Justice and Security Bill [HL]
Baroness Manningham-Buller Excerpts(11 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Manningham-Buller
My Lords, I hesitate to stand after the really important contributions by so many Members of this House, including a number of very noble and learned Lords. I do not want to make a long speech, but there are some points that have possibly not been touched upon. The central problem here is about litigants, not defendants. It is about people making claims that currently cannot be heard. This is an attempt by the Government to find a way, imperfect as it is—“a second-best solution”, in the words of David Anderson QC—to get these cases heard and to put into court, albeit in a restricted way, material that is not currently put into court, so that there is a better chance of the full picture being seen by the court. David Anderson said—if I may, I quote him slightly to correct him:
“We are in the world of second-best solutions”.
He added:
“But it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.
This does not seem to me to be primarily about the reputation of the security and intelligence agencies. The service of which I was once a member welcomes scrutiny. If we disobey or break the law, we should be prosecuted. The first part of this Bill is about greater scrutiny. I expect that scrutiny to evolve and over the years to become more detailed. However, the reputational damage is significant in a way that has nothing to do with personal feelings; it is to do with whether these organisations, which are funded by the taxpayer and scrutinised by Parliament and other bodies, are going to be less effective as a result of this reputational damage. This needs resolution, but it is not primarily about that. It is primarily about making sure that some of these extraordinarily serious allegations are actually heard. At the moment, we do not have an inquiry. I believe that some criminal investigations are happening, but there are still a whole lot of allegations out there that are not resolved, and this would be a way of resolving them.
There is one other point I want to make, which I think speaks to the amendment made by the noble Lord, Lord Macdonald. On the face of it, the amendment looks unexceptional, but I think it is a question of the confidence of our human sources, which is very important. I do not need protection; they do. A point made by the noble Lord, Lord Owen, was that human sources are either approached by the intelligence and security agencies inviting them to provide information in confidence or they approach us or they are the sources of an ally. Not all of them but many of them do so with the highest motives, and in many cases their lives are at risk—although, again, not always. I look to my noble and learned friend Lord Brown. Obviously I entirely agree with him that national security is undefined and that there is a spectrum. There are some things, which he mentioned, at one end of the spectrum that might be labelled “national security” but are not damaging to reveal. However, at the other end of the spectrum—this has not really been discussed today—there is some highly sensitive and secret material in relation to which the risk to human sources’ lives is high.
I know that I am a bit repetitive on this issue in the House and I apologise, but I still think that it is not given enough attention. Technology is vulnerable. If we expose it in a careless way or in a way that is not protected by this legislation via the test that open justice means that we can ditch the national security side of things—I know that the amendment of the noble Lord, Lord Macdonald, is not as crude as that but there is a suggestion that the two things can be held in balance, and I look again to the point made by my noble and learned friend Lord Lloyd—that will potentially have a very chilling effect on the willingness of people to offer us information. I hope that that is wrong but, if it does have that chilling effect, we will cease to get the information.
Lord Thomas of Gresford
Does the noble Baroness know of a single case in which sensitive security material such as she talks about has been released to the public or to anybody as a result of even the present procedures that apply to this?
Baroness Manningham-Buller
No, but I am saying that if the amendment balances national security versus open justice, however much my former colleagues might seek to reassure human sources that they will be protected and the courts rely on that protection, I fear that they will be apprehensive and will not be willing to talk to us. That is already an issue. That is what I am talking about—not whether the courts and judges have mishandled things. I am not suggesting that for one minute.
Thirdly and finally, I wish to pick up the point made by my noble and learned friend Lord Brown about national security not being defined. If this material were such that it could be redacted or gisted, or if people could give evidence anonymously, we would not need this Bill. To use the words of David Anderson, who is new to this subject and as the independent reviewer of terrorism has looked at all this, these cases are saturated with it and, if it is redacted to that degree, there is nothing to put into the court.
I shall not say any more this evening but I remind the House of the potential damage that we have to continue to guard against.
Lord Phillips of Sudbury
My Lords, I fear that I have to disagree with two eminent judges—the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern. The noble and learned Lord, Lord Woolf, talked about the judges being in the driving seat and the noble and learned Lord, Lord Mackay, said that under the amendments to the Bill huge discretions are given to judges which we can safely leave in their hands. I agree with both, but the car of the noble and learned Lord, Lord Woolf, and the discretions of the noble and learned Lord, Lord Mackay, are bounded by the Bill we are debating. I believe that Amendments 6A and 6B extend further, although not radically, the protections that I consider necessary in such an important incursion into the ancient liberty of open justice.
