Examination of witnesses (Questions 580
- 599)
TUESDAY 7 APRIL 1998
THE RT
HON JACK
STRAW, MP,
THE LORD
WILLIAMS OF
MOSTYN, QC
AND MR
LEE HUGHES
Mr Shepherd
580. I do not keep mentioning it, I mentioned
it once.
(Mr Straw) They use a simple harm test. I have
made the point about the consequences of the substantial harm
test in this area. Can I just make this point about the Lawrences.
The Lawrences for sure have a profound grievance, putting it at
its lightest, about the way the police behaved following the murder
of their son. They, therefore, had a complaint against the police.
They did in the end activate that complaint within the formal
complaints machinery and two documents have followed from that.
One has been one which I have made public and another, which is
the operational report of a man called Ayling who is the Assistant
Chief Constable of Kent from another force who conducted an inquiry,
has not been made public. The reason it has not been made public
at this stage is because there is the possibility of proceedings
against various named officers and it would prejudice them. I
have said that I have not been happy with the way that the police
complaints system operates. I have accepted in all relevant particulars
for these purposes the recommendations of the Home Affairs Select
Committee. I also think there ought to be greater openness in
the publication of certain PCA reports. There has to be for the
future, you cannot put the clock back. I set up the Lawrence Inquiry
which is under the Police Act and has got powers to call for persons,
papers and records.
581. One of the most powerful arguments
that is normally promoted, and was accepted I think certainly
by the Labour Party in opposition, is that the culture changes
when a society has freedom of information legislation. Parts of
the areas where conflict of civil rights of the citizen versus
those of the state come into conflict are these hard edged cases.
The Home Office seems to have grasped with such wide reaching
exemption law enforcement effectively——
(Mr Straw) Not the Home Office. I was not a member
of the Committee but it was I who argued for this. I am not going
to shelter behind my officials. I argued for this.
582. You are the Home Secretary, it is your
department.
(Mr Straw) Yes, of course.
583. As it is a traditional theme that comes
out of the Home Office, after all, this is consistent. We could
not have any reform of Security Services. We have gone through
the history of this. You and I have been long enough in Parliament
to have heard the arguments adduced. What we have seen is a very
gradual liberalisation, like an Ice Age coming to an end, it is
slow and difficult. We only get one bite at it. I listened to
your comments on the Security Services, the oversight arrangement,
I just would draw your attention to the remit of the Oversight
Committee, how limited it is, how it does not relate to the other
functions within it. I know them but we are not going to return
and look at those issues that were fiercely fought over. Public
interest questions were fiercely fought over. We do not have the
opportunity in Government. This piece of legislation, Freedom
of Information, will have to last a long while presumably. That
is why this Committee tries to test these propositions very seriously.
The blanket law enforcement is a worry but there are other areas
too where we look as if we are going backwards, such as the immigration
ones. Let me put it in a more structured way. What the proposition
is is that some of this White Paper involves removing some existing
rights introduced by the former Government, for example on immigration
information. The open government Code of Practice, introduced
by William Waldegrave in 1994, does apply to the law enforcement
functions of government departments, including the Immigration
Service. Initially, the Code excluded all information about individual
immigration cases. However, the second edition of the Code issued
in January 1997, removed this blanket restriction, introducing
a harm test exemption which now states: "Information relating
to immigration, nationality, consular and entry clearance cases
[is exempt]. However, information will be provided, though not
through access to personal records, where there is no risk that
disclosure would prejudice the effective administration of immigration
controls or other statutory provisions." The Cabinet Office
guidance on the revised exemption states: "This exemption
is not intended to restrict the provision of information from
personal records where there is no risk to the effective administration
or other statutory controls." This liberalisation of the
Code, which took place under the former Home Secretary, my colleague,
Mr Michael Howard, now permits access to information about the
law enforcement functions of the Immigration Service, so long
as disclosure does not prejudice immigration controls. Ironically,
this progress—made under a government, my Government, not
notably enthusiastic about FOI—is to be reversed by the
FOI Act which in this respect will be more restrictive than the
Code.
(Mr Straw) No.
584. You think I am factually wrong on that?
(Mr Straw) I do think you are factually wrong.
The Code of Practice specifically exempted information relating
to immigration, nationality, consular and entry clearance cases.
