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..
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.
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
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 dêtre 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 itI was briefly distracted for a momentI 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,.
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 subjectmaybe there is something that I ought not to
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 UKs 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 ServiceI 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. 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.
Sitting suspended for a Division in the House.
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.
Disclosure and the intelligence services: supplementary provisions
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 systemsI 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 Committees 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
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. 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 makesI also take the point from my hon. and learned Friend the Member for Beaconsfieldbut 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
Patrick Mercer: I entirely take the Ministers 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.
Mr. McNulty: Yes, I know that I am a Ministerfor now at leastbut 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 wayalbeit in doggerel rather than in Englishto put the matter across in statute. Who am Ia mere Ministerto challenge the great and the good in that regard?
Mr. Grieve: I am afraid that the Minister is not entirely persuasive on that point. I am intervening on himas I understand itso he has an opportunity to respond. It is deliberately
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 Ministers 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 furtheryou might give him leave to do so, Mr. OHara. At this stage, I am
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 Gentlemans 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 farperfectly properlyis 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 clauseif I can put it that waybecause 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 mischievouslyif one were far more mischievous than anyone hereremove 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 anothers obfuscation,
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.
( ) 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 Houseif one lives long enough, one gets to amend the Bills that one put through in the first placeand 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 oclock till Tuesday 6 May at half-past Ten oclock.
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