Although the Minister made an exemplary opening speech in trying to explain this vast set of important amendments, I am bound to say that where the Government are trenching on open justice, the onus is on them to prove their case beyond peradventure. I do not think that that has been done. The very phrase, “closed material procedures” is a sort of euphemism. Out there people talk of secret courts and secret justice and, of course, they are right. We have had some wonderful speeches tonight, but I was particularly impressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who has behind him possibly a unique body of experience among those in the Chamber at this time through his work as a reviewer under RIPA. I think that I am quoting him rightly. He said that the important and salutary message that we need to send out from this House is one that persuades the country that while doing our difficult duty, and my word, it is difficult to strike the balance, we are none the less—if there is erring on one side or the other—erring on the side of open justice.
I shall finish by adding to the point that the noble and learned Lord made, and the points made by the noble Baronesses, Lady Berridge and Lady Kennedy of The Shaws. One cannot look at issues of extreme violence in some sort of academic vacuum. There is a propensity to violence among our fellow citizens and to extremism of different kinds—the kinds that the security services have to deal with, reminding us how enormously difficult their task is. That does not come out of a clear blue sky; it is the product of social and political contexts within which they live and of which they have experience. Although it is difficult to get one’s hands round this, if we can show that we have gone to every possible, sensible length to minimise trespassing on the principle of open justice, that will help to send out a message in relation to this Bill, which is being closely followed around the country. It will send out the best message, which is least likely to give cause in places we will never go for an increase in the extremism which is the very devil we are trying to guard against.
Amendment 6A, the widely balancing principle, and Amendment 6B, the exhaustion of all other remedies, so to speak, are significant improvements to a Bill that has been hugely improved by the Government, but which would benefit from these further two refinements.
Justice and Security Bill [HL]
Baroness Manningham-Buller Excerpts(12 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord King of Bridgwater
I do not think I have ever quoted Donald Rumsfeld, but when my noble friend very firmly asserts that there was no risk to national security, my worry always is the,
“things we don’t know we don’t know”
in these issues as to what sensitivities there may be. That is the worry that emerges out of this.
Let us be quite frank, there is not always a huge enthusiasm to share intelligence. There are plenty of people in the intelligence agencies of other countries who are very secretive indeed about the intelligence that they have and deeply distrustful of any other country that they do not believe will properly protect it, so any excuse that they can have—which they will argue internally in their own organisations—not to share intelligence in this way is something that we have to be extremely careful about.
It is against that background that I look with great interest to the reply of my noble friend the Minister. I have listened with great respect to the points that have been made. Some very good points have been made about the importance of ensuring judicial discretion in these matters. I got the impression that the Government have already moved quite significantly in that direction, which I wait to hear. However, in respect of my noble friend’s Amendment 31, I think that CMPs definitely have an advantage over PIIs. I do not support Amendment 31. I support the noble Lord, Lord Owen, in what he said about Amendment 48. I believe that Amendment 50 is also one that people have reservations about and I hope that that will not be pressed either.
Baroness Manningham-Buller
My Lords, I well understand the concern coming from all angles of this House on this legislation, and it is entirely right that these issues are fully scrutinised and judged by us. I think that everybody accepts that what is proposed is not ideal, but the question is: what is the best answer? There is the central dilemma of how to deploy into court a wealth of secret information that can be judged and weighed by the court without compromising it.
I am sorry to repeat this, but I think that I have to: the dangers of compromising secret information are several. The first is the obvious risk to the officers who are concerned with it and, as the noble and learned Lord, Lord Carswell, made clear, to the sources of it. The second is the technologies that are available but are fragile and can no longer be used. We are trying to deal with those two things.
