§ Order for Second Reading read.
§ Mr. Speaker
Before we start this important debate, I remind the House that a very large number of right hon. and hon. Members wish to speak. I do not think that this is a day on which it would be appropriate for me to impose a 10-minute limit on speeches. However, I hope that hon. Members will bear in mind the fact that many right hon. and hon. Members want to take part and that they will tailor their contributions accordingly.
§ 4.4 pm
§ The Secretary of State for the Home Department (Mr. Douglas Hurd)
I beg to move, That the Bill be now read a Second Time.
We ask the House today to agree in principle that the criminal law should be prised away from the great bulk of official information. We propose that it should be used to protect unauthorised disclosure of six limited areas and we shall be asking the House to agree on the scope and definition of those areas. Within the areas to be protected we introduce a number of tests of harm which the prosecution will have to prove. We mean that the criminal law should protect, and protect effectively, information whose disclosure is likely to cause serious harm to the public interest, and no other.
This is a coherent and ambitious reform. It is bolder and more open than anything attempted by any Government in this area since the war. Beside it the Labour proposals in the 1978 White Paper look pale, timid and restrictive. The present law is both too wide and too weak. After 16 years of dickering and dispute since the Franks report, I believe the time has come to settle on the successor to section 2 of the Official Secrets Act 1911.
We published a White Paper in June this year which set out the Government's proposals. It was debated by the House in July. We promised then to listen carefully to the points made in the debate and to take account of them as we prepared the Bill, and we have done so. Before returning to the general theme, I should like to analyse briefly the changes that have taken place between the White Paper and the Bill.
First, the Bill has introduced a harm test for the disclosure of information received in confidence from a foreign Government or international organisation. In the White Paper this was an absolute offence. I listened carefully to the powerful arguments of my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan) and my hon. Friend the Member for Westminster, North (Mr. Wheeler). I hope that we have met their main concerns. This change has not escaped the obfuscation in which some critics have tried to shroud the Bill. The Bill makes it clear in clause 3(3) that the prosecution may argue that the fact that a confidence has been broken may jeopardise our interests abroad as much as the content of the information which has been disclosed. But, of course, there is no obligation on the jury to accept that argument and it does not allow the harm test to be bypassed. There is no absolute offence here—there is a harm test. The prosecution has to prove that the disclosure jeopardised 461 United Kingdom interests abroad. The fact that a confidence was disclosed would not by itself be enough if our interests had not been put at risk.
It seems to me reasonable that the criminal law should operate against those who deliberately breach the confidence of another country or international organisation when they have good reason to know that this is likely to harm our interests abroad. Those confidences are not entered into capriciously. The test in the Bill relates to our national interests abroad, not to the interests of another country or any international organisation—and the decision is for the jury.
We have looked carefully, too, at the harm test as it will now govern the whole of the foreign affairs field. My right hon. and learned Friend the Member for Richmond, Yorks suggested that this test was too vague and too easily met. It is not easy to provide language which draws the line in the right place, but on reflection we thought that there was a way of reflecting the proper concerns of the criminal law without undermining the effective conduct of our foreign policy. We have not introduced in the Bill the White Paper's reference to a disclosure which might prejudice dealings with another Government or international organisation. The test now much more accurately catches its purpose. It is not about maintaining good relations with other countries. Here, too, it is whether a disclosure jeopardises the interests of the United Kingdom abroad.
The White Paper mentioned penalising disclosure of information likely to be useful in the commission of offences. That language has a long pedigree—it goes back to the Franks report, the Labour Government's White Paper, and the Protection of Official Information Bill in 1979. However, it was suggested—for example, by the Guild of British Newspaper Editors—that those words were too vague and too wide. It was never our intention to cover all kinds of information of a general nature that might conceivably be useful in committing an offence, where the chain of circumstance is too long and too uncertain to justify involving the criminal law. The Bill provides a narrower and more precise definition of such disclosure. The prosecution will have to prove that the disclosure resulted in the commission of an offence or was likely to do so.
Fourthly, the Bill makes it clear what information is to be protected in the area of interception. We tie that category specifically and only to the unauthorised disclosure of information about, or arising from, a special investigation. Such an investigation must be undertaken under the authority of a warrant issued by the Secretary of State under the Interception of Communications Act 1985 or, if Parliament agrees to our proposals, under the Security Service Bill.
At one time, the obfuscators whom I mentioned suggested that the press would no longer be able to report a citizen's belief that his telephone was being tapped. The Bill shows that to be nonsense.
Changes have been made between publication of the White Paper and the Bill. In the light of comments and constructive criticisms, we now have a Bill that is tighter in its drafting, narrower in its scope, and more specific in its meaning
I return to the main purpose of the Bill.
§ Mr. Jeff Rooker (Birmingham, Perry Barr)
I refer to the right hon. Gentleman's comment about "obfuscators". Is it still the case that clause 3(3) as drafted will make it an offence to publish a leak of any document from another country or international body, regardless of its subject matter?
§ Mr. Roy Hattersley (Birmingham, Sparkbrook)
It is the word "belief" that worries me. The Home Secretary, referring to people whom he does not name but whom he calls "the obfuscators", remarked that it was wrong to say that a citizen having the "belief" that his telephone is being tapped will be prosecuted and convicted if he reveals that belief. However, if an individual is told by a security service officer that his phone is being tapped under the Interception of Communications Act 1985, will he not commit an offence if he discloses that?
§ Mr. Hurd
Yes, it will be an offence, because we believe in the duty of confidentiality. If a man believes, as often happens on these occasions, rightly or wrongly, that something is amiss, there is no reason why he should not go to a newspaper, and no reason why the newspaper should not publish. That point is the one that the obfuscators have constantly failed to grasp.
§ Mr. Hurd
I think that I had better get on. I shall give way to the hon. Gentleman later. I have already given way twice.
Many people fail to grasp our proposals, or attempt to trivialise them. Those people include the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). They suggest—this is the main thrust of the right hon. Gentleman's criticisms—that we are withdrawing from the protection of the criminal law only frivolous and unimportant information. The example given by the right hon. Gentleman was the canteen menu, the colour of the carpets and the brand of tea bags used. In fact, the Bill will remove the protection of the criminal law from the great bulk of sensitive and important information—including policy documents, Cabinet discussions on education, on health and on social security, and economic information and budget preparations. None of them will any longer have the protection of the criminal law. Nor will material within the Bill's protected areas which fails to meet the relevant harm test.
The obfuscators said, "Ah! The Government may do that, but they compensate by legislating to strengthen the civil law on the duty of confidence—the Government will impose through the civil law what they are withdrawing from the criminal law." I do not see that clause. I do not know where it has been smuggled in. In fact, it never existed. We have studied the "Spycatcher" judgment and have considered its implications and the present state of the law most carefully. I can tell the House that we have no plans to introduce legislation to amend the civil law of confidence.
Then the obfuscators said, "You may not do it that way, but you will do it by discipline; you are getting out the thumb screws—the inquisition is being prepared."
§ Mr. Buchan
On a point of order, Mr. Speaker. You, Mr. Speaker, will guide me on this matter, because you know better than I what are the rules of the House. The Home Secretary seems to be making allegations under a cloud of secrecy. As the House is debating the Official Secrets Bill, which the Home Secretary claims will make matters more open, will the right hon. Gentleman tell the House who he means by "the obfuscators"?
§ Mr. Hurd
The hon. Member for Paisley, South (Mr. Buchan) is both literary and literate. Does he really feel that "obfuscators" is an unparliamentary expression? I have given one example and I will give others.
The obfuscators argue that the Government will seek to achieve through tighter discipline the effects that we are renouncing by withdrawing the protection of the criminal law. Even the most chaotic newspaper or any kind of private company seeks to provide for the protection of loyalty and discipline by rules of discipline. Now that the criminal law is to be withdrawn from a great mass of information, the Civil Service code needs to take account of that in its ground rules, but there will be no tightening of disciplinary arrangements and the necessary rewriting will be discussed with the trade unions. All kinds of tricks and traps have been suggested, but the obfuscators have failed to prove the existence of any of them.
§ Mr. Robert Sheldon (Ashton-under-Lyne)
I find it difficult to understand what is going on. If by "obfuscators" the right hon. Gentleman means opponents, will he say so? I do not know what he means by "obfuscators".
§ Mr. Hurd
It is quite clear and the right hon. Gentleman knows perfectly well what the word means. It is one thing to criticise the merits of the proposals but another to obscure their description. I suggest that both processes have been at work.
It is not safe to remove the protection of the criminal law from all official information. Those who disclose official information without authority may cause such a degree of harm to the country's interests that it is right that they should face criminal proceedings. The criminal law is as necessary to protect the public interest in this area as in any other.
If we are to provide protection in those limited areas, the law must be effective. We need make no apology about that. There can be no credit to Parliament in passing legislation that it knows to be flawed or fudged, and it is against that yardstick that I analyse briefly the arguments of those who wish to overlay the specific definitions and tests in the Bill with blanket defences claiming prior publication and disclosure in the public interest.
464 The defence of prior publication, if accepted, would mean that anyone who can show that his disclosure had been previously published at any time, or in any form, or anywhere, could in no circumstances commit an offence by his disclosure. That is an offer of immunity from prosecution that the House should not accept. Under our proposals, prior publication can be relevant to a prosecution and, for the first time ever, that fact is recognised by the Bill. With the very narrow exception of special investigations, the jury will always have to consider whether a journalist who publishes information which has already appeared elsewhere in fact caused the specific harm provided in law and had good reason to know that publication would cause that harm. It will be for the prosecution to prove both the harm and the knowledge of harm, and to do so beyond reasonable doubt.
If such cases are ever brought, in many instances they will fail at that point if there had been prior publication. The defence will successfully argue that prior publication means that the disclosure which is the subject of the prosecution has done no further harm—but not always, as there may be circumstances in which the timing and placing of a fresh publication is bound to cause harm which earlier publication had not. A front-page spread in a daily newspaper, for example, on an item previously carried in a technical journal in another country might cause serious further harm. There cannot be any certainty about such matters, and a sensible provision should not suggest that there can. That is why we propose to leave the matter with the jury to decide rather than admitting an overarching defence.
§ Mr. Jonathan Aitken (Thanet, South)
On the last point, is my right hon. Friend ignoring completely the historic judgment of the Hon. Mr. Justice Caulfield in the Sunday Telegraph case, in which he said that there is not a limited circle in which it is right to publish and avoid prosecution but a wider circle in which one can publish and be prosecuted—in other words, there is not one standard for publication for a tiny audience and a different standard for a wider headline or enlarged circle?
§ Mr. Hurd
It is a question of the harm done to the public interest. I should argue, on the ground of common sense, that it is perfectly possible to have partial, incomplete publication in a distant publication with no particular circulation and then to argue that to pick up that information, put it in a different form and splash it across the news, so causing major circulation, would provide a further harm. We cannot assume in advance that it would not and it would be foolish to admit an overarching defence of prior publication. That is why we propose to leave the matter to the jury.
§ Mr. Dalyell
Does the Home Secretary recollect that in the Zircon affair important details were published in a technical journal? One of the subscribers to that technical journal was the relevant technical office in Moscow. Which does the greater harm—the technical journal which gives the details, or a front page imprecise spread? In the name of common sense, let us think about that.
§ Mr. Hurd
That is the speech which a defence lawyer would make in that case and which might prevail. All I am saying is that it is wrong to have an overarching defence of prior publication regardless of the circumstances. 465 Our decision to sweep away the proposal for a ministerial certificate and to replace it with clear and objective criteria for the jury has also changed the whole context of the debate about the so-called public interest defence. So, indeed, have the proposals in the Security Service Bill.
There are those who have sought to bolster their case for a public interest defence by suggesting that there is, at present, a public interest defence in section 2 of the Official Secrets Act 1911. I have studied the arguments as carefully as possible, but they do not stand up. On the basis of the judgments that have been cited as relevant here, we cannot find one that suggests that there is such a defence in the present law. Many have sought to argue such an interest, but the judgments have never given cause to accept that argument. We are talking about the proposition that there should be a defence, rather than that we should retain an existing defence. We do not believe that a blanket defence of public interest should have a place in the proposals.
It is for Parliament to make clear to the courts what it believes to be in the public interest for the protection of official information. We are asking Parliament to say that it is not in the public interest knowingly to damage the work of the security and intelligence services, knowingly to prejudice the capability of the armed forces, knowingly to jeopardise our country's interests abroad, knowingly to put our citizens' lives at risk, knowingly to add to the crime rate or knowingly to disclose details relating to special investigations under authorised warrants. The House will realise that I have run through the specific harm tests.
The Bill provides that the jury shall consider whether such public interest tests have been met in respect of an individual case. The public interest will be at the heart of the case. The defendant will be able to argue that his disclosure either did not satisfy any relevant harm test or that he had no reason to know that it did. For someone who was not a Crown servant or Government contractor —a journalist, for example—it would be for the prosecution to prove that beyond all reasonable doubt.
Many supporters of a public interest defence have argued that a person may make a disclosure which does good and not harm, or that any harm done may be so modest as not to merit a criminal sanction. The Bill invites Parliament to establish the few areas and the few cases in which a disclosure always causes harm and, in all the other areas, provides a harm test which allows the defendant to make precisely these points. That is what a harm test is all about and that is why we have included it in the Bill. The Bill does not allow someone to say, "Yes, I know my disclosure did the damage set out in the legislation, and what's more I knew that it would, but I divined a different public interest which, in my view, justified my otherwise criminal action".
This is the heart of the real argument. If people think that such arguments should be allowed, that the court should be left to balance some sort of competing interest, that it is all right that lives should be lost, or the national interest endangered, so long as one public servant's perception of maladministration, wrongdoing or misconduct can be aired in the press, we are close to saying that these are not matters which can be regulated by the criminal law. We would be close to saying that it is more properly a matter of dispute between the Government and 466 one of their employees whether a disclosure is in the public interest and that it is a matter that should be settled by a civil court on the balance of probabilities.
I do not think that the House should banish the criminal law from these matters. The House will wish to discuss whether we have identified accurately the matters to be protected by the criminal law and whether we have got the harm test right, but I do not believe that we should accept a general public interest get-out, which has no place in the operation of this law.
Let us consider a practical example. In the area of defence, because of the harm test, the prosecution would have to prove that the disclosure was likely to prejudice the capability of the armed forces and that the defendant knew that that was likely. That might be a hard thing to prove. It would be in order for the defendant to argue, if he could, that so far from prejudicing the capability of the armed forces, his disclosure had enhanced it or had, at least, not prejudiced it. I believe that no responsible person should argue that, while he knew that his disclosure would prejudice the capabilities of the armed services to defend us, it was justified on other grounds—that he believed, for example, that it was in the public interest that the misconduct of a Minister should be exposed or that the Government's defence policy should be reversed. That is the nature of the overarching public interest defence which some people propose.
§ Mr. Tony Benn (Chesterfield)
I wonder whether the Home Secretary can help the House on the test of international relations. Since the Official Secrets Act 1911 was passed, this country has entered into wholly new relationships with other Governments—notably through the Common Market. Eighty per cent. of the legislation that we used to pass is now to be dealt with by the Commission. All negotiations up to the passage of those directives or regulations will be international in character and any Minister going to Brussels to attend the Council of Ministers for matters which may affect meat distribution or matters of great concern will be covered by international relations. Is it not the case that with the growth of an international impact on our national life and by protecting all international contact the Home Secretary has enormously extended the area of secrecy protected by statute into the area of legislation applying to the citizens of this country?
§ Mr. Hurd
No, because those disclosures are already included. The right hon. Gentleman is making the point that my right hon. and learned Friend the Member for Richmond, Yorks made in July. It is partly because we accept that there is some validity in that argument that we have introduced the harm test. The test will be a stiff one on whether the disclosures of information received from abroad or from international organisations in confidence jeopardise the United Kingdom's interests abroad. The point raised by the right hon. Member for Chesterfield (Mr. Benn) has been met in the Bill.
I recognise that there are some Members of the House who find the argument about public interest hardest in the context of our proposals that members of the security and intelligence services, and some who work with them, must continue to be subject to the criminal law if they make any unauthorised disclosure about their work. The very fact 467 that we argue, as we have consistently argued, that such people cannot talk about their work creates a secret garden which journalists and others naturally want to enter.
It is right that there should be safeguards and controls in this area. That is why we have introduced the Security Service Bill which proposes clearer controls and safeguards. However, I do not believe that further safeguards should be provided by giving members of the services open access to the front pages of the national newspapers.
The Security Service is there to protect the nation as a whole. The services can protect us effectively—for example, against terrorism—only to the extent that their operations stay secret. That is the difficulty with which the House wrestled when discussing and approving the Security Service Bill last week. If members or former members of the services make unauthorised disclosures, they may be putting at risk the lives not only of their colleagues but of all of us. They are aware of that when they volunteer and take on the work initially. Many operations depend on the use of techniques, the details of which are not known and for which there are no other means of averting the threat. Many operations depend also on people who help the services knowing that their help will never be made public. That is why a disclosure by a person claiming to be a member of the services can shake that trust and cause deep damage. I hope that the House will understand the reason behind the special offence that we propose for those people.
In recent years we have moved forward in that area. We now have the independent staff counsellor for the security and intelligence services. He is there to ensure that anxieties of members of the services about their work, if they exist, can be considered at the highest levels. We have introduced the Security Service Bill, to which the House gave a Second Reading last week, which will make clear for the first time in statute the extent of the Security Service's remit and the authority and control for its activities. Those members of the public or organisations who feel aggrieved by the Service's activities will be able, once the Bill is enacted, to take their complaint to an independent tribunal, as they can already take a complaint about the interception of their communications to an independent tribunal.
§ Mr. Graham Allen (Nottingham, North)
Would that really be the appropriate venue for an individual to go to with such a complaint if, for example, a serving officer in the security services finds a plot involving potential assassinations or the destabilisation of a Government? Would that really be the appropriate place for an effective remedy in such circumstances?
§ Mr. Hurd
In such a case an officer would use the staff counsellor. That would enable him to bypass his superiors. That is new since November last year. I hope that the hon. Gentleman will take it into account.
The point that I am making is that there are now effective and reasonable ways for members of the security services and others affected to ensure that anxieties are not smothered and that concern about wrongdoing is not overlooked. The aggrieved insider, about whom the hon. Gentleman is concerned, and the aggrieved citizen outside are now both catered for. Those who suggest that members of the services should be free to make unauthorised disclosures about their work to members of the public or 468 to journalists have failed to recognise that there are now better avenues for considering such matters. These are all matters of balance and judgment. However, in making that judgment, they are making a judgment that could leave our security dangerously exposed.
I have tried to deal with some of the real anxieties and with some of the obfuscation to which the White Paper and the Bill have given rise. It does sometimes happen—right hon. and hon. Members will have their own examples—that critics of a measure create a caricature in which they genuinely come to believe. I remember that that was the case with the first big Bill that I helped to take through, which became the Police and Criminal Evidence Act 1984. There was a great deal of tumult and many distortions and heated meetings going far beyond anything which Mr. Des Wilson has so far been able to contrive. In the end, the Bill was passed, the tumult subsided, the interest groups turned to something else, and the Act struck the balance that Ministers had described when defending it. I think that it will be so with this Bill also.
The Bill is not, and does not pretend to be, a freedom of information Bill—[HON. MEMBERS: "Oh."] But it comes—perhaps hon. Members will not accept this either—from a Government who have freed more information, especially as regards the security services, than any of their recent predecessors. The Bill lifts from journalists much of the tension inherent in the present law. I do not feel a great deal of sympathy with those to whom I have listened for decades as they lament the tyranny of section 2 but who complain today with equal melancholy now that they are to be relieved of it, especially when they have not studied carefully the nature of the relief.
I should like to take the House back 11 months, to the aftermath of the unhappy debate on the Bill introduced by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). I agree entirely that it was an unhappy moment. It was widely supposed that the Government were doing just a little perfunctory work as an excuse for voting against the Bill but that that work would trickle away and come to nothing. Even if we did venture on a proposal, it was supposed, even by my hon. Friend the Member for Aldridge-Brownhills, that in that proposal ministerial certificates would reign supreme. There was no suggestion that we were planning to put the Security Service on a statutory basis or provide a remedy for the aggrieved citizen. It was assumed, by and large—I would say overwhelmingly—that we would stay stuck in the trenches that had been dug deep and manned devotedly by the Labour Government in the days of the right hon. Members for Birmingham, Sparkbrook (Mr. Hattersley), for Morley and Leeds, South (Mr. Rees) and for Plymouth, Devonport (Dr. Owen).
However, there is a little bit of a change, is there not? Surely fair-minded hon. Members will accept that there is a little change. We are now exactly in the position which in January I hoped that we would be in by this time. I am proud to be the sponsor and mover of the Security Service Bill and of the Official Secrets Bill. As these clouds of obfuscation—I say that for the last time—roll away, this Bill will be seen for what it is and, indeed, these two measures will be seen for what they are. They are certainly conservative measures in that they have at their heart the effective protection of the citizen from specific and grave dangers. However, they are also radical reforms because they open windows that have remained closed and 469 cobwebbed, because they define clearly what has been confused for a long time, and because they strike in 1988 a balance that is designed for today.
The Bill will greatly reduce the scope of the criminal law. It will provide a modern, fair and effective way of protecting this country's necessary secrets. I commend it to the House.
§ Mr. Roy Hattersley (Birmingham, Sparkbrook)
Since the White Paper on this subject was published, and perhaps before—during the debate on the private Member's Bill introduced by the hon. Member for Aldridge-Brownhills (Mr. Shepherd)—the Home Secretary has chosen to defend his proposals in an extraordinary way. I do not mean simply the obfuscation that characterised as well as dominated the beginning of his speech; I mean some of the techniques that the right hon. Gentleman has used to defend what he proposes to do. We have seen two examples in his speech today.
One of the bad habits that I hope he will get out of before Committee is defending clauses by adding to them in his speeches words that they do not contain. He asked in his more reasonable manner who would want to complain of the limitation on the publication of information which prejudices the capabilities of the armed forces to defend us? That is not what the Bill says. There is no concept of defence in the clause. Information prejudicing the prospects of the work of the armed forces being carried out successfully are all covered by the Bill, for example, when the armed forces are helping at the Smith lawn polo field, or officiating in some way at the Royal tournament at Earl's Court. The idea that that is a harm test is fatuous and the fact that the Home Secretary wheels in such wholly bogus arguments shows that he doubts his own proposals.
The second bogus argument was the one about the obfuscator, whom the Home Secretary said had been misinforming the public about telephone intercepts. The Home Secretary is quite right. If I go into Whitehall this evening and say that I suspect that my telephone is being tapped, I shall not be prosecuted. It should not be thought terribly generous that the Home Secretary allows me to make such an allegation without being sent to prison. If on the other hand—this is the charge that was made against him, not the one that he invented—I go into Whitehall and say that I know that my telephone is being tapped because I was told so by the man who tapped it, I am automatically guilty of an offence. If the Home Secretary believes that that is an extension of liberty and a liberalising measure, we can understand some of the mistakes that he has made in the Bill.
One mistake and one of the Home Secretary's extraordinary habits when defending his proposals is that he uses the most extravagant language to describe what he proposes. I have no idea why he has chosen to use that language, but I think that we can be certain of one thing—that the terms that the right hon. Gentleman has used have, in almost all particulars, been misleading. He has variously described the Bill asan essay in openness," as "a substantial and unprecedented thrust in the direction of greater openness",as "a charter for liberty" and as "an earthquake in Whitehall".
§ Mr. Hattersley
I shall certainly give way to the Home Secretary in the hope that we may have another bit of flamboyant nonsense from him.
§ Mr. Hurd
In the interests of historical accuracy, perhaps I should say that one of the phrases that the right hon. Gentleman used—that about "a charter for liberty"—was used, I think, in a speech made to the Royal Television Society. I said that it was a charter for liberty in comparison with the Labour Government's 1978 proposals.
§ Mr. Hattersley
I shall withdraw, and say that there are mitigating circumstances because the right hon. Gentleman was making a speech to the Royal Television Society—why that should be mitigation I am not quite sure—and because of the other qualification that the right hon. Gentleman put on the description, but there are still the other three descriptions to which the right hon. Gentleman pleads guilty. All are clearly and absolutely misleading. If that flamboyant language has any meaning at all, it is a description of a Bill which is designed positively to increase the amount of official information that is available to the public. This Bill does not have that purpose and, if it is passed into law, it will not have that effect.
In his calmer moments—we had a few of them today—the Home Secretary has made it clear that he has no wish to introduce or intention of introducing a Bill which would be appropriate to the description that I have just quoted. He saidThis is not a freedom of information White Paper and we do not propose to introduce a freedom of information Bill."—[Official Report, 22 July 1988; Vol. 137, c. 1419.]He said it again today. Only the Bill which the Home Secretary explicitly rejected would justify the language which he has used to describe the very different Bill which we are debating today. A Bill which justifies the title, "essay in openness" or, "earthquake in Whitehall" would set out positively to promote the free availability of all official information which could be published without damage to the national interest. That Bill would stipulate in positive language the public's right of access to official information. It would enshrine the right to know in law, making that right the presumption on which publication of information depended. It would then, inevitably and necessarily, stipulate categories of information which might, after due process, be taken as exceptions to the general rule of publication and the way in which information which must be kept secret.
This Bill works from the opposite end of the equation. It is concerned solely with secrecy. It does not increase the amount of information available to the public by one iota, and nor does it purport to do so. It must be examined not on the basis of the Home Secretary's extravagant language outside the House, but on the basis of the real principles on which it is constructed. The Bill is not intended to facilitate a free flow of official information—it is intended to provide a new method by which the availability of information can be reduced and obstructed. It is also intended—I think that this accounts, in part at least, for the Home Secretary's strange and inappropriate language 471 —to help the Home Secretary sound liberal to one audience but appear authoritarian when he finds that convenient.
Without a freedom of information Bill, the cocoon of unnecessary and debilitating secrecy by which Whitehall is surrounded will continue to deny the British people information about the actions of Government which is freely available in other democracies. That is the background against which the Bill must be debated. The best that we can say about it—at least about its purpose—is that it has the object of replacing the discredited and absurd section 2 of the present Act with something more reasonable and less risible. Even then, it fails to make the improvements that are possible within the limited terms of that aspiration. Section 2 of the present Act is so indefensible that it seems almost impossible that the Government could not find something substantially better to put in its place. In some particulars, however, the effects of this Bill will be substantially worse, not least because section 2, being so discredited, has lost much of its force. It is being replaced by a Bill which will more easily give effect to the Government's authoritarian instincts.
In his description of the Bill today, the Home Secretary made much of two points: first, official information—which will no longer be covered by official secrets legislation—and, secondly, the employment of the courts to make judgments about what is and is not publishable within the terms of the new prohibition. In both cases, the right hon. Gentleman exaggerated the changes proposed by the Bill to such an extent that we can assume only that the exaggerations were intentional.
Some material covered by the Official Secrets Act 1911 will not be included in the Bill and, therefore, will not be covered. That is hardly surprising as the present Act covers every item of information, no matter how trivial, unimportant or small it is. Saying that everything is no longer covered is not the same as doing what the Home Secretary implies he is doing, which is encouraging the publication of information which it is not necessary to keep secret. Democracy requires the publication of more information, and the Home Secretary is not making even a gesture in the direction of that principle. Nor is it right to say that the final arbiter of what can and cannot be published will no longer be the Government alone.
