Amendment proposed [this day]: No. 47, in
clause 20, page 14, line 24, leave out from 'on' to end to line 25 and insert—
'(a) conviction on indictment to a term of imprisonment not exceeding two years or a fine, or both; or
(b) summary conviction to a term of imprisonment not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.'.—[Mr. Trimble.]
Question again proposed, That the amendment be made.
With this it will be convenient to discuss amendment No. 71, in
clause 20, page 14, line 24, leave out from 'a' to end of line 25 and insert
'term of imprisonment not exceeding three years'.
The hon. Member for Orkney and Shetland (Mr. Carmichael) who was speaking in our previous sitting has been called away.
I assumed that you had mispronounced my name in such a way that it had come out as Mr. Carmichael. I cannot believe for a moment that you would be capable of any error; I still refuse to believe it. It may be as well that you were not in the Chair at the end of the previous sitting, because you would have observed a distressing divergence of view between my hon. Friends the Members for Solihull (Mr. Taylor) and for Spelthorne (Mr. Wilshire).
My hon. Friend the Member for Solihull, who is usually the most emollient of men, accused my hon. Friend the Member for Spelthorne of drafting what he thought was a slightly inadequate—he used stronger language than that—amendment on punishment for a member of the board who was found guilty of disclosing information via a court. All that I did was to complicate the position of my own party even further by saying that, in my view—
As there are only three Conservative members of the Committee, my hon. Friend will be reassured to know that there cannot be a fourth party. My hon. Friends, as well as the right hon. Member for
Upper Bann (Mr. Trimble), will understand that historical reference. The point that I was making before my hon. Friend diverted me slightly was that it seems to me—as it seems to all Conservative members of the Committee and the right hon. Member for Upper Bann—that a fine for disclosing this sensitive information would be completely inadequate.
I was about to confuse my hon. Friends by saying that, even if they did not want to press the matter to a Division, I did. However, I have received assurances from them that they may be of a similar mind and bowing, as I always do, to their complete wisdom in all matters, I shall allow an opportunity for the Minister to respond.
I shall continue to support the position of the board. I regard anyone who breaks a confidence, having been given sensitive information, as not just breaking his word to the board, his colleagues and his political party, but to society at large. I would have no sympathy with such a person or promote his case.
I have been in politics a long time and have seen the divulging of information. I have never yet seen a case brought to law in relation to a political party or an organisation in which it was not established who the person involved was. We could be 100 per cent., 90 per cent. or 50 per cent. sure, but one thing in politics and this way of life is certain. We could never find the person who did it and be certain that we could get a conviction. The discussion is worthy but while I would throw the book at someone who broke his word in such a way, we must remember that that is the reality.
Ask any Secretary of State who has served in the north of Ireland and he or she will readily confirm that it is unique when it comes to the leaking of sensitive information. There are those who might cause apprehension by their presence on the board, but other parties in the north of Ireland are so adept at leaking that one could envisage problems arising over who will get there first. I do not want to make a song and dance about it. I have no time for any of those people, or for anyone who would break that kind of confidence.
If the libertarian wing of the Tory party succeeds and upsets the five years measure, I would weep no tears. However, I know that leaking works in various directions. For years there have been leaks not just about the Government, but from the Government; not just about the police, but by the police; not just about policing boards, but by policing boards. For as long as our democratic system continues—and it should always be maintained—leaking will continue. It is good to have arguments and discussion about what the penalties might be. However, while those are worthy and worth putting forward, I am confident that that power will not be exercised, or even would be able to be exercised, to bring about the result that we are now discussing.
I agree with the hon. Member for Solihull on exactly where one would like to see the conviction leading. I doubt whether I would go as far the hon. Gentleman went—he described his views as being close to the ''hang 'em
and flog 'em'' people—but I would lean more closely towards his proposition than that of the right hon. Member for Upper Bann, who described himself in terms of moderation. Given the way things are going in Northern Ireland, those who describe themselves as moderates may become an endangered species. It would appear from the opinion poll in the Belfast Telegraph last week that about one third of the Unionist community shares the right hon. Gentleman's views. Of course an election will be held and we will find out, although the example of previous elections tells us that there are some who would prefer there not to be an election.
