Examination of witnesses (Questions 560
- 579)
TUESDAY 7 APRIL 1998
THE RT
HON JACK
STRAW, MP,
THE LORD
WILLIAMS OF
MOSTYN, QC
AND MR
LEE HUGHES
560. Then why not dispose of the file? What
is the point of retaining the file?
(Mr Straw) I have been round this track. There
are many people who have strong civil liberties who think it would
be wrong to dispose of the file and that ultimately the file ought
to be made available.
Mr Shepherd
561. I do.
(Mr Straw) If the purpose of history is to tell
the truth and to make things better then I have to say I am on
the side of making this publicly available once it is safe to
do so.
Mr Bradley
562. I find it curious that information
gathered for one purpose, and we have a Data Protection Act which
seeks to control these issues, information contained for one reason,
namely that the person against whom the information is gathered
may be a security risk, is put to another purpose altogether which
is to satisfy the interests of academics and historians and journalists.
(Mr Straw) I think that is seeing history in a
rather narrow context. I do not think the study of history is
to satisfy academics and historians, I see the study of history
to ensure that nations and societies have memories.
563. I am not suggesting that biographers
and historians do not have a legitimate purpose.
(Mr Straw) They have a crucial role to play in
any society.
564. Absolutely. I am just questioning whether
we should set our Security Services to work gathering information
on individuals content in the knowledge that even if there was
no operational purpose to their investigations it might suit the
work of historians in decades to come.
(Mr Straw) Just a second. This is a completely
different example but it makes the point. We are now discovering
things about the complicity of the Swiss Government during the
war which can only be discovered through the retention of records.
You need to have records preserved and available in order to hold
institutions and societies to account.
565. This is a difficult area. I am not
saying I am entirely out of sympathy with what you are saying
but it does mean, therefore, that in the decision to open a file
it is all the more important that the scrutiny and definability
of the risk is established. What you are suggesting is that once
a file has been opened a whole range of other considerations begin
to impinge, not least the retention of the file for other purposes,
that mean that once that file is opened it will always be open.
(Mr Straw) I refer back, Mr Chairman, to the answer
I gave to Mr Ruffley. There are bound to be some files where there
is no historical interest in them and the argument in favour of
the privacy of the individual subject of that file outweighs historical
interest in which case you destroy it. I think I have made my
case in favour of the study of history.
566. Two questions to finish off. If there
is not a right to know for individuals as to the contents of their
file, is there a right to know whether there is a file on them?
(Mr Straw) No, there cannot be in my view. If
there were then people could go fishing and they could discover
the nature of operations by whether a file existed. It is exactly
the same argument as to whether people have the right to know
whether their telephone is being tapped. I do not think there
is anybody who would seriously argue that individuals should have
a right to know whether their telephone is intercepted or not.
Chairman
567. But let us say you suspected it and
it affected your career. I am thinking of the notorious example
in the past of the BBC and the christmas tree ratings, that people
might be vetoed from having a job in the BBC because there was
a file on them relating to activities which they had undertaken
when they were in the National Union of Students and so on, which
is presumably the reason why there is a file on you and on Peter
Mandelson and so on. If you go into politics these things do not
matter but if you go into administration or certain areas like
the BBC they do matter to your career or recruitment chances.
Let us say you suspected that the reason that you had been vetoed
or blocked was because of a file, there is a case to say maybe
via a third party, a high court judge, Lord Nolan, or whoever
it might be to say whether or not there is a file.
(Mr Straw) I accept that via a high court judge
is exactly the situation we have. Of course there is a case for
ensuring that the rules are being properly applied and that people
are not prejudiced gratuitously by the existence of information
held by the Security Service. That is the purpose of the Security
Service Tribunal which is indeed chaired by a senior judge of
the Court of Appeal, Lord Justice Stuart-Smith. That is the whole
purpose. The problem, of course, is that Tribunal has to operate
in secrecy because otherwise it would be disclosing whether or
not files were held on people, just as if people have a complaint
if they feel their telephone is being intercepted unfairly or
unreasonably they can make a complaint to Lord Nolan, before the
Law Lord and to him as a Commissioner, but, again, he cannot disclose
whether or not a particular person's telephone has been the subject
of intercept because otherwise every spy and criminal would be
making application to Lord Nolan to find out whether or not their
telephone was being intercepted and would wreck the whole interception
effort.
Mr Bradley: Lord Nolan
could then say "I am sorry, but you have got a record as
long as my arm" or "there are grounds to suspect that
you are involved in criminal activity, that is why your phones
may or may not be tapped". For an individual like myself,
who has had a blameless past as you very well know, certainly
if you have studied the file———
Chairman: The non-existent
file.
