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There is no good reason to differentiate between those who have been asked by the intelligence services for information and those who wish to volunteer it. In each case the information can be equally important to preventing an outrage or bringing a terrorist to justice. We should be encouraging and facilitating our citizens, and others, to co-operate with and help the intelligence services to do their work by providing information. For that reason I ask the Committee to resist this amendment. As I say, I do not believe that it would achieve the objective which the noble Baroness seeks.
Baroness Manningham-Buller: I nearly intervened several times while listening to the discussion, particularly when I heard the police being accused of going on endless fishing expeditions. That is simply not true. The Minister referred to the difficulty that the amendment might suggest that people cannot volunteer information. People communicate extensively with the Security Service through either its public telephone number or its website. Much of the information that they provide is of little use, but it may contain vital nuggets, which is sometimes passed directly on to the police but is useful in a number of ways.
The noble Baroness’s suggestion that the Security Service either wants or receives dumped information that is not relevant to its functions is wrong and misunderstands the very close relationship between the Security Service and the police in all counterterrorist investigations. There is a daily, hourly, minute-by-minute
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I understand that this was meant to be a probing amendment, but I reassure the noble Baroness that there is certainly no intention or wish to collect a whole lot of information that is not relevant to the Security Service’s functions, and it would be wrong to do so.
Baroness Miller of Chilthorne Domer: I am very grateful to the Minister for his reply and to the noble Baroness, Lady Manningham-Buller, for her expert intervention. The House is fortunate to have her depth of knowledge. She referred specifically to anti-terrorism work, but the clause is drafted more widely than that, because it refers to,
I hear what the noble Baroness says, and I shall read it very carefully. I shall also read the Minister’s detailed reply. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Harris of Richmond moved Amendment No. 24:
24: Clause 19, page 15, line 25, leave out paragraphs (a) and (b) and insert “any contractual or other obligation owed by the person making the disclosure, other than a breach of confidence.”
The noble Baroness said: The amendment would retain confidence breach as a potential consequence of passing information on to the intelligence services.
Clauses 19 to 21 allow for any person to speak to the security services in connection with any of their functions, without breach of a contractual duty or breach of common law duties of confidence. We imagine that those provisions have arisen in response to concerns in specific cases about the willingness of individuals to pass on information. We do not have any comment to make about the provisions with regard to, for example, breach of contractual obligations. We agree that the passing on of potentially valuable intelligence should not be jeopardised as a consequence of concern over potential civil action.
We are more concerned about breaches of obligations of confidence. The special nature of the relationship is, for example, recognised in Section 19 of the Terrorism Act 2000, which created an offence of failing to disclose a suspicion about terrorism arising from a person’s employment. Section 19(5) has a specific exemption; it does not apply to information received from a professional legal adviser. There are other relationships of confidence that we believe warrant special consideration, including medical professionals and religious advisers. Rather than creating a blanket exemption from the possibility of a civil action for breach of any duty of confidence, we believe that Section 19 should recognise the importance of some such relationships of confidence.
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It is important to appreciate that these amendments do not mean that any disclosure to the security services will result in a breach of confidence. It simply removes the absolute nature of the provision that there can be no breach of confidence when information is passed to the security services. There is already a defence of acting in the public interest to actions of breach of confidence. In deciding whether the defence applies to a particular claim, a court must balance on the facts the need to enforce obligations of confidence against the public interest in disclosure of the information of the type at issue. Any disclosure in the public interest must have been proportionate for the defence to succeed. I beg to move.
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Lord West of Spithead: I understand what the noble Baroness is trying to achieve, but I oppose the amendment. The intelligence services fulfil a vital role in keeping safe the citizens of, and visitors to, this country. Information is the key commodity in achieving this. Of course, some of that information comes from secret sources, but we must not overlook the contribution from ordinary men and women in providing the intelligence services with information, as the noble Baroness, Lady Manningham-Buller, said, that they think they should have access to so that the intelligence services can do their job in helping to protect us.
Under common law, a person can, in the public interest, disclose information while under an obligation of confidence or other restriction; that is, they can make a disclosure where this serves a higher public interest than the obligation of confidence. Clause 19(6) makes it clear that this is the case when someone wants to give information to the intelligence services to enable them to do their work.
This amendment would override the principle currently recognised in common law that the greater public interest may lie with protecting national security. It would prevent a person making a disclosure where it would breach an obligation of confidence and suggest that in all circumstances a duty of confidence represented a higher public interest than national security. This proposition is not recognised in common law, nor is it one with which I can agree.
The current clauses provide certainty and clarity to everyone who thinks that they have information that they should share with intelligence services so that they can do so in the certain knowledge that they are acting lawfully. The clauses put the agencies on a similar footing for national security, terrorism and the prevention and detection of serious crime. The Serious and Organised Crime Agency is already on that footing for the prevention and detection of crime. It must be noted that the amendment would not only perpetuate the anomaly between SOCA and the intelligence services, but it would make it worse. With the amendment, a person could give information to SOCA in order to prevent crime, but not to the intelligence services to prevent serious crime or even a terrorist attack, if in doing so they breached an obligation of confidentiality. This cannot be right. I am sure that that was not intended by the amendment.
