Justice and Security Bill [HL]

Baroness Smith of Basildon Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Pannick]

My Lords, one of the main concerns with Norwich Pharmacal provisions is the breadth of the definition of “sensitive information” contained in Clause 13(3). Amendment 73 would confine the scope of the relevant information to that which needs to be protected. I entirely accept that it may be appropriate to expand the drafting of Amendment 73, but I am quite sure that what we have at the moment in Clause 13(3) is far too broad. I hope that the Government will be able before the Bill is enacted to consider this matter again; I hope that the other place will give specific consideration to this issue. I beg to move.

[Baroness Smith of Basildon]

My Lords, I shall speak to our amendments on this clause, Amendments 69, 70, 71, 72 and 76. I do not wish to detain the House and I shall not press our amendments to a vote at this late stage, but there are some important issues of principle that I want to put on the record and to which I seek a response from the Minister. I hope that he can take some of the points away and consider the issues.

The purpose behind the amendments is to suggest an alternative definition for the “sensitive information” ouster of the court’s jurisdiction. The reality is that less information is being shared with the UK as a result of fears that the Norwich Pharmacal jurisdiction might mean that the UK Government were forced to disclose intelligence shared with us, thereby breaching the control principle. We have heard that from the reviewer of terrorism legislation, David Anderson, to whom the Minister referred, as well as from members of the ISC and the Government. I know that we have assurances from the US that we will never be denied life-saving intelligence, but I refer the House to the comments made on this issue in Committee by the noble Baroness, Lady Manningham-Buller, who said that that was no consolation to her, given the position that she has held. She went on:

“The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives”.—[Official Report, 23/7/12; col. 553.]

The question of whether a UK court would ever in practice authorise the disclosure of such information has been widely debated. I do not intend to go into that tonight, because I do not believe that that is the question now facing this House.

Rightly or wrongly, the flow of intelligence to the UK has been restricted—we understand and accept that. The two questions for the House are: should the UK respond in order to deal with the concerns of our intelligence partners and, if so, what is a proportionate response? The Opposition’s response to the first question is emphatically yes; it is on the second question that I think we would have a difference with the Government; namely, whether it is a proportionate response. We take the view that any restriction of intelligence to the UK is a serious problem and we would agree with David Anderson QC who said of Clause 13 that there was “an element of overkill”. The ouster proposed by the Government reaches far wider than simply the control principle. While we recognise—there is no question about this at all—that there is a need to ensure the absolute protection of information related to our national security, this clause goes wider.

We therefore propose to restrict the definition of “sensitive information” to cover material whose publication would represent a clear breach of the control principle. We would amend Clause 13(3)(b) and (c) to refer only to “foreign” intelligence and to where that intelligence is such that it would jeopardise our national security or strategic national interests.

When we proposed similar amendments in Committee, the Minister described the practicalities, as he did just a moment ago, as being “challenging” and referred to the difficulties of being able to define and separate the two. We took note of what the Minister had to say and, as a consequence, the limitations that we propose in these amendments would retain the ouster for all the examples to which he referred.

Correspondence commenting on control principle material would presumably be covered by amended paragraph (c), which would remain an ouster for information derived in whole or in part from information obtained from or held on behalf of foreign intelligence services. That would allow for either the part of the correspondence that referred to foreign intelligence to be prevented from disclosure, or the entire correspondence, if it solely referred to that intelligence and would represent a disclosure of that information. As I understand it, that is much the same way as the original PII for certain redacted paragraphs in the court’s judgment on the Mohamed case argued.