Lords amendment: No. 15, after clause 13, to insert the following new clause—National security employees—
. Sections 10 to 13 of this Act shall not apply in relation to a person employed for the purposes of—
§ The Secretary of State for Trade and Industry (Mr. Stephen Byers)
I beg to move, That this House agrees with the Lords in the said amendment.
Mr. Deputy Speaker
With this, it will be convenient to take Lords amendments Nos. 27, 297, 305 and 323, Lords amendment No. 323, amendments (a), (b), (c), (d) and (e) thereto and Lords amendment No. 331.
§ Mr. Byers
I shall deal briefly with the amendment and then spend slightly longer on the amendments tabled by the right hon. Member for Bridgwater (Mr. King) and his colleagues on the Intelligence and Security Committee, which raise some important points of principle. It is only right that the House should have the opportunity of discussing the way in which we want to treat these sensitive issues.
The amendments that were agreed to in the other place reflect a correct understanding in addressing the sensitive issue of national security. As drafted, clause 13(1) applies the right to be accompanied in grievance and disciplinary hearings to persons in Crown employment. It therefore applies to employment within the Security Service, the Secret Intelligence Service and the Government communications headquarters.
I am sure that the House will agree that the staff of the security and intelligence agencies rightly have a unique status. The sensitive nature of their employment sets them apart from other workers. We have therefore given further consideration to how their inclusion in this part of the Bill can reflect that particular position. We believe that there are amendments before the House that do precisely that. I hope that when Members have considered the amendments that were agreed in another place, they will agree with that approach.
This evening, the House will want to concentrate on amendments Nos. 323(a), (b), (d) and (e) in the name of the right hon. Member for Bridgwater. I hope that Government amendment No. 323(c) will go some way towards resolving the difficulties that can be identified in the right hon. Gentleman's amendments.
First, I shall address amendments Nos. 323(a) and (b). I shall then outline why we feel that amendment No. 323(c) is the appropriate way forward in dealing with these matters.
The Bill provides that a Minister may direct that an applicant and his representative be excluded from all or part of proceedings where the interests of national security require it. We anticipate that the power to exclude from all future proceedings will be used extremely rarely and only in the most extreme circumstances where national security interests could not be adequately protected otherwise.
When the applicant or his representative is excluded the Attorney-General or, in Scotland, the Advocate-General, may appoint someone to represent the applicant's 1249 interests. However, we believe that the applicant, or his or her representative on their behalf, should always be entitled to make a statement of his or her case. We undertook in the House of Lords to ensure that this right could be provided. If right hon. and hon. Members address the detail in amendment No. 323(c), they will understand that we have tried to discharge the commitment that we gave in the House of Lords in the way that amendment No. 323 outlines.
Amendment No. 323(c) ensures that the tribunal regulations that will be made with regard to proceedings involving national security matters will be able to provide the right to make a statement in accordance with our policy. Lest there be any doubt, the Government undertake that the regulations will provide that an applicant or his representative will always be able to make such a statement.
I hope that the amendment will be recognised as one that discharges the obligation and the commitment that we recognised and gave in the House of Lords. It will be underpinned by the regulations that, we shall wish to introduce. I give a commitment that, in drawing up those regulations, we shall need to consult members of the Intelligence and Security Committee of which the right hon. Member for Bridgwater is the Chairman. That is wholly appropriate because they have drawn a particular issue to our attention. I believe that we shall benefit from the advice that we might receive from the right hon. Gentleman and his Committee. I would certainly wish to do that.
Amendments Nos. 323(d) and (e) would enable the commissioners to review the exercise of a Minister's power of direction. I have considered the matter carefully and I am grateful to the right hon. Member for Bridgwater for the opportunity of discussing the matter with him yesterday and having time to reflect and to discuss with officials whether we could agree to the proposal. I shall be asking the House to resist the amendments, which contain technical flaws. I know that the right hon. Gentleman will consider that to be the last resort of a Minister who is struggling. I found myself in his position when in opposition.
