Justice and Security Bill [Lords]

Public Bill Committee, 29 January 2013.

James Gray (Conservative, North Wiltshire)

In welcoming you all to the Committee, may I make a couple of brief introductory remarks?

I will apply the same rules and procedures in this Committee as are applied in the Chamber, and therefore unless we suffer from extreme discomfort, for example, the code of dress will be identical to that which we would like in the Chamber. The same applies to the rules on eating, drinking and all those kinds of things. Mobile phones should be turned off or switched to silent. I will apply all those rules as strictly here as Mr Speaker would in the Chamber, if that is agreeable to the Committee.

I should tell members that, generally speaking, my fellow Chair and I will not call starred amendments, which have not been tabled with enough notice. The required notice period in Public Bill Committees is three working days, which means that amendments for consideration on a Thursday should be tabled by the rise of the House on the Monday, and amendments for the following Tuesday should be tabled by the rise of the House on the Thursday.

For the benefit of those who have not sat on Public Bill Committees before, I should say that the selection list for today’s sitting, and for each day, is available in the room, on the table at the back. The list shows how amendments are selected for debate and how they have been grouped together for debate. Amendments that are grouped together are generally about the same or a similar issue, and the Chairman will make sure that the grouping is satisfactory, under close advice from our learned friends the Clerks. Obviously, if people were not happy with the grouping at any stage, perhaps they would let the Chairman know that they thought it somehow inappropriate. By and large, however, the grouping tends to be done eminently professionally.

The member who puts his name on a leading amendment in a group is called first, and other members of the Committee are then free to catch my eye if they wish to speak to the group. Any member may speak more than once on each group of amendments if they wish. At the end of the debate on a particular group of amendments, I call the member who moved the leading amendment again; before they sit down, they have to indicate whether they wish that amendment to go to a Division or whether they intend to seek leave of the Committee to withdraw it. If any other member who is leading on any other amendment in that group wishes for there to be a vote on it, they must let me know that that is the case, otherwise I will not know. I work on the assumption that the Government want all Government amendments to go to a decision.

You probably all know this perfectly well, but decisions on amendments are not called in the order in which they are debated, but in the order in which they appear on the amendment paper. That often confuses people.

I will use my discretion to decide whether we should have stand part debates on each clause. By and large, the rule that I apply is that where there has been a reasonable debate on the main substance of the clause, we will not have a stand part debate, but where there has been insufficient debate for one reason or another, I will allow a stand part debate, if any member asked for that. I hope that clears things up and is helpful to you all.

Before we move on to line-by-line consideration of the Bill, there are two or three procedural matters that we must deal with. First, I call the Minister to move the programme motion.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move,

That—

(1) the Committee shall (in addition to its first meeting at 8.55 am on Tuesday 29 January) meet—

(a) at 2.00 pm on Tuesday 29 January;

(b) at 11.30 am and 2.00 pm on Thursday 31 January;

(c) at 8.55 am and 2.00 pm on Tuesday 5 February;

(d) at 11.30 am and 2.00 pm on Thursday 7 February;

(e) at 8.55 am and 2.00 pm on Tuesday 12 February; and

(f) at 11.30 am and 2.00 pm on Thursday 14 February;

(2) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clause 1; Schedule 1; Clauses 2 to 16; Schedules 2 and 3; Clause 17; new Clauses; new Schedules; remaining proceedings on the Bill;

(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 14 February.

I welcome you to the Chair, Mr Gray. On behalf of the Committee, I should say that we look forward to serving under your chairmanship—and that of your co-Chair, Mr Crausby.

This is a significant and important Bill, which seeks to address three main areas: oversight, in terms of reform of the Intelligence and Security Committee; proceedings, to ensure that the Government are able to defend themselves effectively in circumstances where matters or evidence involve national security; and measures to deal with what is known as the Norwich Pharmacal jurisdiction and its scope in certain national security cases.

I very much look forward to our debates and discussions in the sittings ahead. Some right hon. and hon. Members are familiar with my Committee style, so I look forward to lively debates on significant issues. We believe that the programme motion provides sufficient time for discussion, and that we can improve the Bill so that it has its rightful effect of providing justice and security.

Diana Johnson (Labour, Kingston upon Hull North)

I, too, welcome you, Mr Gray, and your co-Chair, Mr Crausby.

As the Minister said, the Bill is very important, with implications for liberty, security and justice alongside the role of Parliament. There has already been considerable scrutiny of the Bill in the other place, but I am sure that there will be even more scrutiny in our Committee.

The Committee is very high powered. During his distinguished parliamentary career, my right hon. Friend the Member for Torfaen chaired the ISC and held a number of senior Cabinet and ministerial roles that directly relate to some of the Bill’s provisions. I pay tribute to the hon. Member for New Forest East, who is a serving member of the ISC; his contributions to our deliberations will be very valuable. My hon. Friend the Member for Hackney South and Shoreditch has great experience as a former Home Office Minister, and my hon. Friend the Member for Edinburgh East comes to Parliament from a distinguished legal career.

My hon. Friend the Member for Houghton and Sunderland South has considerable knowledge of contemporary defence and home affairs issues, and my hon. Friend the Member for Lewisham East will, of course, make sure that Opposition Members behave ourselves. My hon. Friend the Member for Hammersmith will lead on the justice clauses and, with his background as a distinguished lawyer, brings great experience to the Committee.

I pay tribute to the Minister. I have had the pleasure of sitting on a number of Committees with him. He prepares thoroughly for Committee sittings and listens carefully to comments made by all members. I look forward to our debates.

Clause 1 - The Intelligence and Security Committee

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move amendment 4, in clause 1, page 1, line 5, after ‘Committee’, insert ‘of Parliament’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss Government amendments 49, 50 and 51.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We start with the important provisions relating to oversight of the Intelligence and Security Committee. Like the hon. Member for Kingston upon Hull North, I very much welcome the contributions we shall receive in our debates on part 1 from my hon. Friend the Member for New Forest East, given his membership of the ISC, and from the right hon. Member for Torfaen, a distinguished former Chair of the Committee. We shall have well informed debates on the proposals to strengthen and further develop scrutiny of intelligence and security matters.

The Bill makes significant changes to the status of the ISC. The ISC will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The amendments concern other aspects of the ISC’s status, and the Government amendments in the group will further strengthen the ISC in a number of ways.

On Report in the other place, Lord Taylor announced the Government’s intention to make clear the parliamentary character of the ISC; to make a number of necessary consequential amendments; and to consider whether to give the ISC bespoke statutory immunities that would provide it with protections that would replicate certain aspects of parliamentary privilege.

The Government amendments deliver on the Government’s intention. Amendment 4 would change the name of the Intelligence and Security Committee to “the Intelligence and Security Committee of Parliament”. The amendment will more fully realise the Government’s intention that the ISC should be a Committee of Parliament, created by statute. It will not have all the attributes of a departmental Select Committee, but it will become a Committee of Parliament for the purposes of other statutes, some of which I shall come to presently.

I note that the lead amendment has cross-party support; the hon. Member for Kingston upon Hull North has put her name to it. That reflects the strong feeling across the Committee—and, I am sure, the House—about the need to strengthen and enhance the scrutiny that the existing ISC provides. That is not in any way to undermine or criticise the incredible work that the ISC already does; the issue is about how we can strengthen that and take it further forward through the amendments.

As we are making it clear that the ISC will be a Committee of Parliament, we consider it necessary to make a number of consequential amendments. As a Committee of Parliament, the ISC would, for the first time, come within the ambit of the Freedom of Information Act 2000. Like other Committees, it would be a part of the House of Commons and the House of Lords for the purposes of the Act. To avoid a number of consequences and reflect the special character of the ISC, amendment 50 would amend references to the House of Commons and House of Lords in schedule 1 to the Freedom of Information Act to make it clear that they were not subject to the Act as regards

“information held by the Intelligence and Security Committee of Parliament.”

The amendment preserves the status quo, in that the Freedom of Information Act does not apply to information held by the ISC now. It will not do so in future. That is a desirable outcome, given the great sensitivity of much of the material held by the ISC. In addition, amendment 50 adds the ISC to the list of bodies under section 23 of the Freedom of Information Act. The result would be that ISC information—in other words, information supplied to or by the ISC, whether directly or indirectly, or which relates to it—in the hands of another public body or public authority subject to the Freedom of Information Act, was exempt information for the Act’s purposes. Section 23 is the absolute exemption. Any information falling within the terms of the exemption can be withheld without there being a duty to consider the public interest balance that would otherwise come into play under section 2 of the Freedom of Information Act.

We believe that the ISC sits comfortably in the list of bodies in section 23 and the exemption provided. The security and intelligence agencies are in that list and the ISC is a natural fit, given that the vast majority of its work deals with very sensitive information.

Adding the ISC to the list of section 23 bodies is also a protection for witnesses before the ISC. If an ISC witness is an employee in a Government Department, the Department inevitably holds copies of the witness’s written and oral evidence—the latter because the ISC’s practice is to send witnesses a transcript of their oral evidence for checking. Without the full protection of a section 23 exemption, witnesses who do not represent the agencies might feel constrained about what they could say in evidence. That would make the ISC’s scrutiny role less effective; naturally, it relies on witnesses being frank about subjects that are, by their very nature, sensitive.

The ISC was set up deliberately, and rightly, to deal with sensitive national security material. It is the only Committee of parliamentarians that sees protectively marked material up to the “top secret” strap. Indeed, almost all the ISC’s work involves dealing with such protectively marked material. Its accommodation allows it to access and store such material, and its staff have all gone through developed vetting.

It may be argued that the existing section 23, because of its application to information supplied directly or indirectly by—or relating to—the agencies, provides sufficient protection. However, as the Bill broadens the ISC’s statutory oversight role beyond the agencies to the wider intelligence and security community, the ISC will increasingly hold material that is not covered by section 23 of the Freedom of Information Act, as it is not being provided to it by the three intelligence agencies.

Alternatively, it might be said that section 24, an exemption for national security-sensitive information, provides sufficient protection. However, that section is a qualified exemption, which means that it offers protection only in so far as the public interest in withholding the information for the purposes of safeguarding national security outweighs the public interest in disclosure of that information.

We believe that witnesses would be more guarded in what they said were there anything less than a complete guarantee that the information they provide to the ISC will not ultimately be disclosed under the Freedom of Information Act. It is worth noting that evidence given by witnesses before Select Committees is protected by an absolute, rather than a qualified, exemption; section 34 of the Freedom of Information Act provides an absolute exemption for information that is subject to parliamentary privilege. We would not, however, want the addition of the ISC to the list of section 23 bodies to inhibit disclosure of information about the ISC’s administration and running costs. We would therefore like to include, in the memorandum of understanding with the ISC, a commitment that each of the ISC’s annual reports will contain details of its staffing and running costs for the relevant period.

The Data Protection Act 1998 applies to Parliament, but with special rules to determine who is the data controller—the person within any organisation on whom most of the obligations under the Act fall. Section 63A of the Act says:

“Where the purposes for which and the manner in which…data are…processed are determined by or on behalf of”—

either House—

“the data controller…shall be the Corporate Officer of that House.”

We do not believe that it is appropriate that the corporate officer should be the data controller for data processed by the ISC, but that is the likely effect of section 63A once the ISC is a Committee of Parliament. The sensitivity of much of the data handled by the ISC means that the corporate officers will not be entitled to have access to them, making it impossible for the officers to ensure that the requirements of the Data Protection Act are followed. That is why we sought to make modifications in this regard.

In conclusion, the changes proposed by the amendments are intended to ensure that the ISC is able to operate effectively as a statutory Committee of Parliament, recognising the need for candour of witnesses and, we believe, recognising the special characterisation of the ISC.

Diana Johnson (Labour, Kingston upon Hull North)

I thank the Minister for his thorough explanation of the Government’s amendments. I read the deliberations of the other place in Committee, on Report and on Third Reading, and it was quite clear that the Government were struggling over exactly what to do about the status of the ISC. Even on Report, they were unable to table the exact changes they wanted to make to the Bill. We now have a series of amendments, which were tabled last Thursday, setting out the Government’s intentions to the Committee. It is helpful that the Minister went through in detail the Government’s thinking on how the ISC should be constituted.

It will be helpful if I start by saying that the Opposition support the Government’s aim, in introducing part 1, of strengthening the ISC. The ISC has been in operation for 18 years and was originally established under the Intelligence Services Act 1994. When it was set up, it represented a sea change in the relationship between Parliament, the public and the security services. There was great nervousness in the security services about how the ISC would work and about Parliament’s involvement.

Since the creation of the ISC, the relationship between Parliament, the public and the security agencies has changed beyond recognition, and that is why part 1 is before us today. That change happened because of the ISC’s work, but it is also down to efforts on behalf of the agencies to open up their work. In the other place, Baroness Manningham-Buller led the way in opening up, and speaking about, the role of the intelligence and security services.

Events such as 11 September and many other terrorist atrocities have made the public much more aware of, and interested in, what is happening with the security and intelligence agencies. In addition, the amount of taxpayer’s money spent on those agencies—about £2 billion—means there is a real appetite for making sure that money is spent properly and appropriately, with good scrutiny of how it is spent. Finally, in the debate on the ISC’s annual report in 2011, the Committee’s Chair raised the need for radical modernisation of the machinery that has operated since 1994.

I stress that the Opposition want reform and we support the amendments, but that is not because we question the ISC’s current functioning. The Committee has steadily grown since its inception in 1994, and it is now extremely effective. The changes that the Committee itself is seeking are absolutely right and proper.

Let me move on to how the amendments will help to build the public’s confidence in the ISC’s operation. A couple of days before the Minister tabled amendment 4, I tabled an identical amendment, but I cannot claim the credit for his, because it is in fact a re-tabling of an amendment that was first tabled in the other place by Lord Butler and the Marquess of Lothian, who are members of the ISC. That amendment was supported by my noble Friend Baroness Smith.

I concur with much of what the Minister said about the benefits of amendment 4. Some are practical, but some are largely symbolic. I draw the Committee’s attention to the letter from Sir Robert Rogers, the Clerk of the House of Commons. I hope, Mr Grey, that it was distributed to members of the Committee yesterday and that they have had an opportunity to consider its contents.

James Gray (Conservative, North Wiltshire)

I have not seen it, but a nod from the floor indicates that Members have seen it.

James Brokenshire indicated dissent.

Diana Johnson (Labour, Kingston upon Hull North)

I am slightly worried, Mr Grey. The Minister is indicating that he has not seen it.

Paul Murphy (Labour, Torfaen)

I have not seen it.

James Gray (Conservative, North Wiltshire)

Order. There is some confusion. Perhaps I can ask my learned friend the Clerk to look into the matter and make sure that the letter is circulated to all members of the Committee, including me.

Diana Johnson (Labour, Kingston upon Hull North)

I apologise if the letter has not been sent to all members of the Committee, because it is a useful document for our discussion of part 1 of the Bill.

Heidi Alexander (Lewisham East) (Lab) rose—

James Gray (Conservative, North Wiltshire)

Order. Before the hon. Lady intervenes I am informed that copies are in fact in the room, on the table at the back, and the letter was e-mailed to all members of the Committee yesterday.

Heidi Alexander (Labour, Lewisham East)

Your advice to the Committee, Mr Gray, covered what I was going to say in my intervention. I wanted to inform members that the letter was circulated by e-mail yesterday.

Diana Johnson (Labour, Kingston upon Hull North)

I am grateful to the Clerk of the House of Commons for his assistance in providing the clear explanation in the letter, which gives advice on the status of the Government amendments and what they do. He says clearly that there is a precedent for statutory Committees to be created in the way in question, and he makes particular reference to the Ecclesiastical Committee. I think I am right in saying that the current ISC is already a statutory Committee established under the Act I mentioned earlier, and comprises Members of both the House of Commons and the House of Lords.

In the letter, the Clerk of the House makes a clear distinction between a statutory Committee, which can be called a Committee of Parliament—or, as I understand it, can be called anything else it wants—and a Committee that Parliament itself establishes, not by statute but by resolution of the two Houses, and set up under their Standing Orders, and of itself attracts parliamentary privilege. I am sure that we shall have a longer debate about parliamentary privilege when we debate future groups in clause 1, but we need to be clear at this point that Government amendment 4 is intended to establish a statutory Committee, not a Select Committee, of Parliament.

Since its inception, the ISC has comprised Members of Parliament, yet because of its uniqueness, it has often seemed more like part of the Executive, not least because its secretariat is provided by the Cabinet Office, its membership is appointed by the Prime Minister, and it reports to him. Changing the name of the ISC to the Intelligence and Security Committee of Parliament emphasises the fact that not only does the ISC comprise parliamentarians, but that they are doing the work of Parliament while serving on it. We may not think that is particularly controversial now, but it is worth remembering that, as I mentioned earlier, the idea that Parliament had any role in overseeing the security agencies was pretty radical when the ISC was first proposed. That, again, shows how far things have come in recognising the importance of parliamentary oversight.

There are practical considerations that this Committee should spend some time considering, in terms of moving the ISC towards becoming a Committee of Parliament, even if it remains a statutory Committee. The Minister in the Lords, Lord Henley, set out the Government’s intention to move the secretariat and support structures that the Committee enjoys from the Cabinet Office to Parliament. That is a significant undertaking, and I should appreciate it if the Minister would explain the following points.

How does the Minister expect the secretariat to be provided? The parliamentary Clerks are unrivalled in their professionalism and competence, but they do not have particular experience of such sensitive material, and it would seem necessary for the ISC to maintain at least some of its current staff. Does the Minister envisage that the staff who service the ISC now would be transferred to Parliament under TUPE? What discussions did the Government and the Minister have with the Clerk of the House of Commons about the matter?

Has the Minister written formally to the Clerk, requesting that the Clerk now start to make preparations for the transfer of such staff and to make the other preparations that will be necessary if the Committee is to come to Parliament? To what degree will the ISC staff remain separate to the other clerking arrangements in Parliament? Does the Minister envisage that there will be a special area for the Committee to be housed, bearing in mind the nature of the documents and so on with which it will be dealing?

Let me turn to the issue of money. As I understand it, the ISC is a very expensive body to run, for good reason. It costs several million pounds a year to operate. As I understand it, that is far more than any other parliamentary Committee. I understand that the running costs of a Select Committee are in the region of £600,000 a year. Will the Minister say how much he believes becoming a Committee of Parliament will cost, and how that money will be found?

I note that there has been generally a view that with the expanded remit of the ISC, additional resources will be given to the Committee. Can the Minister tell us about that and about the additional funds that have already been allocated to ensure that the ISC can do its new work? Given that Parliament is not funded by the Treasury, as I understand it, it is not simply a case of transferring money from the Cabinet Office to Parliament. I also understand that Parliament is trying to reduce its costs by 25% in the course of this Parliament. Can the Minister comment on how that is to be achieved if it then has to adopt the secretariat for the ISC? How will that work?

Finally, I turn to Government amendments 49 and 51. The Minister presented them as a necessary consequence of the ISC’s becoming a Committee of Parliament and therefore being subject to freedom of information and data protection requirements. The Opposition largely accept that and will be supporting the amendments, but I raise a word of caution about Government amendment 50. The Minister tried to address this point, but I would like him to explain it a little further. At present, the ISC is not subject to the Freedom of Information Act. With some exceptions for privilege matters, Parliament is of course subject to FOI requests. Making the ISC a body of Parliament opens up the possibility that the Minister mentioned—of its being declared subject to FOI requests. At this point, there is no suggestion of the ISC’s being subject to privilege, which of course would protect it, so we need to look at what other protections—statutory protections—the ISC requires, as the Minister rightly said..

I think that we could all agree that the ISC needs to be able to provide absolute security for the sensitive information that it receives. As the Minister pointed out, under section 23 of the Freedom of Information Act, there is already a complete exemption for information

“if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).”

Subsection (3) includes all the security agencies. Government amendment 50 will add the ISC to that list.

I listened carefully to what the Minister said. He talked about section 24 and the exemption for national security issues in the Freedom of Information Act, but also made the point that it was not an absolute exemption and had to be weighed. The point I was trying to get to, in raising my concerns, was that Government amendment 50 would not only prevent freedom of information requests for information that the Committee receives, but would exempt all requests for information about the Committee itself. As the Minister rightly pointed out, that could involve the costs of the Committee or how often the Committee would meet. The Minister recognised that we ought to be very careful about stopping the public having access to information about the way Parliament chooses to operate and how it spends its money, and said that his approach was to put within the memorandum of understanding an explicit reference to the fact that the Committee would provide information if requested. Will he say more about that?

In the other place, some Lords requested sight, at least, of the memorandum of understanding’s framework. It was promised at various stages, as I noticed when reading the debate, but I do not think that it was ever delivered. I may be wrong, in which case I would be happy if the Minister corrected me.

As the Bill sets out, the memorandum of understanding will simply be presented to Parliament, so we will not have an opportunity to vote on its contents. A later amendment will try to give Parliament more oversight of the contents of the memorandum of understanding. Will the Minister say what the status is of any direct reference in the MOU to the running of the ISC, its costs and how often it meets in relation to FOI requests? I am not sure about that relationship, and whether the MOU could be relied on in court or tribunal proceedings that might arise from non-compliance with a freedom of information request. I would be grateful if the Minister dealt with that point.

Julian Lewis (Conservative, New Forest East)

It is a great pleasure to serve under your chairmanship in Committee, Mr Gray. I shall see you, as it were, with a new profile. I should explain that I am an interloper on behalf of my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who is Chair of the Intelligence and Security Committee. He would have liked to participate directly in the work of this Committee, but because the ISC holds regular meetings on Thursday mornings, that is not possible. In a sense, I am the messenger.

