LORD PARMOOR rose to call attention to Regulation 27 (A)† made under the Defence of the Realm Consolidation Act, 1914, and to ask His Majesty's Government as to its effect on the privileges of members of this House.
† 27A. If either House of Parliament in pursuance of a Resolution passed by that House holds a Secret Session, it shall not be lawful for any person in any newspaper, periodical, circular, or other printed publication, or in any public speech, to publish any report of, or to purport to describe, or to refer to, the proceedings at such session, except such report thereof as may be officially communicated through the Directors of the Official Press Bureau.
It shall not be lawful for any person in any newspaper, periodical, circular, or other printed publication, or in any public speech, to publish any report of, or to purport to describe, or to refer to, the proceedings at any meeting of the Cabinet, or without lawful authority to publish the contents of any confidential document belonging to, or any confidential information obtained from, any Government Department, or any person in the service of His Majesty.
If any person contravenes any provision of this Regulation he shall be guilty of an offence against these Regulations.
§ The noble and learned Lord said: My Lords, I regret that Viscount Peel is unable, through illness, to be present to-day to ask the Question standing in his name. [Viscount PEEL had, given notice to call attention to the second paragraph of the same Regulation, and to ask His Majesty's Government "what new circumstances had arisen to justify so grave a restriction of public criticism."] I did not know when I put down the Notice which stands in my name that one had already been placed on the Paper in the name of Lord Peel, since I was away from London at the time; and I only wish that the important considerations which arise on this matter could in the first place have been put before your Lordships by the noble Viscount.
§ It is not unnatural, although it is regrettable, that in times of great national crisis the political conditions should sometimes become morbid and unhealthy; and the tendency, in my view, is particularly unfortunate when the morbidity and unhealthiness take the form they have under present conditions. There has been what I must call a bureaucratic endeavour to withhold information to which the people of this country are justly entitled, and which I think might have been given them without any fear or risk of danger to the national interests, and also an attempt to stifle what is the essence of our Constitutional life in this country—free discussion. It seems sometimes to be forgotten—I noticed it in the criticism the other night of our Constitution in the great speech by Lord Milner—that our Constitution has been built up on the basis of free knowledge and free discussion. These principles permeate the whole fabric, and are in reality the true safeguards both of its strength and of its stability. They are not, as sometimes seems to be considered, mere matters of expediency; they go to the very essence and foundation of our whole Constitutional position and Constitutional principle. It is really idle to talk about popular government in the true sense or popular control without you allow the people of the country to have sufficient and adequate knowledge on which to act rightly and think justly. How is it possible to reach the conscience and soul, if I may so call it, of the people of the country in a great national crisis like the present unless the Government, in a spirit of mutual confidence and mutual trust, let them 845 know the main facts on which we depend at this time of great national stress?
§ It has been said that liberty of knowledge and liberty to utter and argue according to conscience is the best of all liberties. That is a statement made by Milton in the "Areopagitica." But what I complain of is this—if I may use a phrase sometimes associated with the Income Tax—that the Government has cut off knowledge at its source. Without knowledge what is the good of a liberty either to utter or to argue? It becomes not only a farce; it becomes a danger. And as regards popular discussion, if it takes place without popular knowledge the basis on which the stability of our Constitution depends is undermined at its very foundation. By knowledge I do not, of course, mean the disclosure of military or naval secrets. That was made clear in the speech by the noble Viscount, Lord Morley, some time ago. I mean sufficient and adequate disclosure of matters which can be disclosed without national risk in order to enable a sound and firm judgment to be made as regards present conditions amongst the people themselves, The half-truth or the late-truth is in my opinion worse than complete darkness, because they blur the perspective, falsify the real outlook, and do not bring home to the country the truth of the crisis in which we stand, or appeal to the courageous spirit of a free people to meet that crisis in every possible way and by every possible effort.
§ I have no desire to make any recrimination against anybody, but those who uphold what they consider to be a true Constitutional principle have been attacked as though they were not earliest in their desire to do all they could to bring this great war to an honourable conclusion. But I think I may say this. If we have regard to conditions as they now exist, it cannot be said that the withholding of information and the stifling of free discussion have brought any notable success in the great contest in which we are engaged. Lord Milner, in his great speech the other night, referred to our Constitution as an unwieldy weapon for war purposes. I am riot, of course, purporting to quote his exact words. I think the answer is that it is not our Constitution that is at fault, but the mutilation of our Constitution. You cannot work with a Constitution which is based on freedom and at the same time 846 deny sufficient freedom to give popular control real and just value. I do not stop to deal with the mutilation which has been brought about by the Parliament Act, or the mutilation which exists by the prolongation of the tenure of the House of Commons beyond the period of representative life. I am dealing with one matter, and I say that our Constitution was not framed for the secrecy of bureaucratic methods. If it is worth anything, it is of value for its free life and its free action. Take these away and then I agree that we lose what is best, and our Constitution may no longer be of great value for fighting purposes.
§ There is one other consideration. Connected with our free life and our free action is our free Empire. We could not have had a free Empire without free action and free life in our national politics at home, and if it is necessary to find any excuse for our Constitution I find it in this, that when war broke out we had an unexampled reservoir of resources which had been stored away under the Constitution, for which I at least have the greatest reverence, and if there is any criticism under this head I think it is that so great was the reservoir of resources which had been so stored up that those who were guardians of them were somewhat careless and wasteful in the dissipation of these vast resources which they had at hand in order to carry on this great war.
§ Of all forms of secrecy I think the worst is that of a Secret Session of Parliament. I doubt very much whether the experiment of a Secret Session is likely to be repeated. We have had experience of it both in this House and in the House of Commons, and I say without hesitation that the Secret Session has been a dead failure in both instances. But if we are to have a Secret Session of this House—and here comes in the question of privilege—both the secrecy of the session itself and the sanction for that secrecy must come from this House and from this House alone. It is a most unconstitutional interference with every principle of free Parliamentary life to allow our discussions here to be hampered by outside authority, or to make members here liable to outside authority in respect of what takes place in Secret Session. When I asked the other day a question upon this point, the noble Marquess the Leader of the House, I think I am right in saying, stated that in his 847 view the Regulation of which I am complaining—No. 27A—did not in any way affect the privileges of members of this House. I intend in a moment to analyse that Regulation in order to see whether or not that position can be substantiated. But in answer to my observations the noble Marquess made this statement, which I think is important. He said that the real safeguard of a Secret Session was the honour of the members of this House. I agree with him. I go further. I think it is the only safeguard of the slightest value. But I want to put this question. If that is the safeguard, if the noble Marquess is right in that, what is the use of the Regulation which in certain circumstances may place heavy penalties upon members of this House merely for fulfilling their Parliamentary duties? I doubt very much whether, if secrets are really to be regarded as such, they should not be kept to the Government itself. But if it is really the fact in regard to this House and the House of Commons that the honour of the members is sufficient to guard the secrecy of debate, that is the strongest condemnation of this Regulation.
