HC Deb 04 December 1987 vol 123 cc1226-36

11 am

Mr. John Morris (Aberavon)

(by private notice) asked the Attorney-General if he will make a statement on his actions yesterday in the High Court concerning the BBC.

The Attorney-General (Sir Patrick Mayhew)

Yesterday morning, 3 December, the Daily Telegraph carried a story in the "Peterborough" column that began with these words: There are, I learn, jitters at Broadcasting House ahead of tomorrow mornings transmission of the first of three 45-minute Radio 4 programmes about the British security service. They feature no fewer than eight of its former employees and, even more controversially, one civil servant who still works at GCHQ". The third paragraph reads: The most remarkable aspect of the programmes, which are presented by Paul Barker, is the cast of former spies who have agreed to speak publicly about their secret world. These include three ex-MI5 people, three MI6 agents and three from GCHQ — all described by an insider as 'better witnesses than Wright, if sometimes a bit obsessional' ". The concluding paragraph reads: The serving GCHQ official, who will be named in tomorrow's programme, is featured for only a few seconds and, I'm told, is 'discreet'. But the fact that he agreed to be interviewed in the first place is likely to set the alarm bells ringing round at the Treasury Solicitor's office. As the House knows, members and former members of the security services are under a lifelong duty to the Crown of confidentiality in relation to information deriving from their employment. In the interests of the security of this country, the Government attach high importance to protecting that confidentiality. In the light of the evidence contained in the Daily Telegraph story, the Treasury Solicitor spoke yesterday morning to the legal adviser of the BBC. He informed the legal adviser of the information that he had read and asked if it was true. He was told that it was indeed true that nine members and former members of the security and intelligence services would take part in the programme, all of them identified by name, but that in the opinion of the legal adviser who had considered the programme carefully, none breached his duty of confidentiality. He said that the Daily Telegraph story was a gross over-representation of the contents of the programme.

The Treasury Solicitor said that, without sight of the transcript, he was unable to rely on the legal adviser's opinion that there was no breach of the duty of confidentiality that was owed to the Crown, and he asked for a copy of the transcript. This was refused, as was a request for all the names of the members and former members of the security services who were interviewed.

Following consultation within the Government, the Treasury Solicitor later asked for a copy of the transcript limited to the contributions of those members and former members of the services. This, too, was refused. The BBC was then put on notice of the Government's intention to apply for an injunction. At 4.30 pm yesterday, on behalf of the Government, I applied by counsel to Mr. Justice Henry in chambers for an interim injunction. The BBC was represented by leading counsel.

The Government sought an order restraining the BBC in the following terms: from broadcasting, or causing or permitting to be broadcast, as part of a radio programme entitled 'My Country Right or Wrong scheduled to be broadcast by the BBC on Friday, 4 December 1987, or in any way whatsoever, any interviews with, or information derived from, current or former members of the security or intelligence services of the United Kingdom relating to any aspect of the work of the said services, including their identity as current or former members thereof. The judge heard argument from counsel for each side and made the order in the terms requested on my undertaking to issue a writ forthwith and to serve on the BBC the draft affidavit that was before the judge. He also gave the BBC liberty to apply on 24 hours written notice for the variation or discharge of the order.

Mr. Morris

Is it the view of the Government that allegations of illegal and subversive action must never be published without newspapers first informing "the proper authorities"? Is this not censorship, of the kind emulated by every tinpot dictatorship; and were not these programmes discussed with the security services and the D notice committee, who were satisfied with the generality of the programmes? Secondly, was this gagging injunction sought not because it related to the content of the programme, but in order to counter the charge of inconsistency in relation to the treatment of "Spycatcher" and other books.

Thirdly, which interpretation of the order do the Government rely upon? Do they rely on the reportedly wide one of the Attorney-General's office in accordance with the July ruling of the Court of Appeal, that it applies to every organ in addition to the BBC and to every person wherever he be, or do they rely on the narrow one reported in The Times this morning of the No. 10 view that it applies only to this series of programmes? Which is it?