The Intelligence and Security Committee is a model of non-partisanship—as it should be, given the subject matter with which it has to deal—and it is therefore appropriate that both Government and Opposition Front Benchers have put their names to this first group of amendments. I congratulate the hon. Member for Kingston upon Hull North on homing in on precisely the sorts of areas that the amendments tabled both by the Government and by me on behalf of the ISC seek to address. She will find that my interventions in Committee will sometimes be nearer to her position than to the Government’s, and that the reverse will sometimes be true. I am confident that, with the right spirit of approach to this subject matter, we will make great progress, building on the definite improvements already made to the Bill by prior consideration in the upper House.

On this group of amendments, I will confine my remarks to saying that I strongly support their thrust. I look forward to improving the Bill further by agreement, in the way that is absolutely necessary if this important work is to be regulated properly.

Paul Murphy (Labour, Torfaen)

It is, indeed, a great pleasure to serve under your chairmanship, Mr Gray. I have not served on a Public Bill Committee for 17 years, so I hope that the rules are the same as they were in 1995; if they are not, there is no doubt that you will put me right, as you will the rest of the Committee.

The Government and the Minister, in tabling this first group of amendments, are absolutely right. It is appropriate, as the hon. Member for New Forest East has just said, that there is generally consensus among the political parties in this place on intelligence and security issues, and about the nature and operations of the Intelligence and Security Committee. That is why my hon. Friend the Member for Kingston upon Hull North added her name to the amendment that the Minister ably moved at the beginning of the sitting.

On consensus, my memory is that no vote has ever been held in the Intelligence and Security Committee—bar one, which was about whether the Committee should go by plane or train to wherever it was going. That is a measure of its consensual nature. It is not cosy, but it is consensual. It discusses matters of great secrecy, and its members are generally old codgers like me who have done our time in government and have some experience to give, and because it meets in private, unlike Select Committees, there is no need to be more partisan than necessary.

That is the background, but hon. Members—certainly older Members—may recall that before 1994 there was no parliamentary oversight of the intelligence services. Indeed, the Secret Intelligence Service, otherwise known as MI6, was deemed not to exist when I first entered the House in the late 1980s. It was a great measure of our approach as parliamentarians to the intelligence services that from not acknowledging its existence in the 1980s we now have a Committee of parliamentarians to oversee its business. That is a huge development and shows huge progress during the last two decades.

I am told by those who served on the Committee when it started in 1994 that there was inevitably some mistrust and tension between the intelligence services and the Committee, albeit that it met in secret because of the nature of the matters they were dealing with. It is a measure of the Committee’s success and indeed of its Chairs—I was one—over the years that trust between the intelligence services and the Committee grew considerably. Today, we are debating formally whether to make the ISC a Joint Committee of Parliament. That would not have been possible for the first decade or so, but as the Committee grew in strength and trust developed between the heads of the agencies and the Committee’s members, they were able to discuss issues that we will deal with later in other amendments, but which were unquestionably issues that could not be dealt with as the Committee went on during the early years.

I do not believe that the ISC should be an ordinary Select Committee. That would simply not work. The trust that has developed over the years and the relationship that is necessary for the ISC to exist and to do its job properly would break down completely if it were simply like another Select Committee. In other words, quite rightly from its point of view, the agency would simply not say anything to a Committee that always meets in public and operates on the same basis as any Select Committee. However, the Committee that was originally set up—it was a statutory Committee and consisted of parliamentarians of both Houses—was in one sense a parliamentary Committee, but in fact it was not. As a result, and as my hon. Friend the Member for Kingston upon Hull North said, public confidence in the Committee can be eroded as a consequence of meeting in private, because the great issues it discusses cannot be brought out into the open.

When I chaired the Committee for just over three years, the most significant issue was the July bombings of 2005. The Committee met and produced two reports on that dreadful incident. The second report was produced because my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr Brown) asked the Committee to do so on the basis that the public simply did not have sufficient confidence that the Committee had spotted what would happen. They wanted to know why the Committee did not know what was going to occur. The Committee had to go through the raw evidence and the intelligence material, listen to tapes, and go into the great detail of the secret issues. It came up with conclusions, but even then there was a problem, because it could reveal the nature of only some of those deliberations, not all. There will always be a problem with a Committee that, by its very nature, meets in private and deals with highly sensitive information, so cannot speak about everything that it does.

I can only say that during my time on the Committee—I am sure the hon. Member for New Forest East will echo what I say—that questioning of heads of agencies, other members of the intelligence services, Ministers and others was extremely robust. Inevitably, that takes place in private, but somehow we try to explain that the questioning is no different from questing by the Home Affairs Committee, the Foreign Affairs Committee and so on. Later, we will debate whether the Committee should sometimes meet in public; I would agree with that proposal. The thrust of the first amendment goes to the heart of the big change. The Government should be congratulated on giving sufficient parliamentary time in the Bill, although it deals with other things, to ensure the greater transparency and accountability of the Committee that deals with these highly sensitive issues.

Some years ago, my right hon. Friend the Member for Kirkcaldy and Cowdenbeath introduced a Green Paper that included various recommendations, all of which it seems are to be recommended by this Government and supported by the Opposition, perhaps even more so than then. It is a good day for democracy, when this particular Committee ceases to be statutory and becomes a Committee of Parliament, albeit with the restrictions that will inevitably apply to ensure that we safeguard national security. It is a good step and, along with my hon. Friends, I support the Government in what they are doing.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is a privilege to follow the right hon. Member for Torfaen with his eloquent summation of the work of the ISC and its contribution over a number of years. He rightly drew attention to its work following the appalling terrorist attack on 7/7. That underlines the importance of scrutiny around these sensitive issues. His comments rightly indicate the different nature of the ISC and why it would not necessarily sit comfortably as a Select Committee of the House, with some of the challenges that would be a consequence of that. That has been the clear view of the ISC itself when looking at reform and the best way forward to strengthen its existing role. I welcome the right hon. Gentleman’s contribution, even if it is his first Bill Committee contribution for 17 years. It is very valuable and underlines the importance of having expert input in Bill Committees to assist our analysis and assessment of legislation.

I also welcome the support that my hon. Friend the Member for New Forest East offered to the amendments and the broad thrust of the changes that the Government seek to make to part 1, to strengthen, respect and recognise the issues relating to the ISC. I look forward to a constructive analysis and assessment of the amendments that my hon. Friend has tabled on other aspects of part 1.

I join the hon. Member for Kingston upon Hull North in paying tribute to the work of the ISC and expressing the need to ensure that the work of agencies is effectively and appropriately scrutinised. That point came through in all the contributions to the debate. The hon. Lady also highlighted some issues I was to address in subsequent amendments to this part of the Bill, particularly in relation to staffing arrangements, on which there is a specific amendment from my hon. Friend the Member for New Forest East.

I am sure we will debate that matter further, but at this stage I will say that discussions are under way with the House authorities and the ISC. Clearly, staff engaged would need to be develop-vetted, and specific premises would need to be attached to ISC office accommodation arrangements, given the nature of the materials that the ISC holds. We are in close contact with the House authorities and, from my brief look at the letter from Sir Robert Rogers—I am sorry not to have been able to review the matter in further detail before our sitting this morning—I think he recognises that that dialogue is ongoing. We are engaged with the ISC on further discussions and details, to ensure that the right balance is struck, recognising the need for the support to the ISC to be appropriate in enabling it to conduct its duties.

Diana Johnson (Labour, Kingston upon Hull North)

Will the Minister say something about the time frame for all of that? When does he think, if the Bill goes through, there would be a Committee of Parliament? When would we see the need for transfer of staff or new accommodation?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Obviously, we want the arrangements in place as quickly as possible. I certainly want to have a final position on the staffing and support arrangements on Report, so that we can have the detail clearly set out before the Bill leaves this place and goes back to the other place for any final considerations. That is very much on the mind of the ISC. Discussions are very much ongoing on that point.

Julian Lewis (Conservative, New Forest East)

The staffing of the ISC is at the heart of all the changes because, if they are botched, everything else will fail. The staff are, in a sense, the hidden jewels on which the success of the organisation has always depended. They are seriously overstretched, undermanned and even under-graded for the level of the work that they do. If the changes go through, some of the extra ISC responsibilities will be of an investigatory nature, so additional staff will need to be appointed as Committee assistants. Therefore, the ISC is most anxious for the Government to respond to such matters urgently—we are in danger of losing some of our first-rate people, because their career demands might take them elsewhere.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am grateful to my hon. Friend for highlighting the ISC issues. We fully recognise the importance to the ISC of the staffing and support arrangements, to ensure that it carries out its duties in the way that we all want it to be able to do, robustly and effectively. I take on board what he said and the importance that the ISC and, indeed, this Committee attach to the issues. We will be pursuing the matter with all necessary speed, to ensure that we are able to give the House and the ISC itself the assurance that the ISC as a statutory Committee of Parliament will be able to fulfil the important functions that we attach to it, not only in statute but practically.

On the memorandum of understanding mentioned by the hon. Member for Kingston upon Hull North, a summary document was issued in the latter stages of the House of Lords consideration of the Bill. I am happy to write to her and other Committee members with a copy of that document. Indeed, my intention is to update that summary of intended content as our consideration in Committee progresses, to ensure that it is as up to date as we can make it on what will be covered in the memorandum of understanding, which is still under discussion between the Government and the ISC, so that the relevant issues are covered effectively.

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 5, in clause 1, page 1, line 6, at end insert—

‘(1A) Article 9 of the Bill of Rights shall apply to the proceedings of the ISC as if they were proceedings in Parliament.’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss the following:

Government amendment 48.

New clause 3—Criminal, civil and disciplinary proceedings and tribunals: disclosure of information held by the ISC—

‘Information held by the ISC in connection with the discharge of its functions under sections 1 to 4 and Schedule 1 may not be disclosed in any criminal, civil or disciplinary proceedings or tribunal.’.

Diana Johnson (Labour, Kingston upon Hull North)

I do not intend to divide the Committee on the amendment, because I fully appreciate the problems that it poses. However, I wanted the opportunity to debate the matter in Committee and to look at some related issues.

I refer again to the letter that the Clerk of the House of Commons has provided, which clearly lays out some of the problems. I elicited that advice, and I thank the Clerk for providing such a clear explanation. It is important that we spend a few moments addressing the powers and protections that the ISC will require in order for it to be an effective Committee of Parliament. The amendment would explicitly include the ISC in the Bill of Rights, which would afford the Committee, including its members and witnesses, parliamentary privilege and may also enable it to take evidence under oath. Government amendment 48 offers protections similar to those under privilege to witnesses of the Committee, and new clause 3, tabled by the hon. Member for New Forest East, also deals with giving protections.

If we are to discuss making the ISC a Committee of Parliament, it is absolutely right that we consider the ultimate asset available to parliamentarians, which is that of privilege. Privilege is a legal immunity covering both civil and criminal matters that protects Members of both Houses in carrying out their parliamentary functions as both legislators and scrutineers. If we are to say that it is now the role of Parliament to oversee the security services, it seems logical that the Committee performing that role should be afforded privilege.

Members of the ISC already enjoy privilege when they are acting as parliamentarians, but they do not seem to enjoy it while sitting on the Committee. That undermines the idea that they are acting as parliamentarians while sitting on the Committee. Should its members require the protection of Parliament in order to publish information, as I understand it, they could already do so by making a statement on the Floor of the House. I recognise that members of the Committee have to sign the Official Secrets Act and behave in a completely responsible way. Therefore, it would be extremely unlikely that any member of the ISC would feel the need to go on to the Floor of the House and disclose information. However, as I understand it, if they did that, they would be protected. Even though they had signed the Official Secrets Act, parliamentary privilege would protect them.

Returning to the real advantage of the Committee operating under privilege, my main concerns relate to its being able to receive information, and to allowing witnesses to provide information, entirely uninhibited by the threat of civil or criminal action. Given the significant legislative framework, both civil and criminal, that governs the supply of information that the ISC receives, we should not underestimate the worth of such protection being afforded to witnesses. We do not expect anyone to provide information to the ISC on a whim, of course, and very rarely would we expect evidence to be provided in a personal capacity, nor would we want the Committee to afford protection to evidence provided unscrupulously.

Bob Neill (Conservative, Bromley and Chislehurst)

I have been following the hon. Lady’s argument closely. I understand what she seeks to achieve, and I think that we all sympathise with her. However, is not the problem that the issue that she has just raised, the protection of witnesses, is effectively covered by Government amendment 48, whereas her amendment seems to run contrary to the advice of the Clerk in relation to the assertion of parliamentary privilege, which cannot in effect be conferred upon third parties? How would that dilemma be resolved?

Diana Johnson (Labour, Kingston upon Hull North)

As the hon. Gentleman will have heard me say in my opening remarks, I tabled this amendment to open up the debate. I have some questions for the Minister about the extent of his amendment, including whether it is wide enough to do everything that I think Committee members would want in offering protection to witnesses and, perhaps, to members of staff and other people associated with the Committee. The amendment provides the opportunity to explore the issue. There was great debate on this matter in the other place and many hon. and right hon. Members feel strongly about it. I think it is worth discussing issues relating to this group of amendments.

Having mentioned the Committee and witnesses, and giving evidence, I want to discuss Government amendment 50 and new clause 3—

James Gray (Conservative, North Wiltshire)

I think the hon. Lady means amendment 48.

Diana Johnson (Labour, Kingston upon Hull North)

Yes, I apologise. Government amendment 48 and new clause 3 both attempt to ape parliamentary privilege by affording statutory immunity from legal proceedings to witnesses of the Committee and in respect of Committee proceedings generally. Although I can accept that those amendments are steps in the right direction, I question whether, as statutory protections, they go far enough in dealing with the protections that the Committee needs.

In relation to what the Clerk of the House of Commons said in his letter, we need to be clear that it is possible to make provisions to confer parliamentary privilege, but that would be unprecedented, and I believe it would be misconceived and potentially damaging. I will return to that in a moment.

Clause 1 would create a statutory Committee. Therefore the most that we can do is to award statutory protections, because we accept that parliamentary privilege will not apply as a right to that Committee. However, will the Minister, and perhaps the hon. Member for New Forest East as well, explain whether the amendments are drafted widely enough to do everything that we think needs to be done to protect the Committee?

I should like to ask the Minister about the status of documents under the Government amendment. Unsolicited documents might be sent to the Committee, although a witness might not be brought in to give evidence. Will the Minister explain a little bit more about documents that are sent in just because somebody feels that the Committee ought to consider them? Would that attract statutory immunity, or would that apply only if the Committee accepted information from a third party, saying, “We accept this information, therefore it will be covered by any type of immunity that is granted under statute”?

Will the Minister explain what protections would be offered to members of staff in relation to advice and comments they made to the ISC? Does the Government amendment allow protection for staff who, for instance, might make some comment to Committee members about information that they had come across in relation to a witness appearing before the Committee? Perhaps they would say that the Committee ought to be concerned about the witness, and ought to have knowledge about them before interviewing them, because issues had arisen. How much protection would be offered to members of staff in respect of any comments that they made formally or informally to the Committee? Would protections attach to such an instance?

The letter from the Clerk of the House of Commons raises the issue of how providing statutory protections could open up the Committee to court interference. I am conscious that the Houses of Parliament guard parliamentary privilege jealously and feel that it is not appropriate in any sense for the courts to start interfering with, questioning or debating what parliamentary privilege means. Has the Minister sought advice about whether the amendments would open up a discussion in the courts about what exactly constituted the formal proceedings of a statutory Committee, and whether that could have read-across and have a bearing on the rights of parliamentary privilege? Could we open up a can of worms?

Has there been any other opportunity to consider widening the amendment to make it more obviously all-encompassing than it is at the moment? I am interested in the narrowness of its drafting and why there has not been a much broader approach. On that basis, I conclude my remarks.

Julian Lewis (Conservative, New Forest East)

The amendment is one of a small number about which the ISC feels very strongly indeed—so strongly that we will push the matter to a Division, unless the Minister feels able to say that he will look at it again.

The Government’s proposal to restrict the protection to evidence given by a witness is, in our view, far too narrow—narrow to the point of unacceptability. I know that there are provisions elsewhere in the Bill that give exemptions from freedom of information requests, for example, but that is not the only danger the Committee would face. Unless new clause 3 or something similar were incorporated, its proceedings could become vulnerable to release by order of a court, for example.

I will not unnecessarily detain the Committee by saying anything more than this on the subject: there has already been a significant chilling of relations as a result of the compromising of what is called the control principle, whereby a court ordered some intelligence that originated with our US allies to be put into the public domain. We have to be absolutely certain that no court could do anything of the sort with any of the material supplied to our agencies or any other classified material handled by the Committee.

In the upper House, the ISC proposed that the Committee have the same rights, privileges and protections as those enjoyed by Select Committees, as suggested by the hon. Member for Kingston upon Hull North. It was the objections of the parliamentary authorities that have led us to propose new clause 3 as an alternative. The Government propose what might be described as bespoke statutory immunity, which would replicate some aspects of privilege, but, as I say, the proposals in Government amendment 48 are far too narrow, in that they provide protections only for witnesses, not for the Committee’s proceedings more generally.

With new clause 3, we therefore propose that statutory immunity provide protection for a wider range of the ISC’s material. It would ensure that witnesses’ evidence could not be used against them in legal proceedings, but would also protect the full range of sensitive material with which the ISC is entrusted and ensure that the Committee could continue to oversee the agencies robustly. If there were not an assurance that material could not leach out from the Committee, the agencies would naturally cease to be as open with the Committee as, to their credit, they have been in the past. I therefore strongly urge Members to agree to new clause 3. I encourage the hon. Member for Kingston upon Hull North to marshal her troops behind it, just as we would, as second preference, support her amendment. However, we will not accept Government amendment 48, because, as I have explained, it will not go wide enough to meet the needs of the Committee.

Paul Murphy (Labour, Torfaen)

I think everybody wants the same thing, which is, first, to protect witnesses who go to the Committee. Remember that all the evidence in the ISC and all the formal proceedings are transcribed, even though they are held in private. Secondly, I think everyone wants to ensure that members of the Committee and the people who work for it are protected. If we start on that premise, I am sure that we will find a way through.

The amendment tabled by my hon. Friend the Member for Kingston upon Hull North, which relates to the Bill of Rights, is a good one, except that I think it has been scuppered by the Clerk of the House. I am sorry that I did not see my e-mail—that is one of the big changes that have happened in 17 years; 17 years ago, there were no e-mails for us to see. I should have seen it, because the previous Prime Minister, unwisely and inappropriately, made methe Minister with responsibility for digital inclusion. I will never know what possessed him to do that, but he did. It was an interesting job, but I missed it; I can now see the letter.

The letter is pretty clear to me. The Clerk of the House said:

“It is wrong to see parliamentary privilege as a kind of stardust which the House can choose to sprinkle where it wishes.”

I think that we have had our chips on that one, to be perfectly honest.

However, the other two amendments in the group, if taken together, would be acceptable. I agree with the hon. Member for New Forest East that the Government amendment on its own will not go far enough. I talked yesterday to the right hon. and learned Member for Kensington (Sir Malcolm Rifkind), the excellent Chair of the ISC. I simply do not think that the amendment will be sufficient to cover what we all want. Taken in conjunction with the protection for witnesses, new clause 3 would be sufficient.

Bob Neill (Conservative, Bromley and Chislehurst)

The right hon. Gentleman has covered my point about the inappropriateness of using the Bill of Rights procedure in light of the Clerk’s advice.

It is nice to recognise you in the Chair, Mr Gray.

James Gray (Conservative, North Wiltshire)

I think the hon. Gentleman realises that it is my job to recognise him, not his job to recognise me.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I certainly hear the point that has been made loud and clear about the ability of the ISC to conduct its work as it does now, ensuring that the candour of witnesses will not be affected by the changes introduced by the Bill.

The proposed changes are intended to deal with the main issues of concern, which are about the need to ensure candour. I will reflect carefully on the points made by the Opposition and by my hon. Friend the Member for New Forest East. There is a clear understanding of what we want to achieve: witnesses being able to present their cases clearly and fully, and ensuring that we have the evidence for the ISC to be able to come to the conclusions necessary for it properly to fulfil its functions.

It might be helpful if I addressed the specifics of Government amendment 48 and explained why we think that our approach is the appropriate one and why there are complications and challenges attached to amendment 5 and new clause 3. Regarding Government amendment 48, when the Bill was debated on Report in the other place, Lord Butler said, on behalf of the ISC:

“I want to make it clear that the safeguards that are provided by parliamentary privilege are essential—not parliamentary privilege itself. Provided those safeguards can be in the Bill—in other words, the protection of witnesses and the protection of the proceedings of the committee from judicial intrusion or the Freedom of Information Act—that is equally satisfactory.”—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1648.]

Obviously, in the previous group of amendments, we dealt with certain provisions relating to the Data Protection Act 1998 and the Freedom of Information Act 2000.

Government amendment 48 will provide protection to witnesses before the ISC and prevent evidence given by a witness before the ISC from being used against them in any criminal, civil or disciplinary proceedings, unless the evidence was given in bad faith. It is right to phrase the amendment in that way. I think that we would all ask, if evidence was not given in good faith, why should protection attach to it?

The amendment therefore replicates an important part of the protection of witnesses before a Select Committee by virtue of the fact that Select Committee proceedings are subject to parliamentary privilege. It will thus encourage witnesses appearing before the ISC, in our judgment, to be full and frank in the evidence that they provide. It is an important measure in ensuring that the ISC can perform its oversight function effectively. The fuller and more candid the evidence received by the ISC, the more effective it is likely to be in supervising the security and intelligence community. That point has consistently emerged from the debate that we have had so far on this group of amendments.

Meg Hillier (Labour, Hackney South and Shoreditch)

The Minister touched on the issue of people giving evidence in good or bad faith. Can he enlighten us as to who would be making that judgment?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I suppose that if the proceedings take place before a court, the court would ultimately have to decide whether somebody had been deliberately misleading. That framing is the important part. If evidence is deliberately misleading, it is of no assistance to the ISC in its analysis. We have sought to approach the problem by saying that the protection should not apply to evidence given in bad faith.