There are three particular issues. First, the amendments would go beyond the agencies about which the right hon. Gentleman is concerned and extend the provision to all other Crown employees. That would go far wider than the group that we wish to address.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
The Secretary of State must recognise that the circumstances would arise only in the case of a Crown employee whose ability to attend a tribunal or to be represented at it was removed because the Minister judged that it was a matter of national security. That would normally be only an employee of one of the agencies, or perhaps someone working in the Cabinet Office, for example, who had a similar national security involvement. It is because the Government have drafted this section of the Bill in terms of Crown servants rather than of agencies that it has such a wide theoretical application, but, in practice, a narrow one.
§ Mr. Byers
I understand that argument entirely. However, as I have said, the amendments would go 1250 beyond the agencies with which the right hon. Gentleman is concerned. It may be that civil servants working in particularly sensitive areas would be affected. I accept that. However, I am not sure that they should be regarded in exactly the same way as the particular groups that I think the right hon. Member for Bridgwater and his colleagues are concerned about.
There is a safeguard. If the individual feels that he has been treated in an inappropriate way, he will be able to seek judicial review at the time that the direction is made. The direction will be made publicly and the individual will know that that is the case. On the other hand, the commissioners must apply the principles of judicial review retrospectively. Parliament has decided that that is appropriate where the act under review was carried out secretly for obvious reasons. That is not so in the case of a power of direction. For those reasons, amendments Nos. 323(d) and (e) do not achieve the objective of the right hon. Member for Bridgwater and his colleagues. It goes beyond that and changes fundamentally the powers that commissioners would have to review the exercise of the power of direction being operated by a Minister. Therefore we feel that it is an inappropriate step to take, and I shall be asking the House to resist it.
I believe that the opportunity of seeking a judicial review is the appropriate way forward. Legal aid is available in particular circumstances for judicial review. People who felt that they had been adversely treated as a result of a power of direction being exercised by the Minister would have recourse to that course of action. I believe that to be appropriate. There would be great difficulties if we accepted these two amendments.
To conclude, I hope that the House will agree with the amendments starting with amendment No. 50. In relation to amendments (a) and (b), I give the House an assurance that, in drawing up the regulations, we would want to consult the Intelligence and Security Committee about the detail of the regulations. I hope that in supporting amendment (c), the House will recognise that we are putting in place a mechanism which we hope will overcome some of the reservations.
§ Mr. Allan Rogers (Rhondda)
Would it not be far better to have tabled amendments that would resolve all the issues now, rather than saying that the Government will do that in the future, through regulations and by other means? It would have been easy enough, if the Government had followed the recommendations made by the Intelligence and Security Committee in our annual report.
§ Mr. Byers
I hope that, by drawing up the regulations in consultation with members of the Committee, on which my hon. Friend the Member for Rhondda (Mr. Rogers) serves, we will be able to accommodate the concerns that have been expressed, which I accept. Let the House be clear about that.
An important point has been raised in amendments (a) and (b). Since the conversation that I had with the right hon. Member for Bridgwater yesterday, I have been looking for a way of facilitating matters. I believe that, by giving the assurance about how we will draw up the regulations, we might be able to meet the honestly expressed concerns of the Committee.
1251 I must ask the House to resist amendments (d) and (e). They would go beyond the powers that we give to commissioners at present. There is the opportunity for the individual to seek judicial review. In the circumstances, that is the appropriate course of action to take.
§ Mr. Tom King (Bridgwater)
I am grateful to the Secretary of State for his initial response to the amendments. I am pleased that he has done us the courtesy of coming and responding to them himself. I am encouraged by that. I would otherwise be enormously disappointed by the response that we have so far received from the Government. I am encouraged because I believe that the Secretary of State is capable of listening to an argument and that if, on reflection, he considers it valid, he has the standing and the independence to accept the amendments. I proceed on that optimistic basis.
The Secretary of State will allow me, I hope, to point out that this is a remarkable occasion. We are not a Select Committee, although I understand why he slipped into that terminology. That is a tendentious area into which I shall not venture on this occasion. The composition of our Committee is remarkable. We are all parliamentarians. We probably have a majority in the Chamber at present—I warn the Secretary of State of the situation that he faces. He will note that we have considered the issues at great length and on an all-party basis.