Mr Bradley
568. The non-existent file, which I find
very disappointing. They may have a legitimate concern to know
whether he or she is the subject of some form of surveillance
and indeed whether that interest by the Security Service has impinged
on his or her career or other interests.
(Mr Straw) I understand people's concerns and
in some cases—not yours -their obsessive desire to know
whether or not they have been the subject of Security Service
surveillance. I am in no doubt at all that the interests of the
public generally require that service has to operate in secrecy
and above all require its staple in the information remains secret.
569. Just a last point. I do not want to
know whether or not there is a file on me because I think I would
be disappointed whichever way the answer goes. Can you tell us
how many citizens of the United Kingdom may be subject to file?
(Mr Straw) That is also something which we are
looking at. It is actually quite a difficult issue because there
may be more files than there are people, the people covered by
the files. I do not want to give false information to Parliament.
As part of this examination I am looking at ensuring that there
is accurate information provided.
Mr Shepherd
570. I do not particularly want to follow
down the subject of Security Services and the Interception of
Communications Act, those are battles that we have fought and
will continue to fight, I have no doubt, over years to come. The
legitimate point, as I see it, about files is where they are not
directly relevant to an ongoing investigation citizens do have
a right to be able to know if the contents are mistaken, genuinely
mistaken, possibly wrong or even malign. It is this cross-leakage
which arose in the BBC. In fact to get a job in the 1970s, etc.,
there was an officer of the intelligence services who vetted no
less applicants within our national broadcasting service. It left
a residue of anxiety and concern. It was not my intention to pursue
this very interesting subject. Mr Ruffley specifically asked whether
decisions on citizenship cases would be available under FOI legislation.
That was the specific question. You said that the Bill will be
irrelevant under a policy decision made by you last December.
I think that was the substance of your answer.
(Mr Straw) Yes.
571. To some of us that is the critical
distinction in the approach to this. One is a discretionary matter
for the Home Secretary.
(Mr Straw) I am not certain whether it would be
available under FOI. I certainly accept that it should be but
I am doing it anyway and that is why I have not really applied
myself to the matter.
572. As long as we are clear that the substance
is that there should be a legislative route under which citizens
have rights rather than the discretion of individual Secretaries
of State who may change and therefore the policy may change.
(Mr Straw) I have always taken the view—I
took it in opposition and it has been consistent in government—that
where Ministers are making as important decisions as this, whether
or not to give people citizenship, that individual has a right
to know the reasons. One of the points I raised in the office
was that the practice anyway is anomalous because if someone is
refused entry clearance or refused the right to switch from one
category of immigration control to another, they are told the
reasons and they always have been. They have to be told because
they have rights of appeal, but they are not told in respect of
citizenship.
573. I just want to finish this because
it will dispose of it then. Therefore, can we have your undertaking
that you will ensure if you are not certain that it is in the
existing White Paper legislation?
(Mr Straw) I am told by a higher authority on
my right that it will become part of it.
574. It disposes of the matter to the satisfaction
of everyone that it is going to be under it. For the swiftness
of getting through this I just want to put some propositions to
you that perhaps you will comment on. Some of them have been touched
on. It will go to matters like the police and Immigration Service
under FOI. I put the statement that the White Paper proposes that
the law enforcement functions of bodies such as the Police, Immigration
Service, Department of Society Security and other (unspecified)
bodies should be excluded from the scope of the FOI Act. We are
in a difficulty. I think all of us around this table, certainly
in this room, applaud the White paper and the generality of its
intentions and the liberality of those, certainly in the history
of this issue in this country. We were concerned about these exclusions
and the consequence of the exclusions and what we think this means,
that no information about these functions will be available under
the Act under any circumstances, even if disclosure would cause
no harm at all. This contravenes the basic premise of the White
Paper that all information should be available unless disclosure
can be shown to be harmful. We looked at some of the functions
and under the proposals it would not be possible to ask for information
on matters of public concern, which could be disclosed without
undermining law enforcement. I gave four instances: the inadequacy
of police arrangements outside a football ground, following injuries
in the crowd; why police had failed to respond promptly to a 999
call; the excessive use of CS gas in inappropriate circumstances;
and an improper disclosure of confidential information by the
police, for example a spent conviction to an employer. You gave
a series of answers to that but I am not sure you actually addressed
the subject of it. Why should this information that does not impede
in the investigation of crime and the protection of the generality
of citizens, which we accept should be excluded, not be excluded?
(Mr Straw) It is an issue of what regime would
apply. An awful lot of information which would be excluded under
the FOI will in any event be disclosed because it will be the
subject of criminal proceedings and it will be disclosed under
the Criminal Investigations and Proceedings Act 1996. It is made
available but it is made available through a different route.
It comes back to this issue of not wishing to prejudice proceedings.
