§ 11.4 a.m.
§ The Secretary of State for the Home Department (Mr. Robert Carr)
I beg to move,That this House takes note of the Report of the Committee under the Chairmanship of Lord Franks on section 2 of the Official Secrets Act 1911 (Command Paper No. 5104).It is a statement of the obvious, but one for which I make no apology, to say that the subject which we are discussing today is central to the whole machinery of democracy. If the Government and we in this House as individual Members of Parliament are to have a proper relationship with the people of the country whom we represent and govern, the people must have the opportunity to be as well informed as possible, both about the policies which we are following and the reasons which have led us to pursue them.
It was for this reason that in our election manifesto in 1970 the Government promised to eliminate unnecessary secrecy in the workings of government and to review the operation of the Official Secrets Act. In making this promise we were influenced by the recommendation in the report of the Committee on the Civil Service under the chairmanship of Lord Fulton, and it is important to realise that the Franks Committee was set up in fulfilment of this wider purpose and not, as some people are inclined to think, as a result of any particular prosecution. Indeed, as the Franks Report makes clear, that prosecution only delayed the announcement of the committee's establishment. It was intended that it should be set up in any event.
In approaching this subject, we have to recognise that it is not the Official 1886 Secrets Act which is one of the principal barriers to increasing openness in Government. It has not needed any change in the Act to allow government to make much progress along the path towards a much more open and democratic style. The Labour Government, for example, initiated the practice of publishing Green Papers rather than White Papers to display the options to the public before decisions are made. The present Government have extended this practice in some of the most important matters affecting people in their daily lives so that there can be more open public discussion before decisions are taken. This will continue.
Furthermore, my right hon. Friend the Prime Minister is the whole time giving active encouragement to Ministers in all Departments to make, and to continue to make, increasing efforts to explain their policies fully to the public. The present Government have made more information available to the public than any other Government before them.
The importance of the Official Secrets Act is of a somewhat different kind. In addition to the Government's clear responsibility to keep the country informed of their thinking and decisions, the Government have another and entirely different responsibility towards the people—namely, the responsibility to ensure the security of the State, the privacy of the individual and the protection of our country's interests in international relationships. Thus, however much we wish for open government, however much we wish to take the people into our confidence, there are inevitably some aspects of government and administration which must be conducted with varying degrees of secrecy.
This poses two important questions. The first is how we protect the acknowledged interests of the State and to what extent we employ criminal sanctions in this protection. The second is how we keep to the inescapable minimum the amount of such information which has to be protected. These were the questions which Lord Franks and his committee set out to answer.
I wish at the outset to place on record our indebtedness to the Franks Committee. It examined a whole range of government activity and also looked at 1887 how these problems are dealt with in other countries. In preparing the report, the committee captured the concern which we, too, have to further the interests of democratic government, and it put forward proposals which the Government believe in general terms strike the right balance between the importance of, and increasing need for, an informed and debating electorate on the one hand and the security of the nation on the other. It follows from the promises which we made about setting up the committee that the Government were dissatisfied with Section 2 of the Official Secrets Act, which has been in force now for 60 years. It follows, too, that we were seeking a greater flexibility of approach, that we were seeking to do away with unnecessary secrecy, and that the only subject under debate in our mind was to what extent and in what way this could be achieved.
We realised that we had given the committee a difficult task. Indeed, I think that many people believed it was an impossible task. Thus, for example, the right hon. Member for Cardiff, South-East (Mr. Callaghan), in giving evidence to the committee, while expressing a strong desire for less restriction, nevertheless thought it unlikely that anything could be found which would work better than the existing Section 2. That, from a right hon. Member of some years' experience in my present office, is a pretty clear indication of how difficult this matter is.
Nevertheless, despite the difficult task, in our view the committee has succeeded in coming out with something better than what we have at the moment. The Government accept the essential recommendations of the Franks Committee. They accept in principle that Section 2 of the 1911 Act should be repealed and replaced by new legislation along the general lines proposed by the Franks Committee. I hope that the House will welcome the Government's decision on this point.
However, I do not want to mislead anyone into believing that it will be easy to implement. In the Government's view there are some areas in which it will be necessary to modify some of the detailed recommendations of the Franks Committee. I suppose it would be surprising if there were not. But I assure the House 1888 that, in accepting the principle on which these recommendations are founded, we mean what we say. We are approaching the problems with the will to find a solution, and modifications will be made only where, after the fullest consultation and consideration, we believe them to be absolutely necessary.
I hope the House will agree that the most useful course for me today is to give some indication of the principal matters on which the Government have reached provisional conclusions and to highlight some of the difficulties that we see. I stress that the conclusion are indeed only provisional and that we are ready and anxious to listen to argument before we finally make up our mind. We shall certainly take careful account of the views that hon. Members put forward in the debate today and of the representations made to us by the Press, the broadcasting authorities, and other interested parties and people. However, I think it would be more helpful, rather than talking in complete generality, to expose to the House as a basis for debate the difficulties that we see and where we believe modifications may have to be considered, as long as hon. Members will the whole time keep in mind that I am talking only about provisional views.
The Franks Committee divided the material to be protected by the criminal law into two main groups. First, there is that range of information which broadly might be described as affecting the national interest. I shall deal with this category at some length before passing to the second main group comprising information relating to the maintenance of law and order, Cabinet documents, and what the committee called "confidences of the citizen ".
First, within the category of information affecting the national interest, the committee identified three main areas; first, defence and internal security; secondly, foreign relations; and thirdly, proposals affecting currency and reserves. It also recognised that the existing classification system distinctively marked out material in those three areas which might cause serious damage to the national interest if disclosed, and such information is at present classified as "secret" "top secret".
In effect, the Franks recommendations would mean that material in these three 1889 areas which is classified "secret" or "top secret" would be protected by the criminal law while other material would not be so protected. The only exception would be the proposal for a new category to be called "defence-confidential". This category, proposed by the Franks Committee, would include material in the area of defence which might merit the classification "secret" but for which the practical measures required to deal with "secret" material would be inappropriate or impracticable.
It is fairly obvious to anyone who thinks about it that the sort of relationship and exchange of information that goes on between the Government and contractors in the production of weapons, for example, and between contractors and sub-contractors involves a procedure to which the normal "secret" procedures could not really be made applicable in practice. That is mainly the kind of thing that the committee had in mind in proposing the "defence-confidential" category.
Moving from defence strictly to defence and security matters as a whole, the Franks recommendations are, I think, basically right, but I must tell the House that we believe that the protection available for this sensitive and vital area needs to be somewhat wider than the Franks Committee proposes.
Under the heading of "Defence and Internal Security" the committee recommended that information should be protected which was classified "secret" or above and related to intelligence and security services and information obtained by them. However, in view of the indivisible nature of the operations of the Security Service, we think that there should be protection for all information related to intelligence and security services and the information obtained by them. This is a very difficult sphere in which one cannot discuss all the difficulties openly, but we believe that the security problem is indivisible and that, in the nature of intelligence, it is the collation of lots of bits of information, some of which individually need to be marked "Secret" and others do not, and the integration of all those pieces of information which is the essence of any intelligence system. That is why we believe that for the protection of the 1890 security services, which operate in this country under a strict charter—that is something that we must always protect—the whole of their operations should be protected by the law.
Coming to currency and the reserves, we agree with the Franks Committee that any disclosure of information which might adversely affect the Government's ability to manage the economy should be prohibited by law. We are very doubtful, however, whether the line can be drawn as sharply as the Franks Committee proposes between questions affecting currency and the reserves and other aspects of the Government's economic and budgetary policy. It does not seem right, for example, to exclude from the scope of legislation protection of matters which relate to monetary policy, including impending changes in domestic interest rates. Equally, it seems to us that information about impending Budget proposals should be protected, because there is validity in the importance we have always attached in this House and in the country to any leakage of information in this area. Premature leakage not only damages the national interest but can give great advantage, or, in some cases, disadvantage, to individual people and groups of our community.
Another area of difficulty I want to expose, on which I hope hon. Members will comment, is that of foreign relations. The Franks Committee has said that it was controversial, and it is true that a number of witnesses from whom it took evidence thought that the criminal sanction should not apply in this sphere at all. I think it is clear, however, as the Franks Committee recognised, that some matters affecting our relations with foreign Governments must be kept secret. For example, delicate treaty negotiations could be ruined by premature disclosure. At the same time, there is proper and great public interest in foreign affairs, and it is right that as far as possible people should be kept informed about not only the formation of but the decisions on foreign policy.
The committee decided that within the field of foreign relations the area which requires protection could be defined by the test to be applied elsewhere: namely, that unauthorised disclosure would cause at least serious damage to the security of the nation or the safety of the people. 1891 The committee thought that such damage was likely to arise in matters which affect dealings between the United Kingdom Government and other Governments or international bodies the members of which are Governments. Under the committee's scheme material in this area classified "secret" or above would accordingly be protected, but not material which is no more than "confidential".
I am bound to tell the House that we have some real doubts whether the committee has sufficiently taken account of the great damage which can be caused by disclosure of material which arises in the normal conduct of foreign affairs. Take, for example, dispatches from our diplomatic representatives abroad which may not merit the classification of "secret". One of the things I hope we have in mind is that we ought not to do anything which encourages the use of the "secret" label more than is absolutely necessary. But let us consider such dispatches. We believe that many of them if disclosed, could unacceptably impair our relations with the country concerned. It is not just that they could give rise to damaging embarrassment in particular negotiating situations—I think that is fairly obvious—but more generally that they could do unacceptable damage to our relations with another country; for example, by making public our representatives' judgments of events and personalities in the countries to which they are accredited.
Yet it is part and parcel of the whole purpose of representation in other countries that our representatives should feel free to report fully their judgment on what is the temper and the climate of the country in which they are representing us and on events and personalities in that country. It does not need much imagination to realise that those things, although perhaps not secret in themselves, can do very great damage to the relationship between our country and another.
There is also the fact that a good deal of information in the "confidential" category is exchanged between us and our allies on the understanding at present that it will not be divulged and is protected by the criminal law. If the criminal sanction were no longer to apply to unauthorised disclosure of this material 1892 we might find a greater reluctance on the part of our allies to share such information with us, and that, we believe, would again be unacceptable in the interests of our own country.
So for all these reasons we think that there could well be a case for extending the protection of the law to information about foreign relations somewhat more widely than the Franks Committee was prepared to recommend.
Many of the arguments with which the committee supports its recommendation for the creation of a new class of "defence-confidential" would also apply to foreign relations. But I want to assure the House that although we want to give full protection to what must be protected, we are certainly against unnecessary secrecy, and it is possible that some kinds of Foreign Office papers which have in the past been classified really do not need any security label at all.
I am asked by my right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs to say to the House that he is prepared to look at this carefully with a view to reducing to a minimum the volume of classified material in the Foreign and Commonwealth Office.
I now turn to another matter. If classified information in the fields which I have mentioned is to be protected, a major problem is how to establish whether the national interest would be seriously injured by unauthorised disclosure. Some people have for long suggested that it should be a defence to a charge under the Official Secrets Acts that the national interest was not, in fact, damaged by the alleged disclosure. Of course, I can understand why people have suggested that and why many people would still like this solution. In the Franks scheme it would mean that a defendant should be able to plead that the material disclosed was incorrectly classified.
There is, however, a problem here. It would be wrong, we think, for a journalist or anyone else to be under threat of prosecution for disclosing the contents of a document which was incorrectly classified. I want to make that clear. But I have to say at once that we agree—and it is important that we do agree—with the Franks Committee 1893 that this is not a suitable matter for decision by the courts. So I am sure that the Franks Committee was right to recommend that in any prosecution for the unauthorised disclosure of classified material the Minister responsible should examine the documents concerned and determine whether they were correctly classified at the time of the alleged disclosure and that his certificate on this point should be conclusive evidence in a court of law. I hope the House realises that I am not here discussing a modification of the Franks recommendation. I am saying that we accept it, and I am explaining why, because it is important.
§ Mr. Marcus Lipton (Brixton)
Would the right hon. Gentleman not agree that, in view of what he has just said, the Government will be the judge in their own cause?
§ Mr. Carr
I admit freely to the hon. Gentleman and to the House that this is a very difficult matter. Of course, we are not suggesting that the court would be incapable of forming a view on the point if it could have access to all the relevant facts. But that, of course, is the nub of the matter. The trouble is that in a disputed case, or at least in many disputed cases, many of the reasons for classifying a particular document which is the subject of the action might themselves be undeniably secret. Therefore, the Government of the day would have their hands tied behind their back in defending their classification before the court. To reveal these background documents and the reasons in court might compound the damage done by the original disclosure or, indeed, create damage even if damage had not been done by that particular document.
§ Mr. Arthur Davidson (Accrington)
Is the right hon. Gentleman saying that once the Minister agrees with the classification he will not be able to be questioned even in this House about that classification and about his decision?
§ Mr. Carr
I do not think I am saying that the Minister cannot be questioned in this House. I do not want to mislead the House. As hon. Members know, all Governments of whatever party are rather in a difficulty in discussing secret 1894 information even in this House. Nevertheless, it is essentially what I am saying, that, quite apart from the difficulties which I have just described, we agree with the Franks Committee that it is a matter of principle that Ministers alone have to carry the responsibility for decisions on classification.
As the Franks Committee said in paragraph 164:… decisions about classification are of a kind which ought to be reserved to the Government. Responsibility for these decisions cannot be shared with or transferred to some other person or body with no constitutional accountability.That is the point which I am making. It is a job for Ministers, and it is not an easy one. It is to Parliament that we should be accountable, where we can be asked questions which to the best of our ability we have to answer.
§ Mr. Carr
Or refuse to answer. There is no point in denying that, for it is the order of the day. This is one of the difficulties of the obvious conflict which I mentioned at the beginning. There is a conflict. There always will be, and it is probably healthy that there should be. There is the pull, on the one hand, for the maximum openness of government and information and discussion, and there is, on the other, the duty on the Government to protect, for genuine national security, the privacy of individuals and so on. These are always, as it were, complementary to each other, one pulling us one way and the other pulling us in the oppsite direction. It is an uneasy position to be in. Ministers are always on a tightrope, with each of the two sides stretching in opposite directions, and it is not at all comfortable. But I believe that to be right.
The Franks Committee further recommended—this is important—that we should enter into discussions with a view to establishing a non-statutory committee on which representatives of the Government, the news media and other interests should sit, with the function of assisting in the general understanding of how the classification system operates.
Anything which might remove misunderstandings in this area should, we firmly believe, be examined sympathetically, and the Government are indeed 1895 sympathetic towards the object of this suggestion. I must say that it is not quite clear from the argument in the Franks Report how one could avoid conflict between the principle of Governmental responsibility for classification, which, as I have just said, the Franks Committee affirmed, and making the work of such a new committee meaningful.
We have to remember also that there is already the D Notice Committee, which has become an accepted and well tried part of our machinery, and we should have to see how best to avoid any overlap with that committee. I can only say that the Government will consider very carefully, in the light of all the views expressed, how best we could define the functions of the proposed new committee, and we shall hope that some suitable method may be found of giving effect to the broad intention behind the Franks recommendation. If we could find a solution here, although we could not hand over to this committee the direct responsibility for classification, it might increase the interchange about the principles on which classification is based and lead to greater confidence on all sides.
I turn now to the second main group of material which the Franks Committee recommended for protection; namely, information relating to the maintenace of law and order, Cabinet documents, and the broad group which the committee described as "confidences of the citizen". In each case, unauthorised disclosure would, for various reasons, be contrary to public policy.
In matters of law and order, there is a good deal of information which, if revealed, might assist in the commission of crime or the escape of prisoners from custody. Here are two obvious examples. Post Office employees may know about the timing of Post Office vans which contain high value packages. Prison officers are conversant with security measures inside prison. Although, thank goodness, such cases are happily rare in this country, there can be no doubt that it should continue to be a criminal offence for Post Office employees, prison officers or others in similar positions—I have picked on Post Office employees and prison officers merely as examples and for no other 1896 reason—to disclose information of this kind which would clearly be of great assistance to those planning theft or escape or other criminal ventures.
As for the protection of Cabinet documents, there is an inevitable conflict of interest, and this is an area about which we very much want to hear what the House has to say. The fundamental principle is that our system of government depends on the collective responsibility of the Cabinet. As in any other board or committee, but, I suppose, to an extreme extent in the case of the government of the country, collective responsibility may be undermined and the full and frank exchange of views among members gravely inhibited if they become unable to reply on the complete confidentiality of their proceedings.
The difficulty is that virtually all ministerial decisions, even those taken by Ministers in their own Departments, are relevant to collective responsibility. Moreover, the publication of an advance draft of a document just before its circulation to the Cabinet would be no less harmful than publication of that same document after it had been officially stamped as a Cabinet paper.
These considerations point in a direction in which we do not want them to point; namely, to a catch-all provision which, I think we should all agree, is undesirable. The problem is where to draw the line in a situation in which no particular line can be completely logical.
