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Mr. Oliver Heald (North-East Hertfordshire): On Second Reading, my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) made the point that part IV is over-bureaucratic. She said:
- We already have a Security Service Act commissioner, an Intelligence Services Act commissioner, a chief surveillance commissioner and ordinary surveillance commissioners. None of those appears to have an independent investigatory team available to them.
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In connection with the two additional commissioners referred to in the Bill and mentioned by the Parliamentary Secretary, Lord Chancellor's Department, my right hon. Friend said:
I seems that the Government believe that commissioning should be a growth industry.--[Official Report, 6 March 2000; Vol. 345, c. 782.]
5.30 pm
We discussed that at length in Committee, and the way in which the debate unfolded was helpful. The Opposition pointed out that there would be at least one extra commissioner, that he would not have any staff and that the proposal was not in the best interests of regulation. The Opposition argued that the work should be streamlined and that the proposed commissioners should have real teeth--the ability to investigate. The Minister has tabled new clauses and amendments that meet many of our concerns.
By allowing members of staff authorised by the commissioner to undertake the work of the commissioner, by reducing the proposed number of commissioners by eliminating the covert investigations commissioner and giving his role to the chief surveillance commissioner, and by providing staff for the purpose of investigation to both commissioners, the Minister has met most of our concerns. The unified secretariat does not go as far as a unified commission, but it is a substantial step in the right direction.
The issue of disclosure to the commissioner was raised in Committee, although it was not a major issue between us. Nevertheless, I am glad to see the technical changes that are being made. The other points made by the Minister meet many of our concerns. In the light of her comments, I do not intend to pursue our new clause and new schedule.
Mr. Simon Hughes (Southwark, North and Bermondsey): I am glad to be present, although I feel slightly disadvantaged by the fact that, for very good reasons, my two colleagues who served on the Committee cannot attend. The expertise is therefore elsewhere.
Hon. Members from all parties who are members of the Intelligence and Security Committee would have wished to be present, so it is unfortunate that Report and Third Reading are taking place on a day when they are all away on Committee business, and that they could not be accommodated.
The Minister of State, Home Office (Mr. Charles Clarke): I am grateful to the hon. Gentleman for giving way. I am acutely aware of the fact that the Intelligence and Security Committee is in Washington this week. I met the right hon. Member for Bridgwater (Mr. King) to discuss that beforehand, and we did our best through the usual channels to reschedule the debate, but were unable to do so, despite the fact that it would have been better for the consideration of the Bill for all members of the Committee, particularly those who served on the Standing Committee, to be present. I acknowledge the points made by the hon. Gentleman, which we did our best to meet.
Mr. Hughes: I am grateful to the Minister. I intended no criticism of him or his colleagues. I know that my right hon. Friend the Member for Berwick-upon-Tweed
(Mr. Beith), like hon. Members from other parties, would have liked to attend, and I know that efforts were made to facilitate that.May I pass on to the House the apologies of my hon. Friend the Member for Sheffield, Hallam (Mr. Allan), who has particular technical expertise in the matters that we are discussing? I am told that the one south Yorkshire event of the year that he cannot miss is the cutlers feast, which is attended by 500 of the greatest and the best in the commercial world of south Yorkshire. [Interruption.] That is confirmed by the hon. Member for Mid- Worcestershire (Mr. Luff) from the Conservative Front Bench. As the guest speaker today is my right hon. Friend the Member for Ross, Skye and Inverness, West (Mr. Kennedy), my hon. Friend the Member for Hallam did not feel that he could be absent from the event.
I read and followed the debates in Committee. We welcome the simplification of the commissioner system. We support the amendments and new clauses and the thrust of those tabled by the Conservative party. We argued for, and are glad to see, the recognition of the need for a proper secretariat. That clearly was a lacuna. The system cannot be run without adequate back-up, as Ministers have recognised.
We argue that prior judicial authorisation is one of the best ways of ensuring that the right decisions are taken by commissioners and others. We shall come to amendments and new clauses that take us back to that debate. I appreciate that there is a disagreement between us, but we perceive that as the preferred way of encircling the procedures. I expect that the matter will be left to the other place, where others will want to pick it up. Even if our proposal is not accepted, a properly resourced secretariat that supports the commission's decisions is likely to achieve the best result.
