Examination of witnesses (Questions 540
- 559)
TUESDAY 7 APRIL 1998
THE RT
HON JACK
STRAW, MP,
THE LORD
WILLIAMS OF
MOSTYN, QC
AND MR
LEE HUGHES
540. Could you consider this. Future historians
and journalists will have a right, will they not, under Freedom
of Information, to discover exactly what this MI5 were up to in
terms of surveillance; in terms of political figures. Historians
will have an interest in discovering what MI5 was saying about
you and Peter Mandelson. That is a serious point because I certainly
believe that you and Peter Mandelson will be significant figures
that historians will want to write about.
(Mr Straw) That is nice of you to say so. I will
send you my fiver afterwards!
541. In the light of that, Home Secretary,
how can you possibly justify even considering destroying files
held on senior politicians, provided that disclosure in the future
of those files will not impinge on the basic rules of national
security and public interest?
(Mr Straw) You asked me a question about a file
on me and then drew a general conclusion which I suggest, with
respect, was slightly unworthy. I will not be involved in any
decision about my file—I make that clear—because I
think that would be wrong and wholly improper. I do not think
you would argue with that. Plainly, one of the considerations
to be borne in mind in setting criteria for this destruction or
retention of files—the only criteria in many ways—is:
is this of historic importance? That can relate to the operation
concerned of the Security Service or to the individuals. To continue
the point, if the individuals concerned were people who later
in life achieved some prominence in public life, then I think
that there is an overwhelming case for the retention of those
files. I accept the point you are making. I am just a bit guarded
because we have not finally reached detailed conclusions about
this but I certainly accept that point. On the other hand, there
are quite a number of files. There is also an interest by members
of the public that if they as individuals or the operation concerned
is of no particular historic importance, the files ought to be
destroyed. That it is a matter of achieving a balance.
542. I am not for one minute suggesting
that.
(Mr Straw) It is a matter of achieving a balance
there.
Mr Ruffley: I am not
for one minute suggesting that you would be engaged in any way,
improper or otherwise. You are going through a review process,
when you are considering the options as to who makes the decision
to shred your file or Peter Mandelson's file or Harold Wilson's
file or Margaret Thatcher's file——
Mr Campbell: Or Arthur
Scargill's file.
Mr Ruffley
543. Or Arthur Scargill's file. You are
actually going through a review and consultation procedure, and
I understand that, but what options are you looking at as to who
makes that decision and when they make that decision?
(Mr Straw) One of the options I am looking at
is whether there should be a panel of historians to advise. I
think this is very important. I treat this issue very seriously
let me say. It is a very fine balance that has to be struck between
the rights of individuals on the files to privacy, in other words
to have their files destroyed, and the rights of public, Parliament,
to understand and appreciate the work of the service at particular
periods of its life and to get an idea of the scale of the operation
involved. These are two things which have to be balanced. I have
always, let me say, personally fallen on the side of retention
but I can see the argument for someone who is of no personal historical
interest wanting to just have their files destroyed.
544. So, final question on this, Home Secretary.
You can now confirm to this Committee that files on Peter Mandelson,
which allegedly show that he engaged in activity for left-wing
or communist groups in his youth, which I think in the future
may be of interest to historians, will not be shredded and will
not be disposed of under your tenure of Home Secretary?
(Mr Straw) No. The only file I can confirm that
exists on an individual is the one that exists on me and I happened
to be shown it—physically shown it—when I was positively
vetted in 1974.
Mr Tyrie
545. You were shown several inches there,
I was quite impressed, Home Secretary.
(Mr Straw) I was shown about that much. That is
within my knowledge. So far as anybody else is concerned the long
standing policy of successive Ministers is neither to confirm
nor to deny the existence of any file on any particular individual
and that is the approach which I have taken in relation to all
the individuals who have been named around this table, apart from
myself. I have made clear the position so far as figures of historical
importance are concerned, that in my view the balance overwhelmingly
would be in favour of the retention of any such file rather than
its destruction.