The Franks Committee proposed that legal protection should be limited just to Cabinet documents; that is, to papers submitted to the Cabinet or one of its ministerial committees and the minutes of those bodies. But is this enough?
On the principles advanced by the Franks Committee itself, it can be strongly argued that where an official committee, as opposed to a ministerial committee, is considering a subject in close conjunction with Ministers, or where Ministers have referred back to officials for further work a subject which has already gone to the Cabinet or a Cabinet committee, the papers should be accorded the same protection as Cabinet documents. It seems to us difficult to know where to draw the line here. Any decision is bound to be somewhat arbitrary, and the exercise of drawing a 1897 dividing line is attended with particular difficulty.
§ Mr. William Hamling (Woolwich, West)
In the case, for example, of a Cabinet decision having been taken which applies to a particular Department, and that Department then, as it were, drawing up a preliminary draft of, say, a White Paper, or something of that kind arising from a Cabinet decision, where does that lie?
§ Mr. Carr
Where indeed does it lie? It certainly lies outside the boundaries recommended to be drawn by the Franks Committee. I think it could lie outside some of the further considerations about which I have been talking, because the hon. Gentleman is talking now about a situation in which a collective decision has been taken. But this is exactly the sort of matter on which we want to hear the views of hon. Members, and I stress again that hon. Members are not to take it from my words that the Government have made up their mind about it.
As to the confidences of the citizen, I think that there will be little dispute. The protection of privacy has been a matter of much concern to hon. Members in recent months, and it will, I hope, be our concern in debate before many weeks have passed. But just as privacy has been a subject of concern among hon. Members, so has been the desire for greater openness of government, and here again we have these tensions pulling in both directions. I am sure that the whole House will agree that we must attach the greatest importance to the protection of personal privacy. We are by no means certain that the Franks Committee's proposal in this respect go far enough, and I shall explain why.
The essence of the committee's proposal is that criminal sanctions should apply to the disclosure of information given to the Government by private individuals or concerns. But this would mean that the protection afforded to the same piece of information would vary according to whether it had been given to the Government by the persons concerned or had come into the Government's hands in some other way.
We believe that, however acquired, personal information about individuals, 1898 or, for that matter, about private companies and concerns, held by a Government Department requires protection from improper disclosure by the criminal law.
There would, therefore, seem to be good reason for extending the area of protection to confidential information about the citizen beyond the limits recommended by the Franks Committee, although we fully recognise that it may be difficult to decide exactly where the line should be drawn. Here again, I hope that hon. Members will have some views to put forward.
Besides staking out the broad categories of information which should be protected, the Franks Committee proposed a definition of the categories of persons to which new legislation should apply. It has sought to remove the obscurity and ambiguity which surround the existing Section 2 by setting out clearly the offences which may be committed by different categories of person in respect of the disclosure of official information.
There will, I hope, be widespread welcome for the proposal that the mere receipt of official information by someone who is not a Crown servant should cease to be an offence. There is also considerable uncertainty about the meaning of "authorisation" under the present Section 2, as to whether a Crown servant is or is not authorised to pass on information. This would be replaced under the Franks Committee proposals by a provision that the offence on the part of a Crown servant should only arise if information were disclosed contrary to his official duty. I believe that this too will be helpful and welcome. The Committee has also proposed a new offence of using official information for private gain, in order to stop up gaps where the existing law on corruption would not be applicable. We think this is right, although no doubt when we come to legislation the House will want to look very closely at the precise definition of this offence. Here again it is no use pretending this will be easy.
The Committee also looked closely at the position of third parties who might pass on official information which had earlier been the subject of unlawful disclosure. It proposed that it should be an offence for such a person who had 1899 reasonable ground to believe that the information in his possession had been unlawfully communicated, to pass it on to anyone else except in accordance with an authorisation given on behalf of the Crown. Again, this seems right in principle but I also appreciate that it creates difficulties and doubts in the minds of many people, and particularly for the Press. We understand that and, although we think it is right in principle, we appreciate that there will need to be further careful detailed thought about how we define this matter.
I have raised a good many questions about the recommendations in the report and about which we think there are valid doubts. I thought that might be the most useful thing I could do in starting off the debate but I want to confirm that fundamentally the Government welcome the Franks proposals in principle and I want to repeat that the Government's views at this stage are genuinely only provisional and not final and that we are ready for further discussions.
We shall listen with great attention to whatever may be said in the debate and to representations from outside Parliament. In the light of all these views we shall consider the final shape of new legislation based on the report's proposals, although it is clear from what I have said that the complexity of the problem is bound to mean that the process of preparing legislation will take a lot of time. We have no doubt that, while such legislation will not satisfy everyone, it will be a substantial improvement on the current position and will mark a real step forward in making government more open and accountable.
§ 11.43 a.m.
§ Mrs. Shirley Williams (Hitchin)
We welcome the Home Secretary's broad acceptance of the major proposals of the Franks Report. The right hon. Gentleman will understand that we shall want to look very closely at some of the modifications he has proposed and if, necessarily, what few comments I can make on them this morning following his statement are somewhat unprepared I hope that he will understand that I had no prior knowledge of what he has just said.
Before I go into what the Home Secretary said about the report and 1900 before I mention one or two other aspects of the report which we hope the Government will consider carefully before drawing up legislation, I want to make a broader point concerning the whole question of information given by the Government to the community. It is fair to say that the Franks Committee was not only set up, as the Home Secretary said, in the light of a particular case before the courts at that time, but also, at least in part, because of the Fulton Report on the Civil Service. The whole section of that report dealing with the Civil Service and the community is infinitely worth reading, but paragraph 277 in particular says:We think that the administrative process is surrounded by too much secrecy. Public interest would be better served if there were a greater amount of openness.It is also fair to quote the statement in the Labour Government's White Paper entitled "Information and the Public Interest" which referred to a fact which the Home Secretary mentioned this morning, that is, the extent to which it is not the Official Secrets Acts which forbid openness between Government and the public, but the decisions of Government. That White Paper, published in 1969, stated:It needs to be stressed that in any event the Official Secrets Acts are not in themselves in any way a barrier to greater openness in Government business. They are concerned only with unauthorised disclosures of information and not with the extent to which the amount of authorised disclosure may be increased.It is about that that I want to speak before turning to the Franks recommendations.
We have had, as the Home Secretary said, a welcome increase in the amount of information made available to the House and to the public under both the Government and their predecessor. I refer in passing to the fact that forecasts of the economic future of the country are now being made available with the Budget covering increasingly long periods, and that reconciliations between Budget forecasts and the actual turnout are not made available. These were made available last year for the first time as a result of the work of my right hon. Friend the Member for Birmingham. Stechford (Mr. Roy Jenkins), when he was Chancellor of the Exchequer, but we are grateful to the 1901 present Chancellor for pursuing the matter.
Another matter we might refer to is the rolling forecast of public expenditure, again one of my right hon. Friend's innovations which have been broadened and extended by the Government. There is also the whole area of the Green Papers to which the Home Secretary referred, and we are glad that he has followed this tradition in his recent Green Paper on firearms, as has his right hon. Friend in respect of the tax credit scheme.
I have two suggestions for ways in which we might advance even further. My right hon. Friend the Member for Coventry, East (Mr. Crossman), when Secretary of State for Social Services, took what was then regarded as the highly dangerous step of publishing the results of inquiries into mental handicap hospitals, something which had never been done before. I believe that both sides of the House now recognise the additional help that it has been possible to give to these hospitals compared to the relatively low concern for the matter in the newspapers and by the public because so little was known, concern which has sharply increased because of the reports of investigations into mental handicap hospitals. However, the results of similar inquiries are still not published in all other Departments where no question of national security or even the national interest in confidentiality is at stake.
Therefore, I suggest that one field in which the Government could authorise information to be released is in the publication of results of inquiries of this kind, largely into misconduct by Government employees or Government servants. That could rectify certain injustices which are often the result of ignorance rather than a deliberate attempt on anybody's part.
The second area where information could be extended or even provided and then followed up by the House is the possibility of setting up committees, perhaps on Select Committee lines, to study Green Papers. A Green Paper is now submitted to the public and the Press for their views and consideration. Is this not an opportunity for innovation? Is there not a possibility of House of Commons discussion, not necessarily on the Floor of the House where we are pressed for time, but possibly in some form of open 1902 committee which could be attended by hon. Members who are interested? Is this not a way of enabling hon. Members to acquire information which is at present made available or published under the Green Paper procedure?
§ Mr. R. Carr
I am interested in what the hon. Lady has said. I thought that was what was happening on the tax credit Green Paper. I question it, not to make a point that it is being done, but to make certain that I understand that this is the sort of thing she wishes to propose.
§ Mrs. Williams
The Home Secretary has raised a fair point. That is an innovation. The setting up of a Select Committee on the lines of the tax credit committee is not likely to be possible for reasons of pressure upon hon. Members, though the Government might consider short conferences for hon. Members to attend on all Green Papers dealing with significant matters. I apologise if my remarks about the firearms Green Paper did not make that clear.
I turn to the Official Secrets Acts. They in no way present the extension of authorised information. In this context it is fair to say that many senior civil servants self-authorise the giving of information. That is perhaps why civil servants at the senior level are often surprisingly frank with the bodies they meet for consultation. But self-authorisation by itself must operate in a psychological atmosphere for which, at least in part, the Acts are responsible.
Perhaps this was put as well as it has ever been put, though very strongly, by Professor Wade, Professor of English Law at Oxford University, in his evidence to the Franks Committee, when he said:It is a classic example of bad law creating bad practice.He explained that in his view the Official Secrets Acts had created an atmosphere of secrecy and confidentiality in the beyond what could be justified in the national interest within the Civil Service and as between Government Departments and the Press and the public. It is much more the psychological atmosphere that one is disturbed about in respect of the Acts than any prosecutions under them. Prosecutions have been few and far between. Perhaps but for the good sense of successive Attorneys-General we 1903 should have seen a long time ago what a very unsatisfactory Act the 1911 Act is.
In the same context, the then Lord President of the Council, the right hon. Member for Penrith and the Border (Mr. Whitelaw), said in a speech to the Newspaper Society on 19th January 1971:The Act should not be used as a means of stopping embarrassment to Government Departments and Ministers, but only in cases where the national interest is genuinely involved.With that sentiment the Prime Minister agreed in answer to a question on 16th February 1971.
There is little doubt that the Acts lead in some cases to rather ludicrous situations. One such is quoted in the Franks Report evidence, where we learn that information which was flatly refused by the Ministry of Defence with regard to the number of helicopters being used in an aid operation was not only willingly provided but provided through its information department by Royal Air Force, Singapore.
A second example in a very different field, but one that I think will concern the Home Secretary as much as it does me, was the rather excessive reaction of the Home Office of the time towards the investigation undertaken by Justice into the procedure for criminal appeals by prisoners, which led to all welfare officers, prison officers, prison visitors and any others associated with the prison service in that way being told that they could not give evidence to the Justice Committee. If I may say so, as an ancienne Minister of State of the Home Office, I feel that in the case of the Prison Department there is sometimes an extension of the use of the Acts which may operate against the interests of the community and in some cases against the interests and justifiable rights of those who find themselves in prison.
Perhaps it could be said that, as was borne out by much of the evidence of Government Departments to the Committee, it is of the nature of things that there tends to be an attitude of fear on the part of the Civil Service about the possibility of embarrassing Ministers. That is wholly admirable in many ways, but it frequently means that Government Departments perhaps lean a little too far towards confidentiality and secrecy, sometimes for the best possible reasons 1904 as they see them, but perhaps without always weighing the consideration of the right of the public to know.
A distinguished American observer, Professor Neustadt of Harvard, comparing the executive in Britain with the executive in the United States—I need hardly underline the difference at present—stated of Britain:Governing is meant to be a mystery ".There is some truth in that observation.
In this context, I want to refer briefly to what the Home Secretary said about Cabinet Papers, taking it together with the evidence given by the Cabinet Office to the Franks Committee. That evidence put the right of confidentiality of Government in perhaps its strongest form, in rather too strong a form for me, by referring to the fact that Government had in a sense a right to make secrets for themselves.
Where a fact is rather widely known beyond those to whom the Acts apply in the first instance, namely, Crown servants, that should be regarded as at least a mitigating factor where a prosecution is brought under the Acts. According to the Acts, for example, the names as well as the membership of Cabinet Committees are not to be disclosed. Yet in the memoirs of certain distinguished ex-Members of this House complete lists of all the Cabinet Committees up to the time of the person's retirement from the House have appeared, although as far as I know the membership of those committees has not been given. I await with interest the next few years, in which I am sure that that sort of evidence will also be provided.
Hon. Members must recognise that the fact that it is difficult to prosecute ex-Ministers for matters which tend upon information protected by the Acts can be the source considerable strain between the House and the newspaper world. Newspapers, which believe that they have a legitimate interest, feel that they will be prosecuted for matters for which ex-Members—in particular, ex-Prime Ministers and ex-senior Ministers—will not be prosecuted. Perhaps it is best to take a historical example from rather long ago. There is little doubt that in many respects the memoirs of Mr. Lloyd George were in breach of the Acts, but 1905 there was no question of his being prosecuted.
It was the Director-General of the BBC who said in a speech called "A Maturing Democracy" to the National Liberal Club on 14th February this year:We have to recognise that we are a people who demand an increasingly active participation in the affairs of Government and in the discussion of its problems.That was a wise observation. I would add that concern and suspicion have arisen, not about matters touching upon this House but about other matters which I shall not go into now, relating to business relations with local councils, and so on, and overseas matters, such as the Watergate case. They have aroused a certain scepticism about politics, politicians and governments which can be dealt with not by the appearance of covering up, of secrecy, but only by an open attitude towards the legitimate interests of the community and the Press.
I turn to the precise recommendations of the report and some of the points made by the Home Secretary. There is almost invariably a warning that disaster will follow when any Government moves towards narrowing the scope of official secrets. The right hon. Gentleman will recall the concern expressed in Government circles about the 1957 Report of the Franks Committees on Administrative Tribunals and Enquiries, which recommended that the reports of inspectors on such matters as planning questions should be made public. There was a good deal of comment on that occasion to the committee to the effect that that would be a most dangerous innovation. In fact, nothing of that kind happened. I think that the House and the public welcome the fact that inspectors' reports are now made known. No disaster has occurred and no roof has fallen in.
Similarly, under the previous Labour Government, much concern was expressed about the House of Lords decision relating to the case of Conway v. Rimmer in 1968. It was made clear during that case that the Home Office would have to provide certain documents which were subject at the time to Crown privilege in order to protect the litigant. The House of Lords decision considerably narrowed the rights of Crown privilege. Again, 1906 although disaster was expected in some quarters, no disaster has followed.
A third example which the House will recall is that there was considerable debate about the Ombudsman's right to see Government papers in cases which were referred to him. Once again that has been accepted and no disaster has followed.
I want to sound a warning note. It seems that hon. Members and ex-Members of Governments are almost invariably inclined to see the worst consequences from any narrowing of confidentiality and secrecy than events have so far justified. I shall now deal with certain points of controversy but, like the right hon. Gentleman, I begin by saying that the Opposition very much welcome the narrowing which is suggested in the Franks Report of the operation of Section 2 of the Official Secrets Act. I wish to ask the right hon. Gentleman about particularly controversial and difficult matters. First, the right hon. Gentleman mentioned protection for defence. I think that there is no disagreement with what Franks had to say about that. He then talked about protection and foreign relations. It would be a little unfair to quote to the right hon. Gentleman what happened on the last occasion when a matter which concerned the friendly foreign relations between this country and another country came before the courts under the Official Secrets Act. I am sure that we all bear in mind the Sunday Telegraph case and particularly the observations which Mr. Justice Caulfield made in summing up the case.
I am not a lawyer. I shall only say that the summing-up seemed in some ways to be a rather special interpretation of the Act. I very much hope that when the right hon. Gentleman considers what he has said about foreign relations he will consider how far the Act should be extended and how much more tightly the Act can be drawn.
Under the same heading of foreign relations I wish to ask the right hon. Gentleman whether he will ensure that there is a limitation to at least those documents which might directly affect our good relations with another country. The Opposition would be extremely disturbed if we thought that documents were made 1907 confidential in areas of genuine public concern affecting this country—for example, the operation here of the South African security services. He will understand that we will be very concerned about where the line is drawn.
My next example concerns currency and reserves. I wish to raise a doubt. The Franks Report, as the right hon. Gentleman said, covers official information used for private gain. That would deal with a good deal of the worry about the possible pre-release of Budget secrets. I wonder, on reflection, whether the right hon. Gentleman would feel that if there was protection with regard to the possibility of private gain—we would accept that that should be interpreted in a fairly broad way—and added to that the normal disciplinary proceedings of the Civil Service, which under Franks would apply to retired and temporary civil servants when they left the service, whether that might go a long way to cover the sort of case which the right hon. Gentleman mentioned.