Sheila Gilmore (Labour, Edinburgh East)

I have been following carefully what the Minister says. The suggestion was that the issue would come up in subsequent court proceedings. On that basis, how can one ascertain whether evidence is in good faith without having heard at least some of the evidence surrounding it?

James Brokenshire (Conservative, Old Bexley and Sidcup)

One would have to take it as a point of evidence. I am sure that the hon. Lady will appreciate that if it is at issue whether a specific piece of evidence was admissible, in order to trigger the scenario that we are debating, there would need to have been some sort of proceedings against the individual in question. In other words, a witness gives evidence to the ISC, and thereafter is subject to proceedings, whether criminal or civil. The issue of self-incrimination is the essence of what we are considering, and it would need to be considered as part of that.

Ultimately, there are clear rules and requirements for a fair trial in article 6 on the European convention on human rights. Part of that includes not allowing self-incrimination, and the tenor of Government amendment 48 is to ensure that a witness does not self-incriminate. That is the basis on which we have proposed amendment 48.

To take the hon. Lady’s point directly, relevant proceedings would have to have been brought against the witness, and as an initial part of the consideration of that case or trial, that would have to have been considered.

Bob Neill (Conservative, Bromley and Chislehurst)

On the basis that I have knowledge neither of the ISC nor of digital matters—I happen to be a dry lawyer who deals in evidence—is it not the reality, as my hon. Friend says, that for this to arise there would have to be some material which impugns the faith of the evidence to start with? If then it was sought to invoke the protection, the normal procedures—certainly in the criminal case—either of the pre-trial hearings if there was an argument for abuse of process, or a trial within a trial on admissibility would perfectly properly cover the point.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I think my learned Friend, who certainly has more legal experience in court than I do, has set out how this would work in practice. I am grateful to him for his intervention as to how those issues would be addressed procedurally. It is the Government’s view that this amendment, together with the amendments in relation to the Freedom of Information Act that have already been considered, provide the ISC with protections that would allow it to operate effectively. It is a question of ensuring that we strike an appropriate balance on proportionality on addressing the fair and rightful concerns that have been expressed by right hon. and hon. Members across the Committee. However, we must be careful to ensure that we are not, for example, breaching the requirements of article 6 on a fair trial either.

Julian Lewis (Conservative, New Forest East)

May I draw the Minister’s attention to the opening words of new clause 3? It states:

“Information held by the ISC in the connection of the discharge of its functions”.

For us, this is not just about the giving of evidence by witnesses; we are given all sorts of sensitive information, some by foreign intelligence agencies for example, and we need to be able to assure them that that will not be compromised. What my hon. Friend is proposing in relation to witnesses is fine as far as witnesses are concerned, but it does not address this wider issue of the other material.

James Brokenshire (Conservative, Old Bexley and Sidcup)

My hon. Friend raises a fair point. Public interest immunity would potentially be available to cover those circumstances as well, and if we are looking at the closed material proceedings, which we will get on to in part 2 of the Bill, that would equally be potentially available to those items as well. I acknowledge the in principle point that my hon. Friend is highlighting; I am just saying to him that there are other ways in which this can be addressed. I am happy to look at this issue and to see whether we can give protection for witnesses’ evidence more generally—in other words, not just when it is being used against the witness in that sense—to see if we can strengthen the provision in amendment 48.

I accept what my hon. Friend says about the need to ensure that witnesses have candour, and that the information before the Committee is properly protected in the sense of the control principle, which we will come on to in terms of the debates on the Norwich Pharmacal jurisdiction. He has already rightly underlined the importance of ensuring that the control principle on intelligence from overseas Governments is properly protected so that our security and intelligence relationships with those other countries are not compromised.

There are other mechanisms and means that this Bill itself is equally seeking to draw upon to address the points that have been highlighted. New clause 3 would provide that

“Information held by the ISC in connection with the discharge of its functions under section 1 to 4 and Schedule 1 may not be disclosed in any criminal, civil or disciplinary proceedings or tribunal.”

In our judgement, this protection is drawn too widely and if the concern of my hon. Friend is to prevent disclosure of information that would be damaging to national security, then there are other established routes through which such material could be protected. Public interest immunity could be asserted as part of this, or if it is accepted in relation to part 2 of the Bill, the closed material proceedings would be able to address some of those concerns as well.

New clause 3, in common with Government amendment 48, serves the legitimate aim of encouraging candour in the evidence that is submitted to the ISC. Amendment 48 is proportionate to that aim, as it excludes only a limited category of evidence and is subject to an exception for evidence given in bad faith. New clause 3, with its broad blanket prohibition—included for the reasons my hon. Friend has highlighted—is unlikely to be found compatible with article 6 of the European convention on human rights.

As I have indicated to the Committee, I attach seriousness to ensuring that we have candour and that we have confidence in the Committee’s proceedings. While I cannot accept new clause 3 in its current formulation, because of its breadth and the proportionality issues, I will consider the points that my hon. Friend has made on behalf of the ISC to establish whether there are other steps we can take to strengthen our position in relation to amendment 48 in respect of witnesses and to consider material more broadly. I take on board the point that my hon. Friend has fairly sought to advance this morning.

Even information held by the agencies does not have a blanket protection of the nature of new clause 3, as it applies to the ISC. Section 2 of the Security Service Act 1989, for example, permits the Security Service to make a disclosure of information it holds for the purpose of any criminal proceedings so far as this is necessary. There are corresponding provisions in respect of the Secret Intelligence Service and GCHQ in the Intelligence Services Act 1994. I hope that my hon. Friend will be minded to withdraw new clause 3 on the basis that I will examine and review his clear concerns and return to the issue to ensure that the points that have been flagged this morning are considered further. As I understand it, the ISC as it is currently structured does not have the same breadth of exemptions that he seeks, but I am happy to consider the issue further to see how we can address the concerns expressed.

The hon. Member for Kingston upon Hull North said that amendment 5 was a probing amendment. In many ways it reflects the advice the Clerk gave the Committee in setting out the challenges of seeking to assert privilege as contrasted with granting privilege and the important distinction between the two. We are clear that nothing in the Bill seeks to cut across that assertion of parliamentary privilege, in other words, the separation of powers argument between Parliament and the courts themselves which the Clerk rightly underlined. Indeed, this has been a subject of debate between the Government, the ISC and the Clerks in Parliament. Broad constitutional issues could be flagged if in some way by statute we sought to assert privilege and to have the courts interpret what may be in a Bill seeking to assert privilege, as contrasted with parliamentary privilege which, in essence, Parliament itself already has and seeks to utilise.

The point the hon. Lady makes is relevant but we are clear that the provisions in the Bill do not cut across those issues. Indeed, we have not sought to assert parliamentary privilege in that formal sense because of those wide-ranging implications and the challenges that could be highlighted. That point has been well understood by the ISC. The right hon. Member for Torfaen has already indicated that he did not feel that this would be the appropriate way forward or that making the ISC a Select Committee would be the appropriate way forward.

We have taken a very careful view on how to structure this and therefore how to structure the protections without crossing the line in terms of saying that this is asserting parliamentary privilege in that specific way. Rather, we have sought to ensure that statute is properly reflected in terms of the practical operation of the ISC in order for it to be able to conduct its duties effectively and appropriately.

I hope the hon. Lady will be minded to withdraw her amendment 5 on the basis of not only my comments, but the comments of the Clerk in his letter to her, which has been copied now to other members of the Committee.

I hope hon. Members will be minded to support Government amendment 48 for the reasons that I have identified and indeed that my hon. Friend the Member for New Forest East will be minded to withdraw his new clause 3. I would underline to him, however, that I take his point extremely seriously and I commit to review this matter further and to ensure that further discussions are held with the ISC to establish what further protections can be forwarded so that we all have confidence that witnesses can act with candour and that the ISC itself is able to operate in the way in which we would want it to.

Diana Johnson (Labour, Kingston upon Hull North)

This has been a useful debate. As I said in my opening remarks, I am minded to withdraw amendment 5. I listened carefully to the Minister, and I note that he is willing to look again at this issue. The scope of the Government amendment is too narrow and needs to encompass the gamut of areas that we need to have statutory protection for on the ISC, and I certainly would support such a change. The key issue for me is to provide certainty to the ISC about what its procedures will mean and the protections it has available to it. I am worried, however, that the courts will have an opportunity to get involved in matters before the ISC in which we would generally not want them to be involved.

I beg to ask leave to withdraw the amendment.

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 6, in clause 1, page 1, line 9, at end insert—

‘(2A) A majority of the ISC’s members shall be drawn from the members of the House of Commons.’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss the following:

Amendment 7, in clause 1, page 1, line 16, at end insert—

‘(5A) The Prime Minister must ensure that no more than six members of the ISC are members of parties participating in Her Majesty’s Government.’.

Amendment 8, in clause 1, page 2, line 1, after first ‘ISC’, insert ‘who is in opposition to Her Majesty’s Government’.

Diana Johnson (Labour, Kingston upon Hull North)

May I just confirm, Mr Gray, that new clause 3 will be considered at a later stage and voted on?

James Gray (Conservative, North Wiltshire)

That is absolutely correct. New clause 3 will be considered for decision at the appropriate moment, which will be quite some time from now.

Diana Johnson (Labour, Kingston upon Hull North)

Thank you for that explanation.

The amendments relate to three distinct issues about the membership of the ISC. Amendment 6 would ensure that a majority of the ISC are Members of Parliament. At present, the legislation would allow possibly eight Lords and one Member of Parliament to be appointed. I would like to explain why I think we need a clear view about the membership of the ISC included in the Bill.

Amendment 7 would limit the number of Government members of the ISC to a maximum of six. I believe this would strengthen the current provision in the Bill to consult the Leader of the Opposition to ensure that at least three members could be drawn from Opposition parties. Amendment 8 considers the possibility of a Member of the Opposition chairing the Committee.

The Opposition have tabled the amendments to strengthen and bolster the ISC in order to make it very clear that Parliament takes the ISC very seriously and wants it to be as accountable as possible. Amendment 6 therefore relates to having a majority of Members of Parliament on the Committee.

James Gray (Conservative, North Wiltshire)

Order. I think that the hon. Lady means Members of the House of Commons. Of course, peers, too, are Members of Parliament.

Diana Johnson (Labour, Kingston upon Hull North)

Thank you, Mr Gray. You are absolutely right.

The amendment would mean that Members of the House of Commons were in the majority. We tabled it because reform of the House of Lords now seems to be off the table for some time to come. There is an unelected House of Lords and an elected House of Commons, and to make the body to be created by the Bill as accountable as possible, the Opposition think that the majority of places on the Committee should be held by those who are democratically elected and accountable, which is the basis of the amendment.

As the Bill is now phrased, it would be possible to have eight Members of the House of Lords and one Member of House of Commons in the current membership of nine. In the other place, Lord King, who is a former Chair of the ISC, spoke about the prospect of a majority of Lords sitting on the ISC and commented that that was a potential anomaly. It would be very helpful if this Committee put into the Bill an acceptance that the majority will be Members of the House of Commons. I imagine that, when the Minister responds, he might point out that it has never been the case, since 1994, that the House of Lords has held the majority of places allocated to the Committee. However, in making other changes to the Bill, this is an opportunity for the Committee to make it clear that the House of Commons should have the majority of members.

Amendment 7 seeks to limit the number of members of the ISC who are drawn from the governing parties. It suggests that the limit should be six, which would give the Government a two thirds majority on the Committee. As currently drafted, the Bill gives some protection by requiring the Prime Minister to consult with the Leader of the Opposition. On that basis, one would assume that a certain number of places will be allocated to the Opposition. Of the present membership of the Committee, five are drawn from the governing parties and there are three spaces for Opposition Members, with one distinguished Cross Bencher from the Lords.

The present composition works well, but the amendment seeks to strengthen the provisions to ensure that that balanced composition is maintained. Without that, there is always a danger that a future Prime Minister might use his powers of appointment as a form of patronage, which would be hugely damaging to the Committee. It might deprive the Committee of valuable expertise, compromise its independence from the Executive and make it appear more subservient to the Government than it should be, which is why that amendment was tabled.

Amendment 8 opens a debate about the Chair of the ISC by proposing that it should be held by an Opposition Member. I make it clear that, in suggesting this amendment, I in no way cast aspersions on the competence of the current Chair. He is a very distinguished Member of the House of Commons, with excellent qualifications for being Chair, and he is a very distinguished Chair of the currently constituted ISC; neither do I seek to criticise any of the previous Labour chairs of the Committee, who held that position while the Labour party was in government. I am particularly pleased that my right hon. Friend the Member for Torfaen is on this Committee, and I am sure that he will comment on this amendment.

My respect for what has happened in the past, under the former and current Chairs, means that I do not propose to divide the Committee on this amendment. However, it is important that we look at who chairs such an important Committee. There is a precedent in the House of Commons that senior Committees, such as the Public Accounts Committee, should be chaired by an Opposition Member to ensure that they are independent and offer good and effective scrutiny of what the ruling party does. Amendment 8 was tabled to raise that issue. The shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), spoke in a debate in the House way back in 1998 about the need for that to be considered, so it has been raised over a number of years. This is a good moment, while we are revising the terms of the ISC, to look again at the issue of who will chair it. With those points, I have completed what I wanted to say.

Julian Lewis (Conservative, New Forest East)

The Committee is content to support amendment 6, it has no strong view on amendment 7, but it is opposed to amendment 8. I see from the hon. Lady’s reaction that she is not entirely surprised about that.

The current arrangements in the Bill allow the members of the ISC themselves to choose who will chair it. We are content with that change, and we consider it a step in the right direction. We do not wish to see the freedom of action of the Committee’s membership unduly constrained. To legislate that the Chair must be an Opposition Member seems restrictive. Let us imagine a scenario where the chairmanship had changed a year before a general election, and the new Chairman was very highly regarded by Government and Opposition members of the Committee. Should that person be forced out of the Chair just because there had been a change of Government at the election? We feel that this matter should be for the judgment of ISC members.

There is an immensely non-partisan atmosphere in the Committee. I say to the hon. Lady, with hand on heart, that I can think of one or more members of the Labour contingent under whose chairmanship I would be perfectly happy to serve, and whom, if they were Chairman and there were a change of Government, I would be very disappointed to see forced out. I am sure that Labour members of the Committee would say the same thing about my right hon. and learned Friend the Member for Kensington.

On amendments 6 and 7, I can see no possible objection to specifying that Members of the House of Commons must be a majority. On the question of whether the Prime Minister must ensure that no more than six members are members of Government parties, that is, of course, a higher threshold than is currently the case. I have no particular objection to it, but it is a little bit obvious to require imprinting on the face of the Bill. That is the ISC’s view at present.

Paul Murphy (Labour, Torfaen)

The first amendment is an excellent suggestion. It says that the Bill should state that there be a majority of Members of the House of Commons on the joint Committee. Think of the difference between now and what might be. At the moment, the Prime Minister has absolute discretion about who to put on the Committee. He or she could appoint only Government Members, although that has never been the case. Prime Ministers of the day have indicated—quite rightly—that there should be proportionality in the membership of Committees. The two amendments reflect the change in nature of the Committee to a parliamentary Committee. The Prime Minister will still have a powerful influence over who sits on it—indeed, he will have the final say because he can veto candidates and ask Parliament to put new ones forward. Nevertheless, we are in a new situation, and the Government should think very carefully about these two amendments.

The second amendment refers to the change in circumstances of the coalition. Doubtless, coalitions will be here for a long time; between whom, we do not know, but nevertheless the principle applies. I want also to emphasise the importance of the work of Members of the House of Lords who sit on the ISC. At the moment, two distinguished Members of the House of Lords, the Marquess of Lothian and Lord Butler, are on the Committee. Michael Ancram, as he was, was a distinguished member of the Committee as a Member of the House of Commons, and everybody knows Lord Butler’s position. Previously, Baroness Meta Ramsay—the highest serving member of a security agency now in public life—was a member of the Committee. It is important to remember that. The way in which the Committee reports also changes. At one time, the ISC’s report was dealt with only by the House of Commons, but now it is dealt with by the House of Lords as well. It is important to emphasise that it is right for Members of the House of Lords to be on the Committee, but they should not be in a majority.

As for the third amendment in the group, which would stipulate that the Chair of the ISC be an Opposition Member, I am not persuaded by the case for it at all. The first Chair, Lord King, was a member of the governing party. When his party lost an election, the Prime Minister kept him on, and he continued to chair the Committee while in opposition. He grumbled and grizzled a bit when I was appointed in 2005. I am not quite sure why, but I think he had a view that at that stage an Opposition Member should be Chair. I think that that is unnecessary, for this reason. The difference between this Committee and others is that, although there are robust discussions and arguments, and even great rows, sometimes—there may not be votes, but that does not mean to say that they just agree on things—it is not a party political, partisan Committee of Parliament.

The suggestion that the members of the ISC should appoint their own Chair is a good one, because it takes the matter out of the hands of the Prime Minister. The Prime Minister clearly would have to approve the position because he has approved the membership, but he would not have the right to appoint the Chair; that would be a matter for the members of the Committee. That means that there must be genuine consensus among the members of the Committee, no matter from which party or House they come, that the Chair is the best person to do the job. The fact that the members of the Committee will choose the Chair obviates the need to have a Public Accounts Committee-type Chair from the Opposition. If the Bill did not stipulate that the Chair be chosen by the members of the Committee, it might be worth considering having alternate Chairs from the Opposition and the Government, or something similar, but that is not necessary as the Bill stands.

James Brokenshire (Conservative, Old Bexley and Sidcup)

This has been a helpful and informative debate about the make-up of the ISC. The amendments would require that a majority of members of the ISC be MPs rather than Members of the House of Lords; that at least one third of the Committee’s members be from the Opposition; and that it be chaired by an Opposition Member. We have already been clear about the important role that the ISC has played. The hon. Member for Kingston upon Hull North hinted at that in her opening comments. She spoke about recognising the work of previous Committee Chairs, from whichever party, and how they have done their duties to the best of their ability regardless of whether their party was in government. Although I respect what she has said about the arrangements in certain Parliamentary Committees, it is not right to characterise as a necessity the proposal that the Chair be from the Opposition.

My hon. Friend the Member for New Forest East hit on an important point about what would happen if the chairmanship changed immediately before an election. Because of the special nature of the materials and the work involved, it would be appropriate, if the ISC as a whole agreed, for an individual in such circumstances to continue as Chair after the general election, even if that meant that the Chair was of the same political colour as the Government. It is a question of focusing on the qualifications, skills and nature of that individual, rather than looking at what party they represent. That has been the fair way in which the ISC has conducted its duties to date. I have every confidence that it will continue to do so following the changes that we propose in the Bill.

Amendment 6 would require that the majority of ISC members be drawn from the House of Commons. The intention is that the Committee should, in effect, largely be made up of elected Members to strengthen the accountability of the intelligence and security services to the electorate by way of the oversight work for which it is responsible. I am sure that such amendments and some of the comments made are designed to strengthen the position of the Committee in that way. The ISC has historically had a majority of members from the House of Commons. As the hon. Lady highlighted, there are currently two Lords out of the nine Committee members on the ISC. That has been the continuing nature of the balance between the House of Commons and the House of Lords in terms of the Committee’s membership.

The ISC is unique in that its members have access to extremely sensitive information and scrutinise matters of great national importance relating to the intelligence and security agencies and their functions. Compared with other Committees of this House, it is a Committee the like of which we do not have. It therefore follows that the role should be fulfilled by the most qualified, competent and suitable candidates, regardless of whether they are MPs or peers. We believe that the balance of MPs and peers is best left to be handled by the usual channels, as it would be in relation to other Committees. Subject to what I will say in a moment about the representation of the parties on the ISC, those best equipped for those roles, whether from either House, are appointed. I question the need specifically to legislate for and put in primary legislation the membership in a way that, as far as I can think, would not be characteristic of any other Committee of Parliament.

Diana Johnson (Labour, Kingston upon Hull North)

I am listening carefully, but can the Minister help me on other Committees of Parliament? If they are Select Committees, the membership is apportioned on the basis of membership of the House of Commons, as I understand it. So there are rules about how it is done. The Committee will become a Committee of Parliament, therefore, would it not be better to set out at the beginning the expectation in terms of membership?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I suppose our view is that, given the desire to see the ISC become a Committee of Parliament, the general procedures and processes that normally govern the settlement of Select Committees should equally apply to the ISC. Therefore, by in essence legislating and putting it in statute, this again makes it separate and different. Our view is that it would be better to leave the normal processes and procedures that, as far as I am aware—and I am sure that the usual channels will leap to their feet to correct me if I am wrong—have worked effectively on the settlement of Select Committees of this House.

Yes, of course, this is not a Select Committee for the clear reasons that were enunciated in our debates this morning. However there is a strong desire to make it something that looks more like a standard Select Committee of this House, recognising the constitutional differences, the different material and the nature of the work. It would be better not to mark it out separately, but to treat it in the way in which we treat other Committees of this House.

Amendment 7 would require the Prime Minister to ensure that no more than six members of the ISC are Members of Parliament or peers drawn from the governing party or parties, so at least three of the Committee members would be drawn from the Opposition or other parties not within the Government. I note from what the hon. Lady said that the amendment is intended to strengthen the Committee’s credibility. However, we have already heard from a former Chair of the ISC and obviously a current member of the ISC why that may not necessarily be the appropriate way forward.

Indeed, in wanting the Committee to be more akin to a Select Committee, and recognising the differences, it would be more appropriate to leave its composition and make-up to the usual channels. They have assured us that the make-up of previous Intelligence and Security Committees has been representative of the make-up of the two Houses, and we certainly expect that to continue under the new Committee.

