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Public Bill Committee Debates

Draft Official Secrets Act 1989 (Prescription) (Amendment) Order 2007

The Committee consisted of the following Members:

Chairman: Dr. William McCrea
Abbott, Ms Diane (Hackney, North and Stoke Newington) (Lab)
Baldry, Tony (Banbury) (Con)
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Clegg, Mr. Nick (Sheffield, Hallam) (LD)
Clwyd, Ann (Cynon Valley) (Lab)
Cox, Mr. Geoffrey (Torridge and West Devon) (Con)
Eagle, Maria (Parliamentary Under-Secretary of State for Justice )
Ellwood, Mr. Tobias (Bournemouth, East) (Con)
Foster, Mr. Michael (Worcester) (Lab)
Henderson, Mr. Doug (Newcastle upon Tyne, North) (Lab)
Howarth, Mr. George (Knowsley, North and Sefton, East) (Lab)
Hughes, Simon (North Southwark and Bermondsey) (LD)
Khan, Mr. Sadiq (Tooting) (Lab)
MacShane, Mr. Denis (Rotherham) (Lab)
Prentice, Mr. Gordon (Pendle) (Lab)
Waltho, Lynda (Stourbridge) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Rhiannon Hollis, Committee Clerk
† attended the Committee

First Delegated Legislation Committee

Wednesday 4 July 2007

[D r. William McCrea in the Chair]