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It must be borne in mind that there is no obligation on anyone to give information to the intelligence services. We are discussing here a situation where a person thinks he or she has information that should be given to the services. It must also be borne in mind that neither service, under their governing legislation, the Security Service Act 1989 or the Intelligence Services Act 1994, can obtain or accept information, except as far as is necessary for the proper discharge of its functions.
That is why this amendment is not just unnecessary but unhelpful and should be resisted, although I understand what the noble Baroness was trying to achieve.
Baroness Harris of Richmond: I am grateful to the noble Lord for his care in how he dealt with the amendment and for what he has put on record. That will go a long way in countering some of the concerns expressed. To have responses on record is a valuable way of ensuring that people understand the issues that we are dealing with. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Harris of Richmond moved Amendment No. 25:
25: Clause 19, page 15, line 30, at end insert—
“( ) Nothing in this section shall require a person to disclose information to any of the intelligence services for any purpose.”
The noble Baroness said: This is simply a probing amendment to allow the Minister to reassure us that disclosure is entirely permissive and that there is no possibility that the clause may be used in a more aggressive manner to seek information which results in the person from whom the information is being sought feeling that it is not being extracted in a permissive manner. I beg to move.
Lord West of Spithead: This amendment is unnecessary. There is nothing in this clause or elsewhere which could be taken to mean that an individual could be required to disclose any information to the intelligence services. Laws that have no effect are generally held to be bad law, and the amendment, therefore, is totally unnecessary. To include it would cause confusion.
The purpose of Clauses 19, 20, and 21 is simply to make it clear that appropriate information—that is, information to enable the intelligence services to undertake their statutory functions—may be voluntarily passed to an intelligence service and, when this is done in accordance with these clauses, disapplies any obligation of confidence or restriction on the disclosure of that information. It is a clarifying and enabling set of clauses relating to the voluntary giving of information, and it in no way purports to place an obligation on any person to provide information. I must therefore resist the amendment.
Baroness Harris of Richmond: Once again, I am very grateful to the Minister. It is important to have that in Hansard to clarify the situation. I thank him very much and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Baroness Miller of Chilthorne Domer moved Amendment No. 26:
26: Clause 19, page 15, line 30, at end insert—
“( ) Under this section, only information concerning persons under investigation may be disclosed by the security services for the purposes listed in subsections (3) to (5).”
The noble Baroness said: This is the last in this series of probing amendments to explore the extent of these provisions. This amendment deals with the fact that, as written, subsections (3) to (5) of Clause 19 allow the security services to disclose any information for the purpose of exercising their functions. This seems to mean that they can disclose information about innocent people without restriction so long as this serves a purpose.
I think that the intention behind the clause is to allow information relating to a criminal or suspect to be released by the security services as part of wider investigations, which we believe to be a proportionate use of personal data. On the other hand, it would not be acceptable for the security services to disclose information which might be of a personal or sensitive nature relating to innocent individuals who are not under investigation, even as part of the exercise of their correct functions. The intention behind the amendment is to discover from the Minister to what extent the release of information about innocent individuals is restricted. I beg to move.
Lord West of Spithead: The amendment states that,
- “only information concerning persons under investigation may be disclosed by the security services for the purposes listed”.
I think there is a technical defect in the amendment in that it introduces the undefined term “security services”. I assume that it was intended to say “intelligence services”, although I am not sure.
Perhaps I may give the noble Baroness a short example which might put across what I think she was trying to achieve within this probing amendment and which will show why the amendment is flawed. Let us say that the intelligence services receive creditable intelligence of a threat against a Member of this House and, for the purposes of this example, let us assume that the Member is not under investigation, which I hope is a fair assumption. I imagine that I need not join any more of the dots. The truth of the matter is that the work of the intelligence services is not limited to the investigation of individuals. A great deal of their vital work is the protection of individuals, critical national infrastructure and society, both in part and as a whole at home and abroad. I know that this House in general commends and salutes the work of the services but, as I said, it is not just a matter of investigating individuals. I hope that that example will clarify that and, for those reasons, I ask the noble Baroness to withdraw her amendment.
Baroness Miller of Chilthorne Domer: I am very grateful to the Minister for that explanation and for pointing out that our drafting was wrong. He is quite correct: it should have read “intelligence services”. In concluding this group of amendments, I should like to concur with his remarks from these Benches. We recognise the enormous contribution that the intelligence services
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Amendment, by leave, withdrawn.