As for amendment 8, I have already touched on the position of the Chair of the ISC and for the reasons that I highlighted, it would not be appropriate to specify again in statute that the Chair should be a member of a particular party, reflective of the party in government. Ultimately, it should be the choice of the ISC, based on the best possible candidate for the job.

Ian Paisley Jnr (DUP, North Antrim)

Can the Minister comment on whether the provision will require legislative consent from the devolved regions of the United Kingdom? Has there been an attempt by the devolved Assembly in Northern Ireland to block consent?

James Gray (Conservative, North Wiltshire)

Order. Before the Minister responds to that question, I must point out that it has nothing whatever to do with the amendment that we are discussing at the moment, so he need not answer it.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Given that we are talking about Parliament, we are not discussing a devolved matter so a legislative consent motion would not be required in respect of the provisions. I apologise if my answer was not quite in order, Mr Gray, but I hope that at least it is helpful to the hon. Gentleman when considering the amendments that we are debating. For the reasons that I have set out, I hope that the hon. Lady will withdraw the amendment.

Diana Johnson (Labour, Kingston upon Hull North)

That was a useful debate. I am very much persuaded by what my right hon. Friend the Member for Torfaen said, and I shall not press amendment 8 to a Division, nor am I minded to press amendment 7, in light of what the Minister and others have said about the way the Committee was constituted in the past, and the clear view from both sides of the House about the importance of balance and for the Committee not to be partisan, but to bring together expertise from the House of Commons and the House of Lords.

However, I feel strongly about amendment 6. Because of what has happened in the recent past, particularly relating to the House of Lords and the fact that we shall not have a reformed House of Lords for some time to come, the establishment of a new Committee gives us an opportunity to set out clearly under the Bill that the House of Commons should take the majority of places on the newly constituted ISC. I want to test the opinion of the Committee on the amendment.

Julian Lewis (Conservative, New Forest East)

I beg to move amendment 29, in clause 1, page 2, line 1, after ‘members’, insert

‘and the Chair shall be remunerated in line with the arrangements for Chairs of Departmental Select Committees of the House of Commons.’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss amendment 13, in clause 1, page 2, line 1, at end insert—

‘(6A) Financial support shall be available to members of the ISC who are members of the House of Commons as if they were members of a Select Committee of that House; and to those who are members of the House of Lords as if they were members of a Select Committee of that House.’.

Julian Lewis (Conservative, New Forest East)

I have proposed amendment 29 to ensure that the Chair of the ISC will be treated as a Chair of a Select Committee and remunerated for his work. The work of the ISC Chair is at least as demanding as that of the Chairs of other parliamentary Committees. If the ISC is to become closer to Parliament and more like a Select Committee the Chair should receive remuneration similar to that of Select Committee Chairs. Of course, at the time the ISC was set up, no Chairman of any Select Committee was paid. The situation has since changed for Chairmen of Select Committees but not for the Chairman of the ISC.

The Government have suggested that it is a matter for the Independent Parliamentary Standards Authority to take forward. Has the Minister had any discussions with IPSA about whether it would be sympathetic to the proposal? In the absence of any such indication, we feel we must seek mention in the Bill, if the Chair of the ISC is not to be disadvantaged by comparison with his counterparts.

Amendment 13, tabled by the hon. Member for Kingston upon Hull North, may be designed to achieve the same aim. If that is the case, I could support that amendment instead.

Diana Johnson (Labour, Kingston upon Hull North)

Amendment 13 is similar to amendment 29 tabled by the hon. Member for New Forest East, and follows others brought forward to strengthen the role of the new ISC within Parliament. As the hon. Gentleman has just said, the role of the Chair of the ISC is every bit as important and intensive in time and effort as that of Chair of a Select Committee. We recognise that there ought to be the same remuneration for both roles.

At present, the ISC is a statutory body funded by the Cabinet Office. If responsibility for funding the ISC transferred to Parliament payment of the Chair would also be a matter for Parliament. I appreciate that the matter would probably need to be dealt with through Standing Orders rather than statute, in which case, I would be happy not to press my amendment. I am sure the Minister will be able to explain the funding situation.

I would like to highlight the differences between amendments 13 and 29. Amendment 13 refers to all members of the Committee. At present, we do not pay members of Select Committees. The difference might seem irrelevant but it could be significant in two circumstances. The first is if in future we begin to remunerate Select Committee members specifically for their work, especially those on Committees that demand a large amount of time and investment. At the moment the ISC meets almost weekly, and I understand that its members have to spend half a day looking at information and preparing for the Committee, followed by a day in the Committee. Members are expected to commit a major amount of time, so we make the proposal just in case we decide in future that they should be remunerated in a special way.

The second issue—a live issue—concerns Members of the House of Lords, who unlike Members of Parliament do not get a flat salary but an attendance allowance. I read in the debates of the other place that at present the Lords do not get their allowance for attending the ISC on days when the Lords are not sitting. As we are to consider the ISC as a Committee of Parliament—so of both Houses—it would be appropriate to amend this for Lords as if they had attended a sitting of Parliament. I am sure the Minister will explain what thought has gone into the provision, and whether it follows automatically from the ISC being declared a Committee of Parliament, and whether the Lords would then be able to receive their parliamentary allowance for doing what is very obviously parliamentary work as members of the ISC.

Paul Murphy (Labour, Torfaen)

I support both amendments. The point about the House of Lords is very important. If membership of the ISC is not treated in the same way as membership of an ordinary Joint or Select Committee, there is a severe disadvantage to the Members of the upper House, so I entirely support it. The only point concerning the Chair that I think is defective is that the provision is not retrospective [ Laughter. ] There is three years’ worth of back salary for me somewhere, but when I was appointed everybody thought that the Chair was paid, and indeed the Prime Minister thought that I was paid. It turned out that I was not, and none of the Chairs of the ISC had been paid.

There was a point when the ISC was a statutory Committee, not a parliamentary one, which would have meant a change in the law. No Chair of the ISC would have wanted a separate Bill asking for him to be paid. It therefore seems to me—now that we consider it—that the parliamentary nature of the Committee should reflect exactly what a Select Committee does.

I also believe very strongly that the House of Commons and the House of Lords—Parliament combined—should make the decision about whether the Chair of the ISC should in fact be paid; certainly not IPSA. IPSA does not know much about what MPs do, and knows even less about what the Chair of the ISC does. There is a very strong case for the proposal to be on the face of the Bill, because it is then absolutely the case that the ISC is in line with other Select Committees and Committees of Parliament. I suppose IPSA would have a role to play in determining the amount of salary paid, but that is a separate issue. The principle of paying the Chair of the ISC should be a matter for Parliament, and should be on the face of the Bill.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I seek to reassure the right hon. Gentleman on that last point, and equally on the point made by my hon. Friend the Member for New Forest East in moving the amendment. There is a distinction between the role of IPSA in setting amounts, and Parliament deciding who should actually be awarded the additional enhancements. At the outset it may be worth my clarifying how the rules on remuneration for Committee Chairs operate, both for the Lords and for the Commons, as it may be helpful in considering these amendments.

The pay of Commons Members is the responsibility of the Independent Parliamentary Standards Authority. Currently IPSA pays MPs’ salaries in accordance with resolutions of the House, and the relevant resolutions make no provision for additional financial support for ordinary members of Select Committees. I add for the sake of completeness that from 1 April 2013 IPSA itself will determine MPs’ salaries. IPSA will have responsibility for setting the salaries of MPs generally, and may determine that MPs who hold a position or office specified in a resolution of the House of Commons should receive a higher salary than ordinary MPs. IPSA will have no say about which positions are on the list; that is a matter for Parliament. IPSA will only say what the pay should be for those holding the positions named.

Members of the other place who are currently ordinary members of Select Committees do not receive financial support purely because of their membership of such a Committee. For Lords, any question of financial support is a question for the House Committee. Any additional allowance for attendance, as if the Committee were equivalent to a Select Committee, would therefore seem to be a matter for the House Committee.

It seems to the Government that deciding on the appropriate level of financial support for members of the ISC is very much a matter for the existing mechanisms by which Members of each House are financially supported. It seems very much a matter for IPSA in the case of Members of the House of Commons, and for the House Committee for the Lords, which already makes some provision for members of the ISC who are peers. Those are well understood mechanisms for the financial support of Members of each House, and I encourage members of this Committee to consider them as mechanisms in further discussions about such support. It seems undesirable to make a specific provision in the Bill in relation to the ISC alone. It would be more appropriate to allow the existing structures—IPSA and resolutions of the House of Commons, or the authorities in the House of Lords—to make that determination.

Diana Johnson (Labour, Kingston upon Hull North)

Does the Minister think it is fair for Members of the Lords to do all their preparation and attend a Committee, but because the House of Lords is not sitting, not be entitled to the allowance that they would normally get?

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is for the House authorities to determine what is appropriate for Members of the Lords in such circumstances. I am not sure that it is right for the Government to say what the House authorities in the other place should be doing. Obviously, the point was carefully considered in the other place and was not addressed in the version of the Bill that left the Lords to come to this place. It really is a matter for the House authorities to deal with.

Julian Lewis (Conservative, New Forest East)

Would the Minister be willing to consider the option that the payment of the Chairman could be dealt with in the memorandum of understanding? If he felt able to give that assurance, I might feel able not to press my amendment to a vote.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Can I first address my hon. Friend’s amendment? We will see where that takes us. Amendment 29 would remunerate the Chair of the ISC

“in line with the arrangements for Chairs of Departmental Select Committees of the House of Commons.”

However, I highlight the fact that there is no real consistency in the way that Select Committee Chairs are treated. Not all Commons Select Committee Chairs currently receive an additional salary. In the Lords, there is only one salaried Chair—that of the European Union Select Committee, who is paid a salary not by virtue of that position, but by being also the Principal Deputy Chairman of Committees. It is a challenge to see where consistency may lie. Ultimately, it is resolutions of the House that specify the Committee Chairs who should receive additional pay, which not all of them do.

Paul Murphy (Labour, Torfaen)

I am following the Minister’s comments with great interest. He is of course absolutely right that certain Select Committee Chairs are paid differently from others, but I think he must accept that the work load of the Chair of the ISC is equal to that of the Chairs of the Select Committees for the great Departments of State.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Then we get into the issue we have already touched on: when IPSA takes over responsibility for determining MPs’ salaries from 1 April, it will be able to determine whether MPs who hold a position or office specified in a resolution of the House of Commons should receive a higher salary than ordinary MPs. There will be a structure for recognising that there is a group of MPs who, because of their duties and responsibilities or the office they hold, should be given an additional sum to reflect such responsibilities, but ultimately it would be for the House, through resolution, to say who those people should be and which positions should be affected, mirroring the nature of the resolutions in respect of Select Committees.

If we are seeking to make the ISC more like a Select Committee, surely taking the same approach to the ISC as we do to Select Committees—a resolution of the whole House rather than a specific provision in statute—is appropriate. That would provide an effective mechanism by which to recognise the role and responsibility of the ISC’s Chair and show respect for the incredible work that former Chairs of the ISC have conducted without remuneration. I pay tribute to the sense of duty with which Chairs of the ISC, past and present, have undertaken their responsibilities, recognising the import and significance of that work, without seeking monetary gain. That says an awful lot. Some people outside this House suggest that the only reason anyone within this House does anything is for some sort of monetary or personal gain, but that is certainly not the case for the incredible work of ISC Chairs, past and present.

Paul Murphy (Labour, Torfaen)

My fear about IPSA is that, although it may have some idea what the Chair of the Foreign Affairs Committee or the Home Affairs Committee does, I am sure it does not have a clue about what the Chair of the ISC does. The reason the hon. Member for New Forest East is pressing this issue is, I think, that he and I know that all the work done by the Chair, and indeed the members, of the ISC is done not only behind closed doors, but in a separate building: members of the ISC have to go to that building and to an office to read the material. That would not be known to IPSA. Somehow or other we have to get through to IPSA that the ISC is a Committee that is certainly on a par with the great offices of state.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I understand the practical challenges of handling sensitive material to ensure that it is dealt with securely. As we have already heard, the work that the ISC does, the need to review documents in advance of meetings in secure premises, the nature of the information that is being dealt with, the very sensitive work that that Committee undertakes and the importance of that work, mean that that Committee has a special nature, different from that of other Select Committees.

Julian Lewis (Conservative, New Forest East)

I am sure that, until that exchange, members of this Committee would have had little idea that ISC members have to give up several hours the day before the weekly meeting to go to the secure offices to read all the classified material, so that they can take part in the meeting. Given that not many people understand such work burdens, will the Minister at least give an undertaking to discuss those matters and the special nature of that special Committee’s work with IPSA? Will he give us an assurance that IPSA will left in no doubt? If he does so, and in order to be helpful, I might feel that I do not need to press the matter any further.

James Brokenshire (Conservative, Old Bexley and Sidcup)

IPSA is currently analysing MPs’ pay and the enhancement, if I can call it that, for those MPs who hold particular responsibilities in the House, such as Chairs of Select Committees and others. I will confirm the position with regard to the status of the consideration that IPSA has given, and whether it is possible to make the sort of representations that my hon. Friend has highlighted. It may help him if I say that Chair of the ISC is certainly an office that could be specified by the House as eligible to receive a higher salary. I suggest to the Committee that that would be the most effective and appropriate way of dealing with this matter, with the House itself underlining the points rightly made this morning about the special nature of the Chair’s work, the responsibilities held and the time and commitment required of the individual.

It is my understanding that there is a motion coming before the House in the next few weeks that will list eligible posts in advance of the new IPSA scheme coming into force on 1 April. When that motion is debated, any Member could table an amendment to include the Chair of the ISC on that list, rather than seek to amend the Bill. If our aim is to bring the ISC more into the practices and general stance of Parliament, that would be a more appropriate and immediate way of dealing with this matter, and one that would be more sympathetic to the workings of other Committees in Parliament than making specific provision in the Bill, as suggested in the amendment.

In conclusion, the Government’s position remains as it was when this question was debated in another place. The ISC is in important Committee that carries out a valuable oversight function and the Chair of that Committee has a critical role. However, deciding on the appropriate level of financial support for the chair is a matter for the existing mechanisms in the two Houses, which we believe is the most appropriate way to resolve this issue. We could draw upon those mechanisms, recognising the enhancement IPSA is considering for special posts, the work of the House authorities in the other place and, indeed, the will of this House in determining which posts should receive enhancement under the IPSA scheme, when it takes effect in April.

Julian Lewis (Conservative, New Forest East)

If the Minister could give me an indication as to whether the Government are minded to support the listing of this post, even if it were a mere nod of the head, should he go down that route, it may be possible for me to leave the matter at that and withdraw the amendment.

James Brokenshire (Conservative, Old Bexley and Sidcup)

As a Minister who has access to a range of secure documents, just as the ISC members do, and as one who has the utmost respect for its Chair, in a personal capacity I say to my hon. Friend that I recognise the strength of the argument that he puts forward.

Julian Lewis (Conservative, New Forest East)

As always, the Minister responds with good grace. It behoves me to respond with equal grace, so I beg to ask leave to withdraw the amendment.

Julian Lewis (Conservative, New Forest East)

I beg to move amendment 30, in clause 1, page 2, line 1, at end insert—

‘(6A) The ISC shall be supported by a body to be known as the ISC Secretariat about which a memorandum of understanding under section 2 may make further provision.’.

The amendment deals with a serious matter, to which I referred earlier this morning. It relates to the work of the secretariat without which the ISC would not be able to function at the level of repute that it has deservedly achieved over the years.

The Committee is supported by a small secretariat that comprises civil servants and is housed, for pay and rations purposes, in the Cabinet Office. That could create a problem because although informally in recent years the ISC has undertaken oversight of the Joint Intelligence Committee, which is a Cabinet Office body, the new ISC of Parliament will have formal oversight of both the JIC and the national security secretariat, which is another body housed in the Cabinet Office. We believe that it is not tenable for the staff who support the ISC to be managed by an organisation that the Committee oversees, because that could lead to a blurring of the lines of accountability.

The Government have previously suggested that the ISC’s staff should be security-cleared parliamentary staff, but since the work of the ISC must be kept separate, the parliamentary authorities are understandably reluctant to accept the secretariat within the parliamentary body when they can have no sight of its work or any say in its staffing or the way that it operates. For independence reasons, the Committee’s secretariat must therefore be separate from Government; for security reasons, it cannot report to Parliament. It is a distinct entity that is separate of both.

The ISC has proposed a solution that would ensure no risk of any such conflict of interest. Our proposal is that ISC’s secretariat becomes an independent arm’s length body on the precedent of bodies such as the National Audit Office, which, albeit on a different scale, is essentially a parliamentary non-departmental public body. We have not as yet been given any good reasons why the Government do not support our proposal, other than that it takes some work to set up an independent body. That is not a strong argument. Surely it is more important that we do the work and get it right, even if it requires a bit of extra work to be done.

Given that we still do not have a satisfactory solution to the problem, the amendment is proposed as an enabling provision to provide the flexibility to finalise a solution, which can be detailed in the memorandum of understanding. It is important to leave the matter open in that way now, or else we will regret it later.

Paul Murphy (Labour, Torfaen)

I strongly support the amendment, which offers an ingenious compromise. The staff of the ISC are the unsung heroes of the story. They are dedicated, clever and bright and there are not enough of them. Of course, no one knows what they do because of the nature of the job, but they do the job well. However, there is also the issue of where the secretariat meets, remuneration, the nature of the work, which is highly classified, and so on. As the hon. Gentleman has said, the organisation certainly cannot be a creature of Government—that would be wrong. That was always the problem in the past: the ISC met physically in the Cabinet Office and, because the Cabinet Office has many important tasks regarding intelligence and security, it could be argued—although it was never the case—that the ISC could be compromised. The other problem, if it were based here in Parliament, is: where would it go? What oversight would the parliamentary authorities have? What the hon. Gentleman has proposed is a good way through that, and I hope the Minister will give it serious consideration.

Diana Johnson (Labour, Kingston upon Hull North)

I feel slightly uncomfortable with the amendment. I can understand why the hon. Member for New Forest East has tabled it, but we have just spent quite a lot of time discussing how the ISC will be a Committee of Parliament and will have parliamentarians sitting on it, so to consider supporting the Committee by setting up a NDPB concerns me a little. Earlier, I asked about the Government’s thinking on the support mechanisms that they will put in place when the ISC becomes a Committee of Parliament.

Julian Lewis (Conservative, New Forest East)

Does the hon. Lady have the same reservations about the way the NAO services the Public Accounts Committee? That is the parallel.

Diana Johnson (Labour, Kingston upon Hull North)

I am interested that that has been raised as the parallel. My initial concern is that in looking at—

James Gray (Conservative, North Wiltshire)

Before we return to what we were discussing this morning, it might be helpful for the Committee to know that there will be at least one Division in the House this afternoon. If there is, I intend to suspend the Committee for 15 minutes for the first Division and a further 10 minutes if there is a subsequent Division. Therefore, if there are two votes, that will make a total of 25 minutes.

Diana Johnson (Labour, Kingston upon Hull North)

I was saved by the short adjournment, which has allowed me to have a look at the amendment that the hon. Member for New Forest East tabled. As I recall, he used the example of the National Audit Office, which provides a secretariat for the Public Accounts Committee, and suggested that a similar arrangement could be made for the secretariat of the Intelligence and Security Committee. I had a look at the National Audit Office, which is much more than just the secretariat of the Public Accounts Committee. It is a big organisation, with a 900-strong staff and a budget of £88 million in 2012. The example does not follow exactly, but I understand what the hon. Gentleman means and there is some merit in considering such a model for the support required by the ISC. It is, however, important to ask questions about its exact structure and the costs of running such an independent organisation—human resources and administration costs—from the best value angle.

The Government often talk in not the most positive terms about quangos. If this organisation were a non-departmental public body, it would effectively be a quango, and the Government want to reduce, not increase, quangos. Across Government, there is an appetite for bringing matters in-house, rather than creating new bodies. I recognise that the Government may not be sympathetic to the amendment, but I think it has some merit, although it needs more meat on the bones in relation to exactly what it would do and how much it would cost.

At the moment, the Select Committee on Defence deals with top secret matters and classified information in Parliament. As I understand it, the arrangements for the staff of that Committee are different from those for the staff of other Select Committees. There might therefore be a possible arrangement under which Parliament supported the ISC, and I want more information and evidence about how that might work. Again, we have to consider costs, and what the budget might be. As I said earlier, the parliamentary authorities have concerns about finding a 25% budget cut within this Parliament and, if the secretariat moved into Parliament, about exactly how it would work and where the money would come from, which is important. Bearing in mind what has been said about the additional responsibilities that the committee will take on, it would be helpful if the Minister set out his thinking on where that extra support and resources will come from.

Meg Hillier (Labour, Hackney South and Shoreditch)

I am a member of the Public Accounts Committee. The Public Accounts Commission recommends how much money the Treasury should give Parliament to pay for the National Audit Office. My hon. Friend or I might suggest such an arrangement to the Minister as a possible way forward. It can leave the Treasury open to certain suggestions, but it is done very well and sensitively. The hon. Member for South Norfolk (Mr Bacon) has been involved in that for many years, and it seems to work well.

Diana Johnson (Labour, Kingston upon Hull North)

I thank my hon. Friend for that sensible suggestion, which is certainly worth looking at.

Julian Lewis (Conservative, New Forest East)

Further to that intervention, I believe that the ISC envisages something very much along those lines—that the ISC would negotiate with the Government on what money and resources should be allocated to the unit. That is the way in which that would be determined.

Diana Johnson (Labour, Kingston upon Hull North)

All those suggestions are very helpful in finding a way forward and I am sure that the Minister will want to talk about what options the Government have been looking at and what their favoured proposal is. There is merit in amendment 30; it is a way forward that I think members of the Committee could support.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Several separate issues are wrapped up in this debate in relation to amendment 30. The substantive issue concerns the secretariat arrangements that would be put in place for the ISC, and, separately there is the matter of whether there should be some reference to a secretariat in the Bill.

On the latter, I would argue that, even if the wording that my hon. Friend the Member for New Forest East proposes were reflected in the Bill, that does not address the principal issues that we have been debating about the right format and form of support that the ISC should receive for its activities and members, and in delivering the reports and inquiries that are intrinsic to its activities.

It might be worth highlighting to the Committee what the Government said in their original Green Paper, which I think gives a sense of where our emphasis lay:

“The most tangible, physical demonstration of independence and a natural consequence of the ISC becoming a Committee of Parliament would be to make arrangements with the parliamentary authorities for the ISC to be accommodated in suitably secure premises on the parliamentary estate rather than on the government estate. Similarly, its staff could have the status of parliamentary staff (rather than departmental civil servants based in the Cabinet Office) and its budget funded directly from parliamentary appropriation rather than the Cabinet Office’s departmental budget”.

That gives the background and the emphasis to what we believe is the appropriate way to proceed in respect of the secretariat’s support for the ISC in its new form as a statutory Committee of Parliament. The intent behind that passage was that resourcing the ISC should be of a piece with the changes that we intended to make to its status and perceived independence from Government, and the reforms to make the ISC a statutory Committee of Parliament. It was in keeping with that that we set out in our Green Paper the proposal, on which we seek to advance discussions to finalise and formalise it.

It is right that there have been informal discussions with the ISC and the parliamentary authorities, as mentioned in the Clerk of the House’s letter to the hon. Member for Kingston upon Hull North.

My hon. Friend the Member for New Forest East has highlighted issues about the practical arrangements for security and staffing. We believe it is possible to work through those details with the parliamentary authorities.

At an earlier stage, the House service asked us to clarify whether, were it to be decided that the ISC staff would be parliamentary staff, they would be employed by and answerable solely to the relevant corporate officer: the Clerk of the Parliaments in the Lords, or the Clerk of the House of Commons, and not to the Cabinet Office or any other part of Government.

We reassured the House service, and I can provide the same reassurance to the Committee that, if we were to make this arrangement, that would be the Government’s intention. Part of the problem that my hon. Friend the Member for New Forest East has highlighted is that, if we are to ensure that the ISC has that grounding, status and sense of independence, it is somewhat incongruous for the support structure to be an arm of Government. That is well understood and recognised, and we want to address that as part of the reforms that we are advancing, hence my specific reference to what we had said, referring back to the statements in the Green Paper.

We highlighted the security concerns in the debates this morning, because the ISC has that essential role of reviewing classified documentation. Therefore, whatever the form taken by the secretariat, as the Security Minister, I clearly want to know and be satisfied that the arrangements for retaining and handling such sensitive documentation are in an environment that does not endanger the important protected-marked information that underpins virtually all the ISC’s work. That is absolutely clear, and such things of course come with a cost, but that cost will have to be borne, wherever the ISC is accommodated. Yes, I recognise that the issue will be addressed in whatever structure for the secretariat functions for the ISC that the Committee and the House agree.

My hon. Friend proposed a different model. Instead of the parliamentary authorities hosting the secretariat, bringing it more into line with other Committees of the House, should we be considering a different model that clearly recognises the inappropriateness of Government, or an arm of direct Government, being the secretariat, and should we therefore have a different mechanism? My hon. Friend suggested a non-departmental body, drawing an analogy with the National Audit Office.

Meg Hillier (Labour, Hackney South and Shoreditch)

It is easy to talk about things in theory, and we seem to be reaching some broad consensus, but there are practicalities about the career path of people doing that job. I have no idea exactly what that career path would be, but there are things to do with their pensions and rights and with whether a separate secretariat could take such pay and conditions details into account. I am sure that the Minister’s officials are looking into the matter, but I just reiterate that point.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Lady makes an important point about ensuring that the secretariat staff have that sense of assurance and of the role that they maintain. Obviously, we are seeking to transfer the responsibilities to the House, to Parliament, but it is important that part of the detailed arrangements being discussed by officials and the House authorities is recognition of those reassurances, of promotion and of a sense of certainty for staff. I genuinely take on board the point that she flagged up.

My hon. Friend the Member for New Forest East drew a parallel with the National Audit Office, which works on behalf of Parliament and the taxpayer to hold Government to account for the use of public money and to help public services to improve their performance. The ISC secretariat and the NAO both perform extremely important functions but, as highlighted by the hon. Member for Kingston upon Hull North, there is clearly a big distinction between them in scale and, in some ways, in the nature of their activities. The hon. Lady referred to the NAO having about 900 members of staff—my information suggests about 850, but it is big, we can both agree on that. Parallels can be drawn, but I am not sure that that is necessarily the right way to look at the matter, given the costs, overheads and support that an NDPB would be required to have in place, and the proportionality of that.

Our objectives are to make the staff of the ISC secretariat parliamentary staff, in keeping with our overall aim of making the ISC more parliamentary and moving it away from Government, while ensuring that it has the resources it needs to be effective in its oversight role and to keep secure the highly sensitive information it receives. We believe that we will be able to reach an arrangement that satisfactorily meets all those objectives.

I hear what my hon. Friend said about the memorandum of understanding, which is the subject of continuing discussions between the Government and the ISC. This may be an issue that can be dealt with or addressed in some way within the memorandum of understanding, but, to return to my initial point, I believe that the amendment is unnecessary. What matters is getting the details right. If we look at the ISC as constructed under the existing statute, it does not have provisions dealing with the secretariat even now; yet whatever we say about the nature of that secretariat, the ISC has that secretariat and the Government acknowledge and recognise the ISC’s need to have that support to conduct its duties.

I recognise the need to get this right. Detailed discussions are ongoing, and I want to ensure that we reach a conclusion that satisfies the House regarding the scrutiny and activities of the ISC. I want that to develop quickly, such that we can return to the House on Report and provide the clarity that the House needs. I suggest to my hon. Friend that the amendment is not required, and I hope that he will acknowledge the Government’s genuine desire to work through the arrangements with the ISC and the parliamentary authorities, so that we can deal with detailed points that will make the difference in ensuring the robustness of the ISC’s scrutiny.

Julian Lewis (Conservative, New Forest East)

My hon. Friend the Minister has made a valiant attempt to win me over and he has half succeeded, but half success is not quite adequate to deter me from testing the Committee’s opinion. It is absolutely the case that the secretariat should not remain under the Cabinet Office’s control. I do not think I am stretching the elastic too much if I say that, on at least one occasion, that caused a serious conflict of interest. I think every member of the Committee thought that that was not acceptable, even under our existing arrangements, before we become a Committee of Parliament, let alone afterwards.

The Minister made a case to show that the Government are oriented towards the parliamentary route. We are concerned about the fact that the parliamentary authorities would not be able to satisfy themselves that the staff they employ would be using the resources for good purposes, because the staff would not be able to confide in the parliamentary authorities what they were using the resources for. Sometimes, they would not even be able to tell the parliamentary authorities what they were examining or investigating.

I understand, of course, the wish to follow the model of other parliamentary Committees, but the reality is that the work that the staff secretariat does for the ISC is very different. It is much more onerous and expensive, and I think the parliamentary authorities would resist approving the required expenditure. In addition, the staff secretariat is seriously understaffed: we have eight members of staff, whereas, for example, the detainee inquiry had 14 staff, the Iraq inquiry had 20 staff and even the Committee on Standards in Public Life has 12 staff. We will need to consider and approve an increase in staff numbers for the ISC, and we feel that that will be a difficult case to make to parliamentary authorities in whom we cannot confide the nature of the work that is going to be carried out.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Although I may not have completely persuaded my hon. Friend—I think that was his opening comment—will he reflect on my point about the separation of the secretariat of the ISC and Government and the reassurance point that I alluded to in my comments? Does he accept that, in effect, legislating for a secretariat might be construed as making this body seem closer to Government than to Parliament? What might be the impact of that?

Julian Lewis (Conservative, New Forest East)

The Minister makes a good point, but the amendment is designed simply to flag up the importance of making special arrangements for this particular secretariat to a particularly specialised Committee. If the amendment is carried, and if the result of the negotiations is a decision to go down the parliamentary route rather than the separate route, on the model of the NAO at a smaller scale, that will be perfectly capable of being incorporated into the memorandum of understanding.

The amendment would probably not have been necessary if the Government had pulled their fingers out and reached an agreement earlier. The ISC has been trying for months to reach agreement on this matter. The statistics I quoted about the numbers of staff were taken from a letter from the Chairman of the ISC to the National Security Adviser, Sir Kim Darroch, written as long ago as 4 July 2012. We feel that this matter has been allowed to drift long enough and it will help to concentrate the Government’s mind if it is made clear in the Bill that the arrangements for the secretariat should be incorporated in the memorandum of understanding.

With the greatest respect to my hon. Friend the Minister, I would like to test the opinion of the Committee on the amendment.

Diana Johnson (Labour, Kingston upon Hull North)

It is important that we debate the clause, because it involves some issues that we touched on but did not fully explore during our debates on the amendments. I made it clear when we discussed the first group of amendments that the Opposition broadly support the aims of the Government in their changes to the Intelligence and Security Committee. The debate so far has been well informed and the Bill has been improved by the amendments that have been made.

As I said this morning, over the past 20 years, the demands on the security agencies have changed beyond recognition, and so has their relationship with the public. The agencies have found themselves under unprecedented public scrutiny, but they have also found themselves newly dependent on the public as they battle the emerging challenges of domestic extremism. As Baroness Manningham-Buller explained in the other place, the security services’ most vital resource is the co-operation of the public, particularly that of members of the communities in which extremist groups operate. The agencies have coped admirably with the changing demands on them: they have opened themselves up, developed new procedures and responded to emerging threats to our country. I remind this Committee of the contribution made in the other place by Lord Reid of Cardowan, who talked of the thousands of lives saved by the work of the intelligence and security services. Now, we need to create an arrangement where the governance of the agencies matches the progress that has been made over the years.

We accept that the ISC has played an important part in that reform. As we have heard, the Committee has grown in stature and gained the trust of the agencies, and we must now ensure that no changes we make during the passage of the Bill undermine that relationship. However, the Opposition believe that more could be done to increase public understanding of the ISC, because it is important not only that it does its work, but that it is seen to work effectively, so although we support the direction of the clause, we think it could go further. If reform were brought about in a different way, the ISC might be better seen and understood by the public without losing its effectiveness and the effective relationships it has with the intelligence and security agencies.

The other place considered for many hours whether the ISC should become a Select Committee—Lord Campbell-Savours in particular took a firm view. It is worth our considering what that would mean for the ISC, in the light of remarks this morning about providing some statutory protection if the ISC became a parliamentary Committee. It is important to look at Select Committee status, first, because that would increase public understanding and confidence in the ISC. The public understand what Select Committees do: they understand the concept, they know what the role is and they understand that it is a clear part of parliamentary work.

The Government wrestled in the other place with what they want the ISC to be. There was debate about making it a parliamentary Committee and some debate about Select Committee status. The powers that be have been discussing this matter for some time, but I believe that agencies, potential witnesses, Members of Parliament, the press and the public will be confused by the way in which this new hybrid type of Committee is established as a Committee of Parliament, but not a Select Committee. That uncertainty and potential confusion could lead to legal challenge, which worries me.

The second major benefit of the ISC being a Select Committee is that parliamentary privilege would clearly be bestowed on its members, staff and witnesses. We talked about parliamentary privilege this morning. In his letter, the Clerk clearly set out that parliamentary privilege is not a limited right but is an absolute right. One of the matters we discussed this morning was the importance of certainty for the ISC, so that it can be sure it has all the protections it needs when carrying out its work. If the ISC were a Select Committee, all those associated with the ISC would know where they stood and what their rights were. Although this Committee has agreed to, and we support, the establishment of the ISC as a parliamentary Committee, there are some problems.

Earlier, we saw attempts by the Government to pull out the best bits of a Select Committee’s operations to offer protection to witnesses and to give the ISC various powers and protections. Those are steps in the right direction but, as I said, some problems remain. Members of the ISC are appointed as parliamentarians—only parliamentarians can sit on that body—to a Committee named as a Committee of Parliament, but in fact they will not be acting as parliamentarians when sitting on that Committee. They do not get the privilege that being a parliamentarian usually attracts. I am also concerned about the Clerks who support the Committee and their protections, which was alluded to in our earlier discussions.

If Select Committee status were bestowed on the ISC by the House of Commons and the House of Lords, it would offer an alternative to the route we are taking now and avoid the pitfalls. Privilege would cover all the actions of ISC members while serving on the Committee and the staff serving the Committee while they were carrying out the functions of supporting the Committee members. Witnesses would be offered protection in their written and oral evidence: if unsolicited evidence was supplied to the Committee, it would be able to evaluate it before deciding whether to accept it as evidence, making it clear where protection for whistleblowers was provided while ensuring that unscrupulous evidence and leaks could be challenged. The Committee could also call witnesses, compel them to give evidence and sanction those who misled it.

I refer again to the excellent advice from Sir Robert Rogers. He said clearly that it was possible to create a Select Committee while offering the type of protections that the Government are concerned about in establishing such a body. Sir Robert makes it clear that the only way in which the ISC could assert privilege would be for it to be made a Select Committee. In doing so, he sets out clearly that protections would be available to deal with some concerns.

For example, any resolution before the House of Commons and the House of Lords to establish a Select Committee could state that membership was to be dependent on nomination by the Prime Minister, that the presumption would be for the Committee to meet in private or that the Prime Minister retained the right to redact information from any Committee report. Special Standing Orders could, therefore, be produced to form a Select Committee—it would be different from the usual ones in the House, but it would have the full range of protections, about which most people are concerned.

As we know from Sir Robert’s letter, a Select Committee cannot be created through statute; that has to be done by resolution of the House of Commons and the House of Lords, decided by all parliamentarians. If we go down the line of setting up a Select Committee, the way forward would be to reject most of clause 1 and to create it elsewhere through the procedures of the House. I want to make it clear that the Opposition do not intend to do that at this stage, but we need to make it clear that there is an alternative way of doing everything we want to do in creating an ISC that is a parliamentary Committee with all the benefits of such a Committee, but which cannot be challenged in the courts. That is our main concern.

Paul Murphy (Labour, Torfaen)

I cannot agree with my hon. Friend that the ISC should be a Select Committee, although I agree with the reasons why she would like it to be. There is a slight difference. She made a powerful case about the way in which the Committee could require rather than request information; we must remember that that information is totally different from any other information that any Select Committee of either House or both can require.

However, I fear that the journey from 1994 to where we are and where we are going will be a bit longer because we must maintain the enormous trust that has been built up over the last 20 years between the intelligence agencies and the ISC, so that there is no division between them in what can or cannot be seen. Making the Committee a parliamentary Committee is a good way of moving towards that.

There is also a practical reason. The resources demanded by the Committee would be much greater than those demanded by any other Select Committee in the House of Commons or the House of Lords. The secretariat, which we have just been discussing, would cost millions of pounds, and already does. Consider the nature of its work; its visits are private and often secret, and simply cannot be made public. I accept what my hon. Friend said—protecting members of the new ISC and its witnesses and extending Select Committee privileges to them is a huge problem.

For years, the former Member for Thurrock, Andrew MacKinlay, pursued me year in, year out. He would make the case and year in, year out it was a problem for the members of the Committee because, although we agreed with the thrust of transparency and accountability, we knew full well that the Committee’s effectiveness would be seriously curtailed and undermined if it were simply a Select Committee of both Houses. That is my worry.

My hon. Friend said she would not press the amendment to a vote, but she properly made valid points that I hope the Minister will answer. If the Committee does not have the privileges of a Select Committee, what will the general public think about it? I accept that that is the case, and I certainly could not support a vote to make it an ordinary Select Committee, but I do not think the matter will be pressed to a vote today. We are asking why the privileges and rights of Select Committees cannot be extended to members of the ISC in a special way.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Again, it is a pleasure to follow the right hon. Member for Torfaen, who sets out the historical context and background of the challenges involved in seeking to establish the ISC as a Select Committee of this House.

The hon. Lady is right in flagging up the fact that the ISC in principle could be established through relevant orders of the House. She highlighted the Standing Orders, and that the Clerk to the House has said that in principle it might be possible. However, when we take the theoretical to the reality of the Committee’s existing work and its relationships with the intelligence agencies, we see that it would be difficult to achieve that without undermining some of the ISC’s key principles and operating relationships.

It is important to underline that, at times, the ISC holds very sensitive information, and the duty is on the Government to see that there are appropriate protections to make sure that such information is safeguarded. I am sure that we will come on to other amendments in due course, about reporting and the Prime Minister’s role in seeking redactions on reports. There is very good reason, therefore, to ensure that sensitive intelligence matters are not inadvertently disclosed to those who wish to cause this country harm. We have to be cognisant of those issues when considering how we best deliver on that public confidence in the work of the agencies.

I absolutely agree with the hon. Lady’s comments that paid tribute to the agencies’ incredible work. In my role, I feel privileged to see and understand the work that so many people engage in day in, day out, to keep this country safe. It is about how we do that in a way that provides effective scrutiny and ensures that there is growing confidence in the work of the agencies, which do so much to provide the security that is an intrinsic part of what we wish to see.

Our judgment, and that of the ISC, is that a Select Committee structure would not meet those overall requirements. That decision has not been made capriciously, but after careful thought and consideration. Our judgment is that the model set out in the Bill—a statutory Committee of Parliament—is the most effective way of taking the Committee closer to Parliament, making it more of a parliamentary Committee, to deal with the safeguarding issues that we touched on in previous debates. However, the issue is also about recognising that the Committee would not automatically gain parliamentary privilege, because it is a parliamentary Committee established by statute, as we touched on earlier.

We have been careful in the drafting to ensure that we do not cut across issues of parliamentary privilege. Again, that is why we have constructed the Bill in that way and why we have not sought to say that the Committee will gain parliamentary privilege through statute, for the important reasons that we debated and were reflected in the letter from the Clerk of the House.

The changes contemplated in the clause are important. They are the key policy objective that was outlined in the Green Paper: that the ISC’s link to Parliament should be strengthened, that there should be greater confidence in the ISC’s excellent work, and through that, that there should be greater assurance and confidence in the work of our intelligence agencies. Therefore, the proposed changes to the appointment of members and the right that both Houses would have on voting for the ISC’s members, as nominated by the Prime Minister, is a significant change, as is the accountability of the ISC to Parliament itself, in terms of underlining the ISC’s separation and independence from Government. Important reforms are reflected in the clause that significantly enhance the oversight arrangements that we have in place for our intelligence agencies.

The changes are expected to make the ISC a more effective, relevant body, in a parliamentary sense, which is important, so that along with our annual debate on the ISC’s report, its work will be seen to be tied to Parliament, as part of Parliament. The reforms in the Bill and the clause seek to strengthen that oversight and governance, which is why I hope that this Committee is minded to ensure that the clause stands part of the Bill.

Schedule 1 - The Intelligence and Security Committee

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move amendment 35, in schedule 1, page 15, line 31, leave out ‘(5)’ and insert ‘(6)’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss the following:

Amendment 9, in schedule 1, page 15, line 31, leave out ‘(5)’ and insert ‘(7)’.

Government amendment 36.

Amendment 10, in schedule 1, page 16, line 3, at end insert—

‘(6) The ISC shall have a duty to consider meeting in public where it considers that to do so will not lead to the disclosure of sensitive information.

(7) The ISC shall not less than once in each calendar year hold a public meeting for which it shall determine applicable procedures.’.

Amendment 25, in schedule 1, page 16, line 3, at end insert—

‘(6) The ISC shall consider any request by a select committee of either House of Parliament to—

(a) review any particular issue related to national security; or

(b) transfer information to that select committee which it has stated it needs to carry out its functions as a select committee.

(7) The terms of any consideration under sub-paragraph (6) are to be set out in a memorandum of understanding between the ISC and the select committee in question.’.

Amendment 11, in schedule 1, page 17, line 5, leave out ‘paragraph 3(3)(a)’ and insert ‘paragraphs 2(6) and 3(3)(a)’.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We now move to schedule 1, which provides further details in respect of the arrangements for the ISC. In particular, we consider a number of amendments concerned with public hearings, the ISC’s relationship with Select Committees and the ability of the ISC to take evidence on oath.

I turn to Government amendments 35 and 36. On Report in the Lords, Lord Taylor said that one possible consequence of the “of Parliament” change is that the ISC would have the power to take evidence on oath. That raises the possibility that those who intentionally mislead the Committee while giving evidence under oath will be subject to the same sort of sanctions that might apply in similar circumstances to a witness before a Select Committee. If, on further analysis, that is not a consequence of that amendment, we would be content to look at whether there is the need for a provision in the Bill to make clear that the ISC may take evidence on oath.

Following the further analysis that Lord Taylor referred to, the Government are satisfied that a consequence of changing the status of the ISC to become a statutory Committee of Parliament, is that the ISC may, in future, take evidence on oath. The Parliamentary Witnesses Oaths Act 1871 concerning the power of Committees of the House of Commons to administer oaths—I am sure it has been bedtime reading for most members of this Committee and its Lords equivalent—taken with the Parliamentary Witnesses Act 1858 will give the ISC authority to administer oaths. Copies may be available for hon. Members who may be interested.

That important point underlines the oaths and activities of Select Committees. The 1871 Act also provides for who may administer an oath under that Act—the Speaker or a person appointed by the Speaker. It can also be done by any Standing Order or other order of the House. It is not appropriate that this provision should apply to the ISC, because the Speaker will not be privy to the overwhelming majority of the ISC’s proceedings. Owing to the nature of the matters that the ISC considers, its proceedings must generally be conducted in private.

The effect of amendment 36 is to displace that part of the 1871 Act so far as the ISC is concerned, so that an oath taken by a witness before the ISC can be administered by the Chair of the ISC or a person appointed to act in place of the Chair under paragraph 2 (3) of schedule 1.