In some categories of information, the courts will be required to make judgments about intention and damage, but, as I hope to show, the Government will still possess arbitrary powers over far too large an area of official information, and even when the courts are required to judge the effect of disclosure, the nature of the judgments that they are required by the Bill to make will make conviction certain when conviction is not reasonable.
If the Bill becomes law, the Government will still possess far too much power over the crucial decision about what should and should not be secret. In too many clauses, the Bill makes the Government, and the Government alone, the arbiter of the national interest. It is inevitable that, when the Government possess powers that enable them to describe and determine where the national interest lies, they do not distinguish between the true national interest and the sectional interests that they represent. That is why Clive Ponting was prosecuted for telling the truth. His real crime was correcting the deception that had been perpetrated by the Government.
It goes without saying that there is agreement on both sides of the House that official information which, were it 472 to become public, would damage the security of the state must remain secret. I believe that there is also agreement that that principle requires sanctions to deter publication of material which would benefit enemies and potential enemies. It also requires penalties to be imposed upon those who are guilty of doing the damage which publication brings about, but I believe that there are three essential questions which divide us. I was about to say "divide the House" but I think that, as the Committee stage goes on, it will become clear that the divisions are not on the traditional and hackneyed lines that we have come to expect in this place.
I believe that the three questions are these: how are we to define the categories of information which, were they made public, would so damage the state that their publication must be an offence, who should be the arbiter of whether information comes into that category, and what procedures shall be followed to prosecute and convict those who are suspected of publishing information which it is necessary to keep secret?
For many of us, the essential requirement that links each of the answers to those questions is that there should be a test of damage to the national interest which is not applied by the Government alone. If we examine the Bill in detail, we see how comprehensively the Government fail to meet that need.
First, there are those categories in which the Government alone are the arbiter of what may be published. Clause 1 is comprehensive and arbitrary. Disclosure about their work by members of the security and intelligence services, and similar disclosures by those designated as being associated with those services, is an automatic offence. In this area, there is no need to demonstrate damage to the national interest. The fact of disclosure is the evidence on which conviction is made certain, no matter how trivial or inconsequential the information received may be. It cannot be necessary or right to make every item connected with security, no matter how loosely, subject to automatic restriction. It is intolerable that the Government alone should be able to define and designate the individuals who are covered by the blanket ban, and the categories of work which are to be shrouded in secrecy.
There was much justifiable complaint at the idea that the Government should certificate individual items of information as being damaging breaches of a secrets Act. Clause 1 allows the Government to designate activities, categories of individuals and swathes of information that oblige people to observe complete secrecy about what they do and what they have discovered from their jobs, even if that discovery involves fraud or felony. In those cases, the court makes no judgment about harm—revelation in itself is an offence.
§ Mr. Tony Baldry (Banbury)
How does the right hon. Gentleman reconcile what he is saying now with the fact that the 1978 Labour proposals contained no defence of public interest or prior publication? However, they referred to an intention to introduce a system of binding ministerial certificates.
§ Mr. Hattersley
I can easily explain that. We have an improved system. The hon. Member for Banbury (Mr. Baldry) must not despair of political parties improving. If he has any doubts about that, the Home Secretary exists to prove my point. He is the last Minister to say that 473 politicians have to remain immobilised in the position they adopted 10 years ago. Ten years ago the Home Secretary was the apotheosis of Heathism. He was the Heath man to end all Heath men. He was the great follower of the right hon. Member for Old Bexley and Sidcup (Mr. Heath), and worked and spoke for him throughout the country. I doubt that he often says in Cabinet today the complimentary things that he said about his right hon. Friend 10 years ago. We can all change and improve. I do not propose for one minute to pretend that we should not have gone further on official secrets 10 years ago. Of course we should have done so. Some of us thought so at the time—I shall not mention any names but we certainly existed—and I propose to continue arguing that we should go further than the Bill provides.
Government spokesmen have gone out of their way to suggest that the power to prosecute and convict without demonstrating harm to the national interest is limited in the Bill to public servants. That is certainly not the case. Under clause 4(3)(a) it is an offence—which does not require the proof of damage—to publish information related to a warrant under the Interception of Communications Act 1985 or under the Security Service Bill. If my telephone is tapped in mistake for my neighbour's, I would commit an offence by making public that fact and any newspaper that published the story would also have broken the criminal law.
If the Security Service broke into my house in mistake for my neighbour's house and injured my family or damaged my property, it would be a criminal offence to reveal that. It is only necessary to describe the provisions relating the the Interception of Communications Act and the Security Service Bill to realise that they are wholly unacceptable. The Security Service and its activities, as designated by the Minister and as covered by this legislation and the Security Service Bill, are shrouded in complete secrecy. That is unhealthy for the public and for the service itself.
In the recent past, particularly since the publication of the Bill, the Government have gone out of their way to suggest that they have relaxed some of its provisions, especially as they affect journalists as distinct from public servants. An examination of the liberalisation claim shows how slight it is and how careful the Government have been to obtain powers to enable them to take action against journalists if and when they choose to do so.
We have been blandly told, time after time—the Home Secretary did it again today—that on almost every occasion the prosecution of a journalist as distinct from the prosecution of an intelligence officer would succeed only if there was proof that harm had been done. That is not true. An editor who publishes the diaries or biography of a retired intelligence officer could be prosecuted as an accessory to the offence committed by the officer. The offence is not limited by the need to demonstrate harm. An editor who discussed publication with the author of intelligence service memoirs would be guilty of collusion, even before they were published. Does anyone doubt that the Government, who so obsessively pursued Peter Wright at the taxpayers' expense and who attempted to gag The Guardian and the Sunday Times, would not choose to proceed against an editor under the accessory provisions and prevent him from arguing that no harm had been done 474 by his actions? There are other areas where, although in theory the test of harm is necessary, in practice convictions will almost always be automatic.
The obvious example is information supplied in confidence by other Governments. Such information is protected by two subsections. Clause 3(2) specifies comparatively objective tests against which the damage caused by disclosure must be measured. The most definite and—I concede at once—the most justifiable is the test that disclosure would endanger the safety of British citizens abroad. But clause 3(3) allows for conviction if disclosure is likely to have any of the effects stipulated in the previous clause. The word "likely" injects a terrifyingly objective analysis into the entire legal process.
Worse is to follow. Clause 3(3) allows conviction on the basis that damage might have been caused simply by the disclosure of the information, whether or not the information itself was damaging. It will be possible to argue that the publication of a confidential story so unnerves our allies that it is a breach of the Bill. It will unnerve our allies because any breach makes them uncertain about the competence of our security services.
As I said to the House last week, that was the case made to me by the Foreign Secretary about Zircon. When I suggested that the Soviet Union probably knew as much about Zircon as did the editor of the New Statesman, he said that the revelation of the facts was not as damaging as the discovery by our allies abroad that we allowed such facts to be revealed. If that is the criterion on which the Government operate, this clause does not require actual harm of any sort. It simply requires the Government to say that, in their judgment, harm was likely. Does the Home Secretary believe that the defence "has not done harm", when the Government are saying that the very fact of publication will cause harm, would succeed? If he believes that, he will believe anything. I am sure that he does not hold that view.
In some categories, a demonstration of harm is necessary, but even there the harm is defined in such a way as to diminish the protection that the qualification is claimed to provide. The Home Office press release—another example of the Home Secretary's recently acquired and deplorable technique—promised that the Bill would require juries to makespecific tests of harm to the public interest".
That is simply not true. Unfortunately, neither the concept of public interest nor the words "public interest" appear anywhere in the Bill.
Different tests of justification are applied to different categories of information. Information about crime must not be revealed if the revelation results in the commission of an offence, or is likely to do so. Information relating to the offence must not be revealed if revelation prejudices the capabilities of the armed forces, in part or in whole, or is likely to do so. The words "likely to do so" add an area of unacceptable subjectivity to the process. More importantly, each of the tests against which the damage is judged is much less specific and, in terms of making a real assessment of the national interest, far weaker than should be tolerated by the House.
In its submission to the Government on the criterion "jeopardises the interests of the United Kingdom abroad", the BBC observed wryly that "jeopardy" is not auseful guide to journalists or juries.475 I am sure that that is true, but the concept of jeopardy is a useful catch-all for Governments interested more in conviction than in objective analysis of possible harm.
In 1972. the Franks committee proposed a much more rigorous definition of the harm test: that disclosure would result inserious injury to the interests of the nation.
§ Mr. Hattersley
If the Home Secretary wishes to tell me now why those two things must go together and why we cannot reject one and accept the other, I shall give way to him immediately.
§ Mr. Hattersley
On the contrary, for the past five minutes I have been drawing the attention of the House to something that the Home Secretary neglected to mention—the criteria on which a jury is asked to make a judgment. I contend that the criteria are inadequate and damaging. I asked why the Franks criteria could not be used instead of the fatuous—or perhaps I should say vacuous—criteria laid down by the Home Secretary. He might think that he has explained why he rejected the more rigorous, tight and precise concept of serious injury to the interest of the nation, but I assure him that the faces behind him do not suggest that his hon. Friends are convinced by what he purported to call an answer.
The Franks definition is that which successive Governments have regarded as suitable for classification of information as secret. The Franks report recommended that information classified below that level, and therefore not appropriate for that test, should not be covered by official secrets legislation or criminal sanction. We support that wise judgment. Under the Bill, anything remotely related to security, no matter how trivial, will be covered. "Confidential"—which anyone who has been in Government knows means nothing at all—"Restricted"—which anyone who has been in Government knows means very little—"Secret" and "Top Secret" are all lumped together. In the categories where a test of harm applies, the definition of "harm" is so wide and so weak that it is difficult to imagine any revelation, which is followed by a prosecution, not resulting in conviction. Eight years ago the Bill that the Government abandoned included a far better test of harm—the notion of serious injury. We have heard no justification for going back on that more rigorous definition; the only possible explanation is the Government's desire to construct a Bill that will convict more easily than was thought necessary in 1979.
The Bill is and will remain authoritarian until a public interest defence is included within its provisions. During the White Paper debate I suggested that the Bill, far from being a liberalising measure, would have secured the conviction of, for example, Mr. Clive Ponting, who was acquitted on what amounted to a public interest defence. I vividly remember the cheers with which that contention was greeted by Conservative Members.
The Home Secretary has done much to confuse both the House and the country about the application of a public interest criterion, sometimes arguing that such a 476 defence is possible under the Bill by equating it with the harm test—that is quite wrong—and sometimes insisting that acquittal on such a defence would be perverse, even under the present Act. Indeed, he made that point today. I shall remind the right hon. Gentleman of what happened in the Clive Ponting case. The jury concluded that it was in the public interest that the truth should be told. Although, under the Bill, that jury might still decide that the balance of interest supported publication, the terms of the Bill would make it impossible for Mr. Ponting to be acquitted in the way that he was acquitted four years ago. There is no doubt that what Mr. Ponting revealed would, in the words of the Bill,prejudice the capability of … the armed forces of the Crown to carry out their tasks.That having been demonstrated, nothing else would matter. Mr. Ponting would be found guilty.
§ Mr. Dalyell
According to Mr. Ponting today—and I understand from legal authorities that this is likely—Mr. Bruce Laughlan could not have called for testimony from my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), nor from the Master of Caius, the Rouse-Ball Professor of Law, Professor Wade.
§ Mr. Hattersley
I propose to develop exactly that point, but without those examples, in a moment. Before doing so, I wish to ask a general question. Is impairing the work of the armed forces really a proper criterion by which a criminal offence is to be measured —a criminal offence that is an automatic offence convictable in all circumstances? No other western democracy would make it so. If that were, in itself, enough to convict, we would be arguing, like some South American dictatorship, that the work of the armed forces was an object in itself that must be protected from all outside interests in all circumstances. We believe that when such matters are judged, we should decide whether, on balance, the outcome was good or bad for the public interest.
In the Ponting case it was decided that impairing in one particular the work of the armed forces was in the public interest. Any official secrets legislation that does not include at least that possibility is intolerable. Let us consider the possibilities. Public servants who discover a crime or a misdemeanour within their service, and find the internal method of complaint and appeal provides no redress, will be prevented from exposing that wrongdoing. That public servant will be sure that, whether or not the perpetrator of the wrongdoing is prosecuted and convicted, exposing the crime or the misdemeanour will, of itself, lead to certain prosecution and inevitable conviction.
Under the present law—absurd and inadequate though it is—a public interest defence is possible. A defendant can argue in litigation that he or she made the classified information available only to those—and I quote from the Act—to whom it is, in the interest of the state, his duty to communicate it.That becomes a public interest defence, as it was in the case of Clive Ponting. He argued that, numbered among the people for whom it was in the interests of the state for him to communicate previously suppressed facts about the Ministry of Defence, were the people of Great Britain. The jury representing the people of Great Britain agreed with him.
§ Mr. Ray Whitney (Wycombe)
On the question of a public interest defence, the right hon. Gentleman will recall that the Cabinet of which he was a member authorised the production of the Cheveline as the upgrading for the Polaris nuclear weapon. That information was kept from other members of the Cabinet, from hon. Members and from the public. Had some of those civil servants—who must have been aware of that—leaked that information in the public interest, would the right hon. Gentleman have approved of their action?
§ Mr. Hattersley
Of course I would not have approved, and I believe that a jury would have convicted them of behaving in a manner against the national interest. However, if the hon. Gentleman wants to know whether I would be prepared to allow that to be tested, the answer is that, of course, I would. The hon. Gentleman misunderstands the entire case of those who believe in openness. We are prepared to test our judgment against the judgment of an English court. What divides the authoritarians and the libertarians is the view, which the hon. Gentleman clearly holds, that if the Government say it, it must be right and it must be true. I do not accept that principle. If it is any consolation to the hon. Gentleman, I do not believe in it any more for a Labour Government than I do for a Conservative Government. We need to be protected against Governments of all sorts and of all persuasions.
§ Mr. John Maples (Lewisham, West)
In reply to my hon. Friend the Member for Banbury (Mr. Baldry), who asked why a public interest defence was not included in the Labour Government's proposals in 1978, the right hon. Gentleman said that his Government had changed their mind. I hope that he will forgive us for wondering why it is such a fundamental principle of liberty now when it was not such 10 years ago.
§ Mr. Hattersley
It is important to consider the Bill and the alternative proposals on their merits. I shall argue for the merits of the sort of freedom of information legislation that I want. I believe that to be right now as I believed it to be right in 1978. I do not want to be over sententious, but I hope that when we try—as I hope that we will—to discuss the merits of the alternative systems, the hon. Gentleman will appreciate that the argument about motivation 10 years ago is pretty small beer and trivial.
I shall put the point about a public interest defence in a way that will explain and justify it to the hon. Member for Wycombe (Mr. Whitney). Let us assume that a Labour Government are in power and that they tap the telephones and break into the houses of hon. Members who have close but wholly legal connections with South Africa. Let us further assume that an intelligence officer reports that abuse to The Times and The Daily Telegraph. He has explained that he made a complaint within the official machinery, but the abuse continued. When that unlawful interception and burglary are reported, would the hon. Gentleman really want the intelligence officer who exposed the scandal and the newspapers that reported it to be automatically and inevitably convicted of a criminal offence? Or would they wish, as I wish, that those who expose wrongdoing to be given the right to argue the defence that they did what they did in the public interest? Under this Bill, such a defence would be impossible, for part of the intention of the Bill is to withhold information not from the enemies of society but from the members of 478 society. If I had doubted it for a moment, one of the more extraordinary points that were made by the Home Secretary almost an hour ago would have convinced me of that conviction.
The Home Secretary told us that damage may be done if a previously secret story were published on the front page of a newspaper, even though the secrecy had previously been breached on the inside pages of a technical journal. That contention can be justified in two ways. The first is that intelligence agents of foreign powers do not read technical journals. The second is that we wish to keep information not from foreign powers but from the British public. It is that which is most offensive about the Bill.
§ Mr. Hattersley
Although the Home Secretary shakes his head now, there is no possible explanation of the extraordinary point that he made in the exact terms that I described.
Let us pursue the matter a little further and examine clause 6(3). No offence is committed if confidential information in this country is published when that information has already been published lawfully in another country. Why is it an offence to repeat information that has been published unlawfully in another country? I make the same point. It is reasonable to conclude that Russian agents examine the Washington Post, Le Monde and La Stampa. They will not confine their interest simply to matters that have been published with the authority of the American, French and Italian Governments. If a secret is published in an allied country, it is not unreasonable to assume that it is known in Moscow and Peking. Prohibiting its republication in London can have only one intention—that it should be kept not from the enemies of Great Britain but from the people of Great Britain.
The history of official secrets legislation, as manipulated by the Government, is concerned with the convenience of Government as much as it is concerned with the security of the realm. The Wright fiasco was prolonged and pursued to avoid the Government in general and the Prime Minister in particular losing face. Clive Ponting was prosecuted because he told the truth and, in consequence, exposed official lies. This Bill, if it is passed into law, will confirm the Government's power to perpetrate all those excesses.
It is a bad Bill. Its application is likely to be worse because, during its early years, the Government will manage and manipulate it. We shall vote against it tonight.
§ Mr. Edward Heath (Old Bexley and Sidcup)
I congratulate my right hon. Friend the Home Secretary on having carried out his undertaking to bring the White Paper to the House before the end of the last Session and on bringing the Bill before the House at the beginning of the present Session. He faced a formidable task; nobody recognises that better than I do. The Government over which I presided set up the Franks committee, and, in 1973, we accepted all its recommendations. My right hon. Friend's predecessor, Mr. Robert Carr—now Lord Carr —made that statement in the House. We were not in power long enough to implement the committee's recommendations in the next Session. The Franks committee urged that the House should pass an official information Act. It shows the difference of approach that the emphasis was on 479 an "official information" Act. That is one of the causes of anxiety among many hon. Members and the press about the real attitude behind the Bill.
My right hon. Friend has considered many of the points that were raised. This debate can only be an introduction to consideration in Committee. I appreciate that. Mr. Speaker has asked hon. Members to make brief contributions. I should like to make a brief contribution, but many points in the Bill need to be discussed in detail. Therefore, my right hon. Friend and the Whip will urge the Leader of the House to allow proper time for discussion in Committee.
One cannot rush the passage of a Bill of this kind. The implications are far too great. There is the implication for the safety of the realm. That is of great importance, but of equal importance is the right of the individual citizen, and certainly of the House, to the utmost information available, compatible with the safety of the realm. That requires striking a balance, but, in my experience over many years, all too often Governments are likely to put the balance on the side of Government keeping information secret rather than giving information to the citizen and the House of Commons.
I can recall, in my time in politics, at least three major foreign policy matters, for example, when information should most certainly have been made available to the House of Commons and to the public, but it was not. I have no desire to see those instances repeated. I also have in mind the case of Sir Con O'Neill, who resigned over Suez, and did so quietly. He just wished to leave the Civil Service. He should not have left it at that. I quite agreed with the Chief Whip at the time—I said nothing. As a senior civil servant who knew the whole story, he had a responsibility to give the real and full reasons why he resigned. Under this Bill, he could not do so. There are several similar instances at major points in our history when it became necessary for a civil servant to do that. It is now said that he can go through the channels of the Civil Service.
Again, in my experience, the attitudes of heads of the Civil Service vary. Sir William Armstrong was strongly in favour of an open Civil Service and always gave permission for civil servants to appear on the BBC or ITN to give their views. Other heads of the Civil Service have not taken that view. If the head of the Civil Service says, "You have your complaint, you have expressed it to me, but that is the end of the matter," should it be the end of the matter? It is a matter of ethics and professional service, which must he taken into account in a Bill of this kind.
The Official Secrets Act 1911 has been open to a great deal of criticism. However, it has continued because, on the whole, it has been dormant. It has been used by Governments only in cases of obvious espionage. For sound reasons, cases were often heard in private. Nobody doubted that the court had dealt with a case of deliberate, organised espionage. The Ponting case was dismissed. In another case, the girl, not the Government who brought the case, got the sympathy of the public. That is why the Official Secrets Act has continued in its present form. It was used only in the most extreme cases.
The question is whether the Bill will continue in that tradition. The cause of anxiety is the belief that it will not. I ask my right hon. Friend not to get upset about it. Any Government who pursue the Wright case to the ultimate ends of the world, as this Government did, are bound to face suspicion about the degree to which they will use the 480 great powers that they have in the Bill. The Wright case was pursued to the ultimate. My right hon. Friend must accept that, if the Government were successful in the Wright case here, the British people would not have had the right to read the book, whereas the rest of the world would have. Surely that is not tolerable.
After a press conference in Hong Kong, I was presented by the press with a paperback copy of Mr. Wright's book. I expressed only limited gratitude to them, because, when I opened it, I saw that it was in Chinese. That did not make Mr. Wright's allegations available to me, but it made them available to 1.05 billion Chinese readers. We cannot continue that sort of thing with this Bill. That is what gives cause for such anxiety.
That brings me to prior publication. My right hon. Friend spoke of technical journals. Technical journals in the United States produce a mass of information about the American forces, the like of which is never seen in this country, never published and never revealed by Ministers. It is for the super-powers that it is made available. The United States, too, has its Freedom of Information Act. This legislation will close the doors on anything of that kind. It is not justifiable that, if information appears in an American technical journal, the British are the only people not to be allowed to know about it. The Russians, Chinese and Americans can know. All our allies know. The only people who cannot know are the British people. That cannot be allowed to continue. That is why I emphasise to my right hon. Friend the need for time in Committee to discuss this in detail, and to give him the chance to examine some criticisms.
Our objective should be to produce a Bill acceptable to both sides of the House and, as far as possible, to the press. The latter will be more difficult. When we discussed the Franks report I invited all the editors of the British papers to come to No. 10 and give me their views about it. They had only one view: ignore it, and sweep away the Official Secrets Act. That is not possible. The degree of support from the British press will always by limited, but what is said in the House should be taken into account.
I cannot see any way of dealing with these problems other than by having a public interest. I recognise my right hon. Friend's emphasis on the jury, but if public interest is to be taken into account, fewer cases are likely to be brought under the Act. Why should one open the whole arena to cases being brought when one expects that juries will dismiss them?
§ Mr. Nicholas Budgen (Wolverhampton, South-West)
Does my right hon. Friend agree that it is difficult for any judge to prevent a jury hearing arguments which will amount to a public interest argument? [HON. MEMBERS: "Quite right."] My hon. Friends properly say, "Quite right." But when a case is being argued before a jury, it is necessarily argued much more widely than before a judge sitting alone.
§ Mr. Heath
The terms of the legislation must be taken into account. If it is clear in the Bill that public interest must be taken into account, it clarifies the whole position, as it should do.
There are many confusions in the Bill and I resist the temptation to call my right hon. Friend the Secretary of State for obfuscation. He has hidden some parts, and when we reach Committee stage these must be produced. For example, what happens if, as may happen under a future 481 Government, our defence forces are in a particular way inadequate? If such public knowledge is produced, one may say that it is damaging to the country. This takes us back to the famous Duncan Sandys case before the second world war. He was absolutely right and was finally shown to be right. If we rely on the terms of the Bill, that would not happen. It would be said that, by revealing our weakness, he has done immense harm to the good of the country. That would hold good under this Bill.
Again, if there are better reasons than I have found for this, we can discuss them in Committee. That emphasises the need for a thorough discussion in Committee.
§ Mr. Dalyell
Is it not also true that Major Sir Desmond Morton, who advised Churchill and told him about air weaknesses, would certainly be in prison under this Bill?
§ Mr. Heath
There may be other cases and it is open to my right hon. Friend the Secretary of State to explain them all later.
We can argue about the past, what we were about to do in 1972 and what a Labour Government did or did not do in 1978. In the past 20 years we have seen a complete transformation of information in the world. It is due entirely to technology, satellites and everything which goes with them. Whatever happens at any moment we hear a second later on the radio and see on the first news broadcast on television. That has transformed the whole approach to public information, which includes the secrecy of essential services. It means that the public not only expect more information, but are led to expect it by the media and are entitled to it. It may be said that I have changed since 1972–73. Yes, I recognise that what goes on in the world is of prime importance to citizens and Parliaments. That is being recognised elsewhere, but we have been slow to recognise it.
If the Bill is passed, will Irangate be possible? The answer is no. For 30 years, nothing would come out. Yet Irangate exposed the incompetence and hypocrisy of the President of the United States. Real damage was done to the United States because the matter was seen worldwide. I shall not attempt to describe the actions of his subordinates, but they were all publicly discussed because the basic information was made available in the first instance which led to the Congressional hearing in which everything was brought out. That is a test of this Bill. Could such an example happen in this country under the Bill? I do not believe that it could.
§ Mr. Buchan
Does the right hon. Gentleman agree that America was a great deal healthier as a result?
§ Mr. Heath
I agree with that. I know that opinions vary. I know from an answer that she gave at Question Time that my right hon. Friend the Prime Minister thinks that it was not right that everything should have come out. There is a difference of view; I accept that. There is not a difference of view in the United States, which expects information to be made available for people to make their judgments, although other powers may draw their deductions from what was revealed. When we have a Bill in which that is possible—we have information and can form our judgments about it—it will be a satisfactory Bill 482 for information. The other side of the coin is that we must ensure that vital questions of security can be protected, as they are under the Official Secrets Act.
I thank my right hon. Friend for introducing the Bill. In the past, he has listened to criticisms. I hope that he will pay attention to what is said in this House and outside, and that in Committee we can have longer, more detailed discussions of important matters which remain.
§ Mr. Peter Archer (Warley, West)
The right hon. Member for Old Bexley and Sidcup (Mr. Heath) must have given the Home Secretary the clue to why the dancing in the streets at the introduction of this Bill was somewhat restrained. We are discussing the circumstances in which we prosecute people for revealing information. Any question of an obligation on the Government to make information available is not even part of the debate, because it is not part of the Home Secretary's proposals.
In my usual conciliatory way I should like at least to start by advancing some propositions which may meet with the approval of the whole House. Since it is Christmas, I suggest a party game. Who said:Publicity is the … most effective check against any arbitrary action."?—[Official Report, 5 February 1960; Vol. 616, c. 1351.]Was it John Milton, Duncan Campbell, Esther Rantzen, Clive Ponting or Peter Wright? The answer is that it was not any of them. It was said originally by Franks, but it was quoted with approval by an honourable Member of this House on 5 February 1972 when introducing a private Member's Bill. She was then simply the hon. Member for Finchley (Mrs. Thatcher).
§ Mr. Archer
I think that some of my hon. Friends might have guessed. Admittedly, that hon. Lady was dealing with local councils and she was no more enamoured of them then than now, but I suspect that she might have said the same about the state, because at that time, like Louis XIV, she had not become the state.
§ Mr. Jonathan Sayeed (Bristol, East)
The right hon. and learned Gentleman said 1972, but I think he means 1960.
§ Mr. Archer
I meant 1960. I am grateful to the hon. Gentleman for correcting me. The lady in question was then the hon. Member for Finchley, not the right hon. Lady.
I never expected to hear myself say, "I agree with the right hon. Lady." Honesty compels me to declare, however, that in this instance I do agree with her, even though she no longer agrees with herself.