I apologise to the Secretary of State for the fact that originally there was no concept of including such a provision in his Bill. He is being asked to include a recommendation that we made to the Prime Minister in our last annual report. After some impatience that a recommendation accepted by the Prime Minister had failed to make further progress, it was included as an amendment to the Bill at a very late stage in the Lords.
It is unfortunate for the Secretary of State that not only are we all parliamentarians with the capacity to move amendments to his Bill and his Lords amendments, but we then report the outcome—his response—to the Prime Minister. We are anxious to preserve his prospects and to comment favourably in our report, which we are currently drafting.
The House has never debated these issues. It has never heard anything about these matters. They were never part of the Bill. The Government have responded to calls for a necessary and sensible improvement to the law. I make no secret of the fact that that arises out of one particular case of a gentleman who has since taken his grievance beyond any reasonable length, to the extent of betraying a considerable number of people who worked in the intelligence services. His claims are full of errors because it is some time since he was in the Secret Intelligence Service.
However, the fact remains that that gentleman had a grievance. As a Committee, we sought to address what we considered a genuine grievance. He was denied what he thought were legitimate rights that would imply to other people other forms of employment.
1252 I shall quote the paragraph that is the fons et origo of the proposal. It states:The Committee also believes that everything possible should be done to ensure that employees of the Agencies have the same rights as employees elsewhere. One of these is access to industrial tribunals. Under current procedures, industrial tribunals may hear cases involving national security, in camera and possibly with the Tribunal President sitting alone. However, if this is deemed not to be sufficient protection where vital national security matters may be involved, the Secretary of State can issue a certificate preventing an individual from having access to a tribunal.That is what happened in that particular case. The Committee report continued:The Tribunals established under the Security Service Act 1989 and the Intelligence Services Act 1994 were not set up to handle complaints involving staff of the Agencies, and have made clear their view that they are not adequately equipped to do so.Our recommendation was this:We believe that it ought to be possible to constitute a tribunal of members and staff qualified to serve a normal industrial tribunal, but of the necessary integrity and security clearance to handle such potentially sensitive material, and we so recommend.The Prime Minister accepted that recommendation and eventually, after much discussion, the Employment Relations Bill was identified as the vehicle to which the amendment should be attached. Last week, rather late in the day, without the Committee having been consulted about the final form, which might have avoided some of the problems facing us, the amendments were tabled in the House of Lords.
That was done in some rush. Lords amendment No. 323 provides that section 4(7) of the Employment Tribunals Act 1996 shall cease to have effect. I hesitate to point out to the Secretary of State that, as far as I can see, it should cease to have effect, because the Act does not exist. The reference could be to the Employment Rights Act 1996 or the Industrial Tribunals Act 1996, but I have not been able to identify the Employment Tribunals Act 1996 which the amendment claims will cease to have effect. The Vote Office searched high and low for such an Act, but the reference throughout the clauses seems to be to a non-existent Act.
I do not know what mechanism exists within the procedures of the House to deal with that. This is the last stage of the Bill, which now goes for Royal Assent, subject to any amendments that may go back to another place if the Lords amendments are disagreed to. We want amendments to be made.
The purpose of our exercise was to ensure that the rights enjoyed by a person in such a situation were as near to being equivalent to those enjoyed by any other employee involved in any other activity as was reasonably possible, having paid due regard to national security. After the amendments on which we were not consulted had been made, we were extremely concerned to find that a provision had been included that enabled a Minister of the Crown to make a regulation to direct a tribunal to exclude an applicant from all or part of his own employment tribunal proceedings. I doubt whether anything could more obviously negate the purpose of making the improvement that we have suggested and which we thought the Government had accepted. That is why we have tabled amendment (a) to Lords amendment No. 323, which applies to the applicant, and amendment (b), which applies to his representative.
1253 The Secretary of State rightly said that it was immediately acknowledged in the other place that that provision was unacceptable. Although I accept that Government amendment (c), which has been tabled today, fulfils the undertaking that was given in the other place, we believe that it does not entirely meet our concerns. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) may have something to add on that point.
