§ 7 p.m.
§ Lord Bethell
My Lords, I beg to move that this Bill be now read a second time.
In doing so I speak in part out of a certain sense of self-preservation, since for some years I have been engaged in composing works of contemporary history. They consist to a great extent of unauthorised disclosures of information which, I have to confess, are violations of Section 2 of the Official Secrets Act 1911. In writing a book about secret operations in Albania in 1948, for instance, I used quotations put to me by various former intelligence officers. I am satisfied that no harm accrued to the national interest as a result of the publication of these disclosures. It is at the back of my mind that, if the Bill becomes law, it will result in a very welcome retroactive decriminalisation of some years of historical work.
Likewise, in contact with members of the Civil Service I have, in declaring my own interest, to make it clear that, like other noble Lords, I have received many unauthorised disclosures of information. Indeed, it is difficult to have a conversation with a member of the Civil Service without receiving information in an unauthorised way. The odd phone call, the social occasion, the dinner or the lunch is steeped in the possibility of violation of the law. I think that it is high time, therefore, that something was done to change Section 2 and to replace it with a provision that is a little more sensible.
Your Lordships will probably agree unanimously that Section 2 must be removed. For many years there has been no significant argument on that point on either side of the House or in another place. However, there has been considerable argument about the way in which it should be done, and many painful attempts to carry out reform have come to grief. However, it seems that this Government have now decided firmly and clearly that they will embark upon the path of reform. That is why I think that your Lordships should have a chance to debate the matter, whether it is this Bill that is to go forward or another Bill to be introduced by the Government on some future occasion.
Section 2 brings the law into disrepute. It is a sledgehammer or a nuclear deterrent so unwieldy and full of nasty political fall-out that it no longer commands credibility. It is very difficult to enforce, given the unwillingness of juries to convict on the basis of some discredited statute. It was the noble Lord, Lord Franks, who said on the subject:It catches all official documents and information. It makes no distinctions of kind, and no distinctions of degree".Later he observed:A blanket is thrown over everything; nothing escapes".We must therefore look not for a blunderbuss but an Armalite rifle, not a butcher's cleaver but a surgeon's scalpel.
To venture from the area of unanimity to that of controversy, I believe there is too much secrecy in the Executive at present. There is among many in our 1567 Administration an assumption that people, whether in or out of Parliament, do not have the right to know and that information made available is a concession rather than a right. There is of course in this sense an area of natural rivalry between Parliament and the Administration since information confers influence, power, on those who possess it. I suggest therefore that there will be continuous rivalry between Parliament and the Executive over how much information is to be made available and where the line is to be drawn.
One has to accept that the overriding consideration in all these matters must be sound government and the safety of the nation, but it is up to those who make the law to ensure that the area which is kept secret, which cannot be made available to the public, is kept to the minimum consistent with sound government.
Our curiosity in Parliament extends in particular to what measures are being introduced or discussed now in order to make this reform. If there is secrecy over plans and discussions the aim of which is to do away with excessive secrecy, it creates something of a vicious circle. It is why on a previous date there has been something of a furore over the question. I suggest that there is now a certain measure of agreement that the matter will be pushed forward. I wish to congratulate those Members of another place who played a part in bringing about the Government's decision to move faster than they otherwise would have done, and we look forward to everything that they will do. Today we have the chance to speak to minds that are not yet made up. This, I think, is a valuable occasion.
This Bill owes a great deal to the Franks Report and to the Bill that was discussed in your Lordships' House in 1979. I draw to your Lordships' attention in particular Clause 1(1)(a). This is the crux of the Bill. As a matter of principle it would say that it is no longer a criminal offence to reveal unauthorisedly any information to the public but it remains a criminal offence to disclose information that would be likely to cause serious injury to the interests of the nation or endanger the safety of a British citizen.
It goes on to categorise one or two other areas where unauthorised disclosure of information is to be illegal. I suggest that 90 per cent. of the Bill is encapsulated in that paragraph. It will remain a serious criminal offence under the Bill to disclose information likely to cause serious injury to the nation. Later in the Bill there will be certain defences against unauthorised disclosure—defences, I suggest, that are very hard to put and that limit to a very significant extent the right to disclose such information in an authorised fashion.
Clause 2 points out that it is not only information that may be disclosed or handed over in an unauthorised fashion but things, objects, as well. At one level, one could think of the fuse for a missile and, at another level, of a tape or a video. It will emerge from Clause 2 that the unauthorised disclosure of any article of information will be a criminal offence.
Clauses 2, 3 and 4 categorise those people who may be found guilty of that offence. They include Crown servants, government contractors or any other person intentionally or recklessly disclosing such 1568 information, other than to a Crown servant for the purpose of his functions, or in accordance with official authorisation. Clause 5 makes it clear that any reckless retention of information by a Crown servant or any other person is a criminal offence. Clause 6 brings us to the area where there is a possible defence against such disclosure.
The first possible defence is that of prior publication. It is at the heart of the Bill and the intent of those who sponsored and supported it. It provides that such disclosure must be shown to have caused actual harm to the nation if a prosecution is to be justified. It is not enough to say that someone else has caused harm and that someone else, although not actually causing harm, has repeated that disclosure and therefore that person should also be prosecuted. The person who closes the stable door after the horse has bolted does not undo the harm done by the person who first opened the door. Therefore Clause 6 makes prior publication a valid defence against an offence committed under Clauses 1 or 2.
Clause 7 deals with the most complicated defence against unauthorised disclosure. It is the defence of public interest. It envisages a situation where a person in possession of information may feel so strongly that that information should be made public, although it is likely to cause injury, that he must do so out of patriotic duty. As noble Lords will see from Clause 7(2), it envisages that such a person has taken every possible measure to comply with the internal procedures of his department. He should have tried to have the matter corrected by seeing his Minister, for example, or the head of his department or even the Prime Minister but without success. Further, he should have reason to believe that crime, fraud, abuse of authority or the neglect in the performance of official duty has taken place. Therefore, in the last resort, he is driven to disclose information. It would be up to him, as is made clear in the clause, to prove that the disclosure is in the public interest.
I suggest to the House that it is difficult for any person to prove such a thing. However, we have rightly concluded that it should be difficult because the unauthorised disclosure of information likely to cause serious injury to the state is so inexcusable as to be almost impossible to justify. However, Clause 7 suggests a possible defence which I hope noble Lords will agree is justifiable. If the clause commends itself to your Lordships it will answer the proposal put forward of a possible lifelong duty of confidentiality. Surely it is impossible to envisage an obligation that should be put on a servant, however secret the work in which he has been engaged, which would oblige him in all circumstances to remain silent, even though he believes that great wrongdoing has taken place and even though he has done his best by going to his superiors to have the matter put right.
I should like to emphasise that we are not thinking in particular of what may take place under this Government or of what has taken place under previous governments in recent memory. We are thinking of what could take place under a government which were less democratically inclined or were embarking on a path leading towards a dictatorial state.
1569 Clause 8 deals with the question of proper classification of information. It is the only slight Americanism that I can detect in the Bill. I am glad that it has been introduced because I believe it to be high time that our Civil Service was made aware of the need for proper classification of documents. It should also be made aware of the need to be brought to account if it should over-classify documents. As will be seen in Clauses 8 and 9, it will be open to a defendant to challenge the certificate issued by the Minister (the Minister claiming that a violation of the law had taken place under Clause 1) by suggesting that the information disclosed was not likely to cause serious injury.
Under previous proposals for legislation that challenge is not available to a defendant. The certificate of the Minister is the end of the matter; the Minister determines what is likely to cause serious injury to the nation. The person who discloses that information has no defence if he has done so. However, the Bill proposes that the defendant should have the right to say, "What I disclosed was not likely to cause serious injury, even though the Minister believes or claims that it does. Therefore I claim my right to go to arbitration on this point".
The arbiter which the Bill puts forward is the Judicial Committee of the Privy Council. It usually consists of five noble and learned Lords who, I suggest, are uniquely qualified to deal with such a challenge for several reasons. First, they are learned in the law. Secondly, they are beyond reproach and can be trusted with all the details of the disclosure about which there is a dispute. Thirdly, because certain commonwealth countries no longer trouble the committee with appeals it may have a little more time on its hands and could be expected to undertake the extra duty. Therefore I commend that provision to the House as a safeguard for people charged with unauthorised disclosure and who believe that what they have revealed is not dangerous. The Minister would no longer be judge and jury in the whole matter. There would be an independent arbiter and I believe that greater justice would be done as a result.
Clause 11 indicates the penalties which are appropriate to violations of this Act. They range from six months on summary conviction to two years on indictment. Clause 12 deals with the question of the duty of the Minister for the Civil Service to properly classify documents which are in the charge of the Civil Service and to report to Parliament once a year that that has been properly done.
Perhaps I may interject a personal note. I know from my own researches into the Palestine question and various aspects of the Second World War that over the years there has been gross over-classification of official documents. Whole groups of documents have been over-classified and kept away from the public, even after the expiry of the 30-year period, because they were labelled as secret when there was no reason for that. I have no reason to believe that such over-classification does not occur today because it is so much easier to do that. The results of an error are very much less if one over-classifies than if one under-classifies. The civil servant will believe that it is better to be safe than sorry. That is fair enough, but 1570 he will be tempted to over-classify in a capricious manner. This Bill begins to discourage that.
There are various sundry consequences which are spelt out in Clauses 14 to 17 of the Bill. However, I should like to summarise it for your Lordships without distortion. The proposal is that Section 2 of the Official Secrets Act be replaced by a measure which makes it illegal only to disclose in an unauthorised fashion such information as is likely to cause grievous harm to the nation.
There are three ways in which a defence may be put forward if it is shown that such disclosure has been made: first, by pointing out that there has been prior publication and that the real offender is another person; secondly, by suggesting that the item was improperly classified as dangerous and that therefore no injury has accrued to the state in spite of the Minister's certificate to that effect; thirdly, there is the public interest defence that in spite of the risk of damage to the national interest it was essential to make it public, that every recourse had been taken, that nothing had been done and therefore the whistle had to be blown.
Those three defences are the only ones that would count under this proposal, which draws on a lot of the experience of friendly Commonwealth countries such as Canada, New Zealand and Australia, which have gone much further than ourselves in moving towards more open government. The proposal draws only a little on the experience of the United States, which has gone down paths towards freedom of information which is not the purpose of this proposal today because we believe that Parliament and the Government are not yet ready for a full freedom of information Act on the American model. I personally believe that we shall arrive there in due course.
The Bill is an attempt to limit and make acceptable to public opinion, including juries, the areas where criminal prosecution is the appropriate response to the leak of information. That is not to say that other leaks whose effects are not so dangerous are encouraged, because we do not encourage leaks by passing this legislation. We are told that there was a leak of an important nature only a day or two ago and I have no doubt that disciplinary action will be taken if the miscreant is found. However, under this Bill, such a person would not be prosecuted for revealing information about the proposed community charge because I doubt whether it could be shown that such disclosure is likely to cause severe damage to the national interest.
However, the threat of internal discipline, damage to one's career and—in a serious case—the loss of one's post in the Civil Service and loss of pension are very serious penalties. I doubt whether such a person, if found guilty by internal procedures, would find his future very agreeable in terms of obtaining another job. The threat of internal procedures against those who leak information which is not the dangerous sort suggested in Clause 1 of this Bill is very severe indeed.
Therefore, it makes sense to have a Bill which suggests that only the very dangerous unauthorised disclosure should be covered by the threat of criminal proceedings. I think your Lordships will conclude that Mr. Peter Wright would be prosecuted under 1571 this Bill if it were law. It seems to me that what he did was calculated to cause serious damage and that he could not claim any of the three defences outlined in the Bill with any chance of success. That is my surmise.
I commend this Bill to your Lordships as a step towards a more democratic form of government. It removes the catch-all Section 2 and the get-out excuse which is sometimes used by those who wish to conceal information from the general public when they have no need to do so—a provision which has hung like a black cloud over our administration for more than 70 years and has long been condemned as unnecessary and not conducive to good government. I ask your Lordships to give this Bill a Second Reading. I cannot predict whether or not it will become law but I suggest that it contains sufficient in terms of checks and balances for it to be very seriously considered by your Lordships and by the Government.
I particularly look forward to hearing what my noble friend Lord Ferrers says about these proposals and about other proposals which are germinating in his department and in other departments at the moment. Perhaps he may be able to tell us something about the White Paper which we expect to be issued before the recess. I look forward to the speeches of noble Lords and in particular to hearing the maiden speeches of our two superstars who will both be speaking against a background of considerable knowledge on this question.
§ Lord Mishcon
My Lords, before the noble Lord sits down, in the course of his very lucid exposition of this Bill he raised the question of whether this Bill would proceed or whether there would be a Government Bill; and at the end he said that he could not predict whether this Bill would become law. Perhaps he can tell the House, in view of certain rumours which are about, whether or not it is intended that in the automatic way this Bill will have a Committee stage and other stages if Second Reading is passed, or whether it is the intention of the noble Lord or of others to ensure that this Bill is withdrawn even if it receives a Second Reading. Perhaps the noble Lord will be frank with the House.
