Intelligence and Security Committee of Parliament: Special Report

Debate between Earl Howe and Lord Anderson of Ipswich

Monday 4th November 2019 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I beg leave to ask a Question of which I have given private notice, and declare an interest as an occasional reviewer of national security matters.

[Earl Howe (Con)]

My Lords, reports from the Intelligence and Security Committee of Parliament must go through a number of processes before publication. Those processes apply to the report to which the noble Lord refers in his Question. The Prime Minister will respond to the committee’s request to publish this report in due course, once the usual processes have been completed.

[Lord Anderson of Ipswich]

The Minister’s response echoes two unsatisfactory explanations aired in recent days for this irregular state of affairs. The first is that redaction remains to be completed. This report has already been through the full redaction process with the agencies and the Cabinet Office. In the ISC’s experience, prime ministerial confirmation has always been a formality. The second explanation is that time is needed for the Government to respond, but the Government’s aim and usual practice, as set out in a 2014 memorandum of understanding, is to respond not when a report is published but within 60 days. This unjustified delay undermines the ISC and, I am afraid, invites suspicion of the Government and their motives. Will the Minister advise No. 10 to think again?

[Earl Howe]

My Lords, I must correct the noble Lord in several respects. The length of time for which this report has been with the Government is not at all unusual. It is one of a number of ISC reports which the Government are currently considering. In this instance, the Government are following the standard process which applies before every publication. A memorandum of understanding with the committee sets out the relationship between it and the Government. This does not include a timetable for the Government to clear such a report for publication and there is no set timeline for a response. Nor is such a deadline set in governing legislation.

Having said all that, I realise that the subject of this report is a matter of particular public interest and have no doubt that noble Lords’ comments will not be lost on those in No. 10.

Counter-Terrorism and Border Security Bill

Debate between Earl Howe and Lord Anderson of Ipswich

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 29th October 2018 Lords Chamber

[Earl Howe]

My Lords, as the noble Lord, Lord Anderson, has helpfully explained, these amendments relate to the legal test for designating an area under Clause 4. That test currently requires that it be necessary for purposes connected with protecting the public from a risk of terrorism to restrict UK nationals or residents from entering or remaining in the area. The noble Lord’s amendments would add a second limb to this test, which would require that a proscribed terrorist organisation is engaging in armed conflict within the area to be designated.

It is clear from the noble Lord’s explanation that the purpose of these amendments is to help ensure that designations are proportionate and that they are made only in circumstances where they are genuinely necessary. As the noble Lord has explained, they would more closely follow the approach taken in Australian and Danish law, where those countries have established similar powers.

I completely understand the sentiment and the intention behind these amendments. Nevertheless, I respectfully disagree that they are necessary to secure this outcome. I also do not consider that the UK is bound to follow the approach taken by other countries, which may have different legal frameworks and may be facing different configurations of terrorist threat, rather than seeking the approach that works best for us. As your Lordships would expect, when drafting Clause 4, we looked carefully at the approaches taken by Australia and Denmark, including the legal test for designating an area. We have concluded that the right approach for the UK, and the one that would provide the greatest flexibility while still providing a proper safeguard for proportionality, is the one currently set out in the Bill.

We have no doubt that in most cases in which it might be appropriate to designate an area in future, it is likely that a proscribed organisation will be engaging in armed conflict. Certainly, that has been the experience with the Syrian conflict, which is the closest analogy we have for the type of scenario in which we might wish to use the power. However, we are keen to ensure that the power is sufficiently flexible to be used in currently unforeseen future scenarios.

It is plausible that in the future, there could be an armed conflict or some other situation in an area which gives rise to a clear terrorism-related risk, on the basis of which it is appropriate to restrict travel by UK nationals or residents, but in which a proscribed terrorist organisation is not currently involved. This might be because a grouping of terrorists operating in the area cannot clearly be defined as an organisation. Or it might be because the situation has evolved rapidly—perhaps with an organisation emerging and quickly becoming involved in fighting—and it is necessary to restrict travel urgently before it has been possible to proscribe the organisation. It is also plausible that we may know from sensitive intelligence about the involvement of a specific proscribed organisation in a conflict, but as such intelligence cannot be revealed in public, it may not be possible to prove the organisation’s involvement on open material alone.

