HC Deb 05 April 2000 vol 347 cc1054-62
Mr. Shepherd

I beg to move amendment No. 92, in page 12, line 1, leave out clause 21.

Mr. Deputy Speaker

With this it will be convenient to discuss the following amendments: No. 93, in clause 22, page 12, line 33, leave out from "if' to end of line 34 and insert— Its disclosure would, or would be likely to, prejudice national security'. No. 94, in page 12, leave out lines 36 and 37 and insert— 'compliance with section 1(1)(a) would, or would be likely to, prejudice national security'. No. 95, in page 12, line 38, leave out subsections (3) and (4).

No. 96, in page 13, line 1, leave out clause 23.

No. 97, in clause 82, page 39, line 23, leave out from beginning to "or" in line 24.

Mr. Shepherd

Everyone who has read the Bill will notice that one of its interesting features, as listed in the schedules, is the fact that the security services are not included. The purpose of amendment No. 92 is to delete clause 21, so that it would not be possible to withhold information merely because it related to, or had indirectly come from, one of the listed bodies.

Amendment No. 97 would bring the security and intelligence services within the Bill's scope by amending the definition of "government department" in clause 82.

Amendments Nos. 93 to 96 would revise the Bill's exemption for national security. Instead of a ministerial certificate, information would be withheld only where disclosure would, or would be likely to, prejudice national security.

I know that the House always treats with the greatest deference the whole concept of those big words "national security" and "the security services", but in truth this is meant to be a freedom of information Bill, and it should reach in and touch every area of our national life if it is to have meaning.

I know of no one in the House who dissents from the proposition that we have national security needs, and that they are taken very seriously. However, one has only to read the Security Service Act 1996 and look at the remit of the security services to see that it is now vast and comprehensive, moving into areas that we would not readily and easily associate with the general concept of the security of the nation. They have economic functions. They work in Departments in a way that means that information crosses the desks of Departments of state that are listed in the Bill.

I am mindful of the fact that others have a view on this issue. For example, a recent book reports: The police complain that giving MI6 a greater policing role places areas such as drugs trafficking off limits to democratic accountability. The Police Foundation's Barrie Irving has argued that such policies are "short-sighted". MI6 contends that "it needs to operate in secret, but once you change the role to criminal justice you blur the distinction between state security and criminal justice. It seems unconstitutional to conduct policing in this way. 8.30 pm

I do not want to make a meal of this matter. I know that the House wants to get to the nitty-gritty of what we understand by freedom of information legislation. However, in earlier discussions in the House, we heard an assertion about where we stand in relation to the great organisations of the state. The security services, their remit and the legislation covering them enabled them, on a certificate, to act outside the call of the courts in many instances. Officers of the security services were even totally excluded from being able to admit that they were once officers, and absolute offences were attached to the nature of the service itself and to its personnel.

About 10 or 12 years ago, some of us judged that that was offensive and that it struck at the principle that the security services should be a valued and important part of the apparatus of securing the well-being of our country and our citizens.

The amendments say that the security services have a series of responsibilities. They include housekeeping and simple functions relating to the costs of buildings. The Home Secretary, no less, told us that he thought that information on the cost of the headquarters of MI5 and MI6 should be available to the House. The Chairman of the Public Accounts Committee told us how difficult it had been for him, his very distinguished predecessor, and the Chairman of the oversight Committee to act together to bring such information into the public domain.

Does such information cause a threat or any damage or prejudice? That is the question that I want to be able to ask. However, under the provisions of clauses 21 and 22, we are not able even to ask such a question. There is a total exemption for such information.

I do not want to dramatise the role of the security services. Much of their work is mundane, but it touches on social security and the economic interests of the country, among other things. That goes to the heart of what many of us believe public debate should involve. The amendments would provide the lowest possible harm test threshold. Would making such information available cause harm, or "prejudice", to use the Government's word? It is a terribly weak test.

I have been a Member of the House for some years and I see others who were here when even to acknowledge that we had security services would cause grim faces and the grinding of teeth. Ministers would regularly say from the Dispatch Box that they did not comment on such matters.