It is true that in other countries, without great disaster befalling those countries, there is a good deal more freedom of information about budgetary and monetary matters than in this country. I appreciate that if we ever return to a fixed currency there will be a need for protection with regard to information in that highly sensitive area.
I turn to some particular matters which arise from the report. First, I should say that the Opposition feel that, on balance, and after considerable thought, it is right and proper that prosecutions, at least on matters of major national security under Section 1 of the Act, should remain with the Attorney-General. It seems in many cases that matters of politics in the broadest sense—not party politics—and of legitimate Government concern arise and that the Attorney-General, by the nature of his job, can better weigh such matters than the Director of Public Prosecutions. We would not object to the retention of the Attorney-General's right to decide upon prosecutions under Section 1 of the Official Secrets Act and the three specified matters under Section 2.
I shall now refer to three loopholes, and I ask the right hon. Gentleman to consider them carefully. The first concerns classification. The right hon. Gentleman referred to this matter. There 1908 is always a danger of over-classification. That was widely recognised in the evidence given to the committee and in the report. That danger might well become more acute in a situation in which classification, at least in part, of Government information were taken away. The temptation would be to protect information by declaring it secret when it would not otherwise have been declared secret.
The right hon. Gentleman pointed to the difficulties which arise in allowing any decision by the courts to be made about classification of a document. The report suggests that authorisation by a Minister should by itself constitute an adequate case for indicating that a document should be classified in a particular way.
I put the following suggestions to the right hon. Gentleman for his consideration in drawing up legislation. First, might it not be possible, in the case of the classification of a document where a newspaper or some outside citizen wished to be permitted to print information or communicate information, to question classification through the procedures of the Parliamentary Commissioner? In other words, is there a way—I am not now talking about the position on prosecution but before prosecution under the D-notice system—in which a newspaper, a member of the public or an hon. Member could question the classification of a document and in which the matter could go to somebody other than the person who had classified it or had been responsible for the classification? I suggest to the right hon. Gentleman that the Parliamentary Commissioner, who at present has the right to see Government information of a classified kind, might be a court of appeal in such a matter.
Secondly, with regard to ministerial authorisation, we are not altogether happy that such authorisation cannot be questioned. We recognise the force of the right hon. Gentleman's argument that questioning before a court might involve the production of authorised documents and the introduction of more information of a kind which, in the national interest, should not be brought out in the open.
Has the Secretary of State considered whether a defendant should have the right to ask for ministerial authorisation, when it is questioned, to be submitted to a committee of the Privy Council as a system of appeal? The Privy Council, by the nature 1909 of things, is bound by the Official Secrets Act. It has a great advantage because it represents all political parties in this House at the most senior level and no charge of an attempt to avoid Government embarrassment can be made against it. As we have an interest in showing that the Acts are purely in the national interest and not in the interests of whatever party happens to be in government, I suggest for the right hon. Gentleman's consideration that an appeal by a defendant—I use the word "appeal" loosely—should go before a committee of the Privy Council.
Further, I should like the right hon. Gentleman to consider whether the defence of public interest could be used as a mitigating factor. Some of us suggest that it could be used as a substantive defence in cases regarding information not within the first three categories which he has mentioned. In other words, within the area of other information apart from that directly concerning national security, financial gain and the confidence of the citizen, under Section 4, mentioned by Franks, would it be possible for the public interest to be advanced, at the very least, as a mitigating factor by the defence?
I think that there is a strong feeling in the Press that this should be allowed. In the light of the necessity for investigative journalism, which can play an important and useful part in a democracy, I am not sure that the defence of mitigating circumstances should not at least be considered by the Government, although I recognise that Governments fear the very wide scope and nature of such an opening.
Then there is the question of information provided on the basis of implicit or explicit evidence. I accept the widening by the right hon. Gentleman of this factor to cover the question of information which had not been given but which otherwise arrived in the hands of the Government.
I want to consider this aspect in the light of three matters. One of them will be related in greater detail by my hon. Friend the Member for Norwood (Mr. John Fraser). It concerns his constituent, Mrs. Parris, and her social security records. The second case I raised earlier this week concerning the confidentiality of records of immigrants which were given to the Inland Revenue and the 1910 Department of Health and Social Security and which are now being made available to the Home Office. The third case is the story in The Guardian today about the request for an extension of health records to be given to a computer in the Oxfordshire Regional Hospital Board without the knowledge or agreement of the patients.
In the light of those cases, I ask the right hon. Gentleman, when he draws up legislation, to consider how we can place under the safeguard and authorisation of this House any changes in what is normally understood to be confidentiality of information given by a citizen either voluntarily or compulsorily to one Government Department and the right of that Department to pass it on to other Departments.
The House may well think that at least Inland Revenue records are wholly sacrosanct. All Governments have had experience of finding the Inland Revenue jealously guarding the confidentiality of its records, even if that is sometimes against the national interest. I think that the safeguarding of confidentiality as the Government move into the age of the computer and of the explosion of the information process is so important if we are to retain the co-operation and trust of our citizens that any breach in it, however good the reason may seem to be, should at least be made by a code or statutory instrument placed before the House so that we may be clear about what is involved and are able to debate it.
I am not making a party point, because this problem is a continuing one, but I think there is now a genuine concern in some quarters, indeed a growing number of quarters, about the confidentiality of the privacy of information about the citizen provided to the Government, and I think this could be for all of us a very dangerous development if we do not take steps to reassure the public.
§ 12.14 p.m.
§ Mr. Arthur Davidson (Accrington)
I listened with great interest to the right hon. Gentleman. I approach this matter in a totally non-party sense because I do not think the present Government have any worse a record than the Labour Government in willingly giving information to the public. Nor do I think they 1911 have done better. I do not think that the issue of a few Green Papers is an act of great benevolence. I take up my hon. Friend the Member for Hitchin (Mrs. Shirley Williams) on this as well, because she seemed to imply that this was a significant step forward. I think it was the least that any Government in the last few years ought to have done.
I do not care whether the Government implement the Franks recommendations because I do not think that those recommendations would do very much at all to ensure that the public get more information. The right hon. Gentleman is an honest man and never manages to conceal his own self-doubts, as many politicians are able to do. I do not think that in his heart he feels that the recommendations really help very much.
The Act is almost totally disregarded, and when it is regarded it is looked upon as a farce. What worries me about the Franks recommendations is that they would ensure a tight list of secret documents, and in that respect the Press and other organs of information would be worse off in practice than they are now.
The Government are committed to more open government. They gave that specific pledge in their election manifesto. I have a feeling that when they made it, although they may genuinely have wanted more open government, they had no idea of how to bring it about. In other words, the pledge was lightly given and is another example of why the public are disillusioned with all Governments. Many people feel that pledges are frequently only lightly given without any conception of how they are to be carried out in practice. The present Government are particularly prone to that exercise.
I intend no disrespect to the members of the Franks Committee, all of them distinguished people. It included two of my own colleagues. But the conclusions were very conservative and the recommendations puny. It was a weak report and its conclusions do not help. Neither the Home Secretary nor the Franks Committee has come out with any firm commitment to say that the public have a right to information.
The right hon. Gentleman repeats the attitude of Minister after Minister in Government after Government—that the 1912 Government will decide exactly what information they will give the public. The attitude is "We are the arbiters of what they should know and we will decide what they will know." Until that attitude changes, no more information will be given than previously.
I do not suppose it will, but I would like the Labour Party leadership to come out with a firm commitment to what the Government are not prepared to make a commitment—that there is a right, in the public, of access to information and that if that information is refused there should be a duty upon those refusing it to say exactly why they are refusing and why it is in the public interest to refuse it.
§ Mr. Davidson
Of course. The Cabinet is there by the will of the people. The members of the Cabinet implement the laws and initiate legislation which ultimately are supposed to be to the benefit of the people. Yet invariably the last to know about it are the poor people who are going to have to suffer the results. I am not talking purely about this Government—
§ Mr. Hamling
Does that mean that my hon. Friend is in favour of publishing Cabinet minutes in the Press?
§ Mr. Davidson
I would certainly publish some Cabinet minutes; I do not say that I would publish all.
§ Mr. Alexander W. Lyon (York)
We are all in favour of the greatest amount of information that can be given to the public being given. There is no difference in principle on that point between my hon. Friend and the Home Secretary. The question is where the line is to be drawn. Where would my hon. Friend draw the line? What, in his view, should be kept secret?
§ Mr. Davidson
My hon. Friend interrupts and comes out with the usual cliché: "We are all in favour of the maximum information being given". That is an easy thing to say. But the fact is that he is not in favour of the maximum information being given but in favour of giving what information he wants to give. That is the position. I would, of course, accept that security 1913 matters and matters affecting the defence of the country should be properly classified, but the Home Secretary today, presumably with the approval of my own Front Bench, is even widening what the Franks Report said. The Government are to widen the classification. They are so worried that a little more information might be given—
§ Mr. Peter Archer (Rowley Regis and Tipton)
Before my hon. Friend leaves that point, will he tell the House who in his view would have to decide which Cabinet minutes would be published? [An HON. MEMBER: "Me."]
§ Mr. Davidson
Preferably myself, that is true, because I am quite confident that I would give the maximum information. It is not an easy question to answer. The decision should be left in my view to an independent body—and certainly not to the Privy Council, as it has a vested interest in preserving maximum secrecy because Privy Councillors are all part of the establishment governing the country. But the very classes of person who should not have the right to decide are the civil servants and Ministers who themselves have a vested interest in seeing that things are done as secretly as possible. Of that I am sure. But we can argue a little later exactly what body or what people should comprise that body ultimately to decide this. It is patently absurd that the very people who have an interest in ensuring that things should be kept secret should have the right to put their stamp on information and say "We decide that that is to be secret."
That is patently absurd, but it is what the Home Secretary said today. He said that the courts are not able to decide whether or not it is in the public interest that a particular document should be classified, but I do not at all see why the courts should not be able so to decide. It has been suggested that they cannot decide because confidential information might come out, but, as the Home Secretary knows, and as the Attorney-General well knows, the courts constantly deal with prosecutions under the Official Secrets Acts and they go into secret session when matters of vital security are concerned. I do not see why under a defence of public interest the position is any different. There should be a defence 1914 of public interest, and it should be on the prosecution to show that the classification was in the public interest and that, therefore, the offender was guilty of an offence—not otherwise. I am afraid that I regard the Home Secretary's argument as somewhat weak in that respect.
My hon. Friend the Member for Hitchin was correct when she said that the Official Secrets Act in itself is not the reason for inadequate information being given to the public or for the public more and more getting the feeling that they are ignored when it comes to decision making. It is not the Official Secrets Act that is the reason, but the whole attitude of Governments is conditioned very largely by the Official Secrets Act. That attitude permeates not just through the Civil Service and Ministers but right down to local government level as well.
In local government in particular there is the mentality that it is a nuisance and an inconvenience that the public should know about decisions which ultimately will affect them. The public have a right to know, and if at the moment they do not feel that they have the right to know it is because they are sick and tired of hammering on the doors of towns halls and other places of authority trying to find out why a certain thing is happening and when it is happening. They are the last people to know that they are to be moved into some new housing development which they regard as totally inadequate for them. They are not told of it in advance, and they are not told in advance because right through the whole gamut of officialdom there is an aura of secrecy. Unless we give people the right, and ensure that right by law, to the maximum information available other than by implementing the Official Secrets Act or the Franks Report or just amending the Official Secrets Act in some way we shall not really improve the matter one bit.
The Home Secretary may think that I have exaggerated the position, and possibly I have, but it is necessary because unless we change people's attitudes, which really means changing the attitudes of those who govern as well as those who are governed, we shall not improve the situation one bit. Open government will not be brought about 1915 just by implementing the recommendations in the Franks Report.
The Home Secretary fell into the same trap as the Prime Minister and other people have fallen in trying to relate the right to information with the right to privacy. They are not the same thing at all. It is very convenient for those who want to operate in secrecy to pretend that what they are really doing is protecting peoples' privacy. They are not the same thing at all, and they are not mutually exclusive. It is one thing to protect the personal details of people, which details the Government have obtained in some way or other, and another to protect the activities of either a corporation or a Government Department.
It is quite right that there should be a law of privacy to protect personal information. My hon. Friend the Member for York (Mr. Alexander W. Lyon) agrees with me, I see: he has some commitment in this respect. But it is a totally different thing to equate that with protecting information about Government decisions or Departments. They are not one and the same thing. As I say, the Home Secretary today fell into that same trap by implying that if we give more information about Government decisions we are somehow intruding into the privacy of the individual. It is not the case at all, and I hope that the right hon. Gentleman realises it.
I do not think that it matters at all whether Section 2 is repealed or whether the Franks recommendations are brought into the law of the country. If the Government really had wanted to do something about the Official Secrets Act they could themselves have amended it at a stroke, as it were, by getting rid of Section 2. That would have been just as much an advance as implementing the Franks Report or waiting for the Franks Committee to come up with its recommendations. Three years after the Government have committed themselves to bringing about more open government, and after Question after Question about open government has been asked in the House—and I have asked the Prime Minister myself—here we are debating a report which is conservative in its recommendations and in no way revolutionary, yet the Government are terrified to bring about these recommendations or make 1916 any really stirring declaration that the people of the country have the right to information. Until the Government give them that right by law, the Government will continue to operate in secrecy and people will be starved of information as they have been in the past.
§ 12.30 p.m.
§ Mr. Norman Fowler (Nottingham, South)
One thing that seems to be clear from this debate is that there are the makings of a slightly suspicious Front Bench bipartisan agreement upon this subject. As a general working rule, that is one reason why back benchers should look very critically at what is now proposed, and it is for that reason that I welcome the remarks of the hon. Member for Accrington (Mr. Arthur Davidson).
On Tuesday of this week The Guardian said:In the House of Commons, the accepted compromise between holding a debate and not holding a debate is to hold a debate on a Friday.There will be many outside the House who will be disappointed at the small attendance for the debate on this important subject. My own disappointment is tempered by the fact that I do not have to struggle through the normal number of Privy Councillors in order to make my speech.
The working relations between Whitehall and Fleet Street are the central theme of this debate. Let me declare an interest immediately as a journalist who worked in Fleet Street for nine years before coming to this House.
As I have listened to the debates over the last few months, I have not at times recognised the old battleground. I hear of newspapers battering at the doors of Whitehall trying to pry out every secret which civil servants hold dear. I do not object in any way to that description—I think that that is a function of Fleet Street—but what I question slightly is that the Government, and here I refer to any Government, are an entirely innocent party in this matter, that they are unskilled in looking after themselves and that they are untutored in the wicked ways of the newspaper world.
It is perhaps worth remembering that more than 1,100 civil servants are employed by Government Departments as Press and information officers. They are 1917 neither innocents lost in a world which they do not understand nor unskilled in their job. And their job is simply to get over their Department's point of view. They are employed by the Government to sell government. They know all about non-attributable interviews. They know all about non-attributable briefings. When, as if by some divine stroke, several newspapers come out on the same day with the same story and the reader, somewhat puzzled, looks through the story to find what authority the newspaper has for publishing it, all he can find is a plethora of such phrases as "It is understood", "Whitehall sources say" and "Government circles believe".
These civil servants know all about how to knock down a story, not always because it is totally false but because its publication, even in the incomplete form in which the newspaper has it, may be embarrassing, and, like all civil servants, they want to avoid embarrassing their political masters.
Nor should it be thought for one moment that the political masters themselves stand altogether aloof from this process. When I was in Fleet Street, I knew when one Minister was in a difficulty because he would call me into his office for a background briefing on the point. Even Prime Ministers do not stand back from this process. It has been known for Prime Ministers to give their own views on a matter in question without any kind of attributions to themselves.
The simple point I make is that the Government know what they are doing, just as much as the Press does. The reason for clashes is that the interests of the Government and those of the newspapers are not the same; nor, in a democratic country with a free Press, will they ever be the same. A Press which unquestioningly accepted anything and everything that was put out by the Civil Service public relations machine would be a mockery. The important thing is that this clash of interests should be recognised in the context that we are considering.
The Government want to get their views across. There may be a period for public discussion, but, that having been completed, the Government want the decision taken. Any newspaper will want to question that decision and will want 1918 to go on questioning it even after the Government themselves believe that discussion has come to an end.
The Government want to keep some of their most delicate policy problems hidden until they are ready to announce a decision. They may not want to arouse fears unnecessarily. They may not want to provoke a public debate. On the other hand, any newspaper will want to reveal the policy arguments, on reverse grounds to those on which the Government do not want them revealed, because they are important to the public and the newspaper believes from its standpoint that the healthiest position in that kind of situation is that the public should know about the debate that is taking place.
The Government want to prevent their mistakes from becoming public, not necessarily to cover up but because they feel that they can deal with them in their own way. Any newspaper will want to expose those mistakes because its way of dealing with mistakes is by giving publicity to them.
