Official Secrets Act 1989 (Prescription) (Amendment) Order 2012

Lord Ahmad of Wimbledon Excerpts

Tuesday 23rd October 2012 Grand Committee

Moved By

[Lord Ahmad of Wimbledon]

That the Grand Committee do report to the House that it has considered the Official Secrets Act 1989 (Prescription) (Amendment) Order 2012.

Relevant document: 7th Report from the Joint Committee on Statutory Instruments.

[Lord Ahmad of Wimbledon]

My Lords, on behalf of my noble friend Lord McNally, I beg to move that the Grand Committee do consider the Official Secrets Act 1989 (Prescription) (Amendment) Order 2012. This order is made under the Official Secrets Act 1989. Under that Act, it is an offence for a Crown servant or government contractor to make a damaging disclosure of any information within particular categories which is or has been in his possession by virtue of his position, unless he has lawful authority to do so. People who are not Crown servants can be treated as such for the purposes of the Act by being designated in an order. They are then subject to the duties and offences relating to the handling and disclosure of information as set out in the Official Secrets Act 1989.

The order does this by amending the Official Secrets Act 1989 (Prescription) Order 1990 by adding the holders of certain offices to Schedule 2. These officeholders are police and crime commissioners and their deputies, the Mayor’s Office for Policing and Crime and its deputy, the Lord Mayor of the City of London and the representative of the Court of Common Council acting in its capacity as the Police Authority for the City of London. Noble Lords will know that the Police Reform and Social Responsibility Act 2011 establishes a directly elected police and crime commissioner for each police area in England and Wales outside London, with the functions of securing the maintenance of an efficient and effective police force and holding the chief constable to account for the exercise of the chief constable’s functions. A commissioner is able to appoint a deputy. The Act also establishes in London the Mayor’s Office for Policing and Crime with identical functions in relation to the Metropolitan Police Service and the Commissioner of Police of the Metropolis. The person who is the Mayor of London occupies the Mayor’s Office for Policing and Crime and may appoint a deputy.

In the City of London, the Common Council has the function of overseeing the City of London police force and its commissioner under the City of London Police Act 1839. The Common Council is headed by the Lord Mayor and is able to discharge its policing functions by means of a police committee. Police and crime commissioners, who will be elected on 15 November 2012, their deputies and the officeholders having similar functions in London, will need to receive and be briefed on police information in the exercise of their functions. This may include information on one or more of the categories protected by the Official Secrets Act 1989. They are particularly likely to be briefed on information which, if disclosed, is likely to result in crime or impede the investigation or prosecution of crime. We also envisage that they will be briefed regularly on security and intelligence material.

The Government are clear that they wish to maintain the operational independence of the chief constable, and that he or she should be responsible to the police and crime commissioner for ensuring the safe and effective maintenance of the Queen’s peace. We therefore envisage that a chief constable may on occasion need to brief a police and crime commissioner on operational matters which may involve the disclosure to the commissioner of sensitive material that has been sourced by the police service and/or the security and intelligence agencies, such as material on counterterrorism. The degree to which the police and crime commissioner is briefed on operational matters and intelligence will be at the operational discretion of the local chief constable in close consultation with the security and intelligence agencies where necessary. The commissioner’s role in democratic accountability and transparency needs to be balanced against the public interest in maintaining community safety and justice. Unauthorised disclosures could lead to risk to the public, damage police operations and impede criminal proceedings.

The Government consulted on how to address these concerns as part of our consideration in introducing police and crime commissioners and have concluded on the basis of responses that, as elected representatives, commissioners should not be vetted in advance. We consulted further and there was a consensus that making these officeholders subject to the duties and offences applying to police officers was a proportionate safeguard. We need to maintain the trust and confidence of the public and, of course, the police service. Bringing the commissioners and other officeholders under the Official Secrets Act 1989 will provide the reassurance that there is a strong deterrent to prevent unauthorised and damaging disclosure of sensitive information. These officeholders will be Crown servants for the purposes of the Official Secrets Act 1989 only, as are Ministers and police officers. That, of course, does not affect the status of commissioners and other officeholders.

The draft order is an appropriate and proportionate safeguard and I hope it will be acceptable to the House.