§ Lord Bethell
My Lords, I shall certainly be frank. I think it is extremely unlikely that the Bill will eventually pass. The noble Lord will perhaps know better than I about the time constraints that bind us in all parties and about the priorities put forward by the Whips on both sides of the House. Of course, I remain open to persuasion on that point. However, I should have thought it extremely unlikely that we shall be able to find time between now and the end of this Session to take the Bill through all its stages. I cannot say definitely but, having made all the research possible, I think it most unlikely. I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Bethell.]1572
§ 7.30 p.m.
§ Lord Ardwick
My Lords, I am most grateful to the noble Lord, Lord Bethell, for bringing the Bill before the House and explaining what is essentially a most complex and difficult measure so patiently and so lucidly. He and I are of different political persuasions but we were once innocently engaged as journalists and MEPs in giving our professional advice to the European Parliament on how to publicise its first democratic elections. Today we are again side by side.
I should also like to welcome the maiden speakers and we look forward to their speeches, which, in an essentially non-controversial way, will tell us about their experiences in administrating or submitting to the Official Secrets Act.
I wish the Bill had a future in the House, that it could go into Committee and that the vast experience of former Ministers and civil servants on the protection of official information and the arcane byways of security and intelligence could be brought into consideration of its proposals.
The noble Lord has produced a good Bill; it is not a perfect Bill but it points to the type of Bill that is needed. A detailed discussion in Committee in either House might have assisted, or might yet assist, the Home Secretary in the preparation of the final stages of the White Paper that he is to present in June. However, he said nothing at all about it in the other place. As the policeman said to the importunate crook, he had neither the time nor the inclination.
Some Members of this House are hoping that we shall see the Government's Bill, following the White Paper, in the next Session of Parliament. It has one thing which specially commends it: its implementation is unlikely to cost the Chancellor of the Exchequer any money. Indeed, he could save money if the Bill ensures that it will no longer be possible for anyone in the Government to argue that it is necessary to go to the courts so often—particularly the courts of Australia.
The discussion on a Private Member's Bill in Parliament would have been useful because this is such a difficult subject. The reform of the 1911 Act has been on the stocks for as long as I can remember. I seem to have been denouncing it for the whole of my journalistic life. It has been held up by the prejudices of politicians and fortified by those of civil servants.
Even when the Government managed to produce a Bill in 1979 it ran into trouble quite early because it was too rigorous and had to be withdrawn. As the noble Lord, Lord Bethell, said, part of the problem is that we live in a most secretive society. That is perhaps because we did not have a popular revolution in the late 18th or the mid-19th century. There are many public servants, not only in Whitehall but also in the town halls of this country, who are too anxious to conceal facts from the public as if they were the annointed custodians of a royal prerogative extending over all official information from the Palace to the parish pump.
The Act has been a great assistance to governments. It encouraged them to keep many matters dark while distributing information to suit their convenience, build up their egos and insulate 1573 them from criticism. It is what the Americans have named news management, or news manipulation. If we have a decent Bill to reform the 1911 Act—a Bill like this one—and it becomes law, it will ease the lot of journalists and make newspapers a little more interesting. But that is merely a by-product of the reform. If helping the media were the central purpose of the Bill, it would not stand an earthly! Today the press, largely because of the conduct of one or two popular newspapers, stands low in the esteem of public and Parliament; it can hope for few favours.
However, what we are concerned about is the basic democratic right of members of the public, the electors, to have access to the information which they need if they are to make a proper judgment of their government; that need is inadequately fulfilled. As Lord Franks pointed out in his famous report of 1972, knowledge is power and the issue of open government is about that; about its redistribution and about a shift in power. There could be no greater beneficiary of more open government than Her Majesty's Opposition, which explains why the enthusiasm which Opposition parties have for open government so frequently fades away once they are re-elected and they are the masters now.
We are of course not only concerned with reforming the law of official secrets but also with the positive side, the supply side, which is called "freedom of information". James Cornford, chairman of the Council of the Freedom of Information Campaign, said in a recent lecture that the question is whether the power granted to the executive is something we want to preserve; or,whether, given the extent of prerogative powers derived from the Crown, the effective control of the procedures of Parliament, the mastery of the civil service and the ability to manipulate and bully the media, there needs to be some countervailing measures to shift the balance towards Parliament and the public. If that involves constitutional change, so be it. Whatever the historical origins of the constitution are, the legitimacy of today's governments must rest on the informed consent of the people".However, I believe it is for rather different reasons that the Government have decided at last to legislate. Section 2 of the Act, which protects everything, has become less and less effective. The Government have lost too many prosecutions and judges, and juries have criticised the law in both words and deeds. Today the Government simply do not have the reliable statutory backing needed for the duty of confidentiality of public servants, and reform has become urgent.
The Bill shows what a liberal Home Secretary might do inspired, as it seems to be, by the Franks Report and the 1979 Bill. However, the Government had Mr. Shepherd's Bill thrown out of the other place. But, as I said, the Home Secretary did not say what he had in mind in Parliament. Yet he showed, in a broadcast which took place a fortnight after the debate in an interview with the redoubtable Hennessy—that great Whitehall warrior—that he had at least learnt the beginnings of wisdom, perhaps only the beginnings. He seems to have isolated security and defence information from other matters—though how you can define that information has yet to be revealed. Indeed, that could be most difficult. He appears to have followed Mr. Shepherd's proposals 1574 by suggesting that criminal sanctions are needed only for the protection of information about security and defence. He named, without defining them, two other categories of information which would require no protection or which could be protected by disciplinary action. Moreover, he accepted that there may be issues on which officers of the security services might have need to go to a counsellor outside the organisation. Of course, some of us would like the Minister to go much further and provide a defence for an unauthorised disclosure of acting in the national interest, as the noble Lord, Lord Bethell, has described, by bringing to light some crime, fraud, abuse of authority or neglect of official duty. But it could not be used as a defence simply because a civil servant disagrees with the policy of the Government and therefore he thinks that it is against the public interest and he should be immune. That kind of immunity could never be given.
Will the Minister go so far, as the Bill today suggests, in removing private and public companies from the legally-protected categories? Surely there is no need for statutory protection of these because there are other ways of protecting them through the civil courts. Will the Minister avoid the absurdity which has categorised the Spycatcher affair of newspapers being prevented from publishing material of high public interest which has been published widely in other parts of the world?
I do not believe that this is really the time to examine the Bill in detail. We shall serve a useful purpose today if we make it clear to the Government that the interest in this House in the projected reform is as great as that in the other place and that we are expecting a liberal and a radical measure which will give priority to the right to know and the right to speak.
§ 7.42 p.m.
§ Lord Bonham-Carter
My Lords, I should like to join with the noble Lord, Lord Ardwick—whom I follow with, as usual, great pleasure and agreement—in congratulating the noble Lord, Lord Bethell, on the Bill which he has brought before your Lordships' House, thereby rendering a public service. I am not quite clear as to his intentions, but I take it that he wants the Bill to receive a Second Reading. Certainly, that is my view. I believe that the Government will benefit greatly from a discussion on the proposals of the Bill in Committee. I hope that we shall have that opportunity.
I look forward to the two maiden speeches to be made on this occasion by two distinguished Members, one of whom is noble and learned. I look forward with anticipation to listening to what they have to say.
As the noble Lord, Lord Ardwick, has said, the debate covers well-trodden ground and it started long before my noble friend Lord Franks wrote his famous report. It is derived from a Bill introduced in 1911 by the then Liberal Government—a Bill which I deeply regret. No-one denies the manifest nonsense in part of Section 2 of the Official Secrets Act 1911 and I do not propose to discuss that weakness.
1575 In another place Mr. Shepherd's Bill had wide cross-party support. I hope very much that noble Lords in this House will show that they share that support and reinforce it. It seems to me unfortunate that the Secretary of State, in his speech in another place, revealed nothing of what was in the Government's mind. He gave no indication of how they were moving except that they were moving extremely slowly. He expressed a simple conviction which he stated rather than argued, that this topic was unsuitable for a Private Member's Bill.
I could not understand the reasons that lay behind that statement. Perhaps when the noble Earl replies he can explain why a matter of this wide public importance that touches upon the very heart of democratic government, should be regarded as unsuitable for Members of Parliament to introduce. As the Government will not tell us what they are thinking, and as the noble Earl—unfortunately—is speaking very late in the debate so that we cannot tell what he is thinking until we have no opportunity to comment on it, the only course is for noble Lords to tell the noble Earl what they are thinking and hope that he will listen to it.
In the debate in another place the Home Secretary feigned surprise that there were suspicions on the part of people whom he described as "dotty" that the Government intended to introduce some tyrannical measure tightening up the Act. Silence on intentions combined with the Government's record on this matter do little to dispel those suspicions. Neither the 1979 Bill which was described by the Spectator as a "deplorable Bill", by the Daily Telegraph as "truly appalling" and by the Sunday Express as "disastrous", nor the Government's use of Section 2, their behaviour over Spycatcher, their use of various legal devices to avoid Section 2 and juries, their opposition to Mr. Shepherd's Bill, nor their failure to argue that opposition, give much ground for confidence in the laborious pregnancy of their new White Paper which is unlikely to produce a healthy or a self-restrained baby when it finally emerges. Therefore, I hope that the noble Earl will note certain principles which underlie Lord Bethell's Bill and which distinguish it from the Official Secrets Act 1911 and also from the 1979 Bill.
I start from a rather simple proposition that the protection of official information and freedom of information are in fact two sides of the same coin. Without freedom of information democracy cannot work very effectively. Therefore, the protection of official information is a very delicate matter which lies near to the heart of the accountability of government to Parliament and to the people.
I support another very simple proposition that all information should be freely available unless the release of that information can be shown to be against the public interest or an invasion of individual privacy. That is the point from which we start and hence the importance of distinguishing between various types of information which is done in Clause 1 of the Bill. The test ofserious injury to the interests of the nationmust be applied to information concerning not only defence and international affairs but also security and intelligence. The latter two were excluded in the test 1576 in the 1979 Bill but they were included in the recommendations of Lord Frank's report of 1972.
The principle involved in this change and in this clause is simply that the source of unauthorised information is not the most important matter; it is the consequences of disclosing that information that should concern us. Secondly, I urge the Minister to note the importance of Clauses 8 and 9 to which the noble Lord, Lord Bethell, referred. Clause 8 requires the issue of a Ministerial certificate before any prosecution can be brought. But unlike the 1979 Bill such a certificate would have to indicate that the information had been properly classified and that can be challenged in the fashion set forth in Clause 9. Clause 9 would allow the defendant to argue that the Minister might have been misinformed which, after all, is possible. The Minister might be acting on outdated information, which might be possible. He might even be acting in an arbitrary manner which is also possible. This seems to me to be an entirely sensible and constructive clause.
Thirdly, I draw the noble Earl's attention to Clause 6 which makes it a defence to show that the information involved had become publicly known and available before the time of the alleged offence in the United Kingdom, or elsewhere. This the Government should truly welcome because it would avoid the Spycatcher booby-trap into which they fell so heavily again and again. It seems to me self-evident that what the Russians, the Irish, the Canadians and the Americans know should be allowed to be known by British citizens. I cannot see how anyone can possibly suppose that anything else is true. In another Bill the noble Earl was anxious to avoid anomalies. It is surely anomalous that foreigners should have information that is not available to the citizens of this country.
Finally, I draw the noble Earl's attention to Clause 7 whereby it is a defence for a civil servant to disclose information in the public interest. This is a matter of real importance. We are not suggesting that civil servants should disclose information on the ground that they disagree with the policy the Government are pursuing. All we are arguing in this Bill is that the information they disclose must, if they are to disclose it, disclose maleficence, crime, misuse of authority or something of that kind. I understand—and I shall be corrected if I am wrong—that this principle has been endorsed by the noble and learned Lords, Lord Denning and Lord Wilberforce, in judgments which they have made.
The whole trouble about this problem, which has been discussed so endlessly and which has become acute of recent years under the present Government, is that the Government, in their corporate capacity, in dealing with leaks and disclosures have shown no sense of proportion. To put that sentence another way, they have shown no sense of the ridiculous and of how ridiculous they have made themselves appear to the public not only here but elsewhere. They made themselves totally ridiculous by pursuing policies which were disproportionate to the ends they were seeking to achieve, by going on banging on doors of empty stables, by spending £2 million or more of public money on prosecutions that failed, by humiliating a distinguished civil servant and by 1577 making a had book into a bestseller. That is a list of follies which I should have thought the Government would like to avoid. I should have thought that the Government would welcome the Bill as a way of saving themselves from committing those follies in the future.
