HC Deb 21 November 1939 vol 353 cc1071-84

Ordered, That the Report which, upon the 5th day of April last, was made from the Select Committee on the Official Secrets Acts be now taken into consideration."[The Prime Minister,]

Report considered accordingly.

3.58 p.m.

The Prime Minister (Mr. Chamberlain)

I beg to move, "That this House doth agree with the Committee in their conclusions."

The subject before the House, and which was before the Committee, is one which has been pushed out of our minds by the momentous events which have taken place since that report was made, but perhaps it will be convenient if I briefly recall to the House the sequence of the history of this affair. The incident which gave rise to the appointment of the Select Committee took place as long ago as June, 1938, and upon the 30th of that month I moved that a Select Committee be appointed. The Motion which I moved fell into two parts. The first part was concerned with the statement made by my hon. Friend the Member for Norwood (Mr. Sandys) and the action of the Ministers concerned. The second part directed the Committee to inquire generally into the question of the applicability of the Official Secrets Acts to Members of this House in the discharge of their parliamentary duties. The first report of the Committee, which dealt with the first part of their terms of reference, was printed on 27th July, 1938. It was circulated on 18th October, and on 5th December, nearly a year ago, I moved that the House should agree with the Committee in their report. As the result of a Debate which then took place, the House passed a Resolution: That this House doth agree with the Committee in their Report, and furthermore ordered: That a Select Committee be appointed to inquire into the applicability of the Official Secrets Acts to Members of this House in the discharge of their Parliamentary duties, having regard to the undoubted privileges of this House as confirmed in the Bill of Rights. The report of the Select Committee then being adopted was referred to the reappointed committee, and that committee issued their report on 5th April, 1939. It is that report which is now before the House, and it is the conclusions of that committee which I am now asking the House to approve. I think we are all greatly indebted to the members of the committee for the very careful, thorough, and exhaustive examination which they made of this subject, which, although, as I said, it has rather been put into the background by other matters nevertheless remains one of primary importance to this House and to the Members of this House at any time. The report of the committee which examined every aspect of the case will remain on record as an authoritative exposition of the whole subject, to which reference will always be made if this question should at any future time be raised again.

I do not think it is necessary for me to trouble the House with any comments upon the body of the report, and I will come at once to the recommendations of the committee, which, if I may venture to say so, seem to me to be eminently sensible. The committee have recommended that we should not attempt by fresh legislation to try and define more specifically what is the extent of the immunity which Members of Parliament enjoy, or ought to enjoy, under the Official Secrets Acts, and they quote from Blackstone's "Commentaries" some words which I think put very clearly the objection to that course: The dignity and independence of the two Houses (says Sir William Blackstone) are in great measure preserved by keeping their privileges indefinite. If all the privileges of Parliament were set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harrass any refractory Member and violate the freedom of Parliament. Of course, that was a long time ago, and I do not suppose that anybody would think that the Executive nowadays would attempt any such invasion of the freedom of hon. Members. Nevertheless, the general proposition which is laid down by Sir William Blackstone still holds good. We have no doubt many times in the course of our experience considered whether, in dealing with Bills, it was or was not desirable to define with great particularity certain conditions under which Measures should become operative, and have come to the conclusion that the dangers of definition were greater than the dangers of leaving the matter indefinite. In the following paragraph the Committee recognise that no doubt there are dangers, even in the limited immunity from prosecution under the Official Secrets Acts secured to Members by Parliamentary privilege, but they point out that those are risks which must be run if hon.' Members are to exercise freely their rights and privileges of free speech, and it is clear that in the opinion of the Committee the real safeguard against any such abuse lies in the good sense of hon. Members themselves. I believe that that is something to which we can safely trust, but even if there were some exceptional case in which an individual Member did not have proper regard to the general principle that this immunity is given to hon. Members for the service of the State and not for the purpose of endangering the safety of the State—even if there were such a Member, still the House itself, the body of Members, have it in their power to inflict penalties upon a Member who did so abuse his position, and I have no doubt they would not hesitate to do so.

So, the Committee's recommendation is that the case should be left where it is at present, but they have suggested that if the conclusions which they have reached regarding the matters referred to their consideration commend themselves to the House, the House should, for the removal of doubt, come to a Resolution expressing their agreement with those conclusions. It is, of course, the case that a Resolution of this House on this matter is not actually binding upon the courts, but at the same time the Committee express the view, with which I entirely concur, that if this House passes such a Resolution, that Resolution will be treated with respect by the courts in considering any case that may come before them. I do not think I need say anything more. I suggest to the House that at we should follow the recommendations of the Committee and pass this Resolution, and then I hope we may put this matter out of our minds and that we shall not have to take it up again for a very long time.

