HC Deb 24 June 1948 vol 452 cc1693-702

Motion made, and Question proposed, "That this House do now adjourn."—[Mr. Joseph Henderson.]

10.10 p.m.

Mr. Driberg (Maldon)

I will start by apologising to the House for having—misleadingly, as it turned out—indicated at Question Time this afternoon that I was proposing to raise on the Adjournment a subject different from that which had originally been advertised. I was unable to do so, because at short notice none of the Ministers concerned with the other subject was able to be present. I am grateful to my right hon. and learned Friend the Attorney-General for coming to the House tonight, just the same, to answer this Debate.

The case that I am raising concerns the prosecution of a Yorkshire journalist, under the Official Secrets Act, at Driffield on 26th May last. This journalist was alleged to have in his possession premature information, which he had wrongly obtained from a telephone operator, concerning two incidents—the first of them an attack on a W.A.A.F. at an aerodrome, and the second of them what was admittedly a trap or frame-up by the police, who put through a fake telephone call reporting a totally imaginary murder of a woman by the roadside. It was alleged that the telephone operator, Mr. Appleyard, communicated information about both these incidents to Mr. Atkinson, the journalist, and that he was in possession of that information much sooner than he should have been. On these two charges he was fined £10.

It is not my purpose tonight—nor would it be proper for me to do so—to comment on the proceedings in court, though they were in their result grievously harmful to a journalist of high repute in his neighbourhood, a member of the Urban District Council and well known locally. Nor do I propose to comment on the desirability of the use of the frame-up or trap technique by the police in order to secure such a conviction. My sole intention is to suggest that the Official Secrets Acts were not intended originally, or ever, for use in this kind of case, and that it is stretching them far beyond the bounds of assurances given by successive Governments so to use them.

There have been four Official Secrets Acts in all. The first, in 1889, was brought in "under the direction," as it was said, "of the Secretary of State for War and the First Lord of the Admiralty." So, from the first, it was concerned with military and naval secrets. The second Act, in 1911, extended the previous Act's scope somewhat, but again it was confined to matters that we should regard as military security—"plans of arsenals" and "sketches useful to the enemy in time of war." The phrase—"of use in time of war" occurred repeatedly throughout the Act. It was rushed through in a short time—one day, I think—because the safety of the State was said to require it urgently. Even so, on Committee stage there was a Division—107 voted for the Act and 10 against. Among the 10 who voted against it, as a matter of interest, were Keir Hardie, Arthur Henderson, William Adamson, George Lansbury, Philip Snowden and that great old humanist, Mr. T. E. Harvey, whom some of us will remember from the last Parliament. The third Official Secrets Act was in 1920. This amended the Act of 1911 because—and only because—as the Attorney-General of the time, Sir Gordon Hewart, in introducing it, said: Unfortunately, one of the things which increase and develop in an imperfect world is the ingenuity of spies. … The Act brought in penalties for the unauthorised wearing of military uniform, for tampering with passports, and for other things which foreign agents might be expected to do. The whole atmosphere or ambiences of the Act was one of espionage. At one point during the Debate the Attorney-General answered the question which had been put to him, whether the Act was only concerned with espionage by saying that it was not; it introduced two other new points; first, power to compel the production of originals and transcriptions of certain telegrams and, secondly, the registration of persons carrying on the business of receiving postal packets—both of which, as was made clear, were related, somewhat indirectly, to the dangers of espionage by foreign agents. Most important of all, Sir Gordon Hewart, in the course of the Debates on the Act, specifically repudiated any suggestion that it was aimed, as had been feared by some, at the Press or at journalists. He said: It is said that this Bill deals with the Press. That seems to me to be an astonishing statement, and it is strange that persons connected with the Press could say that this Bill deals with them. … So far from asserting that that is something aimed at journalists, I should have thought that the first comment of a journalist reading that provision would be this: Whoever may be the persons referred to they are certainly not journalists.'"—[OFFICIAL REPORT, 2nd December, 1920; Vol. 135, c. 1539.] He repeatedly made it clear that the Bill was intended to deal only with matters of grave national security.