There is, therefore, a profound clash of interests, and the essential problem is to keep a balance, because there is a clear balance to be kept. Some commentators have observed that the Press is fond of claiming the public interest when revealing information which it wants to reveal in any event. I am sure that there is great truth in that comment, but there is also truth in the comment that the Government are fond of claiming national security reasons to keep secret information which they want to keep secret.
I believe that our aim should be to prevent newspapers from revealing information which may put the security of the State at risk. I do not think anyone would dispute that. But it is also right that the Government should be prevented from keeping information secret and hidden when it is not necessarily to do so. I suggest that it is in that context that a balance has to be kept.
I imagine that no one disputes that Section 1 of the Official Secrets Act should be retained. I should like to imagine that no one seriously defends the retention of Section 2, a measure that was passed in panic, without proper parliamentary consideration, and finally and conclusively discredited by the 1971 Sunday Telegraph case in which the 1919 defendants, to my mind, rightly triumphed.
My right hon. Friend said that he accepts the findings of the Franks Committee on this question, that Section 2 will go and that a new Official Information Bill will in due course be brought forward. I must tell my right hon. Friend that I am not at all convinced by the present form of the official information measure set out in the report. The proposals contain a number of areas which are extremely worrying. What first worries me is the breadth of the proposed measure itself.
Looking at the report through the eyes of an ex-home affairs correspondent, I notice in Chapter 10 that a whole section is devoted to the maintenance of law and order. I notice that it will be an offence to give information about how to neutralise a burglar alarm, but it has to be observed that instruction is given nightly on television and by Hollywood films and this seems a rather curious restriction. I notice that it will be an offence to give information about the routine in prisons in case that might help an escape, and yet one has only to look through many articles which are published about the prison service to see that information about the routine of individual prisons is given. It is very difficult to separate, as is suggested in the report, the routine of a prison—for example, the time when people get up and go to their work—and the treatment given inside the prison. It should be observed that, probably alone amongst articles which are written on all these related subjects, those about prisons are seen by the Home Office before they are published. No journalist can go into a prison unless he is prepared to give the assurance that the Home Office will be given his copy before it is published.
§ Mr. Arthur Davidson
Would not the hon. Member agree with what I said previously, that in many ways vie would be worse off under the Franks recommendations than we are at present, because at least Section 2 is so vague that it is generally ignored?
§ Mr. Fowler
In this respect, I think that the report would have exactly the effect the hon. Gentleman suggests.
1920 However, what really worries me is that it is proposed that it would be an offence to disclose information ifits disclosure would be likely to impede the prevention or detection of offences or the apprehension or prosecution of offenders.Then the report sets out that such information would includeinformation about police plans for dealing with a possible serious public disturbance".That comes into this category.
Let me give an example of what might possibly happen. Say that a newspaper gets information that the police intend to use water cannon or gas in handling a serious public demonstration. After all, that is not a fanciful example; those methods of dealing with demonstrations are used frequently in other countries. The journalist, the editor, may feel that the use of such methods would seriously damage the police reputation in this country. That would be my own view. Is it seriously maintained, however, that if the newspaper came upon detailed plans of that kind it should not publish them? Is it seriously suggested that it should wait till after the demonstration before making its comment? Where does the public interest lie in a situation of that kind?
My second reservation about the report is also about the public interest in matters pertaining to defence or economic affairs, in which everything depends upon classification of the information, and whether it be secret or confidential. Clearly this is a matter of personal judgment. Because it is a matter of such important personal judgment, and a matter upon which the prosecution obviously depends, I would have thought it must follow that there should be very effective safeguards against over-classification. This is recognised in principle in the report, but the solution which is proposed in the report is that the Minister should have responsibility for reviewing the information and judging its classification, and that the safeguard should be that the Minister is answerable to Parliament.
I find it extremely difficult to accept this proposed system. The reporter, or the newspaper editor, is to be put at risk of criminal prosecution, and indeed imprisonment, and yet the very substance of what he is charged with will not be under the scrutiny of the court. 1921 It is basically a decision which is taken by a Minister. Nor do I regard the check, the fact that a Minister is answerable to Parliament, a secure check for the future. Certainly the matter might be overridden by Parliament, but I suggest that it is far more likely that the Government of the day would use their majority to ensure that the decision was upheld. Indeed, in many ways one might ask how it could be otherwise, because surely, judging from all that has been said, the Minister would probably not disclose to the House the substance of the charge and its implications. All that would be happening would be that one was taking the Minister on trust in a matter affecting the individual liberty of the journalist, who risks imprisonment. I do not consider it a satisfactory check. It would have been very interesting to know what would have been the attitude of the last Government to the Sunday Telegraph case and whether that would have been a matter in which the substance of the charge would have been overridden by Parliament.
Basically, I believe that newspaper editors are right in saying they should have the right to plead as their defence the public interest.
Nor do I find the Franks Committee convincing when it says that juries might find these issues "difficult to handle". Similar comments could be made about a whole range of issues which are heard in the criminal courts. There are murder trials and fraud trials which are very difficult issues to handle, but we do not seriously propose that trial by jury should be abolished upon that ground. If the objection is the publicity of open court, I would think it possible for the court to have the hearing in camera. I do not find myself at all convinced by this important section of the report, which is one of the most crucial sections, and I am bound to say that I view with some horror the setting up of yet another committee on D-notice committee lines which newspapers can consult before publication.
My main objection to the report is not that it will lead to a great number of prosecutions. Like my objection to the Official Secrets Act—because the importance of Acts of that kind is their 1922 psychological effect, as the hon. Lady the Member for Hitchin (Mrs. Shirley Williams) said—the reason for my objection to the report is the effect which restrictions of this kind have upon the Civil Service, upon newspapers in doing their job and, particularly, I would suggest, upon the Civil Service itself.
The aim of my right hon. Friend is to make government more open. I do not believe that the report will accomplish that. It is certainly important to abolish Section 2 of the Act. Here, I probably disagree with the hon. Member for Accrington, because if we did nothing else than abolish Section 2 that would certainly take a serious anomaly out of the law.
The case for abolishing Section 2 is not a difficult one to plead, and abolition is not a difficult step to take. I am not convinced, however, that the Official Information Act which is proposed in its place would lead to the Civil Service being more open and frank or that it would lead to the public getting the information to which they are entitled. Nor—and this is crucial—do I think that the Civil Service would interpret it in that way. How civil servants view these restrictions is most important.
In brief, I am not convinced by the report. We cannot be satisfied with the cautious approach that has been shown. Above all, I am not convinced that the report fully enables the Government to redeem their pledge to eliminate unnecessary secrecy about the workings of government.
§ 12.50 p.m.
§ Mr. Peter Archer (Rowley Regis and Tipton)
When we are debating a report of this kind, the most helpful form the debate can take may be to explore the measure of general agreement on general principles. As the Home Secretary fairly said, the difficulty is that one has to preserve a balance between two inconsistent principles, each of which is of vital importance, a balance between the needs of the Government to conduct their ablutions in private with decency and the need in a free society for people to speak and listen freely one with another.
I have a great deal of sympathy with what the right hon. Gentleman said about the need to preserve some confidentiality. Clearly, there are certain categories 1923 which no Government can make public—matters affecting security and the fight against crime. Speaking from my marginal experience of government, I appreciate how difficult it would be in foreign relations if information were made known about one's negotiating strength or about the final arrangements for which one was prepared to settle. I go along with him, too, on what he said about the confidences of the citizen—the matters referred to in paragraph 192. It is of benefit to the community if, in certain circumstances, people can speak freely to officials of their own affairs and of public affairs, give information and offer opinions, knowing that what they say will not be made generally known.
To that extent—and to show that the Opposition are not necessarily monolithic—I am not sure that I agree with my hon. Friend the Member for Hitchin (Mrs. Shirley Williams) if she was suggesting that in this category there should be a defence of public interest. It is important that people who communicate information and ideas of this kind should be virtually certain that they run no risk of what they say being made known. That is a necessity which operates in most everyday affairs in every family. There are times when we all begin a communication of information with the comment "Don't tell grandma I said this, but". Equally, in public affairs there must be occasions when we say "My friends would not like it if they knew I was saying this, but". To that extent I agree with the right hon. Gentleman that, if anything, there is a case for being more careful that there should be no disclosure.
On the other side of the equation, there is the right of freedom of information. This is two rights, not one. First, it is the right of the public to be told what they ought properly to know about. The right of the Press to speak freely on these matters is not primarily the right of the Press but the right of its readers to be told. Secondly—and this is a separate right—there is the right to speak out freely, whether or not we are in a minority, whether or not anyone wants to listen to us, whether or not the Government or officials, or even the public, approve of what we say. There is the right to point out facts and to persuade, the right as a minority of one to start 1924 to inculcate a new idea. That is separate from the right to receive general information.
That is why the debate covers not only the mass media with large circulations—the papers which the public want to read—but the minority journals which often preach to deaf ears and whose need of protection may be even greater because they do not always excite our sympathy, because a prosecution against them would not always evoke a public outcry and because, for that reason, they are in the greatest danger of being repressed.
My second introductory comment is that freedom of speech is always the resultant of a package. Many proper limits are placed on freedom of speech—the law of defamation, the law of contempt, the law of obscenity and the law of privacy, which we hope will he on the statute book within the measurable future.
When the nations of Western Europe were formulating the European Convention on Human Rights they set out in Article 10 the right of everyone to freedom of expression, and they elaborated that. In paragraph 2 of Article 10 they took the trouble to list those matters which they all, after due consideration, considered were proper limitations of that right:The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.I doubt whether anyone in the House would quarrel with any item in that list, although we might disagree on the precise limits of that restriction.
In any community, freedom of speech in the end emerges as the resultant of all the limits that are drawn in relation to all the constraints concerned. It might have been better had we had the opportunity of debating all the restrictions on free speech rather than a report which relates to a fairly narrow sector.
The package consists not merely of the constraints that are imposed upon what the Press or individuals can say, but upon what Governments choose to disclose.
1925 They are all part of the same package. Where there is a restriction at one corner, that restriction will be shown up in the total resultant when we speak of the state of free speech in a particular country.
I wish to make two points in the debate. First, people are entitled to know their rights and to know when they are endangering themselves to prosecution. That might seem to be a lawyer's point, but I assure the House that it is an editor's point. It was made again and again to me when I was in discussion with the Guild of Newspaper Editors and certain other representatives of the Press, and they are absolutely right.
It is clear that the limits where rights to public information conflict with some of the other rights cannot be delineated in such a way that there is a detailed prescription for every situation. But where serious criminal sanctions are likely to apply, editors are entitled to know precisely how far they can properly go.
If my hon. Friend the Member for Accrington (Mr. Arthur Davidson) is suggesting that there is an advantage in leaving these matters less clear because the authorities are less likely to prosecute, I would disagree with him.
It is important that before he takes a decision an editor should know whether he is running the risk of prosecution—whether he is running the risk that, if the authorities choose to object, he will find himself the recipient of serious criminal sanctions. It is often said that newspaper editors are too jumpy and that the law is not as repressive as they sometimes imagine, but where an error of judgment can result in such serious consequences it is important that editors should not find themselves inadvertently open to prosecution.
My hon. Friend the Member for Hitchin said that atmosphere in this respect is more oppressive than actual application. If an editor knows that he might find himself subject to sanctions, he is sensible to play for safety. I can think of two occasions when an editor was in a position to be first with a story. He considered the possible legal constraints and decided not to publish, only to find that subsequently a rival editor decided to take the risk and consequently scooped 1926 thet field. The rival editor received all the credit for the scoop, and on neither of the two occasions I have in mind was there any prosecution or criminal sanction. The rival editor got away with it, but the first editor, who had taken what he thought was a responsible, safe and sensible attitude, was understandably annoyed because, since this is a matter in which the consequences are so un-predictable, he had prejudiced his position.
I put in a plea to the Home Secretary when considering this matter. Will he, where possible, and as precisely as is consistent with the difficulties of the situation, see that proper guidance is given to those who have to take decisions—sometimes on the spur of the moment, often under great pressure and sometimes late at night? All these are difficulties with which Ministers are themselves familiar, but they are matters with which we should have some concern.
To some extent the D-notice system assists the situation. It is an indication to editors of areas in which the authorities are likely to want to apply constraints to them. But the D-notice system has its converse dangers because it places real power in the hands of the authorities. One is reluctant to say that a problem of this kind should be solved by telling people that they are all right provided that they accept the guidance of those in official positions.
Secondly, it is quite easy for an official to slide from the view in his own mind that "This may cause damage to the public" to the view that "This may be inconvenient to us or it may make us unpopular". My hon. Friend the Member for Hitchin quoted examples about prison conditions which appeared in the Justice Report on the Law and the Press. Since my hon. Friend quoted those passages I shall not delay the House by repeating them, but it is worth pointing out that what Justice said in that report was to a large extent confirmed by the oral evidence given to the Franks Committee by the Guild of Newspaper Editors. Evidence was given that, when permission was sought to visit Leeds Prison, permission was given subject to the condition that the journalist who visited the prison should be permitted to speak only to particular people with whom the authorities 1927 thought he should speak. It is part of the same syndrome that was mentioned by the hon. Member for Nottingham, South (Mr. Fowler). I appreciate, Mr. Deputy Speaker, that if I pursue this point I shall be in peril of being ruled out of order. This is not strictly relevant to the Official Secrets Act, but one can understand why there is real anxiety about the situation.
The difficulty arises—and this point emerged from the speech of my hon. Friend the Member for Accrington—when a decision has to be taken about which matters can properly be made public and which matters it would be contrary to the public interest to be made known. It is difficult for anybody other than a Government official to take such a decision. Anybody else, in order to be put in the position to take the decision, would have to be given access to the confidential information entailed. Having said that, I urge the Home Secretary to try to find some method of consultation which can be entrusted to somebody who could have sufficient information to appreciate what is entailed in a decision, so that Government officials would not always have to be judges in their own cause.
This topic has exercise the free world for a very long time. This year sees the twenty-fifth anniversary of the Universal Declaration of Human Rights. As long ago as 1948, Article 19 said:Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.There is more than one police State in the world at the moment which began its downward slide into tyranny by imposing constraints on the Press on the grounds that it does not do for the public to hear too much. Three obvious examples are Greece, Portugal and South Africa. Again, I shall be out of order if I pursue that matter further. I am not suggesting that we are within measurable distance of these conditions. Sometimes one does a disservice to human rights by equating two situations which are not easily equated, but it is the beginning of the slide downwards of which we must be careful and we must remind ourselves constantly of these facts.
1928 Next week in Helsinki a conference will take place on the resolution of certain matters which have bedevilled relationships between Eastern and Western Europe. One of the matters on the agenda relates to free exchange of information. There are some of us who hope that the right hon. Gentleman will communicate to the Foreign Secretary that this is an area in which we hope there will emerge some concrete results and not just the laying down of formulæ which will satisfy those who are there.
It is difficult for special privileges to be given to journalists as such, and we discussed this matter in a Committee of the House earlier this week, but journalists, whether foreign or domestic, are subject to the same constraints. We are talking about journalists who have in their daily work to risk offending the authorities, not only in their own country but in a foreign country. Perhaps for that reason they are entitled to some special treatment.
It may be said that all that is required of journalists and editors is that they keep well on the right side of the permissive limits of disclosure; but if they always accepted the Government's view of what was confidential, nothing that any government wished to conceal would ever emerge. One hopes that where journalists are guilty simply of errors of judgment, any penalty that is imposed will be confined simply to flashing a red light. One wonders whether the informal committee discussed in the Franks Report on the classification of information might be borne in mind for decisions whether to prosecute. In effect, it could be in the position of a grand jury.
I endorse what was said by the hon. Member for Nottingham, South about the right to jury trial. The committee, in paragraph 269 of its report, thought it a right worth mentioning. This is, above all, a sphere in which the citizen is likely to clash with the Government and there a jury ought to be qualified to decide what is reasonable where two rights, each of vital importance in the public interest, possibly clash.
As the Home Secretary said, these are difficult questions. It would be a tragedy if, because they are so difficult and entail so much consultation and discussion, there was an indefinite delay before we had any legislation at all. I assure the 1929 right hon. Gentleman that, if he introduces legislation quickly, some hon. Members on this side will attempt to view with sympathy some of the difficulties which might arise because of the brevity of the consultations.
§ 1.11 p.m.
§ Mr. William Hamilton (Fife, West)
I intervene in the debate with a little diffidence, but I have two qualifications for taking part. The first is that I am eternally grateful that I have not had a legal training. The second is that I dislike and suspect all Governments, irrespective of party. I am purely nonpartisan in that regard. All Governments, and particularly all Oppositions, pay lip service to open government and the need for more of it, but seldom do they practise what they preach.
