GENERAL FUNCTIONS OF THE NCIS SERVICE AUTHORITY AND NCIS (Hansard, 19 March 1997)

§ Mr. A. J. Beith (Berwick-upon-Tweed)
I beg to move amendment No. 1, in page 2, line 42, at end insert 'and (e) the system of justice operating in any country with which it is proposed to offer intelligence or support under subsection (3)(d), and the extent to which it can be assumed that such intelligence or support will be used in accordance with conditions similar to those to which NCIS is subject.'. The amendment refers to a clause that I have strongly supported—I was among a number of people who argued that it should be introduced. The clause puts the national criminal intelligence service and the national crime squad on a statutory footing, and it sets out the powers and responsibilities of NCIS.
The amendment was tabled because the provisions on co-operating with the intelligence and security services and police forces of other countries are extremely broadly described on the face of the Bill. The Bill refers to NCIS dealing with
any other person engaged outside the United Kingdom in the carrying on of activities similar to any carried on by the NCIS Service Authority, NCIS, a police authority, a police force, the NCS Service Authority or the National Crime Squad. I am strongly in support of international co-operation between law enforcement organisations, which is absolutely essential in the fight against international drug trafficking. Indeed, our drug liaison officers who operate, for example, in Holland, work closely with their counterparts in other countries. When they do, however, in Holland or other countries—even in very friendly countries and countries with a similar background—they have to be very careful about how they exchange intelligence, for a number of reasons. That is even more the case, given some of the regimes to which one might imagine the power would extend.
The wording could open the door to co-operation with the most oppressive regimes in the world—those with the most authoritarian and uncontrolled police forces, or with forces that are subject to the control of some element in a deeply divided form of government. It could open the way to intelligence being shared with very insecure 889 organisations, whose acquisition of the knowledge from that intelligence could damage our own security and the sources from which the intelligence had come. It could also lead to threats to individuals who are in this country but in whom other Governments have an interest, perhaps because they are fugitives from the politics of that country and might have vulnerable families living there.
All those considerations are familiar to the security organisations, because they have to make judgments about those matters in their existing work and co-operation, but I was worried to find on the face of the Bill a power so broad without any reference to NCIS having an obligation to have regard to international human rights obligations; to the security of the information that it might pass on; or to any other relevant factors.
The amendment follows on from a broader amendment tabled in Committee, but it is much narrower and requires reference to the system of justice in operation and the extent to which it can be assumed that such intelligence or support will be used in accordance with conditions similar to those to which NCIS is subject. There are a number of international arrangements under which that provision can be met. The Interpol constitution refers to keeping within the spirit of the universal declaration of human rights. Article 3 of the constitution forbids intervention in the affairs of a member country of a political, military, religious or racial character. There are other provisions in the Europol arrangements that may help.
It is important that the Minister takes the opportunity to clarify and put on record how we shall ensure that we do not share intelligence in a way that could compromise our security and which would damage the human rights of individuals; that we do not share intelligence with regimes whose use of that intelligence would be oppressive; and that we have regard to all the wider human rights obligations to which I referred. I hope that the Minister will be able to do that.

