Justice and Security Bill [HL]

Lord Pannick Excerpts

Wednesday 21st November 2012 Lords Chamber

Moved by

[Lord Pannick]

47: Clause 7, page 5, line 33, at end insert “and that damage outweighs the public interest in the fair and open administration of justice”

[Lord Pannick]

My Lords, we debated the amendment much earlier this evening. It relates to Clause 7 and is the equivalent to Amendment 36 in Clause 6, which was an amendment that your Lordships voted on and approved. I therefore beg to move.

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Moved by

[Lord Pannick]

66: Clause 13, page 10, line 7, after “is” insert “certified”

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[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.

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[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.

[Lord Pannick]

I am very grateful to the noble and learned Lord. I recognise the difficulty of defining with precision what information should be covered. I maintain the position that Clause 13(3) does not do a very good job of it. I suggest that the Minister and the Bill team would benefit considerably by having a word with the noble Baroness, Lady Manningham-Buller—although not tonight. At some stage, perhaps they could discuss a way of improving what is a very unsatisfactory Clause 13(3), but for the moment, I beg leave to withdraw the amendment.

Amendment 66 withdrawn.