There is the issue about whether a term of imprisonment ought to be included as an option. The position in Northern Ireland is considerably different from that in most of mainland Great Britain. Information that is supplied in such circumstances in most of the UK may lead to a headline in the newspaper, or perhaps to some discomfort for a day or two. For the most part, information passed to particular groups in Northern Ireland can in certain circumstances lead to much more serious consequences. For that reason I support the inclusion of a term of imprisonment, albeit possibly one that is shorter than that recommended by the hon. Member for Solihull.
It might be of benefit to Committee members if I drew their attention to the code of ethics for the Police Service of Northern Ireland. They might find it useful when we come to discuss other clauses later today and on Tuesday. I am grateful to you, Mr. Benton, for giving me permission to place copies on the Table. If there are not enough copies, I will ensure that more are provided early next week.
This has been a useful debate. It may help if I explained why the penalty was set at this level and if I explained the other sanctions that are available under the law, which I touched upon in earlier debates and which could, in certain circumstances, apply to an improper disclosure of sensitive information by one of the groups specified in the clause.
The penalty was set at this level to mirror the provisions of section 63(3) of the 1998 Act, which makes it an offence for the police ombudsman to disclose, other than in the specific terms of that section of the Act, any information gained during the course of her work. We believe that it is appropriate for the penalty for improper disclosure to be consistent with the other penalty for disclosure.
Part of the reason why neither penalty is more severe is that the offence described here deals only with the act of disclosure. That is a serious matter; I accept the representations that I have received on that from both sides of the Committee. You have known me for many years, Mr. Benton, and I hope that you will agree that I take a liberal attitude on many aspects of political life. The longer that I spend dealing with the responsibilities of my post as security Minister in Northern Ireland, the less liberal I am inclined to be. However, with regard to this amendment, I urge my
colleagues to restrain themselves from being tempted to enter into the auction that we got involved in before we broke for lunch.
There are many other offences within the criminal law that could, in certain circumstances, apply to improper disclosure of sensitive information. As I said in an earlier debate, depending on the use to which any information gained in the context of the board's work is put, the person disclosing it could be charged, for example, with conspiracy or a specific offence under the Terrorism Act 2000, such as disclosing information likely to prejudice a terrorist investigation or collecting or communicating information likely to be of use to terrorists.
The offence set up here does not override those other offences, nor does it seek to replace them in respect of board members. The ordinary criminal law will apply to those individuals just as it would to you, Mr. Benton, or to me. The act of improper disclosure constitutes an additional offence for which they should receive an appropriate penalty.
First, in talking about making people liable under the law for the disclosure of sensitive information, is there not more chance of bringing a case properly if there is documentation, rather than an absence of documentation? Secondly, in the type of circumstances that the Minister describes—I do not want to get into an auction either—what might be in the rules that might be agreed by the policing board in future in relation to those who may have given sensitive information? It may be that nothing is possible or that the rules are not relevant in law, but we should try, rather than pursue a method that will never bring people in front of the courts.
The Police Service of Northern Ireland has been successful fairly recently in tracking down leaks of sensitive information and in bringing charges, through the Director of Public Prosecutions, against those whom they believe to be responsible. I accept that the police are not always successful and my hon. Friend has greater knowledge and experience of such matters in Northern Ireland than me.
The offence as described in the Bill affords the police an opportunity to take action if sensitive information is not properly disclosed. Should an individual member of the board be found to have done such a thing, there are powers to remove that member. It is dishonourable to disclose such information because that person will have betrayed the confidence of other members of the board and the wider public who gave their authority to the board member. The clause as drafted is adequate without the stronger penalty urged by Opposition Members.
I am grateful to the Minister for making that point and for her reference to certain irregularities by the police recently in relation to the divulging of information. I know a little—or, rather, a lot—about that, as do other hon. Members from the north of Ireland. However, no case could have been brought had there been no ability to seize documents. It is the documents rather than the information that could lead to successful prosecutions. In the absence of
those documents, there will be no chance of prosecution.
