained for ever in all cases? Surely it should be legally possible for the tribunal to investigate the need to retain files in cases such as this. I beg to move.

The Lord Chancellor

This amendment would extend the tribunal's responsibilities to include the review of records held by the SIS and GCHQ with a view to deciding whether they should be retained or destroyed. While I understand the anxieties underlying this amendment, I suggest that it is both unnecessary and undesirable.

Paragraph 8(1) (a) of Schedule 1 already provides that the tribunal may order the destruction of records where it has investigated a complaint and found that the SIS or GCHQ acted unreasonably in respect of an individual. Where the records have arisen as a result of unreasonable acting in respect of an individual, the tribunal has the power to order the destruction of the records. The Secretary of State has a similar power by virtue of paragraph 8(3). I believe that this is what is appropriate and what deals with the heart of the matter as explained by the noble Baroness. I believe that it would be inappropriate to broaden the tribunal's responsibility or power in this respect.

In his annual report for 1991 the Security Service Commissioner, Lord Justice Stuart-Smith, commented on his investigation into the records policy of the Security Service. He noted firstly that it was the policy of the service to retain records indefinitely on the basis that they might become of relevance at some time in the future. He pointed out that each case must be justified on its merits. I believe the same argument must hold true for the SIS and GCHQ. It would be very difficult to be sure that a particular piece of information had no longer, nor was likely to have in the future, any national security implications. That is assuming that it has been reasonably acquired, because the power of the tribunal comes in in cases where information has not been reasonably acquired.

He also noted that with the establishment of the tribunal it was important that those records which had previously been destroyed as irrelevant or unnecessary should now he retained. For example, it may occasionally happen that the Security Service opens a file on a person or organisation in error; that is to say that after an initial period it becomes clear that the individual or organisation should not have been classified as subversive or a terrorist or whatever. However, the file should be retained so that in the event of a complaint full information may be given to the tribunal to allow it to consider whether the agency had reasonable grounds for instituting investigations. In Lord Justice Stuart-Smith's words: It does not follow that because the temporary file is not converted into a permanent one, or the Service decides that an error of categorisation has been made, that the original inquiries were not justified. It seems somewhat ironical that the Service now retain such records which it does not require for its own purposes and which it would otherwise have destroyed. But it is plain that they must now do so". That is in order to give the tribunal the necessary material to investigate this if the matter should arise.

The standard of record keeping by the Security Service was commended. While the SIS and GCHQ have not yet been required to hold records in any particular format, the legislation requires the heads of the agencies to put in place arrangements for ensuring the proper handling of information. I understand that work on reviewing in-house records arrangements is already under way and I am confident that similarly high standards will apply.

In my submission, the power that the tribunal has in paragraph 8(1) (a) to order the destruction of records is appropriate and it would be inappropriate to broaden the tribunal's responsibility or power in this particular respect. I hope that in the light of this explanation the noble Baroness will not press the amendment.

Baroness Blackstone

Before deciding whether to press the amendment I wish to ask the noble and learned Lord one question. I was a little unclear about it and perhaps he will forgive me. Is the noble and learned Lord saying that all files must be kept in perpetuity just in case a complaint is made at some later date? He appeared to be saying that at one point in his response.

The Lord Chancellor

I was quoting what was said by the commissioner, Lord Justice Stuart-Smith, in relation to the Security Service. He stated: It seems somewhat ironical that the Service now retain such records which it does not require for its own purposes and which it would otherwise have destroyed. But it is plain that they must now do so". For precisely how long is not dealt with. He did not say "in perpetuity", and therefore nor did I, but that is what I read.

Baroness Blackstone

Surely it would be a little ironic if somebody complained not about the original surveillance but about the fact that information that had been acquired about his private life were to be kept for ever and ever, even though there was no reason on the grounds of national security for retaining it, simply in case he might make a complaint. I find that hard to comprehend.

May I also ask the noble and learned Lord whether it will be possible for the tribunal to hear a complaint simply that files have been retained on an individual? That would be the nature of the complaint. Are they allowed under this legislation to hear such a complaint? I am not quite clear about that.

7.30 p.m.

The Lord Chancellor

The grounds on which the tribunal exercises its power is contained in Section 9 of the Bill. The tribunal is for the purpose of investigating complaints about the Intelligence Service or GCHQ in the manner specified". The complaints are in no way narrowed by that particular clause. In other words, any complaint is a proper matter for the tribunal. Procedure for dealing with the complaint is set out in Schedule 2, in particular in paragraph 3.

In my view, it follows that the sort of complaint which the noble Baroness has indicated would be covered by the jurisdiction of the tribunal, and the question would be whether or not the service in question had acted unreasonably in respect of the individual in connection with the information.

Lord Lester of Herne Hill

Can the noble and learned Lord the Lord Chancellor say whether that is really the position in the light of what one finds in paragraph 10(1) of Schedule 1? Paragraph 10(1) says: No complaint shall be entertained under this Schedule if and so far as it relates to anything done before the date on which this Schedule comes into force". I wonder whether that would exclude the kind of case to which the noble Baroness, Lady Blackstone, has referred, where there has been an improper retention of personal data at a date before the schedule came into force. Perhaps I have missed something.

The Lord Chancellor

I was talking about the general nature of the complaint rather than the particular date on which it happened. I said that a complaint of that type was covered because there is no restriction on the type of complaint.

So far as the point on paragraph 10(1) is concerned', the example which the noble Baroness gave would refer to retention of the record at the time that the complaint was being made. Presumably that would be after the date on which the schedule would come into force. So I think the answer to the noble Lord's question is again yes.

Baroness Blackstone

I am reassured by the answer to that question. Clearly, this is a difficult and complex area and I do not wish to press the amendment this evening, but I should like the opportunity to look at it again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Strathmore and Kinghorne

I think that this might be a convenient moment for the Committee to adjourn, and I suggest that the Committee stage resumes at 8.20 p.m.

[The Sitting was suspended from 7.34 to 8.20 p.m.]

Baroness Blackstone moved Amendment No. 14:

Page 10, line 18, at end insert:

("( ) 8. The Tribunal shall submit details of every determination made by it, its reasons for the determination and the relevant background papers, to the Intelligence Services Committee.").

The noble Baroness said: The purpose of the amendment is to ensure that the committee is aware of the nature and details of the complaints made to the tribunal about the Intelligence Service and GCHQ. So that the committee may be able to consider the workings of the two services, it must know what complaints have been made and how they have been dealt with by the tribunal. While the vast majority of complaints to the Security Service Tribunal appear to be unjustified—that information comes from the annual report of the Security Service Commissioner—they are not all misconceived and some complaints will, presumably, illustrate more general problems in the functions and working of the services. I am sure that that information will be very helpful for the work of the committee. The amendment is a very simple one. I hope very much that the Government will feel able to accept it. I beg to move.

The Lord Chancellor

The amendment, like others we have dealt with, risks confusing the functions of the tribunal and the committee. The tribunal is responsible for investigating complaints and may therefore need access to very detailed operational information in some situations. On the other hand, the committee has access in terms of later provisions to the information that it needs in order to fulfil its functions. It is by no means clear that it would be necessary for the committee to have information in the detail that the tribunal may require.

In my submission, the proper arrangement is for information to go to the committee under its arrangements with the head of agency having responsibility for deciding whether sensitive information may be released to the committee. Then, of course, the Secretary of State would have the power to decide if he wished to allow information to go forward.

The effect of the amendment would be that a fairly broad category of case would bypass the above procedure. The committee has no role in relation to complaints against the agencies for which adequate alternative arrangements exist under the Bill. Those arrangements include the responsibility of the tribunal relating to complaints received about the activities of SIS and GCHQ. The legislation is framed in such a way as to enable such complaints to be properly and effectively dealt with. As I said at the outset, it would be confusing to require, as the amendment does, the detail underlying the decisions of the tribunal to go to the committee.