If the House will indulge me, I want to say something pretty personal. It is deeply distressing to me and to my former colleagues to be accused of really wicked iniquities in the case of torture and maltreatment. We have not been able to defend ourselves. The closed material procedure gives the opportunity for this material, which may or may not reflect badly on the security and intelligence services—I naturally think that it would not, but others may judge differently—to be looked at. We have been judged by many to have been engaged in criminal activity. But there has been no prosecution; there has been, concerning my service, one police investigation and the CPS found no case to answer. There are other police inquiries going on at the moment and, because I believe in and respect the rule of law, I cannot comment on them; we will see what the outcome is. However, I believe that closed material procedures are a way in which the judiciary can make a judgment on the validity of those claims. We need CMPs for a range of reasons, and I am glad that it seems that, with some exceptions, the need for them is accepted by this House.
When we get on to the next part of the Bill, we will talk about intelligence sharing and Norwich Pharmacal. I may wish to comment at that stage; I do not now.
PII, apart from keeping out of court material that we wish the judge to look at, will be impractical in some cases. I believe—this is information from my former colleagues because I had retired by then—that around a quarter of a million documents were involved in some of the claims that have already been settled. Going through those line by line would be a mammoth and very long task.
Finally, perhaps I may pick up the point made by the noble Lord, Lord Faulks. We should hope to avoid reaching a stage where, because of the need for the open practice of justice and because the balancing act rules out the use of secret intelligence, the Government will have to withdraw and settle and we might get back to where we started, with these cases not being heard. That is a risk that we will probably have to cope with, but I hope that the House will support the central value of having some proceedings to hear these cases in the absence of any at the moment.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank all noble Lords who have taken part in this debate. By any account, it has been a very well informed debate, with people speaking from some rich experience. The contributions from those who claim to have no legal background are equally important in bringing the perspective of those who do not deal day-in and day-out with legal issues. As my noble friend Lord Elton said, we are dealing with the difficult issues of trying to achieve a proper balance between liberty, justice and security.
I was encouraged by my noble friend Lord Elton to look at the amendments in turn, but perhaps I may make some introductory remarks. It has been some time since we last considered Part 2, although much has been said about it in the mean time. It is important to remind the House why the Government have brought forward the clauses introducing closed material procedures into civil proceedings where sensitive national security material is relevant. As my noble friend Lord Marks indicated, in a letter which is available in the Printed Paper Office, which I sent to the chair of the Joint Committee on Human Rights, we believe, having done a cross-departmental trawl, that there are about 20 current civil damages cases where material relating to national security would be central. There have been seven new cases during the 12 months leading up to 31 October this year. As my noble friend said, if for some reason we were thought to be a soft touch and did not have any means of properly determining those cases with evidence being allowed to come before a judge, a trend could be established.
Intelligence operations depend, inevitably, on surveillance, investigation and, most critically, information -sharing between agencies, their sources and their liaison partners, as was said by my noble friends Lord King and Lady Neville-Jones. Underlying those arrangements are two principles. The United Kingdom does not confirm its involvement or the involvement of its liaison partners and sources, as to do so would result in a loss of trust and information-sharing would dry up. We rely on others to keep our information safe; and our partners rely on us to do the same. Although much reference has been made to the United States, I recall from our deliberations in Committee that it was made clear that there is a number of other countries whose information we also depend and rely on.
In cases where people are bringing proceedings alleging that the Government were involved in detention, rendition or torture, the Government’s defence would be likely to include: the nature of any involvement, which would require the Government to breach their long-standing policy not to comment publicly on whether or not they had been involved in any particular operation; what the Government knew at the time, potentially risking the lives and safety of sources; what the Government had shared with their partners, potentially revealing the fact of, and nature of, relationships with partners; and any assurances sought and/or received about an operation, again, potentially revealing the fact of, and nature of, those relationships. All those things could be central to any defence and none of them could be put in the public domain without the risk of jeopardising the safety of sources or the willingness of partners to work with the United Kingdom.
It is interesting that the shadow Justice Secretary is on the record as saying:
“In two and a half years’ time, it could be me in that seat making that tough decision. So it is very important for ministers to have the opportunity to protect sources, to protect delicate operations and all the rest of it. They shouldn’t be jeopardised by a civil action”.
At present, as has been said in our debate, the only way to prevent the disclosure of such highly sensitive national security material when civil litigation arises is through public interest immunity. Although the system of PII works well in most cases, it is not working in a small number of cases that hinge on sensitive national security material. That point was clearly and eloquently made by the noble and learned Lord, Lord Woolf. He said during our deliberations in Committee:
“PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material”.—(Official Report, 11/7/12; col. 1189.)
