Protection of Information Bill: ANC concessions on scope & offences, opposition's proposals for clause 22

Ad Hoc Committee on Protection of State Information Bill (NA)

23 June 2011
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

At the end of this meeting, the ANC made announcements on a number of concessions. The ANC, having given serious and careful consideration to numerous concerns expressed by both civil society and ANC members, had agreed that it wanted to change the “culture of secrecy” that had been prevalent in the past, and ensure that in future, State departments and civil servants were fully accountable and took justifiable decisions. The ANC formally proposed that the scope of the Bill should be drastically reduced, so that it applied primarily to institutions that fell under security and intelligence structures. However, other institutions falling outside this ambit should have the ability to make formal application that they be allowed to classify and therefore to be covered by the Bill. The ANC also proposed that, over and above the Review Panel discussed earlier, the Bill should make provision for a retired judge to deal with appeals. The ANC was also concerned about the Bill being abused to hide corrupt activities and would ensure that the Bill contained stringent provisions to penalise any such attempts, as well as trying to set up procedures that might prevent such abuse. The ANC was also proposing the removal of the minimum sentence provisions, and to ensure proportionality of sentences. However, it wished to make an exception in the case of espionage, which was deserving of high penalties. Finally, the ANC Members declared that they believed that every Member of Parliament had the responsibility to ensure that every single clause in the Bill passed constitutional muster, and would therefore give careful consideration to whether every clause complied with this.

The opposition parties expressed their sincere appreciation for these concessions, believing that this was a vindication of the Parliamentary processes of constructive engagement and debate, and went far to ensuring that the public would have confidence in the system. Some outstanding issues remained, such as the definition of “national security” and defining the elements of the crime of espionage, as also the need to examine the hostile activities offence. The ACDP pleaded again that Members keep an open mind on the possibility of including a limited public interest defence, since this was in line with South Africa’s unique position adopted in the Promotion of Access to Information Act, and the need to move away from the culture of secrecy in the past.

Members agreed that the Chairperson would try to arrange for the Committee to meet for a full week from 25 to 30 July, to hold concentrated discussions on the Bill.

In the first part of the meeting, the DA, IFP and ACDP parties had, in answer to the ANC’s proposals for an Independent Classification and Review Panel, prepared some further submissions, which were briefly discussed. In principle, all parties supported the creation of such a Panel, and agreed that it should comprise five persons, but some further proposals were made to amplify the appointment process, the appointment term, the disqualifications, and the specific factors to be taken into account when recommending Panel members for appointment, and removal procedures. The opposition parties had also suggested the Panel’s functions include “oversight”, so that it would not only conduct reviews but also oversee the implementation of the whole new Protection of Information Act. This Panel would employ random sampling methods. It was suggested that the Panel should review bulk classifications or declassifications prescribed by the Minister. The Portfolio Committee on Justice and Constitutional Development (the Justice Committee) would be involved in the processes. This was because many Members of this Committee served on the Justice Committee, which received reports from the South African Human Rights Commission, who must report on implementation of the Promotion of Access to Information Act (PAIA), and because this Committee was also concerned with constitutional issues. If reports must be made to the Justice Committee, this would answer the concerns about reporting to the Joint Standing Committee on Intelligence, whose meetings were not open to the public.

Members agreed that there was still a need to debate the work that the Panel members would do, whether they should be full or part time, the cost implications, and to deal with what the Panel must do if, on random sampling, it found instances of non-compliance, whether it would be required to automatically set aside classifications, whether every decision on classification must be accompanied with written reasons, whether it could increase its size of sampling when detecting irregularities and what it would do if no reviews had taken place at all. Members then briefly discussed their views on vetting, and compared and contrasted the work that this Panel would do with the work that the Determining Judge would do under the RICA legislation. It also discussed whether other officials at Chapter 9 institutions, and senior State employees, were vetted or pre-screened. All agreed that the debate on this would continue and there was no need to take a final decision at this meeting. They all agreed that the ANC would be given time to discuss and debate the new proposals before making comment on them.

