My Lords, I am grateful to my noble friend for bringing forward this amendment. He rightly points to two pieces of legislation which govern the security and intelligence agencies, the Security Service Act 1989 and the Intelligence Services Act 1994. As my noble friend has indicated, they place an obligation on each of the agency heads to prevent the disclosure of information obtained by the agencies except on certain limited grounds set out in those Acts. In particular, the disclosure of information is permissible where necessary in the proper discharge of the functions of the agencies. Information held by the security and intelligence agencies will include information and intelligence from human source reporting, and therefore is essential to the agencies’ operational effectiveness and the protection of national security.
As I understand it, the concern behind this amendment seems to be that these provisions would prevent the agencies complying with their disclosure obligations in civil proceedings. However, it is our view that the amendment is unnecessary. The agencies take their disclosure obligations very seriously. In England and Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally apply. Standard disclosure requires parties to disclose the documents on which they rely—documents which undermine their or another party’s case and documents which support another party’s case. If the claim is for judicial review, all public authorities are subject to a duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, part of considering these disclosure obligations is the question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the Secretary of State should apply for closed material proceedings. In a case where the agency is being sued for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of an agency’s function to defend actions taken in the discharge of its functions. I therefore believe that the amendment is unnecessary.
My noble friend has made reference to paragraph 3(4) of Schedule 1 concerning the ISC provisions. This paragraph reflects a provision in the Intelligence Services Act 1994 which treats disclosure by the agencies to the ISC as necessary for the proper discharge of their functions. It may be asked, as my noble friend did, why this provision is needed there and not in the context of civil litigation. It is simply because it is right to make it clear, as existing legislation does, that disclosure to the ISC is permitted.
My noble friend may well be raising a case where it is a question of third-party disclosure. He mentioned a case of Evans v Ministry of Defence and, on the intervention of the noble Lord, Lord Pannick, I understood him to indicate that that argument did not win the day. It is a case that I wish to consider in the light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into any civil proceedings, regardless of the identity of the parties or the subject matter of the proceedings, as somehow part of the proper discharge of the agencies’ functions, that would conflict with the agencies’ need and ability to operate in secret. This is vital to maintaining the trust and confidence of those with whom they work; or, as was said in the previous debate by the noble Baroness, Lady Manningham-Buller, information may come from a particular agent, and the secrecy of that is important. I am thinking in particular of proceedings that do not at all involve the agencies and where a request for disclosure is made. It is right that in these circumstances the courts consider whether disclosure would be necessary for the proper discharge of an agency’s functions before an order for disclosure is made.
I have indicated to my noble friend that I will look at the Evans case. Based on what he said, I am advised that it may be similar to and consistent with the arguments that the agencies made in the Omagh bombing
case—namely, that Section 22A is a bar to third-party disclosure, and that it was for the courts to decide. I hope that he hears that the agencies take seriously the requirements of disclosure in civil proceedings under Part 31 of the Civil Procedure Rules. On that ground I urge that the amendment is unnecessary and ask my noble friend to withdraw it.