4.7 p.m.

Mr. Wedgwood Benn

I should like at the outset, if I may, not only to express my pleasure at seeing the Prime Minister back, but, inasmuch as we are discussing this afternoon a House of Commons matter, to pay a tribute, as a Member of the House, to the conduct of the Prime Minister, not as Prime Minister, but as Leader of the House. Amidst all that he has to do, that he should find time to sit here, as Leader, for hours and hours deserves, I think, a tribute from every one of us.

There are two observations that I should like to make on this report before I come to the substance of it, and the first is this: this is a House of Commons Report. In this matter there are no Ministers, but only Members of Parliament; there are no front benches, no back benches; there is no Government, there is no Opposition. It is a House of Commons Report; as such it was unanimously passed by the Committee, and as such I have no doubt that it will be unanimously approved by this House. That is the first point—the House of Commons unanimous in the assertion of its own freedom. The second point is this: The Government have brought forward a Motion to approve this report at a time when this country is at war, and what I have to say will be rather addressed to showing that a free Parliament can make its contribution, and a great contribution, to securing victory. As the Prime Minister said in his summary, there are three findings in this report. The first is that that wide freedom which was conferred by the Bill of Rights is intact to-day, and the Committee went on to say, in the passage which the Prime Minister quoted, that definition might only serve to confine it, and, therefore, it was not defined. The second point that the Committee made was that this so-called privilege of Members of Parliament is in reality not a privilege personal to ourselves but a privilege enjoyed by us on behalf of our constituents, and the freedom of the House of Commons is really the freedom of the people. The third point, as the Prime Minister mentioned, is that the safeguards are, first, the disciplinary powers of this House secondly, the good sense and honour of individual Members.

This is a very wide subject and might introduce a very wide and, certainly to the House of Commons, a very interesting Debate, but I propose, as I say, to consider the application of these principles to the work that we can do in pursuing the purpose which is in the hearts of all of us, namely, winning the war. Some people say that in war time Parliament should be sandbagged, either in the more active sense of the words or in the more passive; that the House should be hidden and protected like an ancient monument. But we contend that all the secrecy and speed and craft that lie at the hand of the autocrat are not as powerful a weapon as the sinewy strength which comes from the debates of a free people. Some people say that when we speak of fighting the war for freedom, we use words of hypocrisy, and they point to the Defence Regulations for an example, but the assertions in this report show that whatever the Regulations may be, there exists here an overriding authority. If we are to have a Himmler, he has got to sit there and be subject to questions, he has got to be subject to what is far more important, namely, supplementary questions, and he has got to meet Members of the House of Commons; and he cannot—and this is most important—be insulated by bureaucrats. A man who has made a mistake cannot take cover behind a Minister for the Minister must come in contact with people who will point out the mistake. These are very important points. The German Chancellor holds that progress is exclusively the work of personal genius, and he considers that Parliament is "the gravest symptom of human decline." That is in "Mein Kampf." Mr. Fox said that liberty is power, predominant and invincible, that it derides all other sources of strength. Mr. Fox will prove Mr. Hitler to be wrong. This freedom from interference, whether by the Official Secrets Acts or by the Regulations, which are wider, is particularly important in time of war, because nearly everything which is discussed at such a time touches the matter of national security.

There are three aspects of the war effort to which I wish to refer and in regard to which this freedom of the House ought to be usefully employed. First, there is the appeal to the world, secondly, there is the equipment of the troops, and, thirdly, there is the morale of the people. We appeal in this war to world opinion, to the Commonwealth, to the neutrals, and to the great United States of America. In the report it will be observed that, as evidence for their findings, the Committee quote judgments delivered in Ontario and in New South Wales, but also in the Supreme Court of Massachusetts and in the Supreme Federal Court of America. That is interesting, and it is important, because it means that just as we frame our practice by their decisions, so what we do here with our Parliament affects the freedom of theirs. They derive their Parliaments from us. A free Parliament is the link that binds us to them. In the never stale words of Burke: Slavery they can have anywhere; freedom they can have from none but yon. The maintenance of a free Parliament is indeed one of the chief of our war aims.

Next as to propaganda. Propaganda is of no value unless it is trusted. It is not what is said that matters; it is what is believed. "Mein Kampf" defines propaganda as a systematically one-sided attitude towards every problem that has to be dealt with. In a free Parliament statements are subject to cross-examination. When a gentleman from Zeesen asks: "Where is the ' Ark Royal'?" he thinks he is suggesting a rhetorical question, but he is really drafting a parliamentary question. We make our case in open court, for all the world to attend.