As the noble Lord will be aware, regulations designating an area are subject to the made affirmative procedure. As such, Home Office Ministers will need to come to Parliament to explain the basis for the designation, and it would then be for both Houses to decide whether to approve the regulations based on that explanation. In this regard, I note the recommendation by the Delegated Powers Committee that the Home Secretary should be required to lay before Parliament a Statement setting out the reasons why he considers that the condition for designation is met in the case at hand. We are ready to give that recommendation sympathetic consideration ahead of Report.

Given the considerations I have outlined, and the clear and robust necessity test that is already contained within Clause 4, I hope the noble Lord will be persuaded to withdraw his amendment, at least for the time being.

[Lord Anderson of Ipswich]

I thank the Minister for his thoughtful response. It made me wish that we had had a full consultation on this novel offence prior to the introduction of the Bill, or at the very least that we had not seen it introduced to the Bill at such a late stage. However, we are where we are. I concede nothing but will consider carefully what the Minister has said.

--- Later in debate ---

[Earl Howe]

My Lords, Amendments 26 and 27 would add to the existing requirement in the Bill that the Secretary of State keep under review any designation made under Clause 4 and revoke it if the legal test for designation is no longer met in respect of it. As the noble Lord, Lord Anderson, explained, they would specify that such reviews must take place on an annual basis and would prescribe the options open to the Secretary of State when conducting such a review, as well as requiring the outcome of the review to be published.

I should start by saying that I am in full agreement with the principle that any designation under Clause 4 should not be indefinite, that it should be kept under review and that it should be revoked as soon as it is no longer necessary.

In saying that, perhaps I can take the opportunity to correct something stated by my noble friend Lady Williams when she said earlier that the list of proscribed organisations is subject to regular review. This was an inadvertent slip by my noble friend, for which, on her behalf, I apologise. I understand that she has already approached noble Lords privately to make that correction, but I do so on the record.

Where I depart from the noble Lord’s views, much as I respect them, is that I believe the current drafting of the Bill is the most effective way of delivering the objective. In particular, I cannot agree that a rigid requirement for an annual review is needed or is appropriate. I say that, first, because the type of situation in which this power is expected to be used may be fluid and rapidly evolving, but it may equally be one where there is an obvious and enduring threat. In the former case, an agile review, more frequent than once a year, may be appropriate—I accept that the amendment would not preclude this. In the latter case, an annual review may simply be unnecessary, and may be a poor use of the time and resources of those in government and the security and intelligence agencies tasked with protecting us from the terrorist threat.

I note in this regard that the Australian legislation sunsets a designation after three years, but with the option of an area being redesignated. If we were to go down this road—as the noble Lord, Lord Rosser, seeks to do with his Amendment 28—three years strikes me as more appropriate in this context compared with the annual review provided for in these amendments. Once again I have in mind the Syrian example, where the nature and extent of the threat, and the involvement and intent of UK nationals and residents, is self-evident and has indeed been proactively publicised by its protagonists over an extended period of time.

However, secondly, I say this because, regardless of its frequency, a formal review process at a fixed point is not likely to be appropriate. In all cases where the level of terrorist threat is so high that it is appropriate to designate an area under Clause 4, as your Lordships would expect, the Government and the security and intelligence agencies will keep the situation in that area under extremely close and continuous review.

This will be a comprehensive ongoing assessment across the full spectrum of government. It will involve consideration and ongoing review of every aspect of the Government’s response to the situation, including their use of legal powers and any designation under Clause 4. In reality, this is a closer and more effective consideration than that envisaged by the amendments of the noble Lord, Lord Anderson. It will enable the Government readily to identify if the situation on the ground has changed such that the legal test for designating the area is no longer met, and to take prompt action should this be the case.

I remain to be persuaded that the more elaborate annual process provided for in these amendments would serve the public interest, or would be an effective use of resources, or would lead to any more rigorous or effective a review of whether a designation remains necessary. As I have indicated, I can see more merit in a backstop three-year sunset clause with the option of redesignation. I am ready to consider this option further ahead of Report.