Perhaps there are propositions that will gain general acceptance in the House. For example, information is the key to high standards in public administration; there is no more effective inducement to high standards than the knowledge that achievements and failures will become known; information is the key to representative democracy; there can be a choice only for those who know what the options are; the electorate can pass judgments on Governments only if it knows what Governments are doing. I would think that those propositions would be met with general agreement.
Equally, I think that there is general agreement that there must be some restrictions on the right of the public 483 to have information. For example, there are the interests of security, crime prevention and other matters that are set out in the Bill, as well as subjects which do not relate to the Bill. There is the right of individuals to a deserved reputation. There are matters of copyright and of obscenity. The European convention on human rights lists some of the instances where restrictions are necesary in the interests of a democratic society. I fear, however, that those are not the only considerations that induce administrations to attempt to conceal information.
We cannot gauge the state of public information in the United Kingdom by reading section 2 of the Official Secrets Act 1911 or even the statute book as a whole. One would expect the Prime Minister's assertion to gain general acceptance in a country where, until this century, those who were persecuted in their own countries came to settle and to find refuge, because it was within the United Kingdom that they were free to say and to write what they chose. Yet to discover the hygiene conditions within meat factories, it was necessary for the investigator to go to the United States, to which the factories exported, to invoke the Freedom of Information Act in that country and to read the reports which inspectors in the United States had prepared on the British meat factories. This is a country where only a series of private Members' Bills over the past two or three years have brought us to a position which is somewhere near that which prevails in other countries, not one that is in advance of them.
As I have said, we cannot gauge the state of information in this country by reading the only legislation in the statute book. Perhaps we suffer from the fact that British bureaucracy is one of the oldest and most established bureaucracies in the world. Its culture is one of the most deeply entrenched, with all the advantages and disadvantages which that entails. One of the disadvantages is the collegiate sense of identity and of superiority which comes from sharing secrets. It is the binding mechanism of a priesthood or of a freemasonry. It is the source of that sense of loyalty to the machine which extends beyond loyalty to the community, which has elevated the ability to keep secrets to the greatest of all virtues.
The evidence given to the Franks committee included a quotation from a permanent secretary to the Treasury of 1873, which read:The unauthorised use of official information is the worstfault that a civil servant can commit. It is on the same footing as cowardice by a soldier.It is against that background that we debate the Bill. Section 2 of the 1911 Act has stood for years as a symbol of excessive, all-embracing secrecy for the sake of secrecy. It sprang from the paranoia of 1911, and it has subsequently been protected by the mentality that is portrayed so perceptively in "Yes, Prime Minister".
Opposition Members should welcome the final dispatch of section 2. We should commend the Government for taking such action. We have few enough opportunities to commend the Government, and we must not be ungenerous when they occur. But if we are to disturb the sleeping dog to which my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) and the right hon. Member for Old Bexley and Sidcup referred—the sleeping dog that does not wake very often, and only in a restricted way—we are surely entitled to examine what the Home Secretary proposes to put in its place. If the Bill, when enacted, remains on the statute book for as long as its predecessor, it had better be an improvement. The 484 Home Secretary must not be surprised that the Bill has been hailed as a substitute for a freedom of information Act.
It is in the interests of time that I shall concern myself only with the absence from the Bill of a public interest defence, on the lines of that included in the Bill presented by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). The Home Secretary does not provide a substitute for that defence when he introduces the damaging disclosure test. As my right hon. Friend the Member for Sparkbrook said—this was taken up by the right hon. Member for Old Bexley and Sidcup—the prosecution is entitled to succeed on the damaging disclosure test if it can show any damage that follows from the disclosure. The public interest test introduces a balancing of the advantages and disadvantages that flow from the disclosure.
I am bound to ask what our reaction should be when a normally loyal and discreet official says that the arguments of security and confidentiality are being used, or abused, to conceal something that should be challenged, something about which the public should know and something on which they are entitled to pass judgment. What is the position if the official says, "My conscience tells me that I can no longer be party to the deception"? If any Conservative Member tells us that he can envisage no circumstances in which he would feel that dilemma, he would be more at home in some Orwellian nightmare than in a free society.
How far should a political community recognise the dilemma? I do not seek to argue that we can afford absolute licence for the individual conscience. I accept that, if any of us were permitted to do whatever our consciences dictated, it would be impossible for us all to remain on one planet. That is not what we are being asked to consider. I imagine that it will be said that decisions of the sort that I have postulated should cost something. As Nye Bevan once said, one cannot be a martyr without being prepared to wear a martyr's crown.
But understanding and tolerance are political virtues. A healthy political community should be able to accommodate a genuine dilemma in which even a decent and loyal individual—indeed, especially a decent and loyal individual—may find himself. I make a suggestion, in the hope that as a result we may find some common ground. I have no authority to speak on behalf of any of my right hon. and hon. Friends, and I do not know whether they will agree with me—I make it clear that I am not trying to draft a provision—but could we not say that a jury should be empowered to acquit if it found the following three factors: first, that the accused was motivated by a genuine conscientious conviction; secondly, that he tried so far as possible to rectify the position within the system; thirdly, that on balance the public interest was better served by disclosure than by silent acquiesence?
§ Mr. Greg Knight (Derby, North)
Will the right hon. and learned Gentleman tell us in what other area of criminal law motive is a defence?
§ Mr. Archer
I could list at least 20 offences where motive is a defence. Motive is one of the matters frequently considered by the courts in the context of intention. Juries have no difficulty in considering it. The philosophy underlying our criminal law is that there should be no guilt 485 without a guilty mind. I am prepared to argue about this in Committee with the hon. Gentleman. It is not a novel concept.
I should have thought the hon. Gentleman would go along with me in erecting two hurdles—one subjective and the other objective. I can well imagine that some of my friends in the NCCL might not thank me for doing that. They might say that it places the individual conscience in mercy to popular opinion. I have no doubt that some Conservative Members will say it is the thin edge of an anarchist wedge, but I should have thought that the hon. Member for Derby, North (Mr. Knight) and the Minister would have agreed that this was an attempt to find some middle ground.
It may be said that such a matter should not be left to a jury; as I understood it, the Secretary of State said something like that. That surprises me, because every day of the week juries decide on concepts that are broadly of this type. As the right hon. Member for Old Bexley and Sidcup pointed out, juries have been deciding matters similar to this in the context of section 2. On the whole, juries have a better record of recognising the occasional conflict between liberty and order than politicians.
This is not the only problem raised by the Bill, but time, as always in this Chamber, imposes its own restrictions on free speech—
§ Mr. Kenneth Hind (Lancashire, West)
Does the right hon. and learned Gentleman agree that one major problem with the public interest defence is that a defendant can agree that he has caused positive harm to the national interest, but claim that he has done so in the public interest? He may argue that the harm he has done should be considered in the light of the good that he has achieved. However, if positive harm is done to the public interest, the public interest is not being served.
§ Mr. Archer
The difference between the two tests is that, with the public interest test, it is possible to balance whether, on the whole, the public has benefited from a disclosure. The positive harm test does not permit a jury to take that into account—
§ Mr. Archer
I am sure the hon. and learned Gentleman will make his own speech later.
We all know of cases in which juries have been directed that they cannot take such a judgment into account. Occasionally, they break loose and do not follow the judge's direction, but it is unsatisfactory for a jury to have to disregard a judge's direction in order to effect justice—
§ Mr. Archer
I am sure the hon. and learned Gentleman will forgive me; I have spoken for long enough.
I urge the Minister to reflect that, if secrecy is sometimes necessary to protect our way of life, it is the cure that may well be worse than the disease—it may provide a greater threat to the way of life it is intended to protect.
§ Mr. Ray Whitney (Wycombe)
The right hon. and learned Member for Warley, West (Mr. Archer) underestimates the difficulty in his proposition about the public interest defence. Even by his second criterion—he is a lawyer, I am not—Clive Ponting would have been vulnerable to being found guilty, as he did not exercise all the options available to him through the normal channels to express his concerns.
I add my congratulations to my right hon. Friend the Home Secretary on bringing to the House a Bill for which the House and country have waited for so long. We all know how unusable and dangerous the Official Secrets Act 1911 has been, but we all are aware of the difficulties that Government's of both complexions have encountered. Finally, the nettle has been grasped. Hon. Members on both sides of the House should congratulate the Government on doing that.
Of course, the Bill upsets some people—I shall avoid calling them the obfuscatory: let us say, the perpetrators—who take advantage of the sheer unusability of the 1911 Act. The prospect of having an Act that will be usable causes anxiety in some quarters, but the majority of people in the country very much welcome it.
It is important to understand the world in which we live and the sort of information that needs to be kept secret. Lip service is paid to this, and then we move quickly on to the mass of information for which the people are allegedly hungry and thirsty and without which they will not be satisfied. This hunger and thirst may exist more in the minds of politicians and journalists than among our constituents. However, let us accept that it exists and that, as my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) pointed out, there is now a vast mass of information that was not available before. When it is enacted, this Bill will release huge amounts of information into the public domain which now exist in a grey area. But there remains a crucial area that must be protected, and I think that the Bill does that.
My interest in the public interest defence arises from my experience as a member of Her Majesty's diplomatic service. I recall with wry amusement the sanctification of Mr. Clive Ponting. He has now been enrolled as a member of the Social Democratic party. It is unfortunate that the right hon. Member for Plymouth, Devonport (Dr. Owen) is not with us today. He was Foreign Secretary when I was the head of the Foreign Office Department. On many occasions items of information became available to me which I could have done a Ponting with. I could perfectly well have put them in plain brown envelopes and sent them to people who are now my hon. Friends. It would not have occurred to me to do so. Had I done so, the right hon. Member for Devonport, who now welcomes Mr. Ponting with acclamation into his party, would have been rightly outraged and would have launched proceedings under the 1911 Act.
It is important to recognise that Mr. Ponting did not take the opportunities that he had to pursue his concerns through the channels that then existed which, as a result of this legislation, will be greatly enhanced. When challenged with disclosure, he denied it. He took every chance to conceal the origin of the documents and, in the end, passed them not to his Member of Parliament, or to a Privy Councillor, or to the Select Committee on Foreign Affairs, but to the hon. Member for Linlithgow (Mr. Dalyell), 487 whose rather special—one might even say idiosyncratic—interest in the affair was well known. That was clearly a politically motivated act. So any defence of the public interest concept mounted on the basis of the Ponting story immediately shows the weakness of the proposition—
§ Mr. Robin Corbett (Birmingham, Erdington)
I hope that the hon. Gentleman will reflect on the bitter personal attack that he has made on Mr. Ponting in circumstances in which the latter has no right of reply. The hon. Gentleman should also put the saga in context. Mr. Ponting was charged under the 1911 Act and acquitted by his peers.
§ Mr. Whitney
I am well aware of that, and everything that I have said about Ponting I have said in writing before. It is not subject to challenge; it is absolute fact. He was acquitted by his peers, and that shows the inefficacy of the 1911 Act. We need a new one. That is not to say that there is not a propensity for excessive secrecy in the Civil Service. It is a challenge to all Ministers to ensure that that propensity is not pursued to dangerous lengths. That cannot be achieved by legislation on secrecy. The freedom of information legislation in the United States is greatly open to challenge as an effective means of achieving that.
§ Mr. Aitken
My hon. Friend has hit rather hard and successfully the Ponting long hop bowled by the Opposition on the public interest defence. However, he completely ignored and failed to play the much more devastating ball bowled by, among others, my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) on the public interest defence as it applied in the non-prosecution of cases such as that of Mr. Duncan Sandys and the civil servants who briefed Sir Winston Churchill before the second world war about the lack of preparedness of our anti-aircraft defences. My hon. Friend ignores the fact that the public interest defence has helped the free flow of responsible information. It should not be narrowed down to the debatable case of Mr. Ponting.
§ Mr. Whitney
My hon. Friend takes us to a much more profitable area. However, we have to draw a line somewhere and, as my right hon. Friend the Member for Old Bexley and Sidcup says, we must look at this area in Committee. In general, the Government proposals have the right balance and the structures that are about to be put in place will take account of that. I say at the risk of appearing immodest that if a civil servant feels strongly about an issue he may as well do what I did and leave the Civil Service and enter politics. That option is open to a civil servant.
Some Opposition Members have shown wry amusement about prior publication. They take the view that if people in Moscow know about something why should we not know about it. That fails to understand the nature of the attack on free societies and how that attack has developed in recent years. Let us be clear: the attack continues. While we continue to wish Mr. Gorbachev well about the words that he expresses and hope that they will be translated into reality in terms of improving conditions in the Soviet Union and reducing the pressures of the arms race, the reality is that free societies are still under attack.
My hon. Friend the Member for Thanet, South (Mr. Aitken) quoted from a United States' statement about that the other day and a Home Office Minister also emphasised that there is no evidence at all that the attack on Western 488 societies has let up in any way. We must understand the nature of that attack. One element of it is the degree of political warfare that relies precisely on the mechanism of prior publication. It is not a question of people in Moscow or anywhere else knowing something before we do and using it to, at the very least, discomfort Western societies.
I shall give the House one example. A foreign magazine published in 1973 the name of the then head of the Security Service, a service which of course did not exist, and neither did the man. Not only was that man's name published in the foreign magazine, but a large photograph of him was published in the British press on the basis of prior publication. The publication of that information endangered the life of the head of the intelligence service and increased the vulnerability of servants of the Crown. The danger was not from the Russians but from a terrorist or some nutter. We all knew where the officer lived and where he dined, and the publication of such information exposes the members of the security services to risk.
§ Mr. Buchan
Will the hon. Gentleman tell us the name and address and describe the behaviour of the director of the CIA in America?
§ Mr. Whitney
The hon. Member for Paisley, South (Mr. Buchan) will know that the presence in this country of Mr. Philip Agee was rightly terminated by the Home Secretary in a Labour Government. Mr. Agee was expelled from Britain. His disclosures resulted in the assassination of some CIA officers. Therefore, the danger exists and it arises because of the threat of prior publication. These two areas cause concern to the House, so I hope that hon. Members will take full account of the problems of public interest and the dangers of prior publication.
§ Mr. Heath
Is my hon. Friend aware that the head of the CIA and the head of the FBI have both taken part in television broadcasts with me in the United States? Everybody knows their names and their faces and knows their views. We have had discussions, we were cheered by the audience and seen by millions who came to watch me.
§ Mr. Whitney
My right hon. Friend will not be surprised to know that I am well aware of that. I, too, have participated in similar discussions. My right hon. Friend must not have heard me when I said that it was the names of CIA officers in the field who were revealed and those officers were exposed. I know about the practice in the United States, but it was not the practice in this country in 1973 to expose the names of the heads of the security and intelligence services. A small obscure magazine published, I think, in Hull and called, would hon. Members believe, Lobster makes a practice of publishing names of gentlemen who are alleged to be members of the security services. That creates danger and I am sure that my right hon. Friend the Member for Old Bexley and Sidcup shares my deep apprehension about that sort of practice being allowed to continue.
I strongly urge the House to take account of the points that I have made and to understand that as well as living in a world of information we live in a world of dangers and threats. I draw to the attention of the House a statement by the right hon. Member for Leeds, East (Mr. Healey) 489 who was well known last week for playing Father Christmas in Epping and who was the Foreign Secretary in a Labour Government. He said:I get no letters whatever about the Official Secrets Act or any of these issues. I think the level of public interest is pretty low. …
§ Mr. Whitney
The hon. Gentleman says that times have changed, but the right hon. Member for Leeds, East said that a few months ago and that remains the position.
§ Mr. Robert Maclennan (Caithness and Sutherland)
No one in the House—or, indeed, in the country at large—doubts that the Official Secrets Act 1911 required amendment, but the circumstances in which the Government are bringing forward the Bill after nine years of deliberation are causing many observers to view its purpose and provisions with the greatest suspicion. The Bill is not brought forward in the context of careful deliberation by the Government on how best to strengthen and secure the democratic right of the citizen to receive as well as to impart information. We have extremely few laws which positively encourage information flows. Secrecy is the curse of British democracy. However, it is upon the availability of official information that a democracy depends, because it enables the citizen to participate effectively in the making and administration of laws and policy.
Although Britain has subscribed to article 10 of the European convention on human rights, which guarantees freedom of expression as a fundamental right, we cannot rely upon any specific legislation which ensures that that right is powerfully protected by the judicial system. We need legislation to provide a firm basis of principle to safeguard the conflicting interests of confidentiality, privacy and accessibility of information. The legislation should ensure that in the last resort the right to obtain information is not left to the discretion of a Minister, a civil servant or a judge, but depends upon the law as determined by Parliament, which can be enforced by the courts.
That is why the Democrats strongly advocate a freedom of information Act, not merely to limit the scope of the protection of information by the criminal law but to encourage a pluralistic and participatory democracy. That, after all, has been the approach pursued in many other countries with common law systems like our own—in Canada, Australia and the United States. In the absence of such a measure which could curb the uncontrolled disćretion of the public authorities to withhold information, the public are bound to look with a jaundiced eye on a Bill which seems designed more to tighten control over certain categories of information than to advance openness of government.
It seems that the Government have finally decided to legislate primarily because of the Ponting and "Spycatcher" cases. The Ponting case demonstrated that at least a British jury was not prepared to accept that it could not decide whether publication of official information was in the public interest. The Ponting jury appeared to have followed closely the reasoning of the civil 490 law of confidence which recognises that, exceptionally, the public interest can justify a disclosure, even of highly confidential information.
Years after section 2 of the 1911 Act was condemned by the Franks committee, the Government have been forced to recognise that it is no longer a useful instrument to protect information. "Spycatcher", after an expensive and humiliating tour of the courts of the world, ultimately determined that the reportage of what was already in the public domain could not be injuncted. The Bill appears to have been prompted by those two judicial defeats for the Government more than by any regard for the modernisation of the law and the freeing of information.
It must be made clear that, despite what the Home Secretary has said, the Bill does nothing to increase public access to information. It does nothing to reverse the prevailing assumption that information collected on behalf of the public—by public servants and at public expense—should be kept secret. It does nothing to place on the authorities the responsibility for justifying that secrecy. Instead, it continues to charge the public with responsibility to justify access. It perpetuates an undesirable inconsistency between the criminal and civil law of confidentiality, making the obligations to maintain confidentiality more strictly enforceable by criminal penalty than they are by civil remedies, as the civil law of confidence provides that it is a defence of an action of breach that that breach was justified in the public interest.
The scope of section 2 of the 1911 Act is ludicrously wide. It was certainly time to confine tightly the ambit of the criminal law to those matters where disclosure would causeserious injury to the interests of the nation",as the Franks committee put it. It is to be noted that, in abandoning the criminal law in wide areas of official information, the Government propose to tighten the sanctions of the Civil Service discipline code. The Home Secretary did not deny that point when he alluded to these procedures. Although it may be true that the Government are not seeking new powers of injunction, as the Home Secretary said, there is no sign that they wish to abandon their considerable powers to seek injunctions under the civil law to prevent unauthorised information from being published or broadcast. Furthermore, we have heard nothing from the Home Secretary today or in earlier debates about the many statutes—about 100 of them—which make it a specific offence to reveal specific types of information. There is much still to be done to rationalise the law, even within the terms used by the Home Secretary.
I do not argue that there are not certain limited classes of information on which it is appropriate to invoke the sanction of the criminal law, but I fear that by drawing too widely the categories of protected information—those categories in which disclosure constitutes an absolute offence and those in which disclosure is an offence if it is likely to cause harm—the Government risk perpetuating uncertainty in the operation of the law. If there is obfuscation on this, it flows from the language of the Bill, which has already been subjected to considerable scrutiny by the press and those most likely to feel its impact, who undoubtedly find its provisions extremely obscure.
A further matter which has not been raised in the debate is that the Bill appears to invite the further attention of the European Court of Human Rights. The careful and persuasive arguments advanced in the unanimous report of Lord Deedes' committee, set up by 491 Justice to consider the Bill, strongly show that the Bill is defective in that the limitations that it imposes on freedom of expression are not those that would be regarded as "necessary", as defined in the Handyside and Sunday Times cases. In particular, the Deedes committee argued that the requirement only of "damage"—and not of "serious damage", as the Franks committee recommended—cannot constitute such a "pressing need" as to justify criminal sanctions in respect of so fundamental a right as freedom of information.
The Deedes committee further argued that it would be even more difficult to justify limiting that freedom in categories which, under the Bill, would give rise to criminal liability, even though no damage had been proved—the categories relating to security and intelligence, interception of communications pursuant to a warrant, and action authorised by warrant under the Security Service Bill 1988. I hope that the Minister, who has just returned, will answer the case made so powerfully by that unanimous report—that the Bill will offend against article 10 of the European convention on human rights. Will the hon. Gentleman answer the arguments which that report so cogently expressed?
It is highly imprudent of the Government, who hitherto have tried to square their legislation with our international obligations under the European convention, to embark upon a Bill of such doubtful conformity with international law. The "Spycatcher" case brought the Government into ridicule, principally because they did not take proper account of the effect of prior publication. The Government have not tackled that problem effectively in the Bill. It appears that, where the offences are absolute under the Bill, the repetition of previously published information will be a further new offence. The position is less clear where there is a requirement that disclosure is likely to cause harm. In those cases it is apparently intended that matters should be left to the determination of the jury, but I am not entirely clear that that is so.
The provision that in certain cases any disclosure would be an offence, regardless of harm, is far too widely drawn. In particular, clause 3(3), which makes it an offence to publish a leak of any document from another country or international body regardless of the subject matter, is a patent absurdity. I do not see how the Government can begin to defend a proposal that it should be a crime to publish leaks of European Community documents which emanate from Whitehall about, say, pollution, tax reforms or information received from the Food and Agriculture Organisation on nutritional standards. I do not think that the Home Secretary answered that point by talking about the additional requirement of harm.
A further major criticism of the absolute offences is that they depart from the Franks committee's recommendation, particularly in respect of the interception of communications and security and intelligence matters, that they should be offences only if they causeserious injury to the interests of the nation".The same objection may be made to those categories of disclosure where the Bill requires some test of damage. The result of the weak tests of "prejudicing" and of "putting in jeopardy" the national interest is greatly to extend the categories of protected information beyond what the Government proposed in the Protection of Official Information Bill in 1979.
Those are all matters to which the House must return in detail in Committee. I certainly support the call of the 492 right hon. Member for Old Bexley and Sidcup (Mr. Heath) for a long and careful Committee stage. We are dealing with matters of national security and how best to safeguard them. This is possibly a matter of constitutional importance and it is certainly a matter of high security importance. It would be inappropriate for the debate to be in any way truncated when the Bill is of such great significance.
The overwhelming reason why we shall vote against the Bill is that the Government are adamantly opposed to incorporating in the Bill any form of public interest defence. That defence has long been accepted under the civil law of confidence. In the "Spycatcher" case, the House of Lords described the justification of that defence with great clarity. Lord Goff of Chieveley put it in this way:It is incumbent upon the Crown in order to restrain disclosure of Government secrets, not only to show that the information is confidential, but also to show that it is in the public interest that it should not be published … although in the case of private citizens there is a public interest that confidential information should as such be protected, in the case of Government secrets, the mere fact of confidentiality does not alone support such a conclusion, because in a free society there is a continuing public interest that the workings of Government should be open to scrutiny and criticism." Although Lord Goff was speaking of the civil law, I see no reason why similar considerations should not operate in criminal law.At an earlier stage of that case, Sir John Donaldson, the Master of the Rolls, said:The press has a legitimate role in disclosing scandals in government. An open democratic society requires that that be so … the ability of the press freely to report allegations of scandal in government is one of the bulwarks of our democratic society.
The public interest defence is what will enable crime, abuse of power and scandal to be exposed. Without it, important areas of public administration will remain beyond the purview of Parliament and the press. To accept the public interest defence is not—as the Government wish to imply—to permit leakers, as a matter of subjective judgment, to determine where the public interest lies. That is for the jury.
The Bill promoted by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) showed how the procedural rquirements of the defence could ensure that reasonable steps must first be taken to draw misconduct to the attention of the appropriate authorities before the defence could be invoked. Without such a defence, the Bill will simply ensure that in this country the net of secrecy is cast over wide areas of public administration only to be pulled aside when Ministers, in their discretion, decide that it is right to do so. It is not hard to understand that some Ministers seek to preserve that prerogative. It would be harder to understand the House of Commons being their accomplice. I hope, therefore, that the House will resolve to reject the Bill.
§ Mr. Julian Amery (Brighton, Pavilion)
I am in some doubt as to whether I can support my right hon. Friends in the Lobby this evening. I hope that my right hon. Friend the Minister will listen to what I have to say. I am no crusader for open government when it comes to the secret services. By their nature, some of their operations, both abroad and at home, must be conducted by means which would be regarded as illegal abroad and at home, unless 493 covered by warrant. I am clear about the fact that one cannot put the decisions about such work into commission.
My right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) appeared to come down in favour of the American system. I believe that anyone who has read Mr. Woodward's book, "The Veil" will see that the conduct of American intelligence and covert operations has been completely paralysed by Congress attempting to exercise an overview of those measures. I do not believe either that there is anything to be said for a retrospective supervision by Privy Councillors or judges. I yield to no one in my respect for Privy Councillors, but I consider that only one or two of them would be competent in the matter. Of course, it would be quite wrong of me to put myself forward in such a context!
The failures of the secret services are broadcast, but, of course, their successes are unsung, which is as it should be. Supervision would not have altered the balance except that it might have restrained initiatives and led to omission. I believe that my right hon. Friends on the Front Bench share that general approach. My anxiety is that their recent rigid interpretation of the obligation of lifelong confidentiality may lead to exactly the opposite result to what they want. I shall not go into detail, but my experience is that it has already damaged morale in the services concerned. It has certainly injured the reputation of those services. If that is persisted in, it may lead to the demand for extra-Executive control, which has happened already in the Security Service in the shape of the Bill that was before the House last week. I am concerned that that will not happen for the secret intelligence service.
The obligation of lifelong confidentiality is, of course, right. Those who join the service must take a Trappist vow, but it must be interpreted with some flexibility. There is a human aspect to it. A man—or, in these modern times, a woman—who joins the service has, perhaps, a lifelong career, but must never explain to his friends, his wife, or his children what he is doing. Nobody knows when he goes to the office in the morning what it is about. He can never talk about it when he comes home. Nobody knows whether he has been a success or whether he has been promoted in rank.
Therefore, it is not unreasonable that, when he retires after a lifelong career—he may only have been in part-time service or loosely connected with it, as I have been—he would want to write something about it. So long as what he writes is not prejudicial to the safety of other members of the service, the reputation of the service or the national interest, he should be allowed to do so.
The same is true of the service itself. The British secret services have been held in high esteem all over the world by those who are interested in such matters. How do we maintain that esteem? Of course, partly by secrecy, but partly by allowing the different successes to be known after an appropriate time.
New recruits to the service must also be considered. As a young member of one of those services, I profited a great deal from the memoirs of Paul Dukes and Compton Mackenzie and others, who had been through the mill. What they had to say taught me a lot and in a sense was an inspiration.
