§ Mr. Deputy Speaker (Mr. Bryant God-man Irvine)
Before we enter upon this debate, Mr. Speaker desires me to remind the House that what is commonly referred to as the Colonel B case and the original Official Secrets Act prosecution out of which it arose are still sub judice and that no direct references to the merits of those cases may be made.
In the Colonel B case, a petition for leave to appeal to the House of Lords has now been lodged. As regards the original prosecution under the Official Secrets Act, it is understood that the trial is due to take place in September.
Mr. Speaker is aware that not all Members agree with the resolutions of the House on the sub judice matters. But, as he said before, if the House regards the rule as too restrictive, it is open to it to alter it. However, until that is done it is Mr. Speaker's view that it should be enforced.
That having been said, there would be no objection to references being made to the operation of the law in circumstances similar to the case which is sub judice, provided that reference is not made to the particular case or to any legal proceedings which have so far taken place in this matter. That should be sufficient to enable any hon. Member to make any general point that he wishes to make while still preserving the rules by which the House has bound itself.
§ 7.3 p.m.
§ Sir Michael Havers (Wimbledon)
The subject that we are to debate for the next three hours was last debated in June 1973. I make it clear at the outset that I am not concerned with Section 1. Clearly, acts of spying must be made subject to heavy penalties. The only comment I would make is that, if the proposals that we are putting forward are accepted, it would be a very good thing to call the Official Secrets Act, after Section 2 is taken out of it, a better name—for example, the Espionage Act.
Section 2 is the section which causes anxiety. The history of how Section 2 came into being bears a little examination. The first Official Secrets Act was in 1889. That dealt with spying and breaches of official trust. Crown servants or Government contractors, if under contracts they were obliged to maintain 1257 secrecy, were forbidden to pass information.
Between 1909 and 1911 there were a number of leaks of Government information to the Press. Therefore, the authorities at that time decided that it was necessary to extend criminal sanctions to the receiver of confidential information, whereas previously they had been directed only at those who gave it. In 1911 the Act was passed, and it made it an offence to communicate or to receive classified information. All kinds of official information were covered by Section 2, however unimportant or trivial, without the need to prove any unlawful intent.
On 18th August 1911 the Bill passed through all its stages, and Clause 2 was not mentioned in the debates. The Attorney-General of the day, Sir Rufus Isaacs, said that there was nothing novel in the principle of the Bill. Second Reading took up three columns of the Official Report, Committee stage one column and Third Reading four columns, during which there was argument whether an amendment should have been accepted on Report. That was the way that the House approached the problem. We have had the misfortune ever since, and particularly since the last war, of having to manage the law as it was created in 1911.
The Press made no comment, although it had commented on previous Bills which the Government had sought to bring forward but had to abandon. That may have been because the Bill went through the House at the time of a constitutional crisis over the Parliament Bill and attention was distracted more by that than by what appeared to be a slight tightening up of the legislation of the previous century. The House was no doubt also worried at that time about the increasing threat from Germany and anxious that the espionage provisions in the new Section 1 should become law as soon as possible. Clearly, there was no real understanding in the House of the enormous scope covered by section 2.
Section 2 has been described as the "catch-all" section. It is extremely well set out in the Franks Report at page 14, paragraph 17:The main offence which section 2 creates is the unauthorised communication of official information (including documents) by a Crown servant. The leading characteristic of this 1258 offence is its catch-all quality. It catches all official documents and information. It makes no distinctions of kind, and no distinctions of degree. All information which a Crown servant learns in the course of his duty is 'official' for the purposes of section 2, whatever its nature, whatever its importance, whatever its original source. A blanket is thrown over everything; nothing escapes. The section catches all Crown servants as well as all official information. Again, it makes no distinctions according to the nature or importance of a Crown servant's duties. All are covered. Every Minister of the Crown, every civil servant, every member of the Armed Forces, every police officer, performs his duties subject to section 2.The stock answer to the criticism which is well set out in that paragraph in the report is that no prosecution can take place without the leave of the Attorney-General and that he will prosecute only where important breaches have occurred. That is right, but it still leaves a measure of uncertainty. In our view, any criminal statute should be certain. For example, journalists are entitled to know where they stand. It is not enough to say "All right, technically you will be committing a criminal offence but you are most unlikely to be prosecuted."
The area where secrecy and confidentiality should be protected must clearly be defined and limited to the extent where it is generally acceptable and compatible with open government. A balance must be struck where the public interest is protected in both ways. I mean by that that the public interest requires that matters of defence, international security and Cabinet minutes, to take just a few examples, may need to be safeguarded against public disclosure. But the public interest also requires that there is no misuse of secrecy to cover up errors or bungling or to avoid criticism.
In this short debate I do not want to go into the area of freedom of information. I notice that the hon. Member for Newham, North-West (Mr. Lewis), who is very concerned with that aspect, is present. The phrase "freedom of information" is misleading when compared with, for example, freedom of speech or freedom of choice. Freedom of information means the extent to which the public should have the right of access to official information—that is, the balance of public interest. I understand that Justice will shortly be publishing a report which will make a substantial contribution to this aspect of the subject.
1259 In the meantime, it is worth noting that in the United States and Sweden, for example, attempts to provide effective freedom of information legislation have proved more difficult than was anticipated. The first Freedom of Information Act in the United States became known as the Denial of Freedom Act. The Swedish Act contains 43 sections of exceptions to the freedom of information rules—a huge number of exceptions. We must also remember that both those countries have written constitutions, so that judicial intervention in establishing the rights of the citizen is much greater than in the United Kingdom. Any discussion of freedom of information must be in the context of the establishment of a system of administrative courts.
There is no doubt that the Franks Committee made a valuable contribution to the debate about Section 2. The committee was set up in April 1971, honouring the pledge of the Conservative manifesto for the 1970 General Election. Although there are three volumes of oral and written evidence, the committee managed to produce its report by September of the following year.
In June 1973 the then Home Secretary, now Lord Carr, accepted the report in general, but the Conservative Government did not remain in office long enough to implement it. In March 1974 the present Government took office. In April of that year the then Prime Minister, the right hon. Member for Huyton (Sir H. Wilson), said of the Franks Report:I hope to give an answer … in a shorter time than the previous Government".—[Official Report, 2nd April 1974; Vol. 871, c. 1089.]We are now in June 1978. In spite of those brave words we had to wait until November 1976, when the present Home Secretary made a statement to the House. He accepted the Franks Report with certain reservations about the categories of protected information. He promised legislation as soon as possible.
