Clause 20

Counter-Terrorism Bill – in a Public Bill Committee at 6:14 pm on 29th April 2008.

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Disclosure and the intelligence services: supplementary provisions

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 69, in page 15, line 33, leave out subsection (4).

Subsection (4) states:

“Nothing in that section shall be read as casting doubt on the legality of anything done by any of the intelligence services before that section came into force.”

I hope that the Minister will excuse the fact that a smile crossed my face when I read that. I assume from this nice, little clause, which is entitled “supplementary provisions”, that in the past the intelligence services might have made disclosures on an informal basis that were not subject to statutory systems—I hinted at that earlier. As a result of the Bill, they will be subject to a statutory framework, which is extremely important and useful.

However, I have one concern: I do not think that this Committee’s role should be to pass retrospective legislation that provides blanket exemptions for past activities. I know of no example of the intelligence services being taken to task over what they might have done in this area, but one way of reading subsection (4) suggests that it seeks to do that. However, another way of reading it suggests that one cannot quote what we have now legislated on and pray it in aid as an example  of the new framework when looking at the old framework. For those reasons, I am not completely comfortable with subsection (4), because it either has a purpose or it has not. If there is no purpose to it, it should not be there, and if there is a purpose, we need more detail on what it is.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

As we have discussed, the central purpose of clause 20 is to provide clarity and reassurance on the fact that it is right to give information to the intelligence and security services to enable them to undertake their vital work. Amendment No. 69 would remove subsection (4) from the clause, as the hon. and learned Gentleman has indicated. The purpose of subsection (4) is to make it clear that previous disclosure of information to the intelligence and security services or by the agencies would not be unlawful following the introduction of the specific gateways provided by the Bill, but it is about exemptions. Until now, the reliance has been on common law, perfectly reasonably and legally, so it is not about retrospectivity or about seeking exemptions for what has gone before.

However, it would be perfectly reasonable to ask whether subsection (4) means that the intelligence and security agencies are currently engaged in illegal activity. The hon. and learned Gentleman has suggested that that might be questioned, but I am not suggesting for a moment that that is a perverse interpretation.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

No, I did not read it that way at all.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

No, but others are far more mischievous than the hon. and learned Gentleman, so it might be read that way. To get the clarity provided by the interlocking nature of clauses 19, 20 and 21, we think that it is appropriate to put that phrase in to say that, by moving forward, we are not impugning at all any of the previous activities that relate to the intelligence agencies, because they of course were rooted clearly in common law.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I absolutely take the point that the Minister makes—I also take the point from my hon. and learned Friend the Member for Beaconsfield—but he keeps using the word clarity. Subsection (4) will do nothing to add clarity, as far as I can see. It merely obfuscates. In a spirit of helpfulness, could we take out some of the double negatives. Would that make it clearer? I do not wish to go down the route of the canard, which is a phrase that the Minster has not yet used.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

No, I have not used “undue specificity” either, but I am sure that we will return to that in due course. As the hon. and learned Gentleman has said, when subsection (4) states that

“Nothing in the section shall be read as casting doubt on the legality”,

it is simply referring to the disclosure provisions. It would be utterly mischievous if someone were to remove that clause from the Bill, look at it in a broader context and say, “Here we are. We have found a way to absolve the intelligence agencies of anything they have done in the past.” That is what the hon. Gentleman  implied but did not pursue. The clarity that I talk of is the clarity of the relationships between, and the responsibility of, the agency and others regarding the disclosure of information, and no more. We are clearly setting up—in the jargon—the information gateways to put all that on a statutory footing, and it is a much clearer statutory footing than the previous root in common law. I shall return to the hon. Gentleman, but first, there may be some who suggest that if we are setting up the information gateway to afford the agencies the ability to disclose information in that fashion, there was no legal basis to do so before. There was, however. To get rid of any notion that the legal basis was not rooted in common law, or that somehow things are different now, we think that in the context of clauses 19, 20 and 21, the clause, however elegantly or otherwise written, is entirely appropriate and utterly relevant.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I entirely take the Minister’s points, but can we please just clear up the English a wee bit? It is incredibly confusing.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