As to equipment, Parliamentary criticism, constructive criticism, as it always has been since the beginning of September, can make a great contribution. It has made a great contribution. If the First Lord of the Admiralty were here he would not deny that Parliamentary Debates have done something towards improving the national armed strength. That we can have these Debates free from the interference of the Official Secrets Acts is of great value. And in the wider matters of campaigns Parliament can perform a useful service. The war goes well and no one wishes to criticise its conduct; but there have been occasions in the past where criticisms and inquiry have been vital. Mr. Roebuck's inquiry brought down Lord Aberdeen's Government. There were the inquiries into the Mesopotamia campaign, the Dardanelles campaign, and the shell shortage, which touched directly on matters covered by the Official Secrets Acts. No one would say that those actions did not help to secure victory.

Thirdly, there is the question of the maintenance of the national morale, both at home and in the field. At the beginning of the war the Government made great provisions against attack, and rightly so. People willingly suffered acutely in regard to transport, food, evacuation and black-outs. But the attack did not come. It may be that it did not come because the preparations were so complete. But we must not forget, too, that the Nazi does not hit a man his own size. There was undoubtedly much discontent, grave discontent. That discontent was dealt with in Debates in this House, and those Debates relating to the restrictions did very much to steady the home morale. The Germans have a different method, the Fuhrer sends for the Gauleiter. They go to the local leaders and they go to no one. The Gauleiter return terrified to the Fuhrer and are afraid to give information even if they had it, which they have not. Our system wears better. A Debate in a free Parliament clears the air more effectively than a bomb in a beer cellar.

Then there is the morale of the men in the field. The soldier requires good weapons, good billets, good food, good clothes. All these are important, but the one thing above all is the letter from home. He wants to know that his wife and children are well, that there is money in the home, that there is food in the house, that the rent is paid. The Nazis did not dare to tell their men in the Siegfried Line that they were at war. The prisoners we have taken say they thought they were on manoeuvres. In "Mein Kampf" Hitler speaks of letters from home as poison that women send out, which costs hundreds of thousands of lives. Undoubtedly the British soldier is well cared for but he has always this guarantee, that if there is something going wrong at home, his wife or his children have the means of approach to Parliament by which the hardship can be ventilated and remedied. I hope we shall never hear again what we began to hear a short time ago, namely, a Minister trying to browbeat a Member who was performing this useful national service.

There is, however, a much wider issue. Ministers deal with material things, guns, ships, flying machines, but these are nothing without the national resolve, and it is in this House that the national resolve is formed. We believe that the war is right. We must justify our belief. We must face the critics, the waverers, the heretics. Our creed must be subject to question. A free House freely debating the national purpose, who can doubt how much stronger it is than a Fuhrer isolated, terrified, hesitating? This House is a very old-fashioned place. The forms, the words, the garb that is worn, the things that we see daily, are much as they were 250 years ago. We have not here the glitter of the Kroll Theatre where Mr. Speaker Goering is to be seen perched floodlit on a sort of catafalque. I suppose that gaudy charm is a sort of hangover from the days when Krolls was a beer garden. There is great comfort in the archaism of this House. Every object reminds us that this is not the first time that this free House has played its part in the fight for freedom. Our Journals tell the story. Anyone who has read the speech of Sir Christopher Hatton on the attack of Spain, will know that the public of that day were far more frightened of the Armada than we are of the magnetic mine. Sergeant Snagge, our Speaker, led the House to the other place and in his speech moved the Queen to "denounce war against the Spanish King "and the Queen thanked God that she had so good a House of Commons.

It was at the Table now in the Library that the Ministers announced the victories of Blenheim. It was from that Table that the Ministers moved the thanks of Parliament to the Duke of Marlborough. Mr. Harley was the Speaker then, but it is not recorded in the Journals that he was Speaker, because for two days in 1702, I am sorry to say, the Clerks omitted to make up the Journals. It must have been due to the excitement of the accession of a new Queen. This Mace has played its part. The Duke of Wellington asked for permission to come here to return thanks. Just as the Whips may come to the Bar to give a message, so Lord Castlereagh announced that the Duke of Wellington had come to the Bar. A chair was brouhgt inside the Bar, and the Duke sat covered. This Mace was taken by the Serjeant-at-Arms and set on his right hand, and the Duke thanked the House of Commons for the help they had given him. Mr. Abbott, your predecessor, made a pleasant little speech in reply. These victories were won by great warriors, but Parliament played its part in them, as it plays its part to-day.