PII requires the court to balance, on the one hand, the damage that would be caused to the public interest with, on the other hand, the public interest in the administration of justice. That includes the impact excluding the material will have on the claimant’s and defendant’s cases, as well as the general public interest in open and transparent proceedings—the so-called Wiley balance.
Justice and Security Bill [HL]
Baroness Manningham-Buller Excerpts(12 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Reid of Cardowan
Perhaps I may respond and then I will give way to the noble Baroness, Lady Manningham-Buller. I was not trying to parody or even respond to the argument of the noble Baroness, Lady Kennedy, with the exception of her incorrect statement that there is no one from Labour here and her reference to Pakistan. The rest of it actually applied to the generality of the arguments that I have heard since I came in. I have made my position known on torture, but I have also made my position known on the obligations of government to protect the rights of the British citizen, including the basic one of the right to life.
Lord Strasburger
Can the noble Lord tell the House about a single occasion when a British court has released into the public domain any information that has been detrimental to the country’s national security? Can he name a single one?
Lord Reid of Cardowan
The explanation for a no is always more substantial than a straight no.
Baroness Manningham-Buller
My Lords, I feel I have to rise to speak because of the presumption of guilt suggested by some people on the part of my organisation in the past. I should say first that torture is a crime in our law and in international law. It is morally wrong, ethically wrong and it is never justified—even when, as the Americans would claim, you get the truth from it. That is irrelevant. It is not what a civilised country does and it is illegal. For my colleagues to be accused of it is to accuse us of a crime.
I can now talk about the Binyam Mohamed case. We interviewed him in Pakistan in 2002, where he was in American custody. Later that year we sent questions to the Americans to put to him. There were two things that we did not know in 2002. We did not know that our closest intelligence ally was resorting to waterboarding; that is, torturing people. We did not know that in 2002. Additionally, we did not know that Binyam Mohamed had been rendited by the Americans to Morocco. Had we known that, we would have been more careful about the questions we had put, as I said to the parliamentary committee in 2006 and as it was recorded in its report. Certainly we regretted that.
Because torture is a crime, the person who interviewed Binyam Mohamed in Pakistan was extensively investigated by the police. A report went to the Crown Prosecution Service and it was decided that there was no case to answer. If any of my colleagues had been involved in criminality, the criminal courts—we are not talking about civil proceedings here—the police and the Crown Prosecution Service would have been involved. We are absolutely subject to the criminal law, and so we should be. But I find it pretty difficult to accept a presumption of guilt without it being proved in a court.
I shall put a caveat on that, picking up the comment of the noble Baroness, Lady Kennedy. I cannot talk about matters to do with Libya because those are the subject of current civil proceedings, as I understand it, and criminal investigations. It would be inappropriate for me to comment at this stage.
Baroness Kennedy of The Shaws
I must ask the noble Baroness if she was listening when I made my speech. I made it very clear that there was no suggestion of British officers being directly involved in torture. I spelt out clearly and precisely what the noble Baroness has just described—being in places where people were being detained, providing questions and information that was ultimately used in interrogations where horrifying procedures were used. We know that happened in Binyam Mohamed’s case, and I made the suggestion that there was compelling evidence that it had happened in other cases. I would ask this question of the noble Baroness: does she accept that Britain played any role at all in rendition?
Baroness Manningham-Buller
Because it relates to the Libyan thing, I cannot answer the question. It is the subject of criminal investigations.
Lord Macdonald of River Glaven
I am going to be fairly brief. I hope that the noble Lord, Lord Reid, will accept that I have an abiding interest in national security. I was Director of Public Prosecutions and chief prosecutor for some of the period that he was Home Secretary, and during the worst of those years that he has been referring to, between 2003 and 2008. We had the London bombings on 7 July, the attempted bombings on 21 July, the airline plot, the dirty bomb plot, the fertiliser plot, and a conspiracy to plant bombs in the Bluewater shopping centre—deliberately at half term, so that there would be women and children present.
I understand all those issues. I should like to say to the noble Baroness that my presumption is that members of the security services do not go to work to commit crimes and that they work tirelessly in the national interest and to protect public safety. That is my view about national security and about the security services. I think that the debate that we are having here is slightly different from that and I do not believe that anything that is proposed in this amendment would damage national security in any way or needs to be in effect an insult to members of the security services. It is a question about the sort of legal system that we want, and therefore questions of law are bound to intrude. But I accept the national security context.