The move to put the security services on a statutory basis was forced by judges who said that the services were effectively operating outside the law. They brought them within our cognisance. Today, the security services advertise for recruits and the heads of the services conduct interviews and public lectures. The exemption in the Bill belongs to the past. It seeks an absolute exemption for everything no matter how "small" or "trivial", words that appear in the Security Service Act 1989. There is no deminimis provision governing a security officer reporting something.

When information crosses a desk, the commissioner should be able to assess whether it involves prejudice. If the Government do not like the response, they have the route under the Bill—we have not discussed new clause 6 yet—of appeal to a tribunal and, as they keep telling us, of judicial review.

There is merit in my modest proposal. However, the words "national security" have such a heavy import for the House. Over many years, we have been greatly misled and deceived as to whether an issue was of great national interest or security. The old barriers are coming down and many members of the services did not want to be perceived in the way they were. It simply enabled any rumour or suspicion to be made up about them.

To defend ourselves, we should apply a weak test to matters of prejudice, even though everything can be construed as causing prejudice. Information, such as costs, should not be exempt, and there will be a proper system of appeal by the Minister to a tribunal. I therefore suggest that the amendments are of no small merit. I would be grateful if the Government reflected seriously on them. The Home Secretary made much of this exemption, and he could not have been sterner. He said no to a prejudice test for social security matters, and for police matters—until we had a report, Macpherson's, that actually suggested a high prejudice or harm test.

I hope that the proposals will form part of our growing up as a society and the Government as a Government. Distinctions must be made. Frauds and bounders exist and poor processes take place within the security service, as in all walks of life. Making them more effective does not involve secrecy. I notice that a distinguished member of the oversight committee is present, but I am not entirely satisfied by the fact that it must meet in secrecy. Even its reports are subject to editing and white spacing of some of the points that it makes. The House knows almost nothing about what goes on in the committee.

We shall come to important amendments on the harm test that were tabled by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). However, I suggest that it would be easy to accept these amendments. Despite all the clangs of yesteryear and all the loud words on nuclear espionage, the security services often produce essential but mundane information that does not give rise to a threat to the security of this country. Because their remit reaches issues of daily life, such as social security and fraud, the amendments should be accepted.

Mr. Fisher

I had not intended to speak, but as I listened to the hon. Member for Aldridge-Brownhills (Mr. Shepherd) make his case, it occurred to me that, so often over the past 20 years, his has been the sole voice of sanity on these issues, and his was a lone and courageous voice attacking the Conservative Government and the Official Secrets Act that they passed. I do not want to detain the House, and I am sure that he would have answered the case on its merits, but I did not want my hon. Friend the Minister to think that the hon. Gentleman was again speaking from the isolated position of an obsessive. The fact that the hon. Gentleman has pursued these matters with such consistency and determination over the years is not the result of obsession; his is an entirely proper interest and it is to the discredit of other Members of Parliament that they do not often join him in his campaigns.

The hon. Gentleman's point about the degree of protection afforded by the provisions being out of tune with the times and the rest of the Bill is correct. There was a time when the security services were not mentioned at all. Ministers would refer to them as "the friends", because they could not be named—they were the shades who could not be looked at directly and who were but shadowy figures in government. Fortunately, things have changed over the past 10 years. We now know the names of the heads of MI5 and MI6; they give press conferences and they are public figures. Their headquarters are, at last, a publicly recognised building. The fact that that building is one of the most appalling pieces of architecture ever to blot the London skyline, and that disgraceful sums were spent on it, is a separate matter. I hasten to add that I have a great liking and respect for the excellent architect, even if it is one of the worst buildings of his distinguished career.

The building's public profile is symbolic of the fact that we now recognise the existence of MI5 and MI6, but by putting such a huge rampart around all their activities, the Bill does not afford them the same degree of recognition. Even the most innocuous and simple matters of public expenditure within that building, such as tenders for furniture and services, maintenance costs, and the number of people on full-time contracts, are outwith parliamentary scrutiny. That cannot make sense. No risk is posed to national security by allowing a degree of scrutiny of innocuous matters—scrutiny that is carefully controlled through a prejudice test that would filter out questions that might prejudice our security, which is something that no Member of Parliament or citizen of this country would want to do.