494 I believe that all those matters used to be recognised by the secret services. There was a perfectly good convention that, if one wanted to write, one submitted one's text to the proper authorities and they discussed it with one. If they thought that there was a paragraph or a sentence or, perhaps, names mentioned that would be better omitted, one was told, and most of those who submitted their texts would have agreed. I submitted my books twice and very little censorship was exercised upon them.
I raised this issue when my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) had a debate on this matter earlier in the year. I have also raised it since in correspondence with my right hon. Friend the Home Secretary, who wrote to me to say:I am happy to confirm, … that it is and will remain possible for members and former members of those services to publish with authority, without contravening the criminal law. Applications for authority will continue to be received and carefully considered.I thought that that was reassuring and, as my daughter was getting married on the day of the debate on the Security Service White Paper, I did not join in it nor did I raise any further questions. On reflection, however, I must ask whether my right hon. Friend's statement is reassuring enough. What will be the criterion of reasonable authorisation?
The precedents are not encouraging. I wish to refer to two books that have been commissioned by the Cabinet Office—I am sure that the Minister will know all about them. One is the "History of Deception Strategy in World War II" by Sir Michael Howard, until recently the Regius professor of history at Oxford. That book was commissioned and has been paid for, but, although Sir Michael was assured of its publication, it has been vetoed. However, I understand that the services concerned were happy about the book.
The other similar book is by Mr. Anthony Simpkins, who has written about some of the wartime operations of the Special Operations Executive and M15. Unless I am mistaken, that book was also commissioned by the Cabinet Office. It had been vetted, and no objections had been raised. The publication of those books has been stopped on a narrow interpretation of the lifelong obligation to confidentiality.
I now come to the Wright case. It is painful for any Government supporter to discuss this. In my experience, it is an example of unparalleled ineptitude in the conduct of administrative affairs by any Administration of which I have known, or indeed read. Had Graham Greene or Evelyn Waugh written a satire about it, it would have been panned by the reviewers as far-fetched.
There was never a chance of success even if the Australian courts had found in our favour, which was extremely unlikely. Publication would have taken place in the United States or elsewhere. Besides, there was no serious reason to deny publication or to deny its import into this country. Looking back, I can see that there was a logic in stopping "Lady Chatterley's Lover" being imported into this country. It might have put the wrong ideas into the heads of wives of landowners or into the heads of their gamekeepers.
Who could have been subverted or who could have suffered from the import of "Spycatcher"? Most of the information had already been made available by Harry Chapman Pincher and, as Mr. Wright has subsequently admitted, a good deal of the book was invented. 495 I do not want to rub the Government's nose in this more than I can help, but my argument is based on the convention that I have described. The normal course of events is to submit one's book and then have it discussed. My understanding is that Mr. Turnbull, Mr. Wright's lawyer, and Heinemann, the publishers, submitted the text in April 1986 to the authorities. It was rejected and any question of negotiation was rejected by the Treasury Solicitor—I think it was Sir John Bailey—on the ground that the Government were concerned not with what was in the text, but simply with the principle of lifelong confidentiality. The Government refused to discuss it and simply said "No, you cannot do it". Is that true? That is what Mr. Turnbull has told me and what he has published—I cannot vouch for that information, but I hope that the Minister will when he replies.
If what Mr. Turnbull said is true, I think that we have done something of a wrong to Mr. Wright. Precedent would have entitled him to expect that he could have sumitted his text and argued about it. His reputation has been blackened. I believe that one of the Law Lords compared him to Philby, although there is nothing in the book that is, in any sense, treasonable. Of course, he has ben enriched beyond measure. He would have never made £25,000 out of the book if the Government had let it go. If they had paid him £50,000 to stop its publication, he would have done well. But we have blackened his reputation, and we may have done him a considerable wrong.
Then there is the case of Mr. Cavendish. He and his publishers have told me that he submitted his text and that it was rejected on the same grounds. I do not want to press my hon. Friend about this case because I believe that it is still sub judice. I will only note that two thirds of the book can be freely published in England, but none of it in Scotland. That is a rather curious state of affairs.
In the light of those cases and referring back to my right hon. Friend's assurance in his letter to me, I must ask the Minister to spell out the terms under which publication would be reasonably authorised. I hope the Minister would say that authorisation would not be withheld, subject to the excision of anything that endangered personnel, endangered existing or potential operations, endangered technology, or could cause grave embarrassment to the department or service concerned. My hon. Friend should also add that, in event of disagreement with the author, there would be some provision for appeal. I am not suggesting a public or judicial appeal, but appeal to an ombudsman. If I understand the matter correctly, that person is now intended to deal with questions of conscience.
If the Minister cannot give me such information tonight, I will find it hard to support my right hon. Friend in the Lobby, and I suppose that some of us would have to consider drafting an amendment expressing the conditions that I have outlined. I hope that we will not have to do that, because that would be a great bore for the Government and a great bore for those of us who are concerned about this.
This important matter cannot be ducked because a number of books are in the pipeline at the moment. Some I know about, some I do not. Given that the recess is coming, before the Bill reaches the Committee, it would be nice to know that clearance had been given or not unreasonably withheld to those books that are now "on hold" until this debate has taken place.
496 This is not the only issue in the debate. The hon. Member for Caithness and Sutherland (Mr. Maclennan) raised a broader scheme of issues to which the House must give attention.
§ Mr. Aitken
Before my right hon. Friend leaves the crucial argument that he has just made, is he aware that he has put the Government on a devastating spot? An answer is vital. In addition to the cases that he has cited, the entire American system, which works extremely effectively, follows the blueprint that my right hon. Friend has mentioned, but with one important addition. Under the American system, anyone who does break the rule of not getting proper clearance can be hit far harder and far more effectively than we were ever able to begin to hit Mr. Wright.
§ Mr. Amery
I am grateful to my hon. Friend. I had not thought that I had put a devastating bomb under the Government Front Bench, but if I have, so much the better, and I hope that my right hon. and hon. Friends on the Front Bench will have interpreted that in the way that my hon. Friend has expressed.
I apologise if I have detained the House too long on this one aspect. However, I have been involved with these services personally in war and afterwards. I was also responsible at the old Colonial Office and at the Foreign and Commonwealth Office for some supervision of those services. Britain has been held to be pre-eminent in those services in the past. As hon. Members realise, the services depend on individuals, often with idiosyncratic temperaments. To put it in a coarse way, spies are not civil servants in the ordinary sense, and they must be handled with sensitivity. They are not run of the mill. Failure to recognise that will call down on the services the very thing that I—and I think the Government—want to avoid, namely extra-Executive control of their operations, whether that be through Privy Councillors or judges. If that happened the Government would have put at risk two vital arms of our national safety.
§ Mr. Norman Buchan (Paisley, South)
It is unusual for me to participate in a debate on official secrecy. For a good deal of my life I have been concerned with secrecy which comes from censorship of printed matter, in broadcasting or newspapers. I have been less concerned with the Official Secrets Act 1911. However, over the past few years I have taken an interest in what has happened in this country and the crucial changes that have taken place arising from the "Spycatcher" case.
The right hon. Member for Brighton, Pavilion (Mr. Amery) referred to the harm which might or might not be done through the importation of "Spycatcher" and compared it with "Lady Chatterley's Lover", which was also banned from entering this country. I remember that a friend of mine discovered a copy of "Lady Chatterley's Lover" carefully hidden away in his young son's wardrobe. Unfortunately, his young son had hidden the expurgated edition. My friend was not sure whether he should give his son the unexpurgated edition. The point is interesting because it shows that the apparatus and attitude of secrecy and censorship begins not only in order to prevent punishment but to prevent things from happening. The 497 function of censorship is not to punish—it is to prevent. That poor young soul hiding the expurgated edition is a typical example of that.
If we applied the test of public interest to the decision to pursue "Spycatcher" over two years and asked whether it benefited or harmed our nation, we all know what the answer would be. It is absurd that the Government were not even fearful of that final fear of Governments which is to appear ridiculous because they went ahead with that case.
I had a telephone call from my brother-in-law in Toronto a couple of years ago. He said that he was going to arrive in Prestwick the following Tuesday week because he had a music engagement in England. He asked me if I could meet him at Prestwick. I said, "Certainly. Oh, by the way, can you get me something?" He asked what and I told him I wanted a book. When he asked me which one, I said "Spycatcher". He said, "Of course—I want to get a copy myself and it's on sale in the centre of Toronto." He arrived with a copy of "Spycatcher". He had no problem entering the country and walked in without interference, carrying the book under his arm. The same week, I tried to get an immigrant into this country from India without a copy of "Spycatcher". His face was brown and he was not allowed in—yet my brother-in-law walked in with a banned book. That nonsense is spreading, has increased and ought to be diminished.
One of the most worrying aspects about all this is that the Home Secretary, whom we had previously regarded as a liberal, described the White Paper in the following terms:This is not a freedom of information White Paper"—just in case we thought that it was—and we do not propose to introduce a freedom of information Bill."—[Official Report, 22 July 1988; Vol. 137, c. 1419.]He was trying to take credit for not introducing a White Paper or a Bill with freedom of information aspects. In fact, he was taking credit for not introducing a freedom of information Bill. That is an extraordinary position for an old liberal to take.
We have seen an extension of censorship this year, although I thought that last year was bad enough in that respect. For most hon. Members today, the main concern is Government secrecy. I am interested in a much wider area, of which secrecy is a part and which is helping to create the atmosphere for the other part. Over the past month, we have seen the introduction of a ban in broadcasting of six named organisations. The effect of that will not be to bring people to trial but to inhibit the directors, writers, producers and actors in much the same way as section 28 of the Local Government Act 1988 was designed not to punish, but to prevent and to inhibit.
Also this month a Bill was introduced to make the Prevention of Terrorism (Temporary Provisions) Act 1984 permanent. A Bill was also introduced to make councillors take the oath. The Security Service Bill was introduced and will make legal what was hitherto illegal—that is, burgling and bugging. Now we have the Official Secrets Bill. We hoped that the Bill would improve things, but it has not. Under the Bill, offences that were previously not absolute will become absolute. If Ponting were to be tried under these provisions, the argument of the public interest could not stand up and Ponting would be found guilty.
498 Most of us find that shift worrying. As a result of the Lords' judgment on "Spycatcher", the British news media were finally allowed to report and comment on the contents of the book. Many people believe that the judgment was reached partly because the horse had already bolted. To be fair, the Lords' judgment was more extensive than that. The judgment stated that the Government would have to show that publication of information would be harmful to the public interest before the courts would order an injunction.
Lord Goff said that English common law recognises that:In a free society, there is a continuing public interest that the working of Government should be open to scrutiny and criticism.Intrinsic to their judgment in freeing "Spycatcher" was the public interest in opening Government to scrutiny and criticism.
Des Wilson wanted to know whether there was any single aspect of information that the public ought to receive and are entitled to receive, and which would be secured for us as a result of the Bill. He wanted to know whether the Bill had brought in any fresh information which would be made known to the public. We must consider the absence of any move forward in that respect in this liberalising Bill.
This country is becoming the most secretive of all Western nations. The Government have inverted requirements. In any democratic country information should be known unless evidence is given why it should not. The assumption behind the Government's thinking is that things should not be known unless the Government exempt them and allow them to be known.
There is an obligation on every United States Government agency to make public information available including opinions and orders, records and proceedings. That obligation was extended to all information, not specifically excluded. The assumption of the right to know is there.
The same thing happens in Canada. The Canadian Access to Information Act states:The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public.It goes on to refer to exemptions. No such assumption exists in our law, and the Government boast about specifically rejecting such an assumption.
A good deal of all that is due to the Prime Minister's lack of intelligence and imagination. I cannot imagine any person, other than someone under the domination of a second-rate and unimaginative mind, accepting such a state of affairs after all that has happened. We face the problem of an inversion of the right to freedom of information and access.
Both the Security Service Bill and the Bill now before us should be considered together, one in relation to the other. We had every right to expect from them increased democratic supervision of MI5. The "Spycatcher" case is important not in itself but because it drew attention to MI5's behaviour. We expected democratic supervision as a result. We are told that a former Prime Minister was the subject of attempted subversion. That is a serious allegation, yet it has never been properly investigated, not even through a private inquiry being undertaken. 499 For the first time, we are framing MI5 in a statutory form without there being public examination of its role or of the demands that we should be making of it. Oversight and supervision of MI5 remains entirely in the hands of Ministers, but they are themselves bound to secrecy.
§ Mr. Rupert Allason (Torbay)
It is intriguing to hear the hon. Gentleman say that oversight of the security services will be limited strictly to Ministers. If the hon. Gentleman reads the Security Service Bill he will find that it provides for the introduction of a commissioner for precisely that purpose.
§ Mr. Buchan
The Security Service Bill makes provision for the appointment of a commissioner but not for a Select Committee or even for a committee of Privy Councillors to supervise the service. The commissioner will report to the Home Secretary and the Prime Minister. No provision is made for the publication annually of matters such as those covered, for example, by the Irangate hearings, because MI5's operational circumstances are not included and are to be ignored.
§ Mr. Allason
The commissioner will publish an annual report, and there will be a complaints tribunal. What more does the hon. Gentleman want?
§ Mr. Buchan
A great deal more than that. I have said what I want. The hon. Gentleman confirms my claim that any aspects of MI5's organisational operations will be ignored. In America, we saw a crucial investigation into the Executive's very recent behaviour before a Congressional committee and under the gaze of television cameras. In Britain, we cannot even have an investigation into the so-called subversion of the Wilson Government. The American Congress undertakes such investigations within weeks or months, and America is the healthier for that.
The secrecy that obsesses the present British Government results in the population of this country knowing nothing, rather than having a right to know. The Government have made legal that which was illegal, without extending control.
That aspect of both Bills includes a provision for dealing with subversion arising from political or industrial action. That stems from a Prime Minister who has described the miners as enemies of the state. In this Official Secrets Bill, which could have liberated information and removed the atmosphere of secrecy, we see an absence of any improvement. Its real purpose is not to punish, but to create an atmosphere of secrecy—a level of confidentiality beyond all reason. We see that happening in Northern Ireland. Quite apart from the Prime Minister's deficiencies, the events of Northern Ireland are creating an atmosphere in which here, too, things can be done which ought not to be permitted.
There are parallels in the private sector. One of the most appalling cases was that of the man who blew the whistle on de la Roche drugs. He was a private individual who thought to himself, "What is happening is iniquitous", but when his revelations were published he suffered as a result. That was persecution by private interests. It is intolerable that there should be the same kind of persecution of the honest whistleblower in public affairs, though we have taken some steps to deal with that situation.
Throughout history, the honest whistleblower has played a very noble role. He has been forced into doing so. 500 He should be given the chance to legitimise his revelations so that there can be a public trial in which the public interest is considered. Some Conservative Members have been so affected by the Government's attitude to secrecy that they cannot even understand the concept that sometimes a person may have access to confidential material which should not be confidential.
Another worrying aspect has been the Government's tendency, until now, to avoid a case coming to trial by using the Official Secrets Act 1911, fearing that honest juries would respect the honest whistleblower and find in his favour. That is what happened in the Ponting case. In my view, the judge clearly directed the jury to find him guilty, saying that there was no defence of public interest, but the jury said, "This judge is talking rubbish—it is right that we should know such things." The jury went against the law to find Ponting innocent because common sense and decency told them that he should be found not guilty. Now that the Government are failing to make prosecutions stick, and now that the public have largely rumbled the Government, the Government are changing the statute and turning to the law of confidentiality so that a law which was intended to deal with commercial situations can be used in public matters.
Allied to my arguments about the public dissemination of information is the Lobby, which is another instrument in the Government's creation of secrecy, enabling the Government to manipulate news. I hope that the blow that the Lobby has received in respect of the Queen and the Russian invitation and other matters will have an effect.
I shall not review the entire Bill, but I agree entirely with the right hon. Member for Old Bexley and Sidcup (Mr. Heath) that the place for detailed examination is in Committee. However, I make again the point that the Bill has not brought the emancipation that we expected, and the opportunity has not been taken to secure control over secrecy. On the contrary, the Bill makes absolute that which was not absolute before. It comes at a time when the press has even less opportunity to investigate matters of public interest.
The United States has its Congressional apparatus for investigation, and we used to be able to claim that in this country at least we had a diffuse press and public service broadcasting which perhaps could remedy certain deficiencies, but that is no longer true. The press is now in the hands of three men—a "tripoly" or triple monopoly. It is dedicated to stories about pop stars, royalty, and so on. It is no longer the investigative press of 20 years ago when we had the iconoclastic Daily Record on the one hand and the views of Lord Beaverbrook in the Daily Express on the other. Still, they printed far more important news on their front pages than they do today.
The modern press is totally ineffective. My concern is that as the Government's apparatus of secrecy is developed, so the apparatus to cope with it by our mass communications will deteriorate. Our public service broadcasting structure is also being destroyed. It is passing into commercial hands—the same hands of Maxwell and Murdoch—who control the mass media and none of whom find it necessary to protect the public interest by disseminating certain information.
Anyone reading Margaret Drabble's article in The Guardian today will understand the depth of feeling among civilised people about what is happening to our country. Recently I spoke to an unlikely informant. He is a Communist, and a journalist who has represented the 501 Italian newspaper Unita in Paris for many years. When he was in Britain recently, he said to me, "Norman I have always regarded Britain as the bourgeois country in excelcis—respectable, orderly, neat and clean. I see dirt, filth and squalor around and I see that your papers have degenerated—we used to send for them." That is the voice of a Communist who sees that we are now incapable of expressing our best liberal position. I am talking about a man who understood something about our civilisation in Britain and who honoured it. We are becoming a sleazy, second-rate country. We have had liberals in Government who now boast that they are not bringing in a Bill on freedom of information. We are facing a major crisis in the combination of inadequate media and a secretive press. Censorship, directly or indirectly, has increased and is increasing—and by God, it ought to be diminished.
§ Mr. Jonathan Sayeed (Bristol, East)
On 5 February 1960, in a maiden speech on the Public Bodies (Admission of the Press to Meetings) Bill, an hon. Member stated:the paramount function of this distinguished House is to safeguard civil liberties rather than to think that administrative convenience should take first place in law."—[Official Report, 5 February 1960; Vol. 616, c. 1357-8.]The Bill before us seeks to replace an Act that makes it illegal to reveal trivia or what is embarrassing to Government with a law that is confined to official information when its unauthorised disclosure would cause unacceptable harm to the public interest. By supporting it, my right hon. Friend the Prime Minister has re-emphasised a conviction that she first stated in her maiden speech.
No one can deny that the Official Secrets Act is a geriatric absurdity which is incapable of functioning correctly. No one can ignore the fact that the Bill removes from criminal jurisdiction a wide range of offences, whole classes of people and a mass of trivia. However, all should accept that, for the security and safety of us all, there are some secrets that need to be kept and some people who need to keep them.
If one unquestioningly accepted some of the comments culled from the press and quoted by the Opposition, especially in the debate on the White Paper, one might be tempted to believe that the Bill had no friends at all. However, I have scanned the pages as well, and I have come up with some rather different reactions from some rather odd sources. In the comment column of The Guardian of 30 June, there is the sentence:Mr. Hurd tries some welcome things.Hugo Young, in the same newspaper on 5 July, talks of my right hon. Friend the Home Secretaryimporting some sanity to the criminal law".The Times of 30 June states:Mr. Douglas Hurd deserves to win a wide measure of praise for the reform of the Official Secrets Act.
§ Mr. Sayeed
I shall come to The Independent in a moment. The Financial Times of 30 June, in an article entitled "A Limited Reform", begins one paragraph with the sentence:Some of it is very good",and goes on to call the measureA tidying up exercise with a slightly liberal bent".502 The Independent of 30 June states:Mr. Hurd has produced ideas which are more liberal than had been anticipated".The Economist of 2 July gave the Bill "two cheers". If one considers the origin of those statements and the media's wish for unrestricted access to almost everything, those guarded endorsements can be construed as grudging praise.
I want to deal with two aspects of the Bill that have particularly exercised hon. Members—that there should be a public interest defence, and that there should be a defence of prior publication. As we know, under current law there is no public interest defence. Under the Bill, the blanket provision will be circumscribed. However, it would be absurd for anyone and everyone to be able to pray in aid a public interest defence on all occasions. We need to understand that the moment when the decision is made about whether a disclosure is in the public interest is not when the court decides on the matter, but when the original disclosure is made. The court merely confirms or rejects that assessment—the harm will have been done.
Hon. Members have, by necessity, to develop a breadth—if not a depth—of vision. Yet we have all come across people who suffer from tunnel vision and who so concentrate on the particular that they fail to develop the span of understanding that is essential to see clearly. I am not prepared to believe, despite what has been said, that if the editors of our great newspapers believed that a great public mischief had been perpetrated, they would be unwilling to hazard themselves to expose it. Under the harm test, they could argue that their disclosures had caused good, not harm, to the public, and a British jury would decide on that.
A Crown servant is a different case. Crown servants are elevated to a position of trust and are duty-bound to respect the confidence placed in them. Yet should they discover what they believe to be corruption or malpractice, they have not only the facility but the duty to report their concern to the permanent secretary, to the staff counsellor for the security and intelligence services, to the Minister or even to the head of the Civil Service. Does anyone, apart from the conspiracy theorist, believe that such safeguards will not be sufficient in a democracy in which trial by jury is enshrined? If some people are still unconvinced, are they not willing to accept that a person would be prepared to hazard his or her livelihood and liberty to expose gross misconduct, especially when Parliament with its privileges, and the courts with their juries, are there to protect the individual against the abuse of power by the Executive?
I would argue against the suggestion that there should be a defence of prior publication. It has been suggested that, once a piece of information is in the public domain anywhere in the world, and of whatever origin or status, people should be free to publish it. By publishing it, they will promote it and add to its status. Although I in no way question the motives of those who hold such a view, it is the product of muddled thinking. Cannot they see that such a defence would encourage the disclosure of unauthorised and, possibly, damaging information? Cannot they see that there are only a finite number of solutions to a given problem, so such a defence would encourage irresponsible journalists to embark on fishing expeditions? Do they not understand that to permit the uncontrolled repetition of stories emanating from the 503 foreign media whose aims, interests and standards of accuracy and probity are different from our own would do nothing to enhance the safety and security of our people?
For very good reasons, successive Governments have refused to confirm or deny a story, even when it was in their short-term interests to do so. Sometimes the consequence is that confidence is needlessly undermined and fear is unnecesarily caused. The defence of prior publication would increase that likelihood. It would be a recipe for mischief-making and would be in no one's interest.
I know that many other hon. Members wish to speak in the debate, so I have confined myself to dealing with the suggestions that there should be a blanket defence of prior publication and an automatic defence of public interest. I shall conclude with the observation that, as my right hon. Friend the Home Secretary said, the Bill is not a freedom of information Bill—nor should it be. It is a Bill that seeks to inhibit the disclosure of information that, if divulged, could threaten us all. I am satisfied, as the House should be, that there are secrets that need to be kept and people who need to keep them. The Bill clarifies which they are and who they are, and it is to be commended.
§ Mr. Tony Benn (Chesterfield)
The Bill has little to do with safeguarding national security, because there are very few real secrets, and they are certainly not permanent secrets. Details of military equipment become outdated. The secrets of negotiating positions, which are prepared for Ministers when they go to international conferences, become public knowledge when they are disclosed in the negotiations. Economic particulars that may be exchanged between Governments expire with the passage of time.
I remember vividly one occasion when I was the Minister in charge of atomic energy. I had in front of me the most secure documents, headed "TOP SECRET: ATOMIC UK eyes only". However, I read the newspapers, and the same information appeared in the New Scientist. What was secret was that my paper stated what we knew we could do, whereas the New Scientist was saying what it thought could be done in respect of the centrifuge. Therefore, it is absurd to speak as though the Bill is necessary to protect such information.
The Bill was devised, drafted and presented deliberately to conceal from the electors information that they need to exercise their democratic functions. Discussion about the Bill has skirted the real question. What we are discussing is a constitutional Bill because today we are discussing not just the details of individual disclosures but the relationship of power between Government and governed. Nothing is more relevant to the power relationship than how much knowledge is available to the two parties.
To read a Bill that is alleged to defend democracy when there is no reference in it to the rights of the electors, or the rights of the people, is a revelation of what the Bill is about. It does not have to be a freedom of information Bill to suggest that the people of this country have some rights. Although I am sure that it is not necessary, I remind the House that we only borrow the power of the electors on polling day. That power is entrusted to the Government by the electors on loan, and the electors then decide whether to renew their confidence at the subsequent general election. If, in the period of office of any Government, the public are denied knowledge of what the Government or 504 the state are doing, they cannot exercise that right. It is important to recognise that we are discussing matters that may not be known even to Ministers.
I was somewhat amused by the Home Secretary's attempt to present himself as a great reformer. I looked up the Witchcraft Act 1735 because I had a distant memory that I was in the House when it was repealed. I was right: it was repealed in 1951 by the Fraudulent Mediums Act 1951. Some poor woman who was a fraudulent medium had been prosecuted by an anxious policeman under the Witchcraft Act because he could not think of anything else to get her for.
I sat in Parliament when the Witchcraft Act—or a part of it—was still on the statute book. However, I do not remember the Law Officer who presented the later Act saying, "This is an earthquake of reform." Indeed, he was a bit embarrassed that the Witchcraft Act was still on the statute book, as Ministers should be about the Official Secrets Act 1911. The Act is being changed not because of a wave of liberalism from the Home Secretary, but because it is absurd, unworkable, unpopular and unenforceable, so let us hear a little less about the reforming achievements of the Home Secretary.
When one considers constitutional questions, many issues arise that are not often discussed. The one that most interests me is the lifelong obligation of confidentiality to the Crown. Crown servants are identified. However, we must ask, what is the Crown? Who is the Crown? Where do we find the Crown giving orders to anybody? "The Crown" is a code for that concreted area, the state within a state, which the Government believe needs to be more forcibly protected.
I am a Crown servant, as I have been a Minister. I looked in the Bill to see whether I too am obliged to have lifelong confidentiality to the Crown, and I am. It is absolutely clear. Back-Bench Members of Parliament who have never held ministerial office are not. However, as I look around the Chamber, I see other Crown servants who would be covered by the Bill.
When we consider "the Crown" in respect of secret matters, we must ask where it fits in. I shall take the Peter Wright case. Did the Queen say to Peter Wright, "Get rid of Harold Wilson"? No. Well then, who was the Queen's first Minister? It was Harold Wilson. Did he say to Peter Wright, "Get rid of me"? No. Did the Cabinet say to Peter Wright, "Get rid of Harold Wilson"? No—the Cabinet never knew. Did Parliament say it? No. The truth is that for the purpose of the Bill, "the Crown" is the language used to protect the activities of people who are no friends of democracy, the secret services which believed that in trying to get rid of Harold Wilson they were answering the wishes of the Crown. We are discussing a major constitutional Bill.
Let us consider the way in which the secrets are supposed to appear and must be protected. I can think of some examples, including Martin Gilbert's biography of Winston Churchill—this was touched on earlier—which reveals that, before the war, civil servants gave masses of secret documents to Winston Churchill because they thought that Neville Chamberlain was betraying the national interest by failing to re-arm. The first time that I came to the House—in 1937—I heard Churchill speaking on the Naval Estimates. I did not know, seeing him surrounded with his Blue Books and White Papers, that he 505 was also getting a steady drip of information from civil servants who thought that Neville Chamberlain was a traitor. But that is a fact.
