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Official Secrets Act 1989 (Prescription) (Amendment) Order 2007

Volume 693: debated on Tuesday 3 July 2007

rose to move, That the Grand Committee do report to the House that it has considered the Official Secrets Act 1989 (Prescription) (Amendment) Order 2007.

The noble Lord said: This order is made under the Official Secrets Act 1989. Under that Act, it is an offence for a Crown servant or government contractor to make a damaging disclosure of any information within particular categories which is or has been in his possession by virtue of his position, unless he has lawful authority to do so. People who are not Crown servants can be treated as such for the purposes of the Act by being designated in an order. The order before us does that for the members and employees of two separate organisations: the Nuclear Decommissioning Authority and the Independent Police Complaints Commission. I will deal with each of them in turn.

First, I shall deal with the Nuclear Decommissioning Authority. One of the categories of information protected by the Official Secrets Act is that relating to defence and security, including information about nuclear technology and nuclear materials. The boards and employees of existing companies with access to such information—British Nuclear Fuels and the UK Atomic Energy Authority—are already designated under the Act.

The Nuclear Decommissioning Authority is an executive non-departmental public body set up on 1 April 2005. It is responsible for the decommissioning and clean-up of the UK’s civil nuclear legacy and has responsibility for nuclear sites previously operated by British Nuclear Fuels and the UK Atomic Energy Authority. It owns the plants and facilities of British Nuclear Fuels and manages clean-up operations at the UK Atomic Energy Authority’s sites.

British Nuclear Fuels and the UK Atomic Energy Authority have been restructured so that they now operate their facilities, both for clean-up and continuing commercial operations, under contract to the Nuclear Decommissioning Authority, rather than as principals. Employees of the Nuclear Decommissioning Authority therefore have access to the same information as those of British Nuclear Fuels and the UK Atomic Energy Authority. So it follows that members and employees of the Nuclear Decommissioning Authority and employees and board members of any future subsidiary should also be treated as Crown servants for the purposes of the Act. The draft order will achieve this by designating them as such. This is a necessary extension of existing designations, which will ensure the continued protection of information relating to defence and security.

Additionally, the order will designate members and employees of the Independent Police Complaints Commission as Crown servants for the purposes of the Official Secrets Act. The nature of the commission’s work is such that its members and employees may have access to one or more categories of information protected by the Act, in particular information which, if disclosed, is likely to result in crime or impede the investigation or prosecution of crime. The IPCC has responsibility for, and is guardian of, the police complaints system in England and Wales. All instances of deaths or serious injury following police contact must be reported to the IPCC. It has the power to investigate independently, using its own trained investigators, or manage or supervise investigations by the police into complaints, conduct and death or serious injury recorded under the Police Reform Act 2002. When investigations have been completed, the IPCC will decide whether a file should be submitted to the Director of Public Prosecutions for a decision about prosecuting serving police officers. The IPCC also has the power to recommend or direct that disciplinary action is taken against police officers when there is a case to answer.

In discharging these responsibilities, the IPCC commissioners and employees become the holders of confidential and sensitive information that must be used appropriately, particularly where criminal action may potentially be taken. Leaks of such information could prejudice criminal proceedings, either against the officer concerned or against others, and could involve the disclosure of information about police techniques which could prejudice future police operations. While there is a legitimate public interest in the accountability of police forces and their officers for their actions, the interests of justice cannot be served if such information is used inappropriately. In order to conduct effective investigations, the IPCC needs to maintain the trust and confidence of the public and the police service. Witnesses to serious incidents, whether from within the police service or the public, may be reluctant to provide evidence if they do not have the confidence that such information will be appropriately protected. Bringing the IPCC commissioners and staff under the Official Secrets Act 1989 will provide reassurance that there is a strong deterrent to unauthorised disclosure of information given in confidence to the IPCC. It is therefore appropriate and necessary to put the IPCC under the same duty of confidentiality as applies to Crown servants under the Official Secrets Act 1989. The draft order will achieve this by designating members and employees of the IPCC as Crown servants. Crucially, the IPCC has requested this change.

Additional categories of “Crown servant” were last designated in 2003, when subsidiaries of Urenco, the uranium enrichment company, were added to the list. The noble Baroness, Lady Anelay, agreed at that time that references within the Official Secrets Act had to be kept up to date. The order will do that, taking into account the responsibilities which the Nuclear Decommissioning Authority has taken on and ensuring the effectiveness of the restructured police complaints procedure under the IPCC. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Official Secrets Act 1989 (Prescription) (Amendment) Order 2007. 19th report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)

I thank the Minister for explaining the order. Perhaps I may say how pleased I and my colleagues are to see him still with his shoulder to the wheel.

We understand and agree that both the Nuclear Decommissioning Authority and the Independent Police Complaints Commission regularly handle information, sensitive in its different ways, public disclosure of which would bear serious risks. The Minister will appreciate, though, that while we support the general thrust of the order, we are concerned to avoid an unnecessarily secretive approach. We ought to guard against a situation in which a blanket approach is taken towards a manageable risk. The order leaves open to doubt the exact nature of the information which is not to be disclosed. Will the Minister say precisely what information may not be disclosed?

