Reconstitution of ad hoc Committee; International practice on protection of information: Ministry of State Security presentation

Meeting report

Status of ad hoc Committee
The Chairperson noted that the lifespan of the Committee had now been extended, following a decision of the Office of the Speaker, which was recorded in the ATC of 8 February 2011.

Ms M Smuts (DA) raised a point of order. The Democratic Alliance (DA) contended that the ad hoc Committee was functus officio. She wished to address the Committee on the purported ruling by the Acting Speaker. She found it disturbing that there were factual misrepresentations. Firstly, it was recorded that the Committee had requested an extension to 31 March. This was inaccurate. The DA had been requesting for some time that the extension should be for a suggested period of one year, and Mr Landers had at the last meeting also suggested that there would be no harm in requesting an extension longer than a few months, and had himself mentioned the period of one year. Secondly, the point was recorded that the House would normally be required to take this decision, but that the House was not scheduled to sit. A sitting had in fact been scheduled, during 2010, for 28 January but the sittings of both 28 January and 3 February were cancelled. The programmers had been “caught out”.

She then noted that no provision existed in the Rules of Parliament to extend the term of the Committee in these circumstances. This Committee’s life had therefore come to an end on 28 January, and it must wait until properly appointed before sitting validly. The Acting Speaker had purported nonetheless to frame the ruling extending the life of the Committee under Rule 2, and the DA objected to Rule 2 being used. The fact that the House would not sit on 28 January was not “unforeseen”, as envisaged by Rule 2, and the extension of the life of the Committee was therefore procedurally incorrect. She did not believe the meeting should be held.

Dr M Oriani-Ambrosini (IFP) raised another point of order. He said that he recognised that the ruling party had been given an overwhelming mandate by the people of South Africa, but it must follow the Constitution, and the rules and regulations of this Parliament, failing which the Republic was doomed. He said it was untenable that the Office of the Speaker should attempt to resort to Rule 2 and assume the authority of the National Assembly in regard to the Committee. The decision was taken when Parliament was in recess. Because this was essentially a policy decision, concerning whether and for what period the Committee’s lifespan should be extended, the Deputy Speaker should instead have acted in terms of Rule 163(1). An unwise precedent was being set, if the Office of the Speaker could alter a decision of the National Assembly, and this would undermine the principles of democracy established by in Britain from Cromwell’s time. This was a fundamental issue. He too believed this Committee was currently invalidly, illegally and non-procedurally constituted. Any expenses incurred in the meeting of the Committee would be unauthorised. Whilst there was nothing to prevent Members from talking, this should not be seen as a duly constituted meeting.

Mr S Swart (ACDP) said he would not canvass the same issues, but wished to comment on whether Rule 2 was applicable, since this was intended for “unforeseen eventualities” also wished to raise a point of order, but would not canvass the same issues. His point was whether Rule 2 was applicable, because it dealt with unforeseen eventualities. On 16 November the Chairperson said that the lifespan would be ending and would be likely to be extended to (as was then mentioned) 31 January. For that reason, he had specifically queried whether the House would sit, and what would be the result if it did not. For these reasons, he did not believe that the fact that it did not sit was “unforeseen”. Mr Landers too had commented on the position. Rule 214 determined the functioning of ad hoc committees. The ad hoc Committee had ended its lifespan on 28 January. He had, at the meeting of 28 January, also pleaded that, because of the strong public interest in the matter, and the possibility of litigation, there should be strict adherence to the Rules. The matter could have been resolved by the appointment, by the House, of a new ad hoc Committee. Instead, the Speaker had chosen to rely on Rule 2, but he reiterated that that was correctly limited to “unforeseen eventualities”.

The Chairperson asked Ms Smuts to explain what she meant by the Committee being functus officio.

Ms Smuts replied that this meant that the lifespan of the Committee had expired.