I think the whole of this Regulation is extremely harsh. It imposes the severest possible punishment upon men whose only crime it is to make disclosure of facts which, under the Secret Session, members of this House ought not to have disclosed. Let me take the actual words to which I wish to call the attention of the House. I exclude useless words, because they would only make complication. The Regulation says—
It shall not be lawful for any person in any… public speech… to refer to the proceedings at such session.
There is an exception, to which I will call attention in a moment. I want to ask the noble Marquess this question. Is not a member of this House comprised within the term "any person"? I find no definition in the Proclamation which differentiates between members of this House and any outside person. If that is so, we arrive at this conclusion as regards our Parliamentary procedure, that any person who in any public speech refers to proceedings in this House—it might be to the speech he had himself made—is subject to extreme penalties, resulting in many cases in very long terms of imprisonment, and—though I am not sure—even penal servitude. I say that this is a monstrous
invasion of the ordinary everyday rights of members in Parliamentary discussion.
The general principle which was established as long ago as Sir John Eliot's time, which we find in the Declaration in the Bill of Rights, and in many other great Constitutional documents, is this—
For any speech or debate in either House no member can be questioned in any other place or before any other tribunal.
If there is a Secret Session, and if a member in contravention of the Order of this House discloses what takes place, it is for this House and for this House alone to punish him. I dare say your Lordships are aware that it has often been said that the powers of this House over its members under those conditions are the same as the powers of a Court of Law when there has been contempt of Court; and there can be no doubt whatever that if this House voted a Secret Session, and at the same time—Heaven forfend that they should wish to do it!—determined that any one who disclosed what took place in that Secret Session ought to be punished, we have adequate powers and ought to keep those powers within our own hands.
§ There is one matter which I think makes this of very special importance. The infringement of the privileges of this House was not brought about by legislation but by Proclamation. We know that in the worst of the Tudor times there was a Statute which gave Proclamations the same powers as Acts of Parliament; but, fortunately, that Statute was very quickly repealed. What I complain of is that under the wide powers given in the Defence of the Realm Act the Government can, by Proclamation, bring about results which ought never to he possible without legislation. Above all, it ought never to be in the power of the Executive Government to infringe the privileges of members either of this House or of the House of Commons. I should like to ask the noble Marquess this further question. Is there any precedent for constituting a reference by a member of either House to what he has said in the House a matter of criminal offence under the sanction of heavy and severe penalties? If there is such a precedent, it is one which is more honoured in the breach than in the observance. But I have not been able to find any such precedent, and I think it is a vital condition of free Parliamentary life that we 849 should not allow any outside authority to have a power of that character.
One word as regards the terms of the exception, because they are very curious. The exception is this—
… except such report thereof as may be officially communicated through the Directors of the Official Press Bureau.
What does that mean? The Government is on its trial. Yet the only evidence of what takes place is to be the official Government announcement. I must say I think it was wise of the authorities of this House to give no announcement of what took place in the Secret Session here, rather than give an announcement which may be unfair. But what does this exception mean? I hope that the analogy will not be thought to be discourteous. It is just as though there were a prisoner on his trial and the only evidence allowed to go before the jury was his own evidence carefully censored and altered by his legal advisers. What is the good of an exception of that character? It is a mockery, a farce. It can lead only to misconstruction if it is followed, although for my part I was glad to see that so far as this House was concerned there was no report at all, or only a report to the effect that the same discussion had taken place here as had taken place in the other House.
§ The other part of this Regulation is, I think, still more unjustifiable. It aims distinctly awl particularly at freedom of discussion in the Press. I am not here, of course, to say that all that we Jim], in the Press is either right or not regrettable. But, after all, the freedom of the Press is a great institution, a necessary part of our free life, and I think I shall be able to point out in a moment that the Regulation as regards the Press is extremely harsh and severe. The first point deals with the disclosure of Cabinet secrets. Who is the culprit in a case of that kind? And is there any provision here that the culprit shall be subjected to any of these severe penalties? I do not know whether I may not be subject to penalties for referring to what hypothetically may have taken place at the Cabinet, but I will risk the chance. I wonder whether any member of the Cabinet brought forward the question of punishing the real culprit—that is, the member of the Cabinet who divulges a secret. I expect that if he did there was this result, that although the Cabinet may have disagreed on every other point they 850 agreed that the real culprit should not conic within the terms of this severe provision.
See, again, what the terms of the Regulation are. I will only read the crucial words. The Regulation says—
It shall not be lawful for any person in any newspaper, periodical, circular, or other printed publication … to publish any report of, or to purport to describe, or to refer to, the proceedings at any meeting of the Cabinet.
If the Cabinet feel the obligation of honour to which the noble Marquess referred, such a Regulation ought to be wholly unnecessary; and if they do not feel that obligation of honour, they ought not to be put in a privileged position. The difference as regards their position and ours is this. They are under an obligation to secrecy we are not. Whereas in Parliamentary life it is publicity that prevails, in Cabinet Councils secrecy is a natural obligation.
§ No newspaper may refer to proceedings at any meeting of the Cabinet. I wonder whether your Lordships know what the penalty is if, the chief culprit being exculpated, proceedings are taken against some newspaper editor. I wonder whether you are aware what the provisions are of Section 51 of the Regulations. In that case the editor of the newspaper, who has only made use of information supplied to him from the highest quarters, is liable to the severest penalties as regards imprisonment. He is liable to have the premises in which lie carries on his business inspected and searched. He is liable to have the whole of his plant carried away and destroyed, and in that way, of course, to have his business, on which much capital and energy may have been expended, broken up and destroyed. And all because of what? Because a Cabinet Minister, not having regard to his obligation of secrecy, has shown himself a culprit. Yet in these Regulations the chief culprit, as I say, escapes without any punishment of any kind. There has sometimes been a question in criminal jurisdiction whether the worse person is the thief or the receiver of stolen goods. I want to know here which is the worse offender—the member of the Cabinet who discloses a secret which he ought to have maintained, or the newspaper editor who takes advantage of that disclosure in order that the public may have some insight into what is going on? For years the people of this country have been entitled to discuss and criticise and refer to what has taken place at meetings of 851 the Cabinet. Now for the first time very severe penalties—your Lordships must not forget the severity of these penalties—are introduced. What for? For whose protection? In order to protect the Cabinet against disagreeable disclosures by one of its dissentient members.
§ Consider how the right of free criticism is further dealt with in this precious Regulation. One may not without "lawful authority" publish the contents of any "confidential documents." What is "lawful authority"? Who is going to define it? And what are "confidential documents"? I call attention to these matters for this reason. It is the essence of administrative law—namely, law by Proclamation instead of law by Act of Parliament—that you have these wide terms without definition which can be applied in any sense according to the will of the Government for the time being. You ought never to allow Regulations of this kind without much more exact definition. It is known perfectly well that the Courts will not decide what is "lawful authority" or what are "confidential documents" so long as the Executive for the time being come forward and say that no such authority has been given and that the particular documents are in their opinion of a confidential character. You are suppressing the whole Press, you are suppressing the whole freedom of discussion in this country, at the will and beck of the Government for the time being.