It did not, as you say, exempt information relating to the law
enforcement functions of IMD but it did exempt information which
would prejudice the effective management and operation of a public
service. For that reason information which would harm the operation
of immigration control was accepted. I think what this comes down
to is an issue basically of how you define law enforcement in
immigration control. I, as I have said, by coincidence yesterday
published these instructions and they are going to go on the Internet
by the way for those who are interested in such matters. These
are the operating manuals for immigration case workers, it is
what they work from. It lays down, as it were, how they should
enforce the law in respect of immigration case work. There has
never been such disclosure in the field of immigration law enforcement
as there has been to date. The reason, however, why I insisted
that we put in a reservation for law enforcement in the field
of immigration control was to preserve the integrity of immigration
control against the substantial and mounting abuse of the system.
Aside from those people who as individuals come into the country
saying that they are going to be here as visitors and will return
in six months, and we have all had these cases, who then straightforwardly
lied about that and want to stay for five years and invent an
asylum claim, aside from that we are now facing a situation where
criminal gangs are organising trafficking of immigrants into this
country. It is on a mounting scale. We see examples of this almost
daily. The Immigration Service is in the forefront, therefore,
of the fight against organised crime. In that situation we could
not possibly provide for general disclosure of what the Immigration
Service is doing. In other fields, as I said, I believe I have
gone the extra mile. Can I also just comment on the first point
you made which was the claim that the Home Office had opposed
all changes for openness every inch of the way. I am not here
to defend what my predecessors may or may not have done but I
would just like to point out that in so far as the Home Office
opposed changes in the past, they did so at the behest of their
Ministers. I think you will find that the principal resistance
to any kind of statutory regulation of the Security Service came
not from Home Office officials but from the former leader of the
Conservative Party, now Lady Thatcher.
585. I met with her on that very issue.
(Mr Straw) There
were Ministers all round Government who actually wanted to move.
586. She did not take a high view on this
matter, that it was not the business of Parliament, it was the
business of the Executive, which is a point at issue often in
these matters as opposed to the rights of Parliament.
(Mr Straw) I was sceptical about the establishment
of the Intelligence and Security Committee for the reasons which
I think are shared round this room, that it is not a Select Committee
and it meets in secret. I have to say, and this is a compliment
to this Committee as well as to the ISC, that it has interrogated
me as closely as you have done this morning.
587. It is the remit, in fact, it is the
most limited.
(Mr Straw) It is pretty wide in practice.
588. It may be in practice but on the statutory
basis it is not a wide remit. It does not have the right to review
cases that are being reviewed by others within it, although it
may informally set up things. One of the very first things that
one would look and say is "what are the complaints"
to see if there is a pattern of something going wrong or a particular
area. That is not within its remit because it cannot actually
cover and look at that. We did dispute this in the Commons and
in those days you were more sympathetic to the line that I am
adopting than you appear to be now but you have come into a state
of wisdom clearly as Home Secretary advised by the appropriate
officials.
(Mr Straw) I think nothing is known about my views
actually.
589. Oh, dear. Well, I assume that you supported
your front bench's position on these matters as a good, loyal
party man. The actual exemption put in the———
I hope I am not testing the patience of the Committee or yourself.
(Mr Straw) I have unending patience but I do have
to go, however, at 12.25.
590. You can see that I have got substantial
notes here.
(Mr Straw) I am here to answer any questions that
you have on data protection.
591. Just finally on the Data Protection
Bill. This is leaping over other subjects, I did want to talk
about the harm test. Under the Data Protection Bill the Government
has sought to take powers to, by order, exclude specified kinds
of data from the Act relating to law enforcement or tax collection
altogether. As you know you were defeated in the Lords on that
issue. The provision, which obviously may still be reintroduced,
would mean that people would lose an existing right of access
to such information. Under the present Data Protection Act, people
can see information held about themselves on computer subject
to exemptions for disclosures which would prejudice law enforcement
or tax collection. The new Bill repeated this exemption but also
proposed that the Secretary of State could exclude information
from access altogether for these purposes. The exclusion might
also remove various other data protection safeguards. As well
as being objectionable, I would argue, on substantive grounds,
the measure was also procedurally objectionable, involving a `Henry
VIII' provision, in which primary legislation could be amended
by secondary legislation. Lord Williams would have been intimately
involved in this. During the Bill's third reading in the Lords,
the Government admitted that only the Inland Revenue had sought
such a power. It was only the Inland Revenue. The police had not
requested it and the Data Protection Registrar had opposed it.