§ Mr. Rogers
I am sure that the right hon. Gentleman accepts that the provision was obviously included by mistake. The Government, Labour Members and the party which I represent are all in favour of trade union rights, and the very idea of preventing a person and his representative from putting his case in front of a tribunal would be complete anathema to every Labour Member. A drafting mistake has obviously been made.
§ Mr. King
That is what we believe. Our inquiries suggest that the provision has been lifted straight from immigration tribunals legislation and transferred across, in toto and perhaps at some speed, to the Bill. I am grateful that, as soon as the matter was raised, it was recognised that that position could not be sustained, that a drafting error had been made and that further consideration was required. I hope that we can take the Government a step further so that they recognise that they should go all the way and accept our amendment.
In view of the Government's public statements and what I believe to be their genuine philosophy in respect of this matter, I should be amazed if they resisted our amendments. They deal with circumstances in which a Minister decides on national security grounds that he has to take quite exceptional steps that would normally be quite unacceptable, such as excluding somebody from part of his own industrial tribunal hearing without any review being undertaken by anybody thereafter.
The Secretary of State has said that such a person could have a judicial review—at his own expense, I imagine—but a chap who has lost his job and is complaining about unfair dismissal would find that he has been excluded from his own hearing or a major part of it. He would not hear any of the evidence against him and he would be able to challenge what he considers to be an unreasonable act only at his own expense. For those reasons, I said at the beginning of my remarks that I hope and believe that the right hon. Gentleman is the sort of Minister who will listen to arguments. I appreciate that this issue has been bounced on him and that it is not germane to the main purposes of the Bill, but he has to take responsibility for it.
The other problem—for which I do not apologise, because we did not create it—is that it is so late in the day that this is the last chance that anyone has to put things right. The Secretary of State may feel that he could be exposed to criticism, and the first person who might criticise him may be the Security Service Commissioner, Lord Justice Stuart-Smith. I am not sure whether it has been drawn to his attention that Lord Justice Stuart-Smith's most recent report said that something should be done about this matter. On the tribunal, he said:In my earlier reports I drew attention to the unsatisfactory position regarding the Tribunal and their statutory position in relation to complaints from employees of the agencies who seek 1254 redress in relation to those matters which, but for security considerations, might have been dealt with by an Industrial Tribunal. I am disappointed that it has taken so long to find an effective remedy to this important problem but I am advised that the DTI, having consulted Ministers, are now working on a detailed proposal.That was said by the very commissioner to whom we are seeking to entrust responsibility for review.
We consulted Lord Justice Stuart-Smith yesterday about the amendment that we have suggested. He has responded and I have been authorised by him to say that, if the amendment is acceptable to Parliament, he is content to undertake the proposed review in addition to his existing duties under the Security Service Act 1989 and the Intelligence Services Act 1994. He makes a further point, which was also made by the Secretary of State. He understands that the proposed amendment relates to all Crown servants. If so that is so, he would feel unable to express any view on whether he would be able to deal with the volume of work or whether he would be qualified to do so.
The point about Crown servants has already been well made by the right hon. Member for Berwick-upon-Tweed in an intervention. As currently drafted, the proposals on the tribunal apply to the Secret Intelligence Service, the Security Service and Government communications headquarters, Cheltenham, but this problem could arise in respect of someone who was sacked from a position of Crown employment. People who work for the joint intelligence staff, on the assessment side and in the Cabinet Office dealing with national security matters are affected by national security considerations. This is the only opportunity that we have to help them and the Bill is the only relevant legislation before the House.
If such people feel that they have been unfairly sacked—the Secretary of State would be the first to defend them in such a situation—they are entitled to their rights and they are entitled to go to a tribunal. If they find that they are excluded from their own hearing on grounds of national security, is not it right that there should be some review of the Minister's authority? That is all we are asking. I shall answer Lord Justice Stuart-Smith's question: we know of only one such case. Does the Secretary of State know of any more?
The case of which I am aware has provided the substance for the amendment that we have tabled. I do not know of any others. If a huge number of people are being excluded from their normal rights on grounds of national security, a commissioner had better look at this issue and we need a full and proper safeguard. The Committee certainly wants the procedure regulations, to which the Secretary of State referred, to cover such eventualities and the way in which such matters should be handled. As a free man, if I may use that expression, the Secretary of State would be the first to fight for that and the first to say that Parliament should put such safeguards in place. That is what Parliament should be doing. It should be protecting the rights of people in such situations.