The Chairperson said that Members were raising issues of law. He did not wish to state whether their opinions on the law were correct or not. Members had presumably considered what the result would be if they were wrong. On the other hand, a decision had been taken by the Office of the Speaker and he was bound, as Chairperson, to that decision. At the end of the day he thought that the issues were not of huge import. Legal issues would always be subject to challenge and he was reluctant to postpone the workings of the Committee. Until such time as the Speaker might be proven to be wrong, the position was that the Committee’s life had been extended, as published in the ATC.

Ms M Mentor (ANC) wished to comment on one comment of Dr Oriani-Ambrosini. The ANC could not do “as it pleases”. The ruling party was conscious of the responsibility given to it by the overwhelming number of South Africans who voted it into power, and did not assume the right to do anything it chose.

Ms Mentor then made the point that the ATC was published on 8 February. Anyone who wished to do so could, within seven days, complain to the Office of the Speaker about anything on the ATC, in writing. She wondered if this had been done, and noted that queries should not have been raised at this meeting. She proposed that the meeting proceed. Any Members wishing to absent themselves from the meeting had the right to do so.

Mr Colin Mahlangu, Procedural Officer, NA Table, said that the unhappiness of some parties had been noted, and the Chief Whip of the ANC had suggested that further discussions should stand over until consultations were finalised. However, the ruling of the Acting Speaker that the Committee was validly constituted and existing still stood as a valid decision, until overturned.

The Chairperson added that only if any objector succeeded in his or her objection, within the prescribed time period, would the decision of the Acting Speaker be set aside to change the position. He reiterated that he was, at present, bound by the Speaker’s ruling.

 Dr Oriani-Ambrosini appreciated the position of the Chairperson, but asked that he recognise the views of the opposition parties, who were concerned about the formalities. He was worried about the constitutional implications on the passage of the Bill. He would not like to be part of a “procedural travesty”. He would have liked Mr Mahlangu to explain why Rule 163 was not used. He wished to excuse himself from the meeting.

The Chairperson asked Dr Oriani-Ambrosini to consider that the opposition parties would in fact suffer no prejudice in remaining in the meeting. If their views were correct, then this meeting would simply be nullified.

Mr D Maynier (DA) said that he wished to put on record, in response to Ms Mentor, that the Chief Whip of DA had taken this issue up with the Chair of Chairs. The DA delegates would also be excusing themselves from this meeting.

Ms Smuts acted said that the Chairperson was acting ultra vires and the DA members awaited their new appointment from the National Assembly.

Mr Swart indicated that he would also excuse himself.

The DA, IFP and ACDP delegates then left the meeting.

The Chairperson noted the apologies that had been tendered from other Members. He said that there had been a request to the Parliamentary Authorities that the Committee be permitted to sit, during a session of the house, on the following day.

The meeting was interrupted at this point by representatives of The Right to Know Campaign, who silently held up placards (stating Minister of Secrecy) and masks (of the face of the Minister of State Security).

The Chairperson requested members of the public to put down their placards and masks, and warned that he would have them removed if there were further disturbances.

The Chairperson continued that the meeting on the following day, (still to be confirmed to Members) would allow for the second part of a presentation from the Ministry of State Security to be delivered. He reminded Members that he had been authorised by the Committee to request the Minister of State Security’s team to present on best practice internationally around protection of information, as offered by the Minister at a meeting in October 2010.

International Best Practice on the Protection of Information: Ministry of State Security briefing
Mr Dennis Dlomo, Legal Advisory Services, Ministry of State Security, noted that his presentation would be given in two parts, and was in response to a request from the Committee on international practices.

Mr Dlomo outlined that more than 85 countries already had “right to information” or “right of access to information” laws. The first laws were put into effect in Sweden in 1766. There was also an increase in Eastern Europe of countries embracing these laws, and several countries in Africa (listed in the presentation) were about to legislate on this matter, so the view that South Africa was alone in doing so was misplaced. Some of the public submissions had called upon the Committee to consider best practices in other countries and he would be presenting the position.