What we said at paragraph 2.21 was that "the FOI should not
undermine an investigation, prosecution or prevention of crime
or the bringing of civil or criminal proceedings by public bodies"
and then it goes on to say "because of this the Act will
exclude information relating to the investigation and prosecution
functions of police, prosecutors and other bodies carrying out
law enforcement work, such as the Department of Social Security
or the Immigration Service. The Act will also exclude information
relating to the commencement or conduct of civil proceedings".
Mr Shepherd, I go back to a point I made earlier. We felt, we
judged, that we needed a complete exclusion in this area because
the substantial harm test was going to be very difficult to meet.
If you have a simple harm test then maybe other considerations
apply but that is the view we took and I think it is the right
one.
575. It is the exclusion function. Where
there is a harm test it describes it as a three-part test "that
decisions (a) should not be perverse (b) should be consistent
with other legislation either requiring or prohibiting disclosure
and (c) should be in line with the Act's purpose of promoting
accountability." We do not know what the legislation is going
to state clearly and that is why we are trying to elicit where
the intent goes in this. The second point would be that it means
that information will remain secret even where there is an overriding
public interest in disclosure, for example——
(Mr Straw) Who is saying all that?
576. This is what I am putting to you. This
is a proposition. For example, because of serious misconduct.
Although the Act contains a form of public interest test, which
will permit exempt information to be disclosed in certain circumstances,
the premise nature of this test is not clear from the White Paper.
I have said what the test is. However, Lord Irvine's evidence
to the Select Committee on 3 February suggests that it will permit
exempt information to be disclosed where there has been wrongdoing.
However serious the wrongdoing, the public interest test cannot
apply to information outside the scope of the Act altogether.
This is a real problem, is it not? I just give an incident. The
Metropolitan Police Commissioner acknowledged in evidence to the
Home Affairs Committee in December 1997 that a minority of his
officers were, in his words, "corrupt, dishonest, unethical".
Even such conduct will not provide grounds for disclosure under
the current proposals.
(Mr Straw) It would certainly not be in the public
interest to have information about their misconduct and the investigations
into their misconduct generally available. What we are dealing
with here is not rights under the Data Protection Act, which are
rights of individuals, but general rights for any member of the
public to gain access to this information. You mentioned Sir Paul
Condon's evidence to the Home Affairs Select Committee. This enables
me to repeat my point that of course I am in favour of there being
openness about corruption in the police service but it has to
be within a framework which ensures that the wrongdoers are brought
to book, both in the courts and within the police discipline framework.
That is why, in my judgment, the appropriate framework for bringing
this information ultimately to the public attention has to be
within a police complaints discipline procedure and then within
the framework of the criminal proceedings. The Home Affairs Select
Committee examined this matter in very great detail. I was the
subject, I have to say, Mr Chairman, of plaudits from both sides
of the House for the fact that within two months of the publication
of this report I had gone back to the House to make an oral statement
accepting virtually every one of the recommendations of the Home
Affairs Select Committee to strengthen the police discipline and
complaints procedure. That seems to me to be the way to do it.
There is also this issue about the point at which Police Complaints
Authority reports ought to be disclosed. There needs to be an
amendment, I think to Section 97 of the Police and Criminal Evidence
Act, and I am considering that in the framework of this Act so
there is more information available. It has to be within the context
of that regime.
Mr Shepherd: I am
genuinely concerned about that, thinking about the Lawrence case.
I know that you personally by your own initiative have advanced
this. I think that receives the goodwill and the good judgment
of a very wide section of our community.
Mr Campbell: Hear!
Hear!
Mr Shepherd
577. The incident still relates to the Lawrences
in a case where they were unable to secure information about the
nature of the policing that had taken place. Other regimes, freedom
of information regimes—and I know you are very cautious
about them and that is rightly so, but we will take those that
fall within a parliamentary tradition such as Canada, Australia,
New Zealand—are more open about it. In this White Paper
it seems that of the Home Office responsibilities, which are grave
and cover national security, it is the most negative aspect of
this paper to the most severe extent. That is what I am testing
you on.
(Mr Straw) That is because of the nature of the
Home Office's business.
578. I just said that. We understand that.
(Mr Straw) It is a hard school. A senior and———
Mr Campbell
579. It is the same in Australia and New
Zealand.
(Mr Straw) We will come to that in a moment, Mr
Campbell. A very seasoned and senior official who has worked in
a number of government departments said to me that the Home Office
was the only one where there were serious secrets, and there are,
it is to do with the nature of the business. I am afraid to say
you plumb the depths of human misbehaviour, people do terrible
things to each other and the Home Office is, as it were, at the
centre of arrangements set up by society to try and moderate that
behaviour in all sorts of ways. Australia and New Zealand you
keep mentioning and I have happily been passed a note to say—
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