I want to ask the Minister about the implications of new clause 8, which states:
- Anything authorised or required by or under any enactment to be done by a relevant Commissioner may be done by any member of the staff of that Commissioner who is authorised for the purpose (whether generally or specifically) . . .
Our discussion is similar to the debate on whether the Home Secretary or the chief constable of a police force signs a warrant and is thus responsible. I should like some assurance from the Minister that the new clause does not hide an intention to delegate. The intention should be for the commissioners to make the decisions, especially when there will be fewer commissioners--rightly, in our view--and the number of those who can properly cover both tasks, which were originally separated, has been reduced by one.
I should also be grateful for illumination on how far and how often the Government envisage delegation taking place. Again, I am not asking for a conclusive answer, but am registering the importance of commissioners, who have been appointed because of their expertise, authority,
public recognition and acceptance, and not people further down the chain of command, making decisions on the public's behalf about sensitive and delicate subjects.
Jane Kennedy: I am grateful for the thoughtfulness with which hon. Members have responded to the debate. Given the general support for our proposals, I shall not test hon. Members' patience by making a long speech. However, in response to the point of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), it is for the commissioners to determine the extent of delegation. As I said earlier, the commissioners have to report directly to the Prime Minister. They must be satisfied that their reports are full, accurate and thoroughly investigated and that they are able to stand by them. It is therefore proper for them to decide the extent of the delegation. I expect it to be to the level in the secretariat that is appropriate to the investigation. I hope that that provides the reassurance that the hon. Gentleman seeks.
Clause read a Second time, and added to the Bill.
New Clause 1
Offences
'.--(1) A person is guilty of an offence if--
(a) with intent to impede access to protected information or the putting of that information into an intelligible form, he fails to comply, in accordance with any section 46 notice, with a requirement of that notice to disclose a key to protected information; and
(b) he is a person who has possession of the key.
(2) A person is guilty of an offence if--
(a) he fails to comply, in accordance with any section 46 notice, with a requirement of that notice to disclose a key to protected information;
(b) he is a person who has had possession of the key, but that key was not in his possession after the giving of the notice and before the time by which he was required to disclose it; and
(c) with intent to impede access to protected information or the putting of that information into an intelligible form, that he did not, before that time, make a disclosure, to the person to whom he was required to disclose the key, of all such information in his possession as was required by that person to enable possession of the key to be obtained.
(3) In proceedings against any person for an offence under this section it shall be a defence (subject to subsection (4)) for that person to show--
(a) that it was not reasonably practicable for him to make a disclosure of the key before the time by which he was required to do so;
(b) where the key was not in his possession at that time, that it was not reasonably practicable for him, before that time, to make such a disclosure as is mentioned in subsection (2)(c); and
(c) that as soon after that time as it was reasonably practicable for him to make a disclosure of the key or (if earlier) of sufficient information to enable possession of the key to be obtained, he made such a disclosure to the person to whom he was required to disclose the key.
(4) Except in a case where there is no authorisation for the purposes of section 47, in proceedings for an offence under this section a person shall have a defence under subsection (3) only if he also shows that it was not reasonably practicable for him to comply with the requirement in the manner allowed by that section.
(5) In proceedings against any person for an offence under this section it shall be a defence for that person to show that--
(a) at all material times he used due diligence to store the key which he had or had had in his possession; and
(b) that were the key was not in his possession after the giving of the notice and before the time by which he was required to disclose it, that he did before that time, make a disclosure to the person to whom he was required to disclose the key, of all such information to his possession as was required by that person to enable possession of the key to be obtained.
(6) Where a person is being proceeded against for an offence under this section, then at any stage of the proceedings, if evidence has been given of his having failed to comply with any requirement of a section 46 notice to disclose a key to protected information, the following evidence shall be admissible for the purpose of proving that he had an intention to impede access to protected information or the putting of that information into an intelligible form--
(a) evidence that he has or has had in his possession other information of value on grounds falling within section 46(3) or likely to be of value for purposes connected with the exercise or performance by any public authority of any statutory power or statutory duty; and
(b) provided that seven days notice in writing has been given to him of the intention to prove the conviction, evidence that he has within the [five] years preceding the date of the offence charged been convicted of any offence carrying a maximum sentence on conviction on indictment of five years imprisonment or more.
(7) A person guilty of an offence under this section shall be liable--
(a) on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine, or to both;
(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.'.--[Mr. Heald.]
Brought up, and read the First time.
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