Mr Ruffley
546. Would such a panel be given a list
of every single file on every single individual?
(Mr Straw) One of the issues is how the panel
would work, whether it would lay down general requirements, policies,
which were then followed by those who have the unenviable task
of weeding files, how far they were involved in the day-to-day
activities there.
547. Two unrelated but very quick questions.
First of all, you talked about the immigration and nationality
division and the disclosure in the new regime that you have ushered
in. Under the current regime or under the regime under FOI would
Mohammed al Fayed be able to get access to the reasons for denial
to citizenship?
(Mr Straw) I do not think under the current regime
he would have been able to get access to the reasons for any denial
of citizenship, indeed had he been able to he would not have had
to fight his legal action. If you recall, there was a Court of
Appeal decision in his favour saying that the reasons for the
refusal of his citizenship application ought to be made public
or ought to be made available to him. I was faced with a decision
as to whether or not to appeal that case to the House of Lords,
indeed I think an appeal was actually in progress—in fact
it certainly was, so an appeal had been entered. Although my judgment,
and that of far better lawyers than me, was that the law was on
our side, because the 1971 Act makes very clear this is wholly
within the discretion of the Secretary of State, I decided as
a matter of policy we should give reasons for refusing applications
for British citizenship save where the reasons relate to national
security, but even where they relate to national security we will
say "we are refusing this on the grounds of national security",
we will not say it is just a refusal.
548. But under the FOI Bill, under the future
Act, do you envisage Mr al Fayed, or people like him, anyone who
has had a citizenship application turned down, will be able to
discover the reasons?
(Mr Straw) They will be able to discover the reasons
anyway under the decision which I made in an announcement on 22nd
December last year. So in a sense the FOI Bill will be irrelevant
to this because it is already going to happen.
549. Third and final question, if I may,
Mr Chairman. There are going to be cataclysmic constitutional
changes in relation to the reform of the Upper House and I think
that does give grave concern to a lot of us, not necessarily the
policy change but the manner in which this change will be effected:
adequate consultation, whether or not there is going to be consensus
across the parties on massive constitutional change like reform
of the Upper House. Under the FOI legislation as it is anticipated,
can you confirm that all the policy advice given to Ministers
and all the discussions Ministers have within Whitehall on future
change to the House of Lords will be disclosable under the FOI
regime of this gamut?
(Mr Straw) I congratulate Mr Ruffley in getting
a question about the reform of the House of Lords into the conduct
of this Committee.
550. It is legitimate I think.
(Mr Straw) Self-evidently. I just admire your
ingenuity. Whether policy considerations passing between Ministers
and officials on this or any matter are disclosable will depend
on the ultimate regime. You will be aware that the one area where
there is a simple harm test is in this field and I consider that
is very important.
551. A final, final question. Your Under-Secretary,
who is on your left-hand side, does have responsibility for constitutional
affairs. I wonder, if you are not prepared to say yes or no to
my question, whether he might be able to answer. Is policy advice
going to be disclosed? Yes or no?
(Mr Straw) With luck you will find that he says
that he agrees with me.
552. Is it a yes or is it a no? Is policy
advice going to be disclosable under the new regime that this
Government is so keen to introduce?
(Mr Straw) These questions are not yes or no questions,
it depends on the particular case. There is a new regime being
laid down under the Freedom of Information White Paper which provides
first of all for a definition of what is policy advice to Ministers
and then proposes in respect of that that there should be a simple
harm test. It is palpable that there is discussion taking place
at the moment about this as well as other manifesto commitments.
It will be a matter for individuals to make application under
this regime to see whether or not they pass the test.
(Lord Williams of Mostyn) Mr Ruffley, I do agree
with the Home Secretary.
Mr Campbell: We thought
that.
Mr Bradley: Can we
just return to the issue of the Security Services. I must admit
I had never realised that MI5 was a major contributor to Who's
Who or had become the national biographical service. I am
concerned, probably like Mr Ruffley, that there may be a very
slim file on myself or perhaps there will not be one at all and
that——
Mr Ruffley: Even worse.