It is of more than usual significance, as the hon. Member for Nottingham, South (Mr. Fowler) pointed out, that on the very day when the Government are preaching open government they choose to have this debate on a Friday, because it is likely to collapse before 2 o'clock or perhaps 3 o'clock. That is not the fault of the Government, but they know perfectly well that a Friday debate is a non-debate. They say that they will listen to the views of the House before coming to a conclusion. There are very few hon. Members present to whom they can listen. The Government know that on a Friday there will be very few hon. Members present, apart from the few who are here today and the lawyers, because the Law Courts do not sit on a Friday.
§ Mr. Hamilton
That shows my non-legal training. I do not know. But the few lawyers who are taking part in the debate know that they can come along on a Friday and make their weekly speeches so that they can point out to their constituents how assiduous they are in their attendance at the House.
We are witnessing today a debate on a report which, whether its proposals are or are not implemented, will not make a great deal of difference. I think that my hon. Friend the Member for Accrington (Mr. Arthur Davidson) was trailing his coat somewhat in saying that the Press and the public have a right to all the information that comes the way 1930 of the Government, including Cabinet papers, and so on. I do not go along with that view. A line must be drawn somewhere. In the end, whether there is legislation or not, the Government will decide what they will or will not release. They will decide what is in the national interest and what threatens national security. We may make as much law as we like, but in the end it will come to that.
Irrespective of which party is in power, we shall always have this constant battle between the public, their representatives as back-bench Members, which we are, and the Government of the day. It is healthy that it should be so. The freedom to criticise the Government, to expose the Government, to seek out information that the Government would prefer should not be revealed, is the very life-blood of our democratic process.
I recall quite vividly two examples of the way that Whitehall, the Government machine, sought to thwart the media in digging out information. Mr. Anthony Howard, now the Editor of the New Statesman, was given an assignment by The Observer or The Times, or one of the top people's papers, to go to Whitehall and seek out information as to how the Government machine worked. He was to get inside it. Every door was slammed in his face.
I also recall that the former Member for Dudley, now Lord Wigg, who is a great expert on defence matters closely concerned with the security of the State, could not get as much information from sources in this country as he could from American magazines. He got information on British defence from American publications that was not available to him in this country.
Those are examples of the constant battle between the media, back-bench Members of Parliament, the public and the executive.
I am glad that we are to have a separate debate on the Younger Report. My hon. Friend the Member for Hitchin (Mrs. Shirley Williams) at one time suggested that we might have a debate on the Franks Report and the Younger Report together. I think it would have been singularly unfortunate if that had happened. Clearly, there is an overlap between the two, but there are important 1931 distinctions between them in areas where I think there will be general agreement. In this respect I differ from my hon. Friend the Member for Accrington. There are clearly defined examples where the Government of the day must maintain the right to keep secret information on defence matters and on espionage.
In the Civil Estimates one sees a global figure for the number of spies and the espionage that Britain undertakes throughout the world. If I were to ask the Government how many spies we had in Russia and how they were doing—it would be an extremely stupid question and would not be allowed in any event—it would be absurd if the Minister replied "We had 10 last year, but we have decided to up the number to 20 this year. They are not doing too badly, although we are to move the one in Moscow because he is not getting the information that we would like ".
That is an absurd example of the kind of situation where there can be no difference of opinion. I do not know what we would want to spy on. I do not know why foreign countries send spies here. I do not know what secrets we have to hide. Of course, in the industrial sphere matters are becoming increasingly serious. Commercial espionage is almost as serious as defence espionage. In fact, there is an overlap there.
The danger to State security has increased with the development of scientific and technological advance. Moreover, it is fair to say that all of us, individually, and collectively as a State, have our secrets, even sometimes from our own wives. I think it is right and proper, and I suppose inevitable, that that should be the case. The Government find, as we all find, forces working in opposite directions. There is certainly need for more democratic control of Government processes, and that means more information.
The other conflict arises from the need of Governments to protect what is loosely called the national interest. No one challenges the need of all Governments to maintain some degree of confidentiality to themselves. I remember when the Labour Government, I think in 1949, decided to devalue the £; the day before, Sir Stafford Cripps, who was then the Chancellor of the Exchequer, specifically denied that there was any thought of devaluing. He told a lie, but I think it was 1932 a justifiable lie. Clearly, he could not give advance notice that we were going to devalue our currency, for reasons which the Home Secretary has given today.
There are many examples of that kind. I think that successive Governments have made efforts to consult more and more not only outside bodies but Members of Parliament before the formulation of policies. There is, for instance, an increasing tendency to publish green discussion papers before policies are finally formulated. My hon. Friend the Member for Hitchin referred to Select Committees. When I first came to this House the very idea of a Select Committee having powers to interrogate a Minister was unthinkable. It met with tremendous opposition from all kinds of Governments, even our own Labour Government. Many Ministers in the Labour Government viewed with horror the prospect of a Minister being examined by a Select Committee.
I remember a former Labour Chief Whip saying "My goodness; this would be terrible. Back-bench Members would actually be able to examine and cross-examine a Minister in depth. Question hour is all right, but to get a Minister for two and a half hours in front of a Select Committee would be unthinkable." But now it is the accepted thing. A few weeks ago I sat on a Select Committee where, for the first time in the history of our Parliament, we had three senior Ministers in front of us—the Secretary of State for Education and Science, the Secretary of State for the Home Department and the Secretary of State for Employment—all being cross-examined by an all-party Committee of this House. That was an example of the progress that we have been making toward open government.
The emergence of the ombudsman concept again was opposed by successive Governments for a long period. I think there is great scope for the extension of that concept to protect the citizen from maladministration and in other fields. We should view with some concern the fact that, although these advances towards more open and informed government have taken place over the years under successive Governments, the public still feel that the gap, far from narrowing between them and Government, has actually got wider. Whether that feeling is justified 1933 or not is arguable, but the feeling is there and it is not without foundation.
Governments of all persuasions tend to associate the national interest with their own survival. When, as now, it is in the national interest that the present Government should go, they think it is in the national interest that they should stay. Therefore, they suppress what information they can, the publication of which would expedite their end, because they regard it as in the national interest that they should stay.
It has been made clear that the appointment of the Franks Committee was not inspired by the leak of matters concerning the Nigerian war, although that celebrated case pinpointed the dilemma to which I have already referred. I think it influenced much of the evidence given to the committee and it influenced also the subsequent report.
I turn to what I think are the basic weaknesses of Section 2 of the Act which we are now debating and the recommendations that have been made. As of now Ministers are given carte blanche to reveal as much or as little as they like—not only Ministers, but all servants or agents of the Crown, right from the soldier in Northern Ireland to the Prime Minister himself. Any information which comes their way, however, can be subject to the provisions of Section 2. Indeed, as Franks pointed out, Section 2(2) makes the mere receipt of such information an offence, and precisely because it is an offence it is very rarely acted upon. As my right hon. Friend said, the good sense of the Law Officers of the Crown has made sure that because this is nonsense they have not sought to operate it. But the very fact that it is there is to muzzle, gag or deprive the Press and other media and the people of information which cannot by any definition be information the release of which would be prejudicial to the national interest or to national security or would threaten the national interest.
The hon. Member for Nottingham, South quoted The Guardian of 26th June, mentioning the raiding of the offices of the Railway Gazette. I believe it was the Sunday Times which published information which had come from the Department of the Environment about 1934 the future of the railway service. That, it would seem to many of us, could not conceivably affect national security. It was in the public interest that that information should be available. But the Government were so incensed that this document had got out of the Government machine that they actually raided the offices of the Railway Gazette to find out where the document had come from and how it had got out.
§ The Attorney-General (Sir Peter Rawlinson)
The hon. Gentleman must distinguish between the Government making a raid and the police, after making inquiries and investigations, searching for the document.
§ Mr. Hamilton
The right hon. and learned Gentleman is a lawyer. The fact is that those offices were raided, presumably because the police thought that there was a prima facie case of a criminal offence having been committed, and that criminal offence was that an innocuous document had been got out of the Department of the Environment. This is where the conflict lies between the executive and the public and myself. I believe that all those documents, all the alternative plans about the future of the railway system, ought by right automatically to be available to the media, without anyone having to leak them and without the police then taking it upon themselves to say that there was a prima facie case of a criminal offence having been committed.
§ The Attorney-General
Does the hon. Gentleman then go further and say that in those circumstances he is prepared to tolerate theft?
§ Mr. Hamilton
It is an extremely difficult question to answer. If the Government were as open as they pretend to be, there would be no reason to put that question. Governments ought to be conditioned into accepting that when the future of our railway system is in question—I take this as a good example—and there is a lot of controversy about the part which that system should play, if there are alternative plans before the relevant Government Department, their automatic reflex should be that the public has a right to know the various proposals in their possession. They should be conditioned, as an automatic 1935 reflex, to say that they will reveal them, and will let the public debate them before a decision is reached. That is what I mean by open government, and that is what Governments should mean by open government.
It is indefensible that the Government of the day are still sitting on those documents. The public are not made aware of what is in them. At the end of the day, the Government will say "We, the executive, have decided what the nation's railway policy will be", and only at that point will the public have a right to participate, and even then it may not have available to it all the alternative plans which were before the Minister when he formulated his policy.
In my view, the threats of prosecution which faced the Railway Gazette and the Sunday Times can have most undesirable effects on the working of our democratic processes.
Information is fed to the public in a variety of ways. We know about information from attributable sources and from non-attributable sources. We know about official leaks and unofficial leaks. We know that some newspapers and other media are more daring, more courageous, and more unscrupulous than others in obtaining and publicising information. I do not go so far as to say, as some of the newspapers said in evidence to the Franks Committee, that they should have access to everything. Clearly, that is going to an extreme. But we could go much further than we do at present, and I do not feel that the Franks recommendations make much contribution to that.
Referring to the Franks recommendation, The Guardian said in its leading article on 26th June:If liberally interpreted this reform could greatly help in opening to public discussion early matters which at present are disclosed only when important decisions have been taken. But even as it stands the Franks Report has at least one serious defect which could make nugatory the more open government at which it aims".Then it spelled it out:Under the proposals, a Minister would decide whether information came in the categories laid down as secret. If information were revealed which he was satisfied had rightly been placed in one of these categories, he would give a certificate to that effect to the court".1936 The Guardian then quotes a closely relevant part of the Franks proposals, paragraph 278.6:The prosecution should have to satisfy the court that the information fell within a category, and that it was so classified, but the court should not be concerned with the effect of the disclosure on the interests of the nation.The courts should, indeed, be concerned with that. If a court is satisfied that disclosure is in the interests of the nation, it should dismiss the case. That is what I should regard as proper.
The Guardian went on:But until the public interest is specifically acknowledged as a defence for newspapers charged under any new legislation, then that law is not acceptable. It could inhibit the discussion of embryonic plans which the voter is entitled to know about.There are other examples. Maplin is one such. I do not believe that the British public has had access to all the information on Maplin—nor, indeed, has the House—which would enable it to come to a rational decision on whether we should go ahead with it. I believe that the Government, for their own good or bad reasons, are withholding information on Maplin. I believe that they are doing the same on the Channel Tunnel, and I think that the same could apply, probably to the same degree, to the extension of Turn-house Airport in Edinburgh.
There are many matters lying completely outside the field of national security on which the Government must understand that if the gulf which now yawns between themselves and the public is to be narrowed they must practise what they preach. It is no good preaching open government unless one practices it, and the Government must condition themselves to letting the public have access to information of the kind which I have outlined in the examples which I have taken.
I agree with the Franks Committee that the present position is unsatisfactory and that changes should be made, but I do not consider that they should be made with the authority of an unofficial committee. I suspect unofficial committees. I do not know what machinery might be evolved, but I should prefer not so much an ombudsman but someone in this sphere equivalent to the Comptroller and Auditor General—a person, not a committee, completely independent of the Government machine. In this way, if 1937 there is a dispute or an organ of the media feels that there is information available but it is anxious or doubtful about disclosing it, it can go not to a Minister, not to a court but to this independent person who will himself come to a judgment. I do not accept the view which the Home Secretary called in aid from the Franks Report, that the executive must be ultimately responsible for deciding what is and what is not in the national interest or what is and what is not threatening national security. That is not enough. That is being judge and jury in their own cause.
We ought to think along the lines of having an independent arbitrator, a fearless person like the Comptroller and Auditor General, who would look at these cases. The media would know that they had access to this person, who would be fearless and impartial in his judgment of what was in the national interest and what was not.
§ 1.39 p.m.
§ Mr. Marcus Lipton (Brixton)
The document which we are debating represents a somewhat feeble attempt on the Government's part to redeem their election pledge to encourage more open government and eliminate unnecessary secrecy. The Franks Committee was set up in May 1971. After nearly a year and a half it reported. Some nine months thereafter the Government have found time to discuss the report. They have resorted to the old tactic of having the thing discussed on a Friday, with a very thin House, so that it becomes a nonevent.
We are now having a debate which is unlikely to be reported in tomorrow's newspapers because they will be busy with Wimbledon and other sporting activities, and it is, therefore, played down as a deliberate result of Government policy. The Government do not want too much discussion on the problems involved, and that is why only a tiny handful of hon. Members are discussing them today.
I am not questioning the motives of members of the committee. They have acted from the highest possible motives but I believe that their report is just a little half-baked. It is a somewhat amateurish production in which they have 1938 suggested various improvements. The Government have not pledged themselves to anything. The Home Secretary has said only that the Government will think about the matter and in the meantime listen to the views of eccentric hon. Members who are present on a Friday afternoon and want to speak on the subject. He has promised to take these views into account, and in the fulness of time—I doubt whether it will be in this Parliament—they will come forward with legislative proposals.
Endeavouring to put into legislative terms what the Franks Committee has recommended and what the Government want by way of amendment to those recommendations will be a fiendishly difficult task. I do not envy the job of the Parliamentary Draftsman who, on the instructions of the next Government after the present Government have disappeared, will be called upon to draft the necessary legislation. A change in mental attitudes is required here. It does not matter much what the statute contains, and it certainly will not do any good to try to amend existing legislation by substituting something which is unlikely to be an improvement.
Rather than turn the whole thing inside out and find ourselves landed with proposals or legislation which will not be satisfactory and which it will be most difficult to apply, I would almost prefer to allow the situation to remain as it is and to rely upon the discretion of the Government, which would, I hope, be very carefully exercised, to decide whether prosecutions under the Official Secrets Act should take place.
§ The Attorney-General
There is this distinction. It is not the Government who intervene and decide when a prosecution takes place; it is the Attorney-General and the Director of Public Prosecutions.
§ Mr. Lipton
That is why I am glad the Attorney-General is here today. He will be able to take note of what we understand and what we misunderstand. But the Government, or whoever is responsible for national security, are only now beginning to learn that it is a very difficult job to interpret the law and to bring to book people who are guilty of some breach of the Official Secrets Act.
1939 I maintain that we need a change in the mental attitude of Ministers and civil servants—particularly civil servants. At the time of the trial of Jonathan Aitken and others in 1970 a Foreign Office witness, whose name I shall forbear to mention but who was mentioned in the Press at the time, said in the course of giving evidence that it was not the business of any official to allow the Government to be embarrassed. Embarrassment and security, he said, were not really two different things. That is the root of the problem, because whoever decides these things associates embarrassment with security and a difficult situation arises.
In my opinion the recommendations of the Franks Committee do little or nothing to make government more open and more accountable to the public. The right to know cannot be allowed to depend upon the discretion of a civil servant. That is what it boils down to in the end. The discretion of the civil servant is backed up by the Minister, who in certain circumstances will issue a certificate to the court and the court will be denied the opportunity of finding out whether the Government's attitude or the attitude of the Director of Public Prosecutions or the Attorney-General is justified.
That is why I support the proposal by previous speakers that the decision whether to let the public know should be made by an independent body or court, not by those who might be embarrassed by the disclosure. It is arguable whether that body should be an ombudsman or someone like the Comptroller and Auditor General, or whether it should be a judge sitting in chambers. But there should be some such person who would decide that the certificate issued by the Minister was justified. I can see no objection to that. Surely the Attorney-General would not object to appearing before a judge in chambers and having to justify that a Minister's certificate was appropriate. The Press would not be present, nor would other parties to the case, but the public would be reassured to know that an independent person like a high court judge, or someone of equivalent status, had confirmed that the ministerial action in a particular case was justified.
1940 Ideas about secrecy are carried to the most ridiculous lengths. I remember, I think in 1971, when the daughter of Mr. Ludovic Kennedy was enrolled for a three weeks' vacation gardening course at Hampton Court Palace. Her job was to prick out the marigolds. She was required to sign a declaration under the Official Secrets Act. That is carrying secrecy to a ridiculous length.