Draft Official Secrets Act 1989 (Prescription) (Amendment) Order 2007

2.30 pm
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): I beg to move,
That the Committee has considered the draft Official Secrets Act 1989 (Prescription) (Amendment) Order 2007.
May I begin by saying that it is a pleasure to serve under your chairmanship, Dr. McCrea? We have got to know each other a little bit over the past year, when I was a Northern Ireland Minister. It is a great pleasure, having had to leave that post suddenly, as is the way of these things, to see you in the Chair for the first Statutory Instrument Committee that I have had the good fortune to deal with in my new role. I am sure that you will keep us in good order, should we need to be kept in order. I will try to keep myself in order.
The draft order, which has been debated in the other place, amends the Official Secrets Act 1989 (Prescription) Order 1990. The Official Secrets Act 1989, as every Committee member will know, protects certain categories of information and applies to Crown servants and Government contractors, among other people. It contains a provision that allows certain categories of people to be designated as equivalent to Crown servants, making it an offence for them to make any unauthorised and damaging disclosures of protected categories of information that they may have obtained in the course of their work.
The draft order designates two new bodies: the Nuclear Decommissioning Authority and the Independent Police Complaints Commission. The first designation arises from the restructuring of two organisations whose boards and employees were designated as Crown servants by the 1990 order—British Nuclear Fuels and the United Kingdom Atomic Energy Authority. Both companies will continue to be designated under the 1989 Act, but they will now operate their facilities under contract to the Nuclear Decommissioning Authority, which therefore needs to be designated as well.
The Nuclear Decommissioning Authority is an executive non-departmental public body established by the Energy Act 2004. Since it came into being on 1 April 2005— I shall return to that later—it has been responsible for the decommissioning and clean-up of the United Kingdom’s civil nuclear legacy. Consequently, the Nuclear Decommissioning Authority is responsible for nuclear sites previously operated by British Nuclear Fuels and the UK Atomic Energy Authority; it owns the plant and facilities of British Nuclear Fuels and manages clean-up operations at the UK Atomic Energy Authority’s sites. Therefore members and employees of the Nuclear Decommissioning Authority have access to information, the disclosure of which could be damaging. To ensure the continued protection of information relating to nuclear sites and nuclear technology and materials, the draft order designates the Nuclear Decommissioning Authority, and the employees and board members of any future subsidiary, as Crown servants for the purposes of the 1989 Act.
A question or two may have occurred to Committee members. The first question that occurred to me on looking at the details of the order was, what has been happening since April 2005 and why was this not done sooner? I am about to put my hands up, metaphorically, and admit that there was oversight on the part of the Government regarding the need to ensure that that was done earlier. However, I assure the Committee that the body in question has always operated as though it were required to meet the stringent standards, which the Official Secrets Act is designed to protect, governing the behaviour of its employees and officers. We are merely putting things right. That explains—perhaps not satisfactorily, but at least honestly—why the Nuclear Decommissioning Authority was not designated back in 2005, when the 2004 Act came into force.
The second designation concerns the members and employees of the Independent Police Complaints Commission which, since 1 April 2004, has had responsibility for the police complaints system in England and Wales. The IPCC investigates or oversees the investigations of allegations of criminality or misconduct made against police officers and police staff. It also conducts or oversees investigations of cases involving the death or serious injury of a person as a result of their contact with the police, such as those involving deaths in police custody or fatal police shootings.
In discharging those responsibilities, the commissioners and employees of the IPCC have access to information whose disclosure could impede the prevention and detection of offences and compromise future police operations. It is important that such information should have a high level of protection. The draft order will achieve that by designating the members and employees of the IPCC as Crown servants, who have a duty of confidentiality under the Official Secrets Act.
The designation will help to ensure that those giving evidence to the IPCC will know that any information that they give will be treated as having been given in confidence to the IPCC or its members. It arises out of the facts relating to the Stockwell case. Hon. Members will recall that that involved the fatal shooting by police of Mr. Jean Charles de Menezes at Stockwell tube station. During the investigation of that case, an unauthorised disclosure was made by an IPCC staff member to a media organisation. Following that disclosure, an independent review of the IPCC’s security arrangements was undertaken. Subsequently, the IPCC approached the Home Office with a request that the commissioners and staff of the IPCC be brought under the provisions of the Official Secrets Act. Although it is not considered appropriate to create a new, specific offence to cover the IPCC—hon. Members might recall that such an offence existed when the Police Complaints Authority was doing that job—it is considered appropriate and necessary to put the IPCC under the same duty of confidentiality as applies to Crown servants under the Official Secrets Act. In short, that is the explanation for the designation of the two organisations that I have mentioned. I would be happy to deal with any questions or points that any members of the Committee have. On that basis, I commend the draft order to the Committee.
2.37 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under your chairmanship, Dr. McCrea. I congratulate the Under-Secretary of State, Ministry of Justice, the hon. Member for Liverpool, Garston, on her appointment to this important position. I wish her well in her future duties. She is obviously being monitored closely because she is attended not by one Whip but by two. I would also like to congratulate the hon. Member for Tooting on his recent appointment to the Front Bench. I also wish him well in his future duties. My Whip is not absent without leave; he is in the Chamber and sends his apologies for not being here. He told me that he would be here immediately if trouble broke out. I shall make it clear to him afterwards that this has been a good-humoured Committee.