The fourth and last Official Secrets Act was that of 1939, and this is rather relevant to my purpose tonight, Mr. Deputy-Speaker, because this Act, unlike its predecessor, which had extended the scope of the previous Acts, was restricted. It restricted the scope of Section 6 of the previous Act. This, no doubt, was introduced because, in the previous year, 1938, the case of a journalist, Mr. Lewis, who had been prosecuted under Section 6, had been raised in the House and certain assurances had been given by the then Home Secretary, Sir Samuel Hoare. It is true—and I must give my right hon. and learned Friend this—that on 12th May, 1938, in making a statement in reply to protests and questions, Sir Samuel Hoare did say that the Official Secrets Act could be used in cases of "serious public importance," which is a much milder phrase than any which I have been able to discover in previous Debates or Parliamentary references to the Act. However, a little later, on 7th December, 1938, Sir Samuel Hoare strengthened these assurances by saying that Section 6, at any rate, would be used only "in cases of the gravest importance to the safety and the welfare of the State."

Mr. Atkinson, as my right hon. and learned Friend the Solicitor-General told me on 31st May last, was prosecuted under Section 2 of the Act of 1911. It is rather awe-inspiring and embarrassing to me, as a layman, to venture to argue with two right hon. and learned Law Officers of the Crown, sitting side by side on the Front Bench, and I do so with diffidence and some alarm. I have read through Section 2 of that Act, and although I can see that some words in it can just be stretched to cover the case of the offences that were alleged to have been committed by Mr. Atkinson, it seems to me that again the whole tenor of this Section, as of all the rest of these Acts, is concerned with espionage. It says: If any person having in his possession oz control any sketch, plan, model, article, note, document, or information which relates to or is used in a prohibited place … etc. Prohibited places we are told later on are: any work of defence, arsenal, factory, dockyard … and so forth.

It seems to me that, by permitting or initiating this prosecution, my right hon. and learned Friend has gone beyond the intentions of those who originally introduced these Acts. A point that might be made—and it is a perfectly fair point—is this: if a journalist is guilty of offences of this kind, what other Act can be used against him, if it is necessary to prosecute? I am perfectly ready to give that point to my right hon. and learned Friend, because I would rather make a much more positive approach to the whole problem. It seems to me that the background of this case suggests, and indeed it emerges between the lines and in the evidence, that the relations between the police and the Press, at any rate in that part of Yorkshire, cannot be particularly satisfactory.

Every Minister and every official, even Ministers who have been knocked about rather roughly by the Press, as indeed my right hon. and learned Friend has been on occasions, and even Ministers who have been knocked about rather unfairly by the Press, know that one pretty sure way of preventing undesirable leakages of Official Secrets is to take the entire Press into their confidence in wartime or in peacetime. It was done at the highest level during the war, by editorial conferences and so on. In cases such as this the Yorkshire police could have said to the local Press, "We are running a campaign to try and track down some particular kind of criminals. It would be extremely awkward if anything leaked out prematurely, and we ask you to co-operate with us and see that it does not happen. As soon as anything can be published we will let you know." I am perfectly confident that, if that sort of attitude is taken, the Press will always honour such requests most scrupulously.

That, however, is a more general reflection. Upon this particular issue I would merely ask the Attorney-General if he will give us an assurance that prosecutions under these Acts will be restricted, so far as possible to those issues of grave national security which previous Parliaments always insisted that they were intended to refer to. It would be quite out of Order for me on the Adjournment to suggest any amending legislation, on the precedent of the restrictive legislation of 1939, but my right hon. and learned Friend will no doubt bear that in mind.

Secondly, would he be kind enough to tell us what precedents there are, if any—and I am sure there must be some—for the use of Section 2 as interpreted on this occasion, and what was the nature of these precedents? Were these cases as relatively trivial as this one? I am not suggesting that murder and assault are trivial; indeed, there is a very serious crime-wave. But my right hon. and learned Friend knows perfectly well that I am referring to cases of espionage in contradistinction to this kind of thing, which I regard as relatively trivial.