I could take more recent cases. The Sandys case has been referred to. Duncan Sandys was a captain in the Territorial Army. One of his mates in the Territorial Army told him that the anti-aircraft defence of London was defective. Sandys tabled a question. The officer who told him was prosecuted under the Official Secrets Act. It became a famous parliamentary case. Would such a case be stopped by the Bill?
Let us consider the Zircon case, when Mr. Speaker—I sympathise with him—was lectured on the absolutely vital necessity that nobody should see the film. Mr. Speaker, not knowing how to respond to an appeal from Ministers, banned the Zircon film. Was that film so secret and so damaging? What was secret about the Zircon film? I can tell the House that it was the fact that Sir Frank Cooper, the former permanent secretary to the Ministry of Defence, said in the film that we did not have an independent deterrent. That was very embarrassing, since the Government had been pretending for years that we did have one.
We could consider also the Belgrano case, to which my hon. Friend the Member for Linlithgow (Mr. Dalyell) is always referring. It would have been damaging to let it be known that the Conqueror was pursuing the Belgrano while it was happening, but it is in the public interest to know whether the Government knew that the Belgrano was going home, and the relevance of the Peruvian peace objective. We cannot justify this legislation by example.
I turn now to international examples which are even more relevant although rather less pregnant with security considerations. I was the President of the Council of Ministers for Energy in the EEC eleven years ago. While there, I was a legislator. I do not know how many people realise that Ministers in the EEC are legislators, not executives. The Executive is the Commission. When one goes to the Council of Ministers—my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) has attended the Council—one makes regulations. Before the regulations are made, there is a mass of negotiation between one's Department, other Departments, Departments in other countries and the Committee of Permanent Representatives—all negotiate the package which the Commission will consider and the Ministers then endorse. All that is now to be covered by the new restrictions in the Bill.
As President Jacques Delors has said, 80 per cent. of the legislation enacted by national Parliaments will soon be enacted by the Commission. Eighty per cent. of the legislation that we now discuss in Parliament which is reported in Hansard for all to see and which will soon be televised will be covered by the new Official Secrets Bill because of its international implications. The Bill will cover not only the EEC but our international military arrangements or our discussions with the International Monetary Fund, in which other countries negotiate.
The Bill would reduce public discussion of public affairs to municipal matters. We would be allowed to discuss only things that are purely municipal—things that are about England or the United Kingdom alone. We will not be allowed to enter a discussion of issues that touch on 506 international negotiations. That is a major restriction. It is, however, a product of the internationalisation of the world, not a product of this Government.
The danger of abuse is the greatest in regard to intelligence. I shall speak in a measured way because I am sure that there are fine public servants in the security services who are trying to do their best. Nevertheless, the danger of abuse is very great. Ted Short, formerly Lord President of the Council, was told by Chapman Pincher that he, Pincher, had access to a Swiss bank account which Ted Short was supposed to have had. It was a forged bank account. There is no question about it being forged by the security services.
§ Mr. Benn
I am not giving way for the moment, because I want to finish this point.
In his book, Peter Wright said—he was, after all, the deputy director—that the fabrication of evidence against Labour Ministers was part of the strategy. Even if it is only Wright confessing, at least we got an explanation later of one of the most revolting episodes that I recall—involving the use of civil servants loyal to the Crown to destroy a Government elected by the people to be the Crown's Administration. I hope that the hon. Member for Torbay (Mr. Allason) wants, to raise a serious point, because I am on one.
§ Mr. Allason
The right hon. Gentleman has mentioned the famous Ted Short letter. All the research that has been done to determine the origin of that forged letter has come down to a group of Socialist Workers in Leicester. As for the Peter Wright plot against Harold Wilson, I do not know how many times we must repeat that Peter Wright went on television in the "Panorama" programme of 15 October when he said that the plot was down to him and that he was the only person in it.
§ Mr. Benn
I believe that the hon. Gentleman was in the Security Service or writes about it—I do not know much about it. All I can say is that the evidence on Nasser is Anthony Nutting, who said on television that Eden had told him to get rid of Nasser. There is a lot of other evidence. If the hon. Gentleman really has served in the Security Service—I do not know whether he has or whether he just writes about it—he will know that assassination is one of the instruments of security.
§ Mr. Benn
When the hon. Gentleman intervened, I was talking about the fabrication of Ted Short's bank account. I am afraid that, if any structure of power is surrounded by secrecy, there is a danger of abuse.
I remember when, as a Minister, I was approached by a Conservative Member of Parliament who complained on behalf of a constituent that that constituent could not get into the Civil Service. As I am a libertarian, I took the case up. I discovered that the constituent's father read the Morning Star. Nobody should think that the Security Service does not want to veto anybody who is to the left of the Prime Minister. It tried to veto Jack Jones and Hugh Scanlon, who were pillars of the Government. 507 Conservative Members may not like them, but the Security Service regarded them as security risks. The only guarantee against that is bringing these matters into the open.
§ Mr. Frank Cook (Stockton, North)
Is my right hon. Friend aware that, on 28 October, during a seminar for opinion leaders at the NATO defence college in Rome, the Pentagon-sponsored tutor in one of the tutorials—Dr. Robert McGeehan—said that we have come to the time when we must deprive our politicians of our best intelligence because of the way in which they have chosen to distort and misrepresent it in the defence of democracy?
§ Mr. Benn
The enemy within may be somewhere other than where the Prime Minister thinks it is.
I shall tell the House another story, lest it be thought that I am trying merely to protect the Left. In the 1974 general election campaign, somebody brought to me, and tried to persuade me to use, a highly scurrilous and scandalous pamphlet about the right hon. Member for Old Bexley and Sidcup (Mr. Heath), who was then Prime Minister. It was an extremely libellous document. I would not touch it. I realised later, when I read what I read, that the idea was to discredit me by getting me to smear the right hon. Gentleman and to discredit the right hon. Gentleman by getting that smear spread. I do not think that only Harold Wilson was toppled. I think that two Prime Ministers were toppled.
It would be a great mistake for Conservative Members to think that this is a Left versus Right issue. I ask Conservative Members to contemplate what they would think about a Labour Government with the powers that they are proposing to entrust to a Conservative Government. As my right hon. Friend the Member for Sparkbrook said, I can envisage circumstances in which it might he thought highly desirable to bug and burgle the homes of people engaged in exporting capital to South Africa. It is the Conservative party which proposes to entrust such powers to the Government. There are some issues in the House—not many—when the legislature has an interest that is separate from the Executive.
The last Labour Government have been mentioned. Jim Callaghan was bitterly opposed to open government. Everybody knew that. Everybody knew it at the time. It was only because it looked as though Clement Freud's Bill would be accepted that he, then the Prime Minister, put me on the relevant Cabinet Committee. He thought that he had better have somebody on the Cabinet Committee who agreed with Clement Freud and might interpret his Bill.
This is an argument between the legislature and the Executive. We are not talking about the great supporters of private enterprise versus the revolutionaries from the Fabian Society.
The House is being asked to give Ministers the power to designate what is secret and to determine when to prosecute. That is a power which no Parliament should give to any Government. I hope that the House will reject the Bill or amend it, or that the Government will withdraw it. If it is enacted, there will be only one safeguard for democracy. I refer to the oldest and most reliable safeguard—that people with conscience will not obey the law. Parliament never likes being told what it needs to be reminded of each generation, but the rights to free speech 508 and to free religious worship were won by people who broke unjust laws. I believe that juries will refuse to convict.
The Bill is really aimed against Ponting, Massiter and Tisdall. Only the last was sentenced. If people of conscience in the security services—those who favour the security services must want people of conscience in them—come across skulduggery, blackmail or criminal fabrication of information, and make it public on conscientious grounds, that is the safeguard of democracy in Britain, not this shabby little Bill.
When this debate comes to be studied, it may turn out that, by opening up on questions that we do not normally discuss, we will find ourselves tracing our way back to the roots of democracy. Honest, decent people will not put up with injustice, even if it becomes entrenched in a statute passed by both Houses of Parliament.
§ Mr. Tony Baldry (Banbury)
The longer I listened to the right hon. Member for Chesterfield (Mr. Benn), the more I wondered whether he had been studying the same Bill. He and a number of other Opposition Members need to have a conspiracy theory in order to exist. Without such a theory, the right hon. Gentleman would find it difficult to have a role in contemporary politics.
Spies spying and leaks leaking always make good copy for journalists. The area is too often treated sensationally and with too much drama. We, by contrast, must act rationally and logically, remembering at all times that we are putting criminal law on the statute book. We must consider the public mischief that we seek to defeat and the public good that we wish to protect and promote. We must test the provisions of the Bill against those objectives. We must ensure, at all times, that the possible offences and defences strike a proper balance between the rights of the community and the position of the defendant. The public good that we seek to protect is straightforward. It is to protect information vital to the national interest, not information that might simply embarrass the Government of the day or any Minister.
This is not a catch-all Bill and it does not contain any catch-all provisions. It is a clearly drafted and narrowly defined measure which sets out with clarity a limited number of specific offences. The Bill is comparatively short. Its 16 clauses contain a number of defined and specific offences intended to protect the public good. Such is the care to strike exactly the right balance that invariably, to prove an offence, the prosecution will have to clear a number of specific hurdles, and to the jury's satisfaction, fulfil specific tests—of, for example, harm to the public interest—before a conviction can succeed.
For example, to secure a conviction when a journalist discloses information relating to security or intelligence, the prosecution must clear a steeplechase of hurdles. We should never forget that the burden of proof is always on the prosecution, and the standard of proof is that the jury must be satisfied that each hurdle has been cleared. If the prosecution fails at any of the hurdles, the entire prosecution case fails.
To secure a conviction against a journalist for disclosing information on intelligence, the prosecution must prove, first, that the information has been in the possession of a Crown servant or Government contractor in his official capacity. Secondly, the journalist must know 509 or have reasonable cause to believe that it has. Thirdly, it must relate to security or intelligence as defined in the Bill. Fourthly, the journalist must know or have reasonable cause to believe that it does. Fifthly, the information must come into the journalist's possession in a number of ways, such as being disclosed without authority by a Crown servant or Government contractor. Sixthly, the journalist must know or have reasonable cause to believe that the information has reached him by one of those three routes. Seventhly—the canal turn—the journalist must make his disclosure without authority. Eighthly, the journalisit's disclosure must cause damage to the work of the security and intelligence services. Ninthly, the journalist must have known or had reasonable cause to believe when he made his disclosure that it would, or was likely to, cause damage, or that the information fell into a class or description of information likely, if disclosed, to cause damage—Becher's brook. That is a veritable steeplechase of hurdles, all of which the prosecution must clear before it can secure a conviction.
I suspect that it is because editors and journalists appreciate the hurdles that the prosecution must clear that there has been little press criticism of the Bill.
§ The Minister of State, Home Office (Mr. John Patten)
My hon. Friend has accurately set out the hurdles that the prosecution has to clear.
§ Mr. Patten
The hon. Gentleman seems rather overexcited this evening. I cannot imagine why.
My hon. Friend the Member for Banbury (Mr. Baldry) has accurately described the hurdles that the prosecution must successfully pass to secure a conviction. Does he accept that a conviction can be found against a journalist only if the prosecution can prove that the journalist knew, or had good cause to know, that he was deliberately causing harm?
§ Mr. Baldry
Yes—[Laughter.] I do not know why the Opposition are laughing. They complain that this is a catch-all Bill, but when we take them step by step through a single clause showing them all the hurdles that the prosecution must clear before it can secure a conviction they will not acknowledge the facts.
§ Mr. Allason
That was an interesting exchange. I draw my hon. Friend's attention to clause 4(3)(b), under which the disclosure of information is an absolute offence. This is one area in which the burden of proof would be not on the prosecution but on the defence. The defence would have to show that it did not know or had no reasonable cause to believe that the information disclosed was of the type described in the Bill.
§ Mr. Baldry
In criminal statutes the burden of proof never moves to the defendant. The defendant is entitled to raise a defence and it is then for the prosecution to negate that defence.
I opened The Times and other newspapers today expecting ringing declarations against the Bill, but there was none. The press appreciates, even if the Opposition do not, the great care that has been taken to get the balance right.
§ Mr. John Patten
Does my hon. Friend agree that the frivolous attitude displayed on the Labour Front Bench shows that the Opposition have not read or understood the Bill, whereas the journalists and editors of our great national newspapers have read the Bill and understand the considerable protections that are offered to them? That is why they no longer criticise the Bill on those points.
§ Mr. Baldry
As I listened to the speeches of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and subsequent speeches from the Opposition, I came to believe that they could not have studied the same Bill as we did. I hope that my hon. Friend will ensure that they are all provided with another copy.
§ Mr. Hattersley
The hon. Gentleman is entitled to know the cause of the outbreak of laughter in the middle of his speech. I was just telling my hon. Friends about a letter sent by the Minister of State to a newspaper setting out eight hurdles which journalists had to overcome. We were enjoying hearing the hon. Gentleman read it during his speech.
§ Mr. Baldry
I am glad that the right hon. Gentleman acknowledges that those hurdles exist because nowhere in his substantive speech today did he recognise that the Bill has been tightly defined and narrowly drafted to ensure that a proper balance was struck. If one listened only to the right hon. Gentleman, one would think that the Bill had many catch-all provisions, which it clearly has not.
It is clear that Ministers and draftsmen have taken great care to get the balance right in the Bill and to define more clearly than was possible in the White Paper the areas that should remain in the criminal law and the harm test that should apply. Under clause 3(1)(b) information received in confidence from overseas Governments or international organisations will not be the subject of an absolute offence. It will be subject to the same harm test as information on international relations. The harm test is narrowed by replacing the general reference to prejudicing dealings between the Government and that of another state or an international organisation with the more specific test of jeopardising the interests of the United Kingdom abroad. No hon. Member could object to the clarity with which that is now defined.
The definition of information likely to be useful to criminals, which was criticised as being too wide, has been narrowed to information thatresults in the commission of an offence … facilitates an escape from legal custody … impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders".A jury would have to be convinced that unauthorised disclosure had, or was likely to have, that effect. What possible objection could there be to any one of those elements in that clause?
Since the publication of the White Paper, my right hon. and hon. Friends have sought to take on board the views expressed to them and to ensure that the Bill strikes exactly the right balance. It is a well defined Bill. Much of the opposition to it stems from the claim that it contains no defence of public interest and no defence of prior publication. That shows a complete misunderstanding of the Bill. On the question of public interest where there is a harm test under which a defendant could argue that the disclosure caused good, not harm, to the public interest. It would be for the jury to decide. Opposition Members appear to have forgotten the existence of those 12 men and 511 women. However, a defendant could not argue that, although his disclosure did cause a degree of harm, because it also did some good the harm did not matter. That has never been a principle of English criminal law, so the Bill is consistent with legal history.
On the question of prior publication, under the harm test a defendant could argue that he had caused no harm beyond that created by the earlier publication. It would be for the prosecution to prove otherwise, and the standard of proof would have to be such that a jury was certain that an offence had been committed. The prosecution must overcome those hurdles.
It does not lie in the mouths of Opposition Members to criticise the Bill's lack of public interest and prior publication defences. They should not forget that in 1978 the then Labour Government proposed no defence based on public interest or on prior publication. Indeed, they did not go anywhere near so far as this Government in providing a test of harm. The Labour Government provided for the binding use of ministerial certificates so that at the end of the day it was the Minister and not the jury who decided the case there, there has been a veritable bonfire of ministerial certificates. We must study the reality of what the Bill proposes. My right hon. Friend referred to it as obfuscation, but I do not think that Opposition Members have read the Bill.
The Bill is a sensible, balanced measure that will do much to restore a sense of proportion to this whole area of law, and the sooner it reaches the statute book the better. I hope that as the Bill goes through its Committee stage we can debate the reality of what it does and what it contains, and the actuality of what it says, rather than having a debate based on the conspiracy theories invented by some Opposition Members.
§ Mr. Jeff Rooker (Birmingham, Perry Barr)
There is not a piece of Government legislation about which the hon. Member for Banbury (Mr. Baldry) could not make the same favourable speech, with only slight changes in the odd sentence. It was a lapdog speech. The hon. Gentleman made no attempt to answer any of the legitimate points made by hon. Members from both sides of the House. It has not been a one-sided debate.
Had the Home Secretary felt able to include a public interest defence somewhere in the Bill, that would have gone a long way towards lessening some of the natural suspicions that were bound to arise. It is no good Ministers lecturing the House and saying that there will be an opportunity to put that defence to a jury—one which, in any case, would be vetted. The fact is that the words "public interest" do not appear in the Bill. The first hurdle put up in a court against the use of a public interest defence would be the fact that it was not specifically mentioned in the legislation.
It is not as though "public interest" as a phrase is not important. Paragraph 65 of the White Paper, under the heading "Other Offences, Enforcement and Extent", states:The central mischief at which the Government's proposals are aimed is the unauthorised disclosure of information the publication of which is harmful to the public interest.According to that White Paper, that is what the Bill is all about. There has been no change between the publication 512 of the White Paper and the publication of the Bill that takes away the significance of the first sentence of paragraph 65 of the White Paper.
Two Conservative Members have quoted extensively from the many newspapers and magazines that they obviously read daily. The hon. Member for Banbury made the specific allegation that not a single newspaper today carried any criticism of the Bill. That is palpable nonsense. The hon. Gentleman clearly has not read today's newspapers; he has read only the information in the briefing given to him by the Conservative party. He should look at today's The Independent, whose leader title is "Hurd's undemocratic society". The last sentence of the leader states:If Mr. Hurd would trust the people, he would reduce the temptation for public servants to stray. Unfortunately he cannot bring himself to do so.
The Independent is not a Labour-supporting newspaper; thank heavens it is not, by and large, a Tory supporting newspaper either. It is a newspaper of record which does not agree with the Bill. Conservative Members come to the Chamber and trot out their briefs, for all the world as though the press carried no opposition to the Bill. That is not the case.
In Committee we can discuss in greater detail the defence of public interest. We must separate public interest, Government interest, state interest and, in the Britain of the 1980s, party interest. The problem is that the words "public interest" do not appear in the Bill. Judges —not all, but some—have said that state interest and Government interest are one and the same. It is just a short step from there to perceiving damage to the interests of a Government as damage to the interests of the Government's party. We must keep a distinction in mind.
Judging from the Home Secretary's speech and Home Office press releases—the one that was released on the date of publication of the Bill and the one that was put out by the Minister on 14 December—the Government are concerned to float the idea that, if the Bill is passed, key areas of security intelligence and defence, international relations and criminal investigations are to be dealt with, tied up and codified. There is the idea that it naturally follows that any journalists, investigators or Members of Parliment who claim that Britain is still a secret society will be brushed aside as a group of misguided individuals—the obfuscators to whom the Home Secretary referred. There is the idea also that lots of information will be released. We know that it is not a freedom of information Bill, but because the Official Secrets Bill covers matters of supreme importance, such as security, intelligence and defence, anyone who says that there are still secrets in other aspects of life is misguided and a troublemaker, and does not know what he is talking about. That is the idea that is supposed to get abroad.
I shall refer to only one part of the Bill—clause 3, which is entitled "International relations". International relations are defined in subsection (5). However, international relations go much wider that that. One would suppose that the clause covered only intergovernmental communications of various kinds. Naturally it does that. However, it covers information, documents or other articles relating to international relations and any confidential information, documents or articles which do not relate to international relations but which were obtained outside the United Kingdom. International relations may not be covered, but, 513 because the information was obtained from states or international organisations outside the United Kingdom, they are covered by clause 3.
The disclosure in clause 3(2) is a major drafting error. Paragraphs (a) and (b) are linked by the word "or", yet one cannot read (b) without reading (a). It does not make sense. The term "those effects" has no meaning in paragraph (b) unless it is read in conjunction with (a). Paragraph (b) is supposed to stand quite separately.
The disclosure of confidential information that is obtained from abroad is an offence only because the information is confidential. It is irrespective of the contents of the documents or articles. I warn the Government that that point will be considered in great detail in Committee. They will do themselves and the House a service if they tidy it up or even withdraw it from the Bill by way of a Government amendment. How can one defend the idea that people can obtain information from states, international organisations abroad, Crown servants—that global expression for those who are part of the state apparatus abroad—on matters that do not affect industrial relations can affect anything under the sun?
If an offence is committed, it does not matter whether an issue is harmful, but only whether it concerns a document marked "confidential". That cannot be sustained. The briefing document that was issued to hon. Members by the Campaign for Freedom of Information on that point is valuable, and I have not heard it being refuted. If the Ministers attempt to do so, I shall be pleased to listen to and argue with them.
§ Mr. Aitken
Far from refuting the hon. Gentleman's case, I may be able to confirm it. Anyone who shares my experience of The Sunday Telegraph case will note that the clause is drafted with that experience in mind. The Foreign Office cannot distinguish between embarrassment and security. Because Ministers fear that some embarrassment may be incurred that is already used, in a press briefing, as the Scott report was, but causes embarrassment to our diplomatic relations, they slap it in as a criminal offence. That is wrong. The hon. Gentleman was right to zero in on it.
§ Mr. Rooker
That is the only point on which I wish to zero in. An extra test is applied to that information. It applies only to information from overseas sources. If I may paraphrase clause 3(3), it states that information may be regarded as likely to have any of the effects mentioned in the paragraph,either by reason of the fact that it is confidential or by reason of its contents and nature.It does not state "and by reason of its contents and nature"; it states "or by reason of its contents and nature". How it can be an offence simply because the information is confidential is beyond the pale, especially given the Home Secretary's description of the Bill as coherent, bolder and more open than anything before. It is quite ludicrous.
I understand why the clause is in the Bill, but I do not support why it is there. The scale of international trade and relations in the modern world is such that much information—not that relating to the matters that my right hon. Friend the Member for Chesterfield (Mr. Benn) raised—turns out to be economic information. Classes of economic information are ruled out in paragraph 33 of the 514 White Paper, and will no longer be subject to the criminal law. We shall see an enormous number of contradictions. We shall see contradictions in relation to information that comes to Britain or is used or disclosed in Britain by journalists, the media, or Members of Parliament. It is sourced overseas. It may have been originally sourced in this country by our supplying information to overseas organisations, such as the OECD.
We shall ask why it is an offence to publish and disclose information in EEC documents that emanated from Whitehall about pollution control. A document may or may not be about hazardous waste or a danger to public health, but it may set out the amount of industrial and other waste that this country imports. There are court cases in the midlands because the economic livelihood of one large company is thought to be at stake. The bottom line is economics.
It will be argued that disclosure should be an offence. The Government are arguing that that is the case. I do not accept that case. We may get information on industrial safety or vocational training from the International Labour Organisation. It will be an offence to disclose it. The hon. Member for Caithness and Sutherland (Mr. Maclennan) mentioned Food and Agriculture Organisation nutritional standards. What about draft documents on the development of World Health Organisation teaching standards, papers about efforts to cut child mortality and papers on the control of oil pollution from the International Maritime Organisation? The disclosure of information from those sources which could or could not have an economic or public health content in no way affects security, intelligence or defence. Surely it cannot be defended by Ministers that people who disclose such information should be hauled before a jury.
We have heard from Ministers and Conservative Members, sounding for all the world as though they had been before a jury: "Well, of course, being hauled before a jury is nothing. If one is innocent, the jury will find one innocent. It is nothing to be worried about." That has not happened to me, but I know what it is like to come before the full jury of the House of Commons, having had the experience of making one personal statement to the House. That can be nothing compared with appearing either in the box at the Old Bailey or at the Bar of the House, as my hon. Friend the Member for Linlithgow (Mr. Dalyell) did long before I came to the House. It should not be shrugged off with the aside, "With a jury you will be all right."
I wish to give two further examples before I resume my seat. The first concerns product defects. Whenever Ministers or the media ask what I am going on about and what information is being held back that we want, I would like to say, "Give me a list of what you have and I shall choose." They say, "Well that's not an effective argument." So virtually every time I say, "Let's take something simple. Let's take something that affects the man and woman in the street." This certainly affects the streets of London because they are congested with motor cars.
This Government and foreign Governments have in their charge information about accident rates of motor cars according to models and years. That information is never disclosed. It is not seen to be in the interests of the motor industry to have a league table of car models which have certain types of accidents, whether those cars are imported or made here. If that information were obtained 515 by British journalists from overseas sources, for example from the person in a foreign Government department who collated the information, which was then kept secret for the public good, and published the accident rates of foreign motor cars on British roads—we should bear in mind that we import 58 per cent. of our cars—it would be a criminal offence under this Bill.
Such journalists would be hauled before the courts with little defence. They would not be able to say that the Bill provides that such information should be released in the public interest. They cannot point to any part of the Bill that gives them that defence. I shall leave aside my example about hygiene regulations in food canning factories. That type of information would be caught under virtually every limb of clause 3. The British public have a right to know that information, but it will remain secret.
My final example, funnily enough, relates to a matter which I raised with the Attorney-General at Question Time a couple of weeks ago. The ownership of House of Fraser and Harrods is a matter of international relations. There is no question about that whatever. From whichever side one looks at the saga of House of Fraser, international relations are involved, as in clause 3. I should like the Minister to explain how information will be treated that has been published, mainly by one side of the argument—Lonrho and The Observer—on the takeover, involving, as it does, information from a state other than the United Kingdom.
Several states are involved, including both Haiti and Brunei. The Sultan of Brunei can certainly be satisfied that that information affects his international relations with the United Kingdom and consequently might jeopardise United Kingdom interests under clause 3(2)(a). It is clear that much of that information has been disclosed from overseas official sources.
Allegations have been made as a result of this case which concern international relations and the conduct of Conservative Ministers, particularly the former Secretary of State for Trade and Industry, the right hon. Member for Chingford (Mr. Tebbit). There is a prima facie case that his conduct as Secretary of State fell well below what is acceptable in the conduct of public administration on merger policy. I should like to get to the bottom of this, and it is clear that one party to the merger takeover would also like to get to the bottom of it. By legitimately pursuing its interests, it will disclose all sorts of information from overseas state sources.
At present, no one has talked about a prosecution, but under this Bill that would be open to prosecution. More than that, it is more likely that many politicians more partisan than I may see that Conservative Ministers in a Conservative Government want to keep the lid on a scandal affecting members of the Conservative party, by using the draconian measures in this Bill. That will certainly be put to the House and the country.
The buying and selling of major British companies where overseas interests are involved will be affected. One cannot simply say that everything is commercially confidential, and we are not allowed to know anything about it. In this particular case, there are good grounds for believing that Conservative Ministers allowed House of Fraser to be purchased by a known crook. [HON. MEMBERS: "Oh"] I am not saying anything that I have not said before. The silence and acquiescence of the former Secretary of State enabled House of Fraser to be purchased by a known crook.
516 Clearly, clause 3 deals admirably with public, state, Government and party interests. As such, it should not be included in the Bill, and that is a good enough reason to vote against the Bill. We are a joke, a laughing stock, in most of the civilised world for the way we run such a secret Government.