Amendments 9, 10 and 11 would place duties on the ISC to consider meeting in public where it considers that to do so will not lead to the disclosure of sensitive information, and to hold a public meeting at least once a year. Given what we said in the preceding debate about the need for greater public confidence, I appreciate the intention behind these amendments. It is the intention of the Government and the current ISC that it should hold meetings in public, the first of which we hope will be held shortly.

However, I say to the hon. Lady that I have a number of concerns with the idea of creating duties for the ISC to consider meeting or to meet in public. As hon. Members may know, the 2007 Green Paper, “The Governance of Britain”, made a series of reform proposals aimed at bringing the ISC as far as possible in line with established Select Committees.

One of those proposals was for some hearings of the ISC to be structured to allow unclassified evidence to be heard in open session. Unfortunately, the sessions did not subsequently happen. Building on this, the Justice and Security Green Paper stated that while the ISC’s meetings would still have to take place in private as a rule, both Government and the Committee were committed to the concept of public evidence sessions when they could be held without compromising national security or the safety of individuals. We hope that the first of those sessions will happen later this year.

Baroness Smith spoke powerfully in Committee in the Lords on the issue of public hearings. We fully agree that they can be valuable. She noted that public hearings should never be automatic for the ISC, but argued that they should become more routine, to take public confidence into account. Again, we fully agree that public hearings may be a means of improving public confidence in the ISC and its work but, by the same token, if handled badly they could also damage public confidence.

In Committee in the Lords, Lord Lothian, a member of the ISC, made the valuable point that public hearings would be counter-productive in so far as public confidence in the Committee was concerned if either the majority of questions posed was met with the response, “I cannot answer that”, or if the subject matter for the hearing was anodyne and the process completely rehearsed.

The Bill does not need to include specific provision to enable public evidence sessions. The existing ISC, created by the Intelligence Services Act 1994, has—as the ISC provided for in the Bill would have—power to determine its own procedures. That is sufficient for such purposes.

As the Bill is drafted, the ISC will be able to continue to work with the Government to take forward public evidence sessions carefully and incrementally, to ensure that the balance is right and that we do not fall into either of the traps described by Lord Lothian. Both the ISC and the Government want to make public evidence sessions happen and to ensure that they play an important and real role in holding the intelligence community to account.

By contrast, the effect of amendment 10 would be that, as soon as the legislation came into force, the ISC would be compelled to consider holding each of its meetings in public, if doing so were thought not to lead to the disclosure of sensitive information.

Significant practical issues must be dealt with, however, before meetings can take place in public. Introducing public meetings for a Committee that, for the vast majority of its work, is concerned with sensitive and highly classified information, will be challenging. The work of the ISC must largely be done in private. Only a small amount of the evidence submitted, whether written or oral, is unclassified.

At the other end of the spectrum of sensitivity, however, it is also true that only a small amount of the classified evidence that the ISC hears will be “sensitive information”, as that term is defined. The issue may be a technical one to do with the drafting of the amendment, but it is important to understand the point.

The definition of “sensitive information” is in paragraph 4 of schedule 1 and, as defined, it is a relatively narrow category of some of the most sensitive information that the ISC might see. Such information is concerned with agencies’ and others’ operational methods and sources and with particular operations, including ongoing and prospective ones, and includes information provided confidentially by another country and thus subject to the so-called control principle.

Defining “sensitive information” so narrowly in the Bill is quite right, because the definition is used only to describe one of the two categories of information that the Secretary of State may withhold from the ISC following a request from the ISC using its powers under schedule 1. It would be mistaken to use “sensitive information” in that context in connection with amendment 10. The effect, because “sensitive information” is such a narrow category of information, could be to subject the ISC to the duty to consider holding a public hearing on almost every occasion.

To be clear, the ISC would be subject to that duty even if it anticipated that sitting in public would lead to the disclosure of information prejudicial to the functions of the agencies or other intelligence bodies, so long as the information in question was not caught by the narrow definition, which, frequently, it would not be.

I am sure that that was not the intent of the hon. Member for Kingston upon Hull North in tabling amendment 10, but there is a technical issue with its drafting that would cause significant problems. None the less, I respect the broader policy point that I think the hon. Lady will advance when she speaks to her amendment.

The inevitable result of amendment 10 would be that the ISC always, or almost always, had go through the process of considering whether the public should be excluded from its meetings, even though the nature of its work is such that meeting in public is seldom appropriate. If the ISC concluded almost every time it had to consider the matter that it would not sit in public, as we say it should, that would have an adverse impact on its credibility, but the practical result would be the same as the Bill as it stands will achieve, with most ISC business being conducted in private, but with occasional public hearings. Lord Butler made that point on Report in another place, when he said:

“I would counsel against passing an amendment which makes it compulsory for the Intelligence and Security Committee to have a public meeting each year. That may well be the outcome but there may be times when the work programme simply is not consistent with it.”—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1667.]

In short, either the amendment would make the ISC a much less, not more, effective oversight body if a future ISC decided to conduct most of its hearings in public; or, more likely, it would not have its intended effect of improving public confidence in the ISC.

As for the amendment’s proposed new sub-paragraph (7), the Government remain committed to, and are currently in discussions with the ISC about, making public hearings work in practice—for example, on issues such as appropriate subject matter and timing, and appropriate safeguards against unauthorised disclosure of sensitive information. If, once those issues have been worked through, the ISC sees fit to hold annual public hearings, the Government will have absolutely no objection, but our strong preference is to leave it to the ISC’s discretion to determine when and how frequently it holds such hearings, rather than to dictate the timing of public hearings through the Bill. Leaving such matters to the ISC will enable it to make the best use of its available resources.

The amendment would also make the procedures for the ISC’s annual public hearing entirely a matter for the ISC. As I have explained, at present the Government and the ISC are working together to enable public hearings, while being mindful of the risks described by Lord Lothian. We have a much better chance of realising the potential benefits of public hearings if the Government and the ISC continue to work collaboratively on that process. I hope that the hon. Lady will acknowledge the issues as I have alluded to them when she speaks to amendment 10, to which amendments 9 and 11 are consequential.

Amendment 25 deals with the relationship between the ISC and Select Committees. Under proposed new paragraph 2(6) in schedule 1, a Select Committee could ask the ISC to consider any request to

“review any particular issue related to national security”,

and it could request the ISC to

“transfer information to that select committee which it has stated it needs to carry out its functions”.

Proposed new sub-paragraph (7) states that

“The terms of any consideration…are to be set out in a memorandum of understanding between the ISC and the select committee in question.”

I can appreciate the intention behind the amendment, which is to create stronger links between the ISC and other Committees. It is certainly our intention that the new ISC should be closer to Parliament than its predecessor has been, and that it should be a strong and effective Committee whose work covers matters of public and parliamentary interest and national importance relating to the agencies. Equally, however, an important feature of the ISC is that it will operate within a framework that enables its members safely to be party to highly sensitive material and allows it to scrutinise matters that are secret and that the rest of Parliament and the public should not, for good reason, have sight of.

Although on the face of it the amendment may seem helpful, I have some concerns. At the moment, it is of course open to a Select Committee to write to the ISC and request that it review a particular matter. Nothing in the new arrangements will stop a Select Committee from doing so and I am sure that the ISC would take any such requests seriously, but I am concerned about having a formal statutory mechanism that places a duty on the ISC to consider such requests.

First, I am concerned that the ISC might be overwhelmed by requests to report on particular matters. If it acceded to all requests, its programme of work might be overwhelmed with matters that are of interest to other Committees, which would take its focus away from its core work of scrutinising the matters the ISC itself identifies as important from the detailed, sensitive evidence it receives from the agencies.

Secondly, there is the question of what the ISC would be able to say by way of response, given the highly sensitive nature of the agencies’ work. ISC members are, of course, bound by the obligations of the Official Secrets Act 1989 and they would face a further restriction on the information that they may disclose if Government amendment 47 is made—we will come to that amendment later.

Thirdly, if the ISC regularly refused to action requests from Select Committees, tension could develop between it and other Committees, which could undermine the new ISC’s perceived effectiveness and its closeness to Parliament, even if in reality the ISC simply preferred to allocate its limited resources to its own highly important scrutiny work.

On the question of Select Committees requesting information from the ISC to help them with their work, again, there will be limitations on what the ISC can provide, given that much of the material that it considers will necessarily be extremely sensitive, often classified secret or top secret strap, according to the Government system of protective markings. The ISC’s accommodation, staffing and procedures are set up to handle sensitive information; the staff of the ISC secretariat are vetted and their accommodation is secure. Other Committees are not set up to deal with such information, nor are they in a proper position to assess the damage that disclosure might cause. If the ISC refused to provide information, that, too, could lead to tensions between Committees.

The new ISC will have to consider how it works with Select Committees and Parliament more broadly, but I am concerned that the provisions suggested in the amendment could skew or disrupt the ISC’s work programme, and that its reputation could be damaged by refusals to take forward work or pass information, despite those refusals being founded on entirely sound reasons. It is essential that the ISC can direct its own work programme as far as possible and focus its efforts on issues that it, with its unique perspective, thinks are the most important.

Finally, given the unique nature of the ISC and the information it holds, it would not be appropriate to determine the terms on which the ISC would consider such requests by agreement between the ISC and the Select Committee in question without the involvement of the Government, who have the primary duty when it comes to protecting our national security. Again, I understand the intention behind the hon. Lady’s amendment, but I hope that she will take my comments on board. I conclude by commending Government amendment 35 to the Committee.

Diana Johnson (Labour, Kingston upon Hull North)

I will deal with Government amendments 35 and 36 head on. Earlier in the debate, the Committee agreed to give witnesses certain protections, although a number of Committee members voiced concern about the extent of that protection. If we are to award that sort of privilege and protection to witnesses, it is sensible to place obligations on them as well. The last thing we want is evidence to be given in bad faith or with the deliberate intention of misleading the Committee. As evidence presented to the Committee cannot be used in court proceedings, it is essential that we give other sources of redress to ensure the validity of the evidence.

As I said during debate on clause 1, the Opposition in the other place argued for the ISC being a Select Committee, which would have given an established model for protecting witnesses where appropriate and imposing sanctions on witnesses who mislead the Committee. The Government have not adopted the measure of setting up a Select Committee, but are now trying to introduce some elements of Select Committee procedures.

Due to the need to introduce a special provision in the amendment allowing oaths to be taken by this Committee of Parliament, will the Government treat the evidence given by witnesses as evidence given to Parliament? If the witness misleads a Select Committee, it is up to Parliament to impose sanctions. In this case, where there is a Committee of Parliament, not a Select Committee, who will impose the sanction? Where will it start from, and who will take it forward? Would misleading the Committee of Parliament be a criminal offence? Would the police and the CPS need to be informed to take action? Does the power extend to enabling the new parliamentary Committee to compel a witness to give evidence? Is that what the amendment could do?

I seek clarity from the Minister. At the moment, the Prime Minister would have to consent before someone is called before the ISC, but can he veto an individual’s appearance? Do the individual agencies also have a veto? Can an individual refuse to appear before the ISC even if the Prime Minister and the agency have consented? If an individual acting in a personal capacity, potentially as a whistleblower, attempts to present information to the Committee, could the Prime Minister prevent that individual from appearing at the Committee and the Committee taking the evidence?

Amendment 10 does two things: as the Minister set out, it would oblige the Committee to hold an annual public hearing and to consider whether it could hold public sessions while investigating a matter. I noted what the Minister said about the Committee already looking to hold its first public hearing, and I know from the comments of the right hon. and learned Member for Kensington (Sir Malcolm Rifkind) that he is keen for this to happen. That is welcome, but we think that public hearings should become part of the ISC’s formal structure, which is why we would like a requirement in the Bill for such hearings to be held at least once a year.

The ISC oversees secretive institutions, but it is itself largely a secretive institution. At the moment, the public have two ways of engaging with the ISC’s work: through its excellent reports, including its annual reports, and through the annual debate in Parliament on the Committee’s report. The Opposition believe that making the ISC and its role more widely known and understood would be greatly aided by annual public hearings of the Committee.

The ISC’s annual report was published in July 2012 and the Government’s response followed some months later, but we have not yet had the parliamentary debate in the House of Commons. I understand that a debate took place in the House of Lords a few days ago, but we in the Commons are still waiting. I raise that because there are often delays in matters being taken forward, and we think that to stop annual public hearings being delayed, it is important to set out clearly in the Bill that at least one public hearing is expected every year. Putting that requirement in statute would give it additional force.

Recent appearances in Parliament by high-profile witnesses such as Rupert Murdoch, Hugh Grant and Russell Brand have attracted a lot of public attention. It is unlikely that the ISC would ever have such celebrity witnesses, but a public hearing would help the ISC to raise its public profile and people to understand more about what the Committee does and its role within Parliament.

On the duty to consider other public sessions, the requirement is only “to consider” whether it would be appropriate to hold public sessions during the Committee’s inquiries. The Opposition do not expect that consideration to take long. In the majority of cases, as the Minister said, it would be manifestly impractical to hold public hearings, and in such cases and whenever public hearings would compromise national security, we would expect the Committee to remain private. I should emphasise that amendment 10 does not go as far as the one proposed by the noble Baroness Hamwee in the other place, which would have introduced a presumption in favour of public sittings. This is only about consideration of the question.

I noted what the Minister said about the drafting of the amendment and the reference to sensitive information, and I take his comments on board. The Opposition were keen to table the amendment because of two examples of when it might have been appropriate for the ISC to hold a public meeting, or at least to consider holding a public meeting. The first relates to the unfortunate death of Gareth Williams, about which the coroner’s report made some strong comments and recommendations. As I am sure the Committee will recall, Mr Williams was an employee of GCHQ, working on secondment at the Secret Intelligence Service. Members may also know that, in her report, the coroner, Dr Fiona Wilcox, was very critical of Mr Williams’s employers. In particular, she singled out problems of co-operation between them and the Metropolitan police and the general pastoral care provided by GCHQ and SIS to Mr Williams.

The pastoral care given to employees should or could have been debated in a public hearing of the Committee. Obviously, Mr Williams was in a top secret job employed to do work of a secretive nature, but he was employed by the state and most people would be concerned if they felt that the employer—the state—was not taking the care it should in looking after very important members of staff. The ISC might want to look at the support given to staff.

Recruitment is the second area that could be open to a wider audience. As I have said, the security agencies are facing completely new challenges, and they have adapted accordingly. They have had to reform their recruitment policies and ensure that they recruit more widely, from communities from which they perhaps did not recruit in the past. The new challenges have fuelled a need to recruit more women and ethnic minority people into the services. Security agencies are not the only Government bodies seeking to improve diversity; I am also thinking of police forces, which are obviously trying to do the same thing. We could all benefit from hearing at least some of the agencies’ experience of broadening recruitment. Public hearings on those two areas could be useful to share the experience of the security and intelligence services.

Amendment 25 is about referrals from Select Committees. I do not want the amendment to disrupt or distract the ISC in any way from its work programme, but given that it is to become a Committee of Parliament, we must look at the relationship it will have with Select Committees and other parliamentary Committees. Several Committees, in particular the Select Committees on Home Affairs, Foreign Affairs and Defence, already find that some of their inquiries cover operations that relate to the security agencies or come across matters that should be investigated, but they are not in a position to deal with the sensitive information that might flow from such an investigation.

As it is not possible to afford the other Committees the protections that the ICS in particular will have in order to access highly sensitive and confidential information, it seems sensible to set out that there is a relationship between Select Committees and the new ISC, and what they will do together. It is currently standard practice for Select Committees to receive requests from one another. The Joint Committee on Human Rights, in particular, receives many requests asking it to use its specialist knowledge to investigate particular areas of human rights. It could be the same for the ISC.

The need to have such a relationship was debated in the other place, as the Minister mentioned. The Government’s response then was not their strongest. He referred to it when he said that the reason for rejecting giving the ISC a role in relation to referrals from other Committees was that it would be overwhelmed. That misunderstands the amendment and how the power would work. The amendment would not place an obligation on the ISC to take up every request that was made to investigate and then report back to the Select Committee making the referral. That information would be passed to the Committee, which can decide whether it should deal with it.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I have listened carefully to the hon. Lady, but I think that she will also acknowledge that, in my comments on the amendment and others, I have sought to highlight the closer relationship between the statutory Committee of Parliament, the ISC and other parliamentary Committees. Does she accept that it would seem odd effectively to have a legal statute to regulate the arrangements of the ISC and other Committees of the House, when those other Committees can find suitable arrangements to regulate these very issues?

Diana Johnson (Labour, Kingston upon Hull North)

The Minister makes an important point. The problem is that that Committee is unlike any other Committee of Parliament. It is not a Select Committee and it is being set up with special statutory responsibilities and powers and privileges. I am concerned that, unless expectation about how that parliamentary Committee will relate to established Committees is clearly laid out at the beginning, we might find ourselves in a bit of a mess. This is an opportunity to be clear that there is a right for other Select Committees to refer appropriate matters to the ISC.

The ISC will retain control over the issues that it investigates. The Minister raised concerns about that. Indeed, the work that it undertakes will still be governed by the memorandum of understanding, which I am sure we will talk about later. In terms of providing the opportunity for Select Committees to refer to the ISC, the amendment might help with the bedding in of this new Committee of Parliament.

Julian Lewis (Conservative, New Forest East)

I shall abbreviate the remarks that the ISC wish to lay before the Committee, because many of them have been covered fully by the Minister.

On administering oaths, we understand that other provisions in the Bill might mean that it would have been unclear whether the new ISC would have such an ability. The amendment provides the necessary clarification and we are happy to support it.

We are reluctant to go down the route of having to hold a public hearing every calendar year. Mention has already been made of the pertinent remarks of ISC member Lord Lothian about the pitfalls of holding public hearings with the heads of the agencies. That is the plan, as Committee members know. The idea has to be road tested. We do not know whether this will provide enthralling television or whether it will be worse than watching paint dry. On the one hand, we do not want questions to be asked that cannot be answered on camera. On the other hand, we do not want to avoid that risk by having something that has clearly been scripted in advance and lacks spontaneity.

We have a warm, close relationship with our counterparts in the United States, so I shall be careful what I say about the reaction of members of our Committee to seeing extracts from the televised hearings that they hold. I shall say that we were not entirely riveted by the proceedings. Unless we can do a bit better ourselves, we are not sure how much value there would be in them, but we are determined to try.

Meg Hillier (Labour, Hackney South and Shoreditch)

I am delighted that the Committee is determined to try. We should be careful about just accepting that it can never be in public. The Public Accounts Committee recently considered issues to do with Sellafield. We had a private briefing beforehand in which we agreed broad parameters, but it did not stop us doing good investigation in public on a sensitive security issue. There is precedent in this place for that. I am sure that the hon. Gentleman will take that into account and, perhaps, answer that point.

Julian Lewis (Conservative, New Forest East)

I hope that I am not giving the impression that we are in a negative frame of mind when it come to this adventure. All I am saying is that it is uncharted territory and it will need to be tested. We hope that it will work and that it will provide sufficient interest for people to feel that they have not wasted their time, and that they will not feel that their expectations have been unduly raised, only to be dashed by the limitations on what the heads of the agencies feel able to divulge in response to the questioning. There is obviously the danger that people watching such a programme will say, “Why didn’t they ask this?” or “Why didn’t they ask that?” and we will not be able to ask some of the most interesting questions because the answers would create public awareness of the sort of secret material that, by definition, should not be shared with the public because it would put the operations and the personnel of the intelligence and security agencies at risk.

We will give it our best attempt, and we hope that it works well. If it does, we will not need it to be in the Bill to encourage us to do it again because we will be absolutely delighted to do so. If, however, it turns out that it is generally felt not to have added much to public education about the work of the agencies, there might, by common consent, be a view that we would not want to prescribe it on a given time scale but only as and when events suggested that one might get a more interesting response for future public hearings. We do not feel that it is necessary to restrict the Committee by telling it when and how often it must hold such public hearings.

When it to comes to issues such as the Gareth Williams tragedy, or even less contentious ones such as recruitment, the problem is that when we hold hearings—the heads of the agencies come before us at least once a year—we ask questions about a whole range of topics. Some of the topics will be much less sensitive than others, but we do not have separate hearings on uncontentious matters. Therefore, going down the route that the hon. Member for Kingston upon Hull North suggests, of having to consider each time, “For a topic of this sort could we perhaps have a hearing of that sort?” would inevitably mean that whereas we would have had one hearing in the past covering a whole range of issues and moving rapidly from topic to topic, we would either have to consider going into closed session and coming out of closed session into open session, or having separate open and closed sessions. The hon. Lady can see that there might be practical difficulties with that.

That is where the annual report comes into play, because what we can do, and what we genuinely do do, is put everything we can—secret and less sensitive—into the original report that we prepare for the Prime Minister, and then everything that it is possible to leave in the report is left there and we have the debate. That is the more flexible vehicle. The report can be redacted, but everything that possibly could have been released will be there, and the debate will serve the purpose of enabling exploration of the topics on the Floor of the House.

I assure the hon. Lady that there is nothing sinister in the delay in holding the debate on the most recent report. There are issues to do with the allocation of parliamentary time. Before the Backbench Business Committee—an excellent body—came into being, it was easy enough because a day was set aside every year. There are issues at the moment that are still to be resolved, regarding whether we have to ask the Backbench Business Committee for time or whether, as we would prefer, the Leader of the House ought to be required to make time available. Those questions might have some bearing on the slight delay to which the hon. Lady referred.

Finally, on relations with other Committees, it is certainly the case that we will take up suggestions made to us of things that are of interest. The problem will be, of course, that we cannot necessarily say, “Okay, hand us your suggestion. We will investigate it and get back to you with the results.” People can feed suggestions in, but cannot necessarily expect an answer, because if by definition they go into territory where people who are not members of the ISC cannot stray, it will be a somewhat one-way transfer of information. Once again, however, I am sure that they will always find that the ISC is in listening mode; it is just that it does not have to be required formally to undertake considerations. We are always willing to consider things, because we are always on the look-out for things that are worth investigating.