Lord Dubs moved Amendment No. 27:
27: After Clause 19, insert the following new Clause—
“Disclosure and the intelligence services: safeguards
Information disclosed by virtue of sections 19(3)(c), 19(4)(d) or 19(5)(b) which has been obtained from authorities or persons outside of England and Wales, must be accompanied by a statement—
(a) for section 19(3)(c), from the Director of the Security Service,
(b) for section 19(4)(d), from the Chief of the Intelligence Service,
(c) for section 19(5)(b), from the Director of GCHQ,
setting out the steps taken to ascertain the circumstances in which such information was obtained and that it had not been obtained by torture.”
The noble Lord said: I am a member of the Joint Committee on Human Rights, and the amendment and one or two others that we will be discussing on Monday and later stem, in part at least, from the work of that Select Committee.
There is a small error in the amendment. It refers to England and Wales but should refer to the United Kingdom, in case anyone draws conclusions about Scotland and Northern Ireland.
The Minister arranged for some of his officials to be here this morning so that we could discuss aspects of the Bill with them. I was happy to do that. Through the Minister, I would like to express my thanks to his officials for being very patient in dealing with the various points I raised.
Essentially, the amendment concerns torture. Torture is absolutely unacceptable. Of course, evidence obtained through torture is, or certainly ought to be, completely unacceptable. I appreciate that, when evidence comes in from abroad, it is not always possible for the powers that be to know for certain whether it has been obtained in the way in which it would be if it were obtained internally in this country, but it is right for us to say that certain safeguards ought to be required. Clearly, in this country we would not use evidence that had knowingly been obtained through torture. I think that is clear and there is no doubt about that. The question is: how much trouble do we go to to ensure that that is the case? It is possible for evidence to come in and for the authorities to say, “Well, it doesn’t look as though it came from torture, so let’s just make use of it”.
The point of the amendment is to put greater responsibility on the three services or individuals mentioned—the Security Service, the intelligence service and GCHQ—so that the directors and chiefs of those organisations will have ensured, as much as possible, that none of the information had been obtained through torture. I would contend that this is almost certainly what they do anyway. Therefore, we are simply asking that this be made clearly and transparently known in a
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In the amendment we are seeking a safeguard that everything possible is done to ensure that information has not been obtained through torture and that quite a lot of trouble is taken to ensure that that is not the case. Nothing can be 100 per cent clear, but I contend that we can go further down that path than is the case at the moment. I beg to move.
The Earl of Onslow: My name is to this amendment. I agree completely with what the noble Lord, Lord Dubs, has said. Furthermore, I would like to underline the fact that amendments in my name and those of the noble Lords, Lord Dubs and Lord Lester of Herne Hill, and the noble Baroness, Lady Stern, come from deliberations in the Joint Select Committee on Human Rights whose views on this Bill are like the shield wall of Thermopylae. You could not get a chink between any of us on these matters. On other points, there have been differences of opinion, such as on how we would approach the issue of the Bill of rights, where people expressed different nuances. But on this you cannot get a single chink between any of our views, either in the Commons or in the Lords. It is very important to make that point.
I would really like to hear from the noble Baroness, Lady Manningham-Buller, and from my noble friend Lady Neville-Jones. Could we possibly call them the Bond girls in this arrangement?
Baroness Manningham-Buller: No.
The Earl of Onslow: No, the noble Baroness says, over there. Could we hear from them exactly what the attitude of the intelligence services is? That would underline what the noble Lord, Lord Dubs, said. I think I am right in saying that, if it can be shown that evidence has been obtained through torture, it is inadmissible in court. To ensure it does not happen is another extremely important reason for hearing more on this.
Baroness Harris of Richmond: I want to put on record, on behalf of my noble friend Lord Lester of Herne Hill who is unable to be in his place, the fact that we on these Benches very much support these amendments.
Baroness Hanham: I have one question. I understand that work is in hand with our allies against terrorism to prevent torture evidence being obtained. Is work going on and how is that proceeding?
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Lord West of Spithead: I shall answer the noble Baroness, Lady Hanham, first. I am not aware of that work. Torture is discussed quite often. We take the issue very seriously, and we will not compromise our views. I am not sure what work is going on. I shall find out whether there is something that I can tell the noble Baroness, and if there is, I shall do so. She may or may not hear something.
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We have great sympathy for the aims that lie behind this amendment. I thank the JCHR for its work because before I stand up and talk about these things, I look at its views and read its reports. I do not agree with everything it says, but in general—
The Earl of Onslow: The noble Lord may change his mind very rapidly from agreeing with us, seeing the Prime Minister and disagreeing with us 10 minutes later.
Lord West of Spithead: I do not intend to go down that route, and under the Rehabilitation of Offenders Act it should not be referred to.
The amendment requires every acquisition of information obtained by the intelligence and security agencies from authorities or persons outside England and Wales to be accompanied by a statement setting out the steps taken to ascertain the circumstances in which the information was obtained and that it had not been obtained by torture is unworkable.
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