What I hope to hear from the noble Earl when he answers—for we shall not hear from him until the end—is how the Government's mind is moving in this matter. I rather doubt that we shall get much on that score, but that will be a disappointment. If we cannot hear how the Government's mind is moving, perhaps the noble Earl will answer certain simple questions. What are his objections to the Bill? What are his objections to Clause 1, to Clauses 8 and 9 and to Clauses 6 and 7? Why does he oppose them? What dangers do they bring to the public life of this country? Do they not improve the existing position? If the Government will not tell us what they think, and if their thoughts on secrecy are secret, they might be so good as to tell us this evening before the debate ends why they disagree with the modest, sensible and constructive Bill of the noble Lord, Lord Bethell.
§ 7.55 p.m.
§ Lord Donaldson of Lymington
My Lords, this evening I find myself in what is I think a somewhat unusual, although I am certain not a unique, situation. I rise to address this House ostensibly for the first time. In fact I first addressed this House on 9th December 1948. It is true that I addressed it from the Bar; nevertheless it was this House meeting in this Chamber. I advert to that experience tonight because it illustrated to me for the first time the great kindness, indulgence and consideration that is shown by this House to maiden speakers of either kind who are in difficulties. I was in difficulties.
What had happened was this. An appeal had been heard by your Lordships' House. It involved a Scottish shipping company, the Monarch Steamship Company. The company had wisely instructed Scottish barristers to represent it. At the end of the arguments Scottish counsel disappeared back to Scotland and I was instructed to take judgment, a formal task involving getting up and sitting down at the appropriate times and bowing when in doubt. It was never suggested that I should actually have to say anything. But alas, the night before, I was approached by my opponent who said, "I am going to make an application for a special order as to costs against your client." I did not know what to do. I was thoroughly inexperienced. I had not a clue what the appeal was about and I had to address your Lordships' House.
What I said noble Lords will find reported at page 239 of 1949 Appeal Cases. Roughly translated it is as I have already rendered it. I remarked, "I do not know what this appeal is about. It is most unfair that I should be expected to deal with this matter. Why was it not raised when Scottish counsel were here who did understand it?" I am happy to say that Lord Du Parcq, who was sitting, at once came to my rescue. He said, "Mr. Donaldson, if the Monarch Steamship Company had had the good sense to brief you for the appeal you would have known all about it and you would in those circumstances have put forward the 1578 following arguments in defence of your client." I gratefully agreed. I am happy to report that the Bar was cleared and their Lordships sitting on the appeal spent at least 10 minutes before they rejected Lord Du Parcq's argument.
So much for my very happy previous experiences of your Lordships' House. The point I want to make tonight on this Bill is simple but, I venture to think, important. It is that Section 2 of the 1911 Act is so widely drawn as to undermine the administration of justice and the rule of law. Perhaps I may illustrate this with an entirely hypothetical example concerning my secretary. I have to underline the fact that it is hypothetical; otherwise she will give notice and I shall have to find another secretary. However, let us take this hypothetical example.
I dictate two letters, one to the manager of my laundry disputing the amount of his bill and another, a mildly confidential one, to my noble and learned friend the Lord Chancellor. My secretary types those letters and brings them back. I sign them and she takes them away to put them in envelopes. She puts the one to the Lord Chancellor into the envelope addressed to the laundry and vice versa.
Let us just test the results against Section 2 of the 1911 Act. In her case it would read, and I omit immaterial words:If any person"—that is my secretary—having in her possession or control any … document"—the letter to the Lord Chancellor—which has been entrusted in confidence to her by any person holding office under Her Majesty"—that is me—fails to take reasonable care of the … document … that person shall be guilty of a misdemeanour".In other words, my unfortunate secretary, by an unimaginable slip, has committed a criminal offence and if prosecuted would have absolutely no defence.
It is of course an extreme case and I should be more astonished than I can say if the Director of Public Prosecutions authorised a prosecution. However, there are other cases, not so extreme, where opinions differ as to whether the director should authorise a prosecution. In those cases, like that of my secretary, the accused has no defence. The real issue is whether the prosecution should have been brought at all in the public interest. That starts to be discussed in the media and in other places. The jury is well aware of it. What it really means is that in that situation, whatever the motives, we have an attempt to procure that the jury acquit in defiance of their oath to try the case purely on the evidence and in accordance with the law. That I regard as a most unhealthy situation. It undermines society's faith and confidence in the rule of law which is the foundation of parliamentary democracy as we know it.
I shall say nothing whatever about the content of the Bill. Anything I said, for or against it, would inevitably be highly controversial. I conclude by merely expressing the hope that the fact that the Bill has been brought forward and is being debated in the House will speed up the time when an acceptable alternative to Section 2 comes to be enacted.
§ 8 p.m.
§ Lord Houghton of Sowerby
My Lords, it is both a pleasure and an honour to follow the noble and learned Lord, Lord Donaldson of Lymington, after his maiden speech. I have long wanted to meet the noble and learned Lord because I recall that he passed through a troublesome time following the Industrial Relations Act 1971. I am sorry that the noble Lord, Lord Carr, who was in his place a few moments ago, has left.
§ Lord Houghton of Sowerby
The noble Lord, Lord Carr, has come back just in time to hear me say that he should be extremely grateful to the noble and learned Lord, Lord Donaldson, for steering a rudderless ship of justice through the choppy seas of the Industrial Relations Act 1971. It was a mad time.
The noble and learned Lord was given the task of finding his way through this new code of industrial and criminal law. I admired him greatly during that time. I am happy to congratulate him, on behalf of the whole House, on a most agreeable and discreet maiden speech. We hope that we can hear from him in all sorts of ways in the future.
§ Lord Renton
My Lords, before the noble Lord continues, I am sure that he would wish me to point out that that Act of Parliament did not deal with the criminal law; it applied civil sanctions.
§ Lord Houghton of Sowerby
My Lords, I am grateful for that information.
I wish to turn now to the Bill and the Official Secrets Act, which is really what is under discussion. I am glad that the Bill is called the Protection of Official Information Bill and not a freedom of information Bill, because that is more realistic and more to the point. It is better that we should try to define what is protected information rather than to describe what is information that can be freely given away. To that extent at least, I am in agreement with the title.
We all agree that the Official Secrets Act 1911 is long out of date. Nearly everything done in 1911 was flawed and has proved irrelevant to modern times. I refer to the Parliament Act 1911, which will come under close scrutiny in the coming weeks and months when we deal with the community charge and the Act's relevance to the powers of the House of Lords.
The year 1911 was a bad one for the Liberal Government. The King had died the year before. The general election had left them more unstable than previously. There was a national railway strike. The insurance scheme had only just begun, and they had been hijacked by a group of Irish nationalists who extracted a pledge of support for home rule for Ireland and were given carte blanche to do what they liked with the vote of the Irish nationalists in return. That is why 1911 was a bad year for the Liberal Government. However, we all agree that the Official Secrets Act, or at any rate Section 2, is out of date. The question is: what is to replace it?
1580 My experience in that field goes back a long way. I suppose that I have a long but undistinguished track record on secrets, secrecy, public administration, Civil Service conditions and Cabinet government. I served on the Royal Commission on Standards of Conduct in Public Life, which was largely to do with corruption and secrecy, especially in the Inland Revenue, and so on. I was on a committee dealing with the custody of Cabinet documents, which is relevant to what we are talking about today. More recently, I have become chairman of an education trust which is pursuing an academic study into the law and freedom of information, which is a fascinating subject.
My experience of Cabinet government was that there were numerous leaks at the time. All efforts to track them down proved fruitless. The Prime Minister cast his eye around the Cabinet from time to time and said, "It must be somebody in this room", but the passive countenances of my colleagues did not reveal a flicker of guilt, and no one knew where the information had come from, although we began to suspect that what was given away by the Prime Minister on an unattributable basis was called a briefing and what was given away by other Ministers on an unattributable basis was called a leak. A combination of the two kept the press pretty well informed. I drafted the White Paper on the parliamentary commissioner in 1966, and that became law in 1967. So altogether I have had fairly wide experience of the problem.
The first oath of secrecy that I swore—I swore then—was when I entered the Inland Revenue in 1915. I had to see a commissioner of taxes who was chairman and managing director of a colliery near Mansfield where I was appointed. When I went to take the oath before the commissioner in his office I was on the surface taking an oath of secrecy, and underground hewing the coal beneath me was my noble friend Lord Taylor of Mansfield who was an 18 year-old underground worker in the same pit. We have joined forces since when discussing the relative merits of being a surface or an underground worker.
I have one or two criticisms of the Bill. My attention has been drawn to Clause 1(1)(c). Paragraphs (a) and (b) are largely conventional. Paragraph (c) provides that the information must have been supplied by an individual, in confidence, under a statutory requirement or in connection with an application under a statutory provision. That is narrowly drawn. I see that when it comes to a defence under Clause 7, in the case of a Crown servant or government contractor the defence is available only if he had previously taken reasonable steps to comply with any established procedures for drawing such matters to the attention of the appropriate authorities without effect.
There is considerable doubt in many quarters as to what the established procedures are in drawing the attention of the appropriate authorities to matters which might disturb the civil servant or contractor concerned regarding the possibility of fraud, abuse of authority, neglect in the performance of official duty or other misconduct.
At the same time I believe that no civil servant should take it upon himself to decide what he believes 1581 to be in the public interest, justifying disclosure on that ground and taking responsibility for it. I do not think he should have that responsibility. He should yield it up to higher authority and when that fails to give results then he can consider his own position. That is why I did not agree with the case of the civil servant. Mr. Ponting, who disclosed information to a Member of Parliament and claimed that he was acting in the public interest. I think that there should have been recourse to higher authority, that authority taking the responsibility.
A very strict code of the Inland Revenue is that if a local official discovers fraud in connection with tax affairs, it is not for him to go the police. It is not for him to make any disclosure. Anything untoward of that kind it is his duty to report to higher authority. In the end the board of the Inland Revenue will take the statutory responsibility because it is charged with the care and management of the income tax Acts. Cases have occurred where, when they have been reported to the Inland Revenue, no action was taken for reasons which seemed good and sufficient to that authority.
However, I think we cannot have inspectors of taxes generally disclosing information or going to the police. This matter led to very serious disagreement on the Royal Commission on Standards of Conduct in Public Life where there were other views than my own as to where responsibility actually lay for disclosing information of suspected fraud. I think it is not for the individual civil servant to decide whether in taking a certain action he is discharging his public duty. It is for others, if he is in a difficulty. When he has yielded up his own responsibility, it passes elsewhere. That is how I feel about the matter.
The Bill, on the face of it, requires a clearer understanding on the part of civil servants of what their undertaking is. That may lead to considerations of binding contract. Of course, the secrecy of the Inland Revenue is not covered by the Official Secrets Act, it comes under the income tax Acts. Therefore the Inland Revenue civil servants are under the obligations laid upon them by the income tax Act which they positively accept on appointment before they are even allowed into a tax office to have a look around. But that is not the case with civil servants in many other departments.
It is on confidentiality that I think we shall have the greatest difficulty, especially now that the Government tend to shelter behind the law of confidentiality when the law of the Official Secrets Act has broken in their hands. More recently, the Government have gone for action on grounds of breach of confidentiality rather than breach of Section 2 of the Official Secrets Act.
I believe it will be a very difficult subject when we come to it, as in due course we shall have to come to it. What are the obligations of a serving public servant or of a person under a contract with the Government? What are the statutory obligations or understandings or whatever is binding upon them for the protection of official information which is classified as protected information?
1582 I wish to safeguard not so much factual information relating to the secrets of the citizen. Those secrets can be protected more easily by definition. But what about documents passing in the course of administration, in the course of government? We have excluded from the purview of the so-called ombudsman the Cabinet Office, for example. However there are all sorts of problems about the handling of Cabinet papers. On getting closer to it, as we did on the committee, we wondered how slack the handling of Cabinet documents could be.
Civil servants and Ministers must be protected from the exchange of documents which are not themselves effective documents of government but are discussion documents for schemes and plans which may be under consideration by the government department concerned. However, when an envelope containing exchanges of view on what should be done about a particular form of social security are planted on the doorstep of a magazine which feels that it is free to publish them, I think serious mischief may occur. It certainly did on one occasion; I know that for a fact. Matters which were under consideration had to be dropped because publicity was given to them before they passed into the realm of prospective legislation. Officials must be protected from that.
When one considers the Crichel Down inquiry, everything was turned over by the learned counsel who undertook the inquiry in looking at the minutes which passed between civil servants. There were some cynical ones. The case concerned a piece of land requisitioned during the war which should have been handed back to the owners. However, the Ministry of Agriculture wanted to find every possible use for it except returning it to the owners. Some very questionable minutes were passed. Later, the feeling in the Civil Service was, "We must not put it on paper: we must now do it by word of mouth, on the telephone, rather than have items in documents which can be turned over and used against us".
There are reasonable grounds, I believe, for wanting to protect the confidentiality of processes of administration and government which are antecedent to the taking of decisions which should obviously be made public. That is my main approach to this question. The noble Lord moved the Second Reading of the Bill admirably, if I may say so, although he has admitted that we are now engaged in a kind of seminar, not in plenary session. Nevertheless, I think that this discussion, short as it may be, is of value.
