Protection of Information Bill: deliberations on Clause 21 & proposed new clause; extension of life of committee

Meeting report

Programming issues
Mr S Swart (ACPP) asked if the Committee would be sitting on 24 June

Mr L Landers (ANC) thought that this was an opportune moment to indicate that the ANC study group had been giving consideration to the process being followed. The Group had concluded that the current deadline date was inadequate, and he proposed that the committee should request an extension of the life of this ad hoc Committee. No fixed date had been proposed, but it might be something like the second week of the next term. That could be ascertained by the Chairperson, after consultation.

Mr Swart said that he welcomed that suggestion. The deliberations to date had been very useful and it was in the best interests of all that the date should be extended. It would be necessary to ensure that the correct procedure was followed, to get a House resolution.

 Ms M Smuts (DA) agreed. However, she wondered if this proposed extension might not be too short. In July, the Portfolio Committee on Justice would be sitting on matters during the recess. She wondered if it might not be useful to take the extension further.

The Chairperson asked if it was proposed that there be some meetings during recess.

Mr Landers said that he was not sure whether there would be agreement on that. He noted that many of the media reports failed to take into account that Members were sitting on numerous committees, and found it difficult to set aside the time needed to consider this very important piece of legislation. The Chairperson had been very helpful in trying to schedule meetings so that they did not clash with other meetings, in particular of the Portfolio Committee on Justice. Bearing in mind these logistical difficulties of scheduling meetings, and the need to give Members enough time and space to schedule enough time to consider the matters, he appealed that, at the barest minimum, the authorities in Parliament should be asked to schedule at least  two full days during recess for this Committee to meet.

Mr Swart agreed, indicating that this was even more difficult for the smaller parties. He suggested that if possible, he asked that this Committee should sit on fewer days in the following week, and schedule more time during the recess. He asked if it would be possible to discuss dates, as some programmes had already been set during the constituency period.

The Chairperson said that Members had an obligation to finish this legislation. The proposal from Mr Landers was meant to accommodate the problems, but should not be interpreted as a proposal to slow the process. He would speak to the authorities in Parliament and see what type of programme they would approve. It was unusual that an ad hoc Committee should subsist for so long. He asked Members for their approval that the he should negotiate and then redraft the programme for approval.

Mr D Maynier (DA) supported the extension of the life of the Committee. However, he reiterated that DA Members had obligations and commitments, and he would not be available other than in the last week of recess.

Dr M Oriani-Ambrosini (IFP) suggested that the Chairperson give Members a deadline date for providing their commitments. He pointed out that the Task force on the intellectual Property matters would also be meeting during recess.

Members discussed the procedure in requesting meetings. The Chairperson confirmed that the programming committees needed to consider all committees’ requests.

Presentation of latest amendments
The Chairperson noted that Working Document 8, dated 2 June, contained the latest amendments.

Ms Xoliswa Mdludlu, Principal State Law Advisor, Office of the Chief State Law Advisor, noted the amendments, from page 32, relating to the addition of clause 16(10). However, she suggested that the words “agreed in subsection (2)” should be added.

Ms Mdludlu summarised the changes to clause 17(1)(i) and also the change to paragraph (iv) of that clause’s list. She then indicated the change to clause 19(4). Clause 21 had been amended in lines 3 and 4.
Clause 19(2)(f) had been omitted.

Continuation of deliberations
The Chairperson asked the DA for its position on clause 19.

Ms Smuts indicated that the DA remained opposed to clause 19(6).

The Chairperson noted that clause 18 also remained flagged as there was no consensus. He asked Members how much further debate they wanted

Ms Smuts said that when there was final deliberation the points would be raised again. She asked that clause 18 should remain until Members were dealing with offences and sentences. The same applied to clause 19. The DA saw clause 19(6) as a Constitutional problem, because it did not observe the principles of severability. She asked that debates on these not be closed off.

Dr Oriani-Ambrosini indicated the IFP’s opposition to these type of provisions. However, if they were to be included, then he asked that the Committee should consider the IFP’s suggestion of an amendment, to insert the notion of “knowing that such record is classified”.