Meeting report

Protection of Information Bill: Opposition parties’ proposals on clause 22
The Chairperson noted a number of apologies, and he stressed that the absences had nothing to do with the fact that the life of the Committee was extended until 23 September 2011.

Since the Committee had last met, another joint document had been circulated by the opposition parties, setting out their proposals on the Independent Classification and Review Panel to be set up under a revised clause 22 of the Protection of Information Bill (the Bill).

Mr L Landers (ANC) thanked the opposition parties, and suggested that it might be useful for a brief presentation on this, as part of the ongoing engagements in the Committee.

Mr S Swart (ACDP) agreed, and said that all of the proposals could then be discussed, as the opposition parties were not insistent that there be no changes. However, he would like to highlight the points of divergence between this proposal and the ANC’s earlier proposals. He emphasised that this document contained a joint submission by the ACDP, DA and IFP, and he appreciated the input from these parties. He also accepted that the ANC would need further time to consider the implications.

The three parties agreed with the principle of an Independent Classification and Review Panel (the Panel) but suggested that its title and functions be amended to include “Oversight”. Under the new clause 22(1)(a), the three parties then suggested that this Panel should oversee classification, including that done under the new clause 15. It would therefore not only review, but also oversee implementation of the whole new Act.

The ANC had earlier proposed, under clause 22(1)(b) that the Panel should oversee reports from bodies who had classified, but the three parties proposed that the words “including bulk classification or declassification prescribed by the Minister” be added.

The three parties then proposed that a new 22(1)(c) would require that the Panel must receive notification of any information as soon s possible after it was classified or declassified.

The ANC’s proposal under 22(1)(c) would then be renumbered as 22(1)(d), but contained no changes.

The ANC’s original Clause 22(1)(d) would be renumbered as (e), and here the opposition parties wished to make provision for involvement of the Portfolio Committee on Justice and Constitutional Development (the Justice PC)  Firstly, many of the Members of this Committee served on the Justice PC. Its main task was to look at compliance with the Constitution. There were many constitutional concerns with this legislation. The opposition parties believed that the findings of the Panel should not only be reported to the Joint Standing Committee on Intelligence (JSCI) but also the Justice PC, in light of the fact that the Minister of Justice and Constitutional Development dealt with all access to information, including the functioning of the Promotion of Access to Information Act (PAIA), and the South African Human Rights Commission (SAHRC) accounted to the Justice PC, including its work under this Act. The Minister of Intelligence and Minister of Justice both served on the same Cluster, and that was also important. The Justice PC held open meetings, so this would take care of the concerns around the appointment of suitable candidates for this Panel. The Panel would also be required to submit an annual report on its activities to Parliament, similar to the reports that were required under other legislation (such as the Sexual Offences Act).

The three parties’ suggestions for clause  22(2) were similar to the ANC’s proposals, except under subclause (d), where there would be reference to the Rules that the Panel could make. It was suggested also that the Panel should employ random sampling methods when dealing with its functions under 22(1)(a), and that it would oversee compliance with classification criteria.

Clause 23 dealt with members of the Panel, and here the opposition parties had amplified the ANC’s proposals. The ANC had suggested that the Panel should consist of five members. The opposition parties agreed, but had added in that they should be appointed for a non-renewable term of five years. Suitable candidates would be nominated by the public, who would then be interviewed in a public process, and the final Panel members would be appointed on the recommendation of the Justice PC, and approved by the National Assembly. This would meet the requirement that credible and independent persons with the required experience should be appointed. Again, he stressed that the Justice PC would play an important role.

Clause 23(2) had also been amplified, by the addition of further criteria, so that the persons to be appointed should be selected because of their experience and involvement with access to information, constitutional law and national security, or alternatively, suitable qualifications and practical experience in access to information, human rights law, and suitable knowledge of constitutional law and national security. The Members could discuss these suggested criteria further.