The Attorney-General

In answer to the first part of the right hon. and learned Gentleman's question, it is not for me to comment upon a matter that is directly in issue in the current litigation in the High Court involving The Guardian, The Observer and the Sunday Times. There is no question of censorship in the action that I took yesterday on behalf of the Government. However, there is every question connected with the duty of the Government to protect the confidentiality that is owed to them by members and former members. Had the BBC been prepared to meet the reasonable request of the Treasury Solicitor to see the passages of the transcript limited to the contributions from members and former members of the service, great difficulty would have been overcome. [Interruption.] There seems to be a certain discrimination today about freedom of expression.

In answer to the third part of the right hon. and learned Gentleman's question, yesterday was the first occasion on which the Government learned evidence from the source that I have described of the full extent of the programme. I am told that learned leading counsel for the BBC made no comment upon the width of the injunction and limited his comment on the proposed order to saying that at least it had the merit of being clear. However, I must make it perfectly clear that he objected to any injunction. It is not for me to interpret the order made by the judge. It speaks for itself.

Mr. Michael Mates (Hampshire, East)

In congratulating my right hon. and learned Friend on his robust, timely and entirely necessary action—[Laughter.]

Mr. Speaker

Order.

Mr. Mates

If I wanted confirmation that I was right, the laughter of the Opposition over this serious matter would confirm it utterly.

May I ask my right hon. and learned Friend what the position would have been if he had not taken this action and if the programme had gone out? If there had been a breach of security in that programme — perhaps made unwittingly by the BBC — where would we have been, because the press would immediately say that it was then in the public domain and could be repeated? That would be the end of any success that any Government could have to keep secrets secret.

The Attorney-General

My hon. Friend is completely right. We know that considerable importance and significance is attached by those who wish to publish matters that may well be sensitive in the security sense to the fact that the information is in the public domain. My hon. Friend is right to say that there was a real and patent risk that if material went forth of the sort described in The Daily Telegraph article, and it was material that was obtained or published in breach of the duty of confidentiality, it might well be said thereafter, "Now it is in the public domain. Perhaps it should not be, but it is." In that way, the boundaries are pushed further back. That was not a risk that the Government felt that they could properly take.

Mr. David Steel (Tweeddale, Ettrick and Lauderdale)

Is the Attorney-General aware that the only benefit that his injunction has brought the country is that this morning a 45-minute interview with the leader of the Liberal party has been broadcast in place of the scheduled programme? That does not sufficiently impress me as a reason to support the Government's action. Will the right hon. and learned Gentleman accept that he is saying that yesterday, in lumbering into this legal action, he acted on the basis of an article that appeared in a gossip column? The right hon. and learned Gentleman has ignored the fact that the nature of the programme has been known over many months — for example, to Conservative Members who appeared in it.

The work involved has been done under the authority of the controller of Radio 4, a full description of the programme has been publicly advertised in the Radio Times for more than a week, and the programme has the authority of the director-general. Surely the right hon. and learned Gentleman's action should have been limited to calling the attention of the director-general of the BBC to the public obligations of the corporation. Will he accept that most of us believe that this is yet another symptom of the dangerous slide into authoritarianism into which the Government are taking the country?

The Attorney-General

I dispute vigorously the last part of the right hon. Gentleman's question. I agree entirely that there is every advantage to the country in hearing as much as possible from the right hon. Gentleman on the wireless. No doubt we heard him at 10.30 or whenever it was this morning.

It is wrong to suggest that the Government were motivated by authoritarian considerations. The Government wish to protect the security of the United Kingdom by protecting the duty of confidentiality that is owed by all former members of the service.

It is not much of a criticism to say that the Government were spurred into the action that they took by an entry in a gossip column. If the Government did nothing, having been put upon clear notice, as it might later have been said, of the content of the programme and the quality of its individual contributors, it would then be said that they blow hot and cold.

There was no means by which the Government properly and responsibly could have ignored the detailed story that appeared. That is why the Government spoke, through the Treasury Solicitor, to the legal adviser of the BBC. The legal adviser knew well the burden of duty that the Government consider they are obliged to protect, and he was unable to disclose the transcript.

Mr. Michael Heseltine (Henley)

Would my right hon. and learned Friend recognise that, as one of those who recorded a contribution to this potential programme, I recognise the total distinction between an analysis of the purpose and need to protect the security services, which is a legitimate subject for the BBC to organise a programme around and in which I and others thought that we were participating, and the Government's absolute right to insist that their former servants abide by the contracts into which they entered, especially when the security of the nation can be in any way prejudiced if they do not? My right hon. and learned Friend has properly drawn the attention of the House to that distinction.