It would be wrong to leave this significant power with no question of being reviewed. Lord Justice Stuart-Smith asks whether our proposal is meant to be some sort of remedy. We have not taken it that far, but have said that one should at least provide the protection that exists: the commissioners are charged with reviewing how Ministers—the Home Secretary and the Foreign Secretary, 1255 in the main—use the exceptional powers that override the normal law, which they are entitled to use to protect the national security. That protection is independent and distinguished. The commissioners review the exercise periodically and report to the Prime Minister on how those exceptional powers have been used.
Is not this proposal just such an exceptional power? If the amendments are rejected, the Secretary of State will leave Ministers with an exceptional power that will be subject to no review, except at the expense of the applicant by judicial review. In spelling that out, I do not seek to make a party political point. In a sense, I am embarrassed because I appreciate that this matter has been wished on the Minister—he did not ask to deal with it. However, the Intelligence and Security Committee debated it at considerable length and concluded that the objective was right and proper. We originally identified it some three years ago.
What we are debating tonight, late in this Session, and for the first time on the Floor of the House, are the arrangements to put a proper protection in place. I understand that it is a particularly difficult and awkward challenge for the Secretary of State, but I believe that he will able to rise to it and say that, in the current circumstances, he will not leave the matter unsettled and that the Government are prepared to put in place the necessary protections. The arguments that I have sought to make, and which other hon. Members may seek to make, are acceptable not just to me but to every member of my committee of all parties—senior Members of each party were represented on it—and to Lord Justice Stuart-Smith, so I fail to see why they should not be acceptable to the Secretary of State. The Committee would appreciate it if he could accept our proposals.
§ Mr. Chidgey
In his opening remarks, the Secretary of State said that he intended to consult on the amendments. Having heard the speech by the right hon. Member for Bridgwater (Mr. King), who made an eloquent and powerful case for the amendments, the Secretary of State has an opportunity to consult and reflect on the foot, so to speak.
May I ask the Secretary of State to reflect on one further point? Not long ago, before the last general election, there was a cri de coeur from the Labour party that those employed at GCHQ would have the right to rejoin a trade union. There is not a great deal of difference between denying the right to free association and denying the right to free representation in a criminal sense. It does not sit well for the Government, who rightly made such a campaign out of the right to free association in a security setting at GCHQ, not to recognise the rights of those individuals now to have free representation and presence at their own examination.
I hope that the Secretary of State can see the synergy between those two points of principle, and the way in which the Government will be regarded if they do not see that those points are compatible.
§ Mr. Beith
The Committee chairman described extremely comprehensively why we tabled the amendments. If there are deficiencies in the drafting of amendments (a), (b), (d) and (e), they are entirely my fault because I was given the job of drafting them. However, 1256 they are better drafted than the clause to which they were attached, which produced an unimaginable situation in which the object of this entire exercise—an employee of one of the agencies who has hitherto been denied an industrial tribunal when dismissed—would be refused admission to that very tribunal when it is granted.
The Committee, which has a fair amount of experience of security and intelligence matters, could not envisage circumstances in which it would be appropriate or necessary to exclude the applicant from every part of the proceedings. We scratched our heads, but could not think of any. We asked the agencies, and they could think of no circumstances either. Such a provision has not even been sought by the agencies in question; it was simply bad drafting in the first place.
The Minister has responded to that. When my noble Friend Lord Razzall moved an amendment in the other place, the Minister gave the undertaking that he is fulfilling in his amendment (c). Although that amendment is welcome because it goes 50 or 60 per cent. of the way towards what we want, much remains to be done. All that that amendment guarantees is that the applicant will be able to state his case before being thrown out. He will not be able to hear or challenge any of the evidence on which his dismissal is based, or even to know what that evidence is.