Paragraph 4.3 of the Explanatory Memorandum, to which the Minister referred, states in relation to the NDA:

“One of the categories of protected information is information relating to defence and security”.

That is one of the categories. So what are the others? To what sort of defence information does it refer? I can see that there are security implications in respect of some information of which the NDA will come into possession, but of what information relating to defence that is not also information relating to security could it possibly come into possession? If that has not been fully explained already, I would be grateful for the Minister’s explanation.

Paragraph 7.1 refers to disclosure of “certain types of information”. Will the Minister explain exactly what that information is? Specifically, what rules will be applied in determining whether disclosure is permissible?

Paragraph 7.6 refers to the risk that information gathered during the course of an investigation could impede a prosecution if disclosed without authority. We understand this. Equally, details of unfounded allegations against any person, such as a police officer, should not be allowed to be made public.

Paragraph 7.7 states that any unauthorised disclosure could lead to prosecutions having to be abandoned. Did a particular case or cases cause the Government to decide that this order was necessary? It seems rather surprising that people in the position of members of the IPCC would even contemplate making information of this nature public and risking a case. Equally, it seems surprising that the perceived risk of leakage of sensitive information was not contemplated at the time of establishment of the IPCC. Will the Minister explain why this was?

I add my congratulations to those already offered to the Minister. I am pleased to see him in his place, and I am very pleased to see that he is still dealing with Welsh affairs, which I know from my previous incarnation he handled sensitively and with great talent.

I hope your Lordships, particularly my fellow countrymen who are eagerly awaiting the final matter today, will forgive me if I take some time on this order, because official secrets is a sensitive area, and it is necessary to fire something of a shot across the bows of the new Ministry of Justice.

All Governments love secrecy. I remind your Lordships that it was the Liberal Government of Mr Asquith who introduced the Official Secrets Act 1911, but they included in it a public interest defence; that is, it would be a defence to a prosecution that a disclosure had been made in the public interest. However, in 1989, largely due to the Clive Ponting case, who your Lordships will recall was a civil servant who had leaked details of the course of the “Belgrano” at the time of the Falklands war and revealed that it was heading out of the exclusion zone and not into it as had previously been said, the Official Secrets Act was amended and the public interest offence was removed. One thing introduced at that time, among others, was the removal of a defence for newspapers. Under Section 5 of the 1989 Act, it was made a specific offence for newspapers or journalists to publish secret information that had been leaked to them by a Crown servant in contravention of Section 3 of the Act. Therefore, under pressure, it was a Conservative Government who tightened things up.

Recently, following the Shayler decision, to which I shall refer later, the Intelligence and Security Committee revealed in its report for 2005-06 that the Home Office had bid for a legislative slot to amend the 1989 Act so as to remove the common law defence of duress of circumstances in order to address unauthorised disclosure by members or former members of the intelligence and security agencies. Indeed, the Government have said that they intend to remove the defence of duress of circumstances in order to clamp down on the increase in unauthorised disclosures by members and former members of the agencies and to increase the jail sentence. Mr Blunkett, the then Home Secretary, said that he wanted to place a gag on blabbers. That is perhaps an easier way of understanding the Government’s intention.

I turn to the matters with which we are concerned here. The Nuclear Decommissioning Authority is, it says, an organisation responsible for managing the clean-up of Britain’s civil nuclear legacy. It is a complex task, costing many billions of pounds and involving a wide range of expertise, and it will last for well over 100 years. What sort of secrets is it seeking to maintain? There are areas—for example, leaks from nuclear installations—where one can envisage that there would be a considerable public interest in disclosure. There has already been substantial publicity in Scotland about leaks from the Dounreay installation. Another important area for consideration is the transport of nuclear materials around the country by train. There have been accidents and concern has been expressed in many quarters. Therefore, it is not likely that there will be agreement over imposing what is essentially a criminal gag on everyone working in that industry or that particular organisation. We do not oppose the order but we want to call attention to the fact that there are instances where the public interest may well be in the disclosure of things that are going on within that industry which the industry might well wish to conceal. As I said, we do not oppose the order but we draw attention to its implications.

The reference in the order to the Independent Police Complaints Commission results from the leaking of information concerning the death of the Brazilian, Jean Charles de Menezes. Your Lordships will recall that the initial explanation for the shooting of that very unfortunate man was that he had leapt over a barrier, run down the stairs and shown signs of being a considerable danger when he was shot. It came to the attention of an employee of the Independent Police Complaints Commission, which looked into that shooting, that that was a false picture and that the statements that had been obtained by the police were to the effect that the Brazilian electrician was already being restrained by armed officers when he was shot seven times in the head, that he had not run away or vaulted over the barrier and that he was not acting in any suspicious way. It was as a result of that that the Leicestershire Constabulary was asked to conduct an inquiry into what had happened. The woman in question was arrested in connection with the unauthorised disclosure of IPCC documents and the person to whom she disclosed them, an ITV news editor, was arrested and charged with theft. Then, as happened on a number of previous occasions, the prosecution was dropped.