§ I know it is often said that it is not likely that powers of this kind will be harshly used. That is no excuse whatever. No one knows how they may or will be used when the temptation comes. At any rate, one may say this. If it is true that they are unlikely to be used, they are doubly condemned and ought never to have been sanctioned at all. There are other difficulties. The Regulation refers to "any confidential information obtained from any Government Department." How is a newspaper editor to know whether the document has been obtained from a Government Department? It may have gone through ten hands before it came to his. There, again, in the absence of definition, what does the Regulation mean? Does it mean that if the document has gone through a large number of hands the newspaper editor is still liable to these heavy penalties? Or does it mean only that if the document comes directly from the Government Department the penalties 852 apply? The truth is that not only is this Proclamation extremely harsh, not only is it inconsistent with the true principles of a free Press, but it is framed in such a way that it might be utilised in order to do intense and irrevocable harm to a perfectly innocent person.
§ More than once it has been said that those who believe in the Constitutional doctrine of free action and free rights may be doing something to the injury of those who are splendidly fighting our battles abroad. I deny that absolutely. Those amongst us who are upholding Constitutional principle are just as patriotic as those who believe—I think believe wrongly—in interference with its true foundation and basis. We do not desire anything to be disclosed which could possibly interfere with the future of our naval or military operations. But it is an entirely different matter to act as I say the Government have acted—namely in principle and in fact to have kept the people of this country in ignorance of the great risks they are running, whereas they ought to have appealed to their courage and let them know what is demanded of them in the nature of national service and national work.
§ There is one other matter which also struck me, if I may refer to it again, in the speech of the noble Viscount, Lord Milner. He appealed, and appealed most truly, to the spirit of national unity, a most important factor as regards the future of this country. I am not one of those who have the slightest fear as to our ultimate success, but I do feel that in order to obtain that success as soon as possible and with the least ultimate loss we ought to have in every direction national unity and national service. Now are we likely to have that without knowledge, without the right of free action, without the right of free speech? I say you can only have unity of national purpose in a free country like ours if you allow the people to know the position in which they stand and trust them for their courage and perseverance. I certainly would beg the Government to revise their estimate of the character of the people of this country. We are a great people. In my opinion we have ample courage to face the truth. Let us know the truth, and we will work together with unity of purpose and I hope in the shortest possible time bring this great national crisis to an end in a way honourable to ourselves, our country, and our Empire.853
§ LORD BURNHAM
My Lords, may I be allowed to add a few words to what has fallen from my noble and learned friend, perhaps from a somewhat narrower angle of vision? Although I can claim to be an old Parliamentary hand, this is the first time I have had the honour of addressing your Lordships, and as a novas homo in a double sense in this House I hope I may have some claim to your indulgence. It may, perhaps, seem out of place and out of due time to say much about the liberty of the Press as the first principle of good government. We have to see everything in these days in the red light of war, and I see no reason why the newspaper Press should claim to be exempt from the proper regulations which are demanded by the safety of the Realm. But I do say this, that every inroad on the liberty of the Press, just as on the liberty of the subject, ought to be justified by military necessity. There ought to be good cause shown, and if the preventive regulations be oppressive and the penalties perhaps arbitrary, then I do not think they ought to pass without a protest in your Lordships' House.
The Defence of the Realm Act provided that any publication in any form of what was likely to be of assistance to the enemy or to endanger or imperil His Majesty's Forces by sea or land should be prevented, and the Regulations that have been passed by Order in Council carry that out. Those Regulations are at the present moment very severe, but I wish to point out that perhaps what the newspaper Press objects to most in regard to them is not their form, but the method of their enforcement. All the Regulations under the Defence of the Realm Act can be enforced by any officer of the Crown—even a police constable. And that these new Regulations, which have been described by my noble and learned friend and which are certainly the greatest invasion of the liberty of the Press and public rights ever attempted, can be enforced in the same way is no imaginary danger.
Recently when it was thought advisable to take proceedings against the Globe newspaper, police constables entered the office of that journal—I am not dealing with the question whether the cause was not amply sufficient—and took from the machines master parts which prevented their being worked, and, of course, prevented the further publication of the paper. Police constables have exactly the same powers in regard to any journal under 854 the new Regulations that they had under the earlier ones. What has happened quite recently? Immediately upon the Proclamation being made the Home Secretary sent secret instructions to the chief constables in all the towns of England that one of their officers should go, on the morning after the Secret Session, into every newspaper office and demand an early edition of the paper, so that, if necessary, further publication could be stopped. I am far from saying that the police constables did not discharge their duties in a proper manner—in a way I think police constables are the best-mannered part of the community—and no newspaper, as far as I know, had any reason to protest against anything done by them in the discharge of their duty, which was odious and offensive. Still they had that power; and having obtained a copy of the newspaper, said to contravene the Regulations, they would then take it to the head office. That, it must be remembered, is in the early hours of the morning, and the only person who would be able to judge whether the Regulation had been contravened is probably the district inspector or the chief constable, who is not necessarily, or not often I hope, a prominent politician. lie has to interpret the Regulations, and to say whether in any way there has been published in the particular issue of the journal anything that reveals a Cabinet secret or refers to any subject that has been before the Cabinet in such a way as to suggest special knowledge derived from official sources. That seems to me to be casting a very unfair burden upon the police authorities, but that is the machinery which is set up under the Defence of the Realm Act by virtue of a Proclamation and which applies to this Regulation as it has done to those which have gone before.
I think the newspaper Press has some cause to be alarmed at what has taken place, and some cause to fear that injustice may be done, however unintentionally, by police officers. How are they to determine whether information, conveyed either in leading articles or in other parts of the journal, is of a confidential character or has come from an authoritative source or not? Public Departments are day by day—night by night, perhaps I ought to say—circulating to newspaper offices confidential memoranda giving information and advice. The police authorities do not know whether confidential information 855 which is sent in this way is authorised or not. And how should they? I doubt whether the Home Secretary does. All these memoranda are distributed by the machinery of the Press Bureau. But your Lordships no doubt well know that the Press Bureau only acts as a channel and conduit of information, and all that it sends out really comes from the various Offices of State. Neither the lime Secretary nor the officers under him in the Censor's Department need know whether the memoranda are privileged or not. Certainly the police could not. In these circumstances it seems to me that this power, which is for the first time conferred on the police authorities, is not advisable, and I very much regret that it has been proposed to do it. Each case ought to be judged on its merits when the liberty of the Press is curtailed, and you ought to see whether the dictates of expediency have been followed.
My noble and learned friend has pointed out that the circumstances in regard to the second part of the new Regulation are peculiar. With regard to the first part, that which forbade the publication of any report of the Secret Sessions held in the two Houses, there is very little to be said, because after all the two Houses have each had the power of sitting in secret, and I believe that under the Standing Orders of your Lordships' House no report of your proceedings is allowed at the present moment to be published except by leave. There was no great grievance with regard to that, because there would be no sense in decreeing a Secret Session if any sort of publication were allowed. But in regard to the second part of the Regulation, what do we find? That part looks as if it were a measure of self-protection for the Cabinet. One cannot help reading into it that the majority of the Cabinet fear that members of the minority might disclose to able editors and others with whom they are in constant communication certain secrets to be published to their own advantage but to the detriment of their colleagues. It is, perhaps, the case of one section against the other. Of course, there is a good deal of cant talked about the publication of Cabinet secrets. So long as there have been Cabinet Ministers they have always given away Cabinet secrets. We know the historic case of the repeal of the Corn Laws, which your Lordships recollect as being 856 exposed after the publication of the novel written about it, and the constant charges brought against Lord Palmerston and Lord Granville of conveying Cabinet secrets to Mr. Delane. Therefore there is nothing new in that. But for the first time you are going to make the publisher responsible for everything, and forget entirely the Minister who has used him for his own purpose. Surely the first thing that the Government ought to do is to impose a more rigorous rule of silence upon themselves.
Your Lordships may recollect the story told in Greville's Memoirs of the man who was arrested during the French Revolution because he would wear a gag, and who explained when he was before the magistrate that he always wore the gag because it was the only way in which he could maintain his self-control. In a certain sense I think the use of a gag would be advisable now. Surely it is not the newspaper editors or the newspapers that ought to be the first to suffer. It strikes me that the newspaper Press is being made the whipping-boy of the whole situation, and this, too, when on the whole the newspaper Press—as I think the noble Marquess will agree—has loyally accepted the Regulations which were framed under the Defence of the Realm Act and acted in co-operation with the Press Bureau and the official Censors. There have been exceptional cases where they have not, but on the whole they have done so. I believe in very truth that the Government are now imposing an impossible strain. If the Regulation is to be accepted literally, then it will he impossible to refer in any sort of article to political matters which are before the Cabinet, for action might be taken by the authorities if there is the least inkling given that the editor knows more than the man in the street of what is passing in the official mind. Merely to omit the words "the Cabinet" would be a colourable defence which would not avail. In other words, the Government are practically preventing the Press from continuing the work of comment and criticism which I suppose is just as necessary for good government in time of war, so long as nothing is done to help the enemy, as it is at any other time.
I do not want to labour the subject. I only wish to point out the considerations from the point of view of the newspaper Press. I cannot help saying that it seems to me that the Press affairs of the country 857 have been woefully mismanaged by the Government from the beginning of the war. There has been a very inadequate use made of the newspaper Press in the right way, and there has been excessive abuse of the newspaper Press in the other direction. It may not be true, as Junius said, that all the other guarantees of liberty can go so long as there is a free Press. But this House is, I know, the home of precedent and principle, and I do ask your Lordships not to give sanction in any way to a precedent and a principle which in their operation cannot be, I believe, for the public good, and which may be very dangerous to the future of the country and of the Empire by imposing a quite unworkable and inadvisable silence upon the organs of public opinion.
§ THE LORD CHANCELLOR (LORD BUCKMASTER)
My Lords, if the noble and learned Lord (Lord Parmoor) had confined his speech within the strict limits of his Question, I agree with the noble Lord who has just sat down that it would not have required any very long or elaborate reply. But it is, of course, impossible to isolate any one particular aspect of the general question of restriction of publication of matter at the present time from the wider and larger point of view, and it is not surprising that the noble and learned Lord early in his speech departed from the form of his Question, because his complaint was not directed to this Order in Council at all, but to what I trust I shall show your Lordships is a wholly imaginary grievance which has no real existence in any shape or form.
I would be the last person to say a word in derogation of the liberties of the Press. They have been the result of slow growth and severe struggle, and I believe nobody who has studied our history will for a moment doubt that the exercise of those liberties, though in rare individual instances it may have been intemperate, has none the less contributed largely to building up and maintaining the great structure of our Constitutional and civil rights. But I could not help thinking, when I heard the noble and learned Lord's speech, of a phrase of Carlyle's which I think he used in relation to the French Revolution, when he remarked how strange a thing it was to observe the strength of established formulæ and the weakness of nascent reality. The noble and learned Lord's speech appeared to me to deal with 858 formulæ, the strength and authority of which I freely admit in times of peace, but which to my mind can have no authority and no power when you bring them into collision with the needs of a nation at bay for its life.
It is suggested that the Government have conducted this business upon the principle of distinctly withholding from the public news which the public ought to have, and stifling criticism, which is the public right. I say without hesitation that the policy of the Government is and has been throughout to make the fullest possible disclosure that the circumstances of the case would admit, of every fact which it was lawful and wise for the public to know. It is perfectly true that the Government, in carrying out that policy, are bound to be controlled by the advice of their naval and military advisers, and if they say that in their judgment the publication of certain matter is prejudicial to the interests of the Fleet or the Army, even though we, the rest of the Cabinet, might believe that they were mistaken, we are bound to act on that judgment, even though it may be wrong.
After all, what are the two alternatives you have to face? The one is that you may disclose to the public something which the enemy ought not to know; the other is that you may hold back from the public something which might be disclosed without disadvantage, but the possession of which would not carry us one single step further towards winning the war. I am not prepared to criticise what has been done by the naval and military authorities in this matter, but I say without hesitation that the suggestion that the Government have drawn a curtain and that behind the veil there is shut out from sight some grave and momentous fact which the public ought to know is nothing but a delusion born of the distress and the distemperature of the times. I say the same with regard to the criticism that the Government have attempted to prevent free criticism by the newspapers. That is one of the most extraordinary statements, I think, that could ever be made by anybody who reads the leading articles of the daily Press. Does anybody imagine for a moment that any of those leading articles have been passed through the strain of any censorial filter? Is it not obvious that criticism, which we may often think unjust, which we may think unwise, which sometimes 859 we may regard as unpatriotic, is at least unrestrained, and from beginning to end there has never been a case in which the newspapers could complain that the Government had interfered with the free right of criticism in the Press?
There is one newspaper which is certainly no friendly critic of the Government—I refer to the Morning Post. That newspaper has itself stated—and though we may disagree with its views, it is at least courageous and honest journal—that the Government have not interfered with criticism. When any noble Lord asserts that the Government have in any way interfered either with publication of fact which can be made known or in restraint of criticism which it was right to make, he ought to bring instances of it. What is the case that is made? It is easy enough to make a general charge and to accuse the Government of general misconduct, but surely there ought to be particular instances furnished to show on what that charge depends. The noble and learned Lord from first to last never even gave an indication of the character of the case that he intended to make against the Government. He alleged, in round and general language, that they were engaged in concealing from the public matters which the public ought to know, and that this last act of theirs has been only one step further forward to muzzle and deprive the Press of their undoubted freedom of right of criticism. The noble Lord who has just sat down (Lord Burnham) made no such case, and I am quite satisfied that he can answer for the truth of what I am saying. He has the conduct of a very influential journal. Did he say that we had interfered with criticism, or did he say that we had restrained the Press from publishing information for any reason other than the military or the naval exigencies of the case? I have been induced to make these general statements, although I think they have no relation whatever to the Question on the Paper, nor indeed to the Order in Council which is the subject of criticism, but they have been stimulated by the attack which the noble and learned Lord thought fit to make upon the Government policy.