I have no doubt that what lies behind the amendment is the feeling that the committee may not receive all the information that it requires under its own procedures. In my submission, the arrangements for information to the committee are appropriate. What is proposed would really confuse the arrangements for the tribunal with those for the committee. In the light of those explanations, I hope that the noble Baroness will feel able to withdraw the amendment.

Lord Lester of Herne Hill

I understand exactly what has been said by the noble and learned Lord the Lord Chancellor about the different functions of the committee and of the tribunal. However, underlying the amendment may also be a concern that the tribunal should give reasons for its determination. I have in mind reasons not only to the complainant—a matter which arises later—but also reasons so that an oversight committee, without necessarily having the relevant background material, at least understands the basis of the determinations made by the tribunal.

Leaving aside the question of the different functions of the tribunal and the committee, I should be grateful if the noble and learned Lord could assure Members of the Committee that the tribunal will give a reasoned decision to whomsoever that decision goes, setting out the full basis of it so that one can understand how the analogy with judicial review is being applied.

The Lord Chancellor

The duties of the tribunal are set out in paragraph 6(1) of Schedule 1 to the Bill, which reads: Where the Tribunal determine under paragraph 3 above that the Intelligence Service or, as the case may be, GCHQ did not have reasonable grounds for doing what it did, they shall—

  1. (a) give notice to the complainant that they have made a determination in his favour; and
  2. (b) make a report of their findings to the Secretary of State and to the Commissioner".
Therefore, so far as concerns the complainant, what he or she receives in such a case is a determination statement that there has been a determination in his or her favour. Members of the Committee will see that if the tribunal does make such a determination it has various powers set out in paragraph 8 of Schedule 1 under the heading of "Remedies".

The tribunal is not required to give any more than notice of its determination. It is difficult to see how reasons could be given without the background on which the reasons rest. In such an area, the idea that reasons could be given which are consistent with the nature of the Intelligence Service and GCHQ—and, indeed, the Security Service, in relation to the other Act—is quite a difficult one. I do not believe that it would be at all desirable, in general, for reasons to be given. I would not have thought that the amendment is intended to cover that point. The idea behind the amendment is that the reasons should be submitted to the intelligence services committee, but not to the complainant. Therefore, I believe that the purpose put forward by the noble Lord, Lord Lester of Herne Hill, would not be covered by the amendment.

Lord Lester of Herne Hill

Perhaps I may be forgiven for rising to speak again. I can well understand why the individual complainant in this exceptional area might need to be deprived of the reasons for an adverse decision. However, if there is to be an oversight committee which is worth its name, it seems to me that it would need to know what was going on in a general sense in the area of individual complaint, as well as in regard to other matters. It is within the ring of secrecy because its six members are worthy of being trusted in that way. It seems to me desirable that they should receive the reasoned report of the tribunal as a matter of form, though perhaps not the background material because that might contain some operational and sensitive matter. However, at least the reasoned report should go to them. Otherwise, one is setting up an oversight committee rationed in a way that will make for dispute and conflict between that committee and the other bodies involved thereby frustrating the very object of the Bill in that respect.

The Lord Chancellor

I do not altogether follow that argument. As the Bill makes clear, the oversight committee has the responsibility for the expenditure, administration and policy of the Security Service. Where there are complaints, there may be some question that infringes upon policy. In that situation, the information relevant for that purpose will be available to the committee under its own arrangements. At present, I do not see that anything further would be gained in the way of information to the committee by the effect of the amendment. The reasoning under which a complaint is either sustained or rejected will usually depend upon details of the operation. Therefore, to give any kind of sensible reasoning, one would have to narrate, in some shape or form, the underlying detail about the operations. I cannot see that those reasons can be given in the abstract. Therefore, if one seeks to achieve the aims underlying this amendment, there is a risk that it will only give rise to confusion.

It is true that the committee is within the ring of secrecy, but as my noble friend Lady Park of Monmouth explained, one of the important aspects of the matter is the need to know. Although a person may be within the ring of secrecy, if he does not need to know he should not be informed. As the noble Baroness said earlier, it is true that there are only six members, but when it comes to giving out information six is quite a large number. I believe that the principle which would be generally acceptable is that those members should know only if they need to know. Therefore, I submit that it would not be right that details of a particular operation, which would underlie the reasoning in respect of a complaint, should be given as a matter of a course to the committee.

Therefore, I believe that the whole structure of the Bill is that each of the three oversight authorities, as I would call them, has its own particular responsibilities and the arrangements for giving information to the three authorities are dove-tailed with the responsibility for the particular oversight that that authority has.

8.30 p.m.

Baroness Blackstone

I am grateful to the noble and learned Lord for making it clear that information on complaints about policy will be passed on to the committee. Can I assume that complaints about expenditure and administration will also be passed onto the committee and, indeed, information about the decisions which the tribunal has reached about those matters? Since those matters are clearly within the remit of the committee, it should have oversight of them.

The Lord Chancellor

It is clear that where a matter of policy is the subject of inquiry and operational details are not required, the information underlying that would be available under the arrangements for the committee. If a question of policy is at issue then the necessary information to support that, and to enable consideration of it or an investigation to be made, would be available.

The only restriction that one must have in mind in that regard is the possibility that sensitive information may underlie it and the procedures set out in the schedule would apply. But where it is a question of policy, obviously it falls within the ultimate remit of the committee and the necessary information, subject to sensitivity, would be made available.

Baroness Blackstone

I am sorry to press the noble and learned Lord but I really wanted to know whether information on complaints made about unnecessary expenditure or inefficient or ineffective administration would be made available to the committee, since those matters are very much within its remit.

The Lord Chancellor

I believe that it would depend to some extent on what the committee asked for. I assume that the committee would be interested in any matter which affected expenditure, policy or administration. Therefore, it would be extremely natural for its members to ask what, if any, complaints had been made about administration. I know from my experience that one way in which one exercises a degree of administerial oversight is to know what are the complaints that have been made against a particular organisation for which one has responsibility. I should expect the committee to ask for that information. I can see no basis on which it would be refused, except that the level of detail might be different for the committee compared with the tribunal or the commissioner. The particular filters for that are set out in the schedule relating to the committee. Therefore, this is a general answer which applies to policy, administration and expenditure.

Lord Armstrong of Ilminster

Perhaps I may make this duet into a trio. It seems to me that the tribunal is concerned with complaints. The first paragraph of Schedule 1 states that: Any person may complain to the Tribunal if he is aggrieved by anything which he believes the Intelligence Service or GCHQ has done in relation to him or to any property of his". If the answer to the tribunal's investigation is a determination in the complainant's favour, the point seems to be met because paragraph 4(2) of Schedule 2 empowers the tribunal to make an exception to the rule not to give reasons in cases of reports where a determination is made in the complainant's favour. I suggest that that is so far, so good.

Where the tribunal takes a decision not in the complainant's favour, there are good reasons of the kind outlined by the noble and learned Lord the Lord Chancellor as to why it may be contrary to the public interest and national security to give those reasons. Of course, there may be two reasons why the tribunal has decided not to uphold the complaint: either because the activity or the operation complained of never happened or because, if it happened, it was reasonable and necessary. As the noble and learned Lord the Lord Chancellor said, it may be undesirable to disclose the reasons in the latter case. It may equally be contrary to the public interest to disclose why the tribunal has made its decision not to uphold the complaint, whether that is because the complaint is entirely without foundation in that the event did not happen or whether it is the case that though it happened it was permissible.

Baroness Blackstone

I see that the noble and learned Lord the Lord Chancellor is not responding to the noble Lord, Lord Armstrong. I suspect that that is because we have jumped on to Schedule 2 and the next amendment.

