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Mr. Fisher: I had not intended to speak, but as I listened to the hon. Member for Aldridge-Brownhills (Mr. Shepherd) make his case, it occurred to me that, so often over the past 20 years, his has been the sole voice of sanity on these issues, and his was a lone and courageous voice attacking the Conservative Government and the Official Secrets Act that they passed. I do not want to detain the House, and I am sure that he would have answered the case on its merits, but I did not want my hon. Friend the Minister to think that the hon. Gentleman was again speaking from the isolated position of an obsessive. The fact that the hon. Gentleman has pursued these matters with such consistency and determination over the years is not the result of obsession; his is an entirely proper interest and it is to the discredit of other Members of Parliament that they do not often join him in his campaigns.
The hon. Gentleman's point about the degree of protection afforded by the provisions being out of tune with the times and the rest of the Bill is correct. There was a time when the security services were not mentioned at all. Ministers would refer to them as "the friends", because they could not be named--they were the shades
who could not be looked at directly and who were but shadowy figures in government. Fortunately, things have changed over the past 10 years. We now know the names of the heads of MI5 and MI6; they give press conferences and they are public figures. Their headquarters are, at last, a publicly recognised building. The fact that that building is one of the most appalling pieces of architecture ever to blot the London skyline, and that disgraceful sums were spent on it, is a separate matter. I hasten to add that I have a great liking and respect for the excellent architect, even if it is one of the worst buildings of his distinguished career.
The building's public profile is symbolic of the fact that we now recognise the existence of MI5 and MI6, but by putting such a huge rampart around all their activities, the Bill does not afford them the same degree of recognition. Even the most innocuous and simple matters of public expenditure within that building, such as tenders for furniture and services, maintenance costs, and the number of people on full-time contracts, are outwith parliamentary scrutiny. That cannot make sense. No risk is posed to national security by allowing a degree of scrutiny of innocuous matters--scrutiny that is carefully controlled through a prejudice test that would filter out questions that might prejudice our security, which is something that no Member of Parliament or citizen of this country would want to do.
The Government have slightly misjudged the changes surrounding the security services--changes that they and the previous Government made. I hope that, between consideration here and in the other place, Ministers will consider, even at this late stage, the possibility that they are being too cautious. Nobody wants information about the security functions of the security services, but they have plenty of other functions and are connected with plenty of other matters of public concern and public expenditure that fall properly within the public domain.
Mr. Dale Campbell-Savours (Workington):
Under existing systems, that material can already enter the public domain. It is filtered through a Committee, and the only material that is excised from the reports of that Committee relates essentially to the security of the state and operational matters. Hence I cannot understand my hon. Friend's concern.
Mr. Fisher:
I am grateful for my hon. Friend's intervention, because he makes my point for me: the information is available, so the Bill that gives us the right of access to information should recognise that. The import of my hon. Friend's remarks is that we have nothing to fear--the information is already out. My argument is that that should be recognised in the Bill.
The Bill will codify the degree and the extent of the access that we as a nation have to information. It is wonderful that the Committee of which my hon. Friend is a distinguished member brings such matters to our attention, and that it has functions other than action as a conduit for information. However, we and that Committee would be strengthened if we recognised the reality of the security services as they are today. We should incorporate them in the Bill in a proper sense, not in the slightly neurotic sense revealed by the Bill's current wording.
Mr. Mike O'Brien:
I agree with much that was said by the hon. Member for Aldridge-Brownhills
It is my view and that of my right hon. Friend the Home Secretary and many members of the Government that much can be done more openly with the various security services--the Secret Intelligence Service, the Security Service, and the Government communications headquarters--to ensure that we have a more accountable intelligence operation. However, I do not agree that the Bill and the at-a-stroke approach that the hon. Gentleman advocates are the way to do that.
Over recent years we have been feeling our way towards more openness. The various security services have taken the view that they want to be more open, and they have moved quite a long way in that direction. No doubt we are only part way through the process, and in years to come we will move further.
The hon. Member for Aldridge-Brownhills says that the words "national security" are heavy words. Indeed, they are. This country has been subject to bombing and terrorism, and it has had a great need for a very effective intelligence service to protect our national security. It is right, therefore, that we treat with great respect the work that is done by our national security services.
I take this opportunity to pay tribute, which I am sure the House would echo, to the work done by the security services in dealing with Northern Irish terrorism in particular, but also terrorism from other parts of the world, to which our country has been subjected.
For the sake of my family and the families of all my constituents and others in this country, I want to be sure that our security services are able to do the work that we have asked them to do. It is extremely sensitive and difficult work, and it is right that in that context, there has always been a consensus in the House that we should treat with great care any intrusion into the operational activities of our security services.