I can envisage circumstances in which it will be necessary for the applicant and his representative to be excluded from part of the proceedings. I am sure that other Committee members can envisage them, too. For example, an applicant might then gain access to further information, which he might subsequently misuse as a result of his grievance against the agency. A case might require the presentation of some evidence of that kind. However, excluding an applicant simply from making his case is such a restriction on his rights that there should be a very high threshold to be crossed before that power can be used. A strong protection should be built in, as well as a review of how the power has been used.
We tabled our original amendment because regulations could not have provided those protections so long as the statute made it clear that the Secretary of State was entitled to exclude the person from the entire proceedings. It was necessary to change the basic clause for the regulations to be manageable at all.
I think that we can make some progress on this point tonight. The regulations could build in thresholds and protections. I thank the Minister for his assurance that the Committee will be consulted on the detail of the regulations. The remainder of our argument—some 40 per cent.—could be met now if the regulations set a high threshold, which would have to be met before the power could be invoked. We all remain concerned, however, that the power is not capable of satisfactory review, other than by taking a case to court on judicial review at the applicant's expense. That is why we tabled the other two amendments.
The arguments that the Minister has made simply hold no water. He did not invent them—they have been provided for him. There is no flood of cases; there have hardly been any cases of this kind—none whatever in the category that he thinks represents an inconvenient addition to the total, which is people not in the agencies but in respect of whom a similar power might be used in the future. A commissioner review is appropriate because 1257 the applicant cannot know why the power has been used. The Minister rested his case on the argument that the commissioners review matters that are otherwise secret. The reasons for using the power are secret. The applicant cannot know the nature of the evidence that requires him to be thrown out of the tribunal.
Somebody else must look at the matter. It is not sufficient to leave it to the tribunal, which does not have the power to bring the applicant back in—that is in the hands of the Minister. Somebody must have the power to report to the public that the power is being abused, and the commissioner is ideal for that purpose. That discipline would largely ensure that the power was not abused. I therefore strongly support what the right hon. Member for Bridgwater (Mr. King) said and ask the Minister to think again, even at this late stage.
At the beginning of the Bill, there is a certificate of compliance with the European convention on human rights. After this clause was drafted and introduced in the other place, was it checked to establish whether the Bill still complies with the convention, given the restriction on the rights of the applicant that will result unless we carry some of the amendments?
§ Yvette Cooper (Pontefract and Castleford)
I shall be brief, as I had not intended to speak. I want to respond to my right hon. Friend the Secretary of State's objections to the amendments tabled on behalf of the Intelligence and Security Committee. He argues that there should be access to judicial review rather than to the commissioner, and that amendments (d) and (e) would significantly extend the powers of the commissioner.
Judicial review is not sufficient in the absence of the commissioner. Our argument is that all these cases should be reviewed by the commissioner, not only those in which the applicant has the confidence or the resources to take the case to judicial review. Given that the applicant will be excluded from the proceedings, he will be in a difficult position to know whether he has a case to take to judicial review, whereas the commissioner could examine all these matters without putting the applicant's resources at stake.
The second objection is that the amendments would significantly extend the powers of the commissioner. I do not see that as a problem. The only way in which they would extend the commissioner's powers would be in parallel with the extension of the Minister's powers under the Lords amendment, which gives the Minister the power to make a decision to exclude someone from the industrial tribunal in the first place. Under our amendments, the commissioner would be used in parallel with the additional powers given to the Minister on grounds of national security.
§ Mr. Byers
I am pleased that our approach on amendments (a) and (b) and our amendment (c) go 60 per cent. of the way towards meeting the concerns expressed by members of the Intelligence and Security Committee. I hope that, when we consult on the details of the regulation, we can get 100 per cent. satisfaction. That is almost impossible to achieve, but we shall try. We all want to achieve the principle that was articulated so well by the right hon. Member for Bridgwater (Mr. King). 1258 Even though we are dealing with unique circumstances, the individuals involved should, whenever possible, have the protection of the usual procedures that we give to other citizens, and we should try to secure that.
However, a balance needs to be struck between the rights of the individual and the need to protect national security. We are clawing our way through consideration of how to achieve that balance. As I have discovered in the past 24 hours, these are complex areas, and we should take a careful approach.