As the noble and learned Lord the Lord Chancellor said earlier, the amendment is not concerned with giving information to a complainant. It is concerned with giving information about the work of the tribunal to the committee. He was quite right in saying that what lies behind it is some anxiety that the committee, which after all is being set up in order that these services should be more accountable, should have all the information that it needs. I do not believe that there is any confusion about roles.

In leaving the amendment, I am perfectly aware, as I am sure is the noble Lord, Lord Lester, that the committee does not hear complaints. That must be for the tribunal. The point is that if it is to have proper oversight of the work of these services, it would surely be helpful if it could have some information. Perhaps we should come back at the next stage with a more tightly drafted amendment in order to provide the committee with some data on the number of complaints made, and the general nature of those complaints. That would provide some indication of whether the services are carrying out their work properly or whether they are behaving in a way that is improper. That is exactly the sort of oversight in terms of policy that the committee ought to have.

However, at this stage I do not intend to press the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Schedule 2 [The Tribunal]:

Baroness Blackstone moved Amendment No. 15:

Page 11, line 48, at end insert:

("( ) If after the conclusion of its investigation the Tribunal considers that it can reveal the reasons for its determination to the complainant without damaging national security it shall, after consulting the relevant service or GCHQ, do so.").

The noble Baroness said: We now come to Schedule 2 and to the issue of what kind of information the claimant should be given. The purpose of the amendment is to ensure that the complainant is given as much information as possible about his or her complaint consistent with national security. I emphasise the proviso that it should be consistent with national security because I am perfectly happy to accept that there will be many cases in which it would be very difficult to give the complainant details about the reasons for a decision.

The present proposals in the Bill are for the tribunal to hear complaints. However, one of the problems in relation to complaints in this area is that for obvious reasons most people will never know whether they are under surveillance. If they did know then perhaps the services would not be undertaking their work effectively. Therefore people will not know whether they are under surveillance and will not be in a position to complain.

Obviously, for the right to complain to be truly effective, and thus to comply with Article 13 of the European Convention on Human Rights, the individual has to be aware that his or her rights have been violated. In Germany, for instance, the authorities are obliged to inform the individual who has been phone-tapped as soon after its termination as is reasonably possible save where that would prejudice the investigation. In many cases, however, I suspect that disclosing information about the surveillance after the operation will not prejudice the investigation or national security.

By way of contrast, the tribunal procedure is completely secretive. Cases will be heard in secret and without a hearing. The complainant has no access to any information, even if disclosure of information would not affect national security. Without access to any information about the case before the tribunal, the complainant is in a somewhat difficult position to argue his or her case properly. The so-called remedy is therefore of rather dubious value. It certainly does not comply with the safeguards contained in Article 6 of the European Convention on Human Rights.

In the circumstances, it is perhaps hardly surprising that since the 1989 Act was set up no complaint has ever been upheld by the tribunal. The Interception of Communications Tribunal set up to deal with telephone tapping in 1985, which has provided the model for the tribunal in both this Bill and the 1989 Act, has an equally "perfect" record.

However, the amendment does not go nearly so far as to require the complainant to be given access to information about his or her case at the time of the complaint. It simply asks the tribunal to review the reasons for its decision. Under the Bill as presently drafted the decision eventually made does not give any indication of what was ascertained by the tribunal, only that a determination was made for or against the complainant. No reasons are given and the complainant is in no position to judge whether the tribunal properly and fairly considered the case or whether it simply acted as a rubber stamp for a decision of the service itself. I do not want to sound cynical and I very much hope that the tribunal when it is set up will never do that; but the complainant will never know whether it does such things.

While in many cases the disclosure of such information might prejudice national security, in some cases it will not. However, even in those cases no further information can be disclosed. Surely in such cases it should be possible for the tribunal to reveal to the complainant the reasons for its decision. I beg to move.

8.45 p.m.

The Lord Chancellor

I can understand that from the point of view of the complainant it may be thought desirable that reasons for decision should be given.

However, we have to recollect the nature of the subject matter with which we are dealing here. One of the anxieties expressed at Second Reading which underlies the way in which we have approached the matter is that voiced by the noble Lord, Lord Chalfont; namely, that if it is to be effective, this must remain a secret operation. The need to secure that is an important part of the way in which the provisions of the Bill have been structured. We remain committed to ensuring the continued security of the operations of the agencies.

For that reason it is vitally important that information about the operations and procedures of the agencies is not inadvertently divulged. Security would be jeopardised if complainants who were properly the subject of SIS or GCHQ inquiries were told of that fact. On the other hand, if the practice were to be introduced of informing only those complainants against whom no action had been taken it could clearly be inferred that complainants who were not so informed had been the subject of action by an agency. That would be very detrimental to the security of the operation. Accordingly, in the Government's view almost any practice of disclosure to a complainant would in the long term damage national security. That would render the amendment dangerous if it were effective. However, as I have explained, the reasons for the determination cannot be given to the claimant as a matter of general rule without damaging national security.

In dealing with security issues, it is often too complex to begin to differentiate between when it is safe to disclose particular pieces of information and when it is not. I believe, therefore, that the only way of safeguarding the integrity of the system is to ensure that all complainants are treated in the same way, even where there are no specific security reasons in an individual case why the reasons for determination should not be disclosed.

I am extremely sorry that the noble Baroness is of the view that the arrangements that we have made do not guarantee a proper examination of the complaint. The whole purpose of the arrangement for looking into complaints is that the tribunal should be of high standing, qualification and integrity. When one considers the nature of the qualifications required and the nature of the people appointed under the previous legislation, it will be seen that the confidence of the complainants is invited on the basis of the standing of the tribunal in question. In my submission, that is an appropriate way to secure an effective answer for complainants. The fact that no complaints have been sustained so far is, I hope, a proper tribute to the way in which the services which have been the subject of investigation so far are carried on.

Because we have gone for a very high standard of tribunal, I believe that it is possible to say that complainants should have confidence in the system. However, they cannot be given reasons for specific decisions affecting them on the grounds that I have given.

Baroness Blackstone

I hope that complainants will have confidence in the system. However, I am sure that the noble and learned Lord will agree that it is more difficult for them to have confidence in the system when such hearings have to be heard in secret and when, at the end of such a hearing, if their complaint is not upheld they are given absolutely no information as to why that is so.

I am sure that well qualified people of integrity will be appointed to the tribunal. Nevertheless, if a complainant's case has been rejected there must remain some doubt in his or her mind that it has not been adequately considered. It is unsatisfactory to have no idea why the case has been rejected.

The noble and learned Lord suggests that reasons cannot be given because doing so might damage national security. However, written into the amendment is a proviso that where giving reasons would damage national security the complainant cannot be informed of them. The point of the amendment is to inform the complainant in cases where such information would not damage national security.

I am a little disappointed in the noble and learned Lord's reply. However, I do not press the amendment at this stage and beg leave to withdraw it.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 10 [The Intelligence and Security Committee]:

Lord Richard moved Amendment No. 16:

Page 7, line 28, leave out ("six") and insert ("nine").

The noble Lord said: This short amendment is in part a probing amendment designed to obtain from the Government the reason why they chose a committee of six. I suppose that the Government can ask, why should they not choose six. However, this is to be a parliamentary committee. As the noble and learned Lord the Lord Chancellor will know, in this building there are certain understandings—I put it no higher—as to the composition of such committees regarding how many members are from the governing side of the House, how many from the Opposition and how many from another Opposition party. Given the necessity for such a balance—however hard one might try I suspect that such considerations would inevitably come into the making up of the committee—I believe that six is a little on the low side. To do the job properly, I believe that a somewhat larger figure is needed. We therefore suggest a committee of nine. I beg to move.