The Attorney-General

The House will attach the greatest importance and weight to what my right hon. Friend has said, coming from someone who discharged his responsibilities. We do not criticise the individual contributors to the programme, and among them were many distinguished people, including my right hon. Friend. We criticise only those who may have done so in breach of the duty of confidentiality that they owed to the Crown. I do not know whether they have done so. I could have been put into the picture had the Treasury Solicitor's request for the names been granted, but it was not. I could not have possibly advised my colleagues to accept that risk.

Mr. Eric S. Heffer (Liverpool, Walton)

The Attorney-General has made an astounding statement. He has used the phrase "may have done". He does not know whether any duty has been breached. In effect, he is saying that we should not have any proper, serious and responsible discussion about the role of the security services because some who participate in the discussion may or may not reveal that which is confidential. How can there be serious and responsible discussion about the security services unless ex-officers of the services tell us what happened, without giving away secrets? Is it not clear that once again the Government are trying to cover up something that is rather nasty? "Spycatcher" has revealed that the previous Labour Government were being undermined by a service that we all ought to know more about.

The Attorney-General

I reject the hon. Gentleman's assertion that no Government are ever entitled to seek an interim injunction from the High Court to prevent possible damage of a serious nature of which there is a real risk. I cannot go before any court without affidavit evidence to substantiate that contention. That is what I did yesterday, to the apparent satisfaction of an independent High Court judge. The hon. Gentleman advances an extraordinary contention in saying that in every instance we must wait until the horse has left the stable before we can take any legal measures. That cannot be right. He should address himself to the question whether it is right for the Government to protect the duty of confidentiality in the interests of national security. If he agrees that it is right that they should so protect that duty, how is that to be done if we have always to wait until the horse has left the stable?

Mr. John Marshall (Hendon, South)

Will my right hon. and learned Friend confirm that each officer signs a vow of confidentiality both when he joins the service and when he leaves it? Does he agree with me that their failure to honour that vow puts at risk the security of our country and affects the trust of other countries in our security services? Does he further agree with me that the attitude of Opposition Members underlines their lack of concern for the security of our country?

The Attorney-General

My hon. Friend is right in drawing attention to the fact that every member of the Security Service knows full well his duty of confidentiality. He is right also in pointing to the danger that can arise to the country if that duty is allowed to be broken. There are many, various and not always foreseeable ways in which serious harm can be done if former members of the service are allowed to speak on matters that came into their knowledge by reason of their employment.

Mr. Peter Shore (Bethnal Green and Stepney)

As the programme was discussed with the security authorities and the D notice committee, as the programme has been quite some time in preparation and as the former Secretary of State for Defence, the right hon. Member for Henley (Mr. Heseltine), and the previous Lord Chancellor participated in it, why has the Attorney-General issued a peremptory ban on the BBC on the very eve of the broadcast? Why did the Government not act before if they felt it necessary to do so?

The Attorney-General

The right hon. Gentleman should know that I have issued no ban. A ban has been made of an interim nature that can be reconsidered at 24 hours notice by an independent High Court judge. I have no power to issue a ban.

Mr. Tony Banks (Newham, North-West)

A nice point.

The Attorney-General

Yes, and an important one. I hope that it is a distinction and a function that will always remain under our constitutional arrangements. I do not wish to see a member of the Executive able to impose a ban, and I hope that that is the view of the hon. Gentleman who interjected.

As to the scale and date of knowledge of the scope of the programme, the first day upon which the Government had notice and evidence of the full scope of the programme was yesterday.

Mr. Jonathan Aitken (Thanet, South)

I wonder whether my right hon. and learned Friend will reconsider the last part of his reply? Is he aware that, long before the Daily Telegraph gossip column caused such excitement in Whitehall, some of the retired security service officers who took part in that discussion programme had actually written and informed the director-general of the security services of their participation and the content of their contributions — apparently with no objection from the director-general?

Will my right hon. and learned Friend accept, from someone else who took part in those hitherto rather obscure radio programmes, that they have virtually nothing to do with current national security or past operational matters? They were largely taken up with a somewhat academic discussion of accountability and the need for further oversight. Is that not a legitimate area on which retired security service officers can comment?

Will the Government cool down a little and try to draw a line between the necessary confidentiality of the security services and the responsible need for a democratic discussion about them in a more appropriate place?

The Attorney-General

There had been notification by one former Government servant of the fact that he had been invited to contribute, and had contributed, to a programme. No information was available to the Government about the scope and scale of the programme until the story appeared in the newspaper yesterday. I will not repeat the grounds that the Government considered sufficient, and indeed imperative, to lead me to act in the way that I did yesterday on their behalf, based upon that article.

On the question whether I would accept from my hon. Friend his account of the content of the programme, of course I attach tremendous weight to anything that he says to me. However, when dealing with matters of national security, especially the integrity and confidentiality of the security and intelligence services, I am afraid that no responsible Government could conceivably take a risk without seeing the text of the programme—or at least without knowing the full names of those taking part. That was the request made to the BBC, but it was denied.

Mr. Ken Livingstone (Brent, East)

Will my right hon. and learned colleague explain how he equates his statement to the House with the statement of the Under-Secretary of State for the Armed Forces to the House on 3 March, that nothing that had been said by Mr. Fred Holroyd or Mr. Colin Wallace had anything to substantiate it? There was a similar statement by the Minister of State, Northern Ireland Office, that there was not a shred of evidence to support the accusations of Mr. Holroyd and Mr. Wallace.

Given that most of the serving officers who contributed to the programme notified the Government of the nature of their comments, is not the real reason for the ban the Government's determination to continue to deny the allegations of Fred Holroyd and Colin Wallace? Is not the real person being protected not the state and not security, but the Prime Minister, who has been the major figure in the cover-up of what went on in our dirty war in Ireland? She knows——

Mr. Speaker

Order. Are the gentlemen that the hon. Gentleman mentioned relevant to the case? He must confine his comments to the case.

Mr. Livingstone

Thank you, Mr. Speaker. My point is that there is an attempt to suppress the programme because Holroyd and Wallace are interviewed in it. Is it not an attempt to continue that cover-up because the Prime Minister is clearly guilty of knowledge of the treasonable actions of MI5 officers in Ireland during the period of the last Labour Government?

The Attorney-General

Had I any information on whether Mr. Holroyd and Mr. Wallace were among those who contributed to the programme, I might have been able to answer the hon. Gentleman. Of course, I would have that knowledge only if the BBC had agreed to tell the Treasury Solicitor yesterday whether they had contributed. As the hon. Gentleman knows, that information was denied.

As to the hon. Gentleman's references to a dirty war in Ireland, I think that I had better ignore that part of his question.

Mr. Harry Greenway (Ealing, North)

Does my right hon. and learned Friend agree that, if the text of the programme is as academic as was suggested by my hon. Friend the Member for Thanet, South (Mr. Aitken), there is no reason why the BBC should not have divulged it on the limited and confidential basis requested? Does he further agree that those who have undertaken an oath of confidentiality and subsequently break it should, at that moment, have all emoluments ended? Should not that be a condition of their service? They should not be able to profit from this or any other Government.

The Attorney-General

I am grateful to my hon. Friend. I entirely understand the need to preserve what might be described as the proper journalistic proprieties. I certainly do not believe that anything in the action taken by the Government yesterday could be construed as a breach of those proprieties or an attempt to seek to attain such a breach. I shall explain what was done by the Government yesterday. We read in some detail, from other journalists, that a programme was to take place that contained the names of considerable number of former and serving members of the security services. We read that there were "jitters at Broadcasting House" and so on — [HON. MEMBERS: "Really."]

Mr. Frank Dobson (Holborn and St. Pancras)

Pathetic.

The Attorney-General

Oh, no. I think that Opposition Members must decide whether they are upholding and standing firm behind the integrity of journalism, or whether they are saying that nobody pays the slightest attention to anything said by journalists because as a class they are irresponsible. They must make up their minds on which stand they are taking. Supposing that, yesterday, we had been told the identities of those contributing to the programme and what they had said, it might have been —I know not—that we could have agreed to the whole programme.