I turn for a moment to the Order in Council. Let me ask your Lordships' attention for a few minutes to the criticism which has been directed to it. First of all, the criticism directed against that part of the Order in Council which prevents the 860 publication of matter revealed in Secret Session does appear to me—I say it with all respect to the noble and learned Lord—to be a somewhat vague criticism, and for this reason. The resolving of this House into Secret Session was the act of your Lordships yourselves. It is perfectly true that the Motion was proposed on behalf of the Government. But did the noble and learned Lord object? No; he raised no objection at all. It was passed without a single word of objection on the part of any noble Lord here present. And why? Because they realised that there might be matters which it would be wise to disclose in Secret Session and not wise to make public.
§ LORD PARMOOR
May I remind the noble and learned Lord that I called attention to this very point and asked for an answer at the time?
§ THE LORD CHANCELLOR
What the noble and learned Lord did, if my memory is right, was this. At the preliminary stage, when the noble Marquess (Lord Salisbury) was discussing the question as to whether proper steps had been taken with regard to the exclusion of the public, he did state—and the observation attracted my notice at the time—that he was not then going to make any objection to the Secret Session. I expected he would when the Motion came on, but apparently his intention was to wait until the Motion was carried and then object. Surely the objection to a Secret Session, if made at all, should have been made at the moment when the Motion was before your Lordships' House. It cannot be right to wait until the Motion has been carried and hear what was disclosed, and then to say "We really did not want to hear it, and now we object to the Secret Session altogether." If the noble and learned Lord suggests that there is some grave infringement of the privilege of this House in preventing the publication on the public platform or in the public Press of what transpired on that occasion, I do not know what the privilege is to which he refers. There is no better known privilege to this House than the privilege which permits a Peer to say within its walls just whatever he pleases; but, as your Lordships well know, if he desires a wider audience for what he says and chooses himself to print and circulate a report of his speech, then the privilege ends. It is 861 a little over a hundred years ago that a member of your Lordships' House, overlooking that fact, was sentenced both to imprisonment and to a fine; and I do not know what the noble and learned Lord means by saying that the privilege of a member of this House in relation to matters which take place within its walls extends beyond. If he does anything outside, he is just like an ordinary citizen. I must own that I cannot for the life of me see that the privileges of your Lordships' House are in any way interfered with by a provision which says that what you have heard in secret shall be retained in secret. Nobody for a moment doubts that the matter which was confided to your Lordships, whether it was regarded by you as of great moment or not, would, when once confided in the circumstances in which the confidence was bestowed, be regarded as inviolable, not by reason of any law or of any Order in Council, but by reason of those laws which, though never formally enacted, all men think it a shame to violate. So much for the question as to the publication of matters transpiring in Secret Session.
The last two clauses of the Order in Council deal with the publication of confidential matter disclosed in the Cabinet or in a document, and it is said that to prevent the publication of such matter in the Press is a further interference with the rights and liberties that the Press enjoy. I cannot help thinking that the noble Lord (Lord Burnham) overlooked, as he very naturally might have done, what I think it is more remarkable that the noble and learned Lord (Lord Parmoor) should have overlooked, and that is the existing provisions of the Official Secrets Act of 1911. I have here only a summary, and your Lordships will not, I hope, assume that what I am reading is an exact record of what the Statute contains, but it is, I think, a fair summary of the relevant matters for the purpose of this particular Order in Council. The Act provides that if any person having in his possession or control any document or information which has been entrusted in confidence to him by any person holding office under His Majesty, or which he has obtained owing to his position as a person who holds office, communicates it to any person other than a person to whom he is authorised or under duty to disclose it, he is guilty of a misdemeanour, and the sentence can extend 862 to hard labour for two years. But that is not all. It is further provided that any person who receives such information—not the person who publishes it, but any person who receives it—is liable to the same penalty. That is no old weapon called out of the armoury of the law for the purpose of this occasion. It was passed in 1911, and of course received the full sanction and authority of your Lordships' House. I would like to ask the noble and learned Lord, if I may, why he thinks in those circumstances that this Order in Council creates a new offence and provides for the first time some severe and stringent penalty which has never been known to the law before?
§ LORD PARMOOR
I was well aware of the Official Secrets Act. In my view the words of the Proclamation go beyond that Act. If they do not, of course the Proclamation ought not to have been issued at all.
§ THE LORD CHANCELLOR
Perhaps the noble and learned Lord will forgive me if I point out why the Proclamation should be issued. The words which he quoted are to be found, if not in the exact language at any rate in its equivalent, in the summary to which I have just referred. He raised an objection regarding the words "Confidential document," and asked whether anybody could determine what a confidential document was. All that difficulty arises under the existing Statute. It is just as hard to ascertain whether a person has received a confidential document or received information communicated to him in confidence under that Statute as it is under the Order in Council. The noble and learned Lord says, If the Official Secrets Act covers the case, what is the need of the Order in Council? The reason is perfectly plain, and I have no hesitation in stating it quite frankly. The reason is that we desired to use the machinery of the Defence of the Realm Act, which was set up for the purpose of dealing with the internal conditions of the nation at war. We thought that the conditions under the Statute of 1911 relating to the nation at peace were not applicable. We desire to deal with an offence of such a character swiftly, summarily, and possibly severely, because unless you act with swiftness, promptness, and severity your remedies become worthless and are thrown away. What is the use of attempting to pursue the slow procedure before a magistrate 863 and then procedure before Assizes about the publication of a matter which may be going on all the time you are taking your steps? If the matter published is dangerous to the safety of this Realm, then I say it is of the utmost consequence that the powers we have should be powers to strike swiftly, aye, and to strike hard.
It is said that there is no reason for this provision at all. The noble and learned Lord says that Cabinet Ministers should be punished, and Lord Burnham says that Cabinet secrets have never been kept. But is the noble and learned Lord right in saying that this Order in Council exempts Cabinet Ministers from its operation? His suggestion was—indeed, he drew a very vivid and moving picture of something that never occurred—that the Cabinet had expressly excluded members of the Cabinet from the scope and operation of the Order in Council. How? The words of the Order in Council are—It shall not be lawful for any person in any… public speech to publish any report of, or to purport to describe, or to refer to, the proceedings at any meeting of the Cabinet.By what process of construction do the words "any person" mean in a Court of Law "any person other than a Cabinet Minister"? It is obvious that Cabinet Ministers are included, just as everybody else is; and the idea that a Cabinet Minister is exempt is one which I submit the words of the Order in Council do not for a moment permit.