I believe that protected information is the clue to this. It is not covered by subsection (1)(a) and (b) of Clause I but is narrowly defined as being given in confidence under the conditions mentioned in subsection (1)(c). I think that would have to be widened. The other clause is Clause 7. I think there ought to be a kind of referee or the three wise men used in the Civil Service for deciding security cases and security risks to whom reference may be made by a civil servant troubled in his conscience by something he has seen or discovered which he thinks ought to be passed somewhere else.
That brings me to the conclusion of what I have to say. We shall no doubt see the White Paper in due 1583 course. I hope that the Minister who replies will be able to tell us more about its present state. Are we getting on? Are we near to hearing more about it? There will presumably be a White Paper, and so on. Anyhow, this will be one of the most important matters we shall have to decide, affecting the integrity of public servants and the security and health of public administrations.
§ 8.20 p.m.
§ Lord Knights
My Lords, it is a challenging experience to make a maiden speech in any company, but when it falls to be delivered in your Lordships' House by someone who has spent his working life, as I have, subject to a statutory provision requiring him on pain of dismissal to take no active part in politics, the matter becomes even more daunting. I am not helped either by the knowledge that I am, I believe, the first retired police officer to find himself in this honoured position. Therefore, I have no direct precedent to which I can look for advice or example.
I am very conscious too of your Lordships' convention that maiden speeches should not be controversial. When I reflect on the history of the debates on this issue I must say that I feel I am on the edge of a veritable minefield. On the other hand, I am comforted by the knowledge that your Lordships traditionally extend a kindness and courtesy to every maiden speaker and I therefore seek your Lordships' indulgence should my amateur status become too apparent this evening.
I was encouraged to speak in this debate when I learnt that one of the incidents, among others, which annoyed the government of the day and which led them to introduce Section 2 of the 1911 Act was the unauthorised and premature leakage to the press in 1901 of the Home Secretary's decision to authorise an increase in the pay of the Metropolitan Police. With 197 separate police forces and police authorities as there were at that time, each responsible for conducting its own negotiations on conditions of service, perhaps that was embarrassing. But nearly a century later, with 43 police forces and a national negotiating body, circumstances are quite obviously very different. There is clearly a need for change in the law. That is apparent, I believe, to everyone who considers the matter, and I should not wish to repeat the many arguments that have been formulated both here and in another place on so many occasions.
What I have found surprising about these debates is the lack of reference—almost none at all, I believe—to the part of the police in this matter. It is to them of course that falls the responsibility for investigating apprehended breaches of Section 2, and with the Crown Prosecution Service and the consent of the Attorney eventually to launch any prosecutions which may be considered appropriate.
It is clear from the police evidence to the Franks Committee that they also regard Section 2 as being anomalous, uncertain, unfair and defective in its present form and in need of amendment. I am sure they would welcome the fact that if this Bill were to go through and be accepted the duty of investigating these matters, other than on occasions when the national interest was affected, would fall to be 1584 handled by senior officers of the Civil Service, so avoiding the use of scarce police manpower and resources to deal with what is really a management problem. At the same time there are vital secrets which must be protected, and this must be recognised in any legislation.
In general, therefore, I support the changes which this Bill proposes, but there is a much wider context into which I believe it should be set. I refer to the effect on the police organisation itself and on its operations if the proposed changes go through. This, again, appears to have been quite unnoticed. No doubt that is because the Act does not refer specifically to the police in any of its sections. But since 1938 police officers have been held to be persons who hold office under Her Majesty and therefore they are subject to the provisions of the Act to exactly the same extent as are civil servants.
Indeed, since 1938—this is perhaps unknown but it is a fact—the colour of the chief constable's office carpet has been protected to exactly the same extent as has the now legendary teabag of the Home Secretary. So how does Section 2 work in practice as regards the police organisation? There are two objectives behind Section 2. One is to deter officers from disclosing information without authority and the second is to control those citizens who have come into possession of the kind of information that we have in mind from further publishing it.
As to the former, the police have relied very little on the statute to deter their officers. They have relied much more on their own internal discipline code to maintain the ethical and professional standards which are required. I believe that ethical standards are of the essence in this debate. Such prosecutions as they have taken against their own officers have been confined to the release of that kind of information which is now covered by Clause 1(1)(b) and (c) in the proposed Bill. In other words, they have prosecuted on occasions when prosecution would continue in the future and not on others. In other cases they have, as I say, referred much more to their discipline code.
It is interesting too that in the past two or three years when prosecutions have been taken they have been taken much more under other Acts of Parliament—for example, under the Data Protection Act—rather than under Section 2 because of the way in which it has become discredited.
As regards the second objective—that is, the control of the information which has been disclosed without authority to others—here again no prosecutions to my knowledge have ever been taken and neither has any threat of prosecution been made in these circumstances. Again, therefore, a reform of this kind would not be likely to cause any problems to the police.
Before I conclude I wish to make particular reference to Clause 1(1) of the Bill. I am worried at the way in which in Clause 1(1)(a) information relating to security or intelligence,the unauthorised disclosure of which would … endanger the safety of a British citizen",is distinguished from information in Clause 1(1)(b),which is likely to be useful in the … prevention or detection of offences or the apprehension or prosecution of suspected offenders".1585 The information which falls under Clause 1(1)(a), such as vital secrets of the nation, will be handled under the Minister's certificate and will he protected. However, as regards the information under Clause 1(1)(b), the police or the prosecution would apparently have to prove on each occasion that the information that had been unlawfully disclosed came within that definition.
The point I wish to make is that with the spread of international terrorism and more particularly with the activities of the IRA it is not possible to discriminate so clearly. Increasingly the information which is developed about the activities of international terrorists falls much more under Clause 1(1)(a) than under Clause 1(1)(b). I am sure that noble Lords would agree that in this area it is vital that police and security services work in close co-operation. If that he so, the information they are separately developing but which covers the same areas must be protected in exactly the same way.
I thank noble Lords for their welcome to this House and for the way they have received me this evening.
§ 8.28 p.m.
§ Lord Stewart of Fulham
My Lords, it is with great pleasure that I congratulate most warmly the noble Lord, Lord Knights, on the interesting and extremely well-informed speech that he has contributed to our discussions. I am sure that I express the opinion of the whole House when I say that.
It is one of the boasts of this House that there is scarcely any department of human knowledge on which we cannot produce an expert from somewhere on these Benches. But I must admit that if there was one topic on which we were not particularly well equipped, it was matters affecting the police. Despite the fact that so much of the legislation we pass deals with the duties and powers of the police, we have not had, so far as I know, anyone who could speak with quite the same authority about what it is like to be a policeman. That is one of the reasons why we are very glad to have the noble Lord, Lord Knights, with us. We shall listen to his future contributions to our debates with very great interest.
I hope that we shall give the Bill a Second Reading. It is probably a bit vexatious for the Government, which is possibly one reason why one wishes to give it a Second Reading. When the Government say that if it can be agreed not to press such a matter now they will attend to it later on, sometimes it works out like that and sometimes it does not. We shall see.
The Bill deserves the close attention of the House and of the public. It tackles one of the most important defects of the notorious 1911 Act. In that Act, the definiton of an official secret was so fantastically wide that anything whatever was an official secret unless, presumably, special care was taken to say that it was not. Now we are to have an arrangement where the decision as to what is or is not an official secret will—if I follow the clauses in the Bill correctly—lie in the last resort with the Judicial Committee of the Privy Council. The appropriate Minister, who will be in most cases the Foreign 1586 Secretary, the Home Secretary, the Secretary of State for Defence or the Prime Minister, can make a classification. That can be questioned by a defendant in a case and the matter can then go to the Judicial Committee of the Privy Council.
I agreed with the noble Lord, Lord Bethel, when he said that Ministers have had a habit of overclassifying documents which come before them. I remember looking at a number of documents during the last war which had been prepared by the Army Bureau of Current Affairs. They were very good documents. They set out in a simple but not feeble form a number of pieces of information about how the government of this country works and the great political issues at stake in the war. Those documents were intended for use by officers who were going to conduct political discussions with soldiers under their command. Of course someone supposed that since the War Office had prepared the documents, there must be some degree of official secrecy about them. I remember seeing written on the cover of one document the words:What we are fighting for. The information in this pamphlet must not be revealed to any unauthorised person".The second sentence had been added through sheer habit.
We have an attempt in the Bill to make a more sensible arrangement as to what should or should not be regarded as a secret. The one matter that worries me is that the Judicial Committee of the Privy Council is a highly respected body but it does not, in the last resort, carry the responsibility for the defence of the country that lies on the members of the Cabinet and in particular on the Ministers for Defence, Home Affairs, Foreign Affairs and the Prime Minister. Is it entirely satisfactory that the Judicial Committee of the Privy Council, which does not carry that responsibility, should be the body finally to decide whether or not something should be treated as an official secret? I am not sure. However, happily, we need not try to answer that question now. That is one of the matters which we can consider at the Committee stage.
While I am in general very much in favour of the Bill, there are one or two matters of detail, as my noble friend Lord Houghton of Sowerby found, with which one might disagree. However, I agree with Clause 6, which provides that it is not an offence to spread information with which everyone is already acquainted. The fantastic absurdity of that matter in recent cases has not been to the credit of the Government or the country.
I am a little worried about Clause 7. We have the spectacle, as it was drawn for us by the noble Lord, Lord Bethell, of the individual civil servant, not perhaps in a very exalted position, who is convinced that something very wrong is being done. He must first make every effort to get the matter attended to through the proper channels. The noble Lord suggested that he might even go to see the Prime Minister. However, if he chooses to say in the last resort that he thinks he ought to disclose that matter, that is to be a defence.
Oddly enough, although your Lordships may not immediately follow the connection, that reminded me 1587 of Bernard Shaw's play about Saint Joan and the arguments that plagued the people who were endeavouring to try her.
§ Lord Bethell
My Lords, I am not sure that I made myself clear to the House. I hope that I pointed out that it would be the obligation of the civil servant who put forward the public interest defence to prove that what he had disclosed was in the public interest. That would be a very severe gravamen upon him. Merely to have gone through the official channels would not be sufficient. He would have to prove to a jury that what he had done was in the public interest.
§ Lord Stewart of Fulham
My Lords, yes, and he would have to prove it to a jury who might be faced with arguments from other sources, such as the Prime Minister or other people whom he had seen, who took the view that he was wrong. That is why I drew the analogy with Saint Joan. The people who were trying her were saying to themselves: "Is it really true that a comparatively uneducated girl knows more about theology than bishops and archbishops and rather more about strategy and tactics in the use of artillery than generals and field marshals? If that sort of thing is to happen, how on earth are ordinary chaps to be able to run the business of the world?". That matter will worry juries and everyone else involved with the defence of public interest. I see the case for a clause of that kind. I am not at all sure how it will work in practice. That will be one of the interesting matters which we shall be able to pursue if the Bill gets a Second Reading.
The only other point I wish to make is to congratulate the noble Lord, Lord Bethell, on putting Clauses 14, 15 and 16 into the Bill. Having defined an official secret elsewhere in the Bill and given the Government the necessary powers to protect secrets affecting the national defence, there is imposed on the Government in those clauses a duty to disclose to the general public such things as the principles on which governments work when they try to carry out rules affecting the right to benefit. I think that that is a most useful idea. Perhaps it is a little paradoxical. It was possibly included to provide balance by giving the Government the power of secrecy where needed in matters of defence and putting the onus of openness on the Government in social matters where such openness is particularly desirable. I do not know what the Government will make of that. It seems to me to be a happy idea on which I congratulate the noble Lord, as I congratulate him on the Bill as a whole. I hope that with some modifications it will reach the statute book.
§ 8.40 p.m.
§ Lord Hutchinson of Lullington
My Lords, all of us who have campaigned over the past three decades for the repeal of Section 2 must surely give an unreserved welcome to the Bill. Before turning to it I must make reference to the two maiden speakers. I know both of them personally I have appeared before the noble and learned Lord, Lord Donaldson, on occasion, and always with admiration and respect. I have also known him for many years as a most admirable 1588 colleague and as a Bencher of my Inn. As a distinguished yachtsman, it is characteristic of him to have chosen to launch his parliamentary dinghy on the rough seas of the Official Secrets Act. However, I noticed that as a circumspect navigator he was very careful to stay in the calmest of waters.
I had the privilege of serving with the noble Lord, Lord Knights, for over two years on the committee chaired by the noble and learned Lord, Lord Devlin, looking into matters of identification. There I was, as an advocate who spent a great deal of my life disputing the evidence of policemen, and there was he as a police officer, but during the whole of those two and a half years we never differed on any matter of principle. I welcome him—as we all do—to this House. Speaking for myself, I have never come across a more distinguished or fair-minded police officer during my entire career.
This Bill seems to me to be excellently drafted, limited in its aims and clear as to its content. On 3rd February 1971 I heard the learned judge in the Sunday Telegraph case use these words:On August 22 this Act achieves its 60th birthday. This case if it does nothing else may alert those who govern us at least to consider if they have the time whether or not Section 2 has reached retirement age and should he pensioned off".That was 17 years ago. Time seems to have been in short supply.
