HC Deb 22 November 1976 vol 919 cc1878-88
The Secretary of State for the Home Department (Mr. Merlyn Rees)

I will, with permission, Mr. Speaker, make a statement on the Government's intentions on the reform of Section 2 of the Official Secrets Act 1911. This section, which makes it a criminal offence to disclose official information without authority, has for some time been regarded as too broad in its scope. It has been described as a "catch all" and there has been uncertainty about its interpretation and enforcement.

The Government have concluded that this section should be replaced by an Official Information Act on the broad lines recommended by the Franks Committee. The Committee, whose membership included representatives of Parliament—including myself-and the media, and which presented a unanimous report, recommended that the sanctions of the criminal law should be strictly limited in their application. It is, of course, with the criminal law that we are here concerned and not the practices and rules about disclosure of information in the public service. The normal sanctions of the rules of conduct against disclosures of official information will continue to apply.

The Franks Committee recommended that the criminal law should apply to disclosure of information relating to foreign affairs, defence and internal security, and currency and the reserves when that information is classified "Secret" or above or, in the case of certain defence information, classified as "Defence—Confidential", and also to the disclosure of Cabinet documents, confidences of the citizen and certain information in the field of law and order, such as information that would facilitate crime. Information in these three last categories was to be protected regardless of any security classification.

The Government accept the Committee's general approach to the problem, but in considering the categories of information that ought to be protected by the criminal law we think it right to draw a clearer distinction between home and economic policy on the one hand and security and intelligence, defence and international relations on the other. The unauthorised disclosure of any official information is wrong because it is unauthorised. But in the domestic area it will generally result in embarrassment to the Government of the day and not in any serious damage to the national interest. In the fields of security and intelligence, defence and international relations on the other hand, such damage may well result.

In the economic sphere the Government have reached the conclusion that a criminal sanction is not justified. It is relevant that the Franks Report was prepared at a time of fixed exchange rates. In any case it would not, in the Govern- ment's view, be appropriate to distinguish between currency and the reserves and, for example, domestic interest rates and monetary and fiscal policies. Faced with a realistic choice between applying criminal sanctions to a wider economic category and the exclusion of economic information from their ambit, it seems right to us that the criminal offence should not extend to economic information.

The Government also propose to depart from the Franks recommendation that there should be a criminal sanction for the disclosure of Cabinet and Cabinet Committee documents, irrespective of their content and security classification. The Committee rested the case for inclusion of this category on the need to safeguard the collective responsibility of the Cabinet.

The doctrine of collective responsibility is fundamental to our system of government and the Government totally accept that the documents of the Cabinet and its Committees deserve special protection. They do not, however, consider that the protection should consist of applying criminal sanctions to the disclosure of documents irrespective of their content and classification. The bulk of Cabinet and Cabinet Committee documents deal with domestic affairs. The protection of these documents is a matter basically of trust and good sense among colleagues. It is also a matter of ensuring that the principles and special procedures for distributing and handling Cabinet documents are properly observed and improved where necessary. In that connection the report of Lord Houghton's Committee on Cabinet document security will be published shortly and the Government's conclusions on it made known at the same time.

The Government have, therefore, concluded that Cabinet and Cabinet Committee documents should be protected by criminal sanctions only when, by their content and security classification, they fall into one of the other categories so protected.

The Government accept the need to protect by criminal sanctions the Franks Committee's proposed categories of confidences of the citizen and certain law and order information, as well as that of disclosure for gain, to which the report of the Royal Commission on Standards of Conduct in Public Life is relevant. These depend upon special considerations for which we believe that the Committee has made a case.

In the areas of security and intelligence, defence and international relations, the Government have concluded that some rearrangement and extension of the Franks categories is required. Information relating to security and intelligence matters is deserving of the highest protection whether or not it is classified. The Government propose, therefore, that this should form a separate category.