My right hon. Friend the Member for Penrith and The Border (Mr. Whitelaw) asked for a White Paper or a Green Paper. That was agreed by the Home Secretary. It is now 18 months later and we are still waiting. In Opposition time we have, at last, another debate on this important subject. It is important to the Govern- 1260 ment, the Civil Service, all servants of the Crown, the public and the Press. I should have preferred a full day's debate in Government time after the White Paper had been published so that we would have an opportunity of learning the Government's intention. But that possibility looked so remote that we felt that we had to initiate the debate.
We think, as we always have thought, that the Franks Committee was in general right. We accept that Section 2 of the Act is outdated and far too widely drawn. We agree that certain classes of information should be protected, as Franks recommends. This is summarised well in paragraph 276 of the report, which states:
There is another category in Franks with which we agree—where official information has been used for private gain. That is another form of corruption.
- "a. is classified information relating to defence or internal security, or to foreign relations, or to the currency or to the reserves, the unauthorised disclosure of which would cause serious injury to the interests of the nation; or
- b. is likely to assist criminal activities or to impede law enforcement; or
- c. is a Cabinet document; or
- d. has been entrusted to the Government by a private individual or concern."
We have one major disagreement with the Franks Committee. It involves the policing and enforcement of its recommendations. Franks recommends that the areas that should be classified should be classified by regulation made by the Secretary of State, this also involves declassification. In paragraph 8 of the recommendations on page 104, it is stated:Before a decision is taken whether to institute a prosecution for the disclosure of classified information within one of the three categories, there should be a review of the classification of the information which had allegedly been disclosed without authority. This review should be carried out by the responsible Minister himself. He should be required to consider whether at the time of the alleged disclosure that information was properly classified, secret or above or defence—confidential, in the sense that its unauthorised disclosure would cause serious injury to the interests of the nation. If he was not satisfied on this point, then no prosecution would be possible. If he was satisfied, he should give a certificate to that effect to the court. This certificate should be conclusive evidence of the fact that the information was classified within the meaning of the Act.We agree that the Secretary of State should have the power to make the regulations, but we believe that they should be kept under continuous review by a 1261 Select Committee and that the matter should be subject to the affirmative procedure.
More important, the review as to whether the classification at the time of the disclosure was the proper classification should not rest with the Minister. That would smack too much of the Minister being judge and jury in his own cause. When any prosecution is brought for the disclosure of information, the question of whether the information was correctly classified at the date of disclosure should be considered not by the Minister responsible but by an independent committee.
We suggest that that independent committee should be two Privy Councillors presided over by a Lord of Appeal in Ordinary. The defendant should have the right to make representations to the committee, although not, perhaps, appear before it. That view is supported by Lord Rawlinson, who was Attorney-General at the time when the Franks Committee reported.
It would be feasible for the Minister to provide the information which would enable the independent committee to form a view about whether the classification was correct. It would be similar to the committee of "three wise men" who advise the Home Secretary when he is deciding whether to deport an alien. A safeguard of this kind would satisfy Fleet Street and the general public that the information was or was not properly classified and would avoid allegations of a cover-up by the Department or Minister.
If our proposals are accepted and form the basis for a new Official Information Act in place of Section 2, the criminal law will be used only to protect information the disclosure of which would really be against the public interest. Any potential defendant would have greater safeguards than exist under the present law and under the Franks proposals.
It is not a question of open or closed government. If the balance can be fairly struck and impartially checked, the public interest is protected in every way. Our proposals are a realistic and responsible approach to the problem and could quickly be enshrined in our law. We hope to have the opportunity to do that in the near future.
§ 7.17 p.m.
§ The Minister of State, Home Office (Mr. Brynmor John)
I understand why the right hon. and learned Member for Wimbledon (Sir M. Havers) concentrated on Section 2 of the Official Secrets Act. That is the section which causes most concern. I welcome the opportunity to discuss it. Although it has not itself formed part of a central debate on the subject, it was mentioned in the debate on the Queen's Speech last autumn. We said that we would bring forward legislative proposals to reform Section 2 during this Session.
The right hon. and learned Gentleman was correct about the history of the passage of the 1911 Act. I believe that the situation arose more because of Agadir than because of the constitutional crisis which was raging in Britain. There can be no question of history repeating itself and the House passing in haste what it repents at leisure.
We should examine the difficult and complex questions involved in this issue. There is room for serious debate and difference of opinion, not on a narrow party basis, but on the basis of what we are trying to achieve and what we expect the criminal law to achieve. No country of which I am aware can manage completely without the classification of information.
Reference has been made to the Government's slow approach. I am used to replying to speeches of that kind. Perhaps my reply is equally standard. There is a well-known maxim that someone who casts the first stone should be without sin. It is remarkable, in view of the great interest and concern which the right hon. and learned Gentleman now evinces on behalf of his party, that a document issued as recently as "The Right Approach" makes no reference to the subject. I merely mention that in order to show that none of us is completely free of the need to consider this matter in detail.
A further point, which is a fair one to make but which I accept could be pushed too far, is that the Attorney-General has to exercise his discretion and to authorise a prosecution. It could be said that by the time the Government have considered this matter the position of individuals could have been prejudiced. 1263 During the period that the Government have been in office there has been only one conviction under Section 2, and that was for an offence which most of us would have thought, on any classification, could not be overlooked. I refer to the Spargo case.
§ Mr. Percy Grieve (Solihull)
The Government promised legislation on this topic in 1975, yet here we are in 1978, the Government perhaps drawing towards their close, and we still have not had the legislation.
§ Mr. John
The Labour Government of this Parliament may be drawing towards their close, although there is a year to go yet. Certainly I do not dodge the fact that the consideration has been thorny and detailed. I think that the hon. and learned Gentleman will know that, given the interests and the various Government Departments that are concerned, the discussions are necessarily highly complex and protracted.
I was seeking to make the point that no individual had been prejudiced, because of the sensible prosecution policy of my right hon. and learned Friend the Attorney-General, who has acted as any Attorney-General would in his place.