The Government have slightly misjudged the changes surrounding the security services—changes that they and the previous Government made. I hope that, between consideration here and in the other place, Ministers will consider, even at this late stage, the possibility that they are being too cautious. Nobody wants information about the security functions of the security services, but they have plenty of other functions and are connected with plenty of other matters of public concern and public expenditure that fall properly within the public domain.

Mr. Dale Campbell-Savours (Workington)

Under existing systems, that material can already enter the public domain. It is filtered through a Committee, and the only material that is excised from the reports of that Committee relates essentially to the security of the state and operational matters. Hence I cannot understand my hon. Friend's concern.

Mr. Fisher

I am grateful for my hon. Friend's intervention, because he makes my point for me: the information is available, so the Bill that gives us the right of access to information should recognise that. The import of my hon. Friend's remarks is that we have nothing to fear—the information is already out. My argument is that that should be recognised in the Bill.

The Bill will codify the degree and the extent of the access that we as a nation have to information. It is wonderful that the Committee of which my hon. Friend is a distinguished member brings such matters to our attention, and that it has functions other than action as a conduit for information. However, we and that Committee would be strengthened if we recognised the reality of the security services as they are today. We should incorporate them in the Bill in a proper sense, not in the slightly neurotic sense revealed by the Bill's current wording.

Mr. Mike O'Brien

I agree with much that was said by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) and my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher). I had the privilege to be a member of the Select Committee on Home Affairs when, in 1992, for the first time, the Committee decided to go and see the then director-general of MI5 and thereby started the process of opening up those issues. Many other Members of Parliament, especially the hon. Member for Aldridge-Brownhills, have played a far more substantial role in that process than I have ever played.

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It is my view and that of my right hon. Friend the Home Secretary and many members of the Government that much can be done more openly with the various security services—the Secret Intelligence Service, the Security Service, and the Government communications headquarters—to ensure that we have a more accountable intelligence operation. However, I do not agree that the Bill and the at-a-stroke approach that the hon. Gentleman advocates are the way to do that.

Over recent years we have been feeling our way towards more openness. The various security services have taken the view that they want to be more open, and they have moved quite a long way in that direction. No doubt we are only part way through the process, and in years to come we will move further.

The hon. Member for Aldridge-Brownhills says that the words "national security" are heavy words. Indeed, they are. This country has been subject to bombing and terrorism, and it has had a great need for a very effective intelligence service to protect our national security. It is right, therefore, that we treat with great respect the work that is done by our national security services.

I take this opportunity to pay tribute, which I am sure the House would echo, to the work done by the security services in dealing with Northern Irish terrorism in particular, but also terrorism from other parts of the world, to which our country has been subjected.

For the sake of my family and the families of all my constituents and others in this country, I want to be sure that our security services are able to do the work that we have asked them to do. It is extremely sensitive and difficult work, and it is right that in that context, there has always been a consensus in the House that we should treat with great care any intrusion into the operational activities of our security services.

I am grateful for the support of the then Conservative Front-Bench spokesman, the hon. Member for Ryedale (Mr. Greenway), who said when we discussed clause 21 in Committee that the Opposition also agree with the Minister and the Government that clause 21 should be an absolute exemption.—[Official Report, Standing Committee B, 20 January 2000; c. 211.] We propose to keep it as such.

Mr. Fisher

I am grateful to my hon. Friend. He says, rightly, that the Government and he, during his career in the House from 1992, have been involved in creating greater openness. Everyone welcomes that, and when he moved the amendment, the hon. Member for Aldridge-Brownhills (Mr. Shepherd) recognised the big shift that has taken place. However, my hon. Friend seems to be sliding into the misunderstanding that has bedevilled debate on the Bill in Committee and now on Report, confusing greater openness with freedom of information.

The Government have been much more open in this area, as were the previous Government. That is welcome, but it is quite different from what we are doing through the Bill—that is, establishing rights to access to information. Openness and freedom of information are two completely separate matters, and my hon. Friend is making the mistake of answering one with the other.

Mr. O'Brien

I certainly do not mean to make a mistake, and I am not sure that I have done so.

