Clause
19
Disclosure
and the intelligence
services
Mr.
Grieve:
I beg to move amendment No. 89, in
clause 19, page 14, line 36, leave
out subsection
(1).
The
Chairman:
With this it will be convenient to discuss
amendment No. 11, in clause 19, page 15, line 17, at end
add—
‘(8) Nothing in this
section shall require a person to disclose information to any of the
intelligence services for any
purpose.’.
Mr.
Grieve:
The first amendment is a probing amendment. Clause
19(1) says:
“A
person may disclose information to any of the intelligence services for
the purposes of the exercise by that service of any of its
functions.”
Again,
the Minister helpfully told the Committee about the definition of
national security, which no Committee member would have any difficulty
with. However, what functions of the security services fall outside the
definition of national security that he gave
us?
I want to make my
position quite clear. I am not suddenly seeking to put a spanner in the
works of an important change to the law that will provide reassurance
to individuals in this area. However, the Committee should be able to
understand why “any of its functions” would be covered by
this blanket exemption from the workings of the Data Protection Act
1998 and the Regulation of Investigatory Powers Act
2000.
5.45
pm
Tom
Brake (Carshalton and Wallington) (LD): Amendment No. 11
has been grouped with amendment No. 89 and I would like to refer
briefly to that. Amendment No. 11 is the embodiment of the concerns
expressed by my hon. Friend the Member for Cambridge (David Howarth),
who is not a member of
the Committee but has a passing academic interest. Although clause 19(1)
is clearly permissive—it says that a person “may disclose
information”—this probing amendment is to seek
confirmation that there are no circumstances in which, perhaps in
interaction with other legislation, that permissive “may
disclose information” might turn into a requirement to disclose
information, and might be used in a more aggressive way to seek
information, resulting in the person from whom the information is being
sought feeling that it is not being extracted in a permissive manner.
It is a probing amendment to reassure us that disclosure is entirely
permissive, and that there is no possibility that it may be used in a
more aggressive
manner.
Mr.
McNulty:
If I may, I will start with amendment No. 11.
Given that there is nothing in the subsection that could be taken to
mean that an individual could be required to disclose information, the
amendment is redundant. Although I understand the point about probing
to establish that fact, the amendment is unnecessary because there is
nothing in the clause that compels or requires an individual to give
information to the service. I understand the point but the amendment is
not
required.
The
substantial part of the Bill, and that covered by amendment No. 89, is
more interesting. I do not say that to be offensive but the subject
matter of the clauses is more interesting. They are not about
deficiency in any areas of the intelligence services work as defined by
the Act. Rather we have afforded, under the Serious Organised Crime and
Police Act 2005 sections 33 to 35, to those who disclose information to
the Serious Organised Crime Agency explicit protection from any duty of
conflicts or other restriction to keep matters private. Our concern is
that that facility should at the time probably have been afforded to
the intelligence services too. So the difficulty now is that there is a
higher benchmark and encouragement for SOCA to be able to do what it
does, regarding the disclosure of information to it and protection
under law for such disclosure. We should mirror those provisions for
the intelligence services. That is all that clauses 19 to 21 do. They
mirror sections 33 to 35 of the Serious Organised Crime and Police Act.
Our concern is that the absence of similar explicit protections for the
intelligence and security agencies may cause doubt in the minds of
those wishing to give information that it is safe to do so. Given the
vital work of the intelligence and security agencies it is important
that nothing should dissuade those wishing to protect our society by
giving information to the agencies, so that the agencies can carry out
their vital statutory functions. It is important that nothing gets in
the way of that, and that is why those clauses are
offered.
Amendment
No. 89 would remove the explicit relief afforded by clause 19(6) to a
person properly giving information to any of the intelligence and
security agencies, that is, relief from any duty of confidence owed by
the person making the disclosure or any other restriction on that
disclosure. Although a person could still rely on common law to justify
disclosing information in breach of a duty of confidence or other
restriction on the ground that it was for higher public interest
purposes, that falls well short of the explicit relief provided to our
intelligence and security agencies in clause 19(6), which mirrors the
same relief afforded to SOCA in sections 33 to 35 of the 2005
Act.