Lord Greenhill of Harrow

I wish to make a short intervention based on my experience in these matters Amendment No. 16 proposes nine instead of six from Members of Parliament for the Intelligence and Security Committee. With a total of nine or six, each member will probably have two or three confidential assistants. Therefore, if one multiplies the number of members of the committee by two or three, it is probable that a fair proportion will not be experienced in these matters. Consequently, I wish to emphasise how important it is to keep down the numbers of those privy to certain most secret matters.

It is so easy to let slip information and to make disclosures which are damaging to the national interests. I remember the case of a young lady who was rather carelessly recruited into the secretarial staff of an intelligence organisation. The inevitable happened and certain secrets were disclosed. When she was rebuked for her errors, she burst into tears and said, "I had only joined the intelligence organisation in order to be interesting at dinner".

Different people have different temptations and the possession of highly secret information is often a temptation for people to boast about their importance. Therefore, I think it prudent, but not essential, to keep the numbers of people privy to these secrets as low as possible. Looking back further in history, it was a Prime Minister who in another place during a debate disclosed that the Russian codes had been successfully broken. The result was that years of work were completely destroyed and everyone had to start again. It is so easy to be prudent in arguments about these matters. Therefore, I believe that it would be proper to keep the number as low as can be politically acceptable.

The Lord Chancellor

As the noble Lord, Lord Richard, said, we have chosen six and he has turned that number on its head and suggested nine. I respectfully subscribe to the view expressed by the noble Lord, Lord Greenhill, that the number of the committee should be kept as small as possible, having regard to the nature of its work. We have adopted that principle. We felt that six was the right number having regard to the different considerations that would have to apply in selecting people to serve.

The interests of political parties in the other place and in this House would have to be taken into account, as also would the factor referred to by my noble friend Lord Vivian at Second Reading. With the experience available in the House, we and the Prime Minister wish, in association and consultation with the Leader of the Opposition, to try to bring that experience to the committee. In the light of that, and having regard to the balance, it seemed to us that six was a reasonable number.

The chairman of the committee is provided with a casting vote. So the fact that it is an even number is not inappropriate. It is also right to say that it would be extremely useful if this committee were to act as a committee with a common purpose. The risk involved in increasing the number is disproportionate to the advantage to be gained. As the noble Lord said, there is always a risk that someone will inadvertently let slip something that might be of vital importance to the lives of people involved in those agencies. The more people we have, the more the risk of a slip occurring.

In view of what the noble Lord, Lord Richard, said about the nature of the committee, it is worth mentioning that, due to the special nature of the committee's work which will involve highly classified material in significant amounts, it will be necessary that meetings of the committee should be held with secure arrangements for storage of the material involved as well as for the security of committee members' conversations. Therefore, suitable accommodation and facilities will be made available in the Cabinet Office. The Cabinet Office will also provide vetted staff to support the committee.

The arrangements approved by the Secretary of State mentioned in Schedule 3 to the Bill will also include guidelines on such procedures as the handling of classified documents. Obviously provision for the cost of the staffing has been made within the Explanatory and Financial Memorandum particulars.

Although I understand that it is always difficult to argue convincingly for a single figure in a situation like this as being right, I venture to suggest that the principles which I have outlined and which have been supported by the noble Lord, Lord Greenhill, who has great experience in these matters, are support for the view that the lower figure of six as being adequate to service the committee is correct. I hope that in the light of that explanation the noble Lord may feel able not to press his amendment.

9 p.m.

Lord Richard

The noble and learned Lord the Lord Chancellor will not be surprised when I say that I do not find his defence of the figure six very convincing. I am bound to say that the picture which the noble Lord, Lord Greenhill, summoned up, of two or three confidential assistants going with us from committee to committee, is pleasant but, in my limited experience of your Lordships' House and the House of Commons, it is not exactly consonant with reality. Would that I had two or three confidential assistants or researchers and would that my noble friends, who are not here, had two or three confidential assistants and researchers. I do not think that that is a serious objection.

Nor do I think it a serious objection to say that we only need six rather than nine when we consider who the six will be. Presumably they will be hand-picked by the Prime Minister from people with experience in the field who, by definition, can be trusted. I suppose that even Prime Ministers make mistakes from time to time. As the noble Lord, Lord Greenhill, told us, even Prime Ministers let things slip. However, in the normal course of events one would have thought that the kind of people who would be put on the committee would be those whom one could trust. So I am not convinced, but in all the circumstances I shall not press the amendment tonight.

Amendment, by leave, withdrawn.

Lord Richard moved Amendment No. 17:

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 subsection (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. (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: Amendment No. 17 incorporates a group of amendments which hang together. The object of the exercise is simple: it is to try to ensure that the committee's report is presented directly to Parliament. I believe strongly that if the committee is to function in the way that the Government intend it to function, there must be a direct link between it and Parliament itself. One of the objects of the exercise, after all, is that Parliament shall be more satisfied in the future than it has been in the past with the way in which the security services operate. If that is so, I think that Parliament must have confidence in the way in which the committee makes its report. Therefore a system in which the report goes, first, to the Prime Minister who sanitises it and then lays whatever may be left before Parliament, I should not have thought would be a system which would command a great deal of confidence in Parliament itself.

I also take strongly the fact that it is important that sensitive information should he excluded from the report. Therefore, the proposals suggest that the committee's obligation should be to make its annual report to Parliament. But if it appears to the committee, after consulting with the director general of the Security Service, the chief of the Intelligence Service or the director of GCHQ, 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 GCHQ, then the committee should exclude that matter before laying the report before Parliament. If there is a dispute between the director general of the Security Service, as the case may be, and the committee, that should be decided by the Prime Minister.

Thus, in a sense what one is getting is prime ministerial intervention in order to preserve the integrity of the services, but getting it as the report is going direct to Parliament rather than it going to the Prime Minister first and then on to Parliament.

If the proposals were to be accepted, it would put the committee under a duty to consult the heads of services before reporting. It would give the Prime Minister the right to adjudicate in any subsequent dispute over whether matters should or should not be in the report. But basically it would be seen to be a committee that had the obligation to report directly to Parliament. I think that that is important. I beg to move.

The Lord Chancellor

So far as the net result of these operations is concerned, it will be much the same. The noble Lord, Lord Richard, wishes the committee's report to go direct to Parliament after such excisions as the committee may agree with the heads of the services, and, failing agreement, as decided by the Prime Minister. So an intervention is provided for between the committee and Parliament in any event. I should have thought that it would be best that the full report of the committee, without limitation and without pulling any punches whatever, should be sent to the Prime Minister. The amendment of the noble Lord, Lord Richard, would allow, ultimately, the report to go to Parliament and the addenda that had been omitted to go to the Prime Minister. It appears right that, since the Prime Minister has overall responsibility for intelligence and security matters, it is to him that the committee should be required to report so that he can take any appropriate action.

Subsection (5) of Clause 10 empowers the committee to report direct to the Prime Minister both annually and at any time. The amendment would mean that before the annual report reached the Prime Minister its content would be subject to discussion between the committee and the heads of the agencies. That would expressly include consultation over matters directly relevant to the functions of those agencies. I suggest that it would not be appropriate for the agencies to be involved in helping to decide what might or might not be excluded from any such report before it reaches Parliament. Because of the very special and sensitive nature of the work of the committee, and the fact that its members will be chosen by the Prime Minister in consultation with the Leader of the Opposition, and taking account of other views as well, it can only be right that the link between the committee and the Prime Minister should be a direct one. The importance of that should be recognised as such by the committee, and indeed by parliamentarians as a whole. I am sure that the heads of the agencies also see it that way.

I have no doubt that the Prime Minister would want to keep to the minimum the excision of any matters deemed prejudicial to the work of the agencies. As the person ultimately responsible for the work of the agencies, he is surely best qualified to do that, taking such advice as he thinks proper. Ultimately it is his decision, without any requirement upon him that he should consult any particular person. I believe it proper that he should have the power of excision, and not the heads of the agencies or the committee; and that he should have sight of the full report before it is made available to others who are outside the ring of secrecy.