I am not entirely convinced that that is the case. Documents are more easily traced, but notes are often taken in meetings in which sensitive information is shared. One would hope that those notes would reveal who was party to the information and how it was received. I take the point that the offence is difficult to prove. My hon. Friend is right; Government leak inquiries do not have a glorious history of success. However, the clause was introduced in another place to supplement the existing safeguards in the Bill and existing legislation to ensure proper protection for disclosure of sensitive information. As I have said, I expect there to be occasions when documents would be made available to members of the board in the circumstances that I described.
The power described in the Bill provides a useful additional safeguard. I will reflect further on proposals to extend the terms of the clause that were discussed in earlier debates, and, if appropriate, we will table amendments on Report. On the specific issue of the sentence, however, I will resist the amendment and encourage my hon. Friends to do the same should there be a Division.
I expected that we would have a short debate on the amendment I moved before lunch, so I am pleasantly surprised by the length of our discussion. I am also pleasantly surprised by the support for the amendment. Although he is no longer here, I particularly wish to thank the hon. Member for Orkney and Shetland for his support. I am also pleased to have the support of the hon. Member for East Londonderry and that of the two hon. Gentlemen to my right; both literally and figuratively.
The support underlines the seriousness of the matter and the desirability of the Minister to think again. She said that there were other offences and that the provision would supplement them. However, it would do a little more than that because other offences will be available only in specific circumstances, and not generally. As she originally said, the other offences depend on context and circumstances, and the use to which the information is put. The Minister needs the offence in the amendment because there might otherwise not be a penalty.
If the Minister relied on conspiracy or on the Terrorism Act 2000, many leaks would incur no penalty. That is wrong. It is why an offence is needed, but it is also an argument for requiring an offence that carries a substantial penalty. Mere leakage cannot be considered to be a matter of no significance because leaked information that does not give rise to offences could yet cause serious damage and, of course, undermine the integrity of operations. I ask the Minister to think again, although we shall have to press the amendment.
I was pleased that the hon. Member for Newry and Armagh (Mr. Mallon) spoke about his desire to throw the book at the leaker. If he will forgive me for saying this, one can throw the book much more effectively if it is a good, heavy book. I take his point that leakers
often do not get caught. However, leakers would be caught more regularly if we were not hamstrung by bad legislation on intercepted communications, which is a serious impediment to police operations.
The Minister may know that, for the last 10 years, I have pressed to make the law more sensible. It has proved difficult to deal with organised crime—terrorism is a species of organised crime—in Northern Ireland using current law on intercepted communications. The Minister has only to look at experiences in other jurisdictions to find out how right that is. If we changed the law on intercepted communications, leakers would be caught more regularly.
I cannot avoid building on the point made by the hon. Member for Newry and Armagh about the infrequency with which leakers are caught. That reinforces my point from an earlier debate about the foolishness of the disclosure provisions to the board. They are drawn too widely, which means that an offence is needed. However, the likelihood that the offence may not be as effective as we would like underlines the foolishness of the provision in the Bill.
We think that the amendment is important and worth pressing to a vote, as my hon. Friends have said.
Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 12.
Question accordingly negatived.
Amendment made: No. 76, in
clause 20, page 14, line 31, at end add—
'( ) In section 59(5) of the Police (Northern Ireland) Act 2000 (c.32) at the beginning insert ''Subject to section 74A(6)''.'.—[Jane Kennedy.]
Question proposed, That the clause, as amended, stand part of the Bill.
The hon. Member for Newry and Armagh raised two issues earlier, one of which was specific to the amendment we were discussing and the other that was specific, but involved general issues, too; I left that until now. I did not talk about the specific point regarding the hon. Gentleman's desire to include the ombudsman and the staff of the ombudsman. He said that there are always leaks when politicians are around; that is undoubtedly true.
I should like an accurate quotation. I did not say that there were always leaks when politicians were around; I made it clear that leaks can come from everyone—including politicians, unfortunately—and from all forms of administration. I ask the hon. Gentleman sincerely to believe that. I
humbly request that if he attempts to quote me, he does so accurately.
I was coming to the other categories that the hon. Gentleman included, but he certainly included politicians; it is right to say that where there are politicians, there are leaks. However, if I have upset the hon. Gentleman, I am perfectly happy to apologise. Hansard will show exactly what he said, and I have no difficulty in agreeing with it, or with what he said earlier.