Mr Bradley
553. Precisely. Everybody recognises the
need for secrecy with the Security Service because there would
not after all be a Security Service without that secrecy, but
I think there is a general concern that some of the information
they hold has no particular operational purpose or it may have
had a purpose originally but that purpose is now spent, as I think
Mr Campbell was suggesting. Do we not deserve some form of protection
against fishing expeditions or against the retention of information
about ourselves that never was or has ceased to be legitimate?
(Mr Straw) Yes is the answer to that question.
First of all, and this is not by any means a complete answer to
your question, I do not pretend that it is, within the Security
Service, as the Director General has already made clear, there
is a system for categorising files. In fact they use a traffic
lights analogy: red, amber and green. Red is for files which have
no operational purpose any more and access to those is very strictly
controlled. Amber is where they are in limbo. Green is where they
are active files. What is the case is that when the Cold War was
on the Security Services had a very different balance of tasks
than they do now. They were tasked by Labour Home Secretaries
and Prime Ministers as much as they were tasked by Conservative
Prime Ministers and Home Secretaries in this field. But because
of the great anxiety in the early and mid 1940s about penetration
by the Soviet Bloc into our Security Services a great deal of
effort was put into targeting subversion. Quite a number of the
files that are dormant relate to a period which effectively is
now over so far as the Security Service is concerned. The other
thing was until 1989 there was no statutory base for the Security
Service, its base was a secret charter, its legal authority came
through the exercise of Royal Prerogative, thus since 1989——
Mr Shepherd
554. Royal Prerogative does not override
the statute of the land, that is why we introduced——
(Mr Straw) By definition, Mr Shepherd.
555. It did not have a legal basis.
(Mr Straw) It only exists as long as there is
no statutory override to it.
556. There were overrides to it and that
is why it had to be brought within the law.
(Mr Straw) I think it was quite inappropriate
that there was no statutory regulation in relation to the Security
Service. But 1989 was a rather significant date because it was
also the date when the Soviet Bloc collapsed as well. You have
now got a Security Service which has clear statutory authority
and also clear statutory constraints on its activities. In addition
since 1994 we have had the establishment of the Intelligence and
Security Committee composed of Parliamentarians, albeit appointed
by the Prime Minister, but I have seen the work of that Committee,
I have been examined by it, and I believe that it does its work
very well. There are the other arrangements. There is the work
of the Interception Commissioner and the work of the Security
Service Commissioner. It is understandable that people may be
sceptical about these arrangements because the systems for holding
the Security Service to account are themselves either confidential
or secret. I can say, having seen them operate, that they are
very thorough. The Interception Commissioner, Lord Nolan, is extremely
thorough in monitoring the exercise of powers in the Interception
of Communications Act. It is also true that the Security Service
Commissioner who deals with complaints against the Security Service,
Lord Justice Stuart-Smith, is also thorough.
Mr Bradley
557. Is there a definable risk that the
Security Service is required to establish before seeking information
or servicing a file on an individual?
(Mr Straw) Yes, there is. The demand on a service
like that is always going to exceed its resources by a considerable
extent. There has to be a clear system within the Service and
within the overall policy set by Ministers for the use of its
resource.
558. But if that definable risk ceases to
be a definable risk, and Mr Campbell mentioned one example, there
must be hundreds if not thousands of others, particularly since
1989 and the change of global politics, if that definable risk
no longer exists surely that is a strong argument for disposing
of the file?
(Mr Straw) There is certainly a strong argument
for putting the files into the red category, making them no longer
accessible. There is a separate issue about whether you dispose
of them or you put them into storage and later, when it is safe
to do so, make them publicly available.
559. But is that saying, for example, that
once somebody has been considered to be a risk, irrespective of
whether he or she actually was a risk, once they have been considered
to be a risk under one government, under one regime, under one
set of criteria, in the context of one global context, whether
amber, green or red, they will always be considered to be a risk?
(Mr Straw) No, no.
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