It is, honestly, not for me to challenge either the English in the Bill or the lexicon that passes for English in English legalese.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Yes, I know that I am a Minister—for now at least—but it is not for me to challenge the great tradition of verbiage and distorted English that is legalese in English statute. I thought that it was a rather elegant little phrase, but the import is as I have outlined, and I am assured by those far more versed in these matters than I that it is the appropriate way—albeit in doggerel rather than in English—to put the matter across in statute. Who am I—a mere Minister—to challenge the great and the good in that regard?

Mr. Grieve rose—

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am afraid that the Minister is not entirely persuasive on that point. I am intervening on him—as I understand it—so he has an opportunity to respond. It is deliberately—

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. I understood you to be responding.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I was not sure whether the Minister was giving way or sitting down.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall take it that the Minister is sitting down.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to you, Mr. O’Hara.

I am, perhaps, less kind to the Minister than my hon. Friend the Member for Newark is about the phrase under discussion, which is quite deliberately obfuscatory. I do not think that it can be reworded, because it would have to be reworded either one way or another. One way would be to do something that is unlawful, and pass retrospective legislation giving a blanket exemption to the security services for past potential misdeeds, which is not what the phrase says. The alternative would be to water it down still further, in which case the question would be, why is it there at all?

I am a little puzzled, because it is not right for the Committee, or indeed for the House, to construct a statement making it potentially impossible or more difficult for a person, if they were minded to do so, to make an allegation of illegality against any public authority or organisation. The Minister has nailed his colours to the mast, and I have never suggested that the Security Service or the Secret Intelligence Service have acted illegally in that area, which is about disclosure anyway. I rather take his view that the common law has covered it perfectly adequately in the past and it is not an issue. We have a common law right to do all sorts of things. I, as a lawyer, have an absolute common law right, for example, to disregard legal privilege if I think that legal privilege in information imparted to me is for the commission of crime. It is in fact my duty in those circumstances to tell somebody about it, irrespective of the legal professional privilege that may attach to it. I do not think that that is the issue. However, in those circumstances, I am remain puzzled about why subsection (4) is in the Bill at all, unless it is because somebody has a superabundance of caution or got unnecessarily twitched up.

Photo of Tom Brake Tom Brake Shadow Minister (Olympics and London), Liberal Democrat Spokesperson (Olympics and London)

Does the hon. and learned Gentleman agree that the subsection is quite peculiar? Can he think of any other examples of subsections of this nature?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I was about to say that I cannot, but in the currency of things, I long ago discovered that if I find something odd in drafting, somebody can usually find me a precedent or something very similar in legislation, because that it is usually how parliamentary draftsmen work.

I find the subsection odd. I can just see the Minister’s point that somebody might go to court and say, “What was done in the past must have been illegal, because look at what has now been done to put it right.” The answer to that is, “Not at all. Everything done in the past has been done on the basis of common law rights of disclosure, and we are quite confident about that.” In any case, there is no reason that that could not be said without the subsection. If it does not provide a legal protection, but is merely a device to be waved in the face of a court, it would seem to be peculiarly valueless.

Furthermore, a bit of me does not like putting in statute something that appears to be of no value and, as a result, fairly incomprehensible in its thrust. For those reasons, I do not much like the subsection. As I have said, I might have missed something. The Minister might be in position to respond further—you might give him leave to do so, Mr. O’Hara. At this stage, I am  minded not to press the amendment to a vote, but I am sufficiently uncomfortable with it to think that it will be returned to at later stages. It is just the sort of thing that I can imagine being returned to in another place, if we do not return to it here. For that reason, I hope that the Minister will give it further consideration.