Mr A Maziya (ANC) raised a point of procedure. He asked if the Committee should not be proceeding from where it had left off, unless there was a need for consolidation. He did not think it correct to go back to areas that had been flagged.

The Chairperson conceded that he had a point. However, he wanted clarity on what was flagged, so that there was not further debate on this point, and to clarify which of the subclauses may have been flagged. He confirmed that the whole of clause 20 remained flagged. He also confirmed that clause 19(6) would remain flagged as there had been no agreement on it.

Clause 21
The Chairperson summarised that the DA believed this should be retained, except for clause 21(2)(f). Dr Oriani-Ambrosini had argued that the whole clause should be deleted, or at least made consistent, so that the grounds for classification and continued classification remained the same. The Chairperson drew Members’ attention to the fact that the original drafts had relied upon “national interest” as the core on which classification would be based. There was concern about that, and the fact that in the three categories, the test was too loose. Members had addressed these issues. However, clause 21 seemed still to relate to the old version of the Bill, based upon “national interest” and was probably meant to give some substance to what “national interest” would be. He felt that if this clause was retained, it would be inconsistent. He suggested, similar to Dr Oriani-Ambrosini, that there was a need to synchronise this and the classifying section, so that there was no contradiction.

Mr Landers said that the argument put forward was that this clause contained something different from the clause dealing with classification. He was reading now from the new Working Document 8 and would be referring to the clause numbers contained in that. However, Dr Oriani-Ambrosini had not highlighted subclause (3), which noted that the Minister may, after taking into consideration all aspects “as indicated in subsection (2), section 11 and section 17(1)(i)” authorise classification or declassification. He highlighted that section 11 would deal with the nature of classified information, and section 17(1)(i) dealt with classification levels.

Mr Swart said that he had, at the previous meeting, asked for some time to consider this further. He heard Mr Landers’ point, but thought that section 11 had been proposed when “national interest” was still in the Bill. clause 21(3) was important but he thought that section 11 had been proposed in the context of national interest. However, it was true that clause 17(1) said that the first classification decisions must be guided by this clause also.

Ms Smuts said that she agreed with the Chairperson, and this was an explanation for the way in which the clauses read. She agreed that the reference in subclause (3) was probably inserted to cater for the then-inclusion of “the national interest” and it was likely that this was done because the “national interest” was so wide at the time. She agreed that the examples now given in the remainder of the clause were in fact correct. The DA reiterated that it did not wish to lose this clause, and felt that it tied in with the conditions in clause 17. However, if all parties were in agreement, then the DA would be sympathetic to proposals that this clause be brought in line with the clause 15 criteria. One possible way to do so might be simply to introduce the levels of harm, as set out in clause 15, and build them into the examples set out in clause 21. This might achieve better integration.

Dr Oriani-Ambrosini reiterated that all his comments were directed towards trying to clarify matters, in order to achieve a good Bill. He thought that Mr Landers’ comments on clause 21(3) did not answer one question. The power to classify lay with organs of State. However, this subclause now made mention of the Minister being able to classify. In clause 7, the Minister was permitted to identify classes and categories. Clause 21 now repeated the powers  to issue regulations. However, Dr Oriani-Ambrosini did not see subclause (3) as a qualifier of subclauses (1) and (2), which applied to everyone. Another difficulty with clauses 21(1) and (2) was that they failed to specify from when they would apply, so it must be assumed that these criteria for reclassification would start running immediately after the initial classification had been made.

Dr Oriani-Ambrosini illustrated that a person classifying would look at the tests set out in clause 15. He would then need to proceed to clause 17, which set out the conditions for classification. He would then also need to satisfy himself that he had met the conditions for continuous classification (because there was no point in classifying if the document was to be declassified in the next few minutes). The tests in clause 21 could be used to understand what was in clause 15. It made more sense simply to put these tests into clause 15.

The Chairperson interrupted Dr Oriani-Ambrosini to ask him if he had not made these points before. He was not trying to stop Dr Oriani-Ambrosini from proceeding, but asked him if there would be anything different in his argument other than what he had already set out about the differing standards.