Mr. Donald Anderson (Swansea, East)

Will the Attorney-General confirm that the BBC was prepared to disclose the transcript to Mr. Justice Henry, who could then have applied the appropriate legal principles to that? Does he accept that the Government's stand on the duty and confidentiality of former security service servants would be much improved were it not characterised by a shrill authoritarianism against the media and selective leaking to trusties on the Right?

The Attorney-General

On the hon. Gentleman's first point, I understand that at the hearing, counsel for the BBC offered to show the transcript to the judge, but he said that he did not wish at that stage to see it. At that stage, it would have been the view of the Crown that, in any event, there would have been insufficient time for it, let alone the judge, to form a view at the hearing. The matter would have had to be subjected to examination and consultation. Of course, there might well have been time, had the request been granted when it was made earlier in the day. Unfortunately, it was not. The BBC has leave from the judge to go back on 24 hours notice to apply for the injunction to be discharged or for its scope to be narrowed.

On the hon. Gentleman's second point, it all depends on what he means by that buzz word "authoritarianism". The Prime Minister is the Minister responsible for the security services of this state. She alone has that authority. If, by exerting that authority and protecting the confidentiality that is owed to the Crown, she is to be described as authoritarian, and her colleagues collectively with her, that is a label that I should be proud to wear.

Mr. Tony Marlow (Northampton, North)

Is not the nature of the question another sign of a grubby little campaign by the sneaks and narks on the Opposition Benches to undermine national security—[Interruption.]

Mr. Speaker

Order. This is a very serious matter that the whole House is taking seriously. I ask the hon. Gentleman to try to keep the temperature down.

Mr. Marlow

I put it to my right hon. and learned Friend that there is a desire on the Benches opposite, or let us say a cavalier attitude to national security, where they feel that they might be able to vainly acquire a certain amount of party political benefit. Will my right hon. and learned Friend tell the House what discussions he has had with the right hon. and learned Member for Aberavon (Mr. Morris) on the Front Bench opposite as to what his attitude would have been had he found himself in my right hon. and learned Friend's position?

The Attorney-General

I watched the performance of the right hon. and learned Member for Aberavon (Mr. Morris) on "Newsnight" last night, when he took part in the programme in the company of my hon. Friend the Member for Hampshire, East (Mr. Mates), and I listened to the right hon. and learned Gentleman again this morning. He was asked that question twice and he dodged it twice. I am afraid that the right hon. and learned Gentleman is prepared to wound, but afraid to strike.

Mr. Stuart Bell (Middlesbrough)

Will the Attorney-General accept that Opposition Members are as concerned about matters of security as any Members on the Conservative Benches? We are equally concerned about the freedom of the press. Even with retrospect and hindsight, will he not admit that the Government have acted in a fashion that can only be described as high handed and clod-footed?

With regard to the point made by the right hon. Member for Henley (Mr. Heseltine), is it not a fact that the right hon. Gentleman's question about confidentiality and his concern for confidentiality referred to the contracts of those concerned and not about a facile injunction which attacks the freedom of the press? The Attorney-General skated over the question from my right hon. and learned Friend the Member for Aberavon (Mr. Morris) with regard to the interpretation of the injunction. Downing street claimed last night that the injunction was narrow and had a narrow and limiting effect. Will the Attorney-General confirm or contradict that?

The Attorney-General

I do not interpret orders made by the court. The courts speak for themselves and their orders must be interpreted by those to whom they apply. In response to the hon. Gentleman's question whether I accept that his colleagues and he are patriotic and concerned about security, I am sure that they are concerned about security. I would certainly hope that right hon. Members on the Opposition Benches are so concerned. I cast no aspersions about that. I merely stress that those who must protect the security of this country have the duty to take all reasonable steps open to them. They asked for information which could determine the issue one way or the other, but were refused that information. I am afraid that there was no option but to take the steps taken yesterday. If that is high-handed, so be it. However, I do not believe that many people would regard it as such.

Several Hon. Members

rose——

Mr. Speaker

Order. This is a private notice question, not a statement. It has gone on longer than I would normally allow for a private notice question. This is a Back-Bench day and many hon. Members want to take part in the debate. I am afraid that some of them may not now be called.

Several Hon. Members

On a point of order, Mr. Speaker.

Mr. Speaker

Order. This is very unfair on a Back-Bench day.

Mr. Dennis Skinner (Bolsover)

There are only three of us left wishing to speak.