As I said, there is very little difference in practical effect between what the noble Lord, Lord Richard, suggests and what is in the Bill, except that the noble Lord's amendments deal primarily with the annual report and involve the heads of the agencies in consultation about excision. I believe that the direct route, the one that will deal with the matter in the most efficient way, is the one proposed in the Bill. It gives the whole report as the committee determines it, fully, without pulling any punches and without limitation, to the Prime Minister, leaving it to him to decide whether any part of it requires to be excised before going before Parliament.

I suggest that it is not wise to provide as a necessary consultation at that stage that the heads of the agencies should be involved. For those reasons, while I appreciate that the noble Lord, Lord Richard, seeks to have a direct link to Parliament, I believe that the link to Parliament that we have proposed is as direct and efficient as the circumstances allow. Even on the noble Lord's amendment, there is a stage between the committee and Parliament in which the Prime Minister would ultimately have the power of adjudication. For those reasons I hope that the noble Lord may feel that the Bill as it stands, although different in a minor way from his proposal, is still effective.

Lord Richard

We are back to the argument that we had earlier this evening. If it does not make very much difference, why on earth can the Government not accept it? The noble and learned Lord says that he does not think it wise that the committee should consult the heads of the services. Why not? Frankly, it would seem thoroughly desirable that it should consult the heads of the three services, and that the committee and the heads of the three services should be on close terms, if at all possible, if this system is to work and the overseeing committee is to function properly. It seems highly unlikely that a situation would arise in which the heads of the services and the committee agreed that part of the report should be taken out while the Prime Minister said that it should remain. I suspect that the main argument should be in the other direction. The committee will want stuff to be included. The director general of the service will say no, he does not think it ought to be included, and it will then go to the Prime Minister for determination.

I believe that the Government under-estimate the importance of an overt link between the committee and Parliament. If there is to be confidence in the way in which the committee operates, the link has to be open, and it has to be generally accepted by everybody that the responsibility of the committee is primarily to Parliament and not to the Prime Minister. I accept that there have to be safeguards, and the safeguard is set out in the proposed amendment. But in our view the primary responsibility of the committee should be to Parliament and not to the Government. I feel that the noble and learned Lord under-estimates the importance of that link in the way in which he treats the amendment.

I do not expect to get any further with this matter tonight; but I hope that the noble and learned Lord and the Government will seriously consider this matter between now and Report stage. It is a point on which I feel strongly, as do other people. In all those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

On Question, Whether Clause 10 shall stand part of the Bill?

Lord Richard

Perhaps I may say one word on Clause 10 in order to put down a marker. In view of the discussion that we had earlier about the powers of the committee to examine only expenditure, administration and policy, it may be that we shall want to come back to those words at Report stage. If they are to be given the restricted meaning which at one stage tonight I thought they might well be given, we might like to look at the matter again. If, having read what the noble and learned Lord the Lord Chancellor said tonight and they do not have such a restricted meaning as intimated by his noble friend Lady Park, we may not come back to the matter.

Clause 10 agreed to.

The Deputy Chairman of Committees (Lord Airedale)

If Amendment No. 18 is agreed to, I cannot call the next amendment, Amendment No. 19.

Schedule 3 [The Intelligence and Security Committee]:

Lord Richard moved Amendment No. 18:

Page 13, line 11, leave out from ("disclosed") to end of line 14.

The noble Lord said: With this amendment we are also considering Amendments Nos. 21 and 22. To simplify the issue, this group of amendments recasts the provisions of paragraph 3 of Schedule 3 on page 13 of the Bill. If those amendments were to be accepted, paragraph 3(1)(b) would read: inform the committee that it cannot be disclosed because the Secretary of State has determined that it is sensitive information and should not be disclosed. In other words, the responsibility for deciding that information should be withheld from the committee should be placed firmly on the Secretary of State and not on the head of any of the individual services.

As I understand it, in other countries that type of reform has been introduced and it has given significantly greater accountability than that proposed in this Bill. I am sure the Committee will appreciate that there is not much point in setting up a committee unless one can be sure that the committee will have some information on which it can do its work. Merely to give the directors of the services the right to withhold information because in their opinion it is sensitive, frankly does not make a great deal of sense. To use the words of the noble Lord the Lord Chancellor, I do not think it would be wise to do it in that particular way. Indeed, it would be wiser to put the responsibility where it ought to lie, which is firmly on the Secretary of State. If he determines that matters are so sensitive that they should not be disclosed to the committee, let him say so. That is the object of the amendments. I beg to move.

The Lord Chancellor

I listened with care to the explanation of the noble Lord, Lord Richard. I am not sure that I understand exactly why he believes that the amendment would be an improvement on the current wording of the Bill. I doubt whether these amendments would do anything to improve the free flow of information to the committee.

Under the Bill as it stands, the heads of agency will already have the power to disclose information even when they consider it sensitive, if they believe that it is safe to do so. They do not have to go to the Secretary of State each time they want to disclose information. In addition, the Secretary of State may order disclosure by overruling any decision of the agencies to withhold information—paragraph 3(3).

The effect of the amendment would be to make the Secretary of State solely responsible for the decision on whether to withhold information from the committee (and presumably to limit his ability to withhold information to that specified in paragraph 4). The Secretary of State of course retains overall control of, and responsibility for, security matters and the work of the agencies. In fact, if the amendment were accepted it would be unlikely to make much practical difference to the information made available to the committee, except perhaps in one respect which I shall mention in a moment. It would however have the paralysing effect of requiring the Secretary of State to see a mass of paper in order to allow him to make proper decisions with regard to disclosure.

In passing, I should perhaps point out that the amendment leaves untouched paragraph 3(4), which provides that the Secretary of State may not make a determination on national security grounds alone, and not unless it were information which he would normally withhold from a departmental Select Committee. That is contradictory to the amendments proposed. The amendments also leave paragraph 3(2) in the schedule. That would probably become redundant if the head of the agency no longer has the power to withhold information.

I suggest that, as a practical matter, the head of the agency will be the first point of contact for the committee when it requires information about one or other of the services. He or she will be best placed to answer any queries which the committee may have, or, in the light of his or her knowledge of all the relevant circumstances, to recommend that certain information should be withheld because it is sensitive. We hope and fully expect—which hope is shared by the noble Lord, Lord Richard—that a strong working relationship will develop between the committee and the agency heads and that the committee will be able, on the basis of that contact, to gain valuable insights into the work of the agencies. It would therefore be counterproductive to cut across that.

As I mentioned earlier, the head of agency's power to withhold information is limited and subject to review by the Secretary of State who may overturn a decision to withhold information. One effect of the amendment would be to remove that second check or review of the initial decision to withhold information from the committee. However, in reality it would be unrealistic to expect the Secretary of State to make all decisions about disclosure without advice. The heads of agencies have more familiarity with the day-to-day workings and details of the services and are best placed to assess the bulk of the information. They would naturally advise the Secretary of State on what information should be withheld. It is possible that more rather than less information would be withheld under the system proposed. It therefore seems desirable to have on the face of the legislation the criteria which will apply. That is fully in keeping with our policy of increased openness and in no way lessens the information made available to the committee. It simply ensures that certain sensitive and operational details remain within the smallest possible ring of secrecy.

As the Bill stands, the head of the agency has the power to disclose information without any trammel. The results of the amendments proposed by the noble Lord will mean that the decision of whether or not to withhold information will always be that of the Secretary of State. I suggest that it will be much easier to have an arrangement under which, if the head of the agency has no objection, the information will go forward. The Secretary of State's attention will only be required in respect of information which the head of the agency decides should not be given to the committee. The Secretary of State will therefore be in the position of dealing with information where the first decision has been the other way.

