I am grateful for the opportunity to speak in this debate, and also grateful to my right hon. Friend the Member for New Forest East (Sir Julian Lewis) for setting out so clearly the position of the Intelligence and Security Committee, of which I am also a member. He made many points with which I agree and which I do not need to repeat, but I do want to say something very briefly about Lords amendments 22 and 122 in slightly more detail. Both amendments have something in common, which is that they highlight a significant problem and put forward, perhaps, an imperfect solution to those problems. The Government’s saying that they are imperfect solutions has validity, but it would have more validity if the Government were prepared to come forward with solutions to those problems that were less imperfect, which we could all then support.
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It is certainly true that amendment 122 reflects a significant problem. As my right hon. Friend said earlier, the situation is that the remit of the Intelligence and Security Committee has fallen substantially behind the reality of today’s intelligence and security architecture. The bits of Government now making decisions with intelligence material are no longer limited to the bits of Government covered by the ISC’s remit as set out in the Justice and Security Act 2013 and the memorandum of understanding set out under it.
That is not an esoteric technical issue. It is a problem not because it affects empire-building of particular parliamentary Committees, but rather because it affects the quality of parliamentary scrutiny that can be delivered. As my right hon. Friend the Member for New Forest East said, the ISC was set up as the only Committee that could look fully at sensitive intelligence material
and it only exists, or needs to exist, because other Committees, including Select Committees, cannot do so in the same way.
It may be worth looking at what that memorandum of understanding for the ISC says in paragraph 8:
“The ISC is the only committee of Parliament that has regular access to protectively marked information that is sensitive for national security reasons: this means that only the ISC is in a position to scrutinise effectively the work of the Agencies and of those parts of Departments whose work is directly concerned with intelligence and security matters.”
In the interest of fairness, I should also read out the footnote following that sentence, which says:
“This will not affect the wider scrutiny of departments such as the Home Office, FCO and MOD by other parliamentary committees. The ISC will aim to avoid any unnecessary duplication with the work of those Committees.”
That is a point that my right hon. Friend made earlier.
The burden of that text is obvious. There is a reason why the ISC exists—it does work that other Committees cannot do—but there is plenty for those other Committees to do that does not have an intelligence or security bent to it. As more and more units of the type that the Government have already set up once—amendment 122 envisages that that may be done further—deal with intelligence material but remain outside the remit of the ISC, the gap in scrutiny becomes ever greater.
That is not a fanciful concern. As I say, it has been done once already with the Investment Security Unit, which is an instructive example. Despite what some might think was the obvious overlay of intelligence and security material over commercial considerations—the whole point of the unit, it would probably be argued—the Government considered that none the less the Business, Energy and Industrial Strategy Committee could scrutinise it effectively. I do not seek to relitigate that question, and I certainly make no reflection on the ability of the BEIS Committee or its Chairman to do a good job, as they clearly do and will continue to do. In the absence of an updated memorandum of understanding for the ISC, however, it is an example of the Government not being open to extending the work of the ISC where such new units come to be established.
The Government have said in relation to the ISU that the ISC can look at the input to the ISU’s decision making from the intelligence community, but that gives rise to a different problem: the ISC could come to a different conclusion from the BEIS Committee on the wisdom or appropriateness of the very same decision by the unit. That is clearly unsatisfactory and it is a problem that must be fixed.
The Government are perfectly entitled to say that they can fix that problem without the legislative change that amendment 122 proposes, and they are absolutely right to say that the memorandum of understanding for the ISC can be changed; anyone who wants to look it up can find it in section 2(5)(c) of the Justice and Security Act 2013. However, as has been said, that can be done only with the agreement of both the ISC and the Prime Minister, and there is no such agreement so far. The ISC cannot do it unilaterally.
The Minister made an argument, which I noticed he did not rely on from the Dispatch Box earlier, in a letter to all Members of this House on 27 April, referring to section 3 of the 2013 Act in that letter, which says that the ISC can make reports on
“any aspect of its functions”.
He presumably did so to make the point that the ISC, if it wishes, can range widely. The problem is that that is a slightly circular argument.
Section 3 refers to the ISC’s capacity to make reports on any aspect of its functions, but its functions are set out in section 2 of the 2013 Act, which says that the ISC oversees the activities of three specified agencies and of others set out in the memorandum of understanding. If it is not in the memorandum of understanding, the ISC cannot oversee it. That underlines the need for the memorandum of understanding to be up to date.
We have a real problem of the ISC remit’s being out of date. If the Government argue that the solution that amendment 122 proposes to that problem is imperfect, I might be prepared to agree with them, but it will become increasingly difficult to resist imperfect solutions to this problem if the Government continue to resist and to refuse finding a more perfect one.