Baroness Manningham-Buller
I am not insulted, I just feel that when the suggestion is that we have committed serious crime, I need to retaliate to that.
Lord Macdonald of River Glaven
I understand that.
What I want to do is to return, I am afraid, to the legal context. I will be fairly brief. I want to address three questions in the context of closed material procedures: one is public confidence; one is fairness; and I think the most important one is the delivery of justice, as this has been a large part of the Government’s argument. To what extent can closed material procedures deliver justice where no justice is presently available?
The first issue is public confidence. How is public confidence in the justice system achieved? My own view is essentially that it is won through securing the trust of the public. This is achieved in a number of ways, particularly I think through openness and—that overused word—transparency, especially in terms of the judgments given. It is particularly important that judgments in cases are given in public and so the judgment itself is open to public scrutiny. If a judgment is not open to public scrutiny, that judgment will struggle to win the trust of the public. Why should the public believe that something is so simply because a judge says that it is so? The ability to scrutinise a judgment is absolutely critical.
Not least of the damaging effects that closed material procedures may have—I think will have—will be to damage public confidence in our judiciary. Who is to trust a judgment against him made upon the basis of material that he has never seen? What litigant would trust the judge who makes the judgment based upon material that that litigant has never seen? The question of public confidence is not simply a question of public confidence in the system, it is a question of public confidence in perhaps the most important people who populate the system, the judges.
This brings me to my second point, fairness. I think that everyone accepts, as they must, that closed material procedures are unfair. In one profound sense, and I do not need to labour this point, they are not fair because they are not balanced. As the noble Lords have been told, special advocates are very eminent lawyers instructed by the Government to secure fairness in these proceedings. It is well known that the special advocates themselves oppose the creation of closed material procedures precisely on the grounds that they believe that the process is unfair. I remind the noble Lords again of something that the noble Lord, Lord Strasburger, said. These special advocates, who have been in all these cases, have said that they have not seen a single case in which the issues could not properly be litigated safely using PII and other ancillary procedures, securing justice without revealing the slightest hint of national security secrets.
The final and perhaps most important point of all—it has been made persuasively by the noble Lord, Lord Lester, and others—is the delivery of justice. This has been a common theme in this debate, including contributions from very distinguished former judges. The argument is that closed material procedures will provide some justice where none is presently available, in the absence of material that would otherwise be excluded under PII; in other words, the courts will now be able to consider material that they could not consider before, and that is a better form of justice.
Baroness Manningham-Buller
I just say that I understand the concerns about the scale of the paragraph on sensitive intelligence. Equally, I think that Amendment 73 is a bit too narrow. Perhaps the Government can table something between the two by the next stage.
Lord Wallace of Tankerness
I am very grateful to the noble Lord, Lord Pannick, for moving his amendment and the noble Baroness, Lady Smith, for speaking to her amendments. There is recognition on both their parts and across the Chamber of the importance to us of information which we receive from other intelligence agencies. It is often crucial, and it is important that we can reassure them of its confidentiality. We have been trying—I acknowledge that this is the spirit in which the amendments have been moved—to ensure that there is a proportionate response to ensure that the information is protected.
There is the fundamental problem that the novel application of the Norwich Pharmacal jurisdiction, which has its origins in the intellectual property sphere of law, into the national security context has potentially been damaging to the United Kingdom's national security and international relations. As I have said, its very existence can erode the confidence of our agents and our intelligence-sharing partners that we can protect the secrets they share with us. Moreover, in the case of human agents—because it is not just information that we receive from other intelligence agencies; it is important to remember our own agents—there are real concerns of threat to life if there is a requirement to disclose. Each case that goes through the court has potential to cause damage, not just through the disclosure of sensitive information but by highlighting the risk that it could be disclosed.
In addressing the amendments moved and spoken to by the noble Lord, Lord Pannick, I will indicate that in this sphere we believe there is a need to provide certainty and to reduce the scope for litigation. The noble Lord’s suggestion of moving to a certification model, with a narrowed definition of what qualifies as sensitive information, would allow the uncertainty and damage to remain. If we do not legislate in a way which provides sufficient clarity, we could again have the difficulty that our intelligence-sharing relationships stand at risk of deteriorating.
