OFFICIAL SECRETS ACT (Hansard, 19 July 1978)

§ The Secretary of State for the Home Department (Mr. Merlyn Rees)
I shall, with permission, make a statement about the reform of section 2 of the Official Secrets Act 1911.
The Queen's Speech at the opening of this Session stated that legislative proposals would be brought forward for the reform of section 2.
The White Paper published today sets out with some precision the substance of the legislation with which, building on the work done by Lord Franks and his committee, the Government propose to replace section 2.
The House will recall that I gave a broad indication of the Government's thinking in the statement I made on 22nd November 1976. I said then that we had concluded that section 2 should be replaced by an official information Act on the broad lines recommended by the Franks committee but that there should be certain departures from the committee's conclusions. In particular, there should be no criminal sanctions for the disclosure of information in the economic sphere or for Cabinet and Cabinet committee documents, irrespective of their content and security classification.
We also proposed to create a separate protected category for information relating to security and intelligence, and we proposed to cover more defence and international relations information than Franks had recommended, although we now conclude that the test for criminal sanctions in these fields should—as Franks recommended—be the test of causing serious injury rather than being merely prejudicial to the nation.
We also make clear in the White Paper that we intend to extend the protection which the Franks committee envisaged for confidences of the citizen. We propose not just to protect any such information given to the Government but to protect confidential information held by the Government about private individuals and concerns, from whatever source it has come.
I shall not attempt now to deal with all the other detailed proposals in the 537 White Paper, but I would draw the attention of the House to an important safeguard we intend to introduce, which is additional to those in the Franks report and which relates to the classification of information. It will be for the AttorneyGeneral—or, in Scotland, the Lord Advocate—to authorise the entering in evidence of a certificate by the departmental Minister concerned that information which is the subject of a prosecution was properly classified at the time of its disclosure. This is set out in paragraph 24 of the White Paper.
Over the years, section 2 has attracted much criticism because of its catch-all character. The legislation we propose will answer that criticism, and the White Paper itself will allow a discussion to take place before legislation, and not, as with section 2, after legislation had been introduced.
With regard to open government in general, it is the view of the Government that reform of section 2 is not only a much-needed improvement of the criminal law but a necessary preliminary to greater openness. Our prime concern so far has been to increase the flow of information to the public in the manner announced by the Prime Minister on 24th November 1976. Much more information is now being released to the public, who are thus better informed than ever before. Indeed, the working assumption is now that, once Ministers have reached their conclusion on a particular major policy study, associated factual and analytical material will be published. In addition, the Government have continued to keep generally abreast with the experience in open government overseas.
With regard to legislation to put the Government under a statutory duty to disclose information on demand, we have not yet examined in depth how overseas experience might be applied in our own constitutional system. This is a complex matter, and it will need to be studied carefully. As the White Paper states, we shall initiate a more detailed study than has so far been possible of overseas experience and its relevance to our own constitutional system, in order to see what further action, whether by means of legislation or by non-statutory amendments, may be desirable, and we shall announce our conclusions from this study in due course.

§ Sir M. Havers
We thank the right hon. Gentleman for his statement. We generally welcome the White Paper, and in particular the second thoughts about a freedom of information Act.
The principal difference between us and the Government lies in the manner of review of classification. Is he aware that we still find it unacceptable that the Minister responsible should be judge and jury in his own cause, even with the safeguard in the Attorney-General's consent to the prosecution, which will place an additional and unnecessary burden on him? We must ask the Home Secretary to undertake to reconsider this matter and perhaps to adopt our suggestion of three wise men—a method used by him when considering deportation in security cases.
Is the right hon. Gentleman aware that it is of the utmost importance that the public should be satisfied that information to which any Government seek to apply criminal sanctions is properly and fairly classified for good reasons? In our view, the public would not accept a certificate from a Minister as conclusive evidence, as it would be in a court of law under this proposal. An impartial and independent committee is essential to achieve confidence in the new system and is a condition on which we would insist in any new legislation.

§ Mr. Rees
The right hon. and learned Member for Wimbledon (Sir M. Havers) referred to the White Paper in general, and I am grateful for what he said. He also referred to the subject of classification, which I have found one of the most difficult points to resolve for the purposes of the White Paper. I think that it is a matter for discussion.
I was a member of the Franks committee. It was felt on that committee that classification was essentially a Government responsibility. Although in most cases the Minister would not know the classification on a document, when the time came to put this in certificate form to a court he would have to take the responsibility. That was our view on the Franks report and that is why the additional provision has been included.
I believe that this and many other matters need to be discussed. When section 2 was included in 1911, there was no discussion of the matter. We want there 539 to be discussion, and I am quite prepared to hear any points made.

§ Mrs. Castle
Is my right hon. Friend aware that there will be widespread disappointment at the Government's failure after four years in office to introduce an access to information Bill as promised in their manifesto four years ago? If the Government are asking us to rely on their stated intention to publish more background information about the decisions reached by Government, will he begin by placing in the Library of the House of Commons the Civil Service assessments of experience in the United States and Sweden in this sphere—which clearly has influenced the Government in evading a constructive decision in this respect?

§ Mr. Rees
My right hon. Friend could not have heard what I said. There are two aspects to openness in Government apart from reform of section 2, which is a necessary precursor. One is the provision of information by the Government—the analysis and the working documents. I said that the amount of information we have on that aspect so far is not sufficient for us to go further. There are also other reasons in terms of legislative time. We need to find ways of analysing that aspect. We had a look at it in the Franks committee.
I am sure that, while there may be general agreement in principle as to the way to go forward, it is no use our believing that the method used in the United States, with the presidential form of government and the way Congress is organised, is necessarily the way, in practice, that we should follow in this country. By all means, when we have the analysis, it would need to be published in some form to aid the discussion of the next steps, if they are to be taken in a legislative fashion. Justice published a document recently with the idea that this should be done in a non-legislative way. Let us look at all this.

§ Mr. Powell
Is the right hon. Gentleman aware that secrecy of deliberation and internal communication is always of the essence of all government and that therefore the attempt to invade it is uniformly self-defeating and results only in government erecting new barriers to defend its necessary privacy?

§ Mr. Rees
I agree with one aspect of what the right hon. Gentleman said, and that was talked about in the Franks committee. There is always the danger that if one removes restrictions, some will try to find means of achieving, like a self-sealing tank, the retention of the system that is sought to be changed. If the right hon. Gentleman will look at the White Paper, he will see that we are saying that the analytical documents on which judgments are made should quite properly be made available to the general public. That is a different matter from the aspect about which the right hon. Gentleman was talking and on which I am in sympathy with him—that if people are to take harsh judgments in the interests of the community, the judgment discussion is something that we should look at very carefully before revealing it to the general public. The analytical documents are a different matter.

§ Mr. Arthur Lewis
May I support my right hon. Friend the Member for Blackburn (Mrs. Castle) and ask the Home Secretary whether he is aware that the Labour Party conference, the TUC and all other progressive organisations have come out unreservedly in favour of a freedom of information Act? The Home Secretary said that this has been going on since 1911—Franks and all that. May I take it from his reply that he wants still further time, after four years of broken promises, for even more consideration? If we get back to office at the next election, will he say that we shall make a further promise to which we shall give consideration after another four years? Let him believe me, the public will not be fooled again.

§ Mr. Rees
The hon. Gentleman referred to 1911. In my early days in the House, and right through the 1960s, the debates that took place here were about section 2 and its catch-all nature. All the reports, including that from Justice, leading up to the Franks committee, were on that basis. That is the document that I have put to the House. In terms of the next step, my hon. Friend's view is that there should be a statutory right on demand to look at documents. That is a different turn of discussion and the one that we now need to discuss.

§ Mr. Arthur Lewis
The Government have already had four years for that.

§ Mr. Rees
If the hon. Gentleman looks at it, he will find that it is a most difficult subject. What was said in the Queen's Speech was that there would be legislative proposals on section 2. That is what is now being honoured.

§ Mr. Hooson
Does the Home Secretary not owe it to the House and the country to explain why the Government, having taken a period of four years for gestation, have delivered an absolute mouse of a White Paper? Does the Home Secretary not realise the great danger of replacing section 2 with something much more credible and effective without compensatory benefits by way of open government? Is not the truth of the matter that the Government, and particularly the Cabinet committee, have found that their manifesto commitment has been overborne by the view expressed by the right hon. Member for Down, South (Mr. Powell), which is not borne out by the experience of other countries? Would the Government not be much more honest if they said bluntly to the House that they have come to the conclusion that no more open government is possible because, after four years, they have been unable to produce any proposals for more open government?

§ Mr. Rees
The hon. and learned Gentleman is wrong. There are two aspects of open government, and three if we include the point that I took as read, namely that I have no doubt that the reform of section 2 has an overbearing influence in government which is important. There are two other aspects in terms of openness of government. A great deal has been done in the past year in the provision of documents.
The next step forward would not be a mouse. I read the interesting document published by the Liberal Party, but I should clear up one point that is misunderstood outside. No one in any quarter of the House, including the Liberal Party, is suggesting that the nine exceptions in the Public Information Act of the United States, including matters of defence and foreign policy secrets, internal personnel rules and matters expressly excepted by statute, do not represent a core of information in the United States, 542 as in Sweden, which is almost the same as the exceptions in section 2. Reform of section 2 necessarily comes first. The discussion from that point onwards can then be much more clear and sensible.

Several Hon. Members
rose—

§ Mr. Speaker
Order. May I appeal to the House for brief questions and answers because the business for today—the Wales Bill—falls under a timetable motion? I want to call as many hon. Members as possible and I shall be abe to do so if there are brief questions.

Mr. Engish
Is my right hon. Friend not seriously concerned about the fact that it is much more than four years since the Franks committee was set up and that the system of government cannot be very good if it takes that length of time to produce this ridiculous mouse of a White Paper, as the hon. and learned Member for Montgomery (Mr. Hooson) called it? Would my right hon. Friend tell us when he intends to produce proposals on section 1, which is an important section related to matters prejudicial to the safety of the State, but which has recently been used rather more widely than was ever intended?

§ Mr. Rees
In terms of my hon. Friend's last few words on section 1, it would be better if I made no comment at all. However, in all the discussion of the last 14 or 15 years, there has been no question of reforming section 1—the spying clause. My hon. Friend might think that it is necessary to do that. I have no reason to believe that the question of section 1 is exercising the public, and the exceptions in the United States Act to which I referred reinforce me in that very strong view.

§ Mr. Mayhew
Do not paragraphs 46 and 47 of the White Paper demonstrate clearly why it would be wasteful, unnecessary and impractical to honour the pledge in the Labour Party's October 1974 manifesto to introduce legislation to put the burden on authorities to justify the withholding of information?

§ Mr. Rees
This matter ought to be discussed to take into account what was said by the right hon. Member for Down, South (Mr. Powell) and other views in the House. I do not think that it is impractical in principle, but we need to 543 think the matter out very carefully. In the sections of the White Paper to which the hon. and learned Gentleman referred and the following section, I have attempted to lay the base on which a discussion can take place. There is complete agreement on the fact that there is some information that it would be wrong, on grounds of the security and safety of the State, law and order and so on, for us to reveal. That would be wrong, and no one is arguing that that should be done.

§ Mr. Heffer
My right hon. Friend referred to the Justice report that has recently been published, but is he aware that he has received a report produced by the Labour Party—it has not yet been published but I hope that it soon will be—that makes it clear that we are in favour of a freedom of information Act, and that such a measure has been drafted and worked out by the machinery of government committee of the national executive? Will he give us a pledge that that report will equally be taken into consideration? It contains the views of the party to which he belongs, and the party is pledged to introduce a freedom of information Act as part of its manifesto commitment and part of its basic philosophy? Contrary to what Opposition Members say—those who claim that we want to bring in an east European Communist State—does he agree that there are no freedom of information Acts in Communist societies and that that differentiates us clearly from the sort of nonsense that we have heard from the Opposition Benches?

§ Mr. Rees
It is extremely easy—I suppose that we shall get a great deal of it—to make comparisons with Eastern Europe when talking about the party to which my hon. Friend belongs and to which I belong. Since its birth our party has had a proud history of having a form of Socialism rather different from Socialism in non-democratic countries.

§ Sir Frederic Bennett
They are all the same thing.

§ Mr. Rees
That is the sort of nonsense to be expected from the hon. Gentleman. The matters that my hon. Friend has raised will be considered in a wider discussion that we need to carry forward. It is important that we do that. It would 544 be wrong to take decisions without a deep-seated investigation.

§ Mr. Fletcher-Cooke
The right hon. Gentleman says that criminal sanctions are to be removed from large parts of section 2. Will he also consider whether the new and trendy action of breach of confidentiality—ostensibly a civil action but one that produces much the same results as criminal actions—should be removed? If that is not done, what the Government will be taking with one hand they may be taking with the other as well. The criminal sanction removal may not be enough to secure freedom from the new trendy action of breach of confidentiality.

§ Mr. Rees
I shall consider what the hon. and learned Gentleman says. The White Paper is about reforming the catchall character of section 2. Of course, I shall consider the point that the hon. and learned Gentleman makes.

§ Mr. Christopher Price
Is my right hon. Friend aware that one small mercy for which we have to be thankful is that, contrary to the impression given by my right hon. Friend the Prime Minister last week, the Government are saying that they are keeping an open mind on further legislation to move towards a full official information Act? Will he tell us whether he is also keeping an open mind about the elements of section 1 that impinge on greater freedom of information? Does he agree that journalists who are honestly going about their business according to professional ethics should not be put in jeopardy of prosecution under section 1?

§ Mr. Rees
In referring to section 1, the spying clause, my hon. Friend has not mentioned a particular case, but I suspect that that is what he means. It would be much better if I said nothing about that. I want to leave section 1 alone. As for the Government being open minded, if my hon. Friend considers what my right hon. Friend the Prime Minister said last week he will find that there is no distinction to be drawn. My right hon. Friend was referring to section 2 as the main part of the White Paper.

§ Mr. Warren
Has the right hon. Gentleman's attention been drawn to Early-Day Motion No. 75 in my name and in the names of nearly 100 hon. 545 Members that calls for a freedom of information Act? Will he admit that his failure to introduce such an Act four years after his party's manifesto commitment demonstrates that his party and his Government have been beaten by the Whitehall machine in the Government's dying days?

§ Mr. Rees
I do not think that that is right. We have not been beaten by the Whitehall machine. There are realities of life that have to be taken into account. The parliamentary timetable is one such reality. I hope that the mandarins of Whitehall are not to be regarded as a reason for a freedom of information Act not being introduced. If there is any fault in that respect, it is mine and mine alone and not that of civil servants.

§ Mr. Alexander W. Lyon
Is my right hon. Friend aware that the concern about open government is concern about improving the qualities of decision-making in Government and that some of us would disagree with the view of the right hon. Member for Down, South (Mr. Powell)? Many of us think that the quality of government would be raised by improving the Select Committee procedure so that it might share in the decision-making process before decisions are made by the Government. As for confidential information, is it not right that we should be making progress on the right of privacy, on which our newspapers are a good deal less clamorous?

§ Mr. Rees
I agree that privacy is important. We shall be publishing the Lindop committee report shortly. The Select Committee procedure is a matter not for me but for my right hon. Friend the Lord President. I have learned in my time of office and when associated with decision-taking that when some people write about the way in which decisions are taken some years after the event they do so in a most curiously subjective manner that seems to have little bearing on what I remember of the way in which decisions were in fact taken.

Several Hon. Members
rose—

§ Mr. Speaker
Mr. Arthur Latham.

§ Mr. Michael Latham
rose—

§ Mr. Speaker
I am sorry. Mr. Michael Latham. I do know the difference.

Hon. Members
So do we.

§ Mr. Michael Latham
Is the right hon. Gentleman's review concerned with the decision whether to release a document that is now more than 30 years old? There is concern that some documents that could now be released have been kept under wraps for reasons not entirely connected with security. In particular, what is happening to the Government's current review of the official history of intelligence of World War II?

§ Mr. Rees
I should be happy to respond to that question, but it does not come under the heading of the Official Secrets Act. The 30-year rule is a different aspect.

§ Mr. Kilroy-Silk
Is my right hon. Friend aware that the reasons he has given for his failure to implement our manifesto pledge are totally unconvincing? They will not convince anyone in the House or outside. It is said in the White Paper that the Government are in favour of more open government and of producing documents behind policy decisions, and that is the instruction of the Prime Minister. Will my right hon. Friend now take the opportunity of listing the titles of all the documents that he will produce that lie behind the production of the White Paper?

§ Mr. Rees
I thought that I might be asked the question that my hon. Friend raised at the end of his remarks. We have promised to provide the analytical documents which are available before a decision is taken. The analytical documents on section 2, which is what the White Paper is about, is the Franks report. Beyond that there are matters of judgment.

§ Mr. Kilroy-Silk
We have waited four years.

§ Mr. Rees
If my hon. Friend disbelieves what I say, I must stress that the analytical documents other than the Franks report are practically nil because otherwise judgments are involved. Information for the next step forward is a different matter. I regard these matters as extremely important. When my hon. Friend talks about people outside being worried, I can only express the wish that at the election he finds more than two or 547 three people in his constituency who are concerned about it.

§ Mr. Corbett
Shabby.

Several Hon. Members
rose—

§ Mr. Speaker
Order. I am keeping my eye on the clock. I want to be fair to those who wish to speak on the Wales Bill. However, I shall call the hon. Members who have been rising to ask questions, if they are brief. If hon. Members are not brief, I shall not be able to call their colleagues. Miss Richardson.

§ Miss Richardson
Does my right hon. Friend accept that the commitment in the Labour Party manifesto was not restricted to section 2 in the reform of the Official Secrets Act? In the manifesto we talked about replacing the Official Secrets Act. I beg my right hon. Friend to believe that in the view of quite a wide section of the public, as well as Labour Members, section 1 requires some consideration. It is no good my right hon. Friend tossing off that suggestion, saying that it is the spying clause and that we shall not discuss it. May I have an undertaking from him that at least he will consider section 1?

§ Mr. Rees
I have made that clear in terms of the manifesto and the Queen's Speech. With regard to the way in which section I has been put to me, I should rather wait until certain legal proceedings have taken place.

§ Mr. Skinner
Is my right hon. Friend aware that when the right hon. Member for Down, South (Mr. Powell) talked about the essence of government being secrecy, or words to that effect, he was the person who told the House some time ago that the immigration report that had been leaked was a report that we should all hear about? The hon. and learned Member for Montgomery (Mr. Hooson) spoke of this statement by the Minister being a mouse. But was he not a member of the same small group of people who together managed to organise what some might term a conspiracy to prevent people from learning everything about insurance cards and shot dogs? This White Paper represents an attempt to explain the unexplainable. Will my right hon. Friend therefore pay more attention to those who have argued that something should be done about section 1?

§ Mr. Rees
It would be wrong for me to make any comment at the moment on section 1—the spying clause. The story of the last 15 years has been concerned with section 2.
With regard to what my hon. Friend said about immigration—the right hon. Member for Down, South can speak for himself—I shall publish tomorrow the response to the Select Committee's report. The publication of a Select Committee report, which is meant to be public, is rather different from the subject that we are discussing. Judgments on the basis of facts which are put in front of anybody are a different aspect of the matter which we have been discussing today, report, which is meant to be public, is another question. In my view, there is a case for discussing the analytical material.