The Fulton Report suggested in 1968 that the Government should set up an inquiry with a view to making recommendations for getting rid of unnecessary secrecy in this country. It was said that clearly the Official Secrets Act would need to be included in such a review. The then Home Secretary set up the Franks Committee in 1971. As the right hon. and learned Member for Wimbledon said, my right hon. Friend the Home Secretary announced on 22nd November 1976 that a White Paper would be supplied to the House in response to a request, and he also—this point was omitted by the right hon. and learned Gentleman—gave information about interim conclusions to which the Government were then coming. He did that in order to inform the House, and he was unfairly criticised for daring to come to the House to inform it.
In the Gracious Speech at the beginning of this Session we said that we would introduce legislative proposals for the reform of Section 2. We shall honour that commitment by publishing a White Paper.
§ Mr. John
Unless the hon. Gentleman is deficient in hearing, what I said was clear enough. If the hon. Gentleman makes a speech later and makes his points then, I shall respond to them.
I have sketched in the background because it is obvious that the general dissatisfaction with Section 2, because of its catch-all quality, is shared on all sides of the House. The blanket over the serious and trivial nature of information, all of which is classified, is something that none of us takes great comfort in, but in practice it is fair to say that the system does not work in quite the rigid way that the section might lead one to suppose. I have mentioned the prosecution policy of the Attorney-General and, in Scotland, the Lord Advocate. The Franks Report said that the section is saved from absurdity in operation only by the sparing use of the Attorney-General's discretion to prosecute.
But it also works rather differently in practice, because the section prohibits the unauthorised disclosure of official information and the release of a great deal of information is authorised, whether authorised for other people or self-authorised. As hon. Members who have read the Franks Report will know, paragraph 18 makes it clear that Ministers, for example, do a great deal of self-authorisation in the release of information. The hon. and learned Member for Solihull (Mr. Grieve) may laugh, but were the contrary situation to apply I am sure that he would be highly indignant.
Nevertheless, the Government accept the general thrust of the Franks Committee's argument that the section needs to be repealed and replaced by a narrower and more specific provision, so that criminal sanctions will be preserved to protect only that which is of real importance. That is a clear statement of the Government's intention.
1265 That brings me to the question of what should be protected by the criminal law. The Government will make their views on that known in detail in the White Paper. The Franks Report proposed that the following categories should be protected: defence or internal security; foreign relations; the currency or the reserves; law and order; Cabinet documents; and information entrusted in confidence to the Government by a private individual or concern.
In his statement of 22nd November 1976, my right hon. Friend the Home Secretary said that the Government intended to exclude from the list of protected categories information related to the currency and reserves and Cabinet documents that did not qualify for protection by virtue of their content. That means that if the documents, in their content, justifying classification they will be covered, but if they are Cabinet documents without such content they will not be in the list of exceptions. I can confirm on behalf of the Government that we intend to stick to that policy when the White Paper is published.
There remain some highly technical questions on the way in which a test of damage to the national interest, for example, should be incorporated in the offence in relation to all the categories that I have mentioned, how the test should be defined, and what method should be used for proving damage to the national interest for a prosecution to succeed. Although these seem to be recondite legal points, as does the highly technical question of the sort of defence that should be available, and the sort of defence that should be available to a person of a particular status, they are crucial to the enforceability and therefore the respectability of our protection of that which we deem to be in the national interest to protect from public information.
Let me deal now with the question of open government and freedom of information, and the general nature of the exercise of the reform of Section 2. The issue in such reform is settling in a defensible and up-to-date way the precise limits of criminal sanctions in the protection of official information. Such reform will not act directly to increase the flow of authorised information from the 1266 Government, though the Government do not dispute what the Franks Committee said in its assessment that the very wide scope of Section 2 has some effect in creating a general aura of secrecy. Getting rid of that general aura is one of the points that weigh with the Government.
In the wider area of the availability of official information generally—that is, for this purpose, open Government—it would be wrong to see the reform of Section 2 as the only measure that is necessary. Its reform is needed simply for the improvement of the criminal law, but I believe that the replacement of Section 2 by a narrower provision is a necessary preliminary for consideration of how we can learn, from the experience of others, what information should be more freely and more widely available.
The Government's mind is not, as some commentators have said, hostile to this particular issue. But, because of the experience of other countries with dissimilar constitutional arrangements, which the right hon. and learned Gentleman mentioned, we need to see exactly how such a Bill, if enacted, would fit into our constitutional pattern. I can imagine nothing more calculated to be destructive of the idea of freedom of information than a Bill culled from other experience which does not mesh in well with our own pattern and which discredits the whole notion of freedom of information generally.
All that I say tonight, therefore, is that Section 2 must be got right before the wider topic can be sensibly pursued.
I return to a point that I believe is in danger of being overlooked in these arguments. That is that the Government have not, during their tenure of office, ignored the practicality of the increase in the flow of official information whilst awaiting a reform of Section 2. I believe that the present Government have been very concerned to make progress on this front and to make more information available to the public as to the decisions taken by the Government.
As was announced in July of last year, the working assumption is now to be that once Ministers have reached their conclusion on a particular major policy study, the associated factual and analytical material will be published, unless Ministers have good reason for deciding otherwise. This initiative, which in the nature 1267 of things can only now be starting to bear fruit, is being carried out conscientiously. Two White Papers, the "Report on the Review of Highway Inquiry Procedures" and "Policy for Roads: England 1978", both published in April this year, detail ways in which more information is being given to those who are affected by decisions.
Surely, even though legislation may in the end be necessary, the aim of Government should be to make available to responsible members of a democracy the reasons for decisions which affect members of the democracy in their everyday lives. This is a way in which we are moving towards making more information available, for example, at a highway inquiry, which will in itself inform members of the public when they make their objections or weigh up why a particular decision has been made.
§ Mr. Max Madden (Sowerby)
Does my hon. Friend understand that many of us have a very difficult task in trying to reconcile his words with our day-to-day experience of trying to obtain information from the Government? I had experience this week of trying to ascertain from the Department of Energy the terms of appointment on which a chairman of a regional electricity board was appointed. I was told that that was confidential information which I could not receive. Does my hon. Friend agree that that is intolerable from a Government who profess to hold dear to the principle of freedom of information?
§ Mr. John
First, I freely say to my hon. Friend that as I am not privy to his correspondence, no doubt because of its confidentiality, I cannot answer for other Departments, and therefore I do not know the particular example to which he is referring.
The second point that I want to make most clearly is that there will always be a balance. I do not believe that there will ever be a state of society in which people will always be able to get all the information that they want just because they want it. The balance that must be struck is the balance between what is proper to be disclosed and what is not.
I cannot comment upon a particular example—I think that it is unfair of my hon. Friend to expect me to do so—but if he will let me have details I shall 1268 certainly look into the matter and see why it is that my right hon. Friend the Secretary of State for Energy falls below the standard that my hon. Friend expects of him in this regard.
§ Mr. Arthur Lewis (Newham, North-West)
Perhaps I may take that matter one stage further and ask my hon. Friend the Minister to answer it as a general question. Surely a Member of Parliament, who represents the taxpayers, who pay the salaries of Ministers and people who are appointed to various boards, is entitled to answers to questions why a particular person is appointed to a job, what his salary is, what his qualifications are, and so on. I ask my hon. Friend to answer not on the particular case but on the general issue. Why should a Member of Parliament be barred from receiving such information?
§ Mr. John
No doubt my hon. Friend will make his own speech, in which he can advance that case further.
What I am saying is that the present Government, in their own dealings on the question of the way on which they form their policy, have made available information to a far greater extent than was ever done before. This, of course, is highlighted today by the announcement by the Foreign Secretary that for the future he will make available to the Stationery Office and to libraries working papers on which certain foreign policy decisions have been taken. I believe that to be an earnest of intention.
This morning, however, there was a certain article in The Times. Genius has been described as one-tenth inspiration and nine-tenths perspiration, but I believe that some political articles are nine-tenths inspiration and one-tenth perspiration. The article in The Times of this morning contained the information—I hope that the right hon. and learned Gentleman will take the opportunity of putting it right—thatTory lawyers review official secrets question".1269 This apparently refers to the setting up of a new committee by the Conservative Party to study the subject. I should have thought that that was somewhat unnecessary, in view of the fact that the right hon. and learned Gentleman, on behalf of his party, has already given us his views on the Act. The article contains this sentence:Should Mrs. Thatcher become Prime Minister, she will not be bound by Mr. Callaghan's policy of more open government.The article goes on to talk about the Allen initiative.
As a statement of constitutional propriety, that is correct. No Government are bound by their predecessors, of either the same party or another party. But the implication is carried in that sentence, as the right hon. and learned Gentleman will know, that the right hon. Lady the Leader of the Opposition will not carry on with the policy which has been started—of releasing official information by Government Departments to the extent that the present Government have done. I hope that the right hon. and learned Gentleman will take this opportunity of correcting that impression and of saying that any Conservative Government would carry on with the policy, already started, of making official information more widely available.
§ Sir M. Havers
First, the Committee which is referred to as being set up has been set up, and it has concluded its deliberations. That was some time ago. Secondly, I should have thought that the answer that the Minister of State needs was quite clear from my speech. I talked about the balance of public interest and I said that it is absolutely essential that only the most important documents, where the interests of the State are concerned, should be preserved as classified documents.
§ Mr. John
I am glad to have that assurance. I hope, nevertheless, that generally it will become more widely known, because for a correspondent to write in those terms seems to indicate that information should be more freely available to correspondents than, perhaps, to hon. Members.
1270 I am here to listen to the views of hon. Members. We shall take into account everything that is said in the debate. But we believe that the first priority—I think that we share this view with the right hon. and learned Gentleman—is to get Section 2 right. Therefore, when the White Paper is issued—it will be issued during this Session—we shall put forward detailed proposals which I hope will aid and point the discussions, so that the legislation, when it comes, will be better than, and better able to stand up to the test of time than, the 1911 Act.
§ 7.40 p.m.
§ Mr. Leon Brittan (Cleveland and Whitby)
It would be very hard to find today any friends of Section 2 of the Official Secrets Act, yet nearly six years after the Franks Report and three years after the Government's firm promise of what they described as reasonably early legislation we have still had no legislation and we have still not even had a White Paper. In those circumstances, the criticisms about delay levelled by my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers) seem to me to be very mild compared with what the Government's conduct justifies.
The consensus that Section 2 should be changed is based upon a view that it is far too wide in its ambit, covering as it does the whole of the operations of government, and far too broad in the unlimited discretion that it confers on officials to decide what to disclose and what disclosures to authorise. So broad a discretion is barely consistent with any proper concept of the rule of law, which is entirely dependent on certainty of application and the most limited nature of any discretion that must exist.
The damage that a law of this kind creates cannot be gauged by the number of prosecutions that are brought. Therefore, for the Minister to say that only one prosecution was brought, and that one jolly well ought to have been brought on any view, is no defence to the delay in legislating, because the very existence of the law as it stands faces the Press with an ever-present implied threat and helps to perpetuate the all-pervading atmosphere of secrecy that has for far too long pervaded British government.
1271 In other words, that section of the Act is simply indefensible, yet it is still there. Why is that? It is still there, inspite of the Government's assurances, because they have not had the courage to fight and overcome the strenuous rearguard action mounted in the more obscurantist corners of Whitehall. That is the real explanation.
But it is precisely because the present law is indefensible that some people, some people in the Press itself, have argued that it is better to leave it as it is, that it is better to leave on the statute book a law that is unworkable and discredited than to substitute for it a law that is narrower, more rational, and therefore more workable and more usable. I believe that that view, although it is widely held in the Press, is profoundly mistaken. It is intellectually disreputable and politically cowardly. Either there is no need for Section 2 in any shape or form, in which case it should simply be repealed, or there is need for it in some shape or form, in which case Parliament must face the problem and get on with the job of creating a sensible and workable law rather than simply leaving an unworkable one on the statute book.
To suggest that there should be no Official Secrets Act implies either that we have no secrets of any kind or that there is no role for the criminal law in the protection of such secrets as we have. We may not have many secrets, we may not have as many as we once had, and we may sometimes exaggerate the importance of the secrets that we have, but it would be wrong to suggest that even today there are no matters the disclosure of which would gravely harm the national interest—in relation, for example, to such matters as military installations and delicate diplomatic negotiations.
It would be equally wrong to say that there was no room for the criminal law in defending secrets of that limited kind. The alternative, which is to rely simply on the disciplinary procedures within the Civil Service, is plainly inadequate, bearing in mind that there will be people who have left the Civil Service or the Armed Forces and against whom disciplinary measures are wholly inapt. In respect of such people, at the very least the criminal law is necessary in the most serious cases.
1272 Therefore, I conclude that there is a role for the criminal law, and I think that the House should support the broad approach of the Franks Committee, drastically cutting down the categories in respect of which disclosure is criminal and in most of them granting the protection of the criminal law to such disclosures only where there has been proper classification.
The Government claimed in their statement of 22nd November 1976 that their provisional proposals were more liberal than those in the Franks Report. The Government certainly have not done anything about those proposals, so such a claim does not attract many accolades from those of us who wish to be liberal in these matters. But I doubt whether that claim is even sustainable.
Whereas the Minister mentioned two respects in which he reaffirmed Government policy on a more liberal direction than that of the Franks Report, as enunciated in the statement of 22nd November 1976, he did not mention that in that statement, which I take it also still stands, the proposals put forward by the Government, unlike those of the Franks Committee, involved extending the law to security and intelligence matters, whether or not they were classified, and substantially extending the "defence confidential" category of classification.
This point illustrates the difficulty that we are in. If the Government claim to adopt an approach that is more liberal than that of the Franks Committee, it can be scrutinised only in the context of legislation. It is exactly that kind of opening up or narrowing of the categories that can be scrutinised only in a committee that is legislating. To leave in the air a bald assertion of greater liberalisation, without showing the colour of the legislative money for nearly two years, is wholly unsatisfactory.
I therefore think that at this stage we should confine ourselves to deciding whether the general Franks approach is the right one, as I have suggested it is, although in one respect I find it impossible to agree with the Franks Committee. That is the matter to which my right hon. and learned Friend referred—the suggestion that before a prosecution is brought the correct classification of the document should be reviewed by the 1273 Minister. I regard that as a totally unacceptable recommendation, because it is no sort of protection against improper classification. It certainly will not be regarded as an adequate protection if the head of the Department responsible for the original classification is the one who looks at the matter again.
I believe that one of the main reasons why the Franks Report received a comparatively lukewarm Press was dissatisfaction in the media over the idea of the same Government Department being judge and jury in its own cause. I think that my right hon. and learned Friend's suggestion of an independent review body, chaired by a Lord of Appeal in Ordinary, is greatly to be welcomed.
There are bound to be suspicions about classification procedures. We should always remember what Chapman Pincher told the Franks Committee:in my experience … 'politically embarrassing' is a higher security classification than 'Top Secret'".That seems to me a most apt comment. The protection provided by an independent review body is necessary.
With that slight addition, I should greatly welcome legislation on the lines of the Franks Report. I believe that it has been unnecessarily and inexcusably delayed.
Associated with the discussion of the Franks Report there has been the further suggestion that we should have a Freedom of Information Act, on American lines. In principle, how can anyone oppose such a measure? Why should the citizens and the media not have access to what is done in their name by the organs of government? I certainly thought on those lines for a long time and felt that the concept of accountable government—a concept which is infinitely preferable to open government, made such legislation desirable. After looking in more detail at the way in which things worked out in the United States, I now have grave doubts about the desirability of going down that path in this country.
The original Freedom of Information Act in the United States, passed in 1966, was ineffective. It was only after it was amended, over the presidential veto in 1974, that it acquired teeth and led to floods of requests for information. But 1274 that information has not, for the most part, been sought by people seeking to reform government or scrutinise Government operations in a genuine way. For the most part, the Act has not been used by citizens or an inquiring Press; instead, it has become a tool of business and the legal profession, operated for the benefit of clients at public expense. One federal agency, the Federal Trade Commission, has reported that 67.3 per cent. of the requests for information have come from corporations and only 5.3 per cent. from the media.
A federal Food and Drugs Administration commissioner has said that 90 per cent. of the requests received by his agency were for purposes that amounted to industrial espionage. A whole host of consultants and firms have sprung up offering businesses their services to use the Act for the benefit of commercial gain. It has not been used substantially for the purpose for which it has been introduced. That has been widely recognised in the United States. In addition, and hardly surprisingly, the introduction of this legislation has led to formidable cost and massive extra bureaucracy. The cost of the Act is now running at $22 million a year and is still growing. The average cost of complying with a request is $146.67. The payment averages $5.84. The FBI assigned 400 agents to review 10 million pages of documents to deal with the Act and comply with its requirements.
To deal with the amended legislation the Food and Drugs Administration increased its staff from seven to 40. Requests are now running at the rate of 12,500 a month, or 150,000 a year. That is a formidable burden of bureaucracy and cost for any nation to undertake, certainly for this country.
In addition, the effect of all this has been increasingly counter-productive. What has happened is that less information has been put on paper to escape this scrutiny. The Federal Communications Commission simply destroyed a list of 10 million law-breakers rather than have the names disclosed. The Federal Deposit Insurance Corporation, which insures banks, warned lawyers approaching it not to write letters which might be damaging to their clients because they would have to be disclosed. Instead, it told them to talk on the telephone.
1275 Unscheduled meetings in corridors have become one of the major growth industries in the United States. What has inevitably happened is that people are driven further down this road. Having had the 1965 Act and the 1974 Act, in 1976 the United States Congress passed the Government in the Sunshine Act, requiring Government agency meetings to be open to the public, with exceptions, requiring minutes to be available, trans-scripts to be taken, and public notice to be given even of meetings which were to be closed to the public. The result of that has been a massive increase in paper work, together with a great delay in the conduct of government, because a meeting cannot be held unless there is time to give the public notice of it, even though the public will not be admitted to that meeting.
Beyond that the road leads on. There are now before Congress proposals—the Ertel Brademas proposals—for extending public scrutiny to the presidency and Congress. This is a road which, if followed in this country, would have the interesting consequence that the constituency correspondence of every hon. Member would be open to scrutiny by everyone in the country.
It may be said that the path that I have described is a reductio ad absurdum and that it is not necessary to go all the way down that road. I believe that this is not just a question of the Americans going a bit too far and running away with things; the successive steps have led, logically and inexorably, from one to the other. If a Government were committed to this path and evasive steps were taken it would be necessary to follow the original Act with something like the Government in the Sunshine Act. So it goes on. Once one has started on that path it is not possible to stop short.