The amendment
would perpetuate the anomaly that we are seeking to correct whereby a
person would get explicit relief in law from the duty of confidence if
they gave information to SOCA for the purpose of preventing or
detecting crime, but not if they gave it to the intelligence and
security agencies for the prevention or detection of serious crime or
even terrorism. Individuals fulfilling their responsibilities towards
the security of society by properly providing information to such
agencies should receive the relief and confidence provided in clause
19(6). For that reason, and because that relief is already established
for SOCA under the 2005 Act, it is more than appropriate not to accept
amendment No. 89. It challenges the raison d’être of much
of the Bill. As I have suggested, although amendment No. 11 is probing,
it is utterly
irrelevant.
Mr.
Grieve:
That was helpful. Unless I missed it—I was
briefly distracted for a moment—I still have not teased out the
difference between
“the
interests of national
security”,
which I
thought were one of the primary objectives of the Security Service and
the Secret Intelligence Service, and their “functions”,
and whether the two were supposed to be identical. The debate on that
can conveniently be left for the next group of amendments. I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Grieve:
I beg to move amendment No. 70, in
clause 19, page 14, line 43, leave
out paragraph (a) and
insert—
‘(a) in the
interests of national
security,’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 71, in
clause 19, page 15, line 3, leave
out paragraph (a).
No.
72, in
clause 19, page 15, line 9, leave
out paragraph (a) and
insert—
‘(a) in the
interests of national
security,’.
Mr.
Grieve:
Here again, we have provisions dealing with
information. The clause
states:
“Information
obtained by the Security Service for the purposes of any of its
functions may be disclosed by
it—
for the purpose of
the proper discharge of its
functions”.
In a funny
way, that is a slightly circular argument. Interestingly, that appears
not to include the purpose of national security, but it does include,
in subsections (3)(b) and (c), the prevention or detection of serious
crime and criminal proceedings. I contrast that with subsection (4),
which
states:
“Information
obtained by the Secret Intelligence Service for the purposes of any of
its functions”,
as
opposed to the Security
Service,
“may be
disclosed by
it—
(a) for the
purpose of the proper discharge of its
functions,
(b) in the
interests of national security”,
which apparently does not apply to the
Security Service. I do not wish to appear too nosey on the
subject—maybe there is something that I ought not to
know about, or maybe it is completely innocuous—but that strikes
me as slightly odd. Will the Minister clarify why the test for the
Security Service is different from that for the Secret Intelligence
Service? Can we also
have some clarification of the difference between disclosure in the
interests of national security, which is the primary function of both
services, and the blanket expression “discharge of its
functions”?
Mr.
McNulty:
The amendments appear to have been drafted in the
belief that clause 19 creates new permissions or prohibitions on what
the intelligence and security agencies can and cannot disclose. It does
not. The distinction between subsections (3), (4) and (5) is simply
that they revert to the parent legislation and its definitions. For
example, section 1(2) of the Security Service Act 1989 outlines the
functions of the Security Service. They include the protection of the
UK’s national security and economic well-being, a support role
in respect of the prevention and detection of serious crime and so on.
So when we consider the proper discharge of the functions of the
Security Service—I cannot call it the SS. I got into trouble for
saying that. We can call it the Security Service or SYS, but never, for
obvious reasons, the SS, and quite
rightly.
The discharge
of national security is included in the functions, so there is no point
in repeating it in the clause. National security is included separately
in subsection (4) not because the Secret Intelligence Service somehow
does not have such a function, but as the hon. and learned Gentleman
will know, its principal concern is with the overseas dimension of
activities rather than national security per
se.