The first question related to what was classified. Various dispensations classified things that were associated with the generation, development, storage, transfer, copying, conveying, protecting, processing and using information. Some countries adopted a narrow definition of national security, some had a broad definition, and others adopted a broad definition but limited the role of intelligence and security structures insofar as issues of national security were concerned, and brought in non-traditional bodies to deal with new security issues. He would expand on this when dealing with the position in Canada.

In every country there was a legitimate public interest in providing a higher level of protection to sensitive information held by public bodies, which constituted a restriction on the right of access to information. Some core elements were always present to justify the protection, such as national security, defence, foreign relations, public safety, public order.

The protection of national security emanated from the International Covenant on Human Rights and the African Charter on People’s Rights. He set out the grounds that were used as a basis in various countries (see slide 8 of attached presentation). The essence of every “secrecy” law was that some sets of information had to be protected in the interest of the public, country or nation, to avoid threats or harm that would be caused by disclosure to unauthorised persons. The first trend was one of “Prior Classification” or “Classifying Authority System” Under this, the classifying authority determined the categories beforehand, based on balancing potential harm and public interest. All other users would follow manuals, and file series or information blocks would be classified. The second trend was the “Originator or Derivative Classification System”, under which the originator of the document would do the classification. In some dispensations this would need to be confirmed by a senior person. Once a document was classified, those using the information must derive any new classifications, when compiling a new product, from the original classification. The emphasis was thus on classifying each individual piece of information.

Different systems had different approaches as to when information would be classified. This was driven by two main factors. Some, following the Classification by Default system, would determine that information held by the State would be classified until requested, at which point a decision would be made on whether it would be released (applicable, for example, in Austria). The Content Review System, on the other hand, designated categories of information that may, must, or must not be refused. The need to protect, if the application was information was refused, must be proven in all systems. Some systems had handling instructions together with the classification, such as the United Kingdom.

In all systems, the information would be classified at the venue of its creation, and the decisions whether to release the document, although taken at different times, would ensure that those in the operational environment knew how to deal with the information. There was also an internal review system. This would ensure that field agents, defence intelligence agents and crime intelligence agents had access.

In international law and jurisprudence, the grounds for limitation must be met. Separate dispensations had their own laws to ensure effective use of the limitation of the right to access. There were other supportive activities and documents, such as training and advisory services, security audits, and manuals.

Mr Dlomo outlined the provisions of international law, which called for any restriction to be prescribed by law. Any wording must be clear and precise as to what information must be protected. Any restriction must meet the tests of legal certainty and foreseeability. There must be an assurance that the information genuinely needed protection and was legitimated under the provisions of international aw. The steps taken to protect the information must be necessary in a democratic society. This wording was similar to Section 36 of the  South African Constitution. The two main elements were social need, and the fact that the limitation must be proportionate.

Other crucial aspects were concerned with the tests that would be applied for information needing to be classified or declassified. The first was the “Harm Test”, and the second the “Public Interest Test”. The harm test looked at the gravity and probability of harm that would result from unauthorised disclosure of information. Not all dispensations applied these two criteria. The second aspect required justification for the reasons for non-disclosure. If the information was sensitive, the authority was given an opportunity to neither confirm nor deny the existence of the information. The public interest test also had two main aspects. The first related to serious concerns about the benefit that would derive from release of the information. Mr Dlomo stressed that this did not mean interest to the public, but in the interest of the public. When access to information was required, it was necessary to weigh and balance the factors in favour of and against disclosure. Again, there must be justification for the decision provided.

Mr Dlomo noted some instances of what had been accepted in national jurisprudence as being “of general public interest”. The Spycatcher case, in which a former security agent was prevented from publishing his memoirs in the United Kingdom, although they were published elsewhere, established the principle that one of elements “in the public interest” was information about the activities and possible wrongdoing of security services. Another principle was established in the United Kingdom by a case against The Sunday Times, which held that matters pertaining to the settlement of negotiations, concerning the health risks of legal drugs and the persons to whom legal and moral responsibility attached for resulting injuries, was also in the public interest. Criticism of the police department was dealt with in the Thorgeirson case. Published opinions alleging a court’s lack of impartiality were dealt with in the Barford case. All emphasised that public interest referred to matters that would advance the public interest.