The Committee does not support the suggestions made in amendments 10 and 25. However, we fully appreciate the good will behind them, and that they are clearly intended to try to make the workings of the ISC more accessible to the public and more clearly identifiable with the parliamentary process. We applaud the spirit, even if on this occasion we cannot support the actual methods recommended.

Ian Paisley Jnr (DUP, North Antrim)

My remarks are specifically about amendment 10 and the comments just made by the hon. Member for New Forest East. On balance, I am opposed to amendment 10. That comes of a rough experience, which I would like to explain.

Under the policing settlement and the justice settlement put in place in Northern Ireland, we created the Northern Ireland Policing Board. It is more powerful than a police authority, and was a unique experiment, which was designed to bring about public confidence in the unique arrangements that were created. The whole thrust of that was transparency, and to enforce public hearings on important matters. We were therefore forced for the seven years during which I sat on it to meet in public every month. Unfortunately, those meetings became farcical, largely because they were forced to take place in public.

The public meetings became anodyne. The responses from the Chief Constable, from the head of what was the special branch and is now the criminal branch, became anodyne and rehearsed. The meetings largely died, even though they continue to this day. Public attendance became sporadic, and we ended up speaking to Timothy Wood and Tom Timber because no one turned up to take the seats in the public gallery. I think that was largely down to the fact that, because of the sensitive nature of the material, it could not be handled properly or respectfully in a public atmosphere. Indeed, the private pre-board meetings became the real board meetings and the mainstay of that activity. Attention subsequently moved away from that committee or from that board, and onto the Northern Ireland Assembly’s Committee for Justice. We want to avoid such an outcome.

The ISC will have a very special and significant role. I know that having meetings in public is not meant to be for the sake of it, and that is not in any way what the amendment says, but from my own experience, it simply did not work. The matters which the ISC will tackle are far more important than issues just to do with regular policing activity and holding policing to account.

Let us consider the practical arrangements that we had to make. We had to advertise a public meeting every month, and we had to wait to see who was going to turn up. We then had to create an expectation that there was going to be this thing called “transparency” and this thing called “openness”, but we were dealing with issues that frankly we could not be totally transparent or open about because of the nature of policing in Northern Ireland, the nature of handling agents and all the things that affect policing.

We should learn that lesson. The hon. Member for New Forest East mentioned road testing, but there has been some road testing. We should look at that experience and perhaps understand that creating the transparency that we all desire is not always possible, especially given the issues the ISC will be dealing with. I would say it is probably impossible to have the sort of transparency that we want. To avoid having to turn people down or inflating their expectations of what a transparent meeting would involve, I am unfortunately unable to support amendment 10.

Paul Murphy (Labour, Torfaen)

It is very good to follow the hon. Member for North Antrim. We have been at meetings together for the past 16 years, or more. He makes a valid point about how difficult issues affecting security in Northern Ireland can be dealt with more effectively in private.

However, there is no question but that there is a problem. For example, the Committee decided to look into the London terrorist attacks in July 2005. That was, quite rightly, a hugely emotional issue. The problem was whether the public believed that the Committee was doing its job properly in cross-examining the people involved—in this case, the intelligence agencies and their heads. Of course, you can never tell. You can only say that, yes, we dealt with this in a robust, thorough, hard-hitting way, but because those things are not on television and are not public, no one can ever know that. So it was, and is, a problem. I am in favour of having some public meetings of the ISC, but that will not be as easy as people make out because of the nature of the information and the people dealt with.

Before the ISC was formed, no one knew who the heads of the agencies were—not even their names, yet alone anything else—but now, of course, they are almost public figures; they appear in public, we know their names, they make statements, they give lectures and they talk about the issues that affect the national security of our country. In those circumstances, it could be useful to have a meeting of the ISC in public to discuss the national security issues that affect our land.

My hon. Friend the Member for Kingston upon Hull North referred to the awful, tragic death of Gareth Williams from Anglesey and also to recruitment. They have been in the public domain. We can go on to the agencies’ websites to find out how to become a member of the intelligence agencies—it is a world away from the tap on the shoulder at a cocktail party at Oxford or Cambridge and being asked, “Do you want to join MI5 or MI6?”

The applicants need significant technical qualifications, which is very different from how it used to be, but the recruitment process is good, with thousands of people applying to become members of the intelligence agencies. It strikes me that those sorts of matters could be discussed publicly without endangering national security, but it is not easy.

The Minister rightly made the point that meetings could end up being daft and farcical: they could be so choreographed and the questions asked so anodyne that the meeting would be meaningless—not that all Select Committees are riveting, of course; very often they are not, and it need not be the case. However, as in Australia and the United States, where the heads of the agencies appear in public to discuss matters of national security with their committees, it is worth a try. That could also deal with the accountability and transparency that we talked about, but that is another matter.

I have some sympathy with the hon. Member for New Forest East with regard to annual meetings, but I think that there should be something in the Bill that says that these things should be tried. It may be, for example, that within the lifetime of a Parliament, so many meetings could be held, or that the Bill could state, “may hold”. However, the fact that there is no real reference to the importance of public hearings is an omission. It may be that annual meetings are not the answer because of the work load, and we do not want them interfere with, “Events, dear boy, events”, which the Committee has to consider almost every year; it is not just the annual report that it deals with, but issues such as rendition, Guantanamo Bay, the London terrorist attacks of July 2005 and so on. However, it is worth a try.

On the Select Committees, I do not think that there has ever been a case where the ISC has refused to consider a request from a Select Committee to deal with something. I am not sure whether there is a need to put that in the Bill, but it is a good point: there will be times when Select Committees—presumably those on Defence, Home Affairs, Foreign Affairs, Energy as well as others—cannot delve into certain issues because they are the preserve of the intelligence agencies, but are pertinent and central to the inquiry that they are undertaking. On those occasions, a specified request to the ISC to look at something should be considered. It may not provide an answer, but the request will be considered and it could be that the Prime Minister or relevant Secretary of State is cross-examined by the ISC on that issue. Because of the secret nature of it, it might not happen—but it might happen. The point is that there should be the possibility of an inquiry being held partly in private and partly in public. That applies to the ISC as well as to the other Select Committees and I see no problem with that. Generally speaking, Select Committees tend not to like each other, so it is probably better that we look at this.

The other issue is the information that the amendment asks for the Select Committees to receive from the ISC. That is a bit trickier because of the nature of the information, but I understand the reasoning; it is another way of ensuring that the ISC becomes a different sort of parliamentary Committee. There is nothing wrong with that. I hope that the Minister will respond to the points made in this short debate.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have had a good debate on the amendments, and it has been an important part of the scrutiny, looking at the legal issues and also some of the practical challenges around holding public meetings. Real concerns attach to that to ensure that we have meetings that are meaningful and add to the public’s perception of the scrutiny that is applied by the ISC and does not risk harming that.

It was interesting to hear from the hon. Member for North Antrim about some of the challenges of ensuring that the public found public meetings relevant and that the information that was disclosed added to a sense of confidence in the overall scrutiny process. This is why it would be wrong to put a specific obligation in the Bill. However, we believe that we should seek to facilitate public hearings. As I indicated in my opening comments, we hope that the first of those will take place later this year.

The Bill allows that to happen, and it is appropriate to consider the experience of the first of those meetings, recognising the sensitivities and challenges there will be in ensuring that meetings do not stray into classified or sensitive material. We have seen other countries facilitating more open meetings around these challenging areas. It is right that the Government should work with the ISC to facilitate that, because I want to achieve greater trust and confidence in the work of the agencies. That could be enhanced by public hearings, but it is a question of ensuring that they are structured in a way that has that end result, rather than saying in a formulaic sense, “We will have x number of meetings or a meeting at a particular time and with a particular pattern”. Rather, we need to examine the ways in which we can get this to work and then see how it develops and evolves. It is important that we proceed with public hearings through the working processes that the Government are establishing with the ISC.

There are ways in which relations between the ISC and other Select Committees can be addressed. It was instructive to hear about the requests that have already been made. The challenge is what the ISC could give back, given that so much of its work covers sensitive material. I noted that the hon. Lady, in seeking to advance her amendment, still did not quite deal with what the Select Committee could get back or what information it could request of the ISC, given the nature of the materials that are likely to be involved.

Paul Murphy (Labour, Torfaen)

There are examples of where the Chair of the ISC or the Chair of a departmental Select Committee—the Home Office, for example—could have a private meeting with the head of one of the agencies and come back to the Select Committee and say, “I have talked about this, I can’t give you details, but we have dealt with this particular issue in such a way”. That could be one way around it.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The right hon. Gentleman makes that point very effectively. It is very difficult to get that to fit within the structure of legislation and a specific memorandum of understanding because it is likely to change in each case. The circumstances of a particular issue, perhaps given the sensitivity of the information involved, might take something on one course rather than another.

It is right that the relationships are strengthened between the ISC and individual Select Committees, but it is hard for us to be prescriptive or think we can deal with this in a written memorandum of understanding. It may be that that evolves over time, but I would prefer an evolving picture, rather than mandating in legislation now that that is how it should take place.

I want to return quickly to the hon. Lady’s questions about the impact of the oaths issue. We do not believe that any breach would be in contempt of Parliament, but it could constitute an offence of perjury under the Perjury Act 1911 and therefore be enforced through the police and the criminal justice system. Although individuals could not be compelled to give evidence, I point the hon. Lady to the information provisions, to which we will come, regarding the information that the ISC can require of the agencies and the information that is provided through that route. That happens now and evidence is already given. We will no doubt also come to the Osmotherly rules and their application to the ISC.

Diana Johnson (Labour, Kingston upon Hull North)

I am grateful to the Minister for answering some of my questions about the oath, but can the Prime Minister stop the ISC taking evidence from a whistleblower? That was another of my questions.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Obviously, the power of compulsion to give evidence has been granted, and I think that I have dealt with that. We will come, possibly in the next group of amendments, to the issue of information being volunteered. I am sure that the ISC has experience of information being provided to it through sources other than a formal request being made by the Committee to agencies for specific information. It is obviously open to the Committee to deal internally with from where and whom it takes evidence, but I will examine the hon. Lady’s point about whistleblowers and write to her to try to provide greater clarity.

With those comments, I hope that hon. Members will support the amendments in my name.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move amendment 37, in schedule 1, page 16, line 5, at beginning insert—

‘(A1) This paragraph applies to information requested by the ISC in the exercise of its functions that—

(a) does not relate to any particular operational matter, or

(b) relates to a particular operational matter that the ISC is considering under section 2(3)(a) or (b).’

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss the following:

Government amendments 38 to 40 and 32.

Amendment (a) to amendment 32, leave out ‘voluntarily’ in sub-paragraph (c).

Amendment 23, in clause 2, page 2, line 19, at end insert—

‘(3A) The ISC may, notwithstanding subsection (3), consider any particular operational matter if the relevant Minister of the Crown agrees to the consideration of the matter.’.

Government amendment 33.

James Brokenshire (Conservative, Old Bexley and Sidcup)

This group of amendments concerns the ISC’s ability to oversee operational matters. The Bill extends the ISC’s statutory remit and makes clear its ability to oversee the operational work of the security and intelligence agencies and of other parts of the Government intelligence machinery. With that formalisation of its role and oversight of operational matters, we expect the new ISC to provide such oversight on a more regular basis, which is a crucial part of the Bill’s aim of strengthening oversight.

The Bill’s provisions allow the ISC to consider any particular operational matter, but only so far as the ISC and the Prime Minister are satisfied that the matter is not part of any ongoing intelligence or security operation and is of significant national interest. The ISC’s oversight in that area must be retrospective so as not to cut across the role of Ministers and should not involve, for example, prior knowledge or approval of agency activity. The ISC’s consideration of an operational matter must also be consistent with any principles set out in or other provision made by a memorandum of understanding.

The ISC is, of course, not the only body to oversee the operational activity of the agencies. The Prime Minister has overall responsibility within Government for intelligence and security matters and for the agencies. Day-to-day ministerial responsibility for the Security Service lies with the Home Secretary, while the Foreign Secretary has such responsibility for the secret intelligence service and GCHQ. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service, and the Foreign Secretary has the same accountability for the secret intelligence service and GCHQ. The intelligence services commissioner provides oversight of the use of a number of key investigatory techniques employed by the agencies and by members of Her Majesty’s forces and Ministry of Defence personnel outside of Northern Ireland. The interception of communications commissioner’s central function is to keep under review the issue of warrants for the interception of communications. The Investigatory Powers Tribunal and the independent reviewer of terrorism legislation also have their own distinct roles.

During the Bill’s passage through another place, Lord Butler of Brockwell, representing the Intelligence and Security Committee, said that while the Committee was largely content with how the Bill dealt with the ISC’s oversight of operational matters, he wanted the Government to address two concerns. First, there may be exceptional circumstances in which it might suit the Government to have the ISC oversee an operational matter that falls outside the criteria for operational oversight specified in the Bill. That is to say, it was Lord Butler’s view that the Government might, on a rare occasion, want the ISC to consider an operational matter that was part of an ongoing intelligence or security operation or that was not of significant national interest. The ISC is concerned that the Bill does not allow for such circumstances.

The second ISC concern was as to whether the requirement that both the ISC and the Prime Minister should be satisfied that the criteria for oversight of operational matters have been met might slow down the provision of information to the ISC on routine operational matters. Put another way, the ISC’s concern is that the Bill should not put it in a less advantageous position with regard to oversight of operational matters than it is in currently. The Government’s intention is certainly not for the Bill to have such an effect. The Government amendments in the group we are discussing will address both of the ISC’s concerns.

To summarise, our amendments will result in three sets of circumstances in which the ISC may consider particular operational matters. The first set is where the original clause 2(3) criteria are met; the second set is the exceptional case, to meet the ISC’s first concern, in which the Government request the ISC to consider a matter, notwithstanding that the original clause 2(3) criteria are not met; and the third set of circumstances is where the ISC’s consideration of a matter is limited to considering information provided to the ISC voluntarily by the agencies or another Government Department which, in essence, is the ISC’s second concern. Those three cases are dealt with in clause 2(3), respectively in proposed new paragraphs (a), (b) and (c).

The requirement that both the ISC and the Prime Minister should be satisfied that the consideration of a particular operational matter is consistent with the memorandum of understanding is moved to proposed new subsection (3A) in clause 2. That provision, however, applies only to clause 2(3)(a), the original criteria, and to clause 2(3)(b), the request from Government cases. There will therefore no longer be a prime ministerial lock on voluntarily sharing with the ISC information about particular operational matters.

Similarly, the ISC’s powers to require the agencies or other Government Departments to provide it with information, under paragraph 3 of schedule 1, will be available for clause 2(3)(a), the original criteria, and clause 2(3)(b), the request from Government cases, but not—an important distinction to draw—for clause 2(3)(c) cases, which is the consideration of information that has been volunteered to the ISC. That is the effect of amendment 37 and consequential amendments 38 to 40.

To provide some further background, Lord Butler said that

“the ISC has no aspiration to consider an ongoing operation, unless the Government ask it to. We normally look at operations retrospectively, but there are circumstances in which it suits the Government to ask the ISC to look at an ongoing operation”.—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1695.]

Lord Wallace, in response, noted that he was “sympathetic” towards the intention behind the amendment,

“which is to introduce a degree of flexibility that might prove useful in the future…It is just a question of how we can get that right without opening up to some unintended consequences.”—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1700.]

We have now given the matter further consideration, and I am pleased to be tabling an amendment that we believe will give the ISC the flexibility that it seeks. As I have said, amendment 32 introduces two new sets of circumstances in which the ISC may consider an operational matter. It would allow the ISC to consider a matter that does not meet the criteria in clause 2(3)(a) if the Prime Minister has asked it to do so. That aspect of amendment 32 introduces flexibility into the Bill. During the debates in another place, Lord Wallace said

“It is difficult to see the circumstances in which the provisions of that amendment would need to be used”.—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1700.]

It is our view that the provision will be required only in exceptional circumstances, but we are content that it is prudent to include the flexibility to deal with circumstances that may not be foreseeable at present. Other hon. Members have tabled amendments in this group, and I will reply to them when they have spoken to their amendments.

Diana Johnson (Labour, Kingston upon Hull North)

For the moment, I should like to concentrate on amendment 32, which appears to address the significant drafting error that was highlighted by Lord Butler and Lord Lothian in the other place. I am sure that the Committee, and particularly the Minister, pay tribute to those noble Lords and pass on their appreciation to them for identifying the problem.

As I understand it, as the Bill was originally drafted, the ISC would have been able to commence an investigation and receive information only after three steps had been taken. First, the operation would need to have been concluded; secondly, the ISC would have to consider that the issue was of significant national interest; and, thirdly, the Prime Minister would have to agree that it was of national interest and that an investigation should go ahead. Only then would the ISC commence an investigation.

That process was described as overly bureaucratic, and I have seen comments to the effect that it could only have been devised by some very clever civil servant. In the other place, Lord Butler described it as

“not only bureaucratically very intensive but a step backwards from what happens now. What happens now is that when an operation involving important matters is over, the intelligence agencies, of their own accord, report on it to the ISC, which looks into it and discusses it with them…I cannot believe that it is the intention in such cases, which have been routinely going on, that the Bill should require the Prime Minister to be consulted whenever the agencies wish to report such matters to the committee.”—[Official Report, House of Lords, 9 July 2012; Vol. 738, c. 1006.]

Lord Lothian also pointed out that because the process required the Prime Minister’s consent at every point, it was not only bureaucratic but likely to suffer from major delays because of the number of other issues that the Prime Minister has to deal with.

Amendment 32 appears to be an improvement on the original position. As I understand it, subject to the memorandum of understanding, which we will discuss later, the ISC can investigate a matter that is of significant national security interest and that does not relate to an ongoing security matter either if the Prime Minister has asked it to investigate or if the security agencies give up the information voluntarily. Will the Minister clarify exactly how the amendment will work? Does it mean that for an investigation to commence, condition (a) and either condition (b) or (c) must be satisfied, or does it mean that (a), (b) or (c) must be satisfied?

The amendment is a slight improvement on the original drafting of the Bill, but there are still two problems: first, the new system is still more bureaucratic than the present one, and, secondly, it demands the Prime Minister’s involvement. That runs counter to the Government’s stated aim of giving the ISC more independence, and it makes the system liable to delay. The Opposition support the amendment tabled by the hon. Member for New Forest East, the effect of which would be to allow the ISC to request information from the security agencies as well as them providing it unheralded. I understand that that is how the system works at present, and I want to return to the comments of the noble Lord Butler in the other place. Of the current system, he said:

“The committee has had access to that sort of material for a number of years. In some cases the agencies volunteer it and in other cases the ISC asks to see it.”—[Official Report, House of Lords, 9 July 2012; Vol. 738, c. GC1006.]

That should be the least that an effective Committee should be faced with when it takes on its new status.

Amendment 23, which is in my name, would introduce a limited power of review of ongoing matters. I accept that it has long been the role of the ISC to provide a retrospective review of investigations, and the Opposition do not think that that should change. None the less, the Opposition understand that the ISC itself is also keen to remain a respected body. That notwithstanding, the two members of the ISC who sit in the other place, tabled the exact same amendment in their deliberations. The Opposition share their reasoning and feel that it is important to allow this opportunity in the Bill. It was said that that would give some flexibility. There is no difference in the ISC’s view and the Government’s view that the ISC’s purview should normally be retrospective. However, if it suited the Government that the Committee should look at ongoing security operations, that would be at the discretion of the Government. Clearly, it would be unfortunate if the Bill ruled that out.

There is also a danger that if the ISC can never oversee an ongoing investigation, it will only be able to investigate an incident so long into the future that the matter could then be irrelevant. Such a fear was expanded on by my noble friend and former ISC member, Lord Campbell-Savours. He said:

“Under the proposals in this clause, it is possible to block much operational material being brought before the Committee. As I read it, the agencies need only declare that a matter is, ‘part of any ongoing intelligence or security operation’, and they can block it and deny access to the committee. What is the danger in that? It could close the door on a large volume of information.”

I want to use the example of operations in Iraq.

“Because of the merging of operations, one could simply group an operation, which the committee might regard as one that it should be considering, with other operations in Iraq but merge them under a single operation heading and, by taking that action, avoid bringing information about those operations before the committee.”—[Official Report, House of Lords, 9 July 2012; Vol. 738, c. GC1006.]

Of course there needs to be balance, and the Opposition are not suggesting that it should be normal for the ISC to be involved or even knowledgeable about ongoing matters. In the other place, the noble Lord Henley suggested that such an amendment might lead to the ISC being given prior knowledge or approval of agency activity. No one is suggesting that, and I cannot see, having read the comments in the other place, how the noble Lord Henley thought that that was a possible consequence based on either the text of the amendment or the comments of its proposers. Indeed, the Opposition accept the many dangers that would arise in such a situation, including the problems that the American oversight committees—

James Gray (Conservative, North Wiltshire)

Order. I suspend the Committee until 4.18 if there is one Division or until 4.28 if there are two.

James Gray (Conservative, North Wiltshire)

We are dealing with Government amendment 37 to schedule 1.

Diana Johnson (Labour, Kingston upon Hull North)

I was speaking to amendment 23 and concluding my remarks when the Division bell went. The amendment is about oversight of ongoing operations and allowing flexibility where it is appropriate. The Opposition accepts that many dangers would arise in such a situation, including the problems that the American oversight committees have and the demands that they often make for constant investigation of ongoing or immediate operations, which has undoubtedly hampered operations there.