Examples were given of America, Canada and New Zealand and, although no one mentioned Sweden, it is fair to add it to the list. They are all more open on more aspects of government than we are. On the issues which really count, the measures that they operate and the penalties for those who fall foul of the system are much more severe than anything that we operate. There is a message there: genuinely to target what counts and to hit offenders hard. That enables a democracy to operate much more trustingly between Government, Parliament and our masters, the people. This Bill mitigates against that, and as such should not receive a Second Reading.
§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. Unless speeches are more restrained and shorter, some hon. Members will be disappointed by being unable to participate in the debate.
§ 8 pm
§ Mr. John Wheeler (Westminster, North)
I welcome your observations, Mr. Deputy Speaker. Those who were present at the beginning of the debate will recall that M r. Speaker suggested that we might consider 10-minute speeches. I hope that my remarks will fit within that specification.
First, I give an unreserved welcome to the Bill. It is high time that section 2 of the Official Secrets Act 1911—a 77-year-old measure—was repealed. It is discredited. It is wrong that the brand of tea served in the Home Office canteen should be treated in the same way as Britain's defence secrets, with disclosure being a criminal offence. It is wrong in principle that the criminal law should he used to protect trivial secrets or information that merely happens to embarrass the Government. It is counterproductive. Section 2 is a catch-all provision, and it has fallen into disrepute.
I support the contention of my right hon. Friend the Home Secretary that the Bill will advance liberty. It is right that we should consider tightly defined legislation, and the Bill will cover only six areas of information that it is in the interests of all the British people to keep secret. These are defence, security and intelligence, diplomacy, information given in confidence by other Governments, official information helpful to criminals and the interception of telecommunications. All these matters will continue to have legal protection.
The issue of information that is supplied by other Governments has been raised, and it is important that we should dwell upon it for a moment. It has been suggested that the test of harm following the disclosure of information received in confidence from overseas Governments, on foreign organisations, would not be subject to the same criteria of consideration before the courts as other disclosures. That is wrong. The Bill will require the prosecution to argue that harm was likely to arise in a particular instance either because of the breach of the confidence which the disclosure involved or the nature of the information or its contents. 517 There will be no obligation upon the jury to accept the prosecution's argument and the defence will be free to argue that the disclosure was not likely to lead to harm. The onus will remain on the prosecution to prove its case beyond reasonable doubt. That is a formidable obligation, and it is right that it should be imposed upon the prosecution. It is one that the prosecution carries in all cases in this country. The prosecution will have to prove its case before a jury, and that, too, is right.
Currently, there is no public interest defence, and I do not wish to see such a proposition introduced into our law. It would generate confusion rather than certainty. It has been the position from time immemorial, generally speaking, that the criminal law defines an offence in terms of an individual's actions, not his motives for carrying them out. Motive may be taken into account by a judge when passing sentence, but it does not affect the determination of guilt or innocence. This principle should apply to the Bill.
The special duty of lifelong confidentiality will continue to apply to members of the security and intelligence services. Those who join these services do so voluntarily. There are arrangements for former officers to obtain permission to talk or write about their work, and that procedure is well understood. There are arrangements for an officer who is discontented with part of his work, or who has a problem within his department, to consult the new staff counsellor. Every officer knows from the outset, however, that there is an overriding obligation to keep silent about the work that he performs on behalf of the British people. The law provides that any disclosure by special service people is a criminal offence. That is not changed by the Bill, but the removal of so much Government information from the scope of the criminal law is bound to highlight the special position of those in the security services.
Apart from the categories which I have mentioned, no official information will be protected by the criminal law. That is the extent of the proposed liberalisation. It applies to the trivia which I have mentioned, such as the canteen menu and laundry lists, and to more important and sensitive information. It will no longer be a criminal offence to disclose Cabinet papers on controversial subjects such as health and education. The same applies to the Chancellor of the Exchequer's Budget speech. To that extent, the Bill extends freedom of information, and that is most welcome.
There has been talk of prior publication and the position of newspapers, with much comment externally by those in the media. No one could be convicted of repeating information on security, intelligence, defence or international relations unless the prosecution could prove that the disclosure was likely to cause specified harm to the public interest and that the defendant knew it. It is a formidable test that the prosecution has to overcome.
Similarly, no one could be convicted for disclosing information that would be useful to criminals unless the prosecution could show that the information was still likely—this is important—to be useful despite its prior publication. The defence of prior publication is therefore subsumed within the test of harm. The arguments about 518 prior publication and the public interest defence are answered by what I have said and by the proposals that are set out in the Bill.
§ 8.9 pm
§ Ms. Diane Abbott (Hackney, North and Stoke Newington)
The Secretary of State described the Bill as coherent and ambitious and, of course, it is neither. It is a cornerstone, however, of the Government's wider strategy, which is coherent and ambitious.
We have been told by Conservative Members, and especially by the Home Secretary, that the Bill is a fantastic leap forward in reform. Let me remind them that section 2 of the Official Secrets Act 1911 has been a dead letter for over 20 years. Far from boasting about the removal from the statute book of legislation which was thoroughly discredited and almost entirely unenforceable, Ministers should be embarrassed that they have not even begun to take advantage of the opportunity with which they were presented to engage in real reform. If Ministers had cleared their minds of any thoughts of reform and of any notions of leaps forward, and had merely written on a small piece of paper the names of those who have embarrassed them in recent years—for example, Mr. Wright, Mr. Ponting and those involved in The Daily Telegraph case—and if the Government had sent civil servants scuttling off to cobble together a Bill that would ensure that all the people who had embarrassed the Government in the past would be caught by it and would serve time behind bars, this is the Bill that they would have come up with. Perish the thought that that was the motivation behind the Bill, but it is curious that all the people involved in the most embarrassing official secrets cases of recent years would have to do time as a result of this Bill. I am sure, however, that that is mere coincidence.
The point about the public interest defence is that the Government, their Ministers and almost all their loyal rank and file have shown themselves in recent years wholly unable to see that there might be a concept of public interest separate from the interest of the Government of the day. For the Government, the public interest is one and the same as the Government interest—the interest of the party in power and, particularly, of the leader of that party and her immediate circle.
In the closing years of this decade public interest has been reduced by the Government to the narrowest partisan version conceivable. These are the politics and political theories of the one-party state and I can well imagine how Conservative Members would point the finger if they emerged in the politics of other countries. Yet Ministers and seekers after office on the Conservative Back Benches parrot the political theories that underpin the one-party state.
We have heard much from Conservative Members about what can be expected from members of the security services—about how they join of their own free will, how they are not conscripts and how security and secrecy must be provided for. I remind them of what Mr. Justice Scott said, among other things, about the "Spycatcher" case. He had heard the Government's evidence and reflected on what Sir Robert Armstrong had said and on what poor Sir Robert had had to do in Australia. He had taken in at tremendous length—greater than Ministers had been able to explain this evening—the Government's thinking about 519 the desirability of protecting the security services. Mr. Justice Scott, who is not a member of the Socialist Workers party, said:I find myself unable to escape the reflection that the absolute protection of the security services that Sir Robert was contending for could not be achieved this side of the Iron Curtain.It is precisely that absolute protection that this Bill proposes to enshrine in law.
It will not do for the Home Secretary to come before the House in his familiar garb of the great reformer. The Bill tries to enshrine thoroughly illiberal and anti-democratic ideas in law—
§ Ms. Abbott
I do not have the hon. Gentleman's expertise in these matters, but I do have a few thoughts of my own that I want to expand.
Last week we debated the Security Services Bill. In the course of the debate, the problems that the security services have had in the past were made clear—the recurrent history of KGB infiltration at the highest levels, the lack of any notion of real accountability to the Government of the day in some parts of the service, and even the propensity on the part of some members of the security services to go mad in as little as four or five years, according to some past heads of MI5. So the House knows the institutional and structural problems of the security services. It knows that the Government have no proposals, now or ever, to make the security services the subject of genuine parliamentary oversight. So how can we go on this week to enshrine in legislation terms and conditions which remove one of the only possible guarantors against an over-mighty Security Service acting against the public interest?
Of course, if members of the security services want to do a Peter Wright they should be subject to administration and management procedures and to the law. But the procedures in the Bill are more reminiscent of those governing iron curtain security services. That does no credit to Ministers, the Government and, above all, to the Secretary of State, with all his pretensions of being a liberal reformer—
§ Mr. Allason
May we scotch the myth involved in these continual references to Peter Wright? They are completely out of context. Peter Wright is in Australia, out of the jurisdiction of the United Kingdom; and it would be open, even under this Bill, to any member of the Security Service to go abroad and escape jurisdiction and repeat the exercise. The Wright case is wholly irrelevant.
§ Ms. Abbott
Funnily enough, I agree that too many references to the Peter Wright case, which was an irresistibly humorous and comic case, tend to obscure the issues around the Bill and around that discussed last week. The hon. Gentleman has not answered my point—that the absolute protection for the security services for which the Government called in the Wright case was described by a member of the judiciary as unachievable this side of the iron curtain. I repeat that and challenge Ministers to counter what lay behind that statement.
The Secretary of State has boasted again that part of the reason why the Bill is such an amazing reforming measure is that vast areas of information will be freed from the criminal law. We are all supposed to gasp and thank him for his munificence. Of course, those areas of 520 information have never been the subject of prosecution in living memory anyway. What is the point of the Secretary of State boasting when, in practice, section 2 has not been used?
I said earlier that the Bill was neither coherent nor ambitious. It shows every sign of having been drafted to cure past embarrassments and to ensure that they never happen again. The Government loathe giving out information as much as vampires abhor garlic. The Government have missed this opportunity to give any right to information to the citizen. But the Bill should be taken in the context of the increasingly cowed and restricted press and media. They have been cowed by the buying off of press barons and lordships, and by the constant denigration of public service broadcasting by ill informed Conservative Members. The press and media are increasingly hemmed in.
Alone among English-speaking democracies, we have a Security Service over which there is no parliamentary oversight. The Government and Prime Minister are increasingly authoritarian and intolerant of opposition, even from within their own ranks. That is the Bill's context, and it shows that the Bill is part of a coherent and ambitious design. It is a grand design which reduces the information available to the subject, thereby reducing the liberties of the subject and increasing the over-arching power of the Government and of the leaders of that Government. We believe, but we may be wrong and may be the innocent victims of conspiracy theories, that the Bill is part of an overall design. We reject that design and the Bill. The Bill is illiberal and by no means a reform. I shall be glad when the Home Secretary stops coming before the House in his gleaming white robes posing as a reformer, because in reality he is wearing the emperor's clothes.
§ Mr. John Greenway (Ryedale)
If the hon. Member for Hackney, North and Stoke Newington (Ms. Abbott) would read the Franks report of 1971, she would discover that much of the basis of the Bill harks back to its recommendations. However, I shall not dwell on that.
I appreciate that there are many experts on official secrets and I do not claim in any way to be one of them, but having listened to some hon. Members I am not sure that the expertise is all that it is cracked up to be. I can, however, claim one unique feature. I have signed the declaration that I will keep confidentiality—in 1965 when I became a Metropolitan police officer.
We make many promises in life, but, sadly, some of them are broken. The promise of confidentiality is not to be broken lightly. If I say nothing else in the debate, I shall say that Peter Wright was despicable beyond description and that I have nothing but utter contempt for his dishonourable acts. It would be wrong to conclude that the Wright case has prompted this reform. Successive Governments have tried to address the question of reforming the catch-all provisions of the 77-year-old Official Secrets Act. The Government are right to claim that they are taking a liberal view. I shall shortly come to my reasons for saying that.
There is a genuinely held view that disclosure in the public interest is a valid argument and that the Bill falls short of a public interest defence. I do not agree. There are two important matters to be considered on the question of the public interest defence. The first is where the greater 521 public interest lies and the second is the burden of proof when cases are brought to court. The greater public interest is best served by discouraging through criminal sanctions a disclosure that may be damaging or is likely to be damaging. The Bill puts the onus of proof the right way round, so that Crown servants are discouraged from disclosing information for fear that damage or harm may occur, rather than encouraged to disclose it by a public interest defence.
As far as I am aware, only the Bill presented by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) contained a public interest defence. If I understand correctly what my hon. Friend had in mind, a Crown servant who leaks or discloses information would not have to prove conclusively that misconduct had occurred. Equally, suspicion would not be enough. Nevertheless conclusive proof of misconduct was not necessary. There may be other information of which the discloser does not know. The burden of proof in such a public interest defence would be on the prosecution which would have to establish, first, that no crime, fraud, abuse of authority, neglect of official duty or other misconduct had occurred and, secondly, that the discloser had acted unreasonably.
It might well be impossible to prove that misconduct had not taken place without releasing other important, confidential information which the public interest might require to be kept secret. The prosecution or the Crown would be on the horns of a dilemma. A Crown servant may have made an allegation of misconduct which on the face of it looks convincing. Public opinion, perhaps reacting to a front-page headline in one of the daily newspapers, would demand that the record be put straight. But to do that, the Crown might have to reveal information which ought to be kept secret. That is the real reason why it would not be valid to include in the Bill a public interest defence.
The alternative approach is the one in the Bill. The discloser can reveal information provided that he does not cause harm and there is no reasonable likelihood of damage. The burden of proof is on the prosecution to prove harm. Equally, the discloser knows that, however altruistic his motives, if he causes damage he will be guilty of an offence. Therefore, there is a general discouragement. The right balance must be to err on the side of caution. A public interest defence runs the risk of causing more damage to the national interest than the discloser may be seeking to protect. He may be acting only on a narrow appreciation or knowledge of the matters about which he makes his disclosures. An actual harm requirement, such as that in the Bill, reduces the risk of accidental disclosure. At the end of the day, it cannot be said to be in the public or national interest to disclose information which damages the national interest or is reckless as to whether such damage might occur.
The Opposition have asked whether the Government are right to claim this as a liberalising measure. The Opposition feel that the Bill does not go far enough. There is another point of view—to question whether some of these reforms go too far. The important point here is that under section 2 everything is caught. There are no definitions—they are not needed. The Bill specifies only those offences for which there can be a prosecution. Surely 522 it must be right to ask whether we have included in the Bill all the offences that we ought to include. I am not about to suggest a long list of offences that we should have in the Bill, but it is right to adopt a questioning approach from the other point of view.
I should like to touch briefly on law and order. It would be reasonable in today's world to claim that the maintenance of law and order is as important a function of Government as defence. There is international terrorism and crime and mobility of criminals and terrorists, and threats are being posed to our normal civilised way of life. We see this almost every day. Is the Minister satisfied that all the evetualities required for the public interest are in the Bill? I should like his assurance that as the Bill progresses in Committee the Government will not be reluctant to introduce amendments.
Part of the answer to my question may lie in reference to other measures because we have to look at the Bill not just in relation to the Official Secrets Act but in relation to other statutes. The hon. Member for Birmingham, Perry Barr (Mr. Rooker) referred to a written question put down in 1976 by his hon. Friend the Member for Oldham, West (Mr. Meacher) about the list of offences under other statutes. I was interested to find, for example, the Marketing of Eggs Act (Northern Ireland) 1957 on that list. There appears to be no reference to the marketing of eggs in England, Wales or Scotland, but no doubt that is covered by some other statute.
We need to consider how disclosure of historical information which might affect the reputation of an individual rather than future events is covered. What about unauthorised disclosure of criminal records or police files? Over the years, there have been a number of prosecutions of police officers and journalists—some successful and some not—when information had been leaked about police records. We need to ask whether the Bill covers the leaking of such information.
When the Government published the White Paper, they gave a general definition of criminal activity. The Bill is a considerable improvement because it specifies events. It is not difficult to imagine circumstances in which the specific offences could occur. A number of past prosecutions provide clear examples. In 1966, a police officer who passed on information about a proposed police search was fined after a magistrates court hearing. It seems as though such an occurrence would be covered by the Bill under the provisions applying to disclosure which impedesthe apprehension or prosecution of suspected offenders".In 1968, a police officer passed on information about a mail van run, with a view to robbery—clearly an action likely to result in the commission of an offence. I could give many other such examples, but other hon. Members wish to speak.
There has been criticism of the Bill from one side. I hope that a Committee of the whole House will consider these important issues. Of course, we are unlikely in the foreseeable future to see a repeal of the legislation that we are about to enact. This is not a matter on which Parliament would wish to legislate too often. It is important that we get it right and ensure that those offences that should be covered by the Bill are indeed covered.
§ Mr. Dalyell
On a point of order, Mr. Deputy Speaker. The hon. Member for Glasgow, Govan (Mr. Sillars) has told us that there has been an appalling jumbo plane crash 523 in Scotland. I wondered whether I could formally ask the Government to consider making a statement, even a preliminary one, at 10.15 pm.
§ Mr. Deputy Speaker (Sir Paul Dean)
I am sure that Ministers who are present have heard the hon. Member's comments. It would not be in order to interrupt this important debate.
§ Mr. Tony Worthington (Clydebank and Milngavie)
The depressing aspect of the argument is that Labour Members and some Conservative Members have been consistently winning the argument for a reform of the secrecy law. That happened in the Ponting, Tisdall, Massiter and Wright cases—all instances when the Government have been severely embarrassed. Flaws in the secrecy law have been pointed out.
We won the argument over ministerial certificates. They were seen to be an inappropriate way of dealing with the arguments. We won the argument and there was a modest step forward in the statutory basis for the Security Service, but it did not go far. The argument has been won also in relation to the problems of hierarchical organisations, the people trapped in them and the need for a counsellor within the service. Last year, in one of the high spots of my short career here, the hon. Member for Aldridge-Brownhills (Mr. Shepherd) effectively highlighted the need for reform. Unfortunately, the Government have not taken the right message from that. They believe that the way to approach official secrets is to shoot the messengers who tell them that things are going wrong and to ensure that there will be no more messengers. In the end, that will fail, just as every attempt to suppress the truth must eventually fail.
It is depressing that one of the surest tests of a maturing and growing democracy is whether the public are entrusted with more and more information while the Government go in the opposite direction. Who can say after looking at the collective outcome of Ponting, Tisdall, Zircon, Wright and Massiter that it was wrong for us to have heard about those events? No one could seriously argue that we were damaged by hearing about them. Our public life was enhanced by that knowledge, but the Government's central motive is to ensure that in future we shall not know about such events.
One aspect of the Bill disturbs me. Sworn to life-long confidentiality will affect not only full-time members of the security services but those temporarily associated with the world of secrets. I take the instance of John Stalker, a person to whom peculiar things were happening. I cannot judge the rights and wrongs of the Stalker case, because I do not know, just as no other hon. Member does, about the full events. In the end, Stalker left the police service and decided to write a book. What else would a man in such circumstances do but say, "That is what was happening to me in terms of my relationships with my police authority, the Home Office, the RUC, the Northern Ireland Office and the secret services"? John Stalker's book contains references to MI5. I shall take some virtually at random. He said:I had authority from MI5, and the expressed support of the Home Office and the Director of Public Prosecutions.He also said:Present at the meeting were Sir John Hermon, the very senior MI5 legal officer and the MI5 Belfast representative. The meeting was opened by the senior MI5 man. He made it 524 absolutely clear, as he had six months earlier, that his department was not standing in the way of a murder investigation. He said that MI5 was prepared to release all information to me.
That is an example of a person who, at that stage in his career, was involved with secrets and the work of the secret services and who seemed to be stitched up in terms of his investigation—having been given a job to do but then been prevented from doing it. Are we to remove from that person, who seems to have suffered an injustice, the right ever to tell his side of the story?
§ Mr. Allason
Is it not a fact that, if that gentleman believes that there has been an injustice, he will have an opportunity through the Security Service Bill to lay a complaint before the tribunal?
§ Mr. Worthington
A conspiracy seemed to surround Stalker everywhere. Something strange was going on that enveloped the entire Government service and the secret service, too. At the end of the day there is for some people no escape from that. They are trapped within that world and sometimes they must break free—not in any circumstances—from that entrapment.
The idea of life-long confidentiality is disturbing. As a general principle, I accept that people must exercise confidentiality in their jobs, but, as my right hon. Friend the Member for Chesterfield (Mr. Benn) demonstrated earlier, secrets come and go. What is secret at one time becomes very commonplace the next minute. There must always be some kind of filtering of what can be said by previous members of the secret service, or those people temporarily associated with it. However, to deny people the chance to put their side of history is profoundly illiberal.
One wonders whether this embargo on temporary members of the secret service will apply to Government Ministers. I do not consider that it can be right for history to be denied 20 or 30 years later the actuality of what occurred at a particular time. Many Prime Ministers and Ministers—even junior Ministers—at some stage later have found it important to tell the world their version of events. In many cases their positions have brought them into contact with what were state secrets. That they should for ever have an embargo on them speaking about that is profoundly wrong. Something should be done to ensure that they do not release current secrets, but to have life-long confidentiality as the over-arching theme is fundamentally wrong, and should be reconsidered.
I am worried about the world of investigative journalists. Certainly there are times when journalists reveal information that is extremely important. This year one of the most startling articles that I read was in The Observer, and it was about telephone tapping. The allegation was that 30,000 individual telephones were currently being tapped. The number of operatives involved in telephone tapping has doubled. In addition to the 60 tapping operatives, another team of 80 higher grade engineers maintain and service tapped lines. Mr. David Norman, who represents the telephone tappers as treasurer of the National Communications Union, said:I can say with absolute certainty that I have been the victim of state surveillance in the form of telephone tapping for the best part of the last year.That is the kind of information which should surface occasionally.
§ Mr. Worthington
It should surface because of the power given to the secret service to do fundamentally what they like. I am open to correction, but, as I understand the Bill, an article giving that kind of information would in future not be published, which is fundamentally wrong.
The police argue that the public interest defence is easy, but it is not. Hon. Members spoke earlier about the barriers to be overcome to establish that public interest defence. Have we learnt nothing from the events of recent years about what happens in various hierarchical institutions? One can take it from the world of psychology, and the work of Professor Milgram years ago on authority. He determined that people could be induced to do the most frightening things in the presence of authority. In cases of abuse within hospitals, child sex scandals and in every tragedy—whether it be Clapham Junction, or Kings Cross—where there is human error, there is information that would have stopped that horror occurring if it could have been released from that hierarchical organisation. One must face up to the fact that the secret services and the world of secrets must be the most hierarchical organisation of all. It is not enough to appoint councillors and to have good internal supervision of those services. Ultimately, there must be a public interest defence for people to escape from that.
It is not easy to establish a public interest defence, because it would have been necessary for the person to have gone to the councillor, to have real knowledge that an outrage was going on and to have explored every other avenue in that organisation before that public interest defence could be accepted.
It is crucial—a kind of bedrock of our kind of democracy—that there should be some escape from a hierarchical organisation that has control over one's career, one's family and over everything in one life. One should be able to escape from that situation and have some root of satisfaction in being able to plead a public interest defence, and that is taken away in this legislation.
§ Mr. Greg Knight (Derby, North)
One thing that the entire House has agreed upon is that section 2 of the 1911 Act needs reforming. The present law is a mess and is drawn too widely. As the Franks committee observed on section 2:A catch-all provision is saved from absurdity in operation only by the sparing exercise of the Attorney-General's discretion to prosecute.
The Government are to be congratulated on grasping this problem and bringing legislation before the House, but it is right that we should examine the substance of the Government's proposals. The only matter about which I agreed with the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) was when he said that we should consider the Bill on its merits, but he did his case no service when he then quoted a number of misleading examples. Referring to the special investigation powers, the right hon. Gentleman said that if those carrying out powers under a warrant were to blunder into his own house, which was next door to the house that should have been searched, if he were to pass on that information an offence would be committed. I must disagree with him because clearly, as I read the Bill, any action carried out that is not authorised by the warrant would not be covered.
526 The right hon. Member for Sparkbrook then criticised the Government for the test of harm. He and other Opposition Members, including the hon. Member for Hackney, North and Stoke Newington (Ms. Abbott)—who referred to the Bill as bringing about the creation of a one-party state—said that the Government were actually setting down what amounted to harm, and that that was a dangerous precedent. Hon. Members who put that argument forward should read the Bill, because in five out of the six cases the Government may have a view as to what is harm, but it is for the jury to decide after considering the evidence in the case. It is poppycock to talk of a one-party state being created by the provisions.
The right hon. Member for Sparkbrook referred to the Civil Service, and, having listened to all the debate, I have failed to understand why it should be necessary for someone in the Civil Service who feels that something is amiss to run off to a newspaper. A procedure has been set up whereby a person can invoke the Civil Service procedure if he has a valid complaint. To argue that civil servants should have a licence to reveal to newspapers something that they consider to be underhand is a bogus point.
The right hon. Member for Chesterfield (Mr. Benn) denounced the Bill in a robust speech. His speech, as always, was good value. I am sorry he is not in his place because I believe that his remarks on this Bill carry no credibility. He was a member of the previous Labour Government who, in 1978, published a White Paper—it was debated in July of that year—which did not address the question of freedom of information about which he was so concerned today. The Labour Government White Paper also stated that information relating to security and intelligence was to receive absolute protection. It appears that the right hon. Gentleman, who supported that White Paper, has gyrated through 180 deg. now that he has been relieved of the burdens of office. His remarks did not carry any weight tonight.
Contrary to some of the remarks that have been made, the Bill does contain a number of substantial changes that narrow further the scope of the present law as compared with the proposals published earlier this year in the Government's White Paper. I am especially pleased to note that it will not be an offence under the Bill simply to disclose information received in confidence from other Governments or from international organisations. The White Paper suggested that that would be an absolute offence, but I am delighted that the Bill makes it clear that harm would have to be proved. That is a welcome change.
The current proposals mean that the prosecution must satisfy specific tests of harm to the public interest in cases involving disclosure by most people, including journalists, in five of the six areas still covered by criminal law. It is only for members of and others closely connected with the security and intelligence services that any unauthorised disclosure would always be treated as harmful. The Government have got the Bill exactly right.
There is some controversy about whether there should be a statutory defence. A number of Opposition Members and some of my hon. Friends have said that they want absolute defences of prior publication and of disclosure in the public interest. When the House last debated this matter I had some sympathy for that view. If I read the Bill correctly, however, the existence of a harm test will mean that it will be open to a defendant in court to argue that he 527 had caused no harm beyond that created by the earlier publication. In those circumstances, it would be for the jury to decide. That is reasonable.
It is also fair to say that there is no statutory defence of public interest in the Bill. The harm test, however, will still apply. Surely a defendant will be able to argue in court that his disclosure was not harmful and that it was for the public good. If that is accepted by the jury he will, quite properly, be acquitted.
I have a couple of questions that I wish to put to the Minister about the Bill as it affects matters concerned with crime. What about the discloser of information as opposed to the publisher? In some cases the person who discloses information will clearly be an accessory to the offence. Could that person be prosecuted as such? I hope that, in appropriate cases, he could. Also, will the Minister confirm that military offences—for example, desertion and other such offences—will not be covered by the Bill? I trust that they will still be dealt with under separate law.
Having read the criticisms of the Bill that have appeared in the press, I am led to the conclusion that journalists have obviously not read or fully digested the Government's proposals. I believe that when seeking to take a journalist to court, the prosecution—the Crown—would have a near Herculean task persuading the jury that the journalist had committed an offence. My hon. Friend the Member for Banbury (Mr. Baldry) has already touched on that.
The right hon. Member for Sparkbrook referred to my hon. Friend the Minister's letter, which I understand was published in a newspaper, but I am afraid that I have not seen that letter.