I should like to discuss the regulations with members of the Committee, and I hope that that will go some way towards satisfying their concerns in amendments (a) and (b). The right hon. Member for Berwick-upon-Tweed (Mr. Beith) had difficulty finding the relevant Act in relation to the amendments that have been tabled. The Industrial Tribunals Act 1996 had its name changed by the Employment Rights (Dispute Resolution) Act 1998. I am sure that he was fully aware of that, and of course I knew that all the time. I do not know why these difficulties are put in our way, but parliamentary counsel enjoy the little tricks that they play on us from time to time.
As to amendments (d) and (e), the key point is that I have not been able to meet the concerns expressed by members of the committee on both sides of the House. In the end, it will be a matter of judgment. My view is that we have a well-established procedure by way of judicial review to challenge a decision taken by a Minister of the Crown. It is now a fairly common occurrence to have a judicial review of decisions taken by Secretaries of State and by Ministers.
Legal aid is available for judicial review. I checked on that point yesterday, because I had a conversation with the right hon. Member for Bridgwater, and I was sympathetic to the point that if no finance is available, it will act as a deterrent to someone challenging a decision. Because of their unique nature, these may be exactly the circumstances in which the Legal Aid Board will look at a case sympathetically, so there may be some financial support.
The balancing judgment to make is between the remedies available by way of judicial review, and the remedies and powers that the commissioner will have. One of the weaknesses of amendments (d) and (e) is that, by relying on the commissioner, they do not give him the power to act effectively in these matters. The commissioner does not have a remedy at his disposal. He has no power to overrule the direction that may be given by the Secretary of State or another Minister. He cannot intervene or overturn the decision that is ultimately taken by the employment tribunal. It is a fiction of a solution to the problem. I believe that the real remedy is the judicial review. The individual who has a complaint and is concerned about the direction being used will be able to seek a judicial review, which is a well-established procedure.
§ Mr. Tom King
The Secretary of State bravely makes his case, but he should reflect on what he has just said, because it is an extraordinary argument. It is an argument against having commissioners in all these areas. The Intelligence Services Act 1994 states:The Commissioner shall make an annual report on the discharge of his functions to the Prime Minister and may at any time report to him on any matter relating to his discharge of those functions.1259 The Secretary of State has said that no remedy is available to the commissioner. We have argued that the Bill will leave the plaintiff with no remedy, except to go on his own to the courts. If he is reasonably well paid—as he may well be—and has a little capital, he will not get legal aid.
Mr. Deputy Speaker
Order. The right hon. Gentleman puts me at a disadvantage. I know that these are important matters, but he is making an intervention. It would help me if he would wind up.
§ Mr. King
I apologise, Mr. Deputy Speaker, but this is an exceptional situation. The Committee set up by the Prime Minister to advise on these matters is having to deal with an issue that has been incorporated in an inappropriate Bill on which we were not consulted. This measure has been introduced at the last minute. It was brought up in the other place, and this is the first time that it has been discussed in this House. I crave your indulgence, Mr. Deputy Speaker.
I think that the Secretary of State would accept from me that his argument will not wash. He is not prepared, in this legislation, to give people in the position that we have discussed a remedy. Our amendment would provide the most limited protection, but it would mean that, if he became Home Secretary or Foreign Secretary, before his officials put a proposal to him that someone should not be allowed to attend part of his own industrial tribunal hearing, they would know that his decision would be reviewed. They could not plead national security and total secrecy so that the matter could not be sustained.
If the Secretary of State were on the Opposition Benches, he would make a much better argument than I have, and he would murder the idea that the commissioner has no remedy. I beg him to reconsider, even at this late hour—that was not of our making. This is the last hour, because this legislation will soon become an Act. At the last gasp, the legislation will lack this vital ingredient. Our proposal would do the Government great credit.
§ 8 pm
§ Mr. Byers
I understand the power of the arguments that are being put. In the end, the House will have to make a judgment. I believe that the procedure that is available to challenge a direction by judicial review is the appropriate remedy in the circumstances.