A number of “standard” provisions had then been included into clause 23(3). The ANC’s suggestions remained in subclauses 23(3)(a) and (b), but the Committee would need to debate, in relation to subclause (c), how much work the Panel members would be required to perform, whether their appointments would be full or part-time, or whether some only should be full-time, and to consider the cost implications.

Clause 23(3)(b) now set out the standard conditions that a Panel member should not be insolvent, suffer an infirmity of body or mind that would render him or her unsuitable to perform the duties, should not have been convicted of an offence, should not be or become a political office bearer, and should not have been removed from a position of trust because of theft or fraud.

Clause 23 (f) set out the conditions on which Panel members could be removed, which basically included resignation from the Panel, or removal on the grounds of misconduct, or lack of capacity, as recommend by the Justice PC. A Panel member could also be removed if disqualified, or if he or she failed to attend two consecutive meetings. Another subclause related to remuneration and benefits, which should be set after consultation.

Clause 23 (4) and (5) were standard clauses relating to vacancies, and the fact that the administrative work in connection with this panel should be performed by the people designated by the Director General of the relevant Department.

Mr Swart then added that he had recently picked up, from the Annual Report of the National Prosecuting Authority (NPA) that this body also attended to vetting applications at different levels. Its own unit conducted vetting for 45 Top Secret and 100 Confidential files. It also worked on clearance certificates, for the National Intelligence Agency (NIA). This indicated that there was capacity, within the justice sector, for dealing with vetting, and a further reason why it was appropriate for the Justice PC to be involved.

Ms M Smuts (DA) added a further comment. The DA had originally suggested, in relation to the new clause 22(1)(a) that the Panel should also, when reviewing the implementation of the Act, keep an eye on compliance with the classification criteria contemplated in the (new) clause 15. This would instil confidence that the classification regime would not be abused. There would be a need for Members to look at the appeal mechanism. They would also still need to look quite carefully at how the Panel would work, and this was why random sampling had been built into the rules to be set by the Minister.

There were still some further questions to be answered. She noted that this would include the question of what the Panel must do if, on random sampling, it found instances of non-compliance, and whether it must then automatically set aside a classification, or consider the reasons. That then led to the question of whether every decision on classification must have written reasons. Alternatively, if instances of non-compliance were found, the Panel might wish to increase the size of the sample, or require a new classification with new written reasons. All of these possibilities would need to be discussed. Other instances of non-compliance might also arise under the ten-year reviews, which required that the criteria for continued classification be considered, which, as the Bill was currently worded, were stricter than the original classification requirements. Members would need to consider what should happen if a ten year review was not done, or if, within that period, the required reclassification did not happen (since some records could be declassified), and once again, they must consider whether the Panel could set aside the decision, could substitute its own judgement under the administrative justice clause of the Promotion of Administrative Justice Act (PAJA) or would perform an appeal function. She thought that the redrafted clauses were already quite tight and elegant, and that it would be fairly easy to add to them, once Members had decided what they still wished to include.

The Chairperson asked if the opposition parties’ views on the vetting and security clearance of the members of the Panel had changed.

Mr Swart said that previously the opposition parties had indicated that they did not believe that the Panel members would need to be vetted. However, they could look at this again, in light of other organs being able to do the vetting. The opposition parties had not taken a final view on this, and would like to continue to debate it.

Ms Smuts still thought that these new proposals would create an independent Panel, and that such a panel should not be subject to vetting, but she was willing to listen to argument on this. Hopefully, people of good standing would be appointed.

Mr Swart said that there were different levels of vetting, done by different organisations. He said that the NPA seemed to have done vetting for Top Secret clearance, possibly without NIA involvement. Pre-employment screenings had also been done, and perhaps this could be considered. He would not like to debate the issue much further now. Because this was to be an independent panel, there might be good reason to object to full vetting, but the opposition parties appreciated the need for care, in view of the fact that the Panel would be dealing with matters of national security.