As I understand
it, the functions outlined in the legislation do not include national
security, because that is the job of the Security Service, but,
clearly, for the purposes of the Bill and the information gateways that
we are establishing, national security would be an additional function
for SIS, and I believe it to be entirely the same for GCHQ. In other
words, subsections (3), (4) and (5), as they currently stand,
deliberately mirror the information gateway provided by section 2(2)(a)
of the 1989 Act and sections 2(2)(a) and 4(2)(a) of the Intelligence
Services Act 1994, and do more than that, by establishing the proper
relationship in respect of
disclosure.
Accordingly,
the effect of lowering or removing criteria in subsections (3), (4) or
(5) would not in itself allow or prohibit the agencies from disclosing
information, as each agency will still be governed by the terms of the
1989 Act or the 1994 Act as
appropriate.
I am sure
that it is not, but if the intention of the amendments were to stop or
undermine the agencies undertaking the full range of statutory
functions that Parliament has set them, this would not be the way to go
about it. I am sure that that is not the case. What we are dealing with
in this clause is the ability to share data and disclose information.
The clumsy interaction of subsections (3), (4) and (5) reflects more on
the distinct nature of the parent legislation that created the agencies
than anything remotely nefarious.
Mr.
Grieve:
Does disclosure for the purpose of any criminal
proceedings already feature in the Acts in respect of SIS and
GCHQ?
Mr.
McNulty:
Repeat that,
please.
Mr.
Grieve:
Does disclosure for the purpose of any criminal
proceedings already feature in the existing legislation in respect of
SIS and
GCHQ?
Mr.
McNulty:
Not in terms of core functions. Otherwise
provision would not be included at subsections (3)(c), (4)(d) and
(5)(b), as appropriate. Yes. That is another way of saying what I said,
but not in the form
suggested.
Seriously,
there is nothing nefarious or sinister in the clause. It is purely
about creating the legal architecture to secure the appropriate
information gateway for information to be shared between the agencies
and other law enforcement
bodies.
5.59
pm
Sitting
suspended for a Division in the
House.
6.14
pm
On
resuming—
Mr.
McNulty:
And that is why I urge the hon. and learned
Gentleman to withdraw his amendment.
Mr.
Grieve:
I thank the Minister for his comments. The debate
has been extremely useful. He has provided me with a great deal of
reassurance, and in those circumstances, I beg to ask leave to withdraw
the amendment.
Amendment, by leave,
withdrawn.
Clause 19 ordered to stand
part of the Bill.
Clause
20
Disclosure
and the intelligence services: supplementary
provisions
Mr.
Grieve:
I beg to move amendment No. 69, in
page 15, line 33, leave out subsection
(4).
Subsection (4)
states:
“Nothing
in that section shall be read as casting doubt on the legality of
anything done by any of the intelligence services before that section
came into force.”
I hope
that the Minister will excuse the fact that a smile crossed my face
when I read that. I assume from this nice, little clause, which is
entitled “supplementary provisions”, that in the past the
intelligence services might have made disclosures on an informal basis
that were not subject to statutory systems—I hinted at that
earlier. As a result of the Bill, they will be subject to a statutory
framework, which is extremely important and useful.
However, I have one concern: I
do not think that this Committee’s role should be to pass
retrospective legislation that provides blanket exemptions for past
activities. I know of no example of the intelligence services being
taken to task over what they might have done in this area, but one way
of reading subsection (4) suggests that it seeks to do that. However,
another way of reading it suggests that one cannot quote what we have
now legislated on and pray it in aid as an example
of the new framework when looking at the old framework. For those
reasons, I am not completely comfortable with subsection (4), because
it either has a purpose or it has not. If there is no purpose to it, it
should not be there, and if there is a purpose, we need more detail on
what it
is.
Mr.
