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“A person may disclose information to any of the intelligence services for the purposes of the exercise by that service of any of its functions.”
Again, the Minister helpfully told the Committee about the definition of national security, which no Committee member would have any difficulty with. However, what functions of the security services fall outside the definition of national security that he gave us?
I want to make my position quite clear. I am not suddenly seeking to put a spanner in the works of an important change to the law that will provide reassurance to individuals in this area. However, the Committee should be able to understand why “any of its functions” would be covered by this blanket exemption from the workings of the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000.
Amendment No. 11 has been grouped with amendment No. 89 and I would like to refer briefly to that. Amendment No. 11 is the embodiment of the concerns expressed by my hon. Friend the Member for Cambridge (David Howarth), who is not a member of the Committee but has a passing academic interest. Although clause 19(1) is clearly permissive—it says that a person “may disclose information”—this probing amendment is to seek confirmation that there are no circumstances in which, perhaps in interaction with other legislation, that permissive “may disclose information” might turn into a requirement to disclose information, and might be used in a more aggressive way to seek information, resulting in the person from whom the information is being sought feeling that it is not being extracted in a permissive manner. It is a probing amendment to reassure us that disclosure is entirely permissive, and that there is no possibility that it may be used in a more aggressive manner.
If I may, I will start with amendment No. 11. Given that there is nothing in the subsection that could be taken to mean that an individual could be required to disclose information, the amendment is redundant. Although I understand the point about probing to establish that fact, the amendment is unnecessary because there is nothing in the clause that compels or requires an individual to give information to the service. I understand the point but the amendment is not required.
The substantial part of the Bill, and that covered by amendment No. 89, is more interesting. I do not say that to be offensive but the subject matter of the clauses is more interesting. They are not about deficiency in any areas of the intelligence services work as defined by the Act. Rather we have afforded, under the Serious Organised Crime and Police Act 2005 sections 33 to 35, to those who disclose information to the Serious Organised Crime Agency explicit protection from any duty of conflicts or other restriction to keep matters private. Our concern is that that facility should at the time probably have been afforded to the intelligence services too. So the difficulty now is that there is a higher benchmark and encouragement for SOCA to be able to do what it does, regarding the disclosure of information to it and protection under law for such disclosure. We should mirror those provisions for the intelligence services. That is all that clauses 19 to 21 do. They mirror sections 33 to 35 of the Serious Organised Crime and Police Act. Our concern is that the absence of similar explicit protections for the intelligence and security agencies may cause doubt in the minds of those wishing to give information that it is safe to do so. Given the vital work of the intelligence and security agencies it is important that nothing should dissuade those wishing to protect our society by giving information to the agencies, so that the agencies can carry out their vital statutory functions. It is important that nothing gets in the way of that, and that is why those clauses are offered.
Amendment No. 89 would remove the explicit relief afforded by clause 19(6) to a person properly giving information to any of the intelligence and security agencies, that is, relief from any duty of confidence owed by the person making the disclosure or any other restriction on that disclosure. Although a person could still rely on common law to justify disclosing information in breach of a duty of confidence or other restriction on the ground that it was for higher public interest purposes, that falls well short of the explicit relief provided to our intelligence and security agencies in clause 19(6), which mirrors the same relief afforded to SOCA in sections 33 to 35 of the 2005 Act.
The amendment would perpetuate the anomaly that we are seeking to correct whereby a person would get explicit relief in law from the duty of confidence if they gave information to SOCA for the purpose of preventing or detecting crime, but not if they gave it to the intelligence and security agencies for the prevention or detection of serious crime or even terrorism. Individuals fulfilling their responsibilities towards the security of society by properly providing information to such agencies should receive the relief and confidence provided in clause 19(6). For that reason, and because that relief is already established for SOCA under the 2005 Act, it is more than appropriate not to accept amendment No. 89. It challenges the raison d’être of much of the Bill. As I have suggested, although amendment No. 11 is probing, it is utterly irrelevant.