The way to maximise the chances of leaks is to let documents be shown to more and more people. That is at the heart of my concern. When the hon. Gentleman said that documents should be released not only to the ombudsman but to his staff, it worried me. There are other issues. I will, for a moment, sound as though I am arguing that the relevant information in a document should go to more and more people, so if it appears that I am arguing against myself, I apologise. I want the Minister to clarify, and the best way to do that is to ask whether the provisions include this person or that person.
Subsection (6)(a) of new section 74A says:
''a member of the Board or a member of the staff of the Board'',
and subsection (6)(b) says:
''a member of the committee or a member of the staff of the Board who provides services to the committee''.
That is entirely proper. That is the equivalent of saying that the Clerk of the House and his staff should have all the documents that come before a Committee. I am not distinguishing politicians; some of the other members of the board may well not be professionals in the public arena. However, it is probably safe to say that quite a significant number of members of the board will have staff of their own who are distinct from the staff of the board.
Has any thought been given to whether a member of the board can do his job properly and fully without the use of his own resources as well as those of the board? I should be interested to know the Minister's view. Is the provision quite deliberately meant to exclude the members' personal staff? If so, it should be helpful to have that on record for the avoidance of doubt. If the provision were intended to exclude the personal staff of a member of the board, it would be helpful to have on record the Government's justification for that. I want to agree with the Government, but I need to know why they would want to exclude those people.
There is a worrying issue that is particularly sensitive in the case of Northern Ireland. The staff of certain political parties that are still terrorists, in my view, have managed to get themselves into hot water by leaking documents and getting hold of documents that they should not have. Sinn Fein-IRA may be admitted to the process discussed in the clause. Whether or not they renounce their arms is irrelevant; they are a terrorist organisation. If that were to happen—they have a record of leaking—the member of the board who might represent the terrorist organisation may say that he will give the document to
his staff. There does not have to be an attempt to burgle offices, because it will be appropriate to give documents to someone inside the system. I should be grateful if the Minister clarified such matters.
Will the Minister look carefully at subsection (6)(c) and (d)? Simply, an exception is the Secretary of State. Is the clause suggesting that if the Secretary of State is given information, he and only he can deal with it? At present, it seems that the Secretary of State cannot even turn to his private office and say, ''Will you find this information?'' because members of his staff would see it. Is it the Government's intention that only the Secretary of State should receive the information?
The hon. Gentleman is succeeding in confusing me. He berates my amendments Nos. 97 and 99 on the grounds that I specified the staff of the ombudsman. In his view, the proposals do not apply to those staff, but to the staff of the board, the staff of members of the board and the staff of the Secretary of State. The hon. Gentleman's argument is inconsistent. Will he clarify that the reference to the ombudsman or the Secretary of State means those who are working for them?
When the hon. Gentleman reads Hansard tomorrow, he will see that I deliberately said that I would argue against myself. If I have succeeded in confusing the hon. Gentleman, I have done my job well. It is what I intended to do. The simplest way of teasing out the Government's thinking is to suggest that the number of people who have the information might be extended. He is right, however. We should keep the clause as tightly drawn as possible.
The hon. Gentleman is arguing against himself, too. If he wants me to accept that the reference to the Secretary of State is self-evidently the Secretary of State and his civil servants, why are there references to the board and to the staff of the board? If it were self-evident that a reference to the Secretary of State means the Secretary of State and his staff, surely a reference to the board would mean the board and the staff of the board. Given that the staff of the board are mentioned specifically, I am entitled to ask the Minister about the staff of the Secretary of State.
What about the Chief Constable? Does the provision mean that no other police officer or member of his administrative support staff is entitled to have the information? If so, that raises the weird situation in which the Chief Constable will have to type his own documents when preparing the report because no one else will be entitled to the information. I cannot believe that the Government want that. If they do, they must explain what they have in mind, given the contradiction between only mentioning the Chief Constable and the staff of the board. I look forward to hearing what the Minister has to say.
I am worried about subsections (6)(f) and (5)(f), which state that one of the exceptions is
''for the purposes of any criminal, civil or disciplinary proceedings''.