On 3rd September last, the First Lord of the Treasury, whom we call the Prime Minister in these recent times, came to the House and, in a very moving speech, told us that we were at war. The House was very full and very calm. Nobody said "Sieg Heil." As a matter of fact you, Mr. Speaker, rose and said, The Clerk will now proceed to read the Orders of the Day. What comfort in those words. They showed Parliament, ancient, free and resolute. You will remember that Friday, Sir, when you took your procession, near to midnight, to the other place. The constables cried, "Make way for Mr. Speaker. Make way for the Mace," but there was no one to make way. The Central Lobby was empty—dark as a cavern. There was nothing but the lamps on the pavement, masked lamps, giving a glitter to your shoe buckles, like little flames of freedom, wisely restrained, to guide our feet. You went to take the King's Pleasure on Acts which had been agreed upon by both Houses. Provision had been made by this House for our fighting men, whose bodies stand to-day between us and slavery. Those Acts were meant to enable them to dispose of this present trouble as Drake disposed of Philip, as Churchill disposed of Louis, and as the Duke disposed of Bonaparte— who, also, was a Corporal—and the Clerks were required to pass the same in the usual form and words.

4.27 p.m.

Mr. Kingsley Griffith

I should like to associate myself most warmly with the words of the right hon. Member for Gorton (Mr. Benn) in expressing our gratitude to the Prime Minister for the way in which he has made himself not only the chief Minister of State but also the chief of us, as private Members, in any matter concerning our rights. I think this Debate will be well worth while. It is a good thing that we have not passed it over in a formal way, because it has given us the pleasure of hearing the speech of the right hon. Gentleman who has just spoken so brilliantly in vindication of the liberties of Parliament. I think the observations have been generally welcomed from all quarters of the House.

As a member of the Committee I am reminded that we were appointed to inquire into the applicability of the Official Secrets Acts to Members of Parliament, and I do not desire that this subject should be passed over without a few words as to the conclusions at which we, after many months, arrived as to the applicability of those Acts to our circumstances and privileges. We were rather unfortunate in our dates. The first report of the Committee was published when the crisis of 1938 pressed upon us and interest in our proceedings was promptly dropped. When we produced our second report there was yet another September and another crisis. There is, however, in our labours something of enduring value which, if it may be difficult to discuss it at this time, may be of great service for the instruction of later times.

Before I went into the Committee I was considerably exercised in my mind as to what were my rights or my duties with regard to the acquisition of information and the publicity of information which might be acquired by me in the course of my occupation as a Member of Parliament, and whether they were different from those of any other man. There are one or two points which I think the House might well remember. What has come to be known as the Sandys case was very largely concerned with the applicability of Section 6 of the Official Secrets Act, which deals with the right to obtain from any Member of Parliament the source of any information he might publish. That particular point has become to a considerable extent academic now, because a Bill has already passed the House of Lords and received an uncontested Second Reading in this House altering Section 6 to such an extent that I think it very doubtful whether any controversial question with regard to Members of Parliament is likely to arise again. But it is still not equally clear that Section 2 of the Official Secrets Act, which deals with the reception or solicitation of secret information from servants of the State, might not possibly come in question. I have been a little alarmed when I have seen comments in the Press which seem to indicate that Members of Parliament are now completely free in these matters, and that there is nothing to hamper their actions in any respect.

I recommend hon. Members who want to know what their rights and privileges are with respect to solicitation and publishing secret information to read paragraphs 16 and 17 of the report of the Select Committee. If they want to know whether in regard to the solicitation of information which has been entrusted to servants of the State in confidence they have any special privileges, or even if they have the right willingly to receive such information from servants of the State without authorisation, the answer of the report is quite plainly in the negative. They have no such right whatever, and it is well that this should be known. I think it would be a dangerous thing if the opinion got abroad that by the mere fact of election to Parliament one could go to any servant of the State with regard to confidential information and say, "Tell me; I am an M.P., it is all right." That is without any foundation as I see it, and as I think the report shows, and I think it would be highly dangerous to the State.