The Bill seems to do exactly what the learned judge was suggesting should be done. My noble friend Lord Jenkins of Hillhead has described the Government as the most secretive in the world, one whose stock in trade is leaks from above and prosecutions below. It would appear that we had a fine example of in-house secrecy within the Government served to us in this House. When Mr. Shepherd introduced the Bill, Mr. Hurd told the other place that it was in April 1987 that Ministers and officials began working on a thorough review of the reform of Section 2. Yet when the noble Earl, Lord Caithness, was asked in this House on 14th July 1987 whether the Government had any plans for reforming Section 2, he told the House that there was no point in putting forward proposals for reform until there was more consensus. He said:If any noble Lord has an idea how this could be done that would satisfy Parliament we would be most anxious to hear it".—[Official Report, 14/7/87; col. 928.]That looks now to have been a somewhat ingenuous observation. I say to the Minister that here is what his noble predecessor specifically asked for: ideas in a legislative form already commanding, I suggest, a wide area of agreement.
Section 2 has been described by the noble and learned Lord, Lord Scarman, as:a legal ban to freedom of information: that freedom being a citizen's right to know the information necessary to make his own choices and decisions in public and private matters, to express his own informed opinion and to be able to act to correct injustice".As has already been mentioned, Section 2 has spawned excessively bureaucratic and secretive central and local government. Those involved know that each day they could fall foul of the 2,000-odd criminal offences to which this section may give rise. Even the laundry list of the noble and learned Lord the Master of the Rolls comes within its scope, as we have heard.
1589 Classification has often been over-used and abused, often to protect the interests of government or party rather than those of the state. I welcome very much the requirement for certification contained in Clause 8.
Governments have manipulated the amount and the nature of the information available to the media and to the public by self-authorised or anonymous inspired leaks, mainly through the lobby system. Section 2 has led directly to a spate of what Ministers refer to as Civil Service leaks, or as we must now apparently call them: larcenies. As the noble Lord, Lord Bethel, has said, the Bill does not enlarge the area of leaks. I suggest that it goes a very long way to stopping leaks in the future because it gets to the very core of the leaks, so many of which have occurred recently.
The Bill goes a very long way to removing all the abuses to which I have referred. It defines clearly what should be protected information. It spells out with equal clarity what acts in relation to protected information can be regarded as criminal. It recognises that no government shall hereafter be both sole judge and jury as to what may seriously injure the national interest, which was the fatal flaw in the Government's 1979 Bill. It does not recognise any automatic or unchallengeable lifelong duty of confidentiality. Further, as has already been emphasised, it provides two crucial defences to any prosecution both placed squarely on the shoulders of the defence to prove that matters are already in the public domain and that disclosure would be in the public interest.
It seems to me that those matters covered by Clause 7 are eminently matters which could be tried by a jury. Perhaps I may say to the noble Lord, Lord Houghton—who I see is not in his place at the moment—that in making a parallel with the Inland Revenue, he was talking about fraud by the taxpayer whereas this provision relates to fraud by the Inspector of Taxes, which of course is an entirely different matter.
Perhaps I may say to the noble Lord, Lord Stewart, that Clause 7(1) is quite strictly drafted. The only justification would have to fall with proof of crime, fraud, abuse of authority or neglect in the performance of official duty. It does not go beyond that to much broader measures.
In a famous case in which I appeared after a lot of people had sat down on an aerodrome in Essex and tried to stop aeroplanes armed with nuclear bombs from taking off, we called the late Lord Russell to the witness box to try to prove to the jury that it would in fact be a benefit to the nation not to have aeroplanes taking off from an aerodrome with bombs. That caused the learned judge a certain amount of difficulty; but in the end he managed to get over that particular hurdle and was just—but only just—upheld in the Judicial Committee of this House. However, that clause would not allow any doubts on such matters because it is very closely drawn.
Finally, under Part II of the Bill for the first time the citizen would have a legal right to know. I suggest 1590 that that would be a first step towards a freedom of information Bill such as the United States and many Commonwealth countries already enjoy.
So this Bill would appear to strike an admirable balance between freedom of information on the one hand, and the demands of national security on the other. It fully reflects Article 10 of the Convention on Human Rights. At present that balance has to be struck by the courts without any guidelines from Parliament, and so the courts are drawn inevitably into the political arena. In the Spycatcher saga I suggest that the Government have misused the private law that protects confidential information by seeking injunctions against the media as a way of avoiding the adjudication of juries under the criminal law. In doing so, they have made themselves subject to the civil courts' decisions.
Mr. Justice Scott's historic judgment—upheld by the Court of Appeal, which was presided over, as we all know, by the noble and learned Lord, Lord Donaldson —in the Spycatcher case contains the unequivocal observation that a claim for absolute secrecy for the security service is one that could only be successful behind the Iron Curtain, He found that the basis of the Government's case was not in truth national security, but an attempt to uphold the reputation of the security service. He made it clear that a balance must always be struck between the duty of a free press to report iniquity and the breach of a duty of confidence, and in that case it was the former that prevailed.
We are to understand that the Government will seek to kill this Bill. I hope that the noble Earl will have the courtesy to spell out which parts of the Bill are acceptable to the Government. I second everything that was so well said in that respect by my noble friend Lord Bonham-Carter. Mr. Hurd has had a welcome conversion to reform. He told the other place that reform has now become crucial for the proper functioning of modern democratic government in Britain. I know that your Lordships will savour the adverb in that expression.
The Government intend to produce a White Paper. My sincere hope is that it will be one that commands a real consensus across this House. If that is the Government's genuine desire also, as expressed by the noble Earl's predecessor on 14th July last, a clear and considered critique of this Bill would be, I should have thought, an essential and obvious first step. Ponting, Massiter, Zircon, Wright, Cavendish, Westland—the rash of injunctions culminating in the parliamentary equivalent of a three-line Whip against this Bill—such a catalogue of suppression hardly inspires confidence that a government Bill is likely to extend to the public's right to know. Indeed, it lends weight to the suspicion, already referred to by my noble friend Lord Bonham-Carter, that in truth the Government's intentions are to produce more restrictive legislation that will reflect their increasingly authoritarian stance.
I ask the Minister why there is so much secrecy about the Government's intentions. Why not state openly the Government's thinking before the White Paper is published? Perhaps the noble Earl will bear in mind the words of a famous American Justice of 1591 the Supreme Court: "Sunlight is said to be best of disinfectants; electric light the most efficient policeman".
§ 8.55 p.m.
§ Lord Carver
My Lords, we must all be grateful to the noble Lord, Lord Bethell, for having introduced this Bill on such an important subject. We must also be extremely grateful to the two maiden speakers who have pointed out to us with great clarity and authority the problems that face those who administer the present law and who would have to administer whatever law may take its place.
Like the noble Lord, Lord Bethell, I have found myself in difficulties with the Official Secrets Act when compiling contemporary history; and not only personally but as a trustee of the Institute of Contemporary British History I have a considerable interest in the subject. Section 2 of the Official Secrets Act not only brings the law into disrepute, it brings into disrepute the whole idea and need for security—and there is a real need for security. That is because that section has been widely used and is still widely used to suppress things which are no real threat at all to national security. It is often used merely to avoid embarrassment to Ministers or civil servants, and it is openly and widely disregarded, particularly by Ministers or ex-Ministers—and not only Ministers—when they are writing their memoirs.
The catch-all characteristic of Section 2 is very similar to a catch-all section of what used to be called the Army Act: Section 40—conduct to the prejudice of good order and military discipline. When, as a senior officer I was inspecting a unit and looking at its administration and discipline, it was to me a sure sign that things were not as they should be when there was a very large number of charges against soldiers under that section, and there was nothing specific about an offence that had been committed under any other section of the Army Act. This Bill would make it much more important to be specific about the nature of the threat to national security.
I was threatened with court martial 40 years ago for having written a slightly critical review of a book by Monty. I had said that it was a rather high price to pay for a book of only 160 pages which had been largely written by his staff and had already been printed by the Army printing and stationery service so that he was involved in no expense in producing it. As was the fashion in those days, I had assumed that the book review would be anonymous, but the silly editor put my initials at the bottom of it and Monty was not pleased. He asked why it had not been submitted and I was told that I had committed a clear offence. That particular Major-General in the War Office asked the CIGS if he wished him to proceed with my court martial. Monty sensibly relented and instructed the then director of the Royal Armoured Corps: "To tell Lieutenant-Colonel Carver", whose real rank he believed was that of captain (but he was wrong because I was a major) "that he should not criticise the head of the Army, but say to him that as soon as he or I retire he can say what he likes". He then added, "I intend myself to write a good deal".
1592 He was wrong, because under the Official Secrets Act neither he nor I could write exactly what we liked. Monty did not have the slightest intention of observing that restriction, as he made clear to no less a person than the Prime Minister on a subsequent occasion. He was summoned by an angry Winston Churchill, because when he was Deputy Supreme Commander in Europe Monty suddenly reversed his public position over the European army. Having poured scorn on it for years, he suddenly announced to a visiting parliamentary delegation that it was a good thing and that the whole situation was being obstructed by the British Government. Winston sent for him and said that he must not say those sorts of things to embarrass the British Government, to which the noble and gallant Viscount (as he was then) replied that he was an international soldier and not a British soldier. The Prime Minister said, "We pay you, and we can sack you", and Monty said, "In that case, I shall write my memoirs and say a good deal about you".
I have probably already breached the Official Secrets Act by telling your Lordships all that! If my informant was correct he was undoubtedly breaching the Official Secrets Act. The Prime Minister then rang up the Secretary of State for Defence, Field Marshal Lord Alexander, and asked "Which would be worse, to let Monty write his memoirs or to sack him?" He said "It would be undoubtedly worse to let him write his memoirs".
Forgive me for that anecdote, my Lords; but it illustrates the nonsensical aspect of the Official Secrets Act. There is a need for secrecy. There is a need for protection of official information. There is a need to protect military secrets which could be to the advantage of a potential enemy. All sorts of things are classified as military secrets which would not be of any advantage to the enemy, but there are military secrets which must be defended.
It is very important, when a government are negotiating with a foreign government or negotiating with a commercial firm, or even indulging in what I call internal political negotiations, that their hand is not undermined by information being given away. They have a right to demand confidentiality from Crown servants and not to have the situation that has prevailed by which Crown servants, because they have a personal political opinion which is different, convey to the political opposition matters which should be kept confidential.
All those safeguards are necessary and are fully and adequately covered by the Bill. I join other noble Lords in asking why the Government object. They never really made clear what were their objections to the almost similar Bill put forward in the other place, other than the fact that it had not been put forward by themselves and had not been compiled by a lot of civil servants.
My own experience in public life is that if a decision needs to be concealed and if the reasons for it need to be concealed one needs to look at it again. The best decisions are those which one is not afraid to make and for which one is not afraid to explain the reasons. On more than one occasion I have been pressed to make decisions which I would not have been prepared to defend in public or to defend the reasons 1593 for those decisions, and I have refused to do so. That is one very good reason why I feel that this Bill should be supported. I very much hope that the House will give this Bill a Second Reading.
§ 9.2 p.m.
§ Lord Hemingford
My Lords, I too think that this Bill has considerable merit. I am sorry that it appears destined not to go any further here than did a similar measure in another place. The issues that it raises could have generated more discussion.
The noble Lord, Lord Bonham-Carter, expressed apprehensions about the Government's view which it is easy to share. It is worth stating that the Bill embodies some principles which should be in any proposed legislation to replace Section 2 of the Official Secrets Act. Other noble Lords have said that we should be clear that our intention is to have more information published rather than less. No one is suggesting that there is not information which should not be published; but the fact is that far more information could be made available.
I was made aware of how secretive our system is when, as a young reporter, I moved from covering Whitehall to covering Washington. The problem in Whitehall was to get any information at all. The problem in Washington, in the White House and the State Department, was to assimilate all the information that was available.
I believe that legislation of this kind should be placed in the context of Article 10 of the European Convention on Human Rights, which recognises the right to freedom of expression, to hold opinions, and to receive and impart information and ideas without interference, subject to some legal restraints on the way that it is operated. As I have said, everyone accepts that there is some information which cannot be published.
I am the honorary secretary of a body called the Association of British Editors. It has among its members editors from the national press, the BBC, independent television and radio companies, the regional press and periodicals. We have recently been in discussion with other newspaper and broadcasting bodies on this subject. I believe that a consensus is developing that there are at least four principles which should be in any legislation brought forward to replace Section 2.
The first is that matters affecting national security, as distinct from matters affecting the interests of the government of the day, should be defined as precisely and exactly as possible, with clear distinctions of degree so that they can receive the consensus of approval, referred to by other noble Lords, which any law must have if it is to survive in a democratic society.