McNulty:
As we have discussed, the central purpose of
clause 20 is to provide clarity and reassurance on the fact that it is
right to give information to the intelligence and security services to
enable them to undertake their vital work. Amendment No. 69 would
remove subsection (4) from the clause, as the hon. and learned
Gentleman has indicated. The purpose of subsection (4) is to make it
clear that previous disclosure of information to the intelligence and
security services or by the agencies would not be unlawful following
the introduction of the specific gateways provided by the Bill, but it
is about exemptions. Until now, the reliance has been on common law,
perfectly reasonably and legally, so it is not about retrospectivity or
about seeking exemptions for what has gone before.
However, it would be perfectly
reasonable to ask whether subsection (4) means that the intelligence
and security agencies are currently engaged in illegal activity. The
hon. and learned Gentleman has suggested that that might be questioned,
but I am not suggesting for a moment that that is a perverse
interpretation.
Mr.
Grieve:
No, I did not read it that way at
all.
Mr.
McNulty:
No, but others are far more mischievous than the
hon. and learned Gentleman, so it might be read that way. To get the
clarity provided by the interlocking nature of clauses 19, 20 and 21,
we think that it is appropriate to put that phrase in to say that, by
moving forward, we are not impugning at all any of the previous
activities that relate to the intelligence agencies, because they of
course were rooted clearly in common law.
Patrick
Mercer (Newark) (Con): I absolutely take the point that
the Minister makes—I also take the point from my hon. and
learned Friend the Member for Beaconsfield—but he keeps using
the word clarity. Subsection (4) will do nothing to add clarity, as far
as I can see. It merely obfuscates. In a spirit of helpfulness, could
we take out some of the double negatives. Would that make it clearer? I
do not wish to go down the route of the canard, which is a phrase that
the Minster has not yet
used.
Mr.
McNulty:
No, I have not used “undue
specificity” either, but I am sure that we will return to that
in due course. As the hon. and learned Gentleman has said, when
subsection (4) states
that
“Nothing
in the section shall be read as casting doubt on the
legality”,
it is simply
referring to the disclosure provisions. It would be utterly mischievous
if someone were to remove that
clause from the Bill, look at it in a broader context and say,
“Here we are. We have found a way to absolve the intelligence
agencies of anything they have done in the past.” That is what
the hon. Gentleman
implied but did not pursue. The clarity that I talk of is the clarity of
the relationships between, and the responsibility of, the agency and
others regarding the disclosure of information, and no more. We are
clearly setting up—in the jargon—the information gateways
to put all that on a statutory footing, and it is a much clearer
statutory footing than the previous root in common law. I shall return
to the hon. Gentleman, but first, there may be some who suggest that if
we are setting up the information gateway to afford the agencies the
ability to disclose information in that fashion, there was no legal
basis to do so before. There was, however. To get rid of any notion
that the legal basis was not rooted in common law, or that somehow
things are different now, we think that in the context of clauses 19,
20 and 21, the clause, however elegantly or otherwise written, is
entirely appropriate and utterly relevant.
Patrick
Mercer:
I entirely take the Minister’s points, but
can we please just clear up the English a wee bit? It is incredibly
confusing.
Mr.
McNulty:
It is, honestly, not for me to challenge either
the English in the Bill or the lexicon that passes for English in
English legalese.
Patrick
Mercer:
But you are a
Minister.
Mr.
McNulty:
Yes, I know that I am a Minister—for now
at least—but it is not for me to challenge the great tradition
of verbiage and distorted English that is legalese in English statute.
I thought that it was a rather elegant little phrase, but the import is
as I have outlined, and I am assured by those far more versed in these
matters than I that it is the appropriate way—albeit in doggerel
rather than in English—to put the matter across in statute. Who
am I—a mere Minister—to challenge the great and the good
in that regard?
Mr.
McNulty:
Talking of which, of
course.
Mr.
Grieve:
I am afraid that the Minister is not entirely
persuasive on that point. I am intervening on him—as I
understand it—so he has an opportunity to respond. It is
deliberately—
The
Chairman:
Order. I understood you to be
responding.
Mr.