Dr Oriani-Ambrosini said that what he was presenting was not one argument. He had asked a real, not rhetorical question, of what procedure must be followed by a classifier. His second question was that, if these tests were not the same, which should be regarded as the higher threshold. The criteria for original classification seemed to place a lower threshold than those for continued classification. He asked if his understanding was correct, and how these differences could be reconciled.

Ms Mentor said that she now understood Dr Oriani-Ambrosini’s concerns.

Mr Landers pointed out that clause 19(2) said that the head of the organ of State was the declassification authority. Clause 21(3) now said that the Minister, after taking into consideration certain aspects, may authorise classification or declassification. He agreed that this did not appear to be consistent or logical. He suggested that this particular subclause must be reconsidered.

The Chairperson said that clause 21(3) seemed to be coming down to some kind of review process, and it had nothing to do with what earlier subclauses said. He also asked Members to consider whether his suggestions as to how the clause might have found its way into the Bill were plausible.

Dr Oriani-Ambrosini noted that in clause 7(1)(a), the Minister was given the power to determine broad categories and sub-categories, by means of regulations. Clause 21(3) again referred to categories or classes, but the difficulty was that under clause 7 it was done by regulation, and this clause seemed to indicate that the Minister would do so by administrative decision.

Mr Landers agreed that there was a problem. He agreed with the Chairperson that this was inappropriately placed. If Dr Oriani-Ambrosini was correct, then at the least there must a link. Clause 21(3) seemed to be at odds with the principle that the head of the organ of State (not the Minister) may authorise classification or declassification. If indeed this was referring to the Minister’s powers to prescribe categories, then it must be reworded to match to those powers.

Ms Mentor thought that the Minister might be given the responsibility to determine whether, on lapse of classification, a further classification be allowed.

Dr Oriani-Ambrosini said that the question was rather what the Committee wanted to achieve. He thought that, if anything, this was saying that the Minister should be able to request specific information. If the Minister operated within the checks and balances, it would seem to be consistent that he could request - but not authorise - something that the organ of State had decided not to classify. This, however,  could place the Minister in the position where he was interfering in other departments.

The Chairperson noted that Members needed to look at whether this clause was trying to create additional obligations on the classifying authority to be conscious of the fact that when information had been classified, it may then also need to be further classified. If so, then the obligation on the person could perhaps be inserted with a proper link.

The Chairperson recorded that this clause, from clause 21(2), was being flagged for further discussion.

Proposed new clause: Creation of Classification Review Panel
Dr Oriani-Ambrosini thought that Members would be in a better position to consider the ANC’s proposals around the Classification Review Panel (the Panel) after first considering clauses 22 and 23, which set out perameters for status review and regular reviews.

Ms Smuts suggested that perhaps it might be necessary just to look at clause 22.

Dr Oriani-Ambrosini said that at the moment, clause 22 said that classification would last for 20 years. However, every ten years, there would be a review. It had been pointed out that 20 years would be the maximum period. However, there were a number of matters that, in practice, simply did not get done in government. The IFP was proposing that a shorter time frame be put for the review- ideally every three years, but at least every seven years. The critical question would be what would happen if the review did not take place. The IFP suggested that if this did not happen, it should be deemed that the classification had lapsed. The general rule was to promote openness, and classification was essentially making exceptions to that.

Mr Landers said that this would lead on to what was in the ANC proposal, which sought to address some of these concerns. He noted that perhaps it was necessary to consider providing a sanction or penalty for failing to review as required. However, the ANC proposed that the Panel would receive reports on 10-year reviews and receive annual reports of all classifications. Nothing had been said about what would happen if the State Security Agency failed or refused to review.

He added that the ANC proposal went further. The Panel’s findings must be referred to the Joint Standing Committee on Intelligence, annually or as otherwise required. Members would need to consider whether this provision was sufficient. The ANC thought that the 10-year period, coupled with the annual review, would create a constant check and balance.

Mr D Maynier (DA) said that the first difficulty related to the ANC’s proposal that the Panel must be independent. There seemed to be a conflict between sub-clauses (1) and (3) because the Panel would be appointed by the Minister. The second issue was that the Panel would report its findings to the Joint Standing Committee on Intelligence. There was nothing wrong with this in principle, except that this Committee met behind closed doors, and there might not be access to those findings. The third issue was that there was no provision for a formal report to Parliament.