[Lord Beecham]

My Lords, the forthcoming elections for police commissioners may not be an official secret but I can vouch for the fact that, so far as most of the electorate are concerned—at any rate, the ones I have been canvassing over the last few weeks—they remain very much a secret. They are not aware that these elections are going to happen; maybe that will change over the next few weeks.

Certainly, so far as the Opposition are concerned, we have no objection to the order. Indeed, it seems sensible to include the bodies and persons cited within the requirements of the Official Secrets Act. Perhaps where the Mayor of London is concerned, the Prime Minister would like to take it even further, but that of course is not a matter for debate today. However, there is possibly an issue around vetting. In the consultation document reference was made to the issue of vetting. The response to the consultation was published as long ago as December 2010. I have to say that it was not very accessible from the site mentioned in the Explanatory Memorandum today, so perhaps official secrets have overtaken that too, but I was able to obtain a copy from the Library. In it, the Government said that:

“A few respondents identified a need to apply to”,

police commissioners,

“at least the same level of vetting checks applied to police officers”.

That is not an entirely candid description of the response, as in fairness the Explanatory Memorandum points out that,

“the Association of Chief Police Officers, Association of Police Authorities, Association of Police Authority Chief Executives, the Superintendants’ Association and the Police Federation all raised concerns with regards to vetting of the proposed Police and Crime Commissioners”.

Those are not just five individuals. The implication of the response to the consultation might have led one to believe that a handful of people had expressed concern about vetting, but these are serious organisations.

Without wishing to prejudge the argument, and noting the position that the Government have now reached on this, will the Minister at least keep matters under review? Could he assure us that if it is decided at some point that vetting at some level might be required in either a particular instance or more generally, there would be the capacity to institute it without further recourse to legislation? Police and crime commissioners will not just be dealing with matters affecting their own force—of course, some of them in themselves may constitute crimes or suspected crimes within the ambit of national security and the like, and hence be covered by the Official Secrets Act—but potentially they could also be involved in matters that require a national response, which by implication are very likely to include matters to which the Official Secrets Act would apply. In those circumstances and given the potential risks—remote risks, I hope, but they arise nevertheless in areas where the magnitude of a failure might have significant consequences—it might be helpful for a chief constable to have the assurance that, if necessary and if he or she has doubts about the matter, a vetting procedure might be entered into. It may not be the case that government Ministers are thoroughly vetted, but I understand that some procedure applies even to them. It would be strange if there were not the possibility, at any rate, of inquiring further into the elected police and crime commissioner should the occasion arise, even if it is not deemed appropriate to make it a matter of course on their election.

Having said that, we do not object to the order and we look forward to hearing the Government’s response to these points.

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord for his support for this order. On his concerns about the elections that are arriving on our doorstep on 15 November, at least for those outside London, of course there is a concern about low voter turnout, just as there would be in any election. It is incumbent on noble Lords and indeed on anyone involved in the political make-up of our country to ensure that we have an effective turnout across the country for these most important elections. I know that all sides will support me on that.

The noble Lord also raised a minor point about access to the particular sites, and the fact that it was not as easy as it perhaps should have been. I shall certainly be taking that up with the department. On his final point about vetting, what has been put forward we believe to be a proportionate response, but as with most things, we will keep this procedure under review and, if deemed necessary, we will look at it again. For now, however, what has been put forward is appropriate and proportionate.

Finally, I have just been updated. As I am sure that the noble Lord is aware, even certain Ministers, including the Home Secretary, have not been vetted; nor has the Prime Minister. However, they are subject to the Official Secrets Act, as are Ministers. Coming back to the issue of vetting policy in general, as I said, we will keep it under review. It is very much a matter for the Cabinet Office. If required, I shall certainly write to the noble Lord on this.

[Lord Beecham]

I am grateful to the noble Lord. For the avoidance of doubt, I certainly join with him in encouraging people to vote. I do not share the views of the noble Lord, Lord Blair, on this matter. Although I opposed and continue to oppose the concept, now that we have them there certainly ought to be as large a turnout as possible in the election. If there is to be consideration—hopefully the situation might not arise—would that require further legislation of either a primary or secondary kind to institute a procedure, or would it be the decision of a Minister, presumably the Home Secretary? I would assume the latter, but it would be as well to have it on the record.

[Lord Ahmad of Wimbledon]

I thank the noble Lord for his question. I do not believe that there will be a need for further legislation.

Motion agreed.