Criminal proceedings contain a great number of rules, regulations and procedures to guard against the bringing of flippant and spurious prosecutions. I am happy with that. Similarly, disciplinary proceedings within the Police Service will be governed by the rules of the institutions. I am worried that civil proceedings can be taken against people for reasons other than seeking justice. They can be a means of bringing to the public domain, particularly if there were a lesser burden of proof, matters that should not be in the public domain.
Any individual would need the permission of the authorities to bring criminal proceedings; before disciplinary proceedings were brought, the system would have to decide that its rules had been broken. Any citizen of the UK is entitled to start civil proceedings. Indeed, it would be possible for me to bring civil proceedings against the hon. Gentleman for libel or slander on a flimsy case. He would certainly get that laughed out of court and he would get costs, but I would have introduced the information into the public domain, using the justification that because I started a civil action—
Mr. Mallon rose—
I am trying to give the hon. Gentleman his example. If I started a civil action and were prepared to pay damages, the information could be released to somebody else.
That would be even better, because I would have achieved my nefarious aim of getting the information into the public domain without having to pay costs or damages. In fact, I might even get the leak authorised under the clause and get damages as well, which would be a bonus. None the less, I wonder whether it is right for there to be a blanket exception for civil actions. That kind of an exception is a huge loophole that would hand an opportunity to the people who do not mean the peace process any good; those who have got it in for other people. Those people may say, ''Here is an exception. I will think up a spurious civil action against somebody for something quite ridiculous. Nevertheless I will start an action, because that entitles me to put the information into the public domain.'' Will the Minister reassure me as to whether there could be some safeguards before a civil action were taken?
Perhaps the Minister will make this point in her reply; I scarcely dare suggest it. My hon. Friend the Member for Spelthorne may be making rather heavy weather of the matter. If information were to be disclosed to the Secretary of State in certain circumstances, I suspect—although I am not a lawyer—that it would be disclosed also to senior civil servants and similar persons. In a law suit, a similar consideration could apply to the Chief Constable. We are dealing with what is essentially a new provision on the restriction of the disclosure of information and
with exceptions to that. To make exceptions in the case of the board is, as I understand it, a new departure. I presume that the wording was included to give members of the board, or staff who work for it, some kind of clear protection in law. Perhaps the Minister will correct me when she responds, but I strongly suspect that that is the case.
I hate to tangle with my hon. Friend, but I bring him some solace. He was right to say that the hon. Member for Newry and Armagh made rather heavy weather of the matter this morning by tabling his amendments relating to the ombudsman, because it could be assumed also that that ombudsman, in certain circumstances, is allowed to share information with senior members of his staff.
As I understand it, the hon. Member for Wycombe (Mr. Goodman) has touched on the case with regard to the Secretary of State. For example, civil servants who work in the relevant Department—in this case, the Northern Ireland Office—are deemed to be included in the reference to the Secretary of State. I understand that they are covered as a general principle of administrative law and that they are also empowered to act on the behalf of the relevant Secretary of State.
I am reassured. I thought that that would be the case. How far down the chain of command does that assumption go? Are we talking about every single person who works for the Secretary of State or, as other hon. Members have said, just senior members of staff? What would be the definition of the ranks or grades that apply?
I cannot give the hon. Gentleman a detailed response, but he is right that it would include senior officials involved in policy development. It would also involve the private offices of the Secretary of State and Ministers involved in that sort of work.
The Minister has given the position, as she understands it, with regard to the Secretary of State. I assume that the position of the Northern Ireland Office is the same as that of other Whitehall Departments, in that the office is simply the office of the Minister. Has the Minister turned her mind to the question of the Northern Ireland Departments in the event of devolution? The constitutional position of a Minister in Northern Ireland and the Department is radically different. The Department has a separate identity to that of the Minister. That is a rather unusual state of affairs. It has nothing to do with current legislation; it has been lying around for a long time and was caused by accident many years ago. However, there is a radically different relationship. I wonder whether those who framed the Bill were aware of that, and provided for it.