A certificate-only approach would only partially address the concerns of our intelligence partners and of our own agents that sensitive information is at risk of disclosure under the Norwich Pharmacal jurisdiction. It might leave them with the fear that a certificate might not be upheld and that their material might ultimately have to be disclosed. That in itself could have a chilling effect on the activities of our intelligence services and our intelligence-sharing relationships. An absolute exemption therefore provides a clearer and neater protection for this material and more certainty for our partners and our own intelligence services.
I turn to the restriction of the statutory protection to identity, which seeks to define what might be the intelligence with national security concerns. The noble Lord, Lord Pannick, illustrated this by the identity of intelligence officers, their sources and capability and to control principle material alone. We believe that is insufficient, as there is sensitive information falling outside of these two categories that also requires statutory protection. That picks up the point made by the noble Baroness, Lady Manningham-Buller, that this is far too narrowly defined.
Given that the work of the intelligence services is covert, a considerable amount of material would not fall into the category of identities and capabilities but the disclosure of which could nevertheless still be very damaging. Such information includes information about operations and investigations, as well as threat assessments in relation to sabotage, espionage and terrorism, assessments of vulnerabilities of critical national infrastructure or systems, military plans, weapons systems and information on the development or proliferation of nuclear weapons overseas. It may also include operational planning and intelligence reporting, as well as material relating to national security policy and intelligence policy issues and funding, and so on. I hope that giving these examples shows that it is a much broader sphere of activity than is proposed in the amendment.
Likewise, that narrow definition can also create scope for litigation about what does and does not fall within the definition—what, for example, would be meant by the “capability” of intelligence officers? These issues alone could result in lengthy litigation, all of which would divert intelligence officers from front-line duty. The model proposed by the noble Lord, Lord Pannick, also allows no statutory protection for sensitive information whose disclosure could cause damage to the interests of the international relations of the United Kingdom. This point was also picked up on one of the latter amendments in the group by the noble Baroness, Lady Smith. The Government need to offer protection to this category of material to ensure that our international partners remain willing to talk to us in a frank way, so that we can protect and further the United Kingdom’s interests. The mere embarrassment that would be caused from disclosure of diplomatic material would be no basis to certify. Only if material would cause damage to international relations would we be able to certify.
Diplomacy does not work if diplomats cannot talk in confidence and no Government would, or should, sacrifice the benefits which effective diplomacy can offer. As an example, vital work that is done in promoting human rights is not always done in public. Talking to international partners in confidence about their human rights record is an important part of how we seek to influence that agenda. The possibility that such discussions could be made public could have serious consequences for our ability to influence. Clearly, if international partners do not trust the United Kingdom to keep advice and assessments confidential, this could have a serious impact on the United Kingdom’s interests in the fields of human rights co-operation—as well as on consular assistance, trade and investment, and jobs, to name just a few other implications.
The noble Baroness, Lady Smith, proposes adding after,
“held by an intelligence service”,
the qualifier,
“where that information relates to national security or the interests of the United Kingdom”.
We do not believe that that is the right approach. The Freedom of Information Act, which I referred to earlier, does not try to exclude those agencies from the operation of the Act only in so far as they hold information relating to national security. Rather, it excludes them from the Act as a whole in recognition of the fact that, as far as the agencies are concerned, their entire function and raison d’être is to do with national security and necessarily the information they hold is connected with that. The Security Service Act 1989 and the Intelligence Services Act 1994 both make express provision that the heads of those organisations are to make arrangements to ensure that no information is obtained by their agency,
“except so far as is necessary for the proper discharge of its functions”.
I am concerned that adding the wording suggested might only confuse the matter and give further opportunity for unnecessary litigation. We have heard about the canteen menu, and I think the noble and learned Lord, Lord Falconer, referred to someone who had slipped on the floor and wanted to sue the cleaners. I do not think those examples have so far been used in Norwich Pharmacal to get information out of the security services. If that were the issue, there are many other ways that that information could be sought. We are talking about far more serious information, and I do not think that is being challenged.
The noble Baroness said that she could not find anywhere where the Government had said what they might mean by,
“relating to an intelligence service”.