Dr Oriani-Ambrosini said that he had a different understanding, but would like to be corrected if necessary. The first thing this Panel would do was to supervise the implementation (and here he mentioned as an aside that the words “conduct the application” were not clear) of the classification manual. However, this referred to clause 15(4). He pointed out that clause 15(4), as originally worded, had made provision for a manual, but this no applied. It was therefore necessary to clarify what the manual was, over and above the regulations to be issued in terms of clauses 7(1) and (2) and the regulations under clause 20, if these subsisted.

The principle that the Panel was trying to ensure implementation of the manual by all organs of state was not a new model. Intelligence liaison officers would needed to be appointed, similar to the current position where a person responsible for implementation of the Minimum Information Security Standards (MISS) was appointed. The Panel would then receive reports, including those on the 10-year review. However, this was a loaded issue. The Panel would be looking at what documents were in existence, what had been classified and what had not. This gave the Panel the opportunity of reaching into every organ of State. Then, in terms of the proposed (c) it would receive all reviews of classified information. Under the proposed paragraph (2) the Panel could then make rules. This became confusing because there were already regulations under different clauses as well as manuals.

Under (2)(a) the Panel could interact with organs of state. This implied the power to call for meetings, information to be supplied, and holding organs of state accountable. In order to get this information the Panel would have to have the corresponding powers, and so it became quite pervasive.

The Panel would consist of people hand-picked by the Minister, without any involvement of Parliament. There were no specific qualifications included, and what was set out was not particularly helpful. There were no standards for qualification, and nothing about vacancies or remuneration was included. It appeared that the people on the Panel would essentially be those trusted by the Minister, and he did not think that this was specific enough, nor did it support the culture of transparency as it in fact amounted to an extension of the Minister’s powers. Although the intention was good, there were many concerns about it.

Ms Smuts said she had found the discussion useful. She agreed that the intention behind the proposal was good, but greater clarity was needed. She asked Mr Landers if it was intended that this should be a full-time body. It would be necessary to look at the volume of what the Panel may need to consider. It  may end up like the South African Human Rights Commission (SAHRC), which was inundated with volumes of information received under the Promotion of Access to Information Act (PAIA). Mr Maynier’s points about independence, and the need for the decisions to have some sort of binding effect, were well made. If the Panel was to be made independent, then a number of options could be considered. It could be appointed by an ad hoc Committee of Parliament; alternatively, or in addition, it may be desirable to stipulate what type of people may be suitable to be office bearers, similar to what had been done in the RICA legislation dealing with regulation of interception of communications. It might even be apposite that the RICA judge, to whom applications for interception of phone calls must be made, who was an expert, be on the Panel. In addition, those experienced in law and security matters would be needed, and they could be stipulated office bearers in certain bodies. In addition, the people to be appointed must have a commitment to openness and transparency, similar to what was stipulated for the SABC Board. It was possible that a Commissioner of the SAHRC might be included. She said that good lessons could be learned from the process to appoint the Independent Electoral Commission Commissioners. Pre-determined incumbents of other posts that were suitable could also be identified. This would lead to a body of independently-minded and believable people. She added that the Minister should also not be able to fire those candidates.

Mr Landers said that the ANC had taken note of the points raised by all Members, but would still like to hear from Mr Swart. He could respond now, but given the time constraints, he suggested that this discussion could be resumed at greater leisure at the next meeting.

Mr Swart said he would keep his comments brief. The ANC proposal was a step in the right direction. However, the exact power of the function must be set out better. He thought that the Panel would not only “receive” reviews, but would attend to them itself. In relation to the constitution of the Panel, he agreed that there must be a transparent process to appoint credible and independent people, perhaps by a Parliamentary committee. In relation to the membership, he agreed with the DA’s points, and suggested also that someone knowledgeable on access to information principles must be found, which might well include a SAHRC Commissioner. He thought that some of the details currently contained as proposed wording in the Bill could also be left to the Regulations.

The Chairperson proposed that perhaps this whole concept of appeals and reviews should be restructured into a separate clause, instead of being included across various clauses. He noted the comments about the Minister being taken out of the process.

The meeting was adjourned.