My Lords, this amendment is concerned with an anomaly that was revealed in the case of Evans v Ministry of Defence. The case concerned the handing over of Taliban suspects by British forces to Afghan security police, with the distinct likelihood that they would be tortured. The security services argued that they were not required to disclose documents in their possession for the purposes of the case because they were not themselves being sued—they were not the party concerned. The defendants were the Ministry of Defence. They said that there was a statutory bar. By Section 2 of the Intelligence Services Act 1994, the chief of the Intelligence Service is under a duty to ensure that there are arrangements for securing that no information is disclosed,
“except so far as is necessary for the proper discharge of its functions”.
Section 2(2)(a) of the Security Service Act 1989 is of a similar effect. It was argued that it was not necessary even to reveal the existence of the relevant material in their possession since it was not disclosable. I am informed by the Bingham Centre for the Rule of Law that the Evans case is not the only case in which the security services have advanced that argument.
Clause 6(2) as currently drafted provides that CMP applications apply where a party to the proceedings,
“would be required to disclose material”,
and so it is still open to the security services to argue for what they call a statutory bar, which would mean that they were not required to disclose anything at all unless they were themselves being sued. Paragraph 3(4) of Schedule 1, which we have looked at on a number of occasions, is interesting because it makes a specific provision that disclosure to the ISC is,
“necessary for the proper discharge of the functions”.
It is there, presumably, to counter any argument that might be made by the security services that they were not required to disclose anything to the ISC in particular circumstances. If that specific provision is in place for the ISC, there is no reason why a similar provision should not be made for disclosure to the court under Clause 6(2), which is the purpose of the additional clause I have advanced. It would counter any argument that the security services would not be required to reveal anything unless they were being sued themselves. I beg to move.
4.45 pm