The Government did not concede that it was unnecessary but said
that it would consult to see whether any department other than
the Inland Revenue required the provision.
(Lord Williams of Mostyn) Yes. I think the position
in the debate was that there was a general sympathetic understanding
that you might need exemptions for the legitimate purposes and
defined purposes of the Revenue. I do not think the objection
was in principle but, as you said, it was to the format which
we had adopted because it did give the Secretary of State the
power to introduce it by Affirmative Procedure Order in some circumstances.
The argument really was we hope that we have got a decent workable
Bill, and if that is so it is going to have to run for ten or
20 years. In parenthesis, we had continuing discussions, as the
Home Secretary has said, right throughout many, many months with
everyone who had any conceivable interest. We listened to them
quite carefully, including, of course Mrs France, the Data Protection
Registrar, who I corresponded with and met on a number of occasions.
The Lords came to the conclusion that it was better not to do
it in this way and that it might be necessary to consider producing
the same result in different legislation. What we said we would
do is we would consult other departments to see whether or not
an exemption would be reasonably required for their proper purposes.
That consultation is still going on. I think the principle was
accepted by the Lords but they did not agree with the mechanism
that was being adopted for the reasons you implied.
592. The police did not seek this. This
is just a question that I want to ask. Some of the protections
that are accorded to police investigation, etc., are not protections
that the police themselves have sought.
(Mr Straw) I am sorry, are you asking me?
593. Or if you want Lord Williams to answer.
(Mr Straw) Which protections were you thinking
about?
594. I just gave some. Let us take the four
cases we discussed at the beginning of the meeting. Are the police
really seeking protection for 999 calls? Are they saying this
should be protected for instance?
(Lord Williams of Mostyn) That does not really
fall within the scope of the Data Protection Bill. I did note
all of your examples carefully: police arrangements about
crowd control, delays in 999, the excessive use of CS gas and
improper disclosure. All of those are covered by present regimes.
For instance, improper disclosure is an offence against the police
regulations which is a dismissable offence. If there is an excessive
use of CS gas then a complaint can be made to the Police Complaints
Authority or the local police authority and itself raise the question
with the chief officer of police. On the question of 999 calls,
any individual who feels aggrieved in a particular case can make
a complaint to the chief officer of police or the Police Complaints
Authority. The police arrangements about crowd control of course
can be the subject of complaint whether they are in the miner's
strike, as Mr Campbell indicated, or on a particular football
occasion.
595. I thought, and I am glad to know this,
you accepted the point that, for instance, on 999 calls the question
from a citizen was why was the phone call not responded to. That
information invariably in my own experience as a Member of Parliament
is not given other than in general terms: "We were busy.
We had other commitments". I represent the West Midlands.
I heard how chief inspectors and superintendents responsible for
policing specific areas will reply but I have one who simply will
not sign or write the letters to me personally. This covers Brownhills,
a very important part of my own constituency. I would like to
know what people were doing that was so important, not necessarily
the content of the operation but why it was that policemen were
not responding to calls and I am not getting responses. Would
freedom of information not change the culture where the police
just bat away questions of this nature?
(Lord Williams of Mostyn) I do not know the specific
example you refer to.
596. I appreciate that.
(Lord Williams of Mostyn) I must say I personally
would think that a chief officer of police who did not respond
appropriately to a Member of Parliament was derelict in his duty.
597. And who judges that?
(Mr Straw) May I suggest that you now have a new
Chief Constable in the West Midlands, Mr Ted Crewe——
598. I have met him.
(Mr Straw) He is very keen on reforming the West
Midlands Police Force. I suggest you take the matter up with him.
Hard cases make bad law.
Mr Tyrie
599. There are very few minutes left so
rather than open up a new area perhaps I can just clarify a few
very practical factual points which came out of the answers you
gave to Mr Ruffley on the question of the destruction of MI5 files.
Have you made up your mind when you will take the decision?
(Mr Straw) No. As I said in answer to the adjournment
debate called by Julian Lewis, I hope to do so before the summer
break.
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