Then it is said, "Why not punish the Minister?" I can answer Lord Burnham there more readily than I can the noble and learned Lord. Give us the name of the man from whom you get the information. When once that is done I do not think that I shall be divulging any Cabinet secret when I say that punishment will be swift. But, after all, does it necessarily follow that Cabinet Ministers have deliberately divulged these secrets? It may well be that people expert in extracting information may obtain the information they desire without the person who gives it to them fully knowing the value of what he gives away. The noble and learned Lord (Lord Parmoor) and myself and Lord Loreburn and Lord Reading have all in our time had experience of the application of that art, and I do not doubt that the great part of the matter which is published in the daily Press has been obtained from men who had not the faintest idea that in 864 a conversation that was taking place they were giving away matters they ought to conceal. It may even be that the noble Viscount himself has confided matters in a similar strain. At any rate the point is this. It does not necessarily follow, because matters are published in the Press relating to Cabinet procedure, that somebody has deliberately broken his oath of secrecy. I could not help feeling a little uneasy when I heard Lord Burnham speak with some slight disrespect of the obligation of Cabinet secrecy—
§ THE LORD CHANCELLOR
Perhaps that is better. It is, according to the noble Lord, an obligation so often broken in practice that it ceases to have any binding effect. Mr. Gladstone said, in reproving some one who had made a speech in which he had made reference to something that transpired in the Cabinet—I am quoting from the noble Viscount's (Lord Morley's) "Life of Gladstone":I am sure it cannot have occurred to you that the Cabinet is the operative part of the Privy Council, that the Privy Councillor's Oath is applicable to its proceedings, that this is a very high obligation, and that no one can dispense with it except the Queen. I may add that I believe no one is entitled even to make a note of the proceedings.…The obligation is a very serious and a very high one, and if matters which have transpired in the Cabinet have been disclosed deliberately I say without hesitation that the shame and disgrace must be borne and felt by every member of the Government.
Then it is suggested that Cabinet discussions are, as I understand it, a legitimate subject-matter for the public appetite. Is that right? Can it be right that the public should be admitted to enjoy any secret, however trivial, that has been in fact imparted in confidence? I do not care how unimportant the confidential document or the confidential statement may be, what right has the public to claim admission to its contents? I say none at all. I think it was the late Marquess of Salisbury who once complained that disclosure of matters in the Cabinet was as though some one were looking over your hand when you were playing cards. Yes, and at this moment it is something worse. It is as though a man looked over your hand when you were playing cards and disclosed the value of every card to your 865 adversary on the other side of the table. What in times of peace may be an indiscretion in times of war becomes a crime, and for His Majesty's Government to permit to continue without any attempt whatever to restrain the repeated unauthorised publication of matters, matters of high Moment, that may from time to time be discussed under the seal of the utmost secrecy, would be a weakness on the part of the Government for which they would justly earn contempt.
I know that this matter arouses strong feeling. Some people think that the Government are attempting to take one further step to secure themselves against outside attack. I can assure your Lordships that it is nothing of the kind. I often think that we who constantly live in London live in a fevered air. There are seven millions of people all gathered together, and at the home of each sorrow and anxiety knock with impartial force. The great exploits of our Fleet, the great power of our finance, the unexhausted resources of our industry, the indomitable bravery of our troops—these are matters which will fill the pages of history and will stir our posterity to enthusiasm and pride. But trey form no alluring head-line, they fill no flaming poster, they are not the matters which will promote the sale of newspapers. Is it surprising, therefore, when the flow of news is regrettably though necessarily scanty and thin, when the people only can tell from the rise and fall of the casualty lists and the tide and turn of the battle as it ebbs and flows how things are proceeding, that suspicion and distrust can be easily inflamed, and the people can be led to believe that, because they do not know more, news is being deliberately kept back for the self-interested purposes of some Minister or the Government?
I say in conclusion, with all the emphasis and all the solemnity I can command, that the theory that we are deliberately keeping back news either for fear of its consequence to the public or for any reason whatever, except under the guidance and control of our naval and military advisers, actuated, as we believe, by naval and military necessities, is utterly and absolutely without foundation; and it is equally false to assert that we have attempted, or that it is any part of our policy to attempt, to strike at the free criticism of the Press, which we recognise is of great advantage to the public and may even be for the good of the Government.
LORD BALFOUR OF BURLEIGH
Your Lordships will probably think that I am a very bold person to intervene in this discussion after the eloquent and able speech which we have just heard from the noble and learned Lord on the Woolsack, for I have not the advantage of being either a lawyer or a newspaper proprietor. But there are one or two considerations which I venture to think I can put before both lawyers and newspaper proprietors from a point of view which is worth consideration on this occasion. May I venture, in the first place, however, to congratulate most warmly the noble and learned Lord on the Woolsack upon the latter part of his speech? I am sure that in a great deal that he said in the latter part of his speech he was not only speaking entirely from the heart, but he very largely carried your Lordships with him in his condemnation of the treachery of making public things which ought not to be made public in the circumstances in which we are placed at the present time. Indeed, the latter part of his speech so touched me that I very nearly resolved not to say the few things which I have to say, and which were largely brought to my mind by some of the things which the Lord Chancellor said earlier in his speech.
If I may venture to say so with all respect to him, I think at one part of his speech the noble and learned Lord mixed up two things—namely, the inexpediency of criticism and the charge that the Government were withholding information. With some of the points which the noble and learned Lord made as to the inexpediency of the criticism which has been passed in newspapers I cordially agree, but I do not think the noble and learned Lord who initiated this discussion said anything about criticism. It was more as to preserving the freedom of the country to have all the information that was available to them which induced him to raise this discussion.
LORD BALFOUR OF BURLEIGH
We have had a good deal of enlightenment in the course of the Lord Chancellor's speech as to the principles which have underlain the course and policy which the Government have pursued in this matter of withholding information; but it seems to me that the responsibility of the Government as a whole cannot be quite so easily got 867 tid of as the noble and learned Lord on the Woolsack seems to think. I venture very respectfully to agree with him that the test of whether information should be given or should not be given must depend upon military or naval necessity; but I do think that if it is the case that it is left entirely to the naval or military authorities and to them alone and that it is upon their responsibility that information is given or withheld, then I respectfully and humbly say that the Government have been to some extent wanting in the discharge of their responsibility to the public. If they themselves are convinced, upon the testimony of their naval and military advisers, that any particular information should be withheld, then they are right to withhold it. But I do not think they have been right—if I correctly understand the position as described by the noble and learned Lord on the Woolsack—I do not think they have been wise in giving an absolutely free hand to the naval and military authorities throughout the whole course of the war as to what shall and what shall not be published. They ought to have exercised their own discretion; and I venture to say that during a great part of the time, at any rate, the interests of the country and of the public have suffered in this respect, that in many cases information has not been given which might have been given and which to a free country like ours ought to have been given to educate them up to the position of difficulty in which we are placed.