As we have heard, Section 2 has been seen to lack that credibility. Although there are many in the media who may prefer to live with a discredited Act even if it were from time to time capriciously invoked, if it is to be replaced by more tightly-drawn legislation we believe that great efforts will have to be made to distinguish genuine matters of national security from disclosures that may be politically embarrassing to the government of the day, bearing 1594 in mind that we are dealing here with criminal offences. There should be other ways of dealing with civil servants who wish to embarrass their Ministers.
Secondly, I think that any legislation should include a principle that if a system of classification is to be brought in provisions must be made for an independent appeal against that classification. That need not be in open court if a public hearing were seen to be injurious to national security. It seems that most thinking about reform of Section 2 produces arrangements of one kind or another by which a Minister has power to decide what is classified. I do not believe that a Minister in that position can be left as his own judge and jury. I do not believe that the public would have confidence in such an arrangement. There must therefore be some kind of higher court. I do not know what it should be; the suggestion in this Bill is worthy of consideration. But some body of that kind is essential.
The third principle, to which reference has been made already, is the defence of prior publication whether in the UK or elsewhere. It should be possible for anyone charged under this Act to show that the information was already in the public domain. I am aware that there is an argument that someone wishing to publish something in a widely read, heard or seen medium might arrange to have it published in an obscure journal first in order to legitimise the later publication. But we have recently observed the absurdity of trying to maintain the alternative approach.
The fourth principle—which, I believe, is embodied importantly in this Bill and should be in any measure that is brought forward—is that publication in the public interest should be a defence if, on the balance of the argument, the accused person can show that reasonable suspicion of the existence of crime, fraud, abuse of authority, or other misconduct, outweighed constraints on publication. It seems to me necessary to secure a position in which an editor or a civil servant who has decided to publish something which he knows to be injurious to national security can at least seek to defend himself on the grounds that a greater good is achieved by publication than by non-publication. It may be that a public interest defence cannot be made absolute. However, it cannot be right to deny an individual that defence absolutely.
The Bill addresses itself constructively to the principles that I have mentioned. It would be nice to think that it would have a Second Reading. If it does not, I certainly hope that these pillars are present in whatever edifice the Government confront us with later in the year.
§ 9.10 p.m.
§ Lord Harris of Greenwich
My Lords, I shall begin by making a point that I believe will receive the endorsement of all in the Chamber. We have had two exceptionally interesting and stimulating maiden speeches today. The first was by the noble and learned Lord the Master of the Rolls. he made us all aware, in a delightful speech, how fortunate the Monarch Shipping Company was in having him as its counsel in 1948, deserted as he was, unhappily, by members of the Scottish Bar. The second was by my 1595 old friend and colleague the noble Lord, Lord Knights. As he said, he is the first chief officer of police to be a Member of this House. As the noble Lord, Lord Stewart of Fulham, said, it is astonishing that we have not had a retired chief officer of police in this House before. The speech of the noble Lord, Lord Knights, today made us realise what we had missed as a result.
We have returned today to official secrets legislation. We have had many debates on this matter and many of us—I speak certainly for myself but possibly for others—are beginning to become a little weary of our speeches, admirable though they always are! I doubt if any piece of legislation in this century has attracted quite such a high level of criticism as Section 2 of the Official Secrets Act. No one can be found to say a kind word for it. We can be quite sure that the Minister will not do so when he rises to speak this evening.
That being so, the Government's position is a little odd. When the noble Lord, Lord Mishcon, and I and others spoke in the last debate on this matter in 1985, I reminded noble Lords that the then Home Secretary, Mr. Brittan, speaking in opposition in 1978, said this:Section 2 is simply indefensible, yet it is still there. Why is that? It is there is spite of the Government's assurances, because they have not had the courage to fight and overcome the strenuous rearguard action of Whitehall".Ten years have passed and, despite those decisive words, matters do not appear to have changed a great deal. All that has happened recently is that this Bill was introduced in the House of Commons. The Government decided to use a three-line Whip and the whole resources of the payroll vote to vote it down. This was a Bill introduced by one of their own Back-Benchers, Mr. Shepherd, who was demonstrating just that courage that Mr. Brittan had called for in 1978. In these circumstances, I very much welcome the fact that the noble Lord, Lord Bethell, has introduced a similar Bill in the House today although I did not wholly follow the answer he gave to the question put to him by the noble Lord, Lord Mishcon.
Before I turn to Clause 1 of the Bill, which I regard as of decisive importance—this matter was dealt with by the noble Lord, Lord Stewart of Fulham, in particular—I wish to make a few remarks by way of introduction. First, this country does of course have a number of secrets to protect; but, as it is a country possessing far less power than it had in 1911, those secrets are now limited in scope and number. They cover such important matters as our own nuclear capability, our defence plans, the details of counterterrorist operations—an important point dealt with by the noble Lord, Lord Knights—and of course the secrets of our United States allies that we hold in trust.
There can therefore be no question of simply dropping Section 2 and replacing it with nothing. Perhaps I can give one illustration of what might occur if that were to be done. The House may recall a particularly effective KGB operation in which it arranged, through a CIA man who had been turned, the publication of names of CIA officers in posts abroad. One of those men was murdered soon 1596 afterwards and great damage was done to the American intelligence community, which of course was the object of the operation. We could not possibly tolerate a situation of that kind. That issue I concede to be of critical importance, and it cannot possibly be dodged.
That having been said, the present situation is really astonishing. What is clear is that the greater the breach of security, the less likely the person concerned is to be prosecuted. We have had the case of Miss Tisdall (which we discussed in 1985), a very junior officer at the Foreign and Commonwealth Office. She leaked to the Guardian information providing details of the timing of the arrival of cruise missiles at Greenham Common. No question of national security was involved—the Crown made that quite clear. She went to prison for six months.
Then there was Mr. Ponting—his case has been dealt with already by a number of speakers in the debate—an assistant secretary at the Ministry of Defence. He leaked information about the "Belgrano". He was prosecuted. Again the Crown conceded that no question of national security was involved. Despite an exceptionally hostile summing up by the trial judge, the jury acquitted him.
Contrast these decisions of the Attorney-General with the very different treatment in the case of Miss Massiter, the former MI5 officer, and another of her colleagues—particularly relevant because of the revision of Clause 7 of the Bill. Both made allegations of the gravest character in a Channel 4 programme called "MI5's Official Secrets". Miss Massiter alleged that the definition of subversive conduct, given by me in this House on behalf of the Government of which I was a member, and which had been accepted by the present Government, was deliberately manipulated to enable telephone intercepts to be used against the Campaign for Nuclear Disarmament, and this despite the fact that the Home Secretary at the time had said that the organisation was not a subversive organisation.
Next Miss Massiter alleged that, in clear breach of the Maxwell Fyfe guidelines, Ministry of Defence officials obtained information from MI5 about the political beliefs of the executive committee of the CND for use by Mr. Heseltine and his colleagues for party political purposes. In fact, she claimed that she made representations to her authority and they were ignored.
At first the IBA was not prepared to transmit these allegations because it feared that it would be prosecuted under Section 2. Then the Attorney-General announced that he was not going to prosecute, and the programme went ahead. I have no means of knowing the truth or otherwise of what Miss Massiter said; all I can say is that some of us thought that she was a rather plausible witness. In any event, how can it possibly be right to prosecute where national security is not involved (and it is conceded that it is not involved) and not to prosecute when it clearly is?
The silliness of the present situation is demonstrated again by the case of Mr. Stalker. Mr. Stalker, in the midst of his inquiry into alleged malpractice by the Royal Ulster Constabulary in 1597 Northern Ireland, chose to disclose details of his investigation to the editor of the Manchester Evening News, a man not particularly well known to him, as the editor concerned makes clear. Subsequently he wrote a book which has reputedly earned him a very substantial sum of money. I consider Mr. Stalker's behaviour to have been contemptible, but it does not follow that because behaviour is contemptible it can in any circumstances justify criminal proceedings.
The same argument applies to leaks from government departments. I do not know how many leak inquiries are taking place at present. I assume that it is a pretty formidable number. However, as a result of announcements from 10 Downing Street we know of the Prime Minister's indignation about the frequent disclosure of letters from her private office to Ministers.
This week we have heard of the leak of minutes of a Prime Ministerial meeting concerning the poll tax. To put it as politely as possible, it showed that Ministers had been less than frank with the House of Commons. We have also heard of the leak of the letter from the Prime Minister's office to the Education Secretary and of the leak from the Prime Minister's office to the Scottish Secretary. All that has occurred within a period of six weeks and now officers of MI5 are trying to discover the identity of the leaker.
Leaks of this character are hardly unprecedented. At the end of 1858 Mr. Gladstone, then briefly out of office, was asked by the then Colonial Secretary, Sir Edmund Bulmer Lytton, to go to the Ionian Islands as Lord High Commissioner Extraordinary—a formidable title. There was a strong movement in the islands for union with Greece and Mr. Gladstone was asked to assess the situation and report the facts to Ministers. Unhappily, within weeks a dispatch from the British representative on the island was leaked from the Colonial Office and did immense damage to Mr. Gladstone's mission. Indeed, it made it almost an absurdity. Was it done by a Minister or by an official? No one knows, and I suspect that no one will discover who is responsible for some of the leaks which have received so much media attention over the past few weeks.
I do not believe that it is right to be too pompous about all leaks. As the noble Lord, Lord Ardwick, said at the beginning of the debate, some of them are simply part of routine news management and a great deal of it comes from the Prime Minister's office. Many of the leaks are arranged by one Minister to score off another. Others are arranged by the press officers of Prime Ministers in order to damage an unloved colleague. Mr. Heseltine springs to mind as regards the present Government and Mr. Wedgwood-Benn as regards the Labour Government. In all circumstances the victim demands a leak inquiry and everyone else joins in for fear that any lack of enthusiasm for investigation should be interpreted as a sign of guilt.
However, I do not suggest that all leaks are of negligible importance. I suggest only that we should discuss them in a more balanced fashion and not use terms such as theft, as my noble friend Lord Hutchinson said a few moments ago. I do not consider that it is right for a civil servant who disapproves of the policy of the government of the 1598 day to photostat a minute or a letter, put it in a brown envelope and send it to a friendly newspaper or politician. People who do that are not admirable men and women who deserve to be treated as public heroes. They are behaving dishonestly and if discovered they deserve to be sacked, just as Mr. Ponting and Miss Tisdall deserved to be sacked: that is, sacked and not prosecuted.
The Government have been slow to recognise the fact that their refusal to take action on Section 2 for almost nine years—except for the folly of their Protection of Information Bill in 1979, which, if enacted, would have made it impossible for the press to report the Blunt scandal—has made that section little more than a had joke. It is now hard to believe that if an official was caught leaking the Prime Minister's letters he would be proceeded against under Section 2 because the official concerned would endeavour to use the Ponting defence; that is, that he had acted as a result of a high sense of public duty because Ministers had attempted to mislead Parliament. That being so, it is most unlikely that an Attorney-General would be so ill-advised as to institute Section 2 proceedings. That is on the assumption that the leaked letters, with which the Prime Minister is so much concerned, were not leaked by Ministers.
We know from the recent past that Ministers are unlikely to find themselves at the Old Bailey whatever they do. We have only to remember the circumstances of the Westland affair when Mr. Britian, then Trade and Industry Secretary, ordered his officials to leak the Solicitor-General's letter concerning Mr. Heseltine to the press. As the House may recall, there was some dispute as to the precise culpability of officials at 10 Downing Street to recognise that rules which officials are rightly expected to honour can be broken with apparent impunity by Ministers.
The only other matter I propose to touch on briefly is Clause 7, referred to by my noble friend Lord Stewart of Fulham. That clause provides a defence that disclosure of the information concerned was in the public interest in so far as the person concerned had reason to believe that it indicated the existence of crime, fraud, abuse of authority and so on. I believe that it is right to have a provision of that sort in the Bill. When the Government produce their White Paper we shall look most carefully to see whether this precise provision is contained within it. It is the only defence for an official who has made a single-minded attempt to get authority to take seriously a series of scandalous events. If he is blocked, I believe it is in the public interest to have such a provision.
The value of this debate is that it takes place only a few weeks before the Government propose to publish their White Paper. I hope that in that White Paper there will be no return to the approach of the 1979 Bill which would ensure not only a protracted and difficult Committee stage in this House and another place but a continuing lack of certainty as to whether juries would convict. I hope that the Government will heed the advice that they have received from so many quarters in the House today.
§ 9.27 p.m.
§ Lord Mishcon
My Lords, this may be a debate on a subject spoken of often in your Lordships' House but it has still been quite entrancing. There have been two very notable speeches—and I say that from the Benches that I represent—one being from the noble and learned Lord, Lord Donaldson. He mentioned the much respected name of Lord du Parcq. I am long enough in the profession to which I joyfully belong to remember, as does the noble and learned Lord, Lord Donaldson, that Mr. Justice du Parcq was founder and creator of a new procedure. I believe that he would have been delighted to have heard the young counsel who appeared before him, now as the Master of the Rolls and a Member of your Lordships' House, advocating a new procedure to take the place of the Official Secrets Act.