Finally, perhaps he would be good enough, if he has not done so already, to examine the whole of the facts and the evidence in the case of Mr. Atkinson and, if he finds any reasonable grounds for suspecting that justice has not been done, to take appropriate action. I will end by quoting just a word from "The Manchester Guardian" of 1st June. It is a paper which does not take alarmist or extreme views of these matters. It referred to my right hon. and learned Friend's reply to me as "most unsatisfactory" and ended its editorial on the subject by saying: The Attorney-General should not let it happen again. It is not necessary to kill a fieldmouse with a field gun.

10.26 p.m.

The Attorney-General (Sir Hartley Shawcross)

I do not think it would be proper for me to go into the merits of the particular case to which my hon. Friend the Member for Maldon (Mr. Driberg) has just referred and on which he has read to the House the comments of the "Manchester Guardian." I think it is sufficient for me to say that in that case that journalist was convicted of two separate and distinct offences by the local magistrates. To go further into the merits of the matter would involve a consideration here of the whole of the circumstances and of the background in which the prosecution came to be laid. It would be improper for me to comment on the matter at all, save to say that the prosecution was brought by the Director with my authority, and I have no reason to doubt that justice was properly done.

I wish I could meet my hon. Friend, who stands for all that is best in his profession, a little more in this matter, but I can, at least, attempt to remove some misunderstandings which appear to exist about the law in regard to this matter and to make it clear that these statutes are not aimed against and will not be applied against members of the Press any more than any other member of the community. They apply to the public at large and they will be enforced against the public at large when offences come to be committed.

It seems that there are perhaps two points involved in this matter. The first is the scope of the Official Secrets Acts generally, and the second is the position of the Press in regard to them. I cannot for a moment lend myself to the view that the Official Secrets Acts are limited or restricted in some way to cases of spying. It is, of course, perfectly true that these statutes are not frequently invoked, and when it is necessary to put them into operation it is often in connection with cases of espionage of one kind or another; but ever since the first Act was passed in 1889, it has been clear law and frequently stated that it is an offence to disclose any official information—any information which a person has obtained or has access to owing to his position as a servant of His Majesty—to anybody to whom it is contrary to the public interest that that information should be disclosed.

When my hon. Friend read Section 2 of the 1911 Act he omitted to read or he failed to notice certain portions of the Section which have some relevance to this matter. He read the first part of the Section which deals with information in relation to prohibited places, but the Section goes on: Or which has been made or obtained in contravention of this Act, or which has been entrusted in confidence to him by any person holding office under His Majesty— —this relates to information—"any information"— which has been entrusted in confidence to him by any person holding office under His Majesty or which he has obtained owing to his position as a person who holds or has held office under His Majesty, or as a person who holds or has held a contract made on behalf of His Majesty, or as a person who is or has been employed under a person who holds or has held such an office or contract. It has no special relation to prohibited places, or to any ordinary kind of espionage. It is true that certain Sections—Section 1 of the Act of 1911 and Section 6 of the later Act, are restricted to cases of spying. That only serves to emphasise that the other Sections are of much greater generality, and nobody of authority, so far as I have been able to find in my researches, has ever ruled that these Acts would be used only in cases of spying. That would amount to an exercise of the suspending power, which has been illegal since the time of the Bill of Rights.

These Acts are not limited to spying. The Attorney-General of the time—I think if was Sir Gordon Hewart—said in 1920, "I cannot, of course, say that these Acts are limited to spying," and when he came to speak about the relation of these Acts to espionage cases, he was referring to Section 6, to which I have referred, and not to the general scope of the Acts themselves. I think it was Sir Samuel Hoare who in 1938, in giving an undertaking that the special powers of interrogation under Section 6 would only be used in cases of serious public importance, said that the difficulty in the way of limiting the Official Secrets Acts to naval and military secrets was that there were other secrets which could be prejudicial to the national interest and it would be impossible to limit by statute the extent to which the exercise of the special powers was warranted.