For those reasons, the free flow of information is better served in the way the matter is put in the Bill. In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Richard

I am sorry that the noble and learned Lord did not understand my explanation. Perhaps I may reciprocate by saying that I did not understand his. If one looks at the Bill, as amended, if information is to be disclosed to the committee, there is no problem. Under paragraph 3(1) (a), if the heads of the services are asked to disclose either the whole or part of any information, they will arrange for it to be made available to the committee. There is therefore no problem if he says, "Yes, you may look at it". The problem arises when he says, "No, you can't". In those circumstances, one would have to go to the Secretary of State. The Secretary of State would then decide whether or not it should be disclosed.

In terms of the flow of information to the committee, if there is no problem about withholding the information, it could work with the normal arrangements as between the head of the service and the members of the committee. It is only when there is a problem with withholding the information from the committee that the difficulties arise. Under the Bill as framed the decision to withhold can be taken by the head of the service. I do not think that is right. If it is a parliamentary committee which is responsible ultimately to Parliament, even under the Government's proposals, the person who should decide what should be withheld from the committee should be the Secretary of State and not the head of the service. That is the basis of my amendment.

The Lord Chancellor

Perhaps the difficulty of understanding between us is focused because if the director decides that the information cannot be disclosed because it is sensitive information, that can be overruled by the Secretary of State.

Lord Richard

I take that out.

The Lord Chancellor

I understand that, but I am trying to explain that under the Bill as it stands a decision to withhold information by the head of the agency is not final. The Secretary of State can arrange that it be disclosed even if the head of the agency has thought that it should not be.

Lord Richard


The Lord Chancellor

Perhaps the noble Lord will look at paragraph 3(3). It states: Information which has not been disclosed to the Committee on the ground specified in sub—paragraph (1)(b)(i) above shall be disclosed to them if the Secretary of State considers it desirable in the public interest". Therefore the Secretary of State can overrule the head of the agency's decision to withhold on the basis that the information is sensitive. Thus it is not correct to say, as I understood the noble Lord to say—I hope I understood correctly—that the head of the agency could decide to withhold the information and that that would be conclusive. That is not so in the Bill as it stands.

Lord Richard

That is certainly true if the Secretary of State considers it desirable in the public interest that that which has been determined by the head of the agency to be withheld should nevertheless be disclosed. I accept that in terms of sub-paragraph (3). I take out sub-paragraph (3) in my proposed amendment, as the noble and learned Lord will know. But what is the purpose then of paragraph 3(1)(b)(i)?

The Lord Chancellor

The purpose of paragraph 3(1) (b) (i) is to give on the face of the statute the kind of criteria that one would expect the head of the agency to use in deciding to withhold information. In other words, it is not just a carte blanche. He does not just say, "I don't want this information to go forward". The idea of the definition of sensitive information is to provide on the face of the statute the criteria which he is bound to apply. The head of the agency is bound to apply those criteria if he is going to decline.

Of course he can, notwithstanding that it falls within the criteria, still supply it. But it is an important point, in trying to help the free flow of information, that Parliament should lay down reasonable criteria for withholding information which can be overruled by the head of the agency himself or herself if he or she so decides—if he or she considers it safe in the circumstances—and can also be overruled by the Secretary of State even if the head of the agency says no. I suggest to the Committee that the idea of having criteria expressed in this way on the face of the statute for refusal to disclose as the only ground so far as concerns the head of the agency is a benefit which is lost by the amendments proposed by the noble Lord.

9.30 p.m.

Lord Richard

I do not want to keep bobbing up and down. For the life of me I do not quite understand why, if the director of the agency does not have the power absolutely to withhold, the matter ends up with the Secretary of State. Why should it not end up with him anyway without first going through the head of the service? As regards the criteria which the Secretary of State would employ under my amendment he would be confined to the sensitive information which is set out in subparagraph (4). He would withhold it if he determined that it was sensitive information and should therefore not be disclosed. If it is to end up on his desk anyway, I do not see the purpose of the interposition of the chief of the service.

Lord Armstrong of Ilminster

When I had a certain responsibility in these matters I would have liked the idea proposed by the noble Lord, Lord Richard, that the matter should be dealt with by the Secretary of State. I was quite surprised to see in the Bill that the Government have gone further than that and allowed the directors of the services (M, C and P, or whatever they are) to deal directly with the committee in these matters. That is one of the more attractive features of the proposal as described in the Bill; namely, that the intelligence and security committee will have direct access to the heads of the services on these matters and will be able to ask the experts at first hand why they are withholding information or feel that the information must be withheld. If I had been a Member of the Opposition I should have taken the money and run.

Lord Richard

Under our proposals they would still have that. Initially the contact will be between the head of the agency and the committee. Paragraph 3(1) (a) still applies. It is when there is a dispute between them which cannot be resolved that it should be settled by the Secretary of State. So I believe that we have already taken the desirable objective which the noble Lord, Lord Armstrong, believes the Opposition should take.

Lord Armstrong of Ilminster

Under the noble Lord's proposals there would not be much of a dispute with the heads of the services since they would say that the information must be withheld and the Secretary of State would be wheeled in at once. Therefore, this healthy argument which he foresees does not seem to be provided for in his proposal.

Lord Richard

I do not believe that we are going to resolve this matter tonight. With the leave of the Committee I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 19: Page 13, line 13, after ("opinion,") insert ("or in the opinion of the Secretary of State").

The noble Lord said: Amendments Nos. 19, 20 and 23 are to be considered together. The noble and learned Lord the Lord Chancellor explained during Second Reading that the addition of an oversight committee of parliamentarians is intended to increase the confidence of Parliament and the public, while providing proper protection for our national interests by effective and responsible intelligence and security services.

Taken together these three amendments are designed to give effect to those improvements and commendable aims. If parliamentary and public confidence is to be increased I believe that it is essential for parliamentary oversight to be really effective, and seen to be effective, in meeting an important public interest and protecting against any possible future abuse of power. It is central to the proper operation of a system of parliamentary oversight that there should be no unnecessary interference—I believe that that is common ground—with the flow of relevant information to the committee whose members are within the ring of secrecy.

The Government now seek sweepingly broad powers in paragraph 3 of Schedule 3 for the Secretary of State to prevent the committee from having access to any information—I repeat, any information—even if it relates to the expenditure, administration or the policy of the services, and even if it is not about any operational matters at all. If such powers are used unnecessarily then they will be beyond any effective judicial protection or review. I firmly believe that if Parliament confers such sweepingly broad powers on Ministers it is likely to frustrate a central aim of the Bill.

The only limitation which the Bill now places on these blanket powers of override is to block the flow of non-operational information. That is contained in paragraph 3(4) of the schedule. That precludes the Minister from blocking information unless it is of the kind which he would think it proper to withhold from a departmental Select Committee in another place. That is a purely cosmetic limitation without any real substance, referring as it does to the practice obtaining when the intelligence and security services were immune from effective parliamentary oversight or scrutiny. It is an illusory limitation without any clear standard or criterion for withholding the free flow of information. I agree with the noble and learned Lord the Lord Chancellor that it is important that the criteria should be as transparent as possible on the face of the Bill, but they are not.

Since the role of the committee is confined to examining expenditure, administration and policy as distinct from operational matters and since the definition of "sensitive information" in paragraph 4 of the schedule is massively wide—and perhaps properly so—I find it difficult to understand why the Secretary of State could ever reasonably need such sweeping powers to block even non-sensitive information directly relevant to the committee's work.

So far, none of the amendments has had any luck, but I should be very grateful if the noble and learned Lord the Lord Chancellor could give some hypothetical examples to show why such wide powers are being sought. I have tried to think of some and, frankly, I have failed. I accept that there may need to be a power of ministerial intervention in addition to the wide powers given to the heads of the three services under paragraph 3(l) of the schedule to override their professional judgment that information should be provided to the committee. I accept that, but I believe that the Minister's powers to override them and to block information should be carefully tailored to real needs.