What the Minister told the Committee makes sense. If we were in her position, we would take the same action that she has announced. I would be grateful if she gave us more details about why that oversight occurred regarding the Nuclear Decommissioning Authority. Could the situation have been envisaged at the time of the Energy Act 2004? Would it have been appropriate to include in the legislation scope for extending the power of the Official Secrets Act to those employees, or should it have been done by a separate measure such as this one? As she said, an oversight occurred. I suppose that it is good for someone to start a career in a new Department by saying that an oversight took place and that they are going to correct it. Credit must go to the Minister for correcting the oversight.
How many employees are we talking about in the different organisations? Article 2 at the back of the explanatory notes refers to the different organisations involved, and we are talking about more than just the two organisations that have been mentioned. We are talking, for example, about Urenco Ltd, the Enrichment Technology Company Ltd and the Urenco Enrichment Company Ltd. There are therefore a number of different subsidiary organisations and it would be useful to know how many people are involved.
It would be useful as well if the Minister could provide confirmation again about the two predecessor organisations—the UKAEA and the BNFL. Their employees were designated as Crown servants, so presumably, in any event, were covered by the Official Secrets Act. Did any of the original governing legislation for those bodies mention official secrets or were they covered simply by virtue of their employees being designated as Crown servants? Can she explain that to us?
The Minister said that the commission had been consulted on the provisions before us. Were the staff consulted as well? I understand that the commission requested secondary legislation, but were the staff consulted? If so, was their response positive? Were they in agreement? I would be grateful if she answered those questions, but once again, the Opposition are very supportive of the measure. In fact, we are so supportive, and my colleagues have such faith in the Government and me, that they have decided to attend to other duties.
2.42 pm
Simon Hughes (North Southwark and Bermondsey) (LD): I, too, am very happy to serve under your chairmanship, Dr. McCrea. I welcome the Minister to her new responsibilities. I have congratulated the hon. Member for Tooting in private on his well-deserved appointment—a further south London bit of progress.
I am happy to be here, although it is a bit of a legacy task for me given that I was appointed to the Committee before I was moved sideways to shadow the Leader of the House. Gradually my involvement with the Ministry of Justice will be wound down, which is sad because I will lose some interesting opportunities. I have had a good time dealing with that very important Department. Some of us will continue to keep an eye on it, even when removed. My hon. Friend the Member for Somerton and Frome (Mr. Heath) will be a robust replacement looking after and leading our team on justice matters.
I am grateful to the Minister for the way in which she introduced the order. She will have read and possibly heard yesterday’s debate. I shall not repeat verbatim the speech of my noble Friend Lord Thomas of Gresford, but I shall touch on some of the points he raised, because it is important that they are put on the record in this debate. I should say, however, that I do not intend to divide the Committee. On balance, I think that the draft order is the right move, but the two parts of the order are different in their quality, quantity and impact, and I wanted to flag that up.
I accept the Minister’s apology for the oversight. It is entirely logical that the same rules apply to the Nuclear Decommissioning Authority as to its predecessor bodies. However, that does not mean that matters of public interest will not come to the attention of staff in our nuclear industry or of those doing the nuclear decommissioning. I can see that occasionally they might consider that the public interest requires them to speak up. All four parts of the United Kingdom have a proud tradition of people who regard the duty to share such information as more important than a cover-up, sustaining a secret, or going along with a misrepresentation. It is noticeable that even though such practice is illegal, when individuals have been taken to court in cases such as the Clive Ponting case, the jury have not convicted because they have seen a justification for the action taken.
I understand that the first matter with which the draft order deals is a technical transfer, but I flag up the point that there may be some occasions when, in the difficult, dangerous and nationally important area of nuclear decommissioning, there is a public interest in saying something. How does the Minister envisage official secrets, as distinct from sensitive, difficult and troubling information, in relation to nuclear decommissioning? There is an important distinction. We are talking about official secrets; matters that may be uncomfortable to the Government may not be official secrets.
The second matter is more controversial. Let me begin with the areas of agreement. After the shooting just across the river at Stockwell tube station of somebody who appeared by all accounts to have been an entirely innocent Brazilian living in south London and on his way to work, which as the Minister well knows, was an incident that caused great distress not only in the Brazilian or Latin American communities, but throughout the communities in south London, there was—properly—an investigation by the Independent Police Complaints Commission. During that investigation, one IPCC member of staff came forward and shared some information. It is noticeable that although a prosecution was attempted, or at least considered, there was no prosecution. Disciplinary action was taken, but the relevant member of staff has not been convicted. The same applies to other people. My noble Friend Lord Thomas of Gresford gave yesterday the example of Miss Gunn, whose case also gained huge publicity. Again, there was no conviction.
There are further parts of the story to be revealed. The final chapters have not been published yet, but as a result of the investigation, the Leicestershire police force quite rightly carried out an independent review of what happened, and it made a set of recommendations. I fully accept that the measure that the Minister has brought before us is a recommendation of the review and that it comes with the support of the IPCC and its staff. I accept that it is not a politically imposed idea, but, as the hon. Member for North-West Norfolk said, the outcome of recommendations by Mr. Bill Taylor. He specifically said that there should be legislation, although he actually suggested a slightly different route. The draft order before us clearly is an easier route, and the effect is the same.
I have one substantial legal question, and then I want to raise the policy issues. Paragraph 2.3 of the explanatory memorandum says:
“In addition, the draft Order will also designate the members and employees of the Independent Police Complaints Commission (“IPCC”) as Crown servants for the purposes of the Act.”
The IPCC was set up as an independent police complaints body, and there is a problem with treating people as Crown employees when, by definition, they will often investigate activities carried out in the name of the Crown, which is what the police do. The wrong method is used to reach the solution. It means that, suddenly, official secrecy legislation protects people who are not Crown employees but independent employees of an independent organisation. All parts of the House campaigned for the independence of that organisation, yet the order treats them as though they were civil servants. That is clearly inconsistent.
Given that the draft order will be approved the Government may need to reflect on a different way of dealing with the obligations of people who work for bodies such as the IPCC and others, so that there is no contradiction whereby the bodies are independent, but they are governed by the laws that govern Crown employees. That is the legal point; it is important, and we must not lose sight of it.
On the policy point, there is clearly a difference between matters that are sensitive, difficult or embarrassing, and matters that are official secrets. Will the Minister therefore set out what she believes would cause a crossing of the line such that everything that someone did was an official secret, rather than merely potentially embarrassing if disclosed? I appreciate that there are sensitivities; if someone is investigating police officers, that is a sensitive matter, and if someone is investigating police policy, that is a sensitive matter too. The explanatory memorandum says that
“the IPCC will have access to sensitive police information that may include details of police techniques which would hamper police operations if made public and impede the prevention and detection of offences and future police operations.”
However, sensitive information is not the same thing as an official secret. The Minister might wish to share why she believes that everything now crosses the line.
There is a concern that the measure is an overreaction—a gagging order too far. When I was first told about it, I took the view that on balance it was just about justifiable, and I maintain that position. However, I note that colleagues on the Labour Back Benches and in my party have said otherwise. For example, the hon. Member for Norwich, North (Dr. Gibson) said that:
“without whistleblowers, the world moves backwards. This is another attempt to silence seems like a sledgehammer to crack a nut.”
My hon. Friend the Member for Lewes (Norman Baker), when asked, said:
“For most people, an official secret is something that will endanger national security, not something that covers up issues to do with the police.”
Another concern was voiced by the director of Liberty, Shami Chakrabarti. She made a good point when she said:
“If the IPCC conducted its business a bit more swiftly, its staff would be less tempted to make individual disclosures.”
I have had many dealings with the IPCC. I know its leaders well and I respect them. However, hon. Members might share that concern about the duration of IPCC investigations. The longer such things go on, the more there are rumours, and the more there are rumours, the more there is a temptation to share inside information with the outside—for example, to ensure that press speculation does not go down the wrong track.
I have a last set of questions to put to the Minister. In relation to an organisation that was set up to look into complaints about the police, should there be no power at all to share information about discrepancies in a case? Is it reasonable that everybody should be treated equally in the organisation, no matter what their seniority? And what is the Government’s policy—I am conscious that the Minister is new to her job so she might not yet be able to tell us—on the public interest defence? She will be aware that in the history of the Official Secrets Acts there was originally a public interest defence. In 1989, that was taken out of the legislation as it had originally been drafted.
Following the Shayler decision and other high-profile intelligence, security and official secrets issues, there is still a concern that there should be a public interest defence in certain places. Does the Minister know of any plan—in the light of recent cases and of recent concerns about legislation—to re-examine how to ensure that civil servants and Crown employees who are asked to keep secret matters that are entirely dishonest, entirely inconsistent, or not in the public interest, are not under an obligation that is damaging to the public interest rather than to its advantage?
I hope that those questions are reasonable. There are concerns in both Houses of Parliament, and although there is on balance an acceptance that the proposal is a reasonable way to proceed for now, the issue is an important one and should not be approved on the nod.
Mr. Henry Bellingham: What does the hon. Gentleman feel about the current common law defence of duress of circumstances? Is not his understanding that the Home Office is quite keen to amend the law to remove that? Does he agree that removing that narrow defence could be a retrograde step?
Simon Hughes: I was hinting at that but I will be explicit, as the hon. Gentleman prompts me. My understanding is that the Intelligence and Security Committee report in 2005-06 revealed that the Home Office had bid for a slot in the Government’s legislative programme to amend the 1989 Act to repeal the common law defence of duress of circumstances in order to address unauthorised disclosure by members or former members of the intelligence services. Therefore, the hon. Gentleman’s question is a perfectly proper one for the Minister. Is the bid in the pipeline? Is the Home Office considering it, has it already considered it, and is it now a Ministry of Justice matter? If it comes back, Opposition parties and many Government Back Benchers will want to be extremely vigilant to ensure that we do not oppressively change the law to prevent the sorts of disclosure that we believe ought to be permitted.
2.56 pm
Maria Eagle: I am more than happy to try to deal with the points that have been made by the hon. Member for North Southwark and Bermondsey and the hon. Member for North-West Norfolk. First, in respect of the Nuclear Decommissioning Authority, the hon. Member for North-West Norfolk asked whether the matter could have been dealt with in the legislation that established the authority. The answer is yes, it could have been done then had it been thought of and spotted. Had it been dealt with at that stage, we would not have to do so now by way of the order. However, as soon as the oversight came to the attention of senior officials and Ministers, we set about correcting it.