Let us consider the rôle of the Press. There are chosen reporters and members of the Lobby who cover certain Government Departments, and they are dependent upon the good will of those Departments for much of their information. They inevitably acquire a vested interest in the Government's point of view. If they are naughty boys they are squeezed out. The editor will ask why the reporter is not coming up with the information that the other newspapers have and the reporter will lose his job. The Press is also forced into censoring itself by the D-notice system. There was wartime justification for the system, but there has been a ludicrous extension of it. For example, the Press is not allowed to disclose the name of the head of the Security Service, although it is known to every embassy in London and is frequently printed in foreign newspapers. Why do we go in for all this mumbo-jumbo? It is a kind of fetish inherited from the past.
The Railway Gazette case has already been mentioned.
Even if all the recommendations of the Franks Committee were enacted, they could not be expected to lead to more open government, because the extent to which open government will be allowed depends upon the discretion of civil servants, who shelter behind the Minister concerned.
The Government are acquiring increasing powers with the passage of years. Therefore, the public are entitled to increased information. I hope that the Government will heed the opinion of experts like the Editorial Liaison Committee, which represents the Newspaper Society, the Guild of British Newspaper Editors and the Newspaper Conference. Their view, which I cordially support, is that the implementation of the report could lead to just as much confusion and uncertainty as, if not more than, under the existing system.
§ 1.52 p.m.
§ Mr. William Hamling (Woolwich, West)
Listening to my hon. Friend the Member for Brixton (Mr. Lipton), I began to wonder whether we were talking about the same thing. He is rather worried because we do not know the name of the head of the Security Service. I do not want to know his name. All I am concerned about is the name of the Minister responsible for policy, not civil servants who shelter behind a Minister. Civil servants should be behind a Minister. The Franks Report is concerned about the responsibility of Ministers, not about civil servants, for documents.
The other interesting thing in my hon. Friend's speech was the idea that an independent person should examine a document and decide whether or not it should have been classified "secret or" top secret", there being no prosecution if he does not think that it should have been so classified.
§ Mr. Lipton
I did not say that. I said that the independent person would decide whether disclosure of the document was detrimental to the public interest.
§ Mr. Hamling
In other words, there would be no prosecution if it were not.
The report is concerned about criminal prosecutions for the disclosure of confidential information, and that is what the debate is about. We are not talking about other documents in respect of which there is no criminal prosecution. We are concerned with the classification of documents. My hon. Friend wants an independent person. But there is an independent person mentioned in the committee's proposals—the Director of Public Prosecutions, who is not under the instruction of a Secretary of State, and is impartial. Presumably, if we wrote into the statute book the name of another public official, perhaps some sort of ombudsman, he would fulfil exactly the same sort of job as the Director of Public Prosecutions would do under the Franks recommendation.
I am not concerned about the classification of the marginal documents, because for every document which might be called into question as a result of a criminal prosecution there must be many thousands of others marked "secret" or "top secret" in the files of the Ministry of Defence or other 1942 Departments, the disclosure of which might involve a criminal prosecution. I am concerned with the great mass of information which is denied to the public.
My hon. Friend the Member for Hitchin (Mrs. Shirley Williams) spoke about what I thought was a marginal case, whether a Minister had a right to disclose certain information. The thought that went through my mind was "I am not worried about that. What about the thousands of other documents that are obviously unknown to us because they are marked 'secret' or 'top secret'?" What we should be concerned about is the great mass of confidential information which is denied to us and of whose existence we cannot know, precisely because it is marked "secret" or "top secret".
I was very interested in the railway documents mentioned by my hon. Friend the Member for Fife, West (Mr. William Hamilton) and the exchange between him and the Attorney-General. I wondered whether a criminal case was involved because the document was stolen or because it was confidential. If an employee of the Railways Board passed on a document, not even for gain but just for information, to, say, the Sunday Times, would there be any possibility of any criminal case? Would an unclassified document stolen from a Department be the subject of a criminal prosecution? What is theft in this connection? Is it theft if a civil servant abstracts a document from a file and passes it on? When we examine some of these questions a little more closely, we see that they are perhaps not quite as simple as they might at first seem. Is the publication a criminal act or is it the theft?
This has been a rather difficult debate for me because I am against all censorship, at least in artistic expression. Sometimes people ask me "How can you be in favour of the Official Secrets Act if you are against censorship?" The answer is that it is because the problem lies in the field of public security and the security of the nation. Normally when we talk about censorship we are talking about the expression of ideas and views, about artistic expression. However, I suppose that, to be logical, if one is to be against 1943 censorship one will be against the suppression of any information, however vital to the security of the nation.
The debate is about where we draw the line. The Franks Report lays down certain specific categories. My hon. Friend the Member for Brixton, with his background and experience, will be the first to agree with the Home Secretary and other right hon. and hon. Members that the heart of the matter is the security of the nation. I am sure he would agree with that.
§ Mr. Lipton
An awful lot of stuff is marked confidential, secret, and top secret which does not need to be so classified.
§ Mr. Hamling
Of course, but where do we draw the line? Is my hon. Friend to take upon himself the job of going through every document in the Ministry of Defence or the Home Office, saying as he does so "I do not think that this should be confidential"? Somebody has to take that decision. It is the job of Ministers to take that decision.
It may well be that as Ministers and Governments change different views prevail. It is obvious from some of the examples which my hon. Friend the Member for Hitchin gave that succeeding Governments have taken different attitudes. That is what the debate is about.
We must be careful that while considering the matter we do not throw the baby out with the bathwater. My hon. Friend the Member for Accrington (Mr. Arthur Davidson) went far beyond what would be acceptable to most hon. Members. I asked him whether he thought that Cabinet minutes should be published in the Press. How far should we go in maintaining confidentiality? There are certain things about our defence forces which are well known. Vote A is published every year. There is nothing secret about that. No doubt foreign Powers can buy Government publications and see what Vote A says. They can look at the Supply Estimates and assess the military value of items of expenditure.
To that extent, we are a much freer society when dealing with military information than many other societies in the world. Our detailed expenditure is 1944 made available to the public. However, there are areas of military activity where information is not published. My hon. Friend the Member for Brixton says that he knows and that we all know that there are certain things which should not be classified. I do not share the confidence which he has exhibited because I do not know what information there is. My information is extremely limited.
I can remember when I was in His Majesty's Forces during the last war reading signal manuals about the Aldis lamp which were marked confidential. The Aldis lamp went out with wooden legs, but the manuals were marked confidential.
§ Mr. Hamling
Possibly. At the time we had a great deal of fun at the expense of some civil servants or Ministers who had decided that the information about the Aldis lamp should be marked confidential. Not only that; there were many other items of signalling equipment dating from the Crimea War which we were using in 1941 and 1942, the details of which were also marked confidential. We were still using helios and semaphore flags and arms which were used by Nelson. They were also regarded as confidential.
My information about these matters is extremely limited. It is possible only to detail cases with which we are familiar and on which we have information. I am glad that my hon. Friend the Member for Accrington has returned to the Chamber. I wanted to ask him whether he thought that journalists should be admitted to meetings of the Parliamentary Labour Party.
§ Mr. Davidson
Of course I do. It would not make very much difference because it all comes out anyway. I think that they should be admitted. Journalists should be given the maximum information about decisions.
§ Mr. Hamling
Will my hon. Friend express a view about whether journalists should be admitted to the meetings of the Shadow Cabinet? Where do we draw the line? Should they be admitted to meetings of the National Executive of the Labour Party?
§ Mr. R. C. Mitchell (Southampton, Itchen)
Does my hon. Friend the Member for Woolwich, West (Mr. Hamling) agree with me that probably the best definition of a secret is any matter which has not been discussed by the National Executive Committee of the Labour Party?
§ Mr. Hamling
That is fair enough. I make no comment. The strange thing is that my hon Friends and I often say that no meeting of the Parliamentary Labour Party and no meeting of the Shadow Cabinet is secret. It seems that the Press get to know what happens at such meetings because information is leaked.
§ Mr. Davidson
My hon. Friend knows perfectly well that he is going off on a red herring. Whether journalists should be at a meeting of the Parliamentary Labour Party is problematical. Decisions taken by the Parliamentary Labour Party do not affect the public because the Parliamentary Labour Party is in opposition and does not have the power to make decisions. However, the public should have access to decisions made by the Government because those decisions made by the Government because those decisions will affect members of the public.
§ Mr. Hamling
I am reminded of the Lobby Correspondent of The Guardian, Ian Aitken. When we were in government it was said after one Cabinet meeting that Ian Aitken must be under the table at every one of the Cabinet meetings because next day what the Cabinet had discussed appeared in The Guardian, including personalities and their points of view.
§ Mr. Hamling
In other words, my hon. Friend is saying that Cabinet discussions should be completely open and that hon. Members should be admitted to meetings of the Cabinet. Is that what he says?
§ Mr. Davidson
I do not wish to make a second speech. Of course I am not saying that, and my hon. Friend knows that I am not. He is confusing two totally separate issues. There is the issue of Cabinet meetings leading to a decision being made, and there is the issue of Ministers and civil servants deliberately 1946 suppressing information from the public because it is inconvenient or embarrassing to have that information disclosed, which the public has a right to know. Those issues are totally separate and my hon. Friend knows that perfectly well.
§ Mr. Hamling
I do not know what is in my hon. Friend's mind. That is the difficulty. I do not know where he would draw the line. I do not know where the critics of the recommendations of the Franks Report would draw the line. It is all very well for my hon. Friends whilsting opposition to express certain points of view, but I wonder whether my hon. Friend if he reaches the Treasury Bench—
§ Mr. Hamling
I do not know anything about my hon. Friend in some respects—for example, I do not know everything that is in his mind. However, I know many things about him and I should not be surprised one day to see him gracing the Treasury Bench. Would he in that capacity say that the public is entitled to know everything and that there are certain discussions between civil servants and Ministers which should be open to the public? The danger is that if that were so the decision-making would not take place during those discussions but elsewhere. It would take place perhaps at a caucus meeting or perhaps on the back stairs. This is always a danger. My hon. Friend the Member for Accrington must come to terms with the practical difficulties of our form of government. There are difficulties. These things are not as simple as they might seem.
What is the public interest? That is the nub of the matter. A Minister may have one view of the public interest and journalists another, and sometimes completely different, view. I often think that when journalists talk about the right of the people to know they really mean the right of journalists to know, that when they talk of the public interest they really mean not the interest of the public at large but the interest of the Press.
Yes it is clear that the Press itself is not always so forthcoming. Everyone knows that it has double standards—one standard when a Labour Government are in office and another when a Conservative Government are in office. The sort of information the Press is interested in 1947 when there is a Labour Government is quite different from what it is interested in under a Conservative Government.
For example, when was the last time that the Daily Mail had an article about prices? Some time ago it attacked my right hon. Friend the Member for Huyton (Mr. Harold Wilson) because, it said, of his silence on prices and incomes. It was easy for the Daily Mail to say that because it had never published a single line of any speech which my right hon. Friend had made on the matter, either in this House or elsewhere. It is easy to say that a man is silent if one gags him. That is what the Daily Mail did.
When some of us wrote to the editor of the Daily Mail pointing these facts out, he did not publish our letters at all. That is an example of the real interest of one particular newspaper in one particular matter. The truth is that the newspapers are not interested in the public interest; they are interested in the private interest of newspaper editors and proprietors. So when the Press talks glibly about the public interest, one must look askance at what it says.
§ Mr. Fowler
Does the hon. Gentleman not concede that on the same reasoning he could apply his argument to how the Government look upon information? Could not they, too, regard a matter as something which should remain secret simply because they want it to remain secret and not because it should remain secret in the national interest? In this way, would they not be using the national interest as an excuse and cloak?
§ Mr. Hamling
I am aware of that, but because one person is a villain and another person is also a villain is no excuse for either. Everyone knows how the Lobby is misused by the Government. I am not specifically talking about the present Government here because I do not know exactly how they use the Lobby, but one can guess and infer. But one thing I do know from my experience over many years is that Ministers of successive Governments have deliberately used the Lobby not to disseminate information but very often to disseminate misinformation or to deny information.
One of our troubles is in sorting out what is the public interest—it is the nub of the debate. The Franks Report in general terms was reasonable about it. 1948 It is only when one comes to particular cases that one begins to have doubts. There is a temptation for Ministers to like a comfortable life, to say "No—not those damned nuisances again", because bureaucrats tend to take such an attitude towards people who ask questions. They are like parents who say "Go into the garden and see what Willie is doing and tell him to stop it." They have that attitude towards anyone asking questions. They look upon them as nuisances.
The problem is how to draw the line. Basically, in our system of government, which relies to such an extent upon the frank exchange of views and frank exchange of information as a result of which decisions are made, the question is: at what level and at what stage in the process should we start giving out the information? I think that what the Franks Report said was fairly reasonable. The trouble is, however, the process of classification as a whole by Ministers. Who decides that classification and on what criteria? That is one of the general questions. I am afraid that we must at the end of the day leave it to the political sense and political consciousness of the Minister concerned.
The only party political point I shall make in this speech is that we in the Labour Party tend to be a lot more open than some of the more traditional parties. This is because by nature we are rather garrulous and chatty, and there is no doubt that Labour Party meetings are so much more open than meetings of other parties because we have been brought up to a much greater extent in an atmosphere of freedom of discussion, of free interchange and exchange of ideas. That is one of the hallmarks of the differences between our two major parties. The Labour Party tends to be much more open and to have a much more liberal attitude to classification and the giving out of information.
It is no accident that a great many of the reforms to which my hon. Friend the Member for Hitchin referred took place under the last Labour Government, and they represent a cardinal difference between us and the Conservative Party. One's attitude to politics, to people and to the rights of the people is often conditioned by one's party point of view, so perhaps the issue at the end of the 1949 day is not quite so arbitrarily decided as one might think at first sight.
§ 2.19 p.m.
§ Mr. R. C. Mitchell (Southhampton, Itchen)
I want to come to the defence, if he needs it, of my hon. Friend the Member for Accrington (Mr. Arthur Davidson). He started on the correct presumption that all those in authority have a vested interest in keeping things quiet, no matter whether they be in central Government, nationalised industries or large companies. We can take examples from all these areas to show how people in power have a vested interest in not allowing too much information to emerge. If we start from there, the view we must take is that everything we can do to increase the amount of information that goes to the public and interested parties is of itself a good thing.
It is very easy in speeches to attack the Press, but the Press is only a medium. I am not particularly interested in the Press having information just for the sake of its having it: I am interested in the Press having the information in order that it may pass it on to the public.
§ Mr. Mitchell
The same applies to radio and television.
By "open government" we should mean that everything possible must be passed on to the public at large. Wherever one draws the line, as one must, it should be in such a place that we err, if necessary, on the side of open government rather than of secrecy.
In defence, obviously we must retain fairly strong security secrecy, but even in that sector there is an argument that, if we were to pass on some nuclear secrets to President Pompidou at the moment, we could avoid his having his stupid tests in the Pacific, and this might be said to be in the public interest. If a person passes on a secret, to what extent is he committing an offence? If I had an important nuclear secret and passed it on to Russia or some other major Power, I would obviously be committing a very serious offence, but I am not at all sure that I would be committing such a serious offence if I 1950 passed on the information to a deaf and dumb headhunter in New Guinea. Under Section 2 of the Act, of course, I would still be committing a serious offence.
Very often such phrases as "public interest", "defence of the realm" and all those other grandiose expressions are used by Governments in order to keep from the public information which it is inconvenient to those Governments to have released. This applies to all Governments. Despite what was said by my hon. Friend the Member for Woolwich, West (Mr. Hamling), I do not think that in this respect there is any difference between the political parties. I do not think that basically the Labour Party is more open than the other parties; it is merely less successful in keeping things secret.
§ Mr. Mitchell
It is a talkative beast, yes.
What would have happened in this country if we had had, which God forbid, a Watergate situation? I suspect that the establishment and the powers-that-be would have been much more successful than the Americans in keeping it all quiet. I know that this impinges a little on another debate we shall have later. In America, had it not been for the Washington Post and the New York Times and all the power of the American Press, I am certain that a lot of the things brought to light in Washington would not have been disclosed. I suspect that, had it happened in this country, before very long D-notices would have been flashing around at all sorts of levels. It might eventually have come out, but I am pretty sure that it would have taken much longer than it did in America. One cannot prove it, of course, but I suspect that in this country the "old boy" network and the establishment would have got together and very carefully sat on the information.
This attitude goes right down the line. The same thing occurs in local government. The presumption is "We shall tell the people only what we think it is good for them to know." Recently the Press was admitted to local government committees. I should like to see figures of the proliferation of sub-committees 1951 that has come about since then. Once the Press is admitted to decision-making, the danger is that open government in that sense will consist of decisions being made at one step backwards. That would possible apply in national government.
The Franks Report is on the right lines but I do not think that it goes far enough towards opening up government. The presumption must be that the people—not just the Press, but the people—should have as much information as possible. A lot of this business of confidentiality, of "top secret" and "secret", is meaningless. I could give examples of documents marked "secret" which in my time I have seen. I have seen them, I must add, not in my capacity as a Member of Parliament: I never see anything secret in that capacity.