Amendment 29 would require that before a Motion to Approve any designation regulations may be tabled, the regulations must have been reviewed by the Intelligence and Security Committee, and the committee must have laid before both Houses a report providing a recommendation on whether the regulations should be approved.

I recognise and appreciate the constructive spirit in which this amendment is intended and I am happy to make clear that I share the view that Parliament should have as well informed a debate as possible on any regulations made under this power. However, I am not persuaded that involving the Intelligence and Security Committee in this way is the right approach or would be an appropriate extension of the committee’s role, which is what it would amount to. The Intelligence and Security Committee has a specific statutory remit under Section 2 of the Justice and Security Act 2013, which focuses on the administration and operation of the intelligence agencies. This is extended to certain aspects of the Government’s activities in relation to intelligence or security matters by means of a memorandum of understanding agreed under Section 2(2) of the 2013 Act.

Section 2(3) of the 2013 Act specifically excludes from the committee’s remit any matter that is,

“part of any ongoing intelligence or security operation”.

This clearly and intentionally establishes the committee’s role as one of retrospective oversight and review—not one of real-time authorisation, approval or review of operational decisions or the use of powers.

This reflects the long-standing principle that national security and the exercise of executive powers in this area is a matter for the Government of the day. There should of course be effective and robust oversight of decisions the Government have made—including, where appropriate, by the Intelligence and Security Committee and, in the case of this power, through debates in Parliament on any regulations designating an area, as well as by the Independent Reviewer of Terrorism Legislation. However, that is of a very different nature from the role proposed for the Intelligence and Security Committee in this amendment, which would be a significant extension of the committee’s role. I do not know if it is one that the committee would necessarily welcome, and it is not one that the Government consider appropriate.

Setting aside more fundamental questions of principle, I can see the amendment also giving rise to difficult practical issues—for example, around the speed with which the committee would need to prepare reports given the need for regulations to be approved within 40 sitting days; and around the extent of redactions that might be needed in such reports to protect sensitive intelligence, which might have informed the committee’s considerations but which could not be shared more widely to inform the consideration by Parliament.

I am, however, happy to give a clear assurance that the Government will always provide Parliament with as much information as possible about the reasons why any designation under Clause 4 is necessary. This will, of course, be constrained to some extent by the need to protect sensitive intelligence which cannot be revealed in public. However we recognise that this does not mean that Parliament will simply take on trust that a designation is necessary. We will always need to make a clear case for it.

I hope these arguments have reassured noble Lords that the current drafting of the Bill will deliver the outcomes they seek. I hope too that the Committee will take comfort from the fact that we will consider further Amendment 28. In the meantime, I ask the noble Lord, Lord Anderson, to withdraw his amendment.

[Lord Anderson of Ipswich]

I thank the Minister for his very courteous response. I also thank the noble Baroness, Lady Williams, for her welcome and frank correction. I think we are now agreed that the former practice of annual review of proscribed organisations conducted by the Home Office was discontinued in 2013-14. I am not aware of such a practice ever being adopted by the Northern Ireland Office—but we may come to that in due course.

I thought the Minister might respond to my amendment by suggesting it unthinkable in practice that reviews of area designations would be any less frequent than once a year. He made the point, with which I agree entirely, that one sometimes has to be quite agile. Indeed, my amendment was consistent with reviews taking place, where necessary, on a more than annual basis. With respect, I found it harder to agree with the Minister where he referred to the type of enduring threat which I think he was saying might justify a review as seldom as once every three years. This is a very heavy new power, unprecedented as far as I know in our history, whereby British citizens are simply prohibited from traveling to certain parts of the world. I ask the Minister to consider whether it can really be the case either that no timed review of this power should be required or that, if a time is to be affixed to it, it should be an interval as great as every three years. That seems a very long time for these important rights of travel to be withheld. I hope that I do not sound discourteous, but the Minister will understand that I still have concerns. None the less, I beg leave to withdraw the amendment.