For us, the best protection of the citizen is a free Press and a free Parliament. As it stands, the Official Secrets Act is an obstacle to both and should be repealed. But because Governments are obsessively secretive, let us not be too readily beguiled into seeking a different cure, which may be worse than the present disease.
§ 7.56 p.m.
§ Mr. Arthur Lewis (Newham, North-West)
I apologise on behalf of the hon. 1276 Member for Hastings (Mr. Warren), who wanted to be here but has taken the chair at a meeting which I was to have chaired. I was interested in the absurd comments of the hon. and learned Member for Cleveland and Whitby (Mr. Brittan). If things are as bad as he alleges, I say only two things to him—Watergate and Nixon.
The Freedom of Information Act was a great help as regards Mr. Nixon and Watergate. I should like to see a similar Act in this country. I welcome the speech of the right hon. and learned Member for Wimbledon (Sir M. Havers). I was not too enraptured by the speech of my hon. Friend the Minister of State. However, I realise that his speech was prepared by civil servants. The hon. and learned Member for Cleveland and Whitby has pointed out that it is the civil servants who rule, and this is where the objections come from. This is why we have had the delay and lack of progress. The civil servants do not like such proposals. Why is this? It is because the Official Secrets Act covers up their misdemeanours, their mistakes, their errors and sometimes more—their blatant misleading of the House of Commons and hon. Members.
We had a case recently when a top civil servant admitted that he had misled a Committee of the House. He said that he did not mean it, but he kept the Committee in that state for 18 months. He did not reveal matters until "Your Disobedient Servant", the Chapman report, came out. The Official Secrets Act is a lovely weapon in the hands of these well-paid, well-financed, well-perked top civil servants. Only this week—I think this came from Tribune originally—we discovered that some of these civil servants were to get a 20 per cent. increase in salary. They do not like such information coming out.
I am certain that if we had had an Official Information Act on the Swedish model—or, indeed, on the American model—we would not have had the Crown Agents fiasco. We would not have had the almost daily but certainly weekly errors and misleading information which we get from the Treasury. We would be able to ascertain whether information was being deliberately fed into the hands of Ministers. Mr. Chapman has said it and it has not been disputed. Some of the civil servants have disputed it, but they 1277 have not given chapter and verse in answer to his claims.
I am concerned that the Minister, sitting on the Front Bench, has admitted that he cannot say why a Member of Parliament should not be told what is the salary of a chairman of a board, why he has been appointed or what are his qualifications. Should not a Member of Parliament have the right to know? Should not the electorate have the right to know? Is not the electorate made up of taxpayers who pay the Minister's salary and who pay the salaries of all these top civil servants? Surely the people are entitled to have this information.
I wonder whether any employer in private industry would accept the position that his employees were not entitled to have information about their working conditions. But we cannot get information here in the House. We know what happens when we put Questions down. The information is available but, if it is felt to be embarrassing to the Civil Service or to a Department or a Minister, civil servants will find a way of blocking it. They will get in touch with the Table Office and say that they cannot accept the Question for this or that reason. The Table Office will then try to get round it, and perhaps eventually the Question will be put down. The civil servants will then find ways of not answering the Question or of referring to some extraneous matter which has nothing to do with it.
If we had a Freedom of Information Act, there would, I agree, be some fun and games. There would be many inquiries, and many hon. Members would not have the trouble to go to the Table Office to try to get Questions put down.
We have now something that is worse than Section 2 of the Official Secrets Act. We have the development of computers and data banking. Records are being built up on Members of this House and on the electorate throughout the country of which they know nothing. They are not entitled to know whether the information is correct. They are not entitled to amend or alter it. This information is being fed through various Government Departments.
The Department of Health and Social Security has computerisation in regard to finance, the number of payments, contri- 1278 butions and all the rest of it. There is also computerisation of medical records. There is not a Member of this House or a person in the country who is entitled to see his own personal medical record. It is a secret. It is held in confidence and people are not allowed to see their own medical records. They have no right to demand to see them. But I believe that every person is entitled to have information that is in his own personal medical record. Parents are not entitled to know what is on record about their children. They are not entitled to say whether such information is true or false.
If, as I hope, we have an amendment of Section 2 of the Official Secrets Act, I feel that we ought to go one step further and ask for a Freedom of Information Act. Then, if all the abuses which have been mentioned were to happen, we could deal with them.
I remember the time when the National Health Service was introduced. It is now, I believe, celebrating its thirtieth anniversary. At the time when it was being set up, I remember Conservative Members in this House saying that if we had a National Health Service people would go and have their teeth out just because the service was free. Hon. Members may laugh, but that was actually said at the time. It was said that everyone would be asking for spectacles because they were free.
There may have been a little abuse when the scheme started. There may have been a few people—I was not one of them—who had their teeth out because the Service was free. There may have been some such people, but I do not think that the National Health Service was the reason for their actions. They were probably not normal. There may be abuse on the part of some people, but I am quite sure that, except for those few people, the Service has been used in the way that was intended.
The point I am making is that we have no rights at all in any of the areas that I have mentioned. We are able to ask a few questions here, but that does not mean that we have them answered satisfactorily. Only today the Prime Minister said "We shall have to see what the trade union conferences want" or words to that effect. That was on the question of wages. I will tell the Prime Minister that the Trades Union Congress, the Labour 1279 Party conference and Uncle Tom Cobleigh and all asked for the amendment of Section 2 of the Official Secrets Act long before devolution, long before any question of prices and incomes arose and long before any wage freeze. What have we got? We have simply another promise that a White Paper will be issued this Session. We have promises, but shall we have action? That is where I have some doubts.
When he spoke, the Minister said, in effect, that the Government are quite willing to have open government. What that means is that after the Government have met and considered matters they are quite willing to let the public have certain information. We get the information, in other words, after the Minister has made his decision about it. Why cannot he let the public know beforehand? Why cannot he let the public know what information and advice he is getting? Why cannot the public be told what is being discussed?
Obviously, there are matters involving State secrets and military matters which are in a different category, but why do we have to have secrecy about matters of roads and town and country planning? The first that the public ever hear about a road is when the decision has already been made. People are consulted only after the decision has been made. That is also what happens in this House. Invariably hon. Members are told that the Government, of whatever party political complexion, have decided to do something. We can then either lump it or leave it. We might be able to make some minor amendments, but that is all.
I want to see a Freedom of Information Act which will enable the ordinary elector to have the opportunity of getting information of a public nature, other than, obviously, State secrets and criminal records. I want ordinary members of the public to have the opportunity of seeing their own personal records and of altering and correcting them. I also want to see the opportunity given to the Government to carry out their promises made at the time of the last two General Elections. I believe that the people have the right to know these things. When they get the right to know, I think we shall find that Parliament and the Civil Service will improve. By jingo, in recent weeks that seems to be necessary.
1280 Therefore, do not let us be fobbed off again. Do not let us be fobbed off with a White Paper which promises something after the next General Election. There are some of us who will not—I repeat, will not—support the Government on some of these issues if they again try to fob us off as they have done in the past.
§ 8.10 p.m.
§ Mr. Emlyn Hooson (Montgomery)
The habit of secrecy in government is deeply ingrained in this country, far too deeply ingrained for the good of the country in the present climate. I should first like to take issue with the hon. and learned Member for Cleveland and Whitby (Mr. Brittan) with regard to what he said about the Freedom of Information Act, and its working, in the United States. He presented a viewpoint which has been put across by the bureaucracy in the United States exactly as it was obviously put over to him. He swallowed it hook, line and sinker. He seems to have ignored the fact that the bureaucracy in the United States was totally opposed to a Freedom of Information Act. It opposed it all the way along and it had to be imposed.
As the hon. and learned Gentleman knows, the Act was passed in 1966, but effectively it did not come into operation until the beginning of 1968 and was completely ineffective until 1974, when it was amended across the veto of the President, President Nixon.
§ Mr. Brittan
As it happens, it was President Ford. While I am on my feet, I should point out that I have not spoken to a single member of the American bureaucracy.
§ Mr. Hooson
The hon. and learned Gentleman presented a picture of the working of the Freedom Information Act which was totally different from one given to me recently by an American general serving in Europe. He hold me that he thought that the Freedom of Information Act had conferred many benefits on American citizens, including the soldiery. It was amended in 1974, because up to that time it virtually was not enforceable. The amendments of 1974 had the effect of allowing the bureaucracy 10 days to respond to any request for information and a further 21 1281 days thereafter to supply it. It also provided a right of appeal to the courts in the event of the Department concerned not choosing to supply the information.
As the hon. and learned Gentleman said, at federal level there are at present an average of 150,000 requests for information. The Administration claim, although this has never been substantiated, that it costs 20 million dollars annually to administer. It is estimated that in the coming year it will cost 22 million dollars. The actual estimate, given when the Bill was passed into American law, was 200 million dollars a year. The acutal cost has been one-tenth of the original estimate.
The hon. and learned Gentleman did not mention the fact that of the 150,000 requests, 44,000 are to the Defence Department, which has the largest number of requests. Many of them are from individual officers and serving soldiers who want to know something about their records. Very often a man's whole career can be blighted by misinformation given in a record. Thirty thousand requests were to the Justice Department of which just over half were to the FBI which is, I understand, the Department which most resents the working of the Freedom of Information Act.
One thing which must be remembered is the effectiveness of this Act. No one would have known of the organised campaign to discredit the Reverend Martin Luther King if it had not been for the Freedom of Information Act. It was through the workings of that Act that the American people learnt for the first time of the organised campaign to discredit that very fine leader. It is only because of the Freedom of Information Act that people have discovered that the most incredible trivia is included in the records of highly reputable, fine characters in the United States, where from time to time various organisations have sought to discredit them. An example was given to me yesterday of someone's record, which has been disclosed, which stated that he had not paid a five-dollar fine for overstaying his time on a parking lot in a Mid-West town. This was put down on a very important official record which was kept in Washington in order to try to find something to discredit this particular person.
1282 I have no doubt whatever that there must be very important shortcomings in the workings of this American Act. It must be very difficult for the bureaucracy to deal with it and with all the growing pains involved in this new process of government. That obviously has to be taken into account. Nevertheless, one should not present the kind of unbalanced view, which the hon. and learned Member for Cleveland and Whitby did, without giving the credit side and pointing out the effectiveness of this Act in many ways.
When one compares the cost of the Freedom of Information Act of 20 million dollars a year with, for example, the federal information budget—which gives the kind of information which the Government want fed out, as opposed to information they do not—one can see that it is absolute chicken feed. Although complaints have been made about the Freedom of Information Act and its workings in the United States, both on the grounds of cost and its administrative burden, I do not think that they are large for a democracy. The credit side is very important because the Act is an enormous protection for individuals against the misuse of power and position within a democracy. That is something we should not lightly underestimate.
§ Mr. Nigel Forman (Carshalton)
Does the hon. and learned Gentleman also accept the likely contention that 20 million dollars, or whatever the figure may be, may be a rather low figure when compared with the amount of money that can be saved by the early and timely release of such information?
§ Mr. Hooson
I entirely take that point. I merely wanted to correct what I thought was a rather unbalanced view given by the hon. and learned Member for Cleveland and Whitby.
I come to the main subject of our debate. We are dealing with a matter which amounts to an appalling failure of the present Government to fulfil their manifesto pledge. According to a statement in the New Statesman on 18th April that pledge was:to repeal the Official Secrets Act and pass 'a measure to put a burden on the public authorities to justify withholding information'.1283 I do not suppose that there are many votes in matters which concern the freedom of the individual and individual rights in this country. So often these kinds of issue are lost in the general campaign during a General Election. Nevertheless, this failure is a very important failure of this Government.
The pledge in the Queen's Speech last October was a much narrower one, namely, to repeal the provisions of Section 2 of the Official Secrets Act. Even that has not been done. There has been a weekly expectation of a White Paper, certainly since the turn of the year, and a weekly disappointment that it has not appeared. I can only conclude that no one in the Cabinet is really committed to the idea of either the repeal of the Official Secrets Act or to the provision of a Freedom of Information Act.