Lord Henley suggested in the other place that such oversight was not needed, because it was already provided by a variety of Ministers. I am not sure that I followed his logic, however, because that would mean that there would be no need for the ISC at any point or, indeed, any need for Parliament. The Opposition feel that it would be a sensible extension of the Bill’s powers to confer limited oversight of ongoing matters on the ISC, but only where the Prime Minister agrees—it is very limited.

I want to take the Minister back to his opening remarks. Changes are set out in Government amendments 38 to 40. Will the Minister explain again the practical effects of those amendments, because I am not sure I followed what he said? Will the Minister stress the importance of amendment 37, so that the Committee is clear about what it does?

Julian Lewis (Conservative, New Forest East)

I might be able to assist the hon. Member for Kingston upon Hull North with her question about the significance of paragraphs (a), (b) and (c) in amendment 32. When I saw the amendment originally, I thought the word “or” should be inserted at the end of line 4, which would make it clear that the ISC would normally be investigating only retrospective matters under paragraph (a). However, under paragraph (b), as an alternative, if the Prime Minister asked the ISC to investigate a matter that was more current, it could do so, and then “or” again, under paragraph (c), if the security and intelligence services were to offer certain current information to the Committee, it could look into those matters. As I understand it, the difference between the provisions of paragraphs (a), (b) and (c) is that whereas under the new regime, in relation to paragraphs (a) and (b), the Committee will be able to require answers to their questions, under paragraph (c)—as we would expect, given that such matters are only being offered to the Committee for consideration—the existing situation would apply, where we would be able to request information but not require it. That is probably why the Government wish to flag up the word “voluntarily” in paragraph (c).

The reason why we are concerned is partly presentational and partly practical. As everybody has acknowledged so far, the ISC has no wish to get in the way, interfere with or become some sort of obstacle for current operatives to be tripping over when they are engaged in operations. However, as the Bill was originally drafted, it would have ruled out some of the most important and sensitive inquiries that the Committee has undertaken even in the two years that I have been a member of it, as those reports were done on current matters directly for the Prime Minister, to the Prime Minister. Clearly, that omission has now been rectified.

We are a little concerned about the use of “voluntarily”. It seems to suggest that we would not even have the ability to request the information, although we cannot require it, and that sends a message suggesting that unless the security and intelligence agencies volunteer it, we cannot even ask for it. A good example that I can share with the Committee is what happens when—heaven forbid, but it happens from time to time—there is a terrorist incident, or more frequently, there is an arrest in order to head off such an incident. Usually, with something such as that, the relevant agency will write to the ISC and say, “You may have read in the media that we made an arrest. This is the background to it. We feel that you should be informed.” The agencies do that more often than not, but not invariably, and we feel that the use of “voluntarily” seems to suggest that if they did not take the initiative and take the trouble to write to us about it, we would not be able to request that they gave us some background about what was happening in the news. Although we have no wish to interfere with current operations, we certainly feel that it is sensible for us to have such information about current operations as the services themselves might think it useful to volunteer, because often, inaccurate matters will be reported, on which the Committee could be of assistance in setting them straight, when there might be no other convenient way of doing so.

Therefore, although this is not a big issue, we feel fairly strongly that the word “voluntarily” is largely superfluous, could be a bit obstructive and certainly sends the wrong signal presentationally. That is why we urge the Government to remove it, because the important distinction between “require” and “request”—that is, between paragraphs (a) and (b) on one hand and paragraph (c) on the other—will be laid out elsewhere in the legislation.

Paul Murphy (Labour, Torfaen)

I entirely agree with the hon. Member for New Forest East. I think that “voluntarily” should come out, because it can be damaging in the wrong hands. The ISC could have less power in that circumstance than it has had in the past. The danger about some of this is that unless we are very careful, we will circumscribe the work of the ISC by limiting it too rigidly. There are occasions when the Committee or its Chair has to deal with current operations and, in my experience, that has never been a problem with the agencies. If something becomes very public and controversial, the chances are that the head of an agency or a very senior figure appears before the ISC to discuss what is happening in the newspapers or whatever it is, and the Chair sometimes visits the head of the agency concerned to discuss such matters. I know that that is not the Government’s intention, but there might be such an outcome unless we are very careful.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I confirm to the Committee that we do not believe that anything in clause 2 or schedule 1 will restrict the Committee’s work in the way that has been postulated. It is certainly not our intention to suggest that the ISC cannot request information on a certain matter, and I do not believe that that would be the consequence of the use of the word “voluntarily”.

We are seeking to draw on the distinction between the three different classes of investigation into operational matters, and how that interfaces with the subsequent requirements, which are dealt with in amendment 37, on requesting information. I appreciate that the drafting and the interrelationship between amendments in making such changes is sometimes complex, but it is important to stress, in direct response to the hon. Lady’s question, that there are three categories in amendment 32, which are in proposed paragraphs (a), (b) and (c). The approach of the parliamentary draftsmen is simply to put the word “or” before the last paragraph—in other words, at the end of proposed paragraph (b)—rather than at the end of each of the first two proposed paragraphs, which I think is what my hon. Friend the Member for New Forest East mentioned.

The changes are clearly intended to reflect the alteration of the ISC’s remit. At the moment, that remit covers administration, expenditure and policy; until the Bill is enacted, it will not have a formal role in respect of operational matters. As has been indicated, however, the agencies from time to time share information about operations with the Committee. The Bill and the Government amendments are intended to relate to the expansion of the role and remit of the ISC, as well as to give the flexibility alluded to in debates in the other place.

We believe that that flexibility is provided by amendment 32, with its three categories of operational matters that can be considered—in other words, where

“(a) the ISC and the Prime Minister are satisfied that the matter…is not part of any ongoing intelligence or security operation, and…is of significant national interest, (b) the Prime Minister has asked the ISC to consider the matter, or (c) the ISC’s consideration of the matter is limited to the consideration of information provided voluntarily to the ISC”

by one of the intelligence agencies or a Department. Those are the three elements that we are looking at and addressing to provide clarification and confirmation about the ISC’s remit. Rather than fettering the ISC, the change is about ensuring that it has a greater role in such matters. I make that clear, because an important part of the reforms in part 1 of the Bill is to provide the ISC with that additional function.

The hon. Member for Kingston upon Hull North said that there was a drafting error, but we do not accept that; it was a change in policy respecting the points made about operational flexibility and the addition of the criterion of enabling the Prime Minister to ask the ISC to consider a particular matter.

On the point about information being provided voluntarily, as I said, that is intended to draw a distinction between information volunteered by one of the agencies and information that flows as part of the provisions in schedule 1 and the access to information provisions. It is intended to distinguish between the first two categories, where it would be appropriate for the Committee to ask for further details, and the latter category, where it would not be appropriate to have a formal requirement, as it would cut across the intent of the first two limbs. At the same time, it is in no way intended to prevent the provision of further information.

My hon. Friend the Member for New Forest East highlighted the distinction between the three different categories and how the element of information flow was intended to operate. I certainly understand his point about the information that might flow therefrom, even though the information might originally have been volunteered.

Julian Lewis (Conservative, New Forest East)

The Minister said something about whether it would be appropriate for the Committee to ask for further information, but my understanding is that it is appropriate for the Committee to ask for further information in all three categories; it is just that the Committee can require the information in categories 1 and 2, but can only ask in category 3. The problem with the word “voluntarily” in category 3 is that it seems to suggest that we cannot ask and perhaps be refused, because we cannot ask in the first place. That is why we feel that that word is an encumbrance.

James Brokenshire (Conservative, Old Bexley and Sidcup)

There is an important distinction. Right hon. and hon. Members have accepted that the ISC’s role should involve looking back at operations that have taken place. We must ensure that sufficient time has passed to prevent any intrusion on highly sensitive operations that might be ongoing, and respect the role of the Secretaries of State in providing that function to Parliament. Although my hon. Friend is correct that the Committee can ask for information and that the agencies might provide details, there is a distinction to be drawn between that situation and the provisions in paragraph 3 of schedule 1, which Government amendment 37 provides will be limited to the first two categories.

I understand my hon. Friend’s concern about the term “voluntarily”, but some distinction must be drawn. We believe that something is needed there. I appreciate that the ISC is concerned that “voluntarily” may give the wrong connotation. I am happy to look at the drafting to see whether a different word might give the same effect. I do not want to dance on pinheads, as I am sure he will understand, but there is an important distinction to be drawn. That is why we think that the way forward that we have set out, particularly in Government amendments 32 and 37 and the consequential amendments, provides a clear route and deals with some of the concerns and sensitivities that might otherwise arise, and that is why we think that it is a better option than the approach adopted in relation to amendment 23. I ask the hon. Lady to withdraw her amendment. We think that the matter is dealt with differently through the Government’s proposed amendments.

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 14, in schedule 1, page 16, line 17, leave out ‘Minister of the Crown’ and insert ‘Secretary of State’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss the following: Government amendments 15, 42, 43, 44, 45 and 46.

Amendment 17, in schedule 1, page 16, line 44, leave out ‘Minister of the Crown’ and insert ‘Secretary of State’.

Amendment 18, in schedule 1, page 16, line 46, leave out ‘Minister of the Crown’ and insert ‘Secretary of State’.

Amendment 19, in schedule 1, page 17, line 1, leave out first ‘Minister of the Crown’ and insert ‘Secretary of State’.

Amendment 20, in schedule 1, page 17, line 1, leave out second ‘Minister of the Crown’ and insert ‘Secretary of State’.

Diana Johnson (Labour, Kingston upon Hull North)

This group of amendments addresses the level of the Minister who is able to make decisions to withhold information in relation to paragraph 3 of schedule 1, on access to information. In the past, as I understand it, the director general of the Security Service, the chief of the Secret Intelligence Service and the director of Government Communications Headquarters have been able to provide information requested by the ISC and have had the right to withhold information. In future, under paragraph 3(1), if information is not to be provided to the ISC by those agencies, the decision will be taken by the Secretary of State, which is right and proper.

Sub-paragraph (2) addresses other Government Departments, or parts of Government Departments, that are asked to disclose information to the ISC, which relates to the widening of the ISC’s role. The sub-paragraph states that a relevant Minister of the Crown may decide that information should be withheld from the ISC. The amendments have been tabled because if the Secretary of State decides that the security and intelligence agencies should withhold information, Ministers of equal rank should make such decisions across the rest of Government.

We question the reference to “Minister of the Crown,” because that could include those at Under-Secretary of State level. There is nothing wrong with Under-Secretaries of State—I make that clear because I know a distinguished Under-Secretary is already involved in this issue—but it is appropriate to have the standard of Secretary of State running throughout. That would ensure that it is recognised that withholding information from the ISC is a serious matter and that such decisions should be taken at the highest level.

As I understand it, the schedule was drafted to take into account that the Cabinet Office does not have a Secretary of State, and “Minister of the Crown” accommodates that circumstance. Will the Minister update the Committee on what steps will be taken if information is to be withheld by the Cabinet Office? Who will take the decision? Will it be the Prime Minister?

The Opposition and the Government tabled the same amendments, and we are pleased there is support on both sides of the Committee.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Two points are at issue. First, where agencies’ material is concerned, the Bill provides that decisions to withhold information from the ISC must be taken by the Secretary of State; where the ISC requests information from another Government Department, however, the Bill states that a decision to withhold is taken by

“the relevant Minister of the Crown”.

For these purposes, the relevant Minister of the Crown is such person as is identified in the memorandum of understanding between the Prime Minister and the ISC, or, where no Minister is so identified, any Minister of the Crown.

On Report in another place, Baroness Smith of Basildon moved an amendment that would have restricted the power to withhold to a Secretary of State or a Minister of equivalent level. Responding for the Government, Baroness Stowell said,

“there may be some departments where there is no Secretary of State… For example, the post of Minister for the Cabinet Office is a Minister of State position rather than a Secretary of State position.”

Lord Butler, on behalf of the ISC, supported the Opposition amendment:

“Any intelligence information held by the Cabinet Office will belong either to the Home Office, the Foreign Office or some other department where a Secretary of State is responsible. It is not the case that provision ought to be made for an exception where the Cabinet Office is involved.”—[Official Report, House of Lords, 19 November 2012; Vol. 740, c. 1683-1686.]

Since Report, the Government have given the arguments made on behalf of the Opposition and the ISC further consideration.

I am pleased to table a group of amendments that I note were also tabled in part by the Opposition. I recognise there is a shared view of the need to address the matter appropriately. Amendments 15, 42, 43, 44, 45 and 46 together would restrict the power to withhold on behalf of Departments to the Secretary of State rather than to a Minister of the Crown. Lord Butler was broadly correct in his remarks supporting the amendment in another place. Most information that the ISC might request of the Cabinet Office and which the Government might wish to withhold will be sensitive, primarily because of the interest of another Department. Accordingly, the Foreign Secretary, the Home Secretary and the Defence Secretary, as appropriate, will be perfectly well placed to make the decision on withholding. A minority of Cabinet Office information may be sensitive on other grounds, and administrative arrangements can be put in place to enable one of the Secretaries of State none the less to take the decision on withholding such information.

The amendments tabled by the hon. Member for Kingston upon Hull North would have the same primary effect: that only a Secretary of State would be able to withhold information from the ISC. However, those amendments would also mean that the duty to make information available on behalf of a Department would fall on the Secretary of State rather than the Minister of the Crown, as in the Government’s proposals. That would have the surprising consequence that, when the ISC makes a request for information of the Cabinet Office, which has no Secretary of State, the duty to provide that information would necessarily fall on a Secretary of State for another Department.

I see no reason why, for Departments other than the agencies, the relevant Minister of the Crown should not still be the person who actually provides the information to the ISC. That is why I prefer the Government’s approach of distinguishing between the provision of information and a decision to withhold information, with the latter category, by the nature of the withholding, being at Secretary of State level. It will therefore still be necessary, as required by paragraph 3(6) of schedule 1, for the memorandum of understanding to identify which Minister of the Crown will have the duty on behalf of a Department to make information available to the ISC. The Government’s intention is that the following Ministers will have that role: any Minister of State in the Cabinet Office, the Secretary of State for Defence in the Ministry of Defence, the Home Secretary in the Home Department, and the Foreign Secretary in the Foreign and Commonwealth Office.

For those reasons of distinguishing between provision of information and decisions on not disclosing information, I ask the hon. Lady not to press amendments 14, 18, 17 and 20, but the Government obviously firmly support the amendments in my name.

Diana Johnson (Labour, Kingston upon Hull North)

I am grateful to the Minister for his good explanation of why there is a slight difference in the effect of the Government’s amendments. He made it clear that any withholding of information should be at the highest level, but that the disclosure of information may be at Minister of the Crown level, and I am satisfied with that explanation. I beg to ask leave to withdraw the amendment.

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 21, in schedule 1, page 16, leave out from ‘ISC’ in line 30 to end of line 38.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss amendment 28, in schedule 1, page 16, line 34, at end insert—

‘except that the ISC may have access to information that is sub judice or that relates to papers of a previous administration.’.

Diana Johnson (Labour, Kingston upon Hull North)

The amendments continue the theme of information being withheld from the ISC, and the reasons why that can be done. I tabled amendment 21, which tries to get to the same principle as amendment 28, tabled by the hon. Member for New Forest East. The ISC should be able to access information even if it is sub judice or relates to previous Administrations. As drafted, the Bill allowed a Minister to withhold information if the Minister considered that it would be proper not to disclose it to a departmental Select Committee of the House of Commons, on grounds not limited to national security.

When Ministers consider whether to disclose information to Select Committees, they are governed by the Osmotherly rules, which basically set out three reasons for withholding information. As I understand it, the first is disproportionate cost; the second is that the matter is sub judice; and the third is that it relates to a previous Administration.

Amendment 21 would rule out using the rules, although we would be very happy for an agreement on cost to be included in the memorandum of understanding. If there was a disproportionate cost, we would think that a valid reason, and that could achieve the same result as amendment 28.

We do not think that sub judice information should be excluded from Committee hearings because that might prevent the ISC from seeing some particularly important information. There are significant procedures in place to ensure that information would be protected in front of the ISC, and therefore we should not worry about the ISC seeing such information where it would assist its deliberations.

The Opposition feel that the ISC could get access to information held by previous Administrations as well. There seem to be two reasons for allowing that. First, we should recognise that the matters that the ISC investigates are rarely politically sensitive, even though they may be sensitive in other ways. Secondly, it will often be the case that the ISC will be able to investigate an issue only after a change of Administration. That is because the ISC’s role is retrospective, and that means that there will often be a very long delay before an investigation can begin. It would seem wrong to say that the ISC should not have access to information held by a previous Administration.

Julian Lewis (Conservative, New Forest East)

I rise in support of what the hon. Lady has said, although we have a preference, as she will understand, for the amendment 28 wording, which is to add the words:

“Except that the ISC may have access to information that is sub judice or that relates to papers of a previous administration.”

She was absolutely right to put her finger on the point of retrospection; one cannot have a role that is primarily to do with the retrospective examination of sensitive matters if one is arbitrarily cut off when there is a change of Government.

Our Committee is different from all other Committees, which might like to make the same claim, because in our Committee’s report there is always the possibility that anything that should not appear in the public domain for any good reason whatever can be redacted. If we did not have the ability to consider matters that were sub judice, the report on the 7/7 bombings, for example—the legal proceedings went on for many years—would have resulted in the Committee’s being entirely stuck and unable to produce the report that it did.

Our view is clearly that the legislation being put forward is intended to strengthen the role of the ISC and not to restrict its current access to information. We believe that the Bill must take account of current practice, and we therefore very strongly support our own amendment 28—or, failing that, the hon. Lady’s amendment 21.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I believe that the wording in schedule 1 does, in fact, reflect the current practice of the ISC. It is modelled on section 3(4) of the Intelligence Services Act 1994, which provides an equivalent provision —a determination of information not to be supplied. The schedule says that if the information appears to be

“of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider…it proper not to do so.”

That language already imports, as I understand it, the Osmotherly rules into the existing ISC’s deliberations. In making that provision in paragraph 3(b), we are simply reflecting the existing position under the 1994 Act.

I am well aware that the ISC itself already receives sub judice material and material of previous Administrations. There is no intent that that existing practice should be changed by virtue of the comments that I have already made about the reflection across from the existing statutory provision, to the provisions that are contemplated in paragraph 3 of schedule 1.

There are a number of long-standing conventions that have developed in the relationship between Parliament, in the form of its Select Committees, and successive Governments. They recognise that there are categories of information that, in certain circumstances, may be withheld from Select Committees on the grounds of public policy. As we have heard, the conventions are often referred to as the Osmotherly rules. The provision is necessary to safeguard the long-standing conventions—the rules—in the context of the relationship between the Government and the ISC. It provides a basis for withholding from the ISC the categories of information described in the Osmotherly rules.

The provision gives the Secretary of State only a discretion to withhold material, and in exercising that discretion the Minister would have to have regard to the provision that the ISC has of keeping material confidential. Indeed, the Osmotherly rules state:

“If the problem lies with disclosing information in open evidence sessions or in memoranda submitted for publication, Departments will wish to consider whether the information requested could be provided on a confidential basis.”

The powers to withhold information from the ISC have been used only sparingly in the past, and we expect that pattern to continue, with their being used only in exceptional circumstances, but it is important that the safeguards be retained.

Amendment 28, tabled by my hon. Friend the Member for New Forest East, appears to have the intention of making it clear that, notwithstanding the provisions that I have described, the Osmotherly rules and the provisions of the Intelligence Services Act 1994, the ISC may be able to access information that is sub judice or that relates to the papers of a previous Administration. It is implicit in what I have said already, but let me reiterate that that will be the position anyway. The amendment is, therefore, unnecessary.

Although the Osmotherly rules mention those categories as those where it might be appropriate to decline to provide information to Select Committees, sub-paragraph 3(3)(b) of schedule 1 gives a discretion to the Secretary of State, so that he or she may decide that the information should be withheld from the ISC on those grounds. Although the Minister must have regard to the Osmotherly rules in making such a decision, the rules themselves recognise that providing the relevant information to a Committee confidentially can avoid the need to withhold information, and most of the information that the ISC receives is strictly confidential.

Although matters that are sub judice or are related to the papers of a previous Administration are listed in the Osmotherly rules, it might be perfectly appropriate for the ISC to be allowed access to such material, although such an assessment is best made on a case-by-case basis. Because of the nature of its work, the ISC is used to dealing with, and is well-equipped to handle, sensitive information, and the Secretary of State will, of course, have regard to that when exercising his discretion in accordance with the Osmotherly rules.

Paul Murphy (Labour, Torfaen)

I do not know who this Osmotherly was, but I doubt that he—perhaps it was a she—would understand the nature of spies and intelligence activities. They do not fit into a parliamentary timetable. The issue about previous Administrations is that, as far as I can recall, there has been only one instance when the Government have not given information to the Committee—one in 20 years. The practice is therefore a good one, but I have a feeling that the provision might start to restrict it again.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am afraid that I cannot agree with the right hon. Gentleman. The wording and intent of the sub-paragraph reflect the existing practice in respect of the ISC. Although we might talk about Cabinet Office guidance, Osmotherly, or whatever description we may wish to attach to it, the ISC is already subject to such provisions and restrictions and the provision in the Bill is simply a read-across. There should, therefore, be no reason why the Government’s existing approach, which reflects the fact that information is held confidentially—that fact is respected in the provision—should change in some way.

My point is that the Government have not sought in some way to apply a new provision; they seek to reflect existing law and practice in respect of the ISC. Although they might be used only sparingly, the Osmotherly rules are the appropriate, necessary and relevant approach. Sub-paragraph (b) simply gives effect to the existing arrangements, and there is no reason why, in all imaginable and practical circumstances, the arrangements on sub judice material and material from a previous Government should not continue, in accordance with that provision.

That is the clear point that I make to the Committee. There is no intent to fetter. The provisions are consistent with the existing arrangements under the 1994 Act, and they are appropriate in the context of the relationship between the Government and the ISC.