Let me just share my inspiration first. I understand that the right hon. Gentleman is correct, but that this is not an issue for this moment. I
have not been invited to consider it before now. It is something that we will probably need to return to.
My hon. Friend has stated the position, which has been accepted in case law; I assume that that applies in Northern Ireland, too. A Minister can never act by himself or herself, but has to act through delegation. That is why those who drafted the Bill have simply assumed that when the Secretary of State is mentioned, we mean persons to whom decisions can be delegated. How far down the chain the delegation goes depends on the nature of the office and the position of the civil servant making a particular decision.
I am not sure whether the inspiration that the Minister received covers my point. She might want to arrange with officials for it to be explained to the hon. and learned Gentleman that there is a difference. He has given the classic position with regard to Whitehall Departments, but there is a difference; I might even explain it to the hon. and learned Gentleman myself.
Members of the Committee have raised legitimate concerns about the role that staff of members of the board might play in the event of sensitive information being shared with the board, either through the small committee or by any other means. Personal staff working for board members are not staff of the board. The latter are appointed under paragraph 13 of schedule 1 to the 2000 Act, and it is only board staff that may have access to the sensitive information, and therefore only they who are covered by the offence. They will provide the supporting role to the small committee that we discussed, and will service it in an administrative capacity. I hesitate to mention this, but it may interest the Committee to know that some board members have asked whether, given their heavy workload, they should have dedicated research staff to assist them, in a party capacity, with their work on the Policing Board. That is one consideration that we had in mind.
It was preferable for staff conducting such research to be employed by the board, much in the way that Library staff may conduct research on behalf of a Member of the House of Commons, but are employed by Parliament. Although that is not entirely relevant to the clause, it may be useful for hon. Members to know our view, which was informed by considerations of that nature.
That is the answer that I expected and hoped that I would get. Individual members of staff of individual members of the board should be excluded. However, the Minister may need to reflect on what would happen if an individual on the board member's personal staff saw something inadvertently; by opening information posted to the board member,
for example. In those circumstances, would it be a defence to say, ''I didn't actually know what was in the package but I received it and I shouldn't have done''?
It would not be an offence because such an individual was not covered by the provisions. Such difficulties could arise between hon. Members and staff and it would depend on the behaviour of the individual staff member as to what consequences would ensue.
It may help if I share with hon. Members the position of the Chief Constable. The reference to the Chief Constable also includes officers of the Police Service of Northern Ireland. Case law establishes that statutory reference to a Chief Constable does not necessarily mean that he or she must act personally. When necessary, the Chief Constable may delegate functions to another officer at an appropriate level.
In my response to my hon. Friend the Member for Newry and Armagh, we discussed whether the clause was drawn too narrowly with regard to the ombudsman. Given the valid concerns raised about the drafting, I will re-examine the precise terminology of the clause and may return to the matter on Report. It may not be necessary because of the way in which the Secretary of State and the Chief Constable are defined; a similar definition may apply to the other organisations.
The Minister had me eating out of her hand with her answer that the reference to Chief Constable could apply to another officer. However, at the very end she added, ''at an appropriate level''. The question arises whether that was a slip of the tongue. I am not criticising her, but what is ''an appropriate level''? We cannot afford to be sloppy about this matter because there will be a lot at stake if somebody is accused of breaking this particular law. I am sure that the answer will not be at the Minister's fingertips and I am happy to receive one later.
I wanted to return to the question of the staff of the Secretary of State. In view of the comments made by the hon. Member for Newry and Armagh, it would be helpful to have a clearer definition before Report of how far down the Northern Ireland Office the definition goes. Is there a level of appropriateness, or does it go right to the bottom? If the Minister replies in writing, I especially wish to know whether the Secretary of State's special advisers or members of his or her press office would be defined as staff in these circumstances.
Given the nature of those questions, I am grateful to have been invited to write to members of the Committee and will do so. It will be valuable to explore the detail with my own officials and take legal advice as to precisely how the definitions in the Bill have been drawn. Further amendment may not be necessary because of case law, but I would like to be certain that that is the case. I am more than happy to write to members of the Committee to clarify that position. The matter is important and we must get it right.
Question put and agreed to.
Clause 20, as amended, ordered to stand part of the Bill.