I am not suggesting that one cannot depend on the loyalty of Members of Parliament. Of course, one can; but with regard to any body of 600 Members discretion cannot aways be equal in every unit, and if there is imposed upon servants of the Crown a duty to conceal information which is given to them in trust, such a trust is not likely to be broken, and is not to be broken merely because a person with whom they are communicating happens to be elected a Member of this House. There is, of course, a safeguard. One has to recognise that there may be a case, one out of a thousand, in which there is some concealed scandal, and in which publicity alone appears to be the only possible cure for something which may endanger the State itself. On that point I want to emphasise that there is a protection, but it is a protection which does not depend on privilege at all; it depends on the wording of the Act itself which says: There shall be no crime when the person to whom the communication is made is one to whom it is their duty in the interest of the State to communicate. I want to emphasise that although this is a safeguard which would apply to any Member of Parliament, it is a safeguard which would apply no less to the editor of a newspaper who has received information which he thinks it is necessary in the interest of the State to be communicated to the public, or indeed, to any other member of the public. It is also a defence which would have to be made out with exceeding difficulty, because prima facie, if anybody has received information under a pledge of secrecy, that pledge cannot be lightly broken. Those who claim immunity have the burden thrown upon them to show that the overriding weight in the interest of the State is that it may be an excuse for the breaking of the ordinary rule. But that is not a matter of privilege: it is a matter of the safety of the State in general. In other matters the committee has reasserted rights which are ancient and which have not been seriously challenged. The right of Members of Parliament on the Floor of this House to speak freely without fear of challenge is reasserted, and even perhaps extended by pointing out that questions, and matters preparatory to the asking of questions, may come under the same rule. I am glad that the ancient privileges of Parliament should be in this way maintained, but I do not wish to conceal from the House that when I am approaching privilege I approach it in a spirit of criticism. I am not fond of privilege. I find that in a popular dictionary it is defined as the advantage of an individual; a right enjoyed only by a few; freedom from burdens borne by others. In that sense privilege is something which I have always viewed with alarm. Everyone knows of the privileges of an elected body, but those privileges can never be the privileges of Members of Parliament as individuals. As the right hon. Gentleman has already said, they are privileges which are for the benefit of our constituents and the minimum without which we cannot perform our duties. If we claim our privileges in these terms we shall always have the support of public opinion. If we push our privileges beyond that point to something which we claim as a matter of personal right, then I think public opinion would cease to support us and might claim, in the words of Walt Whitman, to be delivered from the audacity of elected persons.

4.39 p.m.

Major Sir George Davies

The original episode which gave rise to the report we are considering this afternoon caused a certain amount of distaste and criticism in a good many quarters. Through the passage of time the matter has been relegated to its proper perspective, but it has not been without its advantages. The right hon. Member for Gorton (Mr. Benn) spoke with great eloquence on the question and I should like to congratulate him on his speech. He dealt with the subject from a very wide point of view, as a House of Commons matter, upholding its rights and privileges and responsibilities. I should like to say a word in regard to individual Members of Parliament. We have heard a great deal about the privileges of Members of Parliament, and the privileges of a freely elected assembly, but not perhaps so much about the responsibilities attaching thereto; and it seems to me that the two are inseparable. If we claim, and rightly claim, certain privileges which are not enjoyed by others it must inevitably bring certain responsibilities which are not borne by others, otherwise the whole edifice of freedom which we now enjoy will break down. These privileges are not enshrined in any tome; they have been built up by precedent and experience and have been handed down by generations of our predecessors. They are precious to us and we should protect them so that we may hand them on unimpaired to those who follow us.

But if the privileges must be kept unimpaired the responsibilities must be discharged with a due sense of their importance. It is easy to lay a dividing line and say, it is quite clear that behind this you have certain privileges and to say that beyond this you would be in error. It is rather like the two lines of the last Great War, and I suppose of the present war. Behind the Maginot Line and the Siegfried Line it is possible to say that you may move with comparative safety, but as soon as you step over and get into No-Man's land you have to walk very delicately and to exercise what the Prime Minister referred to in his opening remarks, the common sense of individual Members of Parliament. If we exercise our privileges and carry out our responsibilities with ordinary common sense I do not think these difficulties will arise in the future. But that is not an answer which gives a solution to a difficult problem. No doubt hon. Members are aware of the story of the child who was engaged in pulling about a toy horse, with inadequately lubricated wheels, and the despair of the mother at the excruciating noises coming there from. She could bear them no longer and protested. The inquiring mind of childhood said, "This is a toy horse, but you say it is a real noise. Where does the toy horse end and the real noise begin? And can a real horse make a toy noise?" The same thing applies to the interpretation of our responsibilities in the exercise of our privileges. Those responsibilities are not confined merely to the asking of questions and supplementary questions; they apply equally to the Minister who is replying to them. That is to say, if in general the possession of privileges and the sense of responsibility is ruled by an application of ordinary common sense, I think we shall not have the difficulties which some people foresaw when the original episode occurred.

Question, "That this House doth agree with the Committee in their conclusions," put, and agreed to.