The policy of withholding information from a free country is unwise, and is very liable to be, and has been actually, carried too far. I venture to say distinctly that calamities have happened which were known through a great circle of the public but which were not announced, and the fact that they were not announced gave rise to the apprehension that things were being withheld altogether, and that the country was being led through a fool's paradise into believing that it was better off than it was at the time. Freedom—and we rejoice in our freedom—entails responsibility, but you cannot have the full responsibility shared by the whole people unless you let the whole people feel that they are really being taken into your confidence, and that the worst as well as the best is honestly told to them as far as is reasonable consistent with military and naval necessities. Those who 868 are not politicians and are not in touch with the public should not be the real judges of what it is safe to publish. I feel most strongly that through a great period of the months through which we have passed the refusal to communicate information has produced distrust and discontent; and I honestly tell the Government, with all the friendliness that I desire to exercise towards them, that they are largely responsible as a whole for the mistrust and the bitterness in some respects of the criticism passed upon their acts.
I should really like to know at whom the second paragraph of this Regulation is aimed. Is it aimed at the public or at some of the existing members of the Government? The noble and learned Lord on the Woolsack gave an invitation to newspaper proprietors to announce from whom they got information. I do not think that invitation is very likely to be responded to if there is any hope either directly or indirectly of getting further information. I admit that there is something to be said for the contention of the noble and learned Lord that sometimes information in answer to an indirect question is given unwittingly. But I venture to say that during the last few years—and I speak with some knowledge of what happened in former years—there has been greater laxity in the care with which Cabinet secrets have been preserved; and I am afraid it is not too much to say that more or less directly, certainly to a very much larger extent than was the case before, there has been a sort of subterranean alliance between certain politicians and newspapers for the mutual advantage of each other, and, as I say, to the disadvantage of the public and of secrecy. I do not want to go further into this matter now, because the last thing at this moment that I desire to do is to give anybody the idea that we are not wholehearted in support of the Government if only they will tell the country what the interests of the country require. I believe that if they will give a firm and united lead, they will find a noble response from the country.
§ THE MARQUESS OF LANSDOWNE
My Lords, the noble and learned Lord on the Woolsack has dealt so fully with this matter that I hope we may assume from the fact that no one else has risen to take part in this debate that he has succeeded in great measure, at all events, in allaying some of 869 the very exaggerated apprehensions which have been entertained in regard to the possible effects of this Order in Council. That it is a drastic Order in Council no one will deny. That it is an Order in Council which if it were unwisely and thoughtlessly put into operation might occasion injustice will not be disputed. But I venture to suggest to your Lordships that in times like these we are bound to accept drastic legislation and to assume that it will be wisely and considerately enforced, upon the condition—and only upon the condition—that we are able to show that a case can be made out for the necessity of such legislation. If your Lordships will take the pains to look at the volumes of so-called Emergency Legislation, Defence of the Realm Acts, Orders in Council, Regulations, and so forth, that have been published within the last two years, you will see that there is abundance of legislation of the character to which I refer, and the only question is whether this legislation is or is not necessary. I quite understand that the public should look with particular suspicion and jealousy at any new Regulations which have even the appearance of an intention to curtail the liberty of the Press and the scope of public discussion. I propose in the very few words which I am going to address to the House to deal with this particular Order in Council, and to try to show your Lordships exactly how much and exactly how little it is intended to effect.
The object of the Order is to secure secrecy in three cases—for the proceedings of Parliament in Secret Session, in regard to the disclosure of Cabinet secrets, and in regard to the revelation of confidential documents or information obtained from confidential sources. First with regard to Secret Sessions. I will say, quite frankly, that I am not more enamoured of Secret Sessions than the noble and learned Lord who introduced this subject. The Secret Session was considered desirable the other day for a reason which I think it was not easy to combat. Here was certain information of extreme importance bearing upon the conduct of the war which it was thought should be made known to Parliament. It was impossible to publish it far and wide, because, as every one who listened to the speech of my noble friend behind me (Lord Crewe) during the Secret Session must have become aware, a great many of the facts and figures which he gave to the House were facts and figures which it would have 870 been impossible to reveal, not so much to the general public here as to other countries, and in particular the enemy with whom we are engaged. What were we to do? We had, it seems to me, two other alternatives before us—either to withhold the whole of that information completely from Parliament, or to impart it, not to Parliament as a whole, but to certain groups and combinations of individuals who might be supposed to take a special interest in the matter. It was notorious that at that time there were difficulties in carrying the Labour Party with us. We might have had a secret conclave with members of the Labour Party. It was objected I think rightly—that if there was to be secret discussion if should not be secret discussion between His Majesty's Ministers and certain bodies of individuals, but between His Majesty's Ministers and the Houses of parliament as a whole. We took that course. If it be once admitted that a Secret Session is an expedient to which you may in certain circumstances have resort, it seems to me to follow that you must take some means of preventing what happened during the Secret Session from being revealed to the general public; and that is what we do under that first part of this Order in Council. It has already been said, but I venture to say it again. Let it not be forgotten that the idea of the Secret Session received the approval of this House, and would have to receive the approval of the House again should His Majesty's Government ever desire to have recourse again to a similar proceeding.
The noble and learned Lord who spoke first complained rather bitterly fo the practice of supplying the public with such information as can be vouchsafed to it in regard to the Secret Session by means of a statement communicated by the Press Bureau. I think the nobel and learned Lord—he will correct me if I am wrong—suggested that that savoured of putting before the public an ex parte statement intended to put our own side of the case before the public, and not a fair and complete account. Let me tell the noble and learned Lord what happened with regard to the statement communicated to the Press. It does not purport to be a procàs-verbal or a full account of everything that took place. It is a bare and meagre summary of the outline of the statements which were made, and the main statement which was communicated as from the House of commons 871 was prepared, not by His Majesty's Government, but by the Speaker of the House of Commons, who claimed—and if I may say so quite reasonably claimed—the right of preparing the document in question. That part of it which related to the proceedings in this House was simply a statement that the proceedings here followed the same general lines as those in the House of Commons. So much as to that part of the Order in Council which concerns the questions of Secret Sessions.
Then there is the portion which deals with the revelation of confidential or secret documents or confidential information. If the noble and learned Lord or any member of your Lordships' House takes exception to that part of the Order in Council, may I ask whether it is seriously contended that at the present moment any person who happens to obtain access to a secret telegram is at liberty to make use of that telegram whatever the consequence and publish it broadcast? It is unthinkable; and I venture to say that the precaution which we are taking, so far as that part of the case is concerned, is one which is obvious and which we cannot possibly neglect. And that seems to me to bear somewhat upon what fell just now from my noble friend Lord Balfour, whose speech, if I may say so, commended itself to me upon the ground of the much greater moderation which he exhibited in his argument than the noble and learned Lord below the Gangway (Lord Parmoor). My noble friend suggested that the noble and learned Lord on the Woolsack had given great prominence to the statement that in deciding whether information should be given to the public we were guided by the advice of our military and naval advisers.