In defence, the Franks Committee recommended that confidential information relating to military weapons and equipment should be given the special marking of "Defence—Confidential" and should be protected by criminal sanctions. The Government have concluded that confidential information of a sensitive and potentially damaging kind goes rather wider than this in both the defence and international fields. It extends to certain areas of defence policy and strategy and of international relations where unauthorised disclosure would be prejudicial to British interests, to relations with a foreign Government or to the safety of British citizens. The Government therefore propose to extend this Franks concept to become "Defence and International—Confidential" and to define it somewhat more widely than Franks.

The Government believe that their conclusion represents a system more liberal than that proposed by the Franks Committee, but one which secures the highest degree of protection for information the disclosure of which may cause serious harm to the interests of the nation. Legislation on this basis will be introduced as soon as is practicable, but it cannot be during the coming Session. Although much detail remains to be worked out, I thought it right to inform the House of the Government's broad intentions.

Mr. Whitelaw

Is the Secretary of State aware that, as legislation on these matters cannot be introduced during the coming Session, there is clearly a case for the publication of a White Paper or a Green Paper so that there may be considerable discussion on a very important matter which affects a great many people in this country? Therefore, what is the point of making this statement today instead of publishing a White Paper or a Green Paper to promote discussion?

May I make two further points? First, I do not think there will be any doubt in the House that the security of the State must come first, and if questions of national security are involved the right hon. Gentleman will have the full backing of the vast majority of right hon. and hon. Members in taking the steps which are necessary in the interests of national security. He will also have such support on questions of private gain. If disclosures of information for private gain are involved, there will be widespread agreement in the House that they should come within the realms outlined by the right hon. Gentleman.

Having said that, would it not be better now to publish a paper to enable us to have a full discussion in the House on this subject instead of making a statement on it at the end of the present Session?

Mr. Rees

It is right that we should have further discussion in the House. I am surprised at the criticism about giving information to the House. I thought that the complaint always was that no information was given to the House. It was important that the statement should be made so that the Government's intentions might he taken into account. Although the operation of the Act is a matter for my right hon. and learned Friend the Attorney-General, it will no doubt be open to the Attorney-General to take into account the Government's intention to introduce legislation on the lines I have indicated in considering whether to bring proceedings under Section 2. For that reason alone, it was vital that a statement should be made.

The question of private gain is the other side of the medal with regard to economic information, because it is one thing not to have criminal sanctions for the disclosure of economic information but another thing if the person who leaks the information uses it for private gain; and that would be covered under the Franks Report.

Mr. Beith

Does the right hon. Gentleman accept that, although the details of his proposals, if eventually implemented, will be most welcome, his statement can be no more than a softening-up process for the absence of a measure on this subject from the Queen's Speech? In view of the fact that it has featured in previous Queen's Speeches and has been the subject of regular promises, how can the Home Secretary justify the enormous delay in implementing recommendations in the Franks Report?

Mr. Rees

There is a lot of Home Office legislation that I should like to put through the House. I have no doubt that when we discuss the question of devolution in the next Session the Liberal Party will be very helpful in ensuring that the discussion does not become too extended, and then there may be time for legislation on this subject. We shall see.

I ask the hon. Gentleman to take note of what I said to the right hon. Member for Penrith and The Border (Mr. Whitelaw) about the need to be clear about the Government's intent. If the hon Gentleman considers the blunderbuss approach of Section 2 and changes which have taken place over the years, he will realise that there is no doubt that it is right that the Government should make clear their intent.

Mr. Edward Lyons

What will be the effect of the proposals on the citizen? Are the Government satisfied that the Franks Report was too restrictive in its original proposals?

Mr. Rees

Water has gone under the bridge since I served on the Franks Committee and I have indicated to what degree we shall liberalise the Franks Report. The Government, like the Franks Committee, accept that the mere receipt of official information should no longer be an offence. That answers my hon. and learned Friend's question about the ordinary citizen. A number of detailed recommendations on this matter have still to be considered.

Mr. Hugh Fraser

The Home Secretary spoke at such a great rate that I thought that he referred to the Attorney-General as the "Eternal General". May I put three questions to him?

First, is it not fair to say that what the Secretary of State has proposed could be more restrictive than the present system under which Section 2 has fallen into desuetude after the judgment of Mr. Justice Caulfield and should be put out to grass? Secondly, surely the right hon. Gentleman will agree that his confusion about categories will make the situation worse. "Top Secret" will become "Super Secret: to be eaten by recipient". Therefore, the categorisation of information is the most stupid way that one could conceive for identifying it.

Thirdly, may I ask the Secretary of State how he managed to confine within his statement four different reports dealing with totally different matters, including Cabinet secrecy?

Mr. Rees

On the last point, the right hon. Gentleman misunderstands the situation. On the point before that, there is no confusion. On the first point about there being more restriction, the answer is "No". I recommend the right hon. Gentleman to read my statement before he asks questions.

Mr. George Cunningham

First, -foes my right hon. Friend accept that the important distinction is not between unauthorised information which is released with disciplinary consequences and that which is released with criminal consequences but between information which can be released and information which cannot be released? Cannot he do a great deal next year, even without a Bill, to ensure that more information within Whitehall is releasable without any con sequences at all?

Secondly, does my right hon. Friend realise that if we are to rely on disciplinary consequences to punish 'm offence it may well be that the loss (4 a pension to the person concerned is a great deal more severe in its effect than imposition of a fine?

Mr. Rees

On the first point, I think that my hon. Friend is right and chat my right hon. Friend the Prime Minister will have more to say about the question of open government. On the question of civil servants who abuse their position in government, my view—and it came out in the Franks Committee—was that there should not be criminal sanctions in every case but that the matter should be treated as it would be treated if a person was working for private industry and he broke the rules of the industry for which he worked.

Mr. Amery

I do not wish to express any views on the merits or demerits of the statement of the Secretary of State, but are we not running up against an important constitutional question? The Home Secretary has made a statement indicating the Government's intention. He has said that nothing will happen in the next Session. He has also indicated that the Attorney-General will be guided by his statement. What interpretation will be placed by the courts? Is it proper that legislation should be changed or modified by administrative fiat without changing the legislation?

Mr. Rees

Perhaps the right hon. Gentleman will read carefully what I have said and will look at what is said in the Franks Report on the role of the Attorney-General and his consent on Section 2 aspects of the Official Secrets Act 1911. No doubt it would be open to the Attorney-General to take into account the Government's intention. Plainly the Attorney-General, when giving his consent under the "catch-all" aspect of Section 2, does not at the moment recommend that criminal proceedings should be taken in every case. That is one of the aspects of the broadness—the "catch-all" nature—of Section 2.

Mr. Michael Stewart

Can my right hon. Friend say whether the recommendations of the Radcliffe Committee confirming the secrecy of Cabinet documents are now in force and in particular whether members of the present Cabinet have given the kind of undertaking suggested in those recommendations?

Mr. Rees

I cannot talk particularly about that matter because frankly I do not know the answer, but I shall bring it to the notice of my right hon. Friend the Prime Minister. On the question of ministerial memoirs, plainly one must take into account the time when a memoir is published. If my right hon. Friend will look at the Franks Report, he will see that it is recommended that the declassification of documents should take place more regularly, and the report deals with the nature of the information that is revealed. Those two aspects would have to be taken into account.

Mr. Aitken

Is the Secretary of State aware that his surprisingly premature announcement looks at first glance like a step in the right direction but may well turn out to be a step backwards because it immediately creates many problems of definition? For example, the whole exercise will be meaningless unless the classification rules are also changed, because many Government documents are already over-classified. Finally, is the right hon. Gentleman aware that the free Press in a free country will find it almost impossible to welcome his statement until it has seen the terms of the as yet nonexistent Bill?

Mr. Rees

I suggest that the hon. Gentleman should read again the Franks Report in the light of what I have said. Of course over-classification is an important matter, but the hon. Gentleman cannot have it both ways in relation to a free Press. If he agrees with the announcement which I made last week, he will, I believe, recognise that the law or the rules should apply overall and not just to people, perhaps like himself, whom he might regard as in a special position.