It was also a delight to hear the noble Lord, Lord Knights, who, as has been said and I shall not repeat it other than by mere mention, brings a fresh experience and fresh expertise to this House with a modesty which is absolutely, I suppose, unprecedented for a chief constable of police. His speech was welcome and we hope to hear from him again.
I shall try to put some courage into the heart and mind of the noble Lord, Lord Bethell, who introduced with such lucidity and care the Second Reading of this Bill. However, before I try to do that and give him my reasons, perhaps I can summarise the dilemma before anyone who seeks to deal with an Official Secrets Act or a Bill called the Protection of Official Information Bill. It was summarised at the outset of the well known Franks Report as follows:Those concerned with the mass media of communications in Britain have felt the need not just for more openness in government but for a loosening of control of information at all levels in the machinery of government. Only thus, they have argued, could they play a developing part in the operation of a modern democracy. We are faced, therefore, with an increased area in which considerations of secrecy may arise, and at the same time with an increased need for the diffusion of information together with the technical capacity to supply this need".Therefore, the difficulty one faces when dealing solely with the prevention of information coming out is the need to see that as much information as properly can come out does so from government. That is why other speakers in this debate have talked in terms of a parallel freedom of information enactment as an enactment dealing with the prevention of a leakage or circulation of information. Both thoughts should be kept in mind by a parliament which protects democracy.
Having said that, I revert to the theme put forward by the noble Lord, Lord Bethell, and what I, from these Benches, would like to see him do. His colleague in another place had the courage to go ahead with the Second Reading of a Bill which he regarded as extremely important, as indeed it was. It was upon the same lines as the Bill now in your Lordships' House. His handling of a situation where he felt it was the right of Parliament and ordinary Members of Parliament to deal with matters of importance to the nation won him the admiration of Members of all sides of another place, whether or not they agreed with the measure. He carried that debate, which lasted for five hours, to a Division. If I remember 1600 correctly and my note is correct, the Government received a majority of merely 37 votes; the figures being 271 against 234 in support of Second Reading.
If he had succeeded he would have seen to it that the following stages of the Bill took place in the other place. I especially asked the noble Lord, Lord Bethell, what his intentions were in regard to the normal practice of a Second Reading being passed in this House and the automatic Committee stage and other stages of the Bill which would follow. I hope that the rumour that I frankly disclosed to the House is incorrect. I gave him the opportunity to deny it. I have asked that if the House agrees to a Second Reading as I believe it will—he sees to it that the remaining stages follow as they should. I further say from these Benches that I hope that he will not allow anything, whether an official secret or otherwise, or an official secret handling of his Bill or otherwise, to deter him from his efforts to see that further stages of the Bill take place.
I have said that against a background about which I wish to be frank. This Government have done many meritorious things—one tries awfully hard to be objective in one's judgment however politically difficult that is at times—but they have not been eminent in the way in which they have tried to deal openly with various matters or policies which appear to be contrary to the wishes of the Executive.
We had a very recent experience of that in the Local Government Finance Bill. An attempt is being made by the Executive even to silence your Lordships' House from dealing with the question of the poll tax in that Bill. I was delighted, as I am sure were many Members who uphold the dignity of this House and who support its duties in Parliament, as one of the two great institutions of Parliament, to read in The Times this morning first of all what appears to be a statement from the authorities of this House, namely, that,The Lords' Public Bill Office will therefore accept any amendments tabled to the Local Government Finance Bill, subject to their falling within the normal rules of amendments to be tabled in the House of Lords".I also noted with great pleasure that the noble Lord, Lord St. John of Fawsley, who was described, I am sure perfectly properly, as a constitutional expert, is quoted as having told The Times last night:I think Peers can reject the whole idea of the poll tax quite easily because it is certainly not a Money Bill".That statement from the saintly and noble Lord was made ex-cathedra, which is an expression that he will immediately recognise.
It is not only upon such matters that this House and the nation have experienced the fact that this Government are not to be trusted when it comes to the question of dealing with information that ought to be given to the public. As I have tried to point out, neither has their record been especially good when it comes to a question of allowing those who wish to put a view as has been put in this Bill and by the colleagues of the noble Lord, Lord Bethell, in another place. If the noble Lord lacks the courage—I hope that he certainly does not—
§ Lord Mishcon
My Lords, I am sure that the noble Lord, Lord Bethell, did not think that I would ever wish to be offensive to him. In this instance the question of courage was only meant as an inducement to him and not in any way to spoil the record which he has in this House by way of the speeches that he makes here and the way in which he moved the Second Reading of this Bill. I ask him to continue in the same way.
What are the issues that are before us in regard to this Bill? The first is whether Section 2 should remain. I do not believe that at this stage in the debate anyone would wish to hear me advance reasons as to why Section 2 has passed into our history as one of the measures that not only has produced a lack of respect for law and order but has been an absolute failure because of its width.
Section 2 obviously has to go. What, my Lords, does one put in its place? I want at once to congratulate the noble Lord on putting before the House in this Bill measures which sensibly take the place of Section 2. He has classified the very type of offences which everyone would agree ought to be made criminal acts and has taken out other breaches of official secrets which do not deserve criminal action. The fact that criminal action is necessary is again contained in the Bill and I believe would have the support, as against that classification, of all sides of the House.
The next question to be considered concerns defence, international relations and intelligence being matters upon which the charge can be brought provided that danger to the nation or indeed danger to any British subject is envisaged. The speeches which have preceded mine show that, without doubt again, the measure giving the right to challenge a classification is a wise and proper one. The only doubt one would have—and that is where the question of the Committee stage comes in—is whether or not the Judicial Committee of the Privy Council is the appropriate body to deal with classification, a matter upon which our judges, whatever else may be their merit and experience, have no real experience. Although it can be dealt with at later stages of the Bill, I should have thought that an existing organization—the Security Commission—would obviously have experience of these matters and is the one to which it would be sensible to refer them.
I conclude by warmly congratulating the noble Lord on the introduction of this Bill. I wish it a proper procedural passage through this House.
§ 9.43 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, we have had a particularly interesting debate this evening on the matter of my noble friend's Bill. It is always a great pleasure to speak immediately after the noble Lord, Lord Mishcon. He has a happy knack, which he did not display this evening, of firing off a cannon ball just before he sits down which traverses the Table, lands in my lap and requires an immediate answer. I was wondering what he was going to do this evening; but I am glad to say 1602 that he changed his ways. I have always had a remarkable respect and affection for the noble Lord and for his ability. That was extended even further this evening because I was surprised when with all his ability he succeeded in introducing the subject of the poll tax on a Bill to do with official secrets. My admiration for his ability merely increased substantially this evening.
The debate has been remarkable for the two maiden speeches. I wondered how two maidens, talking about secrets, could succeed in being uncontroversial. They both succeeded in doing so in a most satisfactory and instructive way.
The noble Lord, Lord Knights, explained how he had had his experience in the police force. We look forward to hearing his contributions not just on the police force but on many other matters. He repeated and highlighted the fact that vital secrets must be protected. He was right to say that, and I find it agreeable that that was repeated by one who is a maiden speaker. We all enjoyed the noble Lord's speech.
The noble and learned Lord, Lord Donaldson, showed of course no fear of making a maiden speech. I am not certain whether it was a maiden speech, because he said that it must be almost unique to make a maiden speech for the second time in your Lordships' House. His contributions on all these matters carry enormous weight as do his contributions on matters outside the Chamber. When he referred to the time when he addressed your Lordships' House in 1948—I am bound to say that I had only just left school—he said that he addressed the House from the Bar. I hope that the noble and learned Lord will, in future, address your Lordships not only in the House but in the bar as well!
I liked the philosophy of the noble and learned Lord, when he said that he was not going to refer to the Bill's content because whatever he said, for or against it, would be highly controversial. I too take that as my text, looking up as I do to the noble and learned Lord and his judgment.
Whatever is said by Ministers about the Bill is bound to be seen as inferring one thing or the other. My noble friend Lord Bethell will not be greatly surprised if I tell him that I did not particularly welcome the Bill. I do not disguise the fact that it puts me in some considerable embarrassment, mainly because I fear that I shall not be as much help to your Lordships as my noble friend and your Lordships would wish.
My right honourable friend the Home Secretary explained on Second Reading in another place, on an almost identical measure, why he did not consider that a Private Member's Bill of this nature is either timely or a sensible way to effect a reform of Section 2 of the Official Secrets Act. I shall inevitably be bound to cover much of the same ground today.
The noble Lord, Lord Hutchinson, said that he thought the Bill was exactly what was wanted and that there was agreement here. That might be pushing things a little far. I do not blame my noble friend Lord Bethell and others for trying to get as much information out of the Government as they reasonably can.
1603 My noble friend Lord Bethell also said that there was agreement. He said that he was looking forward to hearing my reactions to the Bill and the Government's thoughts, and what views are germinating, about the White Paper. The noble Lord, Lord Ardwick, also asked whether we would remove private and public companies from the Act. The noble Lord, Lord Bonham-Carter, said that he was surprised that the Minister should speak so late in the debate; and that it would have been much easier if I had spoken earlier for then he would have known what the Government's view was. I have a great deal of sympathy with that idea. I should have preferred to have spoken rather earlier in the debate; but one of the conventions is that on a Private Member's Bill the Minister always speaks at the end.
The noble Lord, Lord Bonham-Carter, asked why the House could not know the Government's views He hoped that we would listen. Of course I have listened. What has been said during the debate will be carefully considered.
It is fair enough for my noble friend and other noble Lords to tweak the Government over that. My noble friend implied that he hoped for a dialogue and did not wish the Government to be a mere listening post during the debate. I am bound to say that there is nothing of substance which I can add to what my right honourable friend said in the debate in another place. The reason for this is not that the Government wish to be obdurate or obstinate; it is not that the Government consider they have a monopoly of virtue or of wisdom. I am sure that the noble Lord, Lord Mishcon, and his noble friends would probably be the first to say that this was not the case. I am bound to say that on this occasion I am happy to agree with him, had the noble Lord said that.
My right honourable friend the Home Secretary said in another place that he hoped to lay before Parliament in June the White Paper setting out the Government's proposals for the reform of Section 2 which he would announce before Christmas. The noble Lord, Lord Hutchinson, said: "Why can't we know it now?" I think, with the greatest of respect, that the noble Lord must either himself be politically naive or he must think that I am politically naive, if I were to say what was going to be in the Government's White Paper before the Government had produced the White Paper and before the Government had made up their mind. The position remains like that. I cannot therefore today announce or discuss the Government's proposals, and I am afraid that it follows that I shall not be able to comment on the details of my noble friend's Bill.
The difficulty is that my noble friend's Bill seeks to prompt the Government to give their views when their views are not yet crystallised; to which my noble friend says in effect, "Well, that's exactly the point". That is what he wished to do by producing the Bill this evening in order to enable your Lordships to have the opportunity of giving your views before the Government make up their mind. My noble friend has done that very successfully, and this debate has provided a very useful occasion for taking stock of the opinion in your Lordships' House.
1604 The noble Lord, Lord Stewart of Fulham, said that he wanted to give this Bill a Second Reading in order to be vexatious to the Government. I believe that was his expression. He is entitled to do that; he can be a gadfly to the Government, and that is probably a very good thing too. However, there has been very little support in the debate this evening for Section 2 in its present form.
§ Lord Harris of Greenwich
My Lords, if the noble Earl will permit me to say so, that is another argument.
My Lords, I was going to say that the noble Lord, Lord Knights, showed the absurdity of it, referring to the colour of the carpet. The noble and gallant Lord, Lord Carver, also described the absurdity of it in an entertaining speech when he said that he was very nearly court-martialled. The fact that one who was very nearly court-martialled ended up by being a field-marshal will give great encouragement to all the miscreants or potential miscreants inside and outside the army.
It is unanimously agreed that Section 2 is far too wide. It offers the same protection to trivial information as to information which affects the safety of the nation. That is quite clearly wrong. Section 2 is not fully effective in protecting the information which the criminal law ought to protect. These defects have long been recognised and the problem has been how to achieve agreement on how they should be remedied. The debate on how to replace Section 2 has been going on now for some 20 years. The Government indicated their desire to reform Section 2 by bringing a Bill before your Lordships in the first Session after they took office, way back in 1979. That Bill, whose title my noble friend has copied, was based on the recommendations of the Committee which was chaired, as my noble friend said, by Lord Franks. It reported in 1972.
That Bill followed closely the proposals which were set out in the previous Labour Government's White Paper on the reform of Section 2, which was laid before Parliament in 1978. Although the Bill was given a Second Reading by your Lordships, it was clear that certain aspects of it did not commend themselves to noble Lords and the Bill was unlikely to make progress. So it was withdrawn.
Since then the Government have not put proposals before Parliament for the reform of Section 2; but we have always recognised that at some point we should need to return to that section. So, in the spring of last year my right honourable friend set in hand an examination by Ministers and officials in order to see whether we could find an effective, an enforceable and a reasonable alternative to Section 2.