§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Timothy Kirkhope)
I fully understand the sentiments expressed by the right hon. Member for Berwick-upon-Tweed (Mr. Beith). The amendment would require the NCIS service authority to have regard to the systems of justice in any country with which NCIS may exchange intelligence and provide support. The service authority would also be required to consider how that intelligence might be used, and to judge that against the controls in place for NCIS.
Those are operational matters, and it would be wholly inappropriate for the service authority to undertake such functions. However, I appreciate that the right hon. Gentleman's concern is to ensure that intelligence exchange between NCIS and non-UK law enforcement agencies is subject to appropriate controls. I assure him that that is already the case.
As the right hon. Gentleman will know, I wrote to members of the Standing Committee on 10 March setting out the various controls that already exist for the exchange of information by NCIS. That letter is in the Library.
890 I stress that most exchanges of information between law enforcement agencies are through Interpol. The Interpol constitution states that its aims are to promote and facilitate the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and within the spirit of the universal declaration of human rights. In addition, the constitution forbids any intervention in the affairs of a member country of a political, military, religious or racial character. I also referred in my letter to the exchange of intelligence between NCIS and the countries that host NCIS and Customs and Excise liaison officers. Any such exchanges are in accordance with Foreign and Commonwealth Office guidance on the individual country, and at the discretion of individual liaison officers with detailed knowledge of the country involved. Furthermore, any requests received direct from individual law enforcement agencies that give cause for concern are checked as far as is practicable before a response is given. Some requests have been refused, and I outlined some examples in my letter to the Standing Committee.
I cannot go into specific details for operational reasons, but, for example, NCIS has refused to exchange information about individuals who have claimed political asylum. Some countries can prosecute individuals for committing an offence in another country, and allegedly bringing discredit to their sovereign country. NCIS does not pass on information in such circumstances, nor does it pass on information when that may lead to a United Kingdom national facing capital punishment.
I cannot agree to the amendment, because it would require the service authority to become involved, as I said, in operational matters, and it would blur the lines of responsibility between the service authority and the director general. That said, I do of course agree about the need for exchange of information to be subject to some control. However, as I said, that is already the case in NCIS, and it will continue to be so.

§ Mr. Beith
Does the Minister expect the service authority to discuss with the director general the principles on which it deals with requests for information, so that the director general can say what guidelines he is working to, just as Home Office Ministers discuss with security authorities, without going into operational detail, the basis on which they deal with such requests?

§ Mr. Kirkhope
There is no reason why such discussions should not take place, and I expect them to do so. As the right hon. Gentleman inferred, the service authority is not expected to be involved in operational matters and operational control.

§ Mr. Alun Michael (Cardiff, South and Penarth)
The Minister made it clear that NCIS will make decisions on operational matters. Advice on the systems of law in other countries would come from the Foreign Office and from the Home Secretary, as part of his responsibilities under the Bill. Judgments about the quality of justice in other countries should surely not be left to the operational 891 authority. Departments of State have the capacity to make such judgments through their international knowledge and contacts.

§ Mr. Kirkhope
I thought that I had made it clear how responsibility would be divided. The Departments concerned would certainly be responsible for intelligence and assessment of the situation.
I hope that I have reassured the right hon. Gentleman to some extent, and that, on that basis, he will withdraw his amendment.

§ Mr. Michael
Everyone would want the system of justice operating in any country engaged in relations and activities involving NCIS to be one in which people in this country could be confident. My concern about the amendment is that it seems to place an obligation on NCIS to make judgments about such matters. The Minister's reply to me seemed to confirm a different view: that such judgments must be made by Government rather than by an agency. The agency will be responsible for operational decision making, but to ask a police authority—a service authority—to make decisions about the criminal justice systems of other countries is hardly something with which we would be happy if it operated in reverse.
I think that we all agree with the sentiment that we should be certain that the operations of NCIS involve co-operation, joint activities and support where there are systems of justice in which we can have confidence, and that, where there are reservations, great care should be exercised. To place a responsibility for making such judgments on the service authority would, however, constitute an abrogation of the responsibility of Government. Therefore, while I agree with the sentiments expressed by the right hon. Member for Berwick-upon-Tweed (Mr. Beith), I think that the effect of his amendment would be far removed from the responsibility that he sought to include in the Bill.

§ Mr. Beith
I think that we have made progress in this short debate.
As I see it, the head of NCIS—the chief constable— will need to have regard to advice from various directions before deciding how to use his powers under this clause, and, indeed, whether to use them at all to offer intelligence or support or to exchange intelligence. He will need to have regard to Foreign and Commonwealth Office guidance about the situation in the countries concerned, and, perhaps, to the Home Secretary's view of relevant matters. He must have regard to international obligations involving human rights, including treaties to which we are a signatory. He will also need to discuss the general framework within which he works with the service authority. It would be wrong for that authority to have no knowledge of such matters, because it does some of the job that the Home Secretary does in dealing with the comparable position of the Security Service. It is natural that the service authority should be involved in discussing the broad guidelines on the basis of which he works.
Given what the Minister has now helpfully put on record, however, I beg to ask leave to withdraw the amendment.