Employees and workers at BNFL and UKAEA were already covered because they were designated. To the extent that they are the same people, this was a lacuna, rather than a complete gap, that appeared as a result of the oversight. We are now plugging that legal gap. Practice in the Nuclear Decommissioning Authority is such that, happily, everybody has behaved as though they are bound in that way. The hon. Member for North-West Norfolk asked how many employees were covered by the designations in the draft order. The Nuclear Decommissioning Authority has 180 employees; BNFL, 2,000; and the UKAEA, 300. In respect of the IPCC, there are about 400 staff, 15 commissioners, a chair and deputy chair, so there is a total of about 417 employees.
The hon. Member for North-West Norfolk asked me whether the staff at IPCC, as well as the bosses, had been consulted about the way forward. I am assured that they were and that they agree that this is the way to deal with the issue. The hon. Gentleman asked me about the predecessor authorities. I hope that I have assured him that they were covered by the 1990 order. He also asked me what action had been taken against the person at the IPCC who was found to have leaked the information that led to the review. The hon. Member for North Southwark and Bermondsey was right that there has not been a prosecution in that respect. However, there has been disciplinary action and the person, perhaps not surprisingly, has lost their job.
The hon. Member for North Southwark and Bermondsey, who said that he was moving sideways to a different job on the Liberal Democrat Front Bench, asked a number of questions. I am sure that we are all very glad that he will keep an eye on us from his new elevated perch in the Chamber. I will do my best to answer some of the points that he raised. One or two of them, however, may not be within my knowledge at the moment, and I may have to get back to him.
I understand the distinction between the legal and policy points about Crown servants. The legal point was about treating people as Crown servants when we may not wish them to be seen as such for the purposes of the order. That is understandable, but the measure is not unique, because the police are covered by the Official Secrets Act, and nobody seriously claims that they are under political control. Certainly, the Executive regard the police as being independent.
It is not the first time that we have run into the legal conundrum that the hon. Gentleman set out. He asked the Government to reflect on whether there is a different way of dealing with measures such as this. Of course, we consider such things on an ongoing basis, but our approach appears to be what the IPCC wants after looking at the measure and consulting on it. To be fair, he made it clear that he will not vote against the order, and he made some understandable points. I hope that he understands that we are dealing with the matter in the way that the IPCC has asked. We will keep the matter under review, but the order is the way forward at this stage.
Simon Hughes: I understand that completely and that the police are independent of the Crown. When the matter is looked at more broadly, I suggest that the Government create another category of people who are not Crown employees, but otherwise defined, who would have obligations to keep secret things that should be kept secret, and that people such as those subject to the order are put in the new category.
Maria Eagle: I hear what the hon. Gentleman says—he is obviously exercising his mind as a legal draftsman, which may be another sideways move that he could contemplate. I shall take notice of what he said when reviewing such matters in future.
The hon. Gentleman asked about the difference between official secrets and sensitivities or embarrassing facts that those in authority may not wish to be brought out. It is not possible for me to give him every example of that difference because it will be dependent on the facts in each particular case, as he will appreciate. In practice, the type of information and material that the IPCC will hold, and which might fall into the categories, are information relating to security and intelligence, and information that may prejudice the prevention and detection of crime. It is difficult to say precisely what that information might be in a given case, but the IPCC’s jurisdiction spans the whole range of police activity, including counter-terrorism operations, which include the extremely sensitive operations that we currently have reason to be glad that they undertake rather well. The hon. Gentleman will realise that the obligation will apply to such information more than to information that might embarrass Ministers, or to yet more trivial information that it might be in the public interest to know. I can give him no more assurance than that today, because the measure’s application naturally depends on the circumstances of each particular case.
Simon Hughes: As the Minister knows, in the Stockwell case, it was said that the facts that were reported—that somebody ran away from the police and jumped over the barrier—were not true, and that the man was held down by the police before he was shot. That does not seem to be an official secret, and yet it is an embarrassing revelation. The police described the incident one way, but clearly something else happened.
Maria Eagle: I hear what the hon. Gentleman says. Of course, the officer was not prosecuted in the end—he was dealt with in a disciplinary way. One would always hope that an obligation not to disclose information is based on concerns that the Official Secrets Act is intended to protect. Damaging disclosures are dealt with according to the purposes for which Parliament has legislated, and not for other purposes. I am sure that we all support that.
The hon. Gentleman asked, too, about Government policy on the public interest defence in respect of official secrets, which is a long-running issue, as he said. There used to be such a defence, and many Members in both Houses would like to see it again. I am not aware of any current review of those matters but, as he was kind enough to notice, I have not quite got my head around everything that the Department is doing just yet, not least because I spent most of yesterday in a different Committee. If he will allow me to write to him, I shall be happy to do so. With that, I believe that I have dealt with all the points that were raised.
Simon Hughes: The Minister might remember that the hon. Member for North-West Norfolk raised one other point in his intervention on me regarding the Shayler-related suggestion that the Home Office is considering legislating—
Mr. Bellingham: On duress of circumstances.
Maria Eagle: I shall have to write to the hon. Member for North-West Norfolk on that, simply because I am not a Home Office Minister and therefore do not know about all its current considerations. I have listened to the comments of both hon. Gentlemen about what the Intelligence and Security Committee has said, and I undertake to write to them about the situation. With that, I shall detain the Committee no further.
Question put and agreed to.
That the Committee has considered the draft Official Secrets Act 1989 (Prescription) (Amendment) Order 2007.
Committee rose at six minutes past Three o’clock.

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