I signed the Official Secrets Act in 1945 when I worked on an Admiralty project called—it is rather a joke—" Anti-Radar". I may still be bound by that signature, but the purpose of the project was to find materials with which to coat objects in order that they would not reflect radar. A lot of time was spent trying to find something to deal with the V2 rocket, but nothing came of that becaue we found that, because of the speed of the rocket, we would not have time to do anything about it anyhow. When I was a young man of 18 I had no idea what I was signing. I was told "Sign this document", and I did.
§ Mr. Mitchell
I guarantee there is a file somewhere. When so many people have to sign the acceptance of the Act, I really do not know why Members of Parliament should not also sign it, though we are not privy to secrets. I should think that there was a case for doing that and even, though this may horrify some of my colleagues, for security screening.
The line between secrecy and open government should be drawn as nearly as possible in favour of open government. The secrecy angle should be limited to that information which is absolutely essential for the safety of the realm. At the moment the line needs to be shifted rather more in the direction of open government than is the case at present.
§ 2.29 p.m.
§ Mr. John Fraser (Norwood)
I start with two remarks about the nature of the debate. First, the hon. Member for Nottingham, South (Mr. Fowler) is an avid journalist but most of his back-bench colleagues appear to have thought that the debate itself was an official secret.
My second point is that the parent of the Official Secrets Act of 1911 was the Liberal Party. It is perhaps a pity that one or two Liberal Members have not attended today to account for the sins of their forefathers.
§ Mr. Hamling
If my hon. Friend looks at any of the recent Focus documents, he will see in each the claim that Liberals are great advocates of completely open government. No one in the Chamber now would think so.
§ Mr. Fraser
The starting point in this debate on the Franks Report is inevitably Section 2 of the 1911 Act. I hope we can get rid of that section as quickly as possible and that minor disagreements about the Franks Report will not stand in the way of that objective. One can give example after example of how ludicrous that section is. If the keeper of the maze at Hampton Court were to give, in the words of the Act, a "note, sketch or model" of how to get out of the maze, he would in theory commit a breach of the Act, and the recipient of the information on coming out of the maze could also be arrested.
There was a case in 1932 in which a clerk of the Probate Registry revealed to a journalist details of a will which were published on the very day on which the will was officially published. I do not condone a breach of duty by a clerk of the Probate Registry but it is ludicrous that he and the journalist should both have gone to prison. When the journalist appealed, the Attorney-General came to court in person to argue that the man should be kept in prison. No doubt the present Attorney-General would do no such thing, but it illustrates how ludicrous Section 2 is.
Section 2 ought to be repealed, for the reasons put forward by the Franks Committee. It is wrong that a breach of official information should be so closely tied up with an Act which deals mainly 1953 with espionage and treasonable activities. There is no connection between the two, and therefore the two matters ought to be divorced as soon as possible. I say plainly and unequivocally, as Mr. Justice Caulfield did, that the section ought to be pensioned off.
The protection of official information should be dealt with afresh. I do not think that Section 2 needs amending, clarifying, mitigating or restating. Nor, to use the Attorney-General's words in his evidence to the committee, does it need improving. It needs to go completely, and we need a new measure based on a different philosophy. I say that partly because Section 2 is all pervading, all-embracing and a catch-all. What is more, the manner of its passing in this House was grossly unsatisfactory. I suspect that there was a similar attendance in the House when that section as it became was passed in 1911 as there is today.
During the passage of the Bill, Clause 2 was never mentioned. When the Official Secrets Bill 1911 came up for its Second Reading, the Minister in charge merely nodded and it fell to a back bencher—he ought to be remembered for this—Mr. Frederick Handel Booth, to make the first speech on Second Reading. He said that he was a little worried about this provision, and Sir Rufus Isaacs, the then Attorney-General, reassured him by saying:There is nothing novel in the principle of the Bill".There were no amendments in Committee, but I am glad to say that Keir Hardie divided the House against considering the matter on Report immediately after the Committee stage. There was then the Third Reading, and again no Minister proposed the motion. It fell to Mr. Frederick Handel Booth to say something about it, and I think that his words should be remembered in case that sort of thing happens again. He said:I think … we are entitled to hear an appeal that in the interests of the public service this Bill should be allowed to pass so quickly … I do not want to be at all objectionable, but the way that this Bill is going through—a Bill which would have been all the better for a detailed examination, is somewhat distressing for me to see.1954 He was not trying to make too much trouble as a back bencher, but he received a clear and reassuring reply from the Secretary of State for War, one Colonel Seely, who said:If my hon. Friends will read the Bill they will see that though the actual change in the law is slight, … it is perfectly true to say that none of His Majesty's loyal subjects run the least risk whatever of having their liberties infringed in any degree or particular whatever."—[OFFICIAL REPORT, 18th August, 1911; Vol. XXIX, c. 2252–7.]That was the assurance given to the House, yet we know that the change was substantial. We know, too, from the Franks Report that the Government at the time knew exactly what the change was. They knew exactly what they wanted and, by Jove, they used it, and it is about time that Section 2, which was passed so rapidly, was repealed.
Section 2 ought to be repealed, because I disagree basically with the philosophy behind it. The philosophy is that it is a catch-all. It was not designed to protect confidences either in the Cabinet or in committee. It was not designed to protect confidences of the ordinary citizen. It was designed to catch everything and to be a blanket protection. We must make a fresh start.
Section 2 has been like a scarring wound, easily and quickly inflicted, lasting a long time, and ugly and debilitating. It must be expunged from the statute book and be replaced by a set of proposals, each of which can be justified on its merits, which are responsive to the needs of a mature democracy, and which have as their objective the laying of the maximum amount of information before Members of Parliament and the public so that they have data upon which to think, criticise and judge.
We need the maximum amount of information to enable us to reach our judgment as Members and so that the public can reach their judgment. Very often, the information that one needs has to be ferreted out. It is not the stuff that is supplied on a plate. It is the stuff for which one has to ferret that one needs. I have in mind the kind of information on the Housing Finance Bill that was ferreted out by my hon. Friend the Member for Salford, East (Mr. Frank Allaun). He was accused by the Government of purloining the information, but that purloined information, which was 1955 no doubt in breach of some official secret, became extremely useful.
The Guardian recently had to ferret out information about leakages of official information. It is often ferreted information that is most useful, just as the British Airports Authority's suggestions about Maplin were useful to the House and the suggestions in the Railway Gazette case were useful to members of the public in forming conclusions. We must have a system by which we can ferret out information as well as have it provided on a plate. We must be in a position to ferret out information which is not necessarily protected by classification.
There is another reason why we need more information. We need it for the traditional democratic control by elected Members over the executive as in the past. The textbooks say that control is the granting and raising of money and the control of expenditure, but the truth of the matter is that our judgment as Members of Parliament and the judgment of the public about the raising of taxation and the expenditure of money is often nearly useless unless we have information on which to reach a judgment. It is important to know not only how much money is to be raised, but why it is to be raised and why it is to be spent. Secrecy can be the enemy of democratic control by the traditional means of controlling Government expendiutre.
Sometimes the veil of secrecy to preserve confidentiality hides nothing at all. After all, the Foreign Office appears to have known precious little of Hitler's preparations for the last war. The Ministry of Defence and the Home Office knew little about the risk of a coup in Libya. No doubt they maintained the mask of secrecy and confidentiality. It is a spuriously credible attitude, but they must have made a number of judgments in the past without having any information at all, and we must be careful to ensure that the veil of secrecy is not used to fool people. After all, the confidence trickster's main stock-in-trade is that he does not know anything but he pretends to know something.
Secrecy brings about a certain cosiness of protection. Also, when one gets accustomed to the atmosphere of secrecy there is an unwarrantable fear of openness, and 1956 that is something of which we ought to beware. Perhaps I may give one personal example of what I mean. I was told that all hell would be let loose if the board of governors of a school included parents, teachers and boys, that somehow confidentiality would be broken and it would be difficult to reach blunt decisions. In London and in my own school we have done it, and we have gained everything that has been to our benefit by having a greater degree of involvement in and a greater knowledge of the affairs of the school by those concerned.
My local authority decided to make council committees open without having sub-committees which dealt with business elsewhere, and again this has worked successfully. Certain information must, of course, be kept private and confidential, such as matters dealing with children admitted to homes and care and so on, but, generally speaking, the stripping away of the veil of secrecy and confidentiality has in most cases been a glorious anti-climax.
There is nothing in the Official Secrets Act, as the Home Secretary said, which prevents any Government from indulging in open government and releasing more information. So I accept the hypothesis that each and every proposal for information to be protected by the sanction of criminal penalties must have its own justification.
Section 2 starts with general secrecy as being the rule, openness being authorised only in exceptional cases. If we have an Official Information Act, we have to start with the general rule that openness must be freed from criminal sanctions and that the only exceptions in favour of secrecy are backed up by criminal penalties. The exceptions must be proved it they are to have the protection of criminal law.
I look at the Franks Report in that light, and I welcome very much of what is in it. If the recommendations are taken literally, they mean that many Departments of State protected by the Act would be released entirely—the Departments of the Environment and Trade and Industry, the Home Office, apart from law and order functions, and the Departments of Health and Social Security, Agriculture. All these great Departments would be totally released if the Franks recommendations were 1957 accepted, and that would be an enormous advance.
The only restriction on these releases from secrecy would be the protection of Cabinet papers. The Home Secretary said he was open-minded about this, but one ought to make it quite clear that one does not want to see the confidentiality attaching to Cabinet papers being extended to all papers affecting domestic Departments and affairs, because that would mean that we should still have the effect of Section 2. I agree that documents which go to the Cabinet and have the Cabinet marking ought to have the great protection of the criminal law, but beyond that I cannot see any justification for using the sanction of the criminal law to protect papers which go up to the Cabinet Office or go back again to the Departments. A criminal code would create the same difficulties as Section 2 creates now.
Moreover, as the hon. Member for Nottingham, South said, the Government ought to be able—the hon. Member thinks that they are able—to look after themselves in these matters of the protection of information, and deciding which information is most sensitive must surely be a matter of internal Government security and internal discipline. We should be very loth to extend the criminal penalties beyond the areas where they are absolutely necessary. We have to ask ourselves whether it is secrecy or publication which is being protected. Protection of secrecy means that information never gets out at all. Once information has got out, surely there is no justification for using criminal sanctions to prevent its publication once the information is out and is no longer secret.
Therefore, I have a reservation about extending Cabinet privilege, for that would have an adverse effect on other Government Departments and the Government ought to be able to look after themselves.
In defence matters and whether there should be general protection for classified papers, I do not quarrel with the basic proposition in the Franks Report that the security of the realm should be protected in respect of classified information. One needs to use only very little one's imagination, looking at history and the 1958 present disposition of the Armed Forces, to realise how essential it is that that protection should continue.
My reservations are about the operations of security screening, and they were increased by the Home Secretary's remarks about protection at all levels of information and not simply that which is marked as confidential. My reservations are for these reasons. If confidentiality is to be extended to all Army matters, one will not be free to criticise, for instance, the way in which boy soldiers are recruited or looked after in the Army. One will not be able to reveal information about how people are kept waiting for court-martial. I remember when I was a sergeant in the Army revealing information. I did not know that it was secret. Somebody had been kept in custody 180 days awaiting court-martial so that people previously convicted could serve their sentences and come to give evidence. The information was revealed to the Press; the man got a rapid trial and a very slight sentence because of his period in detention. I can remember other occasions when the conditions of boy soldiers and of conscripts ought to have been made known. What I am hoping is that there will not be a blanket provision which will prevent legitimate criticism about the way in which the Armed Forces or the police or the prison service operate.
I can understand the reasons why things like military treaties are protected. One wants to protect the contents of a military treaty, but why protect the existence of treaties? To give an example, if this country had a secret military treaty with a country the nature of which would cause public concern if the existence of the treaty were revealed, I am certain that criminal sanctions should not be extended to protect the revealing of that kind of information.
That brings us to the point made by several hon. Members concerning the defence of public interest. My reservation is that there may be over-classification. I hope that the Home Secretary will accept the suggestion made by my hon. Friend the Member for Hitchin (Mrs. Shirley Williams) about an appeal to the Privy Councillors of all parties against a certain classification of information as a protection against a 1959 security clamp-down being too tight and preventing disclosure of information that the public have a right to see.
On foreign relations and defence, I suppose that the same principle ought to apply as applies to confidences which one has from ordinary citizens. If this country has been entrusted with a secret in defence or foreign affairs by another nation, that is the mutual confidence of two nations, and certainly that ought to be protected in the same way as, I hope, we jealously protect the confidences which come from ordinary citizens. What I am not happy about is extending that protection down, as the Home Secretary suggested, even as far as Government despatches. The Government ought to be able to look after their own despatches themselves. If they leak out, they should not blame journalists or members of the public but should blame themselves.
In a Committee this week we had experience of an exchange of notes between the Foreign Office and the Government of Pakistan being revealed. That was, no doubt, classified information, but in Committee on the Pakistan Bill we were able to see the exchange of documents which otherwise might have been kept secret.
What worries me is that taking classification right down through the Departments leads to the covering up of information because it might embarrass; it might lead to the saving of embarrassment rather than the protection of real secrets.
The same considerations apply to protection of information about the currency and the reserves as apply to protecting mutual confidences between nations and mutual confidences with individual citizens. We have to take into account the possible damage to the whole community by revealing to the public any changes in the exchange rates, but the classification of the information inside the Treasury should be narrowly applied and not be a blanket covering incompetence or embarrassment.
I know that some of my hon. Friends will disagree with me about having any criminal protection at all for financial information. The Factories Acts provide that if someone causes danger at work 1960 to his fellow workmen he shall suffer a criminal penalty. It could be argued that the disclosure of vital information about a change in the rate of exchange could have an equally damaging effect upon one's fellow citizens. The restriction should be extremely narrowly drawn. The protection far changes in domestic interest rates and Budget information should be the internal discipline of the Civil Service and the additional protection offered by Franks, which I fully accept, that people who make information available for gain should be prosecuted, both as to the giver of the information and the recipient.
On law and order, I do not dissent from the proposition that there should be an official information Act to protect information likely to be of benefit only to the wrongdoer. The public are entitled to information and comment on the state of our police force. We are already given information on the strength of our police force. We are entitled to information about the morale of the police force and about practices inside the police force which might affect our civil liberties.
We are also entitled to information about the condition of our prisons, not on matters of security which could assist an escape, but on prison routine. The difficulty is that the people who have the greatest amount of useful information to offer to the public and to Members of Parliament are probation officers, prison officers and prison visitors. They are the public who can make an intelligent contribution to public discussion about prison practice but they are restrained from doing so. The Howards would have been able to do little about the prison service had an Official Secrets Act been in operation at the time they made their investigations.
I come now to the dilemma of public interest being a defence. When The Guardian recently published information about leakages of private information kept by the Government, it was no doubt committing a breach of the Official Secrets Act. The newspaper had to commit a breach in order to check the information with which it had been supplied. No one would suggest that that newspaper, which did a valuable job, should be prosecuted. Therefore, we have 1961 to try to find a way of protecting newspapers and individuals genuinely acting in the public interest.
It is not easy to find the answer. To go to a judge in chambers or to argue the matter in open court would be fraught with difficulties about the revelation of other information which might be even more secret and damaging than the information to which the prosecution relates. We must face the dilemma of not prosecuting those who have acted genuinely in the public interest and—as The Guardian did—extremely responsibly.
I hope that the Government will find a way of raising public interest as a protection to the prospective defendant before prosecution. This could perhaps be done by the Minister's certificate that the information is classified being reviewed by an all-party committee of the Privy Council which would be able to consider not only whether the information was properly classified but whether considerations of public interest should override the classification.
Secondly, public interest could be protected by some method of appeal against the original classification where no prosecution is in train. If an individual who discovers something that he believes to be protected by an official information Act believes that it is in the public interest that it should be published, he should have a right of referral of that classification decision. This could be reviewed by the Parliamentary Commissioner, who carries the confidence of the Civil Service and the public. He could balance the public interest against the interests of national security and decide whether the information should be published.
A further difficulty is the question of the right to information. There is a great deal of information which will never be classified and about which we shall never know—the kind of information that needs to be ferreted out. We must try to find a way of redressing the balance. If the Government have the right to demand information from the general public, why should not the general public have the right under certain circumstances to demand information from the Government? The difficulty is to establish a 1962 system whereby the right to know can be turned into a reality. The right to know in civil proceedings is established by what is called discovery, where a person by affidavit has to say what documents he has, or where a person can be interrogated about what he did at a certain time even before the trial. We should look at ways in which the public right to information can be developed and made into a meaningful exercise. The public have a right to information, for example, about the Channel Tunnel and Maplin. We must try to develop this right to obtain information and data from Government sources.