Grieve:
I was not sure whether the Minister was giving way
or sitting down.
Mr.
McNulty:
At this stage, nor am
I.
Mr.
Grieve:
I shall take it that the Minister is sitting
down.
The
Chairman:
The debate can
proceed.
Mr.
Grieve:
I am grateful to you, Mr.
O’Hara.
I am,
perhaps, less kind to the Minister than my hon. Friend the Member for
Newark is about the phrase under discussion, which is quite
deliberately obfuscatory. I do not think that it can be reworded,
because it would have to be reworded either one way or another. One way
would be to do something that is unlawful, and pass retrospective
legislation giving a blanket exemption to the security services for
past potential misdeeds, which is not what the phrase says. The
alternative would be to water it down still further, in which case the
question would be, why is it there at all?
I am a little
puzzled, because it is not right for the Committee, or indeed for the
House, to construct a statement making it potentially impossible or
more difficult for a person, if they were minded to do so, to make an
allegation of illegality against any public authority or organisation.
The Minister has nailed his colours to the mast, and I have never
suggested that the Security Service or the Secret Intelligence Service
have acted illegally in that area, which is about disclosure anyway. I
rather take his view that the common law has covered it perfectly
adequately in the past and it is not an issue. We have a common law
right to do all sorts of things. I, as a lawyer, have an absolute
common law right, for example, to disregard legal privilege if I think
that legal privilege in information imparted to me is for the
commission of crime. It is in fact my duty in those circumstances to
tell somebody about it, irrespective of the legal professional
privilege that may attach to it. I do not think that that is the issue.
However, in those circumstances, I am remain puzzled about why
subsection (4) is in the Bill at all, unless it is because somebody has
a superabundance of caution or got unnecessarily twitched
up.
Tom
Brake:
Does the hon. and learned Gentleman agree that the
subsection is quite peculiar? Can he think of any other examples of
subsections of this
nature?
Mr.
Grieve:
I was about to say that I cannot, but in the
currency of things, I long ago discovered that if I find something odd
in drafting, somebody can usually find me a precedent or something very
similar in legislation, because that it is usually how parliamentary
draftsmen work.
I find
the subsection odd. I can just see the Minister’s point that
somebody might go to court and say, “What was done in the past
must have been illegal, because look at what has now been done to put
it right.” The answer to that is, “Not at all. Everything
done in the past has been done on the basis of common law rights of
disclosure, and we are quite confident about that.” In any case,
there is no reason that that could not be said without the subsection.
If it does not provide a legal protection, but is merely a device to be
waved in the face of a court, it would seem to be peculiarly
valueless.
Furthermore, a bit of me does
not like putting in statute something that appears to be of no value
and, as a result, fairly incomprehensible in its thrust. For those
reasons, I do not much like the subsection. As I have said, I might
have missed something. The Minister might be in position to respond
further—you might give him leave to do so, Mr.
O’Hara. At this stage, I am
minded not to press the amendment to a vote, but I
am sufficiently uncomfortable with it to think that it will be returned
to at later stages. It is just the sort of thing that I can imagine
being returned to in another place, if we do not return to it here. For
that reason, I hope that the Minister will give it further
consideration. I
wonder whether the subsection is necessary and whether it might not
have the unintended consequence of being a red rag to a bull. The
subsection might encourage people to argue before the courts that it
means nothing and that, therefore, they want to ferret around to find
out what has been done in the past, which would require common law to
be invoked to provide the two agencies with protection. I am inclined
to say that there is no point in having the subsection, so why not take
it out? However, I shall not press the Minister on that, but I hope
that he will reflect on what it really adds to the sum total of the
Bill.
Mr.
