Ruling from the Information Tribunal - National Security Appeals, Monday 1st October 2001

The Home Secretary acted unreasonably in allowing the Security Services to refuse all requests for information via a blanket exemption from the Data Protection Act. That was the finding of the Information Tribunal (National Security Appeals) today, ruling in the case of Liberal Democrat Lewes MP Norman Baker versus the Secretary of State (Home Department).

In its first ever ruling, the new Tribunal found that "the Minister did not have reasonable grounds for issuing the Certificate which has this unnecessarily wide effect". Immediately after the hearing,

John Wadham, director of Liberty and Norman baker's solicitor in the case, said: "This is a very important victory which we hope will allow some of those innocent people who have had files collected on them to see those files.

"The blanket ban preventing this was ridiculous and unnecessary. The Data Protection Act still provides MI5 with more than adequate powers to prevent terrorists from seeing their files and to preserve national security."

BACKGROUND Mr Baker, the Liberal Democrat MP for Lewes, applied in July 2000 under the Data Protection Act to see any material that the Security Service held on him. He was informed by the Security Service (in August) that there was no data held on him in three categories; staff administration, building security CCTV and commercial agreements. Mr Baker accepts that is the case. However he was also informed that for any other data (the real files) the Security Service was exempt from the notification and subject access provisions of the Data Protection Act.

Mr Baker appealed against the exemption - both against the decision made by the Security Service on his files in August 2000 and against the issuing of a blanket certificate by the Secretary of State on 22 July 2000 which prevents any access to MI5 files.

Mr Baker, supported by the Information Commissioner, accepted that the MI5 policy of 'neither confirm nor deny', or NCND, is justified in all cases where the Service lawfully decides that a positive response would be harmful to national security.

But he questioned the validity of a certificate whose terms were so wide that the Security Service did not even have to decide whether or not national security would actually be harmed by responding to the particular request.

He and the Information Commissioner contended that the Minister did not have reasonable grounds for issuing such a broad certificate - which could permit the Service to give the NCND reply even where a positive response would not harm national security. The appeals were the first to be heard by the newly-formed National Security Information Tribunal.

The case was heard at the end of June by Sir Anthony Evans, a former High Court judge, James Goudie QC and Michael Beloff QC. Evidence included written statements from MI5 witnesses. There was also a statement from the Information Commissioner, Elizabeth France, which expressed concern about the breadth of the term 'national security'.

Norman Baker was represented by Andrew Nicol QC and Henrietta Hill (both Doughty St Chambers) and John Wadham, Director of Liberty.