The Franks Report deals with protecting the confidence of the citizen. In matters of privacy the Government have as great a duty as anyone else to protect confidence. The Government extract information from us. We have no choice about making our income tax returns. Firms have to make statistical and financial returns. Information which is given by the citizen to the Government, often under threat of penalty, should be protected. I warmly welcome the Home Secretary's statement that information that is gathered and information that is given should have an equal degree of protection.
I ask for an undertaking that information given to one Department will not be handed on to another Department for another purpose. Frequent examples are put before us of possible abuses of confidential information supplied by citizens to the Government. One example has come, even during the course of this debate, in a letter to my hon. Friend the Member for Hitchin from a large firm in her constituency. I will quote one sentence from it:From the enclosed papers you will see that the survey has been taken under the Statistics of Trade Act 1947 by which it is compulsory to provide a quantity of personal information about individual employees on a determined basis.To obtain information in that way is an intrusion from which there should be protection. That is not statistical information but personal, individual information which is being obtained and passed on to a Government Department. We want to be assured that that information is protected and that it will not be used by another Government Department.
§ Mrs. Shirley Williams
Could my hon. friend confirm that the individuals in that case were in no way asked whether they agreed to that information being provided to the Government Department?
§ Mr. Fraser
My hon. Friend the Member for Hitchin is absolutely correct. Those about whom the information was supplied will not have the faintest idea that the operation is taking place.
Another example of the situation appears in The Guardian this morning. It contains details of proposals to collate all medical records of patients, together with details about their jobs and backgrounds that would normally be given to a general practitioner. We should like an assurance that that information is protected and also that the slot into which it fits in the Department is a slot that is then completely closed and the information not made available elsewhere.
I was concerned this week to see a file from the Department of Health and Social Security dealing with one of my constituents. I suppose I should say that my constituent probably obtained it by improper means, but it was interesting to see what it contained. That file contained information which, in my view, was irrelevant, very personal, subjective and could be damaging. The file said:This young lady is in need of psychiatric treatment.There were then references to the young lady's "father figure", to her marital state and to her chanting "the usual Left-wing slogans"—all sorts of information in a file involving social security payments.
What surprised me even more was to learn that the file was not protected by the Official Secrets Act. The Guardian, the Daily Express and The Times would not be precluded by that Act from looking at the contents of that file. This is the one case in which everybody could justify the use of the Official Secrets Act to protect information, but apparently the protection does not extend to a file of that nature. I am asking for protection to be accorded to personal information, and that the protection should apply to information which has been supplied to one Government Department for one purpose and which is then given to another Department for an entirely different purpose. This should not be done.
1964 I do not dissent from the recommendations of the Franks Committee in respect of information sold for personal gain. But we must face another contradiction. If we are in favour of legislation to protect personal privacy—private information—and of legislation to prevent the sale of official information for personal gain, why should such a precept apply to central and not to local government? If it is right to protect personal information from central sources, it is surely right to protect it in local government. If the sale of official information is to be regarded as a criminal offence in relation to central Government, then it should be a criminal offence in relation to local government. There cannot be a distinction in principle between the operation of a Department of State and the operation of an enormous metropolitan county, and we should not.
Finally, I wish to ask the Government to give some idea of the programme of legislation on this important subject. When are we likely to have a White Paper on the Franks Report, and when will a Bill be presented? We have had to wait far too long to have the present legal system changed.
On 18th August 1911 the House made a serious error of judgment in passing Section 2 of the Official Secrets Act without any discussion whatever. If the House had any defence at all, it was that no official information, article, note or document was supplied to the House and the House had had no cause to know or reasonable grounds to suspect what the Government were intending at that time. That lapse must be remedied soon in relation to official information, which must be narrowly drawn and which would have as the basic philosophy that all affairs of government should be open unless the case for protection is strongly made out as an exception.
§ 3.4 p.m.
§ The Attorney-General (Sir Peter Rawlinson)
In the four hours of the debate on this important topic, we have had, although not many hon. Members have taken part, a considerable variety of views. I do not accept the comment of the hon. Member for Brixton (Mr. Lipton) that because a debate takes place on a Friday it is necessarily being tucked away. When there is a matter of interest 1965 before the House, Members of Parliament come here in great numbers on a Friday.
The motion which we are discussing on this important topic is the familiar "take note" procedure. It is expressed in that tradition way, and the object is to canvass the views of Parliament on the Franks Report.
I must make it clear that this debate is necessarily about amendments to the criminal law, as the hon. Member for Norwood (Mr. John Fraser) ended by emphasising. Many of the other matters that have been canvassed will be of more interest or of stricter relevance perhaps when we debate the Younger Report on Privacy.
I will endeavour to show that these issues are not one-sided. I am often asked at Question Time why there has not been disclosed to a wife the whereabouts or earnings of an errant husband. I am frequently pressed on such matters by hon. Members on both sides of the House. At the same time, the suggestion has been made that we must retain secrecy between different branches of government. However, there comes a time when a decision has to be made whether it is better to breach that principle to satisfy and help people in particular circumstances.
The hon. Member for Fife, West (Mr. William Hamilton) gave his qualifications for speaking in the debate. He said that he had no legal brains and that he suspects and dislikes all Governments. My qualification is that I am a lawyer and have been a member of various Conservative Governments, so it is perhaps apt that I should reply to the debate.
I have taken part in previous debates on legal matters not unrelated to this debate. I recall the debate at the beginning of 1970 on the Second Reading of the Freedom of Publication (Protection) Bill introduced by my hon. Friend the Member for Ludlow (Mr. More). At that time I had been made the chairman of a committee of the Conservative Party established by the then Leader of the Opposition, now the Prime Minister, to consider defamation, contempt of court and official secrets. We had on that committee distinguished journalists and editors. I had a particular interest in 1966 not only chairing that committee, but working with those editors and journalists. I found that they recognised, perhaps even better than those of us who were lawyers, the problems in this area of official secrets. I have had experience in a newspaper office. For many years I was a libel reader when I was first called to the Bar. To that extent I know how a newspaper office works, how a newspaper is compiled, and the difficulties that even in those days journalists suffered at what they described as the "hands of the damned lawyers". I have also appeared as counsel for most of the leading newspapers. Therefore, I can claim some knowledge of the working of newspapers and of journalists and of the problems with which they are faced. I found that many of those distinguished journalists and editors who served on the committee to which I have referred saw this problem with great clarity.
On the other side, there are the particular and special interests that arise out of the duty that a Government have to the people of the country.
The task which that committee set itself—it was purely a committee of individuals joining together—was to try to find the right balance, to draw the line, between the right of public knowledge and comment and the duty of any Government to safeguard the public interest. These are competing terms relating not only to official secrets but to the law of defamation. There are competing interests between a person's right to comment and the right of a person whose behaviour has been commented upon to have a fair trial without having others prejudicing that trial by publicly commenting on the case.
The difficulties in this sphere are not simple or easy to reconcile. Most hon. Members know this only too well. But what has always stuck in my gullet as a lawyer is the way that Section 2 is drawn and the use that has had to be made by successive Law Officers over 60 years of their discretion to make sure that foolishnesses were not perpetrated or continued. There are cases which the police investigate and strictly may be breaches of the Official Secrets Act, but which come before a Law Officer to decide whether it is appropriate that criminal proceedings should be brought. The fact 1967 that there should be such a wide catchall section in an Act of Parliament seems to me to be distasteful to criminal law, which ought to be clear and certain. Bat others would have said that it was a convenient way of looking after the interests of the State provided that there were Law Officers who would apply good sense in not bringing prosecutions in cases when there should not be prosecutions.
I must confess—and it appears in the committee's report—that when I gave evidence before the committee, having commented on Section 2 and having expressed the gross distaste with which I regarded it, nevertheless I was not able to put before the committee any proposals in substitution. I was not able to present to the committee a solution of this problem whereby a correct balance could be drawn between the interests of the individual, the commentator and the newspaper, on the one hand, and the duties and the rights of the State, on the other hand.
I am glad that the Government welcome the Franks Report, in the terms expressed by my right hon. Friend the Secretary of State for the Home Department, who said that the general principles of the report are acceptable, but invited comment and discussion on these various difficult aspects, which is the purpose of this debate.
Whatever anyone may think of the detail of the committee's proposals, there has been here a serious attempt to provide an alternative to Section 2. It is upon that, and in the light of the comments made here and elsewhere, that the Home Secretary says we shall build.
There are only three alternatives. One is to leave Section 2 alone and go on as we have been going. Another is to scrap Section 2 and replace it with no criminal penal provision whatsoever. I may be wrong, but I think my hon. Friend the Member for Nottingham, South (Mr. Fowler) rather had this in mind. The third alternative is to devise, as Franks has done, a more precise offence aimed at the mischief which Section 2 was previously designed to catch.
The difficulty confronting the view of my hon. Friend the Member for Nottingham, South—I am not sure that it is followed by all journalists, although it is by a substantial number—is that damage 1968 can be caused not only where there are bad intentions but by leakage which may not be due to any bad intentions. It may not be a deliberate betrayal. It may be due to the giving of certain information at a certain time which, to the giver of that information, may not be regarded as of great importance. To scrap and to repeal all such criminal sanctions, in the opinion of the committee, went too far in reducing the protection of necessary secrecy in certain areas of national interest.
It is fair to point to the qualifications of the members of that committee, which consisted of a considerable number from the Government side as well as from the media and communications. They found that it was not acceptable just to scrap it all, but that there must be some alternative, and that alternative they have now put before us.
§ Mr. Fowler
Doubtless through my mistake, my right hon. and learned Friend is slightly misunderstanding my position. I accept that a balance has to be struck, and my point is that if legislation along the lines of the thoughts which the Home Secretary put to us comes forward I hope that consideration will be given to allowing the defence of public interest. That was my major point. I certainly do not suggest the scrapping of it. It is just that I find the present proposals unsatisfactory.
§ The Attorney-General
I am sorry if I took what my hon. Friend said far too generally. I now appreciate what his view is, and it is, if I may say so, an important view, since it is in the area of that particular defence that the whole concept of the Franks proposals rests, for it rests wholly, in my view, upon classification.
Classification must be done by somebody, and it must be certified by somebody. Throughout, I think, it has always been the accepted view that if one abandoned Section 2 one went into a classification system. But, then, classification by whom? The Franks Committee's answer is that it must be done by the Minister. If there is classification by the Minister—several hon. Members have made proposals about this—how does one then devise an alternative to the Minister, or an appeal from the Minister?
1969 I confess that I find grave difficulty here. As my right hon. Friend the Home Secretary said, the very essence of classification is that the person who is responsible for classifying must know everything about the subject in the sense of what it affects and what it is affected by. This knowledge could not be produced in open court because that would do more damage than good. It would mean that one could not have a prosecution at all, because one would have to say "If I have to produce certain evidence, there cannot be a prosecution because that would be against the public interest".
If, as has been suggested, there were prior to prosecution an appeal to somebody else from the Minister, what does that other person or body have before it? Again, the answer must be "All that the Minister knows". Should these matters be considered in that way by a judge or by lawyers? I say this with great respect to the judges and to the members of my own profession, but are they the right people to make such decisions?
It remains, does it not, a matter for the Minister, who is answerable to the House of Commons? I realise that it is said that there is a Government majority behind a Minister to sustain him when he has made such a decision. But my experience—there are others here with longer experience of the House than I have—is that in these matters the House of Commons adopts very much a House of Commons point of view, and if a Minister has taken a decision which he is not able to sustain or which he is not able to satisfy the House he took rightly or properly, the House does not give him the support which he would normally expect from those who are his supporters.
§ Mrs. Shirley Williams
Will the Attorney-General be good enough to consider very carefully the suggestion regarding the Privy Council? I have consulted those who have held his office previously, and they think that there might be a possible answer here, and it would have the great merit that the question of party advantage, whichever party was the Government, would be ruled out.
§ The Attorney-General
I reaffirm what my right hon. Friend said, that all that he and I say here today is said by persons of completely open mind, listening to the views which are expressed. If I am commenting now about certain difficulties which immediately occur to me, that in no way implies that the proposals which have been made are being rejected, and I assure the hon. Lady that that suggestion will be closely examined.
On the proposal for the Privy Council, we are then faced with the question: who is selected to serve, who is to select the members and appoint them, and from which party should they be drawn? It may involve the Privy Councillors in a considerable amount of examination of documentation, which it may or may not be wise for a body such as this to examine. These are my immediate reactions but I can give an assurance that this suggestion, the suggestion for a judge in chambers and the suggestion for a Parliamentary Commissioner, will be looked at.
However, it is the certificate which is at the heart of this matter, which is the hinge of the whole of the committee's proposals. At first examination, it seems, as my right hon. Friend said, that this must be a matter for the Government of the day and that, therefore, it must be for the appropriate Minister to be able to make that decision and to grant the certificate.
§ Mr. Peter Archer
Does the Attorney-General agree that there is one respect in which anyone else looking at the information has a qualification to decide which the Minister lacks, namely, objectivity as between the Government and the media?
§ The Attorney-General
I am not sure. I know that extravagant accusations are laid by Ministers and politicians in general against the Press and, equally, by the Press against politicians and Ministers. I am not saying that a Minister drawn from any quarter of the House would not be able to consider, and is not capable of considering, what is in the public interest. We could look at some of the prosecutions which have been brought. The hon. Member for Norwood has drawn to our attention the case of the Probate Registry, which seems to be a surprising decision and a decision 1971 unlikely to be taken nowadays. But most of the Section 2 offences where prosecutions have been brought are in the sphere of what most will accept as being something that is a real official secret.
Therefore, I believe that Ministers of whatever party would be able to discharge this task. If they flagrantly did not discharge it—if a certificate were given flagrantly or extravagantly—would it be expected that the Director of Public Prosecutions, the Law Officers of the day, and the Treasury Counsel would not make clear that they felt that it was an extravagant certificate? Would not Parliament be acquainted with that fact, and would not Parliament be able to pray in aid those views?
§ Mr. R. C. Mitchell
May we take an analogy from what is clearly coming out of the Watergate affair, that the public interest was defined in the United States by the equivalent of Ministers as being the continuation of the Nixon administration? How do we avoid that happening here?
§ The Attorney-General
I shall not be drawn into the Watergate affair. We read quite enough about it from a distance of 3,000 miles. All I ask is that we put this matter into the context of our system of Government. Ministers have to stand at this Dispatch Box and can be brought to this Dispatch Box by hon. Members to answer for their conduct. I hope and believe also that the Law Officers will do their duty in respect of prosecutions without regard to party or political interests.
The certification proposal is really the nub of the recommendations. If we accept the secrecy of certain types of official information we have to go a long way towards accepting the Minister's certificate. Everything that has been said will be considered, and I make no pronouncement or final comment here and now. I believe that, as my right hon. Friend has accurately said, it is very difficult to escape from the conclusion that it is a matter for the Minister alone to certify. But every alternative which has been proposed will be examined with a completely open mind.
§ Mr. John Fraser
May we make it quite clear that in suggesting an appeal we are not attacking the integrity of Ministers 1972 but are taking into account an entirely different issue. The Minister may well, with integrity and certainty, say that certain information is classified, but he may not recognise, from his own Department's point of view, a totally opposing public interest. I should like to give a simple example. No doubt secrets about the Suez operation could be properly certified by a Minister as confidential and protected for security reasons, but other people may genuinely and strongly hold the view that that information, although secret, should be revealed for reasons of public interest. That is the contradiction that we are trying to resolve by our suggestions.
§ The Attorney-General
The hon. Gentleman must take into account that I am assuming future legislation in the context of the different categories set out in the Franks Report, which cover various defence matters—a, the Armed Forces of the Crown and matters relating thereto;b, military weapons, stores and equipmentand so on, which I believe few people would dispute should be regarded as official secrets.
But where there is a conflict between public interest and public curiosity, or the interest of persons to disclose what actually happened, a decision must be made whether disclosure would be contrary to public interest in the context of the security or safety of the State, of serious injury to the State.
I hope that what I am saying will not, through my misuse of language, lead people to misunderstand me. What I am saying is that those are some of the problems that we must consider in the context of all the submissions that have been made.
The proposal for a new Official Information Act, which gets rid of Section 2 prosecutions and tries to introduce into this branch of the criminal law a more rational and more sensible approach, is generally to be welcomed.
I believe that the proposed test of whether, contrary to his official duty, a Crown servant has been in breach of his position, which in the past has given difficulty, is a matter which a jury can understand and which can be dealt with.
All these matters have presented difficulty to the committee, and doubtless will 1973 present difficulty to the Parliamentary Draftsman when the decision to legislate has been made. Everything that has been said in the debate, together with all the representations that my right hon. Friend hopes and expects to receive, will be given the closest attention by him in order to achieve what we all want, a fair and proper balance between public comment and the safety and security of the State. That is what we aim to achieve in the legislation which we hope will flow from the report.
§ Question put and agreed to.