59.  The Bill places on a statutory footing the disclosure of information to and by the intelligence services[41] (the Security Service, the Secret Intelligence Service and GCHQ[42]). It provides for:

60.  Specifically, the Bill provides that:

61.  The Bill provides that a disclosure under these provisions does not breach any obligation of confidence owed by the person making the disclosure, "or any other restriction on the disclosure of information (however imposed)",[51] save for disclosures which contravene the Data Protection Act 1998, or are prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.[52]

62.  We welcome the Government's proposal to place the disclosure and use of information by the intelligence services on a statutory footing, as a potentially human rights enhancing measure. As the Explanatory Notes to the Bill rightly acknowledge,[53] the disclosure of information to and by the intelligence services will often involve an interference with the right to respect for private and family life, home and correspondence in Article 8(1) ECHR, and to be compatible with that right such interferences must be "in accordance with the law". This means that there must be a legal basis for the disclosure and use of information, which means not merely a formal statutory authority but also a sufficiently detailed legal framework prescribing the scope of the power and providing adequate safeguards against the power being exercised arbitrarily or disproportionately.

63.  The Explanatory Notes to the Bill explain the Government's reasons for its view that these provisions are compatible with the right to respect for private life in Article 8.[54] It is argued that the provisions are "in accordance with the law as they appear in the Bill" and that they pursue the legitimate aims under Article 8(2) of the protection of national security and the prevention of crime. Any interference with the right to respect for private life is said to be justified under Article 8(2) for two reasons. First, any disclosure of confidential information is subject to the statutory constraint that it must be "necessary" for the protection of national security or for the prevention of crime. Second, before acquiring and disclosing information, the intelligence services take care to ensure that the acquisition or disclosure is both necessary for the specified statutory purposes and proportionate, and that they will continue to take care to apply these twin tests of necessity and proportionality in future when acquiring or disclosing information and when using it internally for their statutory functions.

64.  We consider the adequacy of this explanation below. However, we have an additional and very significant human rights concern about these provisions, which is not acknowledged in the Explanatory Notes to the Bill, concerning the risk of complicity by our intelligence services in the use of torture, inhuman or degrading treatment or other human rights violations in other countries. In our work on Torture and Counter-Terrorism Policy and Human Rights, we have often commented on this risk and on the need for safeguards to make sure, first, that information acquired and used by our intelligence services has not been obtained by torture or other human rights violations, and, second, that information disclosed by our intelligence services is not then used in acts, such as interrogation by torture, which amount to serious human rights violations.[55] In our Report on Torture, for example, we said, in relation to the use of information obtained by torture:[56]

65.  In relation to co-operation with foreign interrogators abroad, we said:[57]

66.   We therefore wrote to the Government, when we saw the draft clauses before publication of the Bill, asking whether the Bill would include express safeguards designed to ensure that information has not been obtained as a result of, and will not be used in, acts amounting to torture or other human rights violations.[58] In response, the Government shared our concern but did not accept the need for express safeguards, expressing itself satisfied with the current arrangements:[59]

68.  In April the Guardian newspaper reported a number of allegations that the Security Service had provided information about a number of British terrorism suspects to the intelligence services of Pakistan who tortured them.[60] As far as we are aware these remain contested allegations, but we have referred in previous reports to cases where it is a matter of public record that the intelligence services have made use of information it knows may have been obtained by torture, and made information available to others where there is a risk of it leading to torture or inhuman or degrading treatment.[61]

69.  In her witness statement to the House of Lords in the recent case concerning the admissibility of evidence obtained by torture, for example, the then Director General of the Security Service, Dame Eliza Manningham-Buller, made clear that information disclosed to the Security Service by sources such as the Algerian intelligence agencies, where there is a risk that it may have been obtained by torture, would nevertheless be made use of "where the reporting is threat-related ... in order to protect life." The same witness statement also makes clear that the UK authorities provided questions to the Algerian authorities to be put to those who were being interrogated in Algeria. It is also a matter of public record that the UK intelligence services provided intelligence information about two British residents to the Gambian authorities which then directly or indirectly found its way into the hands of the US authorities who, it is alleged, subjected them to torture.[62]

70.  As we pointed out in our Torture Report, the judgment of the House of Lords in the torture evidence case leaves open the possibility that information which may have been obtained by torture or ill-treatment by foreign agents may be used in intelligence or law enforcement operations, in particular to take preventative measures to protect against imminent attack. We also pointed out that where the intelligence services supply information to certain foreign intelligence services, it is likely to be impossible without safeguards to be confident that the provision of such information does not give rise to a real risk of torture or inhuman or degrading treatment. We therefore remain of the view expressed in that report, that express safeguards are needed to be confident that information is not routinely acquired, used or disclosed by the intelligence services in a way which renders the UK complicit in torture, inhuman or degrading treatment or other serious human rights violations.

71.  In our view, clauses 19-21 of the Bill provide a formal legal basis for the disclosure and use of information by the intelligence services, but they fail to provide sufficient substantive legal safeguards to guarantee against the arbitrary and disproportionate use of the power to disclose and use such information. There is no express saving for disclosures which would breach the Human Rights Act 1998, nor other relevant international obligations such as the UN Convention Against Torture (UNCAT).

72.  We therefore recommend that clause 20(2) of the Bill be amended to provide that nothing in clause 19 authorises a disclosure that breaches (1) the Human Rights Act (2) UNCAT and (3) any other relevant international obligation concerning the disclosure and use of information. The amendment below is designed to give effect to this recommendation.

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73.  We also recommend the insertion of further safeguards to require the intelligence services to take active steps to ascertain whether information it is acquiring was obtained by torture. We suggest the following new clause for debate: