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Intelligence and Security Committee Annual Report for 2010-11

My Lords, after this lengthy adjournment, I fear that I still have a number of issues to discuss from this lengthy and comprehensive report. I will touch on them as briefly as I can. When we adjourned, I was discussing how the committee must be able to look at operational information in order to carry out its job of scrutiny properly and I was just beginning to touch on the second issue, which was to ask the Government for clarification with regard to the resources of the committee. We currently have limited personnel resources, but we are now looking at changes to enable the committee to require that information be provided. While at the moment the committee is reliant upon the agencies considering and summarising their information, in future the committee’s staff will need to be engaged in this process to assure the committee that it has the information it requires. This is very important, particularly following the inquest that we heard earlier this summer, where the deficiencies in the information provided by the agencies were shown to have put the committee at a disadvantage. Due to the sensitive nature of the material involved, the intelligence community is not subject to the same level of public scrutiny as other departments’ agencies. It is not subject to regular debates or questions in Parliament; academic research is limited to matters of somewhat distant history; investigative journalists cannot delve very deeply; and it is exempt from freedom of information. The responsibility for independent parliamentary oversight and security therefore falls to this committee and to the Intelligence Services and Interception of Communications Commissioners whose role is to check the legality of the agents’ activities. That is why both must be adequately supported, so I urge the Minister to accept that this will not be possible unless the committee has sufficient staff of adequate seniority and authority. I now turn to the thorny and increasingly important question of protecting intelligence material in court proceedings. In the committee’s report on rendition in the last Parliament, we highlighted the importance of intelligence exchanges with foreign liaison partners. We explained that the United Kingdom cannot work in a vacuum and that we depend upon the co-operation of others. We concluded: "““Our intelligence-sharing relationships, particularly with the United States, are critical to providing the breadth and depth of intelligence coverage required to counter the threat to the UK posed by global terrorism. These relationships have saved lives and must continue””." These relationships are based on confidentiality. Intelligence is shared on the understanding that it will be protected. If our allies fear that their material might be disclosed by our courts—and after this summer they have good reason to fear this—then they may reduce their co-operation. In other words, if we cannot protect it, we will not be given it in the first place. The committee has heard first hand from those within the United States intelligence community that the decision of UK courts in recent cases to disclose US intelligence material has damaged the UK-US intelligence relationship. On a visit earlier this year this was said to us often and—as I am sure my colleague, the noble Lord, Lord Butler, will endorse—with some great force. This is of serious concern. The United Kingdom must honour its obligations to protect foreign intelligence material from disclosure. We therefore support the Government’s initiative in bringing forward the Justice and Security Green Paper and in looking for a way to honour our obligations. The Green Paper proposes that closed material procedures, including the use of special advocates, be extended to civil cases. The committee considers this to be a step in the right direction. However, it does not on its own provide the answer, nor does it offer certainty to those that we work with that their information is safe with us. The Green Paper recognises that closed material procedures would only ““reduce””—not eliminate— "““the risk of damaging disclosure of sensitive material””." The Green Paper does, however, raise the possibility of a statutory presumption against the disclosure of intelligence material. This would have the advantage of providing a clear indication to judges of Parliament’s intention in relation to such material. Such a presumption would be invaluable to a court in seeking to understand Parliament’s intention in this respect. Any presumption would of course be rebuttable, so the final decision would lie with the courts—we are not trying to take the courts out of it. However, there would need to be a compelling reason for the judge to rule against such a presumption. We regard that as the right balance to strike in these very difficult and important circumstances. Therefore, we consider that this rebuttable presumption should be included in addition to the closed material procedures. The combined package would still not offer a total guarantee to our allies, but it would provide far greater protection than the CMPs alone. In seeking to protect the UK, we must work with others who must feel confident that we will protect the information that they share with us. We must give them that confidence. Therefore, I hope that my noble friend will consider our recommendation that a rebuttable statutory presumption should be included as part of a package of measures. Finally, I want to pay tribute to the men and women who work for our security and intelligence agencies. As we have seen on the committee, it is a difficult job, which inevitably receives little if any recognition, where successes cannot be celebrated and decisions cannot always be easily defended in public. The Intelligence and Security Committee plays an important role in holding the services to account, scrutinising their actions and criticising them where that is necessary. However, we also believe that we must be their champion and congratulate them on a job well done behind the scenes, as I unreservedly do now. I commend the report to the Grand Committee.