I propose that the Bill should be amended by Amendment No. 19 so as to extend to the Secretary of State the power that the Bill proposes (in paragraph 3(1) of the schedule) to give to the heads of the three services. It is a power to prevent the oversight committee having access to information if the information is sensitive, as defined in paragraph 4 in very wide and imprecise terms. That would enable the Secretary of State to exercise the same powers as the heads of the services but, by virtue of my Amendments Nos. 20 and 23, not to enjoy a blanket and absolute power to withhold non-sensitive information.

At Second Reading, the noble Lord, Lord Chalfont, suggested that an increase in the oversight of the services might be harmful to their effective operation. He sought to answer my reference to experience in other countries by referring to the Israeli intelligence agency, Mossad, as an intelligence service which has not been subjected to a great deal of parliamentary oversight but which is still enormously effective.

Since Second Reading I have consulted Mr. Dan Meridor, a member of the Knesset, Minister of Justice in the Likud government between 1988 and 1992, and a former Cabinet secretary. He is a member of the Knesset foreign affairs and defence committee. That committee and its various sub-committees exercise a great degree of oversight over Mossad and the other Israeli intelligence and security services. Mr. Meridor has advised me that, although the matter is dealt with by an extra-statutory regime in Israel, those sub-committees, and other external bodies, such as the state controller, receive a great deal of non-operational information about the services, and that there is no question of Ministers needing powers to block information of the kind now sought to be blessed by Parliament in this Bill. According to this experienced and tough-minded recent Minister of Justice, the Israeli intelligence and security services have developed a relationship of trust with the foreign affairs and defence committee and its sub-committees in their oversight capacity. They are forthcoming with information other than operational information. What is more important, the services are subject to effective judicial review by an active Supreme Court of a kind unheard of in this country. There is a growing understanding in the Government themselves that immunity from effective scrutiny and supervision is a thing of the past. I hope that the Government will think again about whether one needs the Secretary of State to have blanket powers of this kind effectively to block information which is not operational. I beg to move.

The Lord Chancellor

The noble Lord, Lord Lester of Herne Hill, has informed us, to some extent, about the nature of the arrangements in Israel and has pointed out that they are non statutory. The arrangements that we propose are, from the point of view of our legal system, the better for being statutory. Accordingly, I believe that there are other aspects of the structure in Israel which makes it possible for some form of judicial review to take place which are not applicable here. To some extent they are related to the concept of fundamental laws which are steps towards a written constitution.

The problem that we have is that we are seeking to lay down statutory powers, and where the powers are to be statutory it is right that they should be reasonably well specified. The noble Lord suggested that paragraph 4 of the third schedule does not provide a convincing restriction on the power to withhold information in paragraph 3(1) (b) (ii). In my submission, it is an extremely important and effective restriction. It. provides: The Secretary of State shall not make a determination under sub-paragraph (1) (b) (ii) above with respect to any information on the grounds of national security alone"— that is an important restriction— and, subject to that, he shall not make such a determination unless the information appears to him to be of such a nature that, if he were requested to produce it before a Departmental Select Committee of the House of Commons, he would think it proper not to do so". That relates to the general practice of the departmental Select Committees of the other place and not the practice in relation to a particular committee. That is a general and published practice which applies to all departmental Select Committees. I cannot think of a better restriction on the Secretary of State's powers than that; in other words, he has to treat this committee for all purposes, assuming that the information is not sensitive, as if it were a departmental Select Committee so far as concerns the giving of information.

The relevant guidelines on those matters are contained in a letter from the Lord President to the chairmen of Select Committees. It includes matters such as advice given by a Law Officer, matters which are sub judice, private and personal information given on a confidential basis and legislative proposals unless they have already been made public. It seems to me that it is right on the face of the statute to use a general restriction of that kind which applies generally to departmental Select Committees in the other place which might be changed from time to time, according to the committees' requirements, but it would be impossible under this procedure to make special arrangements for this committee. Therefore, it is the general rules for departmental Select Committees generally which are to apply. That is a considerable restriction on the Secretary of State's general power.

Accordingly, I submit that in the light of the circumstances and the subject matter of this legislation, the free flow of information guaranteed by statute under this set of provisions is considerable. The idea that the second part of paragraph 4 is empty or illusory, or whatever expression the noble Lord used, is without foundation. The departmental Select Committees of the House of Commons work well as regards receiving information and I have not heard many complaints about that. Therefore, I believe that this is a good criterion to apply to the general power of the Secretary of State in this connection. I hope that in the light of that explanation, the noble Lord will feel able to withdraw his amendment.

Lord Lester of Herne Hill

I am grateful to the noble and learned Lord the Lord Chancellor for that explanation, which I found helpful. I shall consider the matter between now and the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 to 23 not moved.]

9.45 p.m.

Lord Richard moved Amendment No. 24:

Page 13, line 45, at end insert:

("(2) No information will be regarded as sensitive if that information is already in the public domain.").

The noble Lord said: This is a short amendment and I have hopes that the noble and learned Lord will smile favourably upon it. It is an obvious amendment which provides that: No information will be regarded as sensitive if that information is already in the public domain". It is difficult to see how if something is already in the public domain it can nevertheless remain sensitive and ought therefore to be withheld from the committee in accordance with the terms of the Bill. The issue of whether sensitive information is or is not in the public domain has exercised a number of people and jurisdictions over the years. One does not need to go into the matter in great detail, but no great harm would be done to the Bill if we declared specifically that information which is in the public domain should no longer be regarded as sensitive. I beg to move.

The Lord Chancellor

The Bill as proposed contains definition or criteria for determining whether information is sensitive. I do not believe that a particular criticism has been made of those criteria. However, the amendment seeks to add an overriding criterion in the opposite direction. It provides that: No information will be regarded as sensitive if that information is already in the public domain". It is difficult to believe that if information is in the public domain the committee will not have it. Therefore, what is the point of requiring the information to be produced to the committee? If information is already public in that sense, the committee will be none the wiser or better informed by obtaining it additionally from someone else.

The question is: what is meant by information in the public domain? If some imaginative writer produces a story about the operations of the security service which is portrayed as being true, is that information in the public domain? If by chance he strikes it so lucky that there is a corresponding operation going on in fact, will that make that information any the less sensitive?

To the extent to which the amendment does what I said first it seems to be self-evident; if the committee has the information already there is not much point in withholding that information from it. If this amendment is to have any sense at all it must have some other purpose than that. Therefore, it is essential to examine what is meant by "information in the public domain".

I would just ask one or two questions. Is speculation in the press about an alleged leak of information information in the public domain; or allegations in a book; or a public assertion by an individual; or a statement by a Member of Parliament under the privileges of Parliament? If the information is given by someone with authority, it might have quite a different character from mere speculation. It is important that we should have clear criteria for this. The criteria which we have in the Bill for sensitive information are clear, and I would suggest to your Lordships that this particular criterion going in the opposite direction will have the effect of muddying the waters and introducing a very distinct ambiguity into an area which, in the interests of the free flow of information, should be clear.

In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Richard

I am disappointed. It seems to me that the phrase "in the public domain" is one that is reasonably well known. No doubt even judges will have heard of it from time to time; and, like other phrases in the English language, no doubt it will be capable of construction by judges from time to time. Speculation in the newspaper will no doubt continue to be speculation in the newspaper. I do not think trying to categorise at this stage what the phrase "in the public domain" means will help the Committee very much. Nor do I see how it will cause any confusion in the categories of sensitive information which are already set out in the Bill. This is not attempting to muddy the waters so far as what is sensitive information is concerned; it is attempting to say in respect of one set of information what is not sensitive information.