Mr Landers reiterated that he appreciated the proposals made and would like to think about them; some were very good. He agreed that Members needed to give serious consideration to questions of non-compliance, which had not, so far, been addressed in the Bill. He was pleased to see the revised proposals for appointment and removal. On the question of vetting, he stated that the ANC still believed that vetting must take place, as the Panel members should not be considering matters with a Top Secret classification without prior vetting. He explained that pre-screening was a procedure put in place by the NIA, and it simply helped to speed up the process by providing background information to the person doing the vetting. All State departments were required to do this, particularly for senior appointments, and he had assumed that the parties were aware that NPA was doing vetting.

Ms Smuts asked Mr Landers how his remarks on pre-screening would relate to standards of ineligibility in clause 22(3). She quipped that she was rather taken by Mr Swart’s smooth juxtaposition of those who were “mad, bankrupt or politicians”.

Mr Landers said again that pre-screening verified information and helped to speed up the process. The advertisement calling for nominations would, presumably, also contain something to the effect that candidate would need to be vetted. Criteria around experience and commitment would be highlighted at the interview stage.

Mr B Fihla (ANC) noted that the curriculum vitae of candidates was usually checked.

The Chairperson posed what he saw as a contradiction, if it was assumed that information had been properly classified, which presupposed that this information must be protected from disclosure. The intelligence community was very sensitive as to who should have access to Top Secret information. He suggested that it was contradictory if, on the one hand, the people doing the original classification had to be vetted, but on the other hand that those looking at the secret information at the Review Panel stage did not have to be vetted. It would not be impossible, without that vetting, that an undercover agent might end up on the panel. In order to get a Top Secret clearance, a person had to go through a polygraph test and various processes. It was not that important who did the screening. The police and defence sectors did their own vetting, but ultimately NIA was responsible for proper vetting. At one stage there was a problem with the former Scorpions, not only as to whether they were or were not gathering intelligence, but also because its members were apparently vetting themselves.

Mr D Maynier (DA) agreed that this was a debate on which the Committee must engage further. He asked whether the judge responsible for reviewing warrants under the Regulation on Interception of Communications and Related Matters Act (RICA) was vetted, and if so, why.

The Chairperson said that this judge was not vetted, but pointed out that this was a very limited function, and the judge would not deal with any classified documents, but only with applications, and was also obliged to ensure that the law enforcement agencies had complied with the provisions of the RICA.

Mr Landers added that when an application was made to the Directing Judge, this was done by sworn affidavit, but the judge also had authority to ask pertinent questions of the person making the affidavit, before deciding whether to grant or refuse the interception. Anyone making an affidavit was also mindful of the fact that justification would be required of what was said if the matter came before a full Court. The processes under NIA were different and ongoing, and the functions were quite different. There would also be a distinction between the RICA Directing Judge, who merely received applications from law-enforcement agencies to intercept communications, and the Panel under the Bill, who could be required to examine documents.

Mr Swart appreciated the Chairperson’s comments and said they would be seriously considered. It was not necessary for the Members to reach finality on this issue now, and if the parties agreed on the involvement of the Justice PC this may change the position. He had raised the NPA procedures because this body seemed to vet its own members, and it did indicate in-house capabilities in the Justice Cluster. His main concern was that candidates who might otherwise be eminently suitable on the basis of their qualifications or experience might be blocked by the vetting process.

Mr Landers indicated that he understood this concern.

Mr Swart also asked about the procedure at the South African Human Rights Commission (SAHRC). If the section 46 of PAIA override were to be tested, and, for instance, a complaint was lodged that a national security department would not surrender documents under section 46, and the SAHRC had to subpoena that department. He was not sure if the SAHRC commissioners were vetted at that level. The Public Protector and SAHRC might be placed in a position where they might have to consider Top Secret documents, although he also appreciated that the Panel under this Bill was different in that it would need to look at such documents on an ongoing basis. He also asked if Directors General and public servants were vetted.

