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Mr. Shepherd: I am very grateful to the Minister for his detailed reply. There clearly is a conflict in the understanding of what is happening here. I am not the arbitrator on this, but my instinct is that when the former registrar, who will be the commissioner, has an anxiety about a matter, that must be weighed most carefully. I hope that, during the Bill's passage through this place and another place, the Minister will reflect very carefully on other representations that will undoubtedly be made to him.
In the spirit and light of the observations that he and I have made, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Shepherd:
I beg to move amendment No. 92, in page 12, line 1, leave out clause 21.
Mr. Deputy Speaker:
With this it will be convenient to discuss the following amendments: No. 93, in clause 22, page 12, line 33, leave out from "if" to end of line 34 and insert--
No. 94, in page 12, leave out lines 36 and 37 and insert--
No. 95, in page 12, line 38, leave out subsections (3) and (4).
No. 96, in page 13, line 1, leave out clause 23.
No. 97, in clause 82, page 39, line 23, leave out from beginning to "or" in line 24.
Mr. Shepherd:
Everyone who has read the Bill will notice that one of its interesting features, as listed in the schedules, is the fact that the security services are not included. The purpose of amendment No. 92 is to delete clause 21, so that it would not be possible to withhold information merely because it related to, or had indirectly come from, one of the listed bodies.
Amendment No. 97 would bring the security and intelligence services within the Bill's scope by amending the definition of "government department" in clause 82.
Amendments Nos. 93 to 96 would revise the Bill's exemption for national security. Instead of a ministerial certificate, information would be withheld only where disclosure would, or would be likely to, prejudice national security.
I know that the House always treats with the greatest deference the whole concept of those big words "national security" and "the security services", but in truth this is meant to be a freedom of information Bill, and it should reach in and touch every area of our national life if it is to have meaning.
I know of no one in the House who dissents from the proposition that we have national security needs, and that they are taken very seriously. However, one has only to read the Security Service Act 1996 and look at the remit of the security services to see that it is now vast and comprehensive, moving into areas that we would not readily and easily associate with the general concept of the security of the nation. They have economic functions. They work in Departments in a way that means that information crosses the desks of Departments of state that are listed in the Bill.
I am mindful of the fact that others have a view on this issue. For example, a recent book reports:
I do not want to make a meal of this matter. I know that the House wants to get to the nitty-gritty of what we understand by freedom of information legislation. However, in earlier discussions in the House, we heard an assertion about where we stand in relation to the great organisations of the state. The security services, their remit and the legislation covering them enabled them, on a certificate, to act outside the call of the courts in many instances. Officers of the security services were even totally excluded from being able to admit that they were once officers, and absolute offences were attached to the nature of the service itself and to its personnel.
About 10 or 12 years ago, some of us judged that that was offensive and that it struck at the principle that the security services should be a valued and important part of the apparatus of securing the well-being of our country and our citizens.
The amendments say that the security services have a series of responsibilities. They include housekeeping and simple functions relating to the costs of buildings. The Home Secretary, no less, told us that he thought that information on the cost of the headquarters of MI5 and MI6 should be available to the House. The Chairman of the Public Accounts Committee told us how difficult it had been for him, his very distinguished predecessor, and the Chairman of the oversight Committee to act together to bring such information into the public domain.
Does such information cause a threat or any damage or prejudice? That is the question that I want to be able to ask. However, under the provisions of clauses 21 and 22, we are not able even to ask such a question. There is a total exemption for such information.
I do not want to dramatise the role of the security services. Much of their work is mundane, but it touches on social security and the economic interests of the country, among other things. That goes to the heart of what many of us believe public debate should involve. The amendments would provide the lowest possible harm test threshold. Would making such information available cause harm, or "prejudice", to use the Government's word? It is a terribly weak test.
I have been a Member of the House for some years and I see others who were here when even to acknowledge that we had security services would cause grim faces and the grinding of teeth. Ministers would regularly say from the Dispatch Box that they did not comment on such matters.
The move to put the security services on a statutory basis was forced by judges who said that the services were effectively operating outside the law. They brought them within our cognisance. Today, the security services advertise for recruits and the heads of the services conduct interviews and public lectures. The exemption in the Bill belongs to the past. It seeks an absolute exemption for everything no matter how "small" or "trivial", words that appear in the Security Service Act 1989. There is no de minimis provision governing a security officer reporting something.
When information crosses a desk, the commissioner should be able to assess whether it involves prejudice. If the Government do not like the response, they have the route under the Bill--we have not discussed new clause 6 yet--of appeal to a tribunal and, as they keep telling us, of judicial review.
There is merit in my modest proposal. However, the words "national security" have such a heavy import for the House. Over many years, we have been greatly misled and deceived as to whether an issue was of great national interest or security. The old barriers are coming down and many members of the services did not want to be perceived in the way they were. It simply enabled any rumour or suspicion to be made up about them.
To defend ourselves, we should apply a weak test to matters of prejudice, even though everything can be construed as causing prejudice. Information, such as costs, should not be exempt, and there will be a proper system of appeal by the Minister to a tribunal. I therefore suggest that the amendments are of no small merit. I would be grateful if the Government reflected seriously on them. The Home Secretary made much of this exemption, and he could not have been sterner. He said no to a prejudice test for social security matters, and for police matters--until we had a report, Macpherson's, that actually suggested a high prejudice or harm test.
Amendments made: No. 55, in page 11, line 15, leave out "members of the public" and insert "the applicant".
No. 56, in page 11, line 18, leave out "members of the public" and insert "the applicant".
No. 57, in page 11, line 20, leave out "members of the public" and insert "the applicant".
No. 58, in page 11, line 22, leave out from "to" to "whether" in line 24 and insert--
'communicate (otherwise than by making the information available for inspection) to members of the public on request'.
No. 59, in page 11, line 27, leave out "members of the public" and insert "the applicant".--[Mr. Lock.]
'its disclosure would, or would be likely to, prejudice national security'.
'compliance with section 1(1)(a) would, or would be likely to, prejudice national security'.
The police complain that giving MI6 a greater policing role places areas such as drugs trafficking off limits to democratic accountability. The Police Foundation's Barrie Irving has argued that such policies are "short-sighted". MI6 contends that "it needs to operate in secret, but once you change the role to criminal justice you blur the distinction between state security and criminal justice. It seems unconstitutional to conduct policing in this way."
5 Apr 2000 : Column 1055
8.30 pm
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