In most systems, post-review obligations applied to the originator of the information who was also the driver of the process, and who must also ensure that all those having access to that information, or handling it, were told about the need for revision. In the case of a public request, feedback would be given on the outcome of a request. The different systems reviewed their systems in a different way. There were regular reviews, although time frames differed. Mr Dlomo pointed out that information would not generally be held “under lock and key” for ever, as this would eventually result in an empty right of access. The lapse of the specified time for which the information must be kept secret was one of the criteria that would initiate review. The probability and gravity of harm should the information be released was likely to lessen over time, and could lead to downgrading or declassification of information.

He gave examples of some terms. Some dispensations prescribed a period of five years for review of Top Secret categories, although the United Nations (UN) and Macedonia did so annually. The more sensitive the information, and the longer it was kept, the greater the financial implications, since Top Secret information would need to be kept in a vault. One of the indicators that a system tended to over-classify would be lack of storage space, and that in itself might trigger self-review initiatives. Other dispensations, for instance, prescribed four year reviews for Top Secret, three years for Confidential and two years for Restricted. In the United Kingdom, there was another category, which he would outline in more detail the following day, which was “Protect”.

The review excluded the maximum allowable period for keeping the information. For instance, if 90% of the information was downgraded and 10% was kept, the review would set a maximum period for which it could be kept. In Lithuania this was unlimited, so information could be kept essentially for ever. Hungary allowed 90 years, Sweden 70 years, Estonia and Poland 50 years, and in Germany the initial period was 30 years, but it was renewable for another 30 years thereafter. In Mexico, an extendable period (with no limit) was allowed, of 12 years.

In all dispensations there was certain information, which, when still sensitive, heeded to be kept forever. It was also possible that orders could be given for destruction of information. Mr Dlomo cited the example of registered sources, noting that at the end of the contract of that source, the information on the identity of the source would be destroyed. There were guidelines followed in all dispensations. Information of historical significance was dealt with in consultation with archivists of that country. This was not really of relevance in the Protection of Information Bill in South Africa (the Bill), but of greater import was the declassification of databases.

In some countries the system of classification was coupled with handling instructions. In order to manage the risks that arose from personnel, security clearances were done. Full access required a person to have Top Secret Security Clearance, but he stressed that this clearance was given in relation to the work being done, and could not extend to other areas, as the clearance was linked to the need to know.  A Secret Security Clearance level would allow for partial access. Again, the test of relevance to the work applied. Confidential Security Clearance would give access to confidential and restricted information, and to “Protect” information in the United Kingdom.

Discussion
Ms Mentor firstly raised two matters, not directly related to the presentation. With reference to the disturbance earlier on in the meeting, she noted that people should be informed strongly that it was illegal to protest inside Parliament. This applied equally to sittings of committees as to the sitting of the National House. Secondly, she was disturbed by the fact that shortly after the opposition parties indicated their intention to leave the meeting, most of the journalists had also left, which seemed to indicate that they were more interested in recording the views of the opposition than of those who remained.

Mr B Fihla (ANC) was also concerned how demonstrators had been allowed into Parliament. Parliamentarians were to be protected when working in Parliament.

The Chairperson noted the concerns of Members. He said that he had called upon those protesting to desist from doing so. He had also stated that if this happened again, he would ask that they be removed. Whilst this Committee did not wish to interfere with the right of anyone to protest, there was a time and place in which that should be done. With regard to the media, he felt that there was nothing that needed to be pursued, as this Committee was not monitoring the media, who should be allowed to report on what it found newsworthy, interview any opposition members, and to leave or stay in a meeting. Members expected the media to act responsibly, as part of the South African community.