Mr Maynier agreed that it was not necessary to reach finality on this at the moment, but he wanted to pursue his argument about the RICA Directing Judge, because he thought that the motivation to be presented to the judge could contain some very sensitive information. The Directing Judge presumably was not vetted because he or she was assumed to be a person whose integrity was beyond question. He wondered if persons of similar integrity could not be appointed to the Panel.

Mr Landers agreed that this was clearly a matter for further engagement, but suggested that it was not necessary to pursue it further. He explained to Members that the RICA Directing Judge was appointed by the Minister and the Panel under the Bill would be appointed under a different process. However, as Mr Swart had conceded, the Panel members would possibly use random sampling and would be dealing with much weightier matters than the RICA Directing Judge, who was retired, and was approached on an ad hoc basis. He took the point about the SAHRC. He would be equally concerned if there was any perception that a suitable candidate for the Panel was being sidelined.

The Chairperson thought that perhaps Mr Maynier’s example of the RICA Directing Judge was not a particularly good one. He had understood that the SAHRC Commissioners were supposed to be vetted, but over the years there had been complaints about insufficient capacity to vet all those who should be vetted, including Premiers, Directors General and Commissioners. One way to deal with that would be the introduction of field units. NIA had been training people to gather and verify information, which was a tedious and drawn-out process. In regard to RICA, there was an expectation that the law enforcement agencies would deal with sensitive information in the correct way, would ensure that the interception was required to serious crimes only, and comply with the strict provisions. The Committee may wish to consider whether these types of applications should be classified, although he did not think this would be appropriate. He stressed that the Directing Judge, under RICA, was empowered only to look into a very narrow band of applications. Questions of integrity always arose where human beings were concerned, and he reminded Members that a person who was sound and trustworthy today could still be tempted tomorrow.

Mr Landers suggested that the matter could rest there for the moment.

ANC’s comments on other aspects of the Bill
Mr Landers then noted that the ANC would like to address some other aspects of the Bill. The ANC had given serious and careful consideration to numerous concerns expressed by both civil society and ANC members. The ANC wanted to change the “culture of secrecy” that had pertained in the past, and to ensure that in future, State departments and civil servants must be fully accountable and take justifiable decisions. He had recently picked up, from the media, comment about confidentiality agreements that officials in the Department of Basic Education were apparently being required to sign, and this was precisely the type of accountability that he was referring to. He said that the ANC would like to follow up on this.

Ms Smuts said she would send through relevant information on that to Mr Landers.

Mr Landers put the ANC’s  formal proposal that the scope of application of the Bill must be drastically reduced, insofar as it applied to the authority to classify information. The ANC formally proposed that any institutions who did not fall under the security services and intelligence structures, but who required information to be classified, should make formal application to be included under the ambit of the Bill.

The ANC had also given serious consideration to the question of appeals. Over and above the Review Panel, it now wanted to propose the inclusion of a retired judge to deal with appeals. Whether this would be the RICA Directing Judge or another person could be discussed in more detail.

Thirdly, the ANC wanted to state, very clearly, that it was concerned about the possible abuse of the provisions of this Act for purposes of hiding corrupt activities. It was therefore necessary to do everything possible to ensure that the Bill contained provisions to penalise any such attempts stringently, and also ideally to try to set up some procedure that might actively prevent these attempts.

Fourthly, the ANC was now proposing that the minimum sentences provisions should be removed. The ANC also wanted to ensure proportionality in sentences and would be giving careful consideration to that when dealing with the clauses. However, there was one exception to this, in regard to espionage offences, where the ANC still believed that the minimum sentence (subject to final decision by the Court) should apply. In some countries, espionage was seen akin to murder, and it was certainly extremely serious. His own personal view, which he had not canvassed with other ANC colleagues, was that South Africa should perhaps have a dedicated Espionage Act.

Finally, the ANC noted that the Chief State Law Advisor had declared this Bill to be constitutional. However, the responsibility to ensure that every single clause in the Bill would pass constitutional muster rested with the Members of Parliament, who would be discharging this responsibility with great care.