§ Mr. Knight
Well, whatever happened to the letter, the right hon. Gentleman referred to eight hurdles that the prosecution must clear. From my understanding of the Bill, I believe that there are nine hurdles to be cleared to ensure the prosecution of a journalist. It is not right for some members of the press to say that this is a repressive measure.
§ Mr. John Patten
Let me clear up the matter of the letter. Is my hon. Friend aware that I did not write a letter to the press, as suggested by the right hon. Member for Sparkbrook? Rather, I gave an interview to The Times in which I set out the hurdles that the prosecution would have to clear to prosecute a journalist successfully. That was the source and it was entirely accurate. My hon. Friend the Member for Banbury was spot-on when he directed the attention of the House to it.
§ Mr. Knight
I am grateful to my hon. Friend for that clarification and I am glad that he has confirmed that nine points have to be proved by the Crown to pursue a journalist for a breach of the provisions. If that is the case, members of the press should be praising my right hon. Friend as the most liberal Home Secretary since 1911.
This is an excellent Bill. It is a well-balanced measure and I hope that the whole House will support it today.
§ Mr. Tam Dalyell (Linlithgow)
I believe that the question asked by the hon. Member for Derby, North (Mr. Knight) about the position of the discloser is extremely important to all of us in the House.
528 I shall speak quietly to the Home Secretary and Minister in the hope that the questions that I put will he answered, possibly by a letter—not to me, but placed in the Library before we start discussing this Bill in Committee. Frankly, having spent 11 days at the Old Bailey during the trial of Mr. Clive Ponting, I realise that this is a very difficult, delicate, grey area.
One: is it unfair to say that this Bill could be subtitled the "Anti-Ponting Jury Bill"? It looks to me as though Ministers dislike the 1911 Act because it does not guarantee that those who reveal information can be prosecuted when convenient and found guilty. If that is unfair, may I be told by letter why?
Two: I have a personal request of the Home Secretary. It ill becomes him to use terms of abuse. That is not his style. Who were the obfuscators? I genuinely do not know. We may be wrong, but we should not be treated with that kind of abuse if we are to have a sensible Committee stage. Such abuse is not in the Home Secretary's nature. If I am a melancholic obfuscator, I want to be told why.
Three: is it fair to say that the Bill is designed to prevent the newspapers, radio and television from putting over stories and facts which the Government do not want made public, to make certain beyond peradventure that those prosecuted are found guilty in future? We must know whether this is a measure to deal with perverse juries in trials like Ponting's. That is how it looks to a number of serious people. I note that the Home Secretary is knitting his brow in a pained way. I simply want to know why the Home Secretary thinks I am wrong about that.
Four: having read the Bill, it seems to some of us that it is constructed for one purpose above all others—to put a stopper in the loopholes revealed by recent cases which have been awkward for the Government. My hon. Friends the Members for Clydebank and Milngavie (Mr. Worthington) and for Hackney, North and Stoke Newington (Ms. Abbott) have already outlined the cases and to save time I need not repeat their excellent speeches. However, my point must be answered in a letter to all of us who have taken part in this debate.
Five: I realise that it may be difficult to refer to previous. cases, as there may be retrospective hypothetical situations, but it is fair to ask the following question. Under this Bill, I am sure that Sarah Tisdall would still be found guilty, but are we right to think that The Guardian would be found guilty as well? Could The Guardian have been prosecuted for printing the documents? From our reading of the Bill, it seems that it could. I would like that confirmed.
Six: under the Bill, are we right to assume that Cathy Massiter could be prosecuted with a greater chance of success? Not only would it be illegal to report her allegations. If a newspaper or the BBC reported Massiter-like allegations, Ministers would presumably be cocking a proverbial snook at their critics, for would they not say then that illegal actions undertaken by MI5 are legalised under the new security legislation? If I do the Government an injustice, let us be told.
Seven: I asked a former Prime Minister, the right hon.. Member for Old Bexley and Sidcup (Mr. Heath), a question about someone acting as Desmond Morton acted for Churchill. The former Prime Minister said that the Home Secretary would have to answer. The Home Secretary shook his head, and I believed that he thought that anyone in Desmond Morton's position would not be 529 prosecuted. May we have some reflections on that? I believe that some people think that someone like Desmond Morton would find himself in prison.
Eight—in all these points I hope that Ministers will correct me in a letter if I am wrong—could Ms. Massiter be prosecuted under one of the new-fangled provisions in the new legislation for putting out "false information" about MI5?
Nine: under the Bill, if another Peter Wright were to publish in Australia, would it be illegal to report anything Wright wrote for the benefit of the public in the United Kingdom, even though the rest of the world could read about it as they pleased? That question was implied by my hon. Friend the Member for Hackney, North and Stoke Newington. It would be useful to have the Government's reflections about that before the Committee stage.
Ten: under this Bill, would it be illegal for Duncan Campbell and the BBC to make a Zircon film or for the New Statesman or any other journal to write an article about Zircon? If so, we could cut out the need for highly publicised and damaging special branch raids on the BBC at Queen Margaret drive in search of Campbell's sources. If I have got it wrong, let us be told.
§ Mr. Dalyell
I think that I have got it right, because I have taken legal advice about it.
Eleven: as to national and sectional interests, will the Home Secretary explain what he was trying to say on that subject in his opening speech? His remarks were a little obscure. It may be that I was being thick about it, but I do not think that that can be said of all my right hon. and hon. Friends. It was not clear what distinction the right hon. Gentleman was drawing.
Twelve: are we being unfair in suggesting that the Home Secretary's distinction between the front pages of national newspapers and articles in technical journals borders on the absurd? The Russians will take into account—but the hon. Member for Wycombe (Mr. Whitney) shakes his head.
§ Mr. Whitney
The point is not necessarily whether the Russians know a fact, but whether it suits the Russians or some other party to surface a fact and have it more widely distributed for other reasons. If I may say so, with respect to the hon. Gentleman, he thinks in simplistic, Len Deighton-type terms. The world has moved on and is a more subtle place. Prior publication is a more dangerous area than the hon. Gentleman seems to understand.
§ Mr. Dalyell
So that I may understand before Committee stage, let there be a letter on the matter, not just for myself but placed in the Library, so that all right hon. and hon. Members interested in the Committee stage will know the Government's reflections on the hon. Gentleman's point.
Thirteen: having spent 11 days at the Old Bailey during Clive Ponting's trial, I cannot understand how, under this Bill, Bruce Laughland or anyone else could mount a defence at the trial. Would the evidence of a Government cover-up introduced at that trial be allowed under the provisions of the Bill? I think not. I understand also that, under clause 3 of the Bill, my right hon. Friend the 530 Member for Morley and Leeds, South (Mr. Rees) and Professor Wade, Master of Caius, would not be permitted to testify. That is what Ponting himself has written in today's press, and I know that he has grounds for doing so. If that belief is wrong, let the House be told.
Fourteen: at first sight, the Bill has been devised to stop leaks. Do the Government imagine that they will in any way be successful in that attempt? It seems that, in practice, the Bill will make leakers rather more sophisticated, as they have been recently. People are becoming better at it. In this context, I hope that I shall not be ruled out of order if I say that people such as Mr. Mogg put their accounts of delicate events and other matters in bank vaults, as has Colette Bowe. Heaven knows why civil servants should put their accounts of events in bank vaults if they tally with those of Ministers.
Fifteen: there is also the question of leaks to Members of Parliament. What will be the position if a right hon. or hon. Member, or anybody else, discloses information? The hon. Member for Wycombe made certain remarks. I shall not argue the point, but I do not see what else I should have done in the case in question other than go to the Chairman of the Select Committee. I did not go to the press. I believe that I behaved perfectly responsibly in keeping within parliamentary procedure. We can return to that point in Committee. I will only say that part of the trouble was misbehaviour by others.
On the third day of the Ponting trial, what did we hear other than the clever Richard Mottram, private secretary to the Secretary of State for Defence, reveal that the report of the commander-in-chief, Sir John Fieldhouse, was altered behind his back. That seems a good example of misbehaviour—altering the commander-in-chief's report behind his back.
If the Government bring a case under the new legislation, they had better pick their first case carefully because it could easily end in a fiasco.
Finally, I shall quote the words of Bruce Laughland from the end of his submission at the Ponting trial, which are very moving:If what he"—that is, Clive Ponting—did was a crime for which he renders himself liable to punishment, you know it could be a licence for Ministers to withhold from Parliament information with the tame acquiescence of their Civil Servants and so infringe our liberties. And if what he did was a crime in English law, you say so. But if it is, God help us, because no government will.
§ Mr. Richard Shepherd (Aldridge-Brownhills)
I detect a curious feature in the way in which the Government are approaching legislation. It seems that we are almost legislating to appear before the European Court on a whole range of issues, of which this is one. The Prevention of Terrorism (Temporary Provisions) Act 1984 has brought us before the Court. The letter that my right hon. Friend the Home Secretary sent to the BBC governors and to the IBA will bring us there, and last week we introduced the Security Service Bill. I have no doubt that that will ultimately lead us there as well. As a party, we should be cautious in legislation that ensures that we are reviewed directly in front of the European Court. It seems that we no longer attest to the common rules and principles of our democracy that have informed it for the past 200 years. The Government should be mindful of that. 531 Why do I say that this Bill will bring us in front of the European Court? The most obvious reason is the absolute offence that the Bill establishes. An absolute offence means that a man or woman in public service, who has been or is at present in the narrow area of the security services, may never say anything. If they do say something, they will have committed an offence and all that the prosecution will have to demonstrate is that they have said something in contravention of an onerous law that insists, by virtue of the fact that they have said something relating to their former or present service, that they have committed an offence.
§ Mr. Shepherd
One should consider crime, fraud and high iniquity, which have been tested and weighed in the courts—the High Court, the Court of Appeal or the House of Lords. All those courts have said that one cannot enjoin on a citizen an absolute duty of confidence in the face of iniquity. Yet the Government throw that out of the window, knowing that they will ultimately come in front of the European Court on this issue if they persist with the Bill. They do not see a way to remedy that or to give justice to the citizens of this country.
The public interest defence is one way to remedy that, and it is not as it has been caricatured by my right hon. Friend the Home Secretary in the White Paper. It can be narrowly defined—that a civil servant has to adduce evidence of crime or fraud and it can be brought into play only after the Civil Service has exhausted all internal remedies. If civil servants go directly to the public, they will deny themselves that defence.
§ Mr. Shepherd
I regret that I shall not give way. I am already running into ministerial time.
The other point that causes me concern is clause 3 and its definition of international relations and organisations. I have exchanged correspondence with the Home Secretary on that, and we have been going round in circles. The hon. Member for Caithness and Sutherland (Mr. Maclennan) made an important speech on a range of issues, which I am unable to cover because of lack of time.
The qualifying basis on which a prosecution may be secured is that little phrase that has been slipped in, which states that damage may have taken placeby reason of the fact that it is confidential".That is the test that we now must meet. I know of almost no public document that does not have confidentiality in it.
Let me refer to the example given by my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan), a former Home Secretary. He thought that the clause referring to international organisations should be dropped. The Government now seem to be legislating by Home Office press release. The extraordinary extravagance of the language of my right hon. Friend the Home Secretary on this matter has confused the issue.
Let us take two international organisations as examples —OPEC and the International Tin Council. They are producers or cartels against the public interest as we would define it. They are trying to maintain the price of their commodities against all our interests. They will be regarded as "international organisations" and information 532 revealed about them will give rise to a crime under the Bill. At present, there is no crime in that area in our statute book. It is an inhibiting factor.
My right hon. Friend the Home Secretary may yet again nod his head, but the fact is that the Foreign Office is quite incapable of identifying what constitutes an international organisation. We have been around this before. The Foreign Office cannot even tell us the international organisations with which it has done business this year. On the basis of the fact that clause 3 defines international relations as follows:'international relations' means the relations between States, between international organisations",OPEC is an international organisation, as is the International Tin Council.
My right hon. Friend the Home Secretary said that he wanted the Bill to be effective, enforceable and reasonable. I do not think that, as drafted, the Bill is reasonable. It does not meet that criterion. Because I have doubts about my right hon. Friend's arguments, I wonder whether the meaning of "confidential" should be clarified by amendment. If "international organisations" covers the Ghana Cocoa Marketing Company (UK) Ltd., the International Tin Council, OPEC and all the Common Market subsidiary organisations, it is an onerous and wrong principle.
I am nervous about saying that the difficulty that I have in voting for the Bill and my reason for therefore voting against it is that, all the way through the process from January to the White Paper and to this debate, the Government have consistently yielded very little on the principles. The underlying principle is the citizen's right to be able to hold Government accountable. We lose sight of that so often.
The Executive's perception of the way in which the world ought to be is, "If we can close unto ourselves and hold unto ourselves the information, all the inconveniences of having to manage this House of Commons go out of the way." It is not in the interests of the House of Commons to pass the Bill as drafted.
§ Mr. Robin Corbett (Birmingham, Erdington)
It is a pleasure to follow the hon. Member for Aldridge-Brownhills (Mr. Shepherd), and it is a shame that the Government did not allow two days for this debate. I hope that the Home Secretary and others heard the remarks by the right hon. Member for Old Bexley and Sidcup (Mr. Heath) about ensuring adequate time when we come to Committee.
I should like first to congratulate the Minister on his reply. I expect that we shall have the usual knockabout accusing the Opposition for opposing the Bill. Perhaps, given the time of the year, it will be in pantomime costume. I hope that the Minister enjoys himself. I make no apology for the Opposition, who are guilty only of thinking about the Bill and that has led us to the conclusion that we should oppose it.
It was the Prime Minister who, in 1960 as a newly elected Member, set the proper background against which we should judge the Bill. When introducing a private Member's Bill to expand the right of the public to attend council meetings, she said:the paramount function of this distinguished House is to safeguard civil liberties rather than to think that administrative convenience should take first place."—[Official Report, 5 February 1960; Vol. 616, c. 1357-58.]533 Those were wise words, but not for the first time they have been long since forgotten by the right hon. Lady and her Government.
At heart this Bill is all about the convenience of the Government, and has nothing to do with civil liberties or freedom of information. That is why it is an unwelcome and unwanted Christmas present. As my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), my hon. Friends and some Conservative Members have shown, the Bill fails on every major count. It will not increase public access to information. It will provide tighter controls over information which the Government decide they want to keep secret, and over people, not just inside Government but outside Government service, who have access to such information —even unto the grave. Even if information comes to a journalist or anyone else, second, third or even tenth hand, if its disclosure was unauthorised, it will be an offence to receive it or to pass it on.
In many areas of the Bill, there is no test of specific harm. People can and will be convicted and imprisoned without there being any evidence that actual harm has been done to the national interest. Newspapers will have to decide, when they pick up a story about the intelligence or security services, whether all the potential harm attached to that report has already been done. There is no way in which they can know. Any newspaper's lawyers will advise, "Do not publish." In a free society, we take the view that the motto should be, "Publish and be damned" when there is no evidence of harm to our security.
In our debate in July, the Home Secretary said:Our central objective is to narrow the law so that it applies only to disclosure without authority of official information which"—these are the words that matter mostis likely to give rise to an unacceptable degree of harm to the public interest."—[Official Report, 22 July 1988; Vol. 137, c. 1413.]If that is what the Bill set out to do, we would support it, but it does not. Those words are another example of the Government's doublespeak. The Home Secretary used the expression, "unacceptable degree of harm". Why is there no proper test of actual harm in most of the Bill? The Home Secretary mentioned the public interest. Why do the words "public interest" appear nowhere in the Bill? His words were designed to mislead. Yet again today he said one thing while the Bill says another.
When the Home Secretary spoke of unacceptable harm, he was near to the Franks report definition of a serious injury to the security of the nation or the safety of the people. The concept of unacceptable harm to the public interest is something with which we agree. It presupposes that there are different degrees of harm—that at one end disclosure is acceptable because no real damage is done, and that at the other it is unacceptable because damage is done to the nation's security. If the Home Secretary believes that—the words are his—why has he not put them in the Bill? Has he changed his mind since July, or has he had it changed for him?
On 22 July, the Home Secretary boasted:No Government have made so much official information available to the public or Parliament"— [Official Report, 22 July 1988; Vol. 137, c. 1418.]He cited the prison system, press visits to Scottish prisons, reports made by the schools inspectors and even press 534 visits to parts of Porton Down and Aldermaston. That is the trouble: his very boasting misses the point. The real question for the House is why these matters were ever made secret in the first place. The Home Secretary's boasting reveals an attitude—that freedom of information is based on the Government's claim to decide on and know what the people they are supposed to serve are able to know. That is to turn the argument on its head. In a democracy, there should be a general right to know everything except that which touches on the safety and security of a nation.
Still boasting, the Home Secretary described what was happening as, "an earthquake in Whitehall". He must know that it did not even rattle a teacup, let alone shake the doors to rooms full of information which should never have been locked away. One of the most wicked aspects of what is proposed is that entirely innocent people can, as in the past, have their lives ruined by the wrongdoings of the intelligence services. There is nothing that they can do about it. An M15 officer, M14 officer or other Government officials—
§ Mr. Corbett
If the Minister will listen, he will see that they are related. Those people will commit a criminal offence if they reveal misbehaviour on the part of the intelligence or security services. It will be a crime for any newspaper, television programme, book or magazine—or indeed anyone uttering such statements—to disclose misbehaviour or wrongdoing. There are four cases of such behaviour on record. Under the Bill, they would never see the light of day.
Case one involves a former distinguished Labour Minister—Niall MacDermot—who was denied high office because of a false allegation, made by the security services, that he had married a Soviet agent. False allegations were leaked to colleagues here and to selected journalists. Details of that malpractice came to light only through the publication of a book by David Leigh called "The Wilson Plot" which, under the Bill, would be banned.
The second case involved Jack Jones, a distinguished former general secretary of the Transport and General Workers Union who was falsely and ridiculously accused of being a Soviet agent—[Laughter.] It is remarkable that anybody can find this funny. Misleading MI5 files were used to advise Ministers to prevent him from being brought into Government between 1965 and 1968. We know that only through "The Wilson Plot" book, publication of which—I remind the House—would be banned under the Bill.
The third case involves Miss Isabel Hilton who was falsely accused of being subversive after reading Chinese at university and joining the Scotland-China Association. Against that background she was denied a job at the BBC. Miss Hilton found out about that only after a report in The Observer—[laughter.] I repeat to Conservative Members, who find that funny, that under the Bill that report could not be published in The Observer.
The fourth case involves my hon. Friend the Member for Lewisham, Deptford (Ms. Ruddock), on whom a file was opened because of her work with the Campaign for Nuclear Disarmament. That is a proper, legal organisation, as the former Home Secretary, the right hon. and learned Member for Richmond, Yorks (Mr. Brittan), reminded us. The pretext was that she was a contact for 535 Soviet journalists. That came to light only because Miss Cathy Massiter, a former MI5 officer, spoke out on the "20/20 Vision" television programme. Under the Bill she would have committed a criminal offence and the programme makers would be similarly treated.
Clause 15 makes it an offence for any British citizen or Crown servant to disclose information about the security or intelligence services when abroad. It follows logically from other provisions and will doubtless afford successive Cabinet Secretaries expensive trips to the far corners of the globe where ex-spies seem to settle.
What about satellite television? What happens if Mr. Rupert Murdoch's channel broadcasts out of Luxembourg a news item that involves security or intelligence in the United Kingdom? Mr. Murdoch is an American citizen and. I assume, outside the scope of the Bill—or is he? Are the Government contemplating starting extradition proceedings in the New York courts to bring him back here to be tried for unauthorised disclosure in the United Kingdom? What about the thousands, perhaps millions, who see such news via a satellite broadcast? Under the Bill, they will be caught, not for watching it but for telling their neighbour or someone at work about what they have seen and heard. The same would be true if they videod such a transmission. [HON. MEMBERS: "Ridiculous."] It is not ridiculous. Read the Bill. If a British citizen is not involved in such a satellite broadcast nothing can be done, except to British citizens who see and hear the broadcast because they have received unauthorised information and mentioned it to a relation, friend or neighbour. The world can know of a deed that did not even cause harm to the interests of the nation, but we who live here are not, under the Bill, allowed to know it. How is that for open Government? The lawyers will thank the Government from the bottom of their bank balances for such a gift.
How does the Bill stand in relation to article 10 of the European convention on human rights which, as the Minister knows, guaranteesfreedom to … receive and impart information … without interference by public authority.Has the Minister examined the Bill in light of that convention or will the Bill be yet another case—there have been more than 30 so far—where Britain has to be dragged before the European Court before our liberties can be safeguarded? Even the right hon. and learned Member for Richmond, Yorks protested, when we discussed the White Paper, at the wider catch-all scope of proposals relating to defence. He said:It would be easier to prove that the material that is disclosed prejudices something than that it does serious harm … I do not see any justification for what amounts to a tightening up of proposals that were originally put forward in 1979."—[Official Report, 22 July 1988; Vol. 137, c. 1430.]On the use of criminal law in that area, the Franks report said in paragraph 118:This means that the criminal law would not apply to information the unauthorised disclosure of which would cause some injury to the interests of the nation, but short of serious injury.I made that point earlier.
Paragraph 119 sets out what the Franks committee said should bea proper basis for the employment of criminal sanctions the unauthorised disclosure of official information which would be likely to cause serious injury to the security of the nation or the safety of the people. If criminal sanctions are justified at all, they are justified for this purpose. If they are to be reserved for what is most important, they should not go any wider.
536 The Bill ignores those important words and stretches the criminal law more widely. It replaces the large net with the large mesh, which was provided by the 1911 Act, with a smaller net with a smaller mesh, the better to catch and silence those who, at the end of the day, mainly cause this Government embarrassment.
There is a supreme irony about having this debate today. It is 21 December, the darkest day of the year. The Government have chosen darkness and rejected the chance to let the light into vast areas of Government, which could only benefit from that. Proper steps to protect our national interests from espionage and subversion are one thing, and would find universal support; casting a wide net over information outside those areas is another and it shows that, at basic level, this is simply a Government who do not trust the people. They cry freedom and they act like tyrants.
I tell the Government that there is a consensus on the Bill—something for which the Prime Minister has repeatedly asked—but that that consensus does not belong to the Government; it belongs to the Opposition and to some distinguished right hon. and hon. Members on the Conservative Benches. Ours is a consensus for freedom, openness, honesty and accountability because—[Interruption.] I am sorry that the hon. and learned Member for Burton (Mr. Lawrence) jests about these matters when they lie at the heart of our democracy. Ours is a consensus for freedom, openness, honesty and accountability, which are all precious ingredients, precious parts of our democracy. Part of our anger about this Bill is that it is precisely those things that the Government reject. This Bill demeans even the Government in the eyes of all those who truly care about our safety, security and democracy. That is why we shall vote against it tonight.
§ The Minister of State, Home Office (Mr. John Patten)
I congratulate the hon. Member for Birmingham, Erdington (Mr. Corbett) on his speech. He was poetic, almost Shakespearian, as befits one coming from middle England. We shall see how many divisions there are in his consensus when we vote tonight. That will be the test.
We have had a long and thorough debate. When I replied to the debate on the White Paper in the summer, I said that we would listen to what hon. Members said. My right hon. Friend's Bill demonstrates that we have listened to the points made and have made changes that are reflected in the Bill. That is why I am convinced that so many of my right hon. and hon. Friends support the Bill.
An impressive list of six thoughtful and independent-minded hon. Members have spoken strongly in support of the Bill. I refer to my hon. Friends the Members for Wycombe (Mr. Whitney), for Bristol, East (Mr. Sayeed), for Banbury (Mr. Baldry)—[Interruption.] The frivolous mood that so captured Opposition Front Bench Members during the tea period seems to have continued during the after-dinner period. I refer also to my hon. Friend the Member for Westminster, North (Mr. Wheeler), who made a remarkable speech, my hon. Friend the Member for Ryedale (Mr. Greenway), who criticised us for perhaps going too far—clearly we shall have to mark his points carefully in Committee—and my hon. Friend the Member for Derby, North (Mr. Knight), who made a notable contribution. 537 I am sorry that my hon. and learned Friend the Member for Burton (Mr. Lawrence) and my hon. Friend the Member for Wyre Forest (Mr. Coombs) were not able to catch your eye, Mr. Speaker, because of the limited time. I was glad to be in the Chamber to listen to the speech of the hon. Member for Clydebank and Milngavie (Mr. Worthington)—he is not present at the moment—if only to demonstrate my expertise in pronouncing his unpronounceable constituency. Also, I do not see in the Chamber the hon. Member for Linlithgow (Mr. Dalyell), who asked my right hon. Friend 15 specific questions and asked for a letter to be placed in the Library. We shall look at the record of what the hon. Member for Linlithgow had to say.
Three right hon. and hon. Conservative Members have doubts or have expressed outright opposition to the Bill. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) is the only Conservative Member who has spoken in outright opposition to the Bill. We respect his views, although we disagree. My right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath), who for a proper reason cannot be present tonight—he has written to say why he cannot be here—asked a specific question about the parliamentary handling of the Bill. As the provisions of the Bill go to the heart of government, we take the view that the Bill should be considered by a Committee of the whole House. Therefore, after Second Reading we shall move that the Bill be committed to a Committee of the whole House. I shall certainly draw to the attention of my right hon. and learned Friend the Government Chief Whip the important points that were raised by my right hon. Friend the Member for Old Bexley and Sidcup about proper consideration of the Bill.
I do not know which way my right hon. Friend the Member for Old Bexley and Sidcup would have voted if he were here tonight, but I know that the vote of my right hon. Friend the Member for Brighton, Pavilion (Mr. Amery) is in the balance and, to a certain extent, hangs on whether I am able to satisfy him by giving the reassurances that he specifically sought from me. I shall attempt to answer his questions and, I hope, reassure him.
My right hon. Friend is particularly concerned about the position of a serving member or former member of the security and intelligence services who wishes to publish his or her memoirs or reflections on his or her life and times in the security services. I should like to give my right hon. Friend and the House a little more detail of the authorisation procedures involved, some of which may be new and novel to the House of Commons. I can give my right hon. Friend the necessary reassurances that he sought. I listened carefully, as he enjoined me to do, to everything that he said.
All members of the services know that they should not write about their experiences in any way that might harm the work of the services or damage the national interest. I am sure that no hon. Member would dispute that. However, if a member or former member of the services wished to write material relating to his or her work, he would first talk to a senior officer about his plans for publication. All serving officers know to whom they should turn to talk about such matters, and all retired staff also have a point of contact with the relevant service. So if a member or former member prepares material which 538 may have some connection with his or her work he or she will be required to send the book or article to the relevant service. That is made clear to all members of the services on appointment.
No member of the services is unclear where he or she should turn if he or she wishes to seek clearance. The draft of the book or article will then be considered carefully by the service to identify points of sensitivity. As my right hon. Friend, with his distinguished record, will appreciate all too well, that can be done only by staff who have a detailed knowledge of the consequences of the publication of material affecting particular areas. They will then submit their reasoned analysis to the senior members of the services. So the sole criterion for authorising publication is whether publication of a particular piece of information will jeopardise national security directly or indirectly. It is a judgment about considerations which are relevant today, not about past history or former embarrassments.