Let us be quite clear that if we change Section 2 what it is changed to must be effective, enforceable and reasonable. The noble Lord, Lord Hutchinson of Lullington, referred to the authoritarian stance of the Government. I really do not believe that is fair and I am sure that the noble Lord did not mean to be unfair. But when we are going into this matter in the 1605 greatest possible detail in order to find a way which will be acceptable to Parliament and to the people as a whole, to say that that is being authoritarian is not correct.
When this investigation was started, the Government did not make any announcement at the time. To do so might have stimulated expectations which we were not certain at that time we could fulfil. And on a subject of such importance as this it seemed to us that a thorough and a conscientious review was essential.
I make no apology, therefore, for the fact that by the time Mr. Shepherd introduced his Bill into another place the Government had not decided their position on the many and, let us remember, highly complex issues which reform of Section 2 involves. Nor would it be right for me to make any apology for the fact that the Government have still not made final decisions on these issues. We are seeking proposals which would result in legislation which is clearly expressed, which is easy to enforce and which will be widely accepted as reasonable legislation that will last. It is right that we should give the matter as much consideration as it requires.
§ Lord Houghton of Sowerby
My Lords, I am sorry to interrupt the noble Earl. Are there consultations going on? Is there anything happening or is this file being kicked around in the Home Office? I am sure that the noble Earl wants to tell us something and we are staying anxiously to hear it. Are the Government getting on with the job, and when do they expect to finish it?
My Lords, the noble Lord, Lord Houghton of Sowerby, is very anxious. I do not blame him, but he will have to wait a little longer. He knows perfectly well that he will have to wait longer because my right honourable friend said that he would have to wait until June when the Government's proposals come out.
I explained right at the beginning that I was put into some embarrassment because of course my right honourable friend wants to know the answers as does the noble Lord. But if the answers were available the Government would have produced a White Paper. So I am bound to tell the noble Lord that it is not a question of a file kicking around in the Home Office, as he so delightfully and graphically puts it. The fact is that considerable consideration is being given to this matter to ensure that when the proposals eventually come forth they should be at least reasonable ones.
§ Lord Mishcon
My Lords, I hope that the Minister will be courteous enough to give way again. He is putting up a magnificent defensive fight and I think that we all admire it. I think that even the noble and gallant Lord would admire the battle that is being put up by the Minister.
However, I remind the Minister that at col. 583 of the Official Report of the proceedings in another 1606 place on the Protection of Official Information (No. 1) Bill on 15th January the Home Secretary said:since April 1987 a major effort has been under way. I suppose that we are about two thirds of the way through that effort".If from April 1987 to January 1988 one had got through two-thirds of the effort, is it not reasonable to assume that by April 1988 one would have got through the whole of the effort?
My Lords, the Government are remarkably expeditious in the way in which they deal with matters. Whether that speed is as quick as the noble Lord would wish or whether it is greater than the noble Lord had anticipated, all I shall tell him—I am grateful for his very courteous and generous remarks—is that with the greatest of respect he will have to wait a little longer before the fruit is ripe.
When the right honourable gentleman, Mr. Shepherd, introduced a Bill to reform Section 2, the Government had a choice. Either they could rush their consideration of the issues so that they could seek to amend the Bill, if necessary, or at least to explain such views as they had, which were neither formulated nor firm, during the passage of the Bill through Parliament; or they could ask Parliament to wait a little longer until it could consider the Government's own proposals for reform.
The noble and gallant Lord, Lord Carver, asked why the Government would not accept the Bill. What my noble friend has done is to reintroduce much the same Bill as that which was introduced in anotner place. He expects, curiously, a different answer. He will not get it. I am bound to give him the same answer, which is that a White Paper will be produced. We thought that the course of waiting for considered proposals was the correct one. I still believe that that course is correct and that it would not have been sensible to take hasty decisions on vital issues simply in order to fit in with the timetable of an unforeseen Private Member's Bill, nor to attempt a major reform of such important legislation within the scope of and subject to the restricted procedures which apply to a Private Member's Bill.
The noble Lord, Lord Bonham-Carter, asked what was so special about this matter. Official secrets are what they say: they are the secrets of the realm; they are the secrets of the government of the day. It is the responsibility of the government of the day to protect those secrets. The Government can only operate within the confines which Parliament has set for them. The subject of the debate, which is the subject of a national debate as well as a debate in your Lordships' House, is what the confines are and where they may be correctly drawn.
We remain of the view that the correct way in which to reform Section 2 is for the Government, whose responsibility the official secrets are, to set out their proposals in order to receive views on them from throughout the country, from those who may be affected by them, from those who have to operate them, from those who bear the responsibility and from Members of both Houses of Parliament as expressed in debates before the Summer Recess. After that full consideration, further consideration 1607 will be given to the views expressed. The Government can then put legislation before Parliament for its decision. The legislation will then be subject to consideration and amendment. How the noble Lord, Lord Hutchinson, can find that to be an authoritarian stance escapes my comprehension.
That is the path which we intend to follow. Those points apply to my noble friend's Bill in just the same way as they applied to Mr. Shepherd's Bill—and indeed with even greater force. I understand my noble friend's wish to give the House an opportunity to express views on the nature of the reform of Section 2. The debates which we shall have in the summer will be on the basis of definite proposals from the Government and I believe that they will be the better for that.
Any Bill which goes through Parliament, and especially a Bill of this nature, will be subjected to a whole host of amendments of infinite variety and detail. The Government will be expected to give their views and reactions to each one. I do not believe that it is reasonable that the Government should do that when their views have not been formulated. My right honourable friend has set out on other occasions the issues which the Government are considering and the role which they see for the legislation which will replace Section 2.
It might be helpful if I were to repeat the explanation which my right honourable friend has offered, lest anyone should think that the Government were plotting some heinous or ungenuine measures. The central purpose of the Government's reform, indeed any reform of Section 2, is to narrow the scope of the criminal law so that it protects only that small proportion of official information which, in the public interest, should not be disclosed.
The first question which has to be answered is what that information is. Clearly it is not just security or intelligence information. It must at least include certain information relating to defence. There are also other areas where disclosure can do serious harm to the public interest; for example, by assisting the commission of crime or by disrupting relations with another government and thereby endangering the property and possibly even the lives of British citizens who are resident abroad.
Once that first question is answered, there follow a number of others of equal complexity and sensitivity: should the disclosure of any information in the categories which are covered by new legislation be an offence?
§ Lord Houghton of Sowerby
My Lords, this is a filibuster. The noble Earl is telling us nothing. He has been speaking for 23 minutes and we know no more than when he began.
My Lords, if I have been speaking for 23 minutes at least four of those have been because the noble Lord and his friends have interrupted what I was trying to say. Since the noble Lord and his noble friends want to know what the position is, when I try to explain to your Lordships what the position is I really think it is slightly unfair if the 1608 noble Lord says that that is a filibuster. If he does not want to know, then I am quite happy to sit down; but if your Lordships would prefer to know the position, I shall tell the House.
What I was trying to ask was: should the disclosure of any information in the categories which are covered by new legislation be an offence, or should it be an offence only if the disclosure would be likely to result in harm? If there is to be a test of the harm which is likely to be caused, should there be one test, or different tests for different categories? What should the test or tests be?
Who should decide whether the tests have been met in a particular case—a Minister, as the Government proposed in their 1979 Bill, or the courts or some other body, as my noble friend's Bill proposes in effect?
Should there be any difference in the liability of Crown servants and others? What defences should there be? What penalty is right for this offence?
All of those questions are difficult. The Government have approached them in the light of their experience in 1979 and of the discussions which have taken place since then both inside and outside Parliament.
There would be no point in the Government making proposals which there was every reason to believe that Parliament would find unacceptable. What the Government want is to put the question of reform of Section 2 to rest. We know that we can do this only if the new measure is seen to be reasonable. And we know that it is only worth doing if the new measure is going to be effective.
It must protect, and protect adequately, that information—and only that information—which cannot be disclosed without the risk of harm to the public interest. Only such information can properly be given the protection of the criminal law. Other information, which the Government do not want to disclose, must be protected by other means, such as disciplinary measures or the civil law. Much information, which at present is covered by Section 2—at least in theory—requires no protection at all.
That is the way in which we are approaching reform of Section 2; and if the noble Lord, Lord Houghton, does not like it or considers that it is a filibuster, I am bound to tell him that that is what the Government are doing.
We have approached the issues with an open mind. We shall receive comments on our proposals with a similarly open mind. If people approach those issues from prepared and entrenched positions, and with assumptions about the Government's motives, then we shall lose the opportunity for proper and effective reform.
We all want to see the Official Secrets Act put right and to see it respected. We all know that there are certain matters which have to be secret; we all know that there are certain matters which need not be secret; and we all know that there are other matters which many people think should not be secret. We have lived with Section 2 for 77 years. It is time to replace it with better legislation but we must get the new legislation right.
1609 The Government intend to issue a White Paper and that will thereafter be open to public debate and criticism and to debate and criticism within Parliament. I believe that that is the right way. I have tried to explain the Government's position to your Lordships. If the noble Lord, Lord Houghton of Sowerby, does not like it, I am sorry but that is the position as the Government see it.
§ 10.10 p.m.
§ Lord Bethell
My Lords, I should like to thank all those who have spoken in this debate and in particular the two maiden speakers, the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Knights, both of whom gave extremely urbane and interesting speeches. My only regret is the fact that because these interventions were their first in your Lordships' House they were unable to go too far into the merits or otherwise of the Bill. However, I feel confident that as both have shown an interest in this matter they will be able to participate in a full and frank way when it again comes before your Lordships' House after publication of the White Paper, which I trust will be before the end of June this year.
I believe that my purpose in introducing this Bill has been satisfied. I hoped not to tilt at windmills or to score party points but to give noble Lords the opportunity of acquainting the Government with their views on this important subject which is now being discussed, as it has been discussed in the past, and on which in future weeks a conclusion will be reached in the most important areas where power is exercised and decisions are made. It seemed to me to be wrong for the Government's ideas to have been crystallised without the advice of your Lordships. I am very glad that so many noble Lords who have expertise in this matter took the opportunity and gave the Minister their advice. I have no doubt that it will be very carefully taken into consideration.
Perhaps I may say that I was a little disappointed that so many party political interventions were made. Since that happened, I should like to say that it is not just the present Government which, if one likes, have been a little slow in tackling the question of the reform of Section 2 of the Official Secrets Act. I am looking at the noble Lord, Lord Harris, who for some years held the position of Minister of State in the Home Office.
§ Lord Bethell
Thank you. I am disarmed by the noble Lord's frank admission of that fact. When noble Lords opposite were in office this question could have been tackled. In my file I have, for instance, a particularly illiberal document on the matter signed by that great libertarian, the noble and learned Lord, Lord Gardiner, who made what I regard as very unenlightened decisions on the question of the protection of information. However, I do not think we need go too deeply into even the 1610 recent past and certainly we do not need to drag in the community charge, Mr. Ponting or Miss Massiter. I hope that we shall now be able to leave this House confident in the fact that the Government have taken our advice on board.
The noble Lord, Lord Mishcon, pressed me perhaps a little harshly—
§ Lord Bonham-Carter
Will the noble Lord give one reason why we should be confident that the Government will take our advice? They have not told us anything at all. Not one reason has been given saying why they object to this Bill. Nor have they given one indication of the way their mind is moving.
§ Lord Bethell
I can think of several reasons. This Government is the first government to have given an absolute undertaking with a time limit that they will bring forward proposals for legislation. That is more than the Liberal Party, which introduced the Official Secrets Act in 1911, has done or the Labour Party has done. At least under this Conservative Government, we shall, I am sure, get a Bill within a year, and that is more than noble Lords opposite have ever been able to say.
I was asked a little harshly, I thought, by the noble Lord, Lord Mishcon, what were my intentions as to the future progress of this Bill and I shall try to explain. Certainly, I should have liked to carry this matter forward and to see it have a Committee stage and pass through your Lordships' House. But I had to take into account the feeling in the House. The feeling in the debate today was largely supportive of the ideas I have put forward, but I ask your Lordships to look at the speakers' list. Of the 11 noble Lords who put down their names to speak, every one was from Benches opposite.
My own conversations and efforts in this matter have convinced me that there is a strong body of feeling on the Government Benches and among some noble Lords opposite that while many may see some merit in the Bill and many may think it a good idea that the matters have been aired—even my noble friend Lord Ferrers said that this did at least give the chance to noble Lords to contribute to the discussion—it would be otiose and time-wasting now, towards the end of April, for us to press on with a Bill which has not a snowball's chance in hell of reaching the statute book. For what reason? I understand that noble Lords opposite will say that it is in order to embarrass the Government, in order to bring out all the matters such as those the noble Lords, Lord Bonham-Carter, Lord Harris and Lord Mishcon have raised repeatedly, including Miss Massiter and Mr. Ponting, and a great and glorious time would be had by all. But that would not achieve the central aim of what I have been trying to do, which is to get a reform of the Official Secrets Act and to get a good law on the statute book. In my modest way I hope that this debate has contributed towards that end. I therefore commend the Bill to your Lordships' House.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.