Ms Smuts said that this was a vindication of the Parliamentary legislative process, in which Members would discuss and debate issues until they came to common understandings and positions. These announcements were also a vindication of the DA’s long-held position that the scope and application of the Bill must be narrowed. She described Mr Landers’ announcement as “very good news indeed” and expressed her pleasure at the position taken. She was fully in agreement that bodies should be allowed to “opt in” if they needed to classify. All South Africans could now feel confident that the process was well advanced to produce legislation that would not allow for abuse of power. There were, of course, some outstanding issues. The definition of “national security” was one such issue. She was also very pleased to hear the proposal of retired judge being appointed to hear appeals, and said that an independent appeal mechanism was also a very important component in instilling confidence in the system. The DA would be willing to look at increased penalties for abuse of the classification process to hide corruption. The DA was also “delighted” with the agreement to abandon minimum sentences and the approach to testing constitutionality, which could be done in many ways. She also thanked the Chairperson for the opportunity to comment.

 Mr Swart endorsed the DA’s views and agreed that the ANC had made some significant concessions, and that these indeed endorsed the Parliamentary process. As he had already mentioned, there would be a need to consider the Bill broadly, but these pronouncements already went a long way to improving the constitutionality of the Bill. Mr Landers had put the opt-in provisions very well, and had stressed the onus on the State, and the ACDP fully supported this. There might well be the necessity to discuss whether an appeal or review should apply also to this decision, but that could also be discussed.

Mr Swart particularly appreciated the comments about the need to move away from the “culture of secrecy” that applied during the apartheid era, to one where State organs would need to justify their actions and establish transparency. This was already reflected in the override clause “in the public interest” as contained in PAIA, and, against that background, he asked that Members again give serious consideration to whether it was not appropriate for South Africa, given its unique background and circumstances, to have a limited public interest defence. He had not yet managed to find any other country where a similar override, balancing harm to national security against public interest, was incorporated in legislation, and therefore appealed to all Members to consider whether South Africa might well have reason to depart from practice elsewhere and include a limited public interest defence, which, in his view, would further strengthen the constitutionality of the Bill. He had referred to the Canadian case, which was discussed at a previous meeting, to Mr Dennis Dlomo of the Ministry of State Security, and was happy also to pass it on to the ANC Members.

Mr Swart again reiterated that the ANC had made some significant concessions, and that good progress was being made towards achieving a Bill with the right balance. He expressed his gratitude to all Members for the manner in which they had approached the issues, and the willingness to make concessions.

Mr Swart noted that espionage would be a new crime, replacing the previous crime of high treason. The Committee would need to look at how the elements of the crime would be defined, and he agreed that this was an extremely serious crime. This also might relate to the possibility of a limited public interest defence, but this was another matter.

Ms Smuts added that the DA was also willing to look at espionage, and agreed that much would turn on the definition or context, especially if the hostile activity offence was retained. Her colleague Mr Maynier believed that there must be a definition of “prejudice to the Republic”. Ms Smuts commented that even though this carried a 25-year jail sentence, there had been little comment specifically in relation to that hostile activity offence.

Programming issues
Mr Landers noted that all Members struggled to find time to fit in meetings, and this was exacerbated by the complexity of this Bill. He proposed that it would be useful if the Committee could dedicate several consecutive days, during the recess in July, for sittings of this Committee. The Justice Committee was sitting on 28 June and the Joint Standing Committee on Defence would finish on 4 July. The Judicial Conference would run from 7 to 10 July. He requested that he Chairperson should ask for permission for this Committee to sit from 11 to 15 July, and 18 to 22 July, so that Members could apply their minds to this Bill in a dedicated manner.

Mr Maynier agreed in principle, but noted that he could not attend meetings in that period.

Ms Smuts said that she would not return from Johannesburg until 15 July.

Mr Swart appreciated the request, and said he would only be available after 18 July.

After Members indicated that they would probably be able to attend from Monday 25 July to Saturday 30 July, the Chairperson asked that they finalise this, and let him know of final availability by the following Tuesday.

The meeting was adjourned.


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