Thursday, December 1, 2022

Baroness Smith speaks out on secret courts

BARONESS Smith of Basildon rose on the floor of the House of Commons to discuss the Justice and Security Bill.

“My Lords, I shall speak to our amendments on this clause, Amendments 69, 70, 71, 72 and 76. I do not wish to detain the House and I shall not press our amendments to a vote at this late stage, but there are some important issues of principle that I want to put on the record and to which I seek a response from the Minister. I hope that he can take some of the points away and consider the issues.

“The purpose behind the amendments is to suggest an alternative definition for the “sensitive information” ouster of the court’s jurisdiction. The reality is that less information is being shared with the UK as a result of fears that the Norwich Pharmacal jurisdiction might mean that the UK Government were forced to disclose intelligence shared with us, thereby breaching the control principle. We have heard that from the reviewer of terrorism legislation, David Anderson, to whom the Minister referred, as well as from members of the ISC and the Government. I know that we have assurances from the US that we will never be denied life-saving intelligence, but I refer the House to the comments made on this issue in Committee by the noble Baroness, Lady Manningham-Buller, who said that that was no consolation to her, given the position that she has held. She went on:

“The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations-little bits and pieces of a jigsaw that, together, might save lives”

The question of whether a UK court would ever in practice authorise the disclosure of such information has been widely debated. I do not intend to go into that tonight, because I do not believe that that is the question now facing this House.

Rightly or wrongly, the flow of intelligence to the UK has been restricted-we understand and accept that. The two questions for the House are: should the UK respond in order to deal with the concerns of our intelligence partners and, if so, what is a proportionate response? The Opposition’s response to the first question is emphatically yes; it is on the second question that I think we would have a difference with the Government; namely, whether it is a proportionate response. We take the view that any restriction of intelligence to the UK is a serious problem and we would agree with David Anderson QC who said of Clause 13 that there was “an element of overkill”. The ouster proposed by the Government reaches far wider than simply the control principle. While we recognise-there is no question about this at all-that there is a need to ensure the absolute protection of information related to our national security, this clause goes wider.

We therefore propose to restrict the definition of “sensitive information” to cover material whose publication would represent a clear breach of the control principle. We would amend Clause 13(3)(b) and (c) to refer only to “foreign” intelligence and to where that intelligence is such that it would jeopardise our national security or strategic national interests.

When we proposed similar amendments in Committee, the Minister described the practicalities, as he did just a moment ago, as being “challenging” and referred to the difficulties of being able to define and separate the two. We took note of what the Minister had to say and, as a consequence, the limitations that we propose in these amendments would retain the ouster for all the examples to which he referred.

Correspondence commenting on control principle material would presumably be covered by amended paragraph (c), which would remain an ouster for information derived in whole or in part from information obtained from or held on behalf of foreign intelligence services. That would allow for either the part of the correspondence that referred to foreign intelligence to be prevented from disclosure, or the entire correspondence, if it solely referred to that intelligence and would represent a disclosure of that information. As I understand it, that is much the same way as the original PII for certain redacted paragraphs in the court’s judgment on the Mohamed case argued.

I have read widely on this, but as far as I can see, the Government have not put forward any specific justification for an example where paragraph (d), which states,

“relating to an intelligence service”,

would be specifically required to protect the control principle information. That is a very wide definition. I suggest to the Minister that there is a clear difference between descriptive information about foreign intelligence services and the intelligence supplied by them. It is the second, not the first, that the control principle relates to and which our foreign partners are concerned could be disclosed.

We recognise that there is a need to ensure the protection of information related to our national security or strategic national interest. We would therefore retain the certification procedure by the Secretary of State where information does not qualify under paragraphs (a) to (c). In addition, we believe that there should be an absolute exemption where certification does not provide for information related to our national security or strategic national interest that is held by our intelligence service, regardless of whether it is derived from foreign or domestic sources. Our amendments therefore retain amended paragraph (a), which states that information held by a security service will not be disclosed if it is national security-sensitive in nature.

However, we propose to delete the reason for certification on the basis of subsection (5)(b), for the,

“interests of the international relations of the United Kingdom”.

We do not think that including such broad criteria can be justified on the basis of the control principle. We believe that the proposed alternative definition of sensitive information is a more proportionate response to the dilemma that the Government face. It acknowledges the clear need for cast-iron assurance to our foreign partners that the intelligence that they share with us will not be publicly disclosed and that, similarly, there should be no risk that information could be published that could in any way damage or harm our national security or strategic or national interests. It would also tighten the ouster provided in the Bill, which is drawn far wider than justifiably necessary.

I end on what I hope is a relatively humorous but serious note that David Anderson put in his evidence to the JCHR. I think that the Minister already recognises the quote that I am going to use. He said that,

“it applies to all information within the possession of the intelligence agencies. Presumably that includes the bill from Tesco for their sandwiches, to which no security importance whatever attaches”.

It is very difficult to see how that could be proportionate. As I said, we do not intend to press the amendment to a vote, but I hope that the Minister can take away some of those points for further consideration and come back with a response.

1 COMMENT

  1. With the festive season upon us I think she’s missing an opportunity in making a lot of cash as a balloon inflator.

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