McNulty:
I have listened carefully to, and shall reflect
on, the hon. and learned Gentleman’s comments. However, it does
not detract from what I have said already. I think that the subsection
provides for a necessary requirement. As I said, it refers entirely to
clause 19 and the principle that information gateways be established
therein. It also needs to be considered that clause 19 simply reflects
sections 33 and 35 of the Serious Organised Crime and Police Act 2005
and the gateways established there, which we seek to mirror with the
intelligence agencies. Some have suggested that the common law on which
those agencies have relied thus far—perfectly properly—is
not only challenged by the establishment of the gateways in the Bill,
but by the initial gateways established by sections 33 and 35 of the
2005 Act. There should be no doubt about the need for subsection
(4).
Mr.
Grieve:
To make the position absolutely clear, is the
Minister suggesting that subsection (4) provides any kind of immunity
or protection against the security services being proceeded against for
breaches of the previous basis on which information was disclosed to
them? If the answer is yes, frankly we should have no part in it,
because it is retrospective legislation. If the answer is no, there is
no point in subsection
(4).
Mr.
McNulty:
I do not agree that there is no cause to have the
clause—if I can put it that way—because I think that the
latter point, and not the former one, is the right one. As I have said
before, it is not about retrospectivity, exemption or immunity.
Exemption and immunity are not required because all actions up until
now have been rooted in common law. As with the SOCA Bill and this
Bill, the subsection is included to confirm that that is the case. It
may be clumsy and the red rag to a bull, as the hon. and learned
Gentleman suggests, but I am told, and I am persuaded, that the
subsection is better in than out. It is only in that context, and only
referring to the disclosure provisions outlined in clause 19, do I
think that it is necessary. As I alluded to earlier, one could
mischievously—if one were far more mischievous than anyone
here—remove the clause from the Bill in its entirety, wave it
around and say, “Here we are.” Then we get into the sort
of terms of immunity exemption and everything else that has been
referred to. Notwithstanding the comments about my clarity being
another’s obfuscation,
or the other way round, the provision is appropriate to the Bill and I
think that it should stay there.
6.30
pm
Mr.
Grieve:
I have said my piece. I have urged the Minister to
think about the matter, as I suspect others will do during the passage
of the Bill through Parliament. I ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
McNulty:
I beg to move amendment No. 74,
in page 15, line 35, at end
insert—
‘( ) Schedule
(Disclosure and the intelligence services: consequential amendments)
contains amendments consequential on that
section.’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 78 and 79 and Government new schedule
2
Mr.
McNulty:
This group of amendments and
the change to the schedule are consequential and technical and they
follow from the thrust of clauses 19 to 21. Essentially, they reconcile
the disclosure and intelligence service provisions of clauses 19 to 21
with existing legislation through consequential amendments to, among
others, the Representation of the People (England and Wales)
Regulations 2001, the UK Anti-Terrorism Crime & Security Act 2001,
the Immigration, Asylum and Nationality Act 2006, which I put through
the House—if one lives long enough, one gets to amend the Bills
that one put through in the first place—and the Statistics and
Registration Service Act 2007.
Simply put, at the time that
the original clauses were tabled, the full extent of the necessary
consequential amendments were not appreciated and the amendments are
the logical consequences of the original clauses 19 to 21.
The amendments to the 2001
regulations are required to preserve the existing rights of the service
to receive information on the electoral register while removing the
restriction on onward disclosure. The other amendments refer in similar
fashion to, among other things, removing the existing bespoke
information-sharing gateways to the intelligence and security agencies
for revenue departments, immigration and nationality information, and
Statistics Board-related information. The provisions are unnecessary
given the new general provisions that allow any person to disclose
information to the intelligence services for the purposes of the
exercise of their
functions.
I know that
people bristle when a Minister says that the amendments are purely
technical and not to worry about them. I assure the Committee in this
instance that they are and I commend them with relish to the
Committee.
Amendment
agreed
to.
Clause 20,
as amended, ordered to stand part of the
Bill.
Further
consideration adjourned.—[Mr. Alan
Campbell]
Adjourned
accordingly at twenty
-
five minutes to Seven
o’clock till Tuesday 6 May at half-past Ten
o’clock.
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