§ Mr. Dalyell
In paragraph 27, the question of personal details given to civil servants by social security applicants is mentioned. How are confidences held by a Government Department, however acquired, requiring protection by the criminal law from improper disclosure to be given such protection? Can any action be taken on that matter?

§ Mr. Rees
I shall certainly discuss the practical side of that with my right hon. Friend the Secretary of State for Social Services. We are saying that that sort of information should have the protection of the criminal law. Those working in those Departments know that, unlike other areas, if they transgress in this respect, with the penalties which are laid down here, they will be dealt with by the force of the criminal law. I feel very strongly that we should make clear to civil servants concerned—and this is one aspect of it—that information from the population as a whole should be firmly protected.

§ Mr. Rooker
Is the impression given in paragraph 42 that the Government published the instructions issued by the then head of the home Civil Service a correct interpretation? If so, it is not. Sir Douglas Allen's letter was published only after it had been leaked to the press. Does my right hon. Friend accept that one of the functions of those who aspire to and hold political leadership in an alert democracy is to seek to hold up a vision to their fellow citizens and to educate them 549 on the problems of running a complex society? Is he aware that his answer to my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) showed that he is fit neither to hold nor to aspire to such leadership?

§ Mr. Rees
My hon. Friend may believe that if he likes, but he should have listened carefully to what I said. Ministers have responsibilities, and so do Back-Bench Members.

§ Mr. Litterick
I share the general disappointment about the contents of this document, but it was gratifying to hear the Home Secretary say that he was mindful of the need to protect information on individual citizens collected by the State. However, it is greatly disappointing that there is nothing in this document that will provide the individual citizen with the means of getting access to the information that the State holds on him. The Home Secretary said nothing, and there is nothing in this document, to give any guarantee to the British people that information on individual citizens held by the State will not be divulged to another State under, for example, Common Market laws. Will the Home Secretary now give us an assurance or reassurance on both those points?

§ Mr. Rees
My hon. Friend talked about access. We have agreed to differ with regard to the White Paper, which is about section 2.
As regards providing information on individuals to a foreign State, I have no knowledge of that.

§ Mr. Litterick
We talked about it last week.

§ Mr. Rees
I shall look at it very carefully. I should be extremely angry if information about me as a citizen were passed to anybody else.

§ Mr. Andrew F. Bennett
The Home Secretary will appreciate the considerable disappointment on these Benches that he is not going to publish the background papers and that no background papers exist on this document. Will he at least now assure us that the letter by the head of the Civil Service has had some practical effect? Further, will he publish in the Official Report a list of documents which have been released during 550 the last 12 months which would not have been released but for that letter?

§ Mr. Rees
Information has been given in Hansard. I think that we are talking about two different points. With regard to section 2, the Franks committee was the basis on which we worked. The provision of the other information to which my hon. Friend refers is a separate matter. I shall look at that and bring it to the notice of the Civil Service Department and the Minister concerned.

§ Mr. Ronald Atkins
Despite what has been said, does my right hon. Friend agree that there was a definite commitment in the Labour Party manifesto to replace the Official Secrets Act, not that we would discuss the possibility and how best to do it? Is there any reason why we in this country should be later than Sweden and the United States in introducing a freedom of information Bill, for example? Ts it because we regard democracy as less important and government as less accountable?

§ Mr. Rees
If my hon. Friend looks at the White Paper, he will see that there is a section dealing with that principle. My strong view is that section 2 is vital as a precursor. That does not invalidate a further step forward. Our methods and parliamentary system are different from those of the two countries mentioned by my hon. Friend. I do not believe that he is arguing that, if we ever do this, it should he on exactly the same lines as in the United States and Sweden, because that would be wrong.