The Opposition propose removing the clauses that protect information relating to an intelligence service and information obtained from or held on behalf of one of our own intelligence services, as opposed to a foreign intelligence service, or information derived from such material. Sensitive information that would not be afforded statutory protection under these amendments includes sensitive intelligence material held by, say, the Home Office, that has been passed to it by the Security Service in support of executive action, for example, deportation on national security grounds or a TPIM notice. It would also include intelligence the Security Service shared with the police in counterterrorism operations, the disclosure of which would readily compromise those operations in either preventing a terrorist attack or bringing terrorists to justice. Work done in other government departments on national security policy and intelligence policy, which relates to the intelligence services, would not be protected if the “relating to an intelligence service” clause were removed.
The Government have reflected on the constructive analysis and considered comment in the legislative period to date. Picking up the point made by the noble Lord, Lord Pannick, I have no doubt that it will be considered further when this Bill goes to another place, but we have concluded, so far, that in the Norwich Pharmacal context, we need to provide absolute exemption for intelligence services information and certification for other sensitive information, the disclosure of which would be damaging to national security or international relations. Only by this can we provide the clarity required to enable the UK to protect its sensitive information in cases of third-party wrongdoing and to restore the confidence of our intelligence-sharing partners and our own security and intelligence services.
I have tried to outline some of the responses to what I appreciate are constructive approaches to what we all agree is a difficult issue. I hope I have explained why the Government resist these amendments, and I hope the noble Lord will withdraw his amendment.
Justice and Security Bill [HL]
Baroness Manningham-Buller Excerpts(12 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Campbell-Savours
When I originally read this wording in the Bill prior to the Committee stage, alarm bells immediately rang. When I saw the reference to ongoing operations, I tabled the original amendment. The noble Lord, Lord Butler of Brockwell, in his contribution, really set out the case very much in the way that I would wish to argue it and I do not wish to repeat what he said.
However, he referred to one operation, which perhaps illustrates where the problem might arise. I refer to the issue of what happened in Libya. I did not know the detail of what happened there but I presume, from what the noble Lord said, that it was reported to a committee. I should have thought that that is a typical example of something which fell under the description of these matters given by the noble Baroness, Lady Manningham-Buller, in Committee when she referred to operations being—if I recall correctly—finite and coded. Am I right in saying finite and coded?
Lord Campbell-Savours
I should have thought that that operation in Libya was a typical example of something that was finite and coded but which, as we know, was referred to the committee prior to the operation being completed. One wonders whether that operation would have fallen foul of what is in the Bill as it stands. I have no doubt that the Minister has in his brief, in very large red letters, “resist at all costs”—perhaps more than many of the other amendments that we have considered today. I would imagine that the services are particularly worried about this area. However, I would say to them that they must go away and reconsider this issue.
This is classic House of Commons debating material. I should have thought that the House of Commons will latch on to this wording and really drive it in Committee very hard. The Government should get a better line in dealing with these matters than we have heard hitherto.
Lord Butler of Brockwell
My Lords, I am grateful for the Minister’s sympathetic reaction to Amendments 18 and 23. I will make two glosses on it. If I heard him right, he said that Amendment 18 would leave solely to the judgment of the ISC the test for considering an operational matter. I think he is thinking of the amendment that was moved in Committee because this amendment removes both the ISC and the Prime Minister. The Bill says:
“The ISC may … consider any particular operational matter but only so far”,
and it goes on to say that the matter,
“is not part of any ongoing intelligence”.
In other words, it means that it is a matter of fact and not something that the ISC could decide by itself.
The second point is that the Minister spoke about it as if these were matters where the committee asked for information from the agencies. However, as I think the noble Baroness, Lady Manningham-Buller, will confirm, that is not usually the case. The circumstances are that the agencies themselves take the initiative in reporting to the committee. They give the information—I should think that that is the case nine times out of 10. It would be a great pity if that closeness that exists between the ISC and the agencies were to be inhibited by a requirement that the agencies clear their lines with the Prime Minister before they can report such a matter.
Baroness Manningham-Buller
I have not intervened in this debate because I have really just been listening with interest and support most of things that have been suggested. If there were a great story in the press—with some truth in it or not, about the operations of the service—I would certainly regard it as my duty to report to the ISC as soon as I reasonably could. It would be reassuring to believe that there is nothing in this drafting to prevent that. It is part of the ongoing confidence-building between the two that the ISC does not have to demand a report on something like that, but gets an early report of the facts from the agencies.
Lord Butler of Brockwell
I am very grateful to the noble Baroness, who makes the point from her direct experience.