That was helpful. Unless I missed it—I was briefly distracted for a moment—I still have not teased out the difference between
“the interests of national security”,
which I thought were one of the primary objectives of the Security Service and the Secret Intelligence Service, and their “functions”, and whether the two were supposed to be identical. The debate on that can conveniently be left for the next group of amendments. I beg to ask leave to withdraw the amendment.
Here again, we have provisions dealing with information. The clause states:
“Information obtained by the Security Service for the purposes of any of its functions may be disclosed by it— for the purpose of the proper discharge of its functions”.
In a funny way, that is a slightly circular argument. Interestingly, that appears not to include the purpose of national security, but it does include, in subsections (3)(b) and (c), the prevention or detection of serious crime and criminal proceedings. I contrast that with subsection (4), which states:
“Information obtained by the Secret Intelligence Service for the purposes of any of its functions”,
as opposed to the Security Service,
“may be disclosed by it—
(a) for the purpose of the proper discharge of its functions,
(b) in the interests of national security”,
which apparently does not apply to the Security Service. I do not wish to appear too nosey on the subject—maybe there is something that I ought not to know about, or maybe it is completely innocuous—but that strikes me as slightly odd. Will the Minister clarify why the test for the Security Service is different from that for the Secret Intelligence Service?
Can we also have some clarification of the difference between disclosure in the interests of national security, which is the primary function of both services, and the blanket expression “discharge of its functions”?
The amendments appear to have been drafted in the belief that clause 19 creates new permissions or prohibitions on what the intelligence and security agencies can and cannot disclose. It does not. The distinction between subsections (3), (4) and (5) is simply that they revert to the parent legislation and its definitions. For example, section 1(2) of the Security Service Act 1989 outlines the functions of the Security Service. They include the protection of the UK’s national security and economic well-being, a support role in respect of the prevention and detection of serious crime and so on. So when we consider the proper discharge of the functions of the Security Service—I cannot call it the SS. I got into trouble for saying that. We can call it the Security Service or SYS, but never, for obvious reasons, the SS, and quite rightly.
The discharge of national security is included in the functions, so there is no point in repeating it in the clause. National security is included separately in subsection (4) not because the Secret Intelligence Service somehow does not have such a function, but as the hon. and learned Gentleman will know, its principal concern is with the overseas dimension of activities rather than national security per se.
As I understand it, the functions outlined in the legislation do not include national security, because that is the job of the Security Service, but, clearly, for the purposes of the Bill and the information gateways that we are establishing, national security would be an additional function for SIS, and I believe it to be entirely the same for GCHQ. In other words, subsections (3), (4) and (5), as they currently stand, deliberately mirror the information gateway provided by section 2(2)(a) of the 1989 Act and sections 2(2)(a) and 4(2)(a) of the Intelligence Services Act 1994, and do more than that, by establishing the proper relationship in respect of disclosure.
Accordingly, the effect of lowering or removing criteria in subsections (3), (4) or (5) would not in itself allow or prohibit the agencies from disclosing information, as each agency will still be governed by the terms of the 1989 Act or the 1994 Act as appropriate.
I am sure that it is not, but if the intention of the amendments were to stop or undermine the agencies undertaking the full range of statutory functions that Parliament has set them, this would not be the way to go about it. I am sure that that is not the case. What we are dealing with in this clause is the ability to share data and disclose information. The clumsy interaction of subsections (3), (4) and (5) reflects more on the distinct nature of the parent legislation that created the agencies than anything remotely nefarious.
Not in terms of core functions. Otherwise provision would not be included at subsections (3)(c), (4)(d) and (5)(b), as appropriate. Yes. That is another way of saying what I said, but not in the form suggested.
Seriously, there is nothing nefarious or sinister in the clause. It is purely about creating the legal architecture to secure the appropriate information gateway for information to be shared between the agencies and other law enforcement bodies.