I know that members of the Committee would like the commissioner to have the power to intervene directly, but I feel that they should reflect on the role that the commissioner will play. That role will not involve the reviewing of individual cases; the commissioner will not operate in the way in which employment tribunals operate. It will involve the reviewing, in a more strategic way, of the workings of specific sectors. That is the right role for the commissioner, and that is why the House has not given the commissioner the power to intervene directly.
This was never seen as being the appropriate role for a commissioner. The commissioner has a distinct role: he is to report to and, no doubt, to put pressure on Parliament by means of the avenues open to him. I believe that that role, and the commissioner's responsibilities, will be subject to confusion if he is told that he should be involved in individual cases that are before an employment tribunal.
§ Mr. Beith
I realise that the right hon. Gentleman's Department does not normally deal with these matters, 1260 but he must recognise that the commissioner's remit is to examine the way in which powers have been exercised in individual cases, and thereby to judge whether those powers have been abused. That relates directly to what the Committee seeks. It wants the commissioner to examine the way in which the Minister is using his power—not the substance of the issue before the tribunal—given that he possesses information that no one else has. That is what gives the function its value.
§ Mr. Byers
I think that I understand the position. The commissioner has not the power to intervene in relation to an individual's case, and he has no such power in relation to an employment tribunal. That is precisely the issue that is addressed in the amendment. The commissioner has the power to challenge decisions made by Ministers, and to review those decisions, but he has no such powers in relation to individuals before employment tribunals.
Opposition Members may disagree, but I believe that we have provided a suitable method for decisions to be made by Ministers of the Crown, by way of judicial review. It is well established, and I consider it wholly appropriate. I do not think that amendments (d) and (e), which would extend the commissioner's responsibility, will provide an effective remedy for the individual. I hear what the right hon. Member for Bridgwater says, but, in the circumstances that we are discussing, the individual will clearly want a way of remedying what he or she sees as a wrong.
§ Yvette Cooper
Amendments (d) and (e) would not prevent an individual from using the judicial review system as a remedy. Moreover, the proposed extension of the commissioner's powers would allow for an additional review of the Minister's decisions. That could take place in exactly the same way as the commissioner's review of other ministerial decisions on grounds of national security that infringe individual rights.
§ Mr. Byers
A range of opportunities can be provided, if that is what the House wants. My point is that a remedy is clearly available to an individual who feels aggrieved, in the form of a judicial review. I consider that to be an appropriate remedy, in that it provides the opportunities that the individual may seek. I feel that the opportunities offered by recourse to a commissioner are rather fictional in terms of the support that they can give the individual.
§ Mr. Tom King
I much appreciate the Secretary of State's courtesy in giving way again.
I fear that we are getting into a bit of a muddle. The right hon. Gentleman's concept of the commissioner's role does not conform to the way in which he will work: it is not a question of a chap having a right to go to the commissioner, as was suggested.
If the Committee that is appointed by the Prime Minister to report to him and advise him makes such recommendations, if the commissioner agrees that action is needed and is content to go along with it and if, as we understand to be the case, the agencies have no objection to the programme, why are the Government not willing to accept the amendments?
§ Mr. Byers
For the simple reason that we believe that the individual already has recourse to an appropriate 1261 remedy. I know that the Committee feels strongly, has made representations and has reported to the Prime Minister; no doubt it will continue to do so, under procedures established by the House. However, I consider the existing procedures to be appropriate, and I do not think that they need to be added to it in the way suggested by amendments (d) and (e). I ask the House to resist the amendments if they are put to a vote.
I hope that I have been able to reassure the House in relation to Lords amendment No. 323, and amendments (a) and (b). I ask the House to support amendment (c), which discharges the undertakings that we gave in the House of Lords. I am sorry that I cannot accommodate members of the Intelligence and Security Committee in regard to amendments (d) and (e), but I believe that existing procedures in relation to judicial review are appropriate, and I do not think that the individual would be helped by the additional powers that those amendments appear to confer. For those reasons, if they are put to a vote, I shall invite the House to oppose amendments (d) and (e).
Mr. Deputy Speaker
Before I put the Question, let me remind the House that amendments to Lords amendment No. 323 must be dealt with later. What we are now considering is Lords amendment No. 15.
§ Lords amendment agreed to.