Mr L Landers (ANC) had no problem with the manner in which the Chairperson had handled the problem. However, he made the point that if those who had protested had been honest, when passing through security, and indicated that they were coming into Parliament to demonstrate, they would not have been allowed in. He agreed that everyone respected the rights of people to demonstrate, but this must be outside Parliament only, and recognised that police should protect the rights of protestors and the public. He agreed that there was no difference between Committee meetings and the sittings of the House. He reminded Members of an incident in the National Assembly in 1994, when Freedom Front supporters had accessed the public gallery when then-President Mandela was responding to matters, had unfurled a banner and had begun to sing. Parliament had decided that, apart from the security concerns, this should not be allowed.

The Chairperson said that he would be guided by Members as to whether they wanted this to be taken further.

Ms Mentor felt that this was serious enough to be taken further.

Mr M Nhanha (COPE) agreed that the matter should be taken up by the Chairperson.

Mr Nhanha asked how the Committee should now proceed, after the other opposition parties had left, and asked if discussions around the presentation should be adjourned. It was desirable that the meetings have as full participation as possible. Parties may differ in their views, but they participate to nourish the democracy.

The Chairperson said that he was sure that many Members had walked out of many meetings in their time. Members of Parliament, whether they had left or stayed in the meeting, must be conscious of the obligations that they had to their constituents. Whilst he was sympathetic to the opposition parties’ views, he agreed that it was important to have full participation. He thought that the concerns that the process might be tainted were unfounded, and were likely to be resolved soon. He would also speak to the Members personally.

Mr Landers wished it to be on record that the request for the presentation from the Ministry came from those who had left the meeting.

Ms Mentor then asked questions about the presentation. The Committee was concerned as to what levels of classification might be appropriate, and she noted that some countries had five levels. She asked in which countries Top Secret information might be reviewed after five years, expressing concern that something like nuclear secrets might be revealed after this time. She noted the German system, allowing a review that then allowed for a further period of classification before the next review must be held.

Mr Dlomo responded that even where information could be declassified, there was some information – such as identity of sources – that would not be disclosed. The same would apply to information on weapons of mass destruction. When the Truth and Reconciliation Commission was sitting, there had been calls for release of information on nuclear capacity that South Africa had amassed. However, here, the effect of international treaties must also be considered.

Ms Mentor wondered whether the self-review that the United Kingdom imposed annually was automated.

Mr Dlomo responded that usually there was a critical incident that would trigger the self-review – such as detecting a security breach. However, it could also be triggered by administrative concerns, such as lack of space. A review could then lead to declassification of some of the information. Short periodic reviews mostly applied to international organisations, such as the European Union. He noted that the information held would not be information owned by the EU itself, but by member states. He also pointed out that it was quite likely that, for instance, the Peace and Security Council might discuss a volatile situation in one country at one meeting, but that situation could have normalised by the time the Council met again, so the information from the first meeting could appropriately be downgraded. That was the logic behind the shorter periods.

Mr Dlomo added that most people did not understand that there were various levels of classification. In the United States of America, certain levels were the responsibility of the President, Vice President and senior government, who were the originators. Others would attend to classification on the basis of the manual that was then issued. In the United Kingdom, the policy would be issued by the Cabinet Secretary and HMG Security, and that policy framework would guide the work done.

Mr Nhanha said that although it was interesting to hear the position in several countries, he was particularly interested in hearing the position in the BRIC countries (Brazil, Russia, India, China) with whom South Africa had particular relationships and parallels. He would also be interested to hear specifically about countries, particularly those in Africa, who had already legislated, rather than those who were still in the process of doing so. He pointed out that protection of information was linked to the political history and political culture of the country, and South Africa must consider the route it wished to take.

The Chairperson noted that the following day’s session would probably answer his concerns, and that although it was impossible for the presenters to go into detail on every country’s system, an overview would be presented.

The meeting was adjourned.