As clause 76 makes clear, there is nothing in the Bill that requires secrecy. There is nothing in any clause that will require the security services or any other organisation to keep information confidential that they could put into the public arena.

My hon. Friend says that he seeks to establish rights for members of the public, some of whom may be genuine and some of whom may bear our country ill will, to obtain information about the security services. I would approach that area with a great deal of caution. I do not think that there is sufficient caution in the amendments. Let me set out the reasons for that.

Mr. Oliver Heald (North-East Hertfordshire)

The Minister mentioned the Opposition's view. I wish simply to place on record that we retain that view.

Mr. O'Brien

I am grateful to the hon. Gentleman for confirming that at least the Front-Bench Members, and probably the majority of hon. Members, believe that we should allow the security services to do the job for which we pay them and that they do so well.

Some protection and, indeed, secrecy is necessary to retain and foster the exchange of information that underpins the intelligence effort. Clause 21 removes from the scope of the Bill all the information supplied by or relating to the work of the agencies listed in subsection (3).

It has been suggested that it is highly unlikely that information on security matters would be disclosed because of the way in which some of the exemptions operate. However, the amendments would encourage applicants to believe that such information would be disclosed. In practice, that expectation would be unreasonable, given the nature of the information. We do not wish to feed such expectations.

The amendments would significantly weaken the protection in the Bill for information supplied by or relating to the work of the security and intelligence services. I ask the House to reject the amendments on that basis.

Amendments Nos. 93 to 95 would change the operation of clause 22. Amendments Nos. 93 and 94 would limit exemption to information that did not fall within the scope of clause 21, but the disclosure of which would or would be likely to prejudice national security. Amendments Nos. 95 and 96 would remove the certification process from clauses 21 and 22. However, there are good reasons for the way in which the clause is drafted. The amendments would negate them.

We do not believe that a single omnibus harm test, which amendments Nos. 93 and 94 propose, is appropriate for all exemptions. We must frame the exemption to fit the information and thus properly protect the public interest. I am sure that the hon. Member for Aldridge-Brownhills agrees that unless the public interest demands its disclosure, such information should not be disclosed if its retention is required to safeguard national security. The clause ensures that that is the case.

The exemption applies only when it is required; the test is of necessity, not desirability. The clause is drafted in similar terms to section 28 of the Data Protection Act 1998. The two provisions have the same purpose. It is therefore sensible for them to be drafted in similar language. Any difference in approach between the provisions could lead to them being interpreted differently. Clearly, that is not the intention. Government policy is clear on the sensitive subject that we are discussing. Any move from the existing formulation would suggest that the Government intended the provision to be interpreted differently. The Government will not accept any amendment that would risk reducing the protection.

Let us consider evidential certificates. That information is extremely sensitive, and access to it must necessarily be restricted to the smallest number of people possible. Disclosure in the course of enforcing freedom of information must be to the extent necessary to ensure that the exemption is not being abused, and no further.

In that unique instance, it is not appropriate for the Information Commissioner to have a role in assessing whether the exemption applies. Without any disrespect to the Information Commissioner or her staff, disclosure to her of such sensitive material is not appropriate. For example, the material requested might be a small piece of a jigsaw. Determining the seriousness, importance or sensitivity may require the Information Commissioner to know the whole context. That of itself would be undesirable. Furthermore, such disclosure would not be necessary to ensure that the exemption was not abused.

First, the certification procedure would restrict the power to sign such a certificate to a Cabinet Minister, the Attorney-General, the Attorney-General for Northern Ireland or the Advocate-General for Scotland. A certificate could be signed only at the highest level. Furthermore and crucially, it is important to be clear that those certificates would not operate as ministerial vetoes. The certificates that may be issued under clause 21(2) and clause 22(3) would be nothing more than evidential certificates. The Minister would certify that the information was of the kind specified, not that it should or should not be secret, although that would bear on the eventual use of the certificate. The commissioner or the applicant could challenge the certificate in the tribunal, which would have the power to determine whether it was reasonably issued or, in the case of a certificate issued under clause 21, whether it related to the information of the kind specified. Therefore, that would not be a ministerial veto.

There are good grounds for formulating clauses 21 and 22 as they stand and for the existence of a procedure, with relevant safeguards, for certifying that the information falls within the clauses. However, that does not mean that the security services need secrecy where that is unnecessary. No doubt my hon. Friend the Member for Workington (Mr. Campbell-Savours), other members of the Committee that oversees the security services and others will introduce a procedure, as the years pass, under which they are able to be more open where that is appropriate, but only where that is appropriate. It is not appropriate to make those changes at a stroke under the Bill. We need to ensure that we protect those who protect us at any difficult time—now as much as any other—when our national security could be threatened. We have a duty to them to do so just as they have a duty to us in the work that they carry out.

Mr. Shepherd

Well, I got an answer that could have been written 10, 12, 14 or 20 years ago. No one in the Chamber is trying to abuse the national security services. As I tried to suggest, the very words "national security" have a weighty presence. Think of this. I quote a letter from a former Under-Secretary of State for Social Security published in The Guardian on 24 September 1997. He confirmed the role of MI5 in connection with his Department's work: Currently, the security service is involved in an audit of security procedures in the DSS as part of its publicly acknowledged role as principal adviser to government on protective security and practice. This involves the examination of the department's internal management and systems controls. I knew that the Minister would go heavily on arms, on the war that we fight with terrorists and so on, but there are many functions in the remit of the security services.

In that instance, MI5 effectively carried out management consultancy for the DSS, but the results of that work, which presumably was no different in substance to that which would otherwise have been done by an outside consultancy, would have been exempt merely because they were produced by MI5 staff rather than the staff of KPMG. There is a blanket response every time that one tries to talk about what should be accessible under the terms of a freedom of information Act. We get the solemn and correct intoning of reliance on a service that virtually no one in the Chamber knows anything about. I know almost nothing about the security services.

Over the years in which I have tried to advance some of the arguments to bring the security services in from the cold, if that is not a Jeffrey Archer title—[HON. MEMBERS: "No."] No indeed. One of the arguments is that this is a question of confidence for the House. We respect those who protect us, but we know that because of its remit, which we have discussed on the Floor of the House, the service has been concerned with all manner of things.

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The service has a long history, which is relevant to the Bill. The Bill almost suggests that someone could say, "If I want to exclude a piece of information, I can ask the security services to pass it across my desk". Under the Bill as it is now drafted, an umbrella of absolute exclusion would then be erected.

I thought that, in presenting freedom of information proposals, the Government were recognising that, although much was already open, we needed such measures as harm tests. Whether the threshold should be higher or lower is not the point at issue. We are saying that some of the great organisations of state—the police, the armed forces, the national health service and organisations whose members rescue people on the roads—should be excluded because of the phrase "national security".

We know the background to some of the stories. The Minister will have observed my assiduity in not going into certain horror stories with which I am acquainted, whether or not they are true. I am thinking of Greenham common, and incidents involving the Campaign for Nuclear Disarmament. We learn that the Home Secretary himself, no less, was on a list that included the Secretary of State for Northern Island. However, I make nothing of that.

That was yesterday; we now look forward to tomorrow. This is not an attempt to undermine any aspect of the proper and legitimate defences of this country, which are a responsibility of Executive Government, and a very solemn one. I recognise and respect that, but I am not happy about a blanket ruling. What if there is a rogue element? Under the Bill as it stands, if the Secretary of State for Social Security's friend from the security services passes a piece of paper across the desk, and if it relates to something about which the Secretary of State does not want to know, that will be subject to a total exclusion. This is what is really behind the measure.

I understand why the Minister responded as he did. He read a brief that has been read many times here—but there were moments when I thought that, if my memory had been better, I could have joined him and we could have performed as a duo. The same thing often applies to our arguments about freedom of information, and our arguments about the security services, which I know will continue. In many instances the employees of the security services are brave and bonny people, but they should never be out of sight of those who are commissioned and paid for by the state, and are loyal citizens of that state—indeed, fellow citizens.

That is what this is about. It is not about any of the big things such as bombs and sensitivities about Northern Ireland; it is about the mundane, common things that affect every Department that serves this nation of ours.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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