Mr. Driberg

If I may interrupt my right hon. and learned Friend, I would remind him that he has just said that the then Attorney-General, Sir Gordon Hewart, was speaking of Section 6 of the Act as not referring to the Press. He was not, I think. The reference is in column 1539 of the OFFICIAL REPORT for 2nd December, 1920. Sir Gordon Hewart said: It is said that this Bill deals with the Press. That seems to me to be an astonishing statement, and it is very strange that persons connected with the Press should say that this Bill deals with them. He was dealing with the Bill as a whole.

The Attorney-General

That part of Sir Gordon Hewart's observations: How can it possibly be said that it is the function of a journalist to retain for some purpose prejudicial to the safety or interests of the State, an official document that be has no right to retain …. emphasises that it is not the function of the Press, or any of its representatives to obtain official secrets. If journalists obtain them, then they are departing from the ordinary law of the land. Just as it would be impracticable to enumerate by statute the matters in which the Act would be applicable, so it would be equally impossible for me to catalogue where disclosure would be contrary to the public interest. It is enough to say that the procuring of official information and the disclosing of it by persons not entitled to disclose it, is an offence.

There have been quite a number of cases of information being given in regard to Government contracts. I would, I confess, myself have thought that it was in the highest degree contrary to public interest that those who send messages by telephone or telegraph should be at the risk of having those messages disclosed to unauthorised persons. The case to which my hon. Friend refers is not the first in which journalists have been prosecuted for wrongfully obtaining information passed over the public telegraph or telephone system; but I do hope that it will be the last in which a journalist will be able to say, as in this case, "I have a good answer, being a journalist." That is what this man said. Those are the words which he used according to the information which was given to me at the time and was established in evidence in court.

Mr. Driberg

My right hon. and learned Friend the Attorney-General really must not do an injustice to this man; he pleaded not guilty, and said that he had not received the information.

The Attorney-General

That may be what he said when he came to the police court. When he was charged, he said, "I have a good answer, being a journalist." That is the evidence which was given, and which the court may have accepted. The Press in this country enjoys many great privileges, some of them because of its position, its necessary power and influence, and some because our law accords special privileges to them. I, for one, would not have it otherwise. But the liberties of the Press are like our own—regulated liberties—and journalists as such are not immune from the ordinary law. There have been cases in the past where journalists have committed offences of this kind and have been prosecuted, and it would not be right, or indeed open to me, to say that the law may not be invoked against them in future.

As Sir Donald Somervell said, when he was Attorney-General, dealing with this kind of case, it would be a bad day indeed for British journalism if it could be suggested that obtaining official secrets by improper means was regarded by those in that profession as one of their traditional liberties. But, as Sir Samuel Hoare said, unfortunately in recent years there has been a number of cases where matters have been published in the Press which have been based upon information improperly and, in some cases, corruptly divulged, and the detection and conviction of criminals has been impeded. It has been often said that if there were no receivers there would be no thieves. There might be no disclosures of official secrets if there were no people prepared to pay for them. If journalists so far betray the honour of their profession as to secure the disclosure of information, official information, which it is contrary to the public interest to disclose, I have no power to undertake in advance that the ordinary law may not be put into operation against them.

Mr. Driberg

Will my right hon. and learned Friend at least say that he will not invoke grand considerations of national security merely to punish action which some official may find inconvenient?

The Attorney-General

Certainly. We consider very carefully the merits of each case. I do not want to go too far, because that would involve going into the particular case which my hon. Friend has in mind. We do not prosecute unless we come to the conclusion that the information disclosed, and improperly disclosed, is something which it is quite contrary to the public interest to disclose; something which, for instance, might interfere with the detection of criminals and the ordinary course of justice. We do not initiate proceedings in these cases too lightly. I do not think I could authorise any other course than the one which was taken in the case to which my hon. Friend has referred.

Adjourned accordingly at Twenty Minutes to Eleven o'Clock.

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