Mr. Lipton

Will my right hon. Friend take it that he deserves to be congratulated, since it appears that the statement which he has made today has not been leaked to the Press beforehand, which indicates that our security arrangements are being improved?

Mr. Rees

That is the way I conduct my business.

Mr. Adley

Perhaps due to the unhappy coincidence in timing of the statement which the Home Secretary made last Thursday about Mr. Agee and Mr. Hosenball, there may be some confusion, so will the right hon. Gentleman make clear beyond peradventure that, as he holds the view that those two gentlemen threaten the security of the country and the personal safety of individuals in the service of the Crown, nothing which he has said today in any way changes the circumstances surrounding the cases of those two gentlemen?

Mr. Rees

I was talking about the Immigration Act, not the Official Secrets Act.

Dr. M. S. Miller

As the reduction in commercial value on the market would immediately be enormous, will my right hon. Friend give an undertaking that he will hold up legislation until my right hon. Friends the Members for Bermondsey (Mr. Mellish) and for Anglesey (Mr. Hughes) have managed to publish their memoirs?

Mr. Rees

It all depends on what they say.

Mr. Lawrence

Is the House to understand the significance of what the Home Secretary has said to be that any persons who might be contemplating releasing to the public documents which are now covered by Section 2 of the Official Secrets Act may be guaranteed immunity from prosecution because of the advice which the Attorney-General is likely to give?

Mr. Rees

No, it cannot possibly be so. The last few years have shown that if anybody releases a document which matters not at all—be it remembered that Section 2 covers everything—the practice, not what I have said, is that nothing will be done. That is what the Attorney-General has shown by use of his consent. But if anybody gives out documents which are secret, defence-confidential, or the like, the full panoply of the law will be brought into play. What has been put to me is that if the blunderbuss is replaced by an Armalite rifle, one will get to the point rather than the general.

Mr. McNamara

My right hon. Friend will recall that an Armalite rifle is a lethal instrument. Will he confirm that the basis of his statement today will be the criterion on which the Government will act from today, and, if he cannot produce a Bill this Session because of the pressure of parliamentary time, will he consider producing a draft Bill some time this Session so that we may have a good chew on what the Government intend?

Mr. Rees

There is not much time left this Session, but I shall certainly take into account what my hon. Friend has said. The role of the Attorney-General in giving his consent is a matter for him, and I cannot alter that.

Mr. Whitelaw

Do not these exchanges prove conclusively to the Home Secretary that this highly complicated, sensitive and extremely important matter cannot be dealt with on the basis of a statement suddenly produced without any real notice to the House? Would it not therefore be far better, since legislation is not to be produced in the next Session, that the matter should proceed by a Green or White Paper and full debate in the House?

Mr. Rees

That must be so—we cannot proceed on the basis of a statement to the House—but since it is a long time since the Franks Committee reported, I am sure that a declaration of intent by the Government in the way I have stated it is important. We shall not reach the point of legislation shortly, and of course there will have to be more information since the Franks Report, as the right hon. Gentleman will see, covered a great deal more ground than the aspects of it which I have raised.

Mr. Whitelaw

Will the Home Secretary therefore undertake that he will produce a Green Paper or a White Paper which may be subject to debate?

Mr. Rees

Of course I undertake to give further information. I am sure that it should not be a Green Paper, because the Franks Report, in a sense, is "green". We need something far "whiter" on which people can think.

Mr. Newens

Reverting to the question asked by the hon. Member for Christchurch and Lymington (Mr. Adley), is my right hon. Friend aware of the wide disquiet raised by the procedure for dealing with aliens who are accused of offences involving security? Will the legislation which my right hon. Friend proposes provide an opportunity for changing the situation so that those who are not British citizens can be provided with evidence of the acts of which they are alleged to be guilty, so that they may answer then in the same way as others may, since the present position, as instanced by that case, is totally unsatisfactory?

Mr. Rees

However the law may be changed in the future, I can certainly conceive of circumstances when the information could not be provided because of the repercussions it could have in the security field.