Mr. Speaker

I know that the hon. Gentleman has not been called, but I am not prepared to allow an extension of this Question Time.

Mr. Robin Corbett (Birmingham, Erdington)

On a point of order, Mr. Speaker. This is not an extension of Question Time.

Mr. Speaker

Very well, I will take Mr. Corbett.

Mr. Corbett

Will you please confirm, Mr. Speaker, that the exchanges that we have just had are still covered by parliamentary privilege and therefore may be freely reported by the BBC and other media in spite of the injunction that the Government have obtained?

Mr. Speaker

I have allowed the private notice question today and it is in the public domain as far as the Housie is concerned.

Mr. Frank Cook (Stockton, North)

On a point of order, Mr. Speaker. In the past you have taken points of order from other hon. Members who have complained about their difficulty in obtaining information in ministerial answers and the evasions that have taken place. You quite properly said on those occasions that you had no power to compel a Minister to divulge information and that hon. Members should apply themselves to other means of obtaining and discovering that information. I put it to you, Mr. Speaker, that one of the means left to hon. Members on occasions such as this is to use the media in concert to smoke out information of that kind. With the deepest respect, I ask you to reflect, Mr. Speaker, on the position in which this form of gag places hon. Members of this House——

Mr. Speaker

Order. That is nothing to do with me. I am concerned with order in the Chamber. I say to the hon. Gentleman and all hon. Members that Back-Bench time is very short in this place. I am constantly concerned to ensure that Back Benchers have an opportunity to make their points in debate. That is what the House is about. I have allowed well over half an hour for this question. At an ordinary Question Time, that would be excessive.

Mr. Max Madden (Bradford, West)

On a point of order, Mr. Speaker. Would you allow me to make an application under Standing Order No. 20 arising from the exchanges that we have had——

Mr. Speaker

Order. No, not on a Friday.

Mr. Nigel Spearing (Newham, South)

On a point of order, Mr. Speaker. I appreciate the difficult balance which must be achieved, as you have liberally allowed an unusual 35 minutes for the private notice question. However, it is not only procedural matters which should be taken into account in future. You must take into account the nature of the material which the question brings out.

I submit to you, Mr. Speaker, that this occasion relates to freedom of speech, the freedom of the press and the freedom of hon. Members to participate in the proceedings on those fundamental constitutional freedoms. In future judgments about time, I hope that you will bear that in mind, especially as hon. Members may not have been able to ask questions who may be able to bring matters into the debate which would otherwise not be aired.

Mr. Skinner

Further to that point of order, Mr. Speaker. You will know, as you are in charge of these proceedings, that there is a difference between a private notice question and a statement. It is significant, as I read the situation, that the Attorney-General who gagged the BBC had to be dragged squealing to the House because he did not make a statement, which would have attracted a wider variety of cross-questioning. He only came here as a result of the attempt of my right hon. and learned Friend the Member for Aberavon (Mr. Morris) to table a private notice question. Here we are, in the interests of glasnost, with a pathetic Government with their 100-seat majority——

Mr. Speaker

Order.

Mr.Skinner

I am getting to my point

Mr. Speaker

No. The hon. Gentleman was not called again.

Mr. Skinner

rose——

Mr. Speaker

Order. I must tell the House that I received dozen of letters from hon. Members this week complaining bitterly that they were not called in debate. How can I possibly answer letters of that kind when hon. Members take up the time on completely different matters?

Mr. Skinner

rose——

Mr. Richard Holt (Langbaurgh)

Sit down.

Mr. Speaker

Order. I have an absolute obligation, as the whole House accepts, to protect the business of the House and the interests of Back Benchers. It is unfair to the whole House.

Mr. Skinner

rose——

Mr. Speaker

Order.

Mr. Skinner

I just wanted to finish.

Mr. Speaker

No. The hon. Gentleman is regularly called and it is unfair for hon. Members to seek to take up other hon. Members' time.

Mr. Skinner

rose——

Mr. Speaker

Order. The hon. Gentleman would be the first to complain, and has complained, about such abuses.

Mr. Skinner

You are here to protect Back Benchers. We are going down the road——

Mr. Speaker

Order.

Mr. Spearing

Further to that point of order.

Mr. Speaker

No. I am not taking any more points of order on this matter.

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