If a point of difficulty were to be identified it might still be possible through discussion to agree with the author a change in the text to overcome the problem. My right hon. Friend has gone through this procedure when publishing his own works.
§ Mr. Patten
If I could continue to explain in full the points that I want to make to my right hon. Friend the Member for Pavilion, I will then give way. I want to set out the procedure so that the House can understand each step. If the problem is larger than just a few minor textual changes or if agreement cannot be reached, sometimes authorisation will not be given. My right hon. Friend will understand that authorisation cannot be given on every occasion, but I can assure him that this decision would never be taken by one person alone, but by senior members.
My right hon. Friend then asked where a member of the service would turn if he still felt dissatisfied. He will turn to the staff counsellor. At present our distinguished staff counsellor is Sir Philip Woodfield. That is a matter of public knowledge. This applies not just to present members but to former members of the services. If a member or former member is seeking to use publication to report anxieties that he or she may have about his or her work or former work, or if he or she is concerned about the reasons for a refusal of publication, he or she can go to the staff counsellor who can, if necessary, put him or her in touch with the relevant Secretary of State or my right hon. Friend the Prime Minister. Following those reassurances, I hope that my right hon. Friend the Member for Pavilion will be persuaded to join us in the Division Lobby tonight.
§ Mr. Allason
This is a serious area of difficulty and one that is recognised by hon. Members on both sides. We accept that there is some sort of mechanism for authorising publication, but should the sole arbiter of these matters be the former Department of a particular employee? Would it not be better to have a publication review board similar to the one that works so well in America?
§ Mr. Patten
It would be extremely difficult sometimes for a publication review board to go into areas which were still of operational importance to the security of the nation, its economy or the welfare of its citizens. The 539 system that I have outlined, parts of which have been outlined to the House for the first time tonight, gives the sort of cast-iron assurances that someone who wishes to publish has redress —[Laughter.] As usual, there is raucous laughter from the Labour Front Bench. That is about all that has characterised their behaviour in today's debate.
I listened carefully to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley)—
§ Mr. Patten
I ask the hon. Gentleman to forgive me for not giving way to him. I am anxious to answer the specific question that was included in his speech before I reach the end of my remarks.
As I have said, I listened carefully to the right hon. Member for Sparkbrook, as I always do. He composes his speeches extremely well and, therefore, I listened intently when he said that he felt that the object of replacing the discredited and absurd section 2—I think that that is how he described it, but his words will appear in Hansard tomorrow—was to make an improvement. I welcome the fact that he feels that the result will be an improvement. I think that that sentiment was expressed also by the right hon. and learned Member for Warley, West (Mr. Archer). Having said that, however, both the right hon. Gentleman and the right hon. and learned Gentleman proceeded strongly to criticise the Bill.
It is to be welcomed also that the right hon. Member for Sparkbrook recognised—some of us had doubts whether he did—that it is necessary to have sanctions for harmful disclosure. That, at least, is an advance. The need for sanctions was recognised also by the hon. Member for Caithness and Sutherland (Mr. Maclennan).
The debate rolled on and then we began to understand what Labour Members really thought about the Bill. The veil was lifted as the right hon. Member for Sparkbrook continued to speak. Their thinking was beautifully summed up in a remark made a few moments ago by the hon. Member for Erdington, who spoke of his attitude to official secrets in a free society as "publish and be damned".
§ Mr. Corbett
Let us get this right. Will the Minister accept that I said, "The motto should be 'publish and be damned' where there is no evidence of harm to real security"?
§ Mr. Patten
That is the entire message of the Bill. That is exactly what the Bill sets out to do. It has tests of harm throughout each of the clauses.
§ Mr. Patten
I see no need to withdraw and I do not intend to do so.
The right hon. Member for Sparkbrook got into a terrible muddle over harmful disclosures of foreign confidences. I shall give a couple of examples in an attempt to clear up the muddle in which he so obviously found himself. First, we take extremely seriously our international obligations to organisations such as NATO. If, for example, we receive from NATO confidential information 540 about defence strategy, and we fail to protect it, the confidence of our NATO partners would be damaged and our standing in that organisation would be reduced. As a consequence, our ability to pursue the defence interests of the United Kingdom within NATO would be jeopardised. I will give the right hon. Gentleman a second example. I hope that he is supportive of the work of Trevi, as I think that all members of political parties in western Europe are. If a state that co-operates with us within the Trevi arrangements provided information about the activities of international terrorist organisations, for example, operating in that country and in the United Kingdom and we failed to protect that information, which would he an extremely serious matter, we could not expect that state again to supply us with information. That would obviously jeopardise this country's interests by impairing the effectiveness of the Trevi arrangements through which we combat international terrorism with considerable success. I look to the right hon. Member for Sparkbrook to give the support of the Labour party on these critical issues.
The two central issues of principle in the debate have been whether there should be a public interest defence and a defence of prior publication. Those who have spoken in support of a public interest defence have served only to illustrate what my right hon. Friend the Home Secretary said in his splendid opening speech. Those who advocate such a defence are seeking to remedy not the criminal law but the resort of the civil law. Clearly, there is confusion in the minds of the right hon. Member for Sparkbrook and his right hon. and hon. Friends.
The Government do not accept that the criminal law is the right place to balance one Crown servant's perception of the public interest against the specific and serious damage that his disclosure has caused. Incidentally, the definition of a Crown servant, which deeply interested the right hon. Member for Chesterfield (Mr. Benn), is set out in full in clause 12. If that perception and damage were balanced under the criminal law, that would alter the role of Crown servants in this country and their relationship with the Government of the day. A Crown servant or civil servant would become a free agent, responsible for his independent decisions only to the court. That is not the way to maintain an effective and impartial Civil Service, which I still believe is one of the great glories of the British constitution. An effective criminal law must be clear and predictable in its operation and that is its basis in this country.
If the House believes that this cannot or should not be done because it wants to leave a gaping loophole through which a Crown servant can leak information to a journalist or anyone else, it will be deciding one of two things—either that this is an area into which the criminal law should not enter and which should be left entirely to the civil law, or that it wants such a muddle and fuzz that the criminal law will be a dead letter the day the Bill is enacted.
The Government recognise, as does my right hon. Friend, who has done so much to promote openness in Government since he became Home Secretary—[Interruption.] The right hon. Member for Sparkbrook is envious because he does not get compliments like that. The Government recognise that there is a place for a Crown servant with a worried conscience to go, but that place is not the front page of a newspaper or a surreptitious dispatch in a brown envelope. That is why we have a clear 541 system of access to the head of the Civil Service and, in the case of members of the intelligence and security services, to the staff counsellor.
Some hon. Members have discussed the public interest and the damage done to it as though there were an agreed and precise formulation which a jury had only to balance, but that is not so. We are discussing the criminal law, not the civil law. We cannot agree that the criminal law should admit a defence which claims that only a little harm was done to salve someone's conscience. That is like arguing that only a small murder had been committed to rid the globe of a scoundrel. Such an argument is incompatible with the criminal law.
The prior publication defence is another central point of principle for which we have heard some eloquent pleas, but we have heard no coherent argument why people who disclose information knowing that it will do serious harm to the public interest should not be prosecuted like other people. Yet that is what the prior publication defence, as it has been presented today, amounts to. It is puzzling that those who support our decision to leave it to a jury to decide whether a particular disclosure is harmful also press us to take away such a decision from a jury when there has been prior publication. That sounds suspiciously like special pleading on behalf of the media—
§ Mr. Patten
If the hon. Gentleman will forgive me, I referred to his speech earlier when he was not in the Chamber.
My hon. Friend the Member for Wycombe was spot-on in dealing with this issue, as was my hon. Friend the Member for Bristol, East in the course of his notable contribution.
I want now to fulfil my pledge to respond to the question asked by the hon. Member for Caithness and Sutherland about the Justice report. This also allows me to answer the point about the European convention made by the hon. Member for Erdington. I say unequivocally to both hon. Members that there is no evidence and no reason to believe that the Bill as drafted will in any way contravene the European convention on human rights. If we had thought that it would do that, we should not have brought it to the House in its present form.
The European convention on human rights specifically recognises that the protection of official secrets is a legitimate concern for any Government. The Bill has been carefully restricted only to those areas that require the protection of the criminal law. Where disclosure of such information may not always be harmful, specific harm tests have been introduced. All six of my right hon. and hon. Friends who spoke in support of the Bill mentioned those tests. The tests have been ignored by the Opposition and in Committee we shall have to take them through the Bill line by line.
In his marvellous speech, my hon. Friend the Member for Banbury summed up all the protections that are available to the media. The House should recognise that we have constructed the Bill in such a way that no media defendant will be convicted except on the clearest evidence that he knew or had good reason to know the harm that 542 he was doing. [Interruption.] It was not my article in The Guardian. I am not allowed to accept payment from The Guardian. I write for it gratis.
The Bill deserves the support of all my right hon. and hon. Friends. The Security Service Bill deserved support because it put the Security Service on a statutory footing and provided avenues of redress via a tribunal and commissioner, as my hon. Friend the Member for Torbay (Mr. Allason) said in an intervention, and because it gives all the protection of the European convention on human rights.
The present Bill deserves the support of the House because it will remove from the criminal law unnecessary restrictions on freedom of speech and the freedom to publish. It will ensure that secrets which must continue to be protected by the criminal law will be effectively protected. It will place on the statute book clear, reasonable and enforceable legislation. For the first time it will define in most circumstances the harm arising from the unauthorised disclosure of official information. It will leave it to the jury to decide whether or what harm has been done. The Bill will provide a fair and effective law on official secrets. That is surely what the House seeks and the choice before the House is clear.
Opposition speeches, and especially the speech by the right hon. Member for Sparkbrook, were wholly appropriate to this festive, melodramatic and pantomime season. In recent weeks the Opposition have denigrated our security services. They have belittled the importance of national security and forgotten their own record in Government. The Government of which the right hon. Member for Sparkbrook was a member made no attempt to introduce anything remotely approaching the Bill. The Labour party has been so long out of Government that it has forgotten that ministerial responsibility for the safety of the nation is right, and it has so little hope or expectation of office in the future that it no longer shrinks from playing party politics with security matters.
The Opposition's recent record on the Prevention of Terrorism (Temporary Provisions) Bill, the Security Service Bill and now on the Official Secrets Bill is shameful. The Labour party's comments are wholly inaccurate and ill conceived, compared with the Government's proposals which are the sensible way to reform the law. I commend the Bill to the House.
§ Question put, That the Bill be now read a Second time:—
§ The House divided: Ayes 298, Noes 221.546
|Division No. 27]||[10.00 pm|
|Alexander, Richard||Brooke, Rt Hon Peter|
|Allason, Rupert||Browne, John (Winchester)|
|Amery, Rt Hon Julian||Bruce, Ian (Dorset South)|
|Amess, David||Buck, Sir Antony|
|Arnold, Jacques (Gravesham)||Budgen, Nicholas|
|Arnold, Tom (Hazel Grove)||Burns, Simon|
|Ashby, David||Burt, Alistair|
|Atkins, Robert||Butcher, John|
|Baldry, Tony||Butler, Chris|
|Bellingham, Henry||Butterfill, John|
|Benyon, W.||Carlisle, John, (Luton N)|
|Biffen, Rt Hon John||Carrington, Matthew|
|Blaker, Rt Hon Sir Peter||Carttiss, Michael|
|Bottomley, Peter||Cash, William|
|Bottomley, Mrs Virginia||Chalker, Rt Hon Mrs Lynda|
|Bowis, John||Channon, Rt Hon Paul|
|Brandon-Bravo, Martin||Chapman, Sydney|
|Brazier, Julian||Chope, Christopher|
|Churchill, Mr||Hogg, Hon Douglas (Gr'th'm)|
|Clark, Hon Alan (Plym'th S'n)||Holt, Richard|
|Clark, Sir W. (Croydon S)||Hordern, Sir Peter|
|Clarke, Rt Hon K. (Rushcliffe)||Howard, Michael|
|Conway, Derek||Howarth, G. (Cannock & B'wd)|
|Coombs, Anthony (Wyre F'rest)||Howe, Rt Hon Sir Geoffrey|
|Coombs, Simon (Swindon)||Howell, Rt Hon David (G'dford)|
|Cope, Rt Hon John||Howell, Ralph (North Norfolk)|
|Cormack, Patrick||Hughes, Robert G. (Harrow W)|
|Couchman, James||Hunt, David (Wirral W)|
|Cran, James||Hunt, John (Ravensbourne)|
|Critchley, Julian||Hurd, Rt Hon Douglas|
|Curry, David||Irvine, Michael|
|Davies, Q. (Stamf'd & Spald'g)||Jack, Michael|
|Davis, David (Boothferry)||Jackson, Robert|
|Day, Stephen||Janman, Tim|
|Devlin, Tim||Jessel, Toby|
|Dickens, Geoffrey||Johnson Smith, Sir Geoffrey|
|Dorrell, Stephen||Jones, Gwilym (Cardiff N)|
|Douglas-Hamilton, Lord James||Jones, Robert B (Herts W)|
|Dunn, Bob||Key, Robert|
|Durant, Tony||Kilfedder, James|
|Dykes, Hugh||King, Roger (B'ham N'thfield)|
|Eggar, Tim||King, Rt Hon Tom (Bridgwater)|
|Emery, Sir Peter||Kirkhope, Timothy|
|Evans, David (Welwyn Hatf'd)||Knapman, Roger|
|Evennett, David||Knight, Greg (Derby North)|
|Fallon, Michael||Knight, Dame Jill (Edgbaston)|
|Favell, Tony||Knowles, Michael|
|Fenner, Dame Peggy||Knox, David|
|Field, Barry (Isle of Wight)||Lamont, Rt Hon Norman|
|Fishburn, John Dudley||Lang, Ian|
|Fookes, Miss Janet||Latham, Michael|
|Forman, Nigel||Lawrence, Ivan|
|Forsyth, Michael (Stirling)||Lawson, Rt Hon Nigel|
|Forth, Eric||Lee, John (Pendle)|
|Fowler, Rt Hon Norman||Leigh, Edward (Gainsbor'gh)|
|Fox, Sir Marcus||Lennox-Boyd, Hon Mark|
|Franks, Cecil||Lightbown, David|
|Freeman, Roger||Lilley, Peter|
|French, Douglas||Lloyd, Peter (Fareham)|
|Fry, Peter||Lord, Michael|
|Gale, Roger||Luce, Rt Hon Richard|
|Gardiner, George||Lyell, Sir Nicholas|
|Garel-Jones, Tristan||Macfarlane, Sir Neil|
|Gill, Christopher||MacGregor, Rt Hon John|
|Glyn, Dr Alan||MacKay, Andrew (E Berkshire)|
|Goodhart, Sir Philip||Maclean, David|
|Goodlad, Alastair||McLoughlin, Patrick|
|Goodson-Wickes, Dr Charles||McNair-Wilson, Sir Michael|
|Gow, Ian||McNair-Wilson, P. (New Forest)|
|Gower, Sir Raymond||Madel, David|
|Grant, Sir Anthony (CambsSW)||Major, Rt Hon John|
|Greenway, Harry (Ealing N)||Malins, Humfrey|
|Greenway, John (Ryedale)||Mans, Keith|
|Gregory, Conal||Maples, John|
|Griffiths, Peter (Portsmouth N)||Marlow, Tony|
|Grist, Ian||Marshall, John (Hendon S)|
|Ground, Patrick||Marshall, Michael (Arundel)|
|Grylls, Michael||Martin, David (Portsmouth S)|
|Gummer, Rt Hon John Selwyn||Maude, Hon Francis|
|Hamilton, Hon Archie (Epsom)||Mawhinney, Dr Brian|
|Hamilton, Neil (Tatton)||Maxwell-Hyslop, Robin|
|Hampson, Dr Keith||Mayhew, Rt Hon Sir Patrick|
|Hanley, Jeremy||Mellor, David|
|Hargreaves, A. (B'ham H'll Gr')||Meyer, Sir Anthony|
|Hargreaves, Ken (Hyndburn)||Miller, Sir Hal|
|Harris, David||Mills, Iain|
|Haselhurst, Alan||Mitchell, Andrew (Gedling)|
|Hawkins, Christopher||Mitchell, Sir David|
|Hayes, Jerry||Moate, Roger|
|Hayhoe, Rt Hon Sir Barney||Monro, Sir Hector|
|Hayward, Robert||Montgomery, Sir Fergus|
|Heathcoat-Amory, David||Moore, Rt Hon John|
|Heddle, John||Morris, M (N'hampton S)|
|Heseltine, Rt Hon Michael||Morrison, Sir Charles|
|Hicks, Mrs Maureen (Wolv' NE)||Morrison, Rt Hon P (Chester)|
|Hicks, Robert (Cornwall SE)||Moss, Malcolm|
|Higgins, Rt Hon Terence L.||Moynihan, Hon Colin|
|Hind, Kenneth||Mudd, David|
|Neale, Gerrard||Steen, Anthony|
|Needham, Richard||Stern, Michael|
|Neubert, Michael||Stevens, Lewis|
|Newton, Rt Hon Tony||Stewart, Allan (Eastwood)|
|Nicholson, David (Taunton)||Stewart, Andy (Sherwood)|
|Nicholson, Emma (Devon West)||Stewart, Ian (Hertfordshire N)|
|Norris, Steve||Stokes, Sir John|
|Onslow, Rt Hon Cranley||Stradling Thomas, Sir John|
|Oppenheim, Phillip||Sumberg, David|
|Page, Richard||Summerson, Hugo|
|Paice, James||Tapsell, Sir Peter|
|Parkinson, Rt Hon Cecil||Taylor, Ian (Esher)|
|Patnick, Irvine||Taylor, John M (Solihull)|
|Patten, Chris (Bath)||Tebbit, Rt Hon Norman|
|Patten, John (Oxford W)||Temple-Morris, Peter|
|Pattie, Rt Hon Sir Geoffrey||Thatcher, Rt Hon Margaret|
|Pawsey, James||Thompson, D. (Calder Valley)|
|Peacock, Mrs Elizabeth||Thompson, Patrick (Norwich N)|
|Porter, Barry (Wirral S)||Thorne, Neil|
|Porter, David (Waveney)||Townend, John (Bridlington)|
|Portillo, Michael||Townsend, Cyril D. (B'heath)|
|Powell, William (Corby)||Tracey, Richard|
|Price, Sir David||Tredinnick, David|
|Rathbone, Tim||Trippier, David|
|Redwood, John||Trotter, Neville|
|Renton, Tim||Twinn, Dr Ian|
|Rhodes James, Robert||Vaughan, Sir Gerard|
|Ridley, Rt Hon Nicholas||Viggers, Peter|
|Ridsdale, Sir Julian||Waddington, Rt Hon David|
|Rifkind, Rt Hon Malcolm||Wakeham, Rt Hon John|
|Roberts, Wyn (Conwy)||Waldegrave, Hon William|
|Rossi, Sir Hugh||Walden, George|
|Rost, Peter||Walker, Bill (T'side North)|
|Rowe, Andrew||Waller, Gary|
|Sackville, Hon Tom||Ward, John|
|Sainsbury, Hon Tim||Wardle, Charles (Bexhill)|
|Sayeed, Jonathan||Watts, John|
|Shaw, David (Dover)||Wells, Bowen|
|Shaw, Sir Giles (Pudsey)||Wheeler, John|
|Shaw, Sir Michael (Scarb')||Whitney, Ray|
|Shelton, William (Streatham)||Widdecombe, Ann|
|Shepherd, Colin (Hereford)||Wiggin, Jerry|
|Shersby, Michael||Wilshire, David|
|Sims, Roger||Wolfson, Mark|
|Skeet, Sir Trevor||Wood, Timothy|
|Smith, Tim (Beaconsfield)||Woodcock, Mike|
|Soames, Hon Nicholas||Yeo, Tim|
|Speller, Tony||Young, Sir George (Acton)|
|Spicer, Sir Jim (Dorset W)||Younger, Rt Hon George|
|Spicer, Michael (S Worcs)|
|Squire, Robin||Tellers for the Ayes:|
|Stanbrook, Ivor||Mr. Alan Howarth and|
|Stanley, Rt Hon Sir John||Mr. Kenneth Carlisle.|
|Abbott, Ms Diane||Brown, Nicholas (Newcastle E)|
|Allen, Graham||Brown, Ron (Edinburgh Leith)|
|Alton, David||Bruce, Malcolm (Gordon)|
|Archer, Rt Hon Peter||Buchan, Norman|
|Armstrong, Hilary||Buckley, George J.|
|Ashley, Rt Hon Jack||Caborn, Richard|
|Ashton, Joe||Callaghan, Jim|
|Banks, Tony (Newham NW)||Campbell, Menzies (Fife NE)|
|Barnes, Harry (Derbyshire NE)||Campbell, Ron (Blyth Valley)|
|Barnes, Mrs Rosie (Greenwich)||Campbell-Savours, D. N.|
|Barron, Kevin||Canavan, Dennis|
|Battle, John||Carlile, Alex (Mont'g)|
|Beckett, Margaret||Cartwright, John|
|Beith, A. J.||Clark, Dr David (S Shields)|
|Benn, Rt Hon Tony||Clarke, Tom (Monklands W)|
|Bennett, A. F. (D'nt'n & R'dish)||Clay, Bob|
|Bermingham, Gerald||Clelland, David|
|Bidwell, Sydney||Clwyd, Mrs Ann|
|Blair, Tony||Cohen, Harry|
|Blunkett, David||Coleman, Donald|
|Boateng, Paul||Cook, Frank (Stockton N)|
|Boyes, Roland||Cook, Robin (Livingston)|
|Bradley, Keith||Corbett, Robin|
|Bray, Dr Jeremy||Corbyn, Jeremy|
|Brown, Gordon (D'mline E)||Cousins, Jim|
|Cox, Tom||Hattersley, Rt Hon Roy|
|Crowther, Stan||Haynes, Frank|
|Cryer, Bob||Henderson, Doug|
|Cummings, John||Hinchliffe, David|
|Cunningham, Dr John||Hogg, N. (C'nauld & Kilsyth)|
|Dalyell, Tam||Holland, Stuart|
|Darling, Alistair||Home Robertson, John|
|Davies, Rt Hon Denzil (Llanelli)||Hood, Jimmy|
|Davies, Ron (Caerphilly)||Howarth, George (Knowsley N)|
|Davis, Terry (B'ham Hodge H'l)||Howell, Rt Hon D. (S'heath)|
|Dewar, Donald||Hoyle, Doug|
|Dixon, Don||Hughes, John (Coventry NE)|
|Dobson, Frank||Hughes, Robert (Aberdeen N)|
|Doran, Frank||Hughes, Roy (Newport E)|
|Douglas, Dick||Hughes, Sean (Knowsley S)|
|Duffy, A. E. P.||Hughes, Simon (Southwark)|
|Dunnachie, Jimmy||Illsley, Eric|
|Dunwoody, Hon Mrs Gwyneth||Ingram, Adam|
|Eadie, Alexander||Janner, Greville|
|Evans, John (St Helens N)||Jones, Barry (Alyn & Deeside)|
|Ewing, Harry (Falkirk E)||Jones, Martyn (Clwyd S W)|
|Fatchett, Derek||Kennedy, Charles|
|Faulds, Andrew||Kinnock, Rt Hon Neil|
|Fearn, Ronald||Kirkwood, Archy|
|Field, Frank (Birkenhead)||Lambie, David|
|Fields, Terry (L'pool B G'n)||Lamond, James|
|Fisher, Mark||Leadbitter, Ted|
|Flannery, Martin||Leighton, Ron|
|Flynn, Paul||Litherland, Robert|
|Foot, Rt Hon Michael||Livingstone, Ken|
|Foster, Derek||Livsey, Richard|
|Foulkes, George||Lloyd, Tony (Stretford)|
|Fraser, John||Lofthouse, Geoffrey|
|Fyfe, Maria||Loyden, Eddie|
|Galbraith, Sam||McAllion, John|
|Garrett, John (Norwich South)||McAvoy, Thomas|
|Garrett, Ted (Wallsend)||McFall, John|
|George, Bruce||MacKay, Andrew (E Berkshire)|
|Gilbert, Rt Hon Dr John||McKelvey, William|
|Godman, Dr Norman A.||McLeish, Henry|
|Gordon, Mildred||Maclennan, Robert|
|Gould, Bryan||McNamara, Kevin|
|Graham, Thomas||McTaggart, Bob|
|Grant, Bernie (Tottenham)||McWilliam, John|
|Griffiths, Nigel (Edinburgh S)||Mahon, Mrs Alice|
|Griffiths, Win (Bridgend)||Marek, Dr John|
|Grocott, Bruce||Marshall, David (Shettleston)|
|Marshall, Jim (Leicester S)||Shepherd, Richard (Aldridge)|
|Martin, Michael J.(Springburn)||Shore, Rt Hon Peter|
|Martlew, Eric||Short, Clare|
|Maxton, John||Sillars, Jim|
|Meacher, Michael||Skinner, Dennis|
|Meale, Alan||Smith, Andrew (Oxford E)|
|Michael, Alun||Smith, C. (Isl'ton & F'bury)|
|Michie, Bill (Sheffield Heeley)||Snape, Peter|
|Michie, Mrs Ray (Arg'l & Bute)||Soley, Clive|
|Moonie, Dr Lewis||Spearing, Nigel|
|Morgan, Rhodri||Steel, Rt Hon David|
|Morley, Elliott||Steinberg, Gerry|
|Morris, Rt Hon A. (W'shawe)||Stott, Roger|
|Morris, Rt Hon J. (Aberavon)||Strang, Gavin|
|Mowlam, Marjorie||Straw, Jack|
|Mullin, Chris||Taylor, Mrs Ann (Dewsbury)|
|Murphy, Paul||Taylor, Matthew (Truro)|
|Nellist, Dave||Taylor, Teddy (S'end E)|
|O'Brien, William||Thompson, Jack (Wansbeck)|
|O'Neill, Martin||Turner, Dennis|
|Patchett, Terry||Vaz, Keith|
|Pendry, Tom||Wall, Pat|
|Pike, Peter L.||Wallace, James|
|Powell, Ray (Ogmore)||Wardell, Gareth (Gower)|
|Prescott, John||Wareing, Robert N.|
|Primarolo, Dawn||Welsh, Andrew (Angus E)|
|Quin, Ms Joyce||Welsh, Michael (Doncaster N)|
|Radice, Giles||Wigley, Dafydd|
|Randall, Stuart||Williams, Rt Hon Alan|
|Redmond, Martin||Williams, Alan W. (Carm'then)|
|Rees, Rt Hon Merlyn||Wilson, Brian|
|Reid, Dr John||Winnick, David|
|Richardson, Jo||Wise, Mrs Audrey|
|Robertson, George||Worthington, Tony|
|Robinson, Geoffrey||Wray, Jimmy|
|Rooker, Jeff||Young, David (Bolton SE)|
|Ross, Ernie (Dundee W)|
|Salmond, Alex||Tellers for the Noes:|
|Sedgemore, Brian||Mr. Allen Adams and|
|Sheerman, Barry||Mr. Ken Eastham.|
|Sheldon, Rt Hon Robert|
§ Question accordingly agreed to.
§ Bill read a Second time.
§ Bill committed to a Committee of the whole House.—[Mr. Sackville.]
§ Committee tomorrow.