I am grateful for the support of the then Conservative Front-Bench spokesman, the hon. Member for Ryedale (Mr. Greenway), who said when we discussed clause 21 in Committee that the Opposition
Mr. Fisher:
I am grateful to my hon. Friend. He says, rightly, that the Government and he, during his career in the House from 1992, have been involved in creating greater openness. Everyone welcomes that, and when he moved the amendment, the hon. Member for Aldridge-Brownhills (Mr. Shepherd) recognised the big shift that has taken place. However, my hon. Friend seems to be sliding into the misunderstanding that has bedevilled debate on the Bill in Committee and now on Report, confusing greater openness with freedom of information.
The Government have been much more open in this area, as were the previous Government. That is welcome, but it is quite different from what we are doing through the Bill--that is, establishing rights to access to information. Openness and freedom of information are two completely separate matters, and my hon. Friend is making the mistake of answering one with the other.
Mr. O'Brien:
I certainly do not mean to make a mistake, and I am not sure that I have done so.
As clause 76 makes clear, there is nothing in the Bill that requires secrecy. There is nothing in any clause that will require the security services or any other organisation to keep information confidential that they could put into the public arena.
My hon. Friend says that he seeks to establish rights for members of the public, some of whom may be genuine and some of whom may bear our country ill will, to obtain information about the security services. I would approach that area with a great deal of caution. I do not think that there is sufficient caution in the amendments. Let me set out the reasons for that.
Mr. Oliver Heald (North-East Hertfordshire):
The Minister mentioned the Opposition's view. I wish simply to place on record that we retain that view.
Mr. O'Brien:
I am grateful to the hon. Gentleman for confirming that at least the Front-Bench Members, and probably the majority of hon. Members, believe that we should allow the security services to do the job for which we pay them and that they do so well.
Some protection and, indeed, secrecy is necessary to retain and foster the exchange of information that underpins the intelligence effort. Clause 21 removes from the scope of the Bill all the information supplied by or relating to the work of the agencies listed in subsection (3).
It has been suggested that it is highly unlikely that information on security matters would be disclosed because of the way in which some of the exemptions operate. However, the amendments would encourage applicants to believe that such information would be disclosed. In practice, that expectation would be unreasonable, given the nature of the information. We do not wish to feed such expectations.
The amendments would significantly weaken the protection in the Bill for information supplied by or relating to the work of the security and intelligence services. I ask the House to reject the amendments on that basis.
Amendments Nos. 93 to 95 would change the operation of clause 22. Amendments Nos. 93 and 94 would limit exemption to information that did not fall within the scope of clause 21, but the disclosure of which would or would be likely to prejudice national security. Amendments Nos. 95 and 96 would remove the certification process from clauses 21 and 22. However, there are good reasons for the way in which the clause is drafted. The amendments would negate them.
We do not believe that a single omnibus harm test, which amendments Nos. 93 and 94 propose, is appropriate for all exemptions. We must frame the exemption to fit
the information and thus properly protect the public interest. I am sure that the hon. Member for Aldridge-Brownhills agrees that unless the public interest demands its disclosure, such information should not be disclosed if its retention is required to safeguard national security. The clause ensures that that is the case.
The exemption applies only when it is required; the test is of necessity, not desirability. The clause is drafted in similar terms to section 28 of the Data Protection Act 1998. The two provisions have the same purpose. It is therefore sensible for them to be drafted in similar language. Any difference in approach between the provisions could lead to them being interpreted differently. Clearly, that is not the intention. Government policy is clear on the sensitive subject that we are discussing. Any move from the existing formulation would suggest that the Government intended the provision to be interpreted differently. The Government will not accept any amendment that would risk reducing the protection.
Let us consider evidential certificates. That information is extremely sensitive, and access to it must necessarily be restricted to the smallest number of people possible. Disclosure in the course of enforcing freedom of information must be to the extent necessary to ensure that the exemption is not being abused, and no further.
In that unique instance, it is not appropriate for the Information Commissioner to have a role in assessing whether the exemption applies. Without any disrespect to the Information Commissioner or her staff, disclosure to her of such sensitive material is not appropriate. For example, the material requested might be a small piece of a jigsaw. Determining the seriousness, importance or sensitivity may require the Information Commissioner to know the whole context. That of itself would be undesirable. Furthermore, such disclosure would not be necessary to ensure that the exemption was not abused.
First, the certification procedure would restrict the power to sign such a certificate to a Cabinet Minister, the Attorney-General, the Attorney-General for Northern Ireland or the Advocate-General for Scotland. A certificate could be signed only at the highest level. Furthermore and crucially, it is important to be clear that those certificates would not operate as ministerial vetoes. The certificates that may be issued under clause 21(2) and clause 22(3) would be nothing more than evidential certificates. The Minister would certify that the information was of the kind specified, not that it should or should not be secret, although that would bear on the eventual use of the certificate. The commissioner or the applicant could challenge the certificate in the tribunal, which would have the power to determine whether it was reasonably issued or, in the case of a certificate issued under clause 21, whether it related to the information of the kind specified. Therefore, that would not be a ministerial veto.
8.45 pm
also agree with the Minister and the Government that clause 21 should be an absolute exemption.--[Official Report, Standing Committee B, 20 January 2000; c. 211.]
We propose to keep it as such.
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