Your Lordships will recall the case of Miss Gun, which was dropped three days before the trial was due to take place in the Old Bailey. We had a considerable exchange with the former Attorney-General, the noble and learned Lord, Lord Goldsmith, over that. That lady, seeing it as her public duty to ensure that the truth be told, disclosed the matter, and all sorts of things fell upon her head. She was, of course, dismissed from her job. That is, I suppose, how a responsible employer should behave and how the two employers with which we are concerned in this order could behave, without the necessity for bringing criminal charges under the Official Secrets Act.

One should understand the background to these orders. On the one hand, with the Nuclear Decommissioning Authority, there are dangers that will exist over a long period of time and the possibility of things going wrong being concealed; on the other hand, with the IPCC, a specific case went all the way to court before it was thought that it should not proceed any further.

A review of security within the IPCC was carried out by Mr Bill Taylor. His fifth recommendation was that a specific arrestable offence be created for the unauthorised release of information by a member of IPCC staff in relation to the IPCC role. That was the solution that the review into the security of that organisation put forward. In fact, the outcome was that after consideration,

“the IPCC decided to pursue an alternative strategy involving an amendment to the Official Secrets Act. The Home Office has been asked to include the change at an appropriate opportunity”.

This is that opportunity, and that is what is being done today. It is acceptable only on the basis that the defence of necessity, which was outlined by the Court of Appeal in the Shayler case, be maintained. If the Ministry of Justice, the Home Office or whoever is responsible for this comes forward with proposals to remove that defence of necessity, just as the Conservative Government removed the defence of necessity before, I give notice that we on our Benches will strongly oppose any such attempt. I apologise for detaining your Lordships for rather longer than might have seemed necessary, but we are dealing with an important topic.

I thank the noble Lords, Lord De Mauley and Lord Thomas of Gresford, for their kind words and for congratulating me rather than commiserating with me on standing here today. The speech made by the noble Lord, Lord Thomas of Gresford, was not too long; it was extremely interesting and provided a context that should always be there when discussing matters such as this. I shall attempt to answer some of the questions that he asked, but I am grateful to him for saying that today he will not oppose this order, although he will be watching very carefully in future to ensure that what he hopes will not happen does not in fact happen. The points that he made were very well made.

The noble Lord, Lord De Mauley, asked what information would not be disclosed. On the nuclear side, it is commercially sensitive information about stocks of used uranium and plutonium. On the IPCC side, the Official Secrets Act makes it an offence to make an unauthorised disclosure of information in various general categories, which are information that damages security and intelligence, defence or international relations or information that impedes the prevention or detection of a crime. These are generalised categories that apply to disclosures that have damaging consequences and are unauthorised. However, this is not a blanket ban on disclosure as decisions on what to disclose can be challenged in court, which is an important protection.

The noble Lord, Lord Thomas of Gresford, asked why an extension was being made to the IPCC now. In the Stockwell investigation, there was an unauthorised leak of information from the IPCC, which led to a review of security that caused the IPCC to request the change. It was not originally included because the previous body, the Police Complaints Authority, had a specific duty in the Police Act. It was decided to make the complaints system more open and therefore not to include its effects. The leak of information from the Stockwell inquiry caused this request for a change. It was not considered appropriate to leak a specific offence, as with the previous authority. That is not absolutely clear, and I should like to write to the noble Lord with a fuller answer on that.

The question of the public interest defence, which the noble Lord, Lord Thomas, raised and discussed, was debated by Parliament at some length during the passage of the Bill in 1989. A public interest defence would allow a damaging disclosure to take place and then, when the damage was past recall, there would be an argument about whether the disclosure was justified. Members or former members of the security services cannot be expected to make a fully informed decision of the damage that an unauthorised disclosure may do. There is no need for a public interest defence, as a Crown servant can seek authorisation from his or her organisation for any proposed disclosure. Members of the security and intelligence service have access to the independent staff counsellor, who can report on any matter to the relevant Secretary of State or directly to the Prime Minister and can therefore deal with any allegations of impropriety within the services.

For members of the security services, the OSA imposes a blanket ban but, for the reasons above, a public interest defence is not appropriate for them. For those governed by this order, disclosure is an offence only if it is damaging in some way and it is not in the public interest to disclose information that damages defence, international relations or impedes the investigation or prosecution of a crime. If a whistle-blower still has concerns, he can ask for authorisation to disclose and challenge any refusal in court.

The noble Lord, Lord Thomas, also asked what secrets are to be maintained. The NDA is committed to openness and transparency in its activities and is not seeking to hide matters, but there are security matters in protecting sites from terrorists.

Finally, I have a fairly long brief on extending the Official Secrets Act to the IPCC, headed “additional briefing”. It is three pages long and I shall not read it out, but the noble Lord, Lord Thomas, may be interested to read it so I shall pass it to him and send a copy to the noble Lord, Lord De Mauley.

On Question, Motion agreed to.