Protection of State Information Bill: Finalisation of deliberations

Meeting Summary

The latest version of the document setting out the amendments agreed to, not agreed to, and proposals by the parties was tabled (the Document). It was acknowledged that all parties had participated in suggesting amendments. COPE did not agree to the changes in the Long Title, saying it had not previously been discussed. The DA and COPE placed on record that they did not agree, in principle to the inclusion of “valuable information” in the Bill and therefore recorded their objection to all clauses in which such references appeared, and later the ID and IFP indicated their agreement on this. DA and COPE objected to the inclusion of a reference to the Intelligence Services Oversight Act, in the definition for head of organ of state. In relation to the definition of “national security” it was noted that although the ANC had originally agreed to use “means” and not “includes”, as proposed by the DA, it later changed its mind. DA and ID did not support “includes”. The ANC had at one stage agreed to remove clause 1(4), but later proposed that it be re-inserted, with new wording. Now it was proposing that clause 1(4) could again be removed, if its new proposals on clause 1(3) were accepted. The DA and COPE noted that they could not agree to “trade-offs” but would be prepared to consider new wording. Opposition parties agreed to hear what the ANC had to say, but when it became clear that substantive amendments were being read out, they objected that they could not consider these matters without a written version being provided. There was further confusion over the clause numberings.

Eventually, after an adjournment, the ANC’s “Additional Amendments” document was distributed. This firstly set out the proposal to add another phrase to the end of clause 1(3), to read:  “taking into consideration the need to protect and classify certain state information, in terms of this Act”. The DA agreed with the proposal and the other parties noted it. A new phrase was proposed for the clause on “General Principles” (originally clause 6), reading “promote and support the functions and effectiveness of the Constitutional institutions supporting democracy. Clause 5(2) of the original Bill was then to be reformulated to read that access to information may be restricted to the Cabinet, institutions referred to in section 181 of the Constitution and such individuals who have the requisite security clearance. This was intended to allay concerns that classification might be used to hinder the work of institutions supporting democracy. In principle, the DA agreed, but thought the wording needed to be tightened. COPE disagreed with inclusion of “Cabinet”. Reference to institutions mentioned in section 181 of the Constitution was again inserted into clause 7 (as a new subclause (i)) with reference also to a new clause 54(1)(m). In principle the parties agreed that regulations needed to be referred to Parliament, and that policies around treatment of classified information must also be checked. Subclause 7(3) was supplemented with “and the Constitution”. Again, opposition parties agreed with the principle, but said the wording needed to be more carefully formulated. COPE was unwilling to avoid any hindrance to the work of  institutions supporting democracy. Clause 54(1)(m) was to be amended to include regulations for “the procedure to be followed by institutions referred to in section 181 of the Constitution, to access classified information, and conditions relating to the treatment and protection of such information in terms of clause 7(1) for the fulfillment of the Constitutional and legislative mandate, including investigating and reporting”. Finally, the ANC proposed changes to clause 43, broadening the legislation referred to in the subclauses. It believed that this would provide an adequate balance between the need to classify and access to information. The DA was not opposed to the changes but still did not think they went far enough, and said the detail really lay in clause 47. The DA would like to see either the conditions set out in clause 19 being incorporated into clause 47 (as it had proposed) or a link to show explicitly that if information should not have been classified in terms of clause 19, then a person should not be prosecuted for revealing it in terms of clause 43, even prior to the declassification. Despite long discussion, the parties still could not agree in principle. The ANC reiterated that it did not agree with COPE’s proposals for a new clause 49, which was an alternative public interest and public domain defence, nor the DA amendments for clause 47. COPE indicated that although it had been intending to put some new suggestions on sentencing, it would not do so, as it did not think other parties were receptive, and it proposed that the Committee should proceed to vote on the Bill. Members then discussed, at great length, whether it was necessary for the Committee to adopt a Report, and finally agreed that, although this may not be an absolute requirement of the Rules, they still wished to do so. The Report would be adopted by the Committee on the following Tuesday.