I should have thought that over the past decade the Government might have accepted that when information, even in this area, got into the public domain it was probably better that they should cease treating it as being sensitive in any shape or form.

I recognise that at this hour of the night it would not be consonant with the practices of the House that I should divide the House on the matter, but I would ask the noble and learned Lord the Lord Chancellor and the Government to consider whether or not it would not be appropriate for them to take some opportunity in the Bill, since we are considering the whole operation of the security services, to make it perfectly clear once and for all that in the view of the Government if something is already out in the open it should not be treated as sensitive and secret thereafter. I beg leave to withdraw the amendment.

Amendment by leave, withdrawn.

Schedule 3 agreed to.

Clause 11 [Interpretation and consequential amendments]:

Lord Lloyd of Berwick had given notice of his intention to move Amendment No. 25: Page 8, line 25, after first ("Act") insert ("the Interception of Communications Act 1985"). The noble Lord said: I can reassure the noble Lord, Lord Lester, that my amendments are destined to have even less luck than those which his amendments have had, and those proposed by the noble Baroness and by the noble Lord, Lord Richard. I have been advised that my proposed amendments are out of order as they are too far removed from the purposes of the Bill as set out in the Long Title, so the amendment will not be moved; but I would welcome on the Motion that the clause shall stand part the opportunity to explain what my problem is.

[Amendment No. 25 not moved.]

On Question, Whether Clause 11 shall stand part of the Bill?

Lord Lloyd of Berwick

As the noble Lord, Lord Richard, said, the hour is very late. Therefore, I shall be very short in my remarks. The noble and learned Lord the Lord Chancellor pointed out on Second Reading that the Bill now before the Committee is based very closely on the Security Service Act 1989. It does for the SIS and GCHQ what the 1989 Act did for the Security Service. However, the 1989 Act was itself very closely based on the Interception of Communications Act 1985 (known colloquially as IOCA). It was the latter which led the way in this part of the law. The other legislation has followed at intervals of four years.

My concern is that, by the Bill, we may inadvertently be introducing or creating a conflict between the terms of this legislation and those of the 1985 Act; or, if not a conflict, at least an inconsistency. It is difficult to explain the nature of the inconsistency without Members of the Committee having the 1985 Act before them. But, very briefly, Section 6 of the 1985 Act provides that before the Secretary of State can issue a warrant there must be in existence an arrangement whereby intercepted material—such as tapes of telephone conversations and copies of letters that have been intercepted in the post—is destroyed as soon as that material is no longer necessary for the purposes set out in Section 2(2) of the 1985 Act.

Section 2(2) of the 1935 Act, and more particularly paragraphs (a), (b) and (c), are in almost identical terms to those contained in Clause 2 of the Bill and also Clause 3(2) (a) (b) (c). In other words, they cover the familiar trio of matters which derive originally from the relevant article of the convention on national security, economic well-being and the prevention or detection of serious crime.

So far there is no problem. But in a very recent decision of the Appellate Committee of this place (in the case of Regina v. Preston), it was held that the prevention and detection of crime does not include the prosecution of offenders who have been detected. Accordingly, intercepted material, however compelling it may be, cannot be retained for use at a subsequent trial. It must be destroyed as soon as the criminal has been detected. Members of the Committee may feel that that is not a very sensible result to have arrived at, but that is what Parliament provided in the 1985 Act.

The arguments which led the Appellate Committee to its conclusion were numerous. However, one of the main arguments was the contrast which was drawn in the 1985 Act between the prevention or detection of serious crime in Section 2(2) of the Act and the words, for the prevention or detection of crime, or for the purposes of any criminal proceedings", as found in Section 45 of the Telecommunications Act 1984, and as amended by the 1985 Act. The absence of the latter words, for the purposes of any criminal proceedings was held to show that Parliament cannot have intended that the product of interception should be used at a subsequent trial. Indeed, Section 9 of the 1985 Act seems to make express provision to that effect, although the language is very obscure.

If one then turns to the Bill, the position is very different. In the first place, there is no overall exclusion in the Bill such as one finds in Section 9 of the 1985 Act. Secondly, the arrangements which must be made by SIS and GCHQ before a warrant can be issued are not so restricted as they are in the 1985 Act. Thus, Clause 2(2) (a) (iv) enables the SIS to disclose information for the purpose of any criminal proceedings, which are the very words absent from Section 2(2) (b) of the 1985 Act and the absence of which was held to be crucial in Regina v. Preston. One finds those same words in Clause 4(2) (a) which state: or for the purpose of any criminal proceedings". Moreover—and this is perhaps even more significant—paragraph 1(1) of Schedule 4 amends Section 2 of the Security Service Act to include those very words for the first time. My anxiety is that such words should be included also in the 1985 Act. Otherwise, there will be an inconsistency between the 1985 and 1989 Acts.

The effect of Clause 2(2) (a) (iv), if I understand it correctly, is that information obtained by the SIS can be made available to the Crown Prosecution Service and will be admissible as evidence at a subsequent trial, as will information obtained by GCHQ and information obtained by the Security Service by the process which is commonly known as bugging, since that is the effect of the amendment of the Security Service Act in paragraph 1 of the schedule.

In a typical terrorist case—typical under the national security heading—if the security service had powerful evidence obtained from bugging, that evidence would be admissible at the trial of the alleged terrorist. My view is that that would be plainly right. I ask what possible reason there could be for excluding information which the Security Service has obtained not by bugging but by telephone tapping? What distinction can there be between the two? Exactly the same consideration should surely apply. I am concerned that that inconsistency between the 1985 and 1989 Acts will lead to trouble, as all inconsistencies invariably do.

I had intended to say more but as my amendment is not in order, perhaps I have already said too much. In every other country of which I have experience—the United States, Canada, France, Germany, the Netherlands and Scandinavia—information obtained by telephone tapping is admitted as a matter or routine at a subsequent trial. In a recent survey carried out by the Security Service, one country expressed astonishment that we do no have the same provisions.

I know that a great deal of care has gone into the preparation and drafting of the Bill but my impression is that the failure to bring the 1985 Act in line with the 1989 Act, as it is to be amended by the Bill, must be due to an oversight. I have reason to believe that the Security Service would very much welcome an amendment to those Acts. Therefore, I hope that the Government may be able to find a way to bring the 1985 Act in line with the 1989 Act.

The Lord Chancellor

My noble and learned friend indicated his anxiety. It is beyond doubt now that under the 1985 Act, the result is as my noble and learned friend said, having regard to the decision of this House in Regina v. Preston.

The provisions in the 1985 Act were intended to maintain the complete secrecy of the system of organised interception. It was considered that the system could be irreparably damaged as a method of protecting national security and dealing with serious crime if that secrecy could be breached. In some cases even to allow somebody to discover that he was the subject of interception might make it impossible to pursue an investigation. Anything which disclosed the pattern of use of interception would also be damaging. Those points were made by my noble friend Lord Whitelaw when this House considered the Interception of Communications Bill.

It is probably right to say that it is not an oversight that this particular matter was not dealt with in this Bill. This Bill deals not with the interception of communications but with the Security Service, the SIS and GCHQ. It is for that reason that my noble and learned friend has been advised that the amendment is outside the scope of the Bill. One of the arts of legislative provision is to make the scope of the Bill reasonable from the point of view of the amendments which can be made. This was certainly not a matter of oversight.

The point stands, and I am grateful to my noble and learned friend for drawing attention to the matter. I have no doubt that it will be noted in the responsible quarters. I shall certainly see that it is. And perhaps we can be allowed to wait and see what, if anything, results from that.

Lord Lloyd of Berwick

I am grateful to my noble and learned friend for his response.

Clause 11 agreed to.

[Amendments Nos. 26 and 27 not moved.]

Remaining clause and schedule agreed to.

House resumed: Bill reported without amendment.

House adjourned at eight minutes past ten o'clock.