LORD BALFOUR OF BURLEIGH
I understood him to say that the matter had been left entirely to their discretion.
§ THE MARQUESS OF LANSDOWNE
In a matter of this kind we are, of course, bound to rely, and to rely greatly, upon the advice of our naval and military experts. There are many items of information the true significance of which from the point of view of the conduct of the war is really not obvious to any one who has not what may be termed an expert knowledge of the subject, and we should, I venture to think, be criminal if in cases 872 of that kind we did not go to our naval and military experts for advice. But I certainly am not prepared to admit, nor I think would the noble and learned Lord on the Woolsack admit, that in cases of that kind, when the naval and military advisers have said their say, there is no more to be said by any one else. I certainly could not go so far as that. The responsibility for publication rests upon the Government as a whole, and we should authorise or refuse publication after hearing what the military and naval experts had to say upon the question; but the responsibility is and must be that of the Government as a whole. But, if I may say so to my noble friend Lord Balfour of Burleigh, the point is not really one which arises on this Order in Council. The question that he has in mind is whether we have or have not been reasonable in discriminating between information which can be given to the public and information which cannot. That is a very fair point for argument, and it might have been argued whether this Order in Council had ever been invented or not.
I now pass to the third matter, the question of the revelation of Cabinet secrets. We were asked at whom this part of the Order in Council is aimed, and it is suggested that the real criminals are not the people who put these things into the newspapers, but the Ministers who allow the information to leak out. As the noble and learned Lord on the Woolsack pointed out a moment ago, there is nothing in this part of the Order in Council which distinguishes between members of the Cabinet and other members of the community. Let me say quite frankly that what this part of the Order in Council aims at is the practice which has grown up of inserting in the newspapers statements made with the utmost confidence as to what has taken place within the Cabinet, as to the views held by particular members of the Cabinet, and as to decisions which have not yet been arrived at. I plead very earnestly with your Lordships to agree with me when I say that, considering the obligation of secrecy by which the Cabinet is bound, it is impossible while war is in progress to allow any of the enterprising caterers of public information to give to the public statements, sometimes all the more dangerous because they contain a considerable element of truth, purporting to reveal secrets which the Cabinet itself 873 is precluded by the most solemn obligation from revealing. The practice seems to me so obviously unfair and unjust, both to individual Ministers and to the Government as a whole, that I cannot conceive any one being ready to tolerate it with equanimity. It is unfair to Ministers themselves, who are precluded from denying statements made which affect their credit, sometimes their honour, and it is unfair to the Government, which may well demand that when it is engaged in arriving at a decision which may be of the utmost importance and may affect the whole result of the war it ought not to be exposed to finding a garbled and incorrect account of its decision published broadcast in the newspapers of the day.
I cannot help thinking that a great part of the misgivings with which this Order in Council has been regarded are due to an insufficient attention to the actual language of the document. Leaving out superfluities, what is it that this Order in Council really says? It creates a new offence. What is the offence? The offence is that of publishing a report or a description of the proceedings of the Cabinet. It is not, as has been said in this debate, an offence to refer to a meeting of the Cabinet. The offence is referring to or describing the alleged proceedings that took place in the Cabinet. That may seem a verbal refinement, but the difference surely is one of the utmost practical importance. It is upon this very slender foundation that we have had built up all the, I must say, extravagant charges which have been made against us in and out of this House. I read two or three days ago a letter written by my noble friend Lord Grey, of whom I shall always think and speak with the utmost respect. He talks of us as engaged in the suppression of free speech and public criticism and in muzzling those who may wish to enlighten the public as to the true position of affairs. Then the noble and learned Lord below the Gangway (Lord Parmoor) follows up by telling us that we are stifling free discussion, and that this is a bureaucratic desire to withhold information from the public. I ask, Can any reasonable and fair-minded man say that the contents of this Order in Council have any effect of the kind? They have nothing to do with the giving or withholding of information. They have nothing to do with the denial of the opportunities of criticism. All they do is to prevent gross breaches of confidence 874 which at a time like this can scarcely fail to be most injurious to public interests. A great deal will, of course, depend upon the manner in which the Order in Council is applied. As to that, we can only say that we have a right to believe that your Lordships will assume that we shall not be such absolute idiots as to enforce it in a manner which will lend any appearance of plausibility to the kind of charges which have been made against us in and out of this House.
§ LORD PARMOOR
My Lords, I only wish to say a few words, not in reply to what the noble Marquess has said, because what he said really depends on a difference of opinion in the way in which you approach a question of this kind—whether you approach it from the point of view of retaining to the utmost free discussion, or from the point of view of limiting free discussion as far as possible. But I wish to say a few words in reply to the Lord Chancellor. He referred to the Official Secrets Act. I did not refer to it. In my opinion if any further innovation had been required, it ought to be made by an amendment in the ordinary way of the Official Secrets Act. As far as I am concerned, I think that that Act is well warranted and gives the protection necessary. It appears to me clearly that a person who divulges a Cabinet secret to a newspaper editor or some other person, privately of course, is not involved in this Order in Council at all. Now, who is involved? The Order says that it shall not be lawful for any person in any newspaper, periodical, circular, or other printed publication, or in any public speech, to publish any report of, or to refer to, the proceedings at any meeting of the Cabinet. Take the case which I put, where a member of the Cabinet does not "in any newspaper, periodical, circular, or other printed publication, or in any public speech, publish a report," but merely gives private information. It is quite clear that the words of the Order would not include a case of that kind, the case of the real culprit. But I want to put my objection a little wider. My objection, as I said at the outset, is to dealing with these matters by Proclamation. If they had been dealt with, as they ought to be, by legislation, then this question could be discussed and doubts of this kind could be put right one way or the other. I regret that I take an opposite view from that of the Lord Chancellor. I do not want to say that I am necessarily right, although 875 I believe I am; it might be a matter of subsequent discussion. But it is one of the lamentable results of proceeding by Proclamation that matters of this kind may be left in doubt, with the result that persons who consider themselves wholly innocent may be rendered liable to very heavy and severe penalties. Perhaps I ought to say a word with regard to what the noble Marquess said as regards the action of Mr. Speaker. I think it was the best possible method that Mr. Speaker should supervise what was published regarding the Secret Session of the House of Commons, but that was in breach of the Regulation without you say that Mr. Speaker is a person who officially communicates the account through the Directors of the Official Press Bureau. I quite agree that anything communicated from this House ought to be under the direction of 876 the Leader of this House and that anything communicated from the House of Commons ought to be under the direction of Mr. Speaker, but the Regulation to which I was referring is a different thing. It says that the only exception is to be "such report as may be officially communicated through the Directors of the Official Press Bureau." I do not wish to say anything further. But I feel most strongly, in spite of what has been said, that the Government have not disclosed matters which might perfectly well have been disclosed to the people of this country, and to that non-disclosure is due much of this innuendo and mistrust from which we are suffering at the present moment.
§ House adjourned at a quarter before Seven o'clock, till Tomorrow, a quarter past Four o'clock.