I wonder whether the subsection is necessary and whether it might not have the unintended consequence of being a red rag to a bull. The subsection might encourage people to argue before the courts that it means nothing and that, therefore, they want to ferret around to find out what has been done in the past, which would require common law to be invoked to provide the two agencies with protection. I am inclined to say that there is no point in having the subsection, so why not take it out? However, I shall not press the Minister on that, but I hope that he will reflect on what it really adds to the sum total of the Bill.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I have listened carefully to, and shall reflect on, the hon. and learned Gentleman’s comments. However, it does not detract from what I have said already. I think that the subsection provides for a necessary requirement. As I said, it refers entirely to clause 19 and the principle that information gateways be established therein. It also needs to be considered that clause 19 simply reflects sections 33 and 35 of the Serious Organised Crime and Police Act 2005 and the gateways established there, which we seek to mirror with the intelligence agencies. Some have suggested that the common law on which those agencies have relied thus far—perfectly properly—is not only challenged by the establishment of the gateways in the Bill, but by the initial gateways established by sections 33 and 35 of the 2005 Act. There should be no doubt about the need for subsection (4).

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

To make the position absolutely clear, is the Minister suggesting that subsection (4) provides any kind of immunity or protection against the security services being proceeded against for breaches of the previous basis on which information was disclosed to them? If the answer is yes, frankly we should have no part in it, because it is retrospective legislation. If the answer is no, there is no point in subsection (4).

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I do not agree that there is no cause to have the clause—if I can put it that way—because I think that the latter point, and not the former one, is the right one. As I have said before, it is not about retrospectivity, exemption or immunity. Exemption and immunity are not required because all actions up until now have been rooted in common law. As with the SOCA Bill and this Bill, the subsection is included to confirm that that is the case. It may be clumsy and the red rag to a bull, as the hon. and learned Gentleman suggests, but I am told, and I am persuaded, that the subsection is better in than out. It is only in that context, and only referring to the disclosure provisions outlined in clause 19, do I think that it is necessary. As I alluded to earlier, one could mischievously—if one were far more mischievous than anyone here—remove the clause from the Bill in its entirety, wave it around and say, “Here we are.” Then we get into the sort of terms of immunity exemption and everything else that has been referred to. Notwithstanding the comments about my clarity being another’s obfuscation,  or the other way round, the provision is appropriate to the Bill and I think that it should stay there.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 6:30 pm, 29th April 2008

I have said my piece. I have urged the Minister to think about the matter, as I suspect others will do during the passage of the Bill through Parliament. I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I beg to move amendment No. 74, in page 15, line 35, at end insert—

‘( ) Schedule (Disclosure and the intelligence services: consequential amendments) contains amendments consequential on that section.’.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss Government amendments Nos. 78 and 79 and Government new schedule 2

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

This group of amendments and the change to the schedule are consequential and technical and they follow from the thrust of clauses 19 to 21. Essentially, they reconcile the disclosure and intelligence service provisions of clauses 19 to 21 with existing legislation through consequential amendments to, among others, the Representation of the People (England and Wales) Regulations 2001, the UK Anti-Terrorism Crime & Security Act 2001, the Immigration, Asylum and Nationality Act 2006, which I put through the House—if one lives long enough, one gets to amend the Bills that one put through in the first place—and the Statistics and Registration Service Act 2007.

Simply put, at the time that the original clauses were tabled, the full extent of the necessary consequential amendments were not appreciated and the amendments are the logical consequences of the original clauses 19 to 21.

The amendments to the 2001 regulations are required to preserve the existing rights of the service to receive information on the electoral register while removing the restriction on onward disclosure. The other amendments refer in similar fashion to, among other things, removing the existing bespoke information-sharing gateways to the intelligence and security agencies for revenue departments, immigration and nationality information, and Statistics Board-related information. The provisions are unnecessary given the new general provisions that allow any person to disclose information to the intelligence services for the purposes of the exercise of their functions.

I know that people bristle when a Minister says that the amendments are purely technical and not to worry about them. I assure the Committee in this instance that they are and I commend them with relish to the Committee.

Amendment agreed to.

Clause 20, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Alan Campbell]

Adjourned accordingly at twenty-five minutes to Seven o’clock till Tuesday 6 May at half-past Ten o’clock.