On behalf of my party, I had talks with the Lord Chancellor, the Home Secretary and the law officers in the autumn of last year, when it appeared to me that there was then enthusiasm for these proposals. There were detailed discussions about the matter. I certainly submitted our written submissions for reform in December of last year. Since then there is no doubt whatever that the Cabinet, and individual members of it, have been under great pressure from the Civil Service which values too greatly secrecy in Government. No doubt the Cabinet has also had the advice of the over-cautious. The truth is that it is very easy to do what the Minister did today and detail the difficulties of, for example, providing a freedom of information Act or detailing the difficulties of repealing Section 2 of the Official Secrets Act. We can detail the difficulties for as long as we like, but there will be no reform of this legislation until someone takes hold of it by the scruff of the neck and determines that there shall be reform.
§ Mr. Hooson
The hon. Member for Thanet, East (Mr. Aitken) knows that if his party had been in power there would have been no chance of a Freedom of Information Act. Certainly there is far more support for it on the Government Benches than there is among members of his own party.
The right hon. and learned Member for Wimbledon (Sir M. Havers) detailed 1284 the history of the Official Secrets Act 1911 and the way that it went through this House. It took about half an hour to complete all its stages. There was virtually no Second Reading debate. It was a Back-Bencher who raised the issue.
The Bill was introduced into the House of Lords in late July 1911 by Viscount Haldane, and there was a debate occupying five and a half columns in Hansard. There were four speakers. The legislation that it was repealing—the 1899 Official Secrets Act—had itself been introduced by a private Member into this House, no doubt with the support of the then Government, but there was little debate even on that. Therefore, throughout parliamentary history there has been very little debate of the provisions of any official secrets legislation.
During the 1911 debate in the House of Commons, Colonel Seely said:It is undoubtedly in the public interest that this Bill should be passed, and passed at once. It is highly undesirable, no doubt, that any Bill should go through its stages so rapidly as this has done, and it certainly cannot be taken as a precedent. 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. 2257.]
§ Mr. Grieve
This really was a manifestation of the fact that at that stage of our history the role and area of government was extremely small and was largely concerned with public order within the realm and with maintaining the defence of the country. That was why we had an Official Secrets Act in the terms that we did. Today we have government encompassing the whole area of national life. Is not that the case?
§ Mr. Hooson
I cannot altogether agree with the hon. and learned Member for Solihull (Mr. Grieve). He takes far too simplistic a view of this matter. But he is right that the area of government is very much greater today than it was then, and it is time that we looked at these matters afresh. Here we are, 67 years on, with the same Act and obviously even deeper misgivings about it.
Mr. Justice Caulfield, in the case which concerned the hon. Member for 1285 Thanet, East, suggested that the Act should be "pensioned off". The Franks Report referred to Section 2 as "a mess". Here we are with still nothing done about it.
There is obviously too much secrecy. As Professor Wade said,It has become one of the great vested interests of Government. It is a classic example of bad law creating bad practice.The Act itself is too obscure and uncertain. There is no doubt that it is open to misuse. No one so far has mentioned Section 1 of the Act, but I happen to believe that that should be repealed as well and replaced by a Security of the Realm Act or by an Espionage Act dealing only with espionage.
It is very interesting that in the 1911 debates, so far as they went, everyone assumed that the Act was concerned only with espionage. Hon. Members referred constantly to spying and the results of spying. That was the only topic to which they directed their minds. But Section 1 itself could be replaced and, if we removed all provisions concerned with national security into one Act, it would be much easier to deal with all the other matters in a separate Act.
There are grounds for thinking that it is the integrity of the Law Officers which is our protection. I am not in any way underestimating the protection that is provided by the necessity for having the permission of a Law Officer before a prosecution is launched. But it is only the integrity of our Law Officers which prevents possible misuse of the Act under either Section 1 or 2.
§ Mr. Christopher Price (Lewisham, West)
In the 1899 Act, the hon. and learned Gentleman will be aware, the Attorney-General's fiat was necessary for both arrest and charge. One of the changes that slipped through in 1911 was that the Attorney-General's fiat became necessary only for the charge. That has proved to be very significant in a recent case.
§ Mr. Hooson
Obviously there was a very good reason for that change. If one is dealing with spies and has to go to the Attorney-General to get power of arrest, the spy can leave the country before being arrested. That was the reason for that change. Although it may 1286 have resulted in injustice in a recent case, there was an obvious reason for it.
I come now to the Franks approach. I think that we should go considerably further than Franks. What the hon. and learned Member for Cleveland and Whitby was prepared to do to reform the law did not match his sentiments. I agree entirely with his sentiments on the need for more accountable government, as opposed to more open government. However, he is not prepared to do much about it. He suggests that if we implement Franks and change in some way the review of classification, not leaving it entirely to the heads of Departments in the Civil Service, that is enough. I do not think that it is.
I do not agree that the supervision of classification or any appeal on a classification should be referred to a Committee composed of a Law Lord presiding and two members of the Privy Council, as suggested by the right hon. and learned Member for Wimbledon. I would prefer to see a Select Committee of this House able to consider classification, with a permanent Committee sitting here. There are always sniggers from the Conservative Benches whenever it is suggested that a Select Committee of hon. Members should have any responsibility in such matters as this. We are elected Members representing the people, and I think that it should be a Select Committee which looks into these matters. The assumption that Select Committees are irresponsible does not accord with my experience of them, and I have served on a few in my days in the House.
§ Mr. Aitken
It is often alleged, perhaps unfairly, that decisions made on official secrets prosecutions over the years have been influenced by political considerations. Although the hon. and learned Member for Montgomery (Mr. Hooson) paid tribute to the integrity of the Law Officers, that integrity, rightly or wrongly, has been challenged and argued over, and almost every Attorney-General who has been placed in the difficult position of deciding on a prosecution has been criticised because his actions have been thought by someone or other to have been taken on political grounds. One state of affairs that would guarantee that criticism being made even more strongly would be if there were a group 1287 of politicians in this House either taking decisions on whom or whom not to prosecute or on what the classification rules should be. I cannot think of a worse solution.
§ Mr. Hooson
They would not take any decision on the question who was or was not to be prosecuted, but they would be entitled to look at the rules of classification and to review them. Then there could be an appeal, on the ground that the rules whereby the classification was originally made had not been properly interpreted. Then it would be for the judge to decide. But there should be a review of the rules of classification, and that should be left to a Select Committee.
§ Mr. Hooson
That was not my understanding of what he said. My understanding was that he suggested that in a specific case if a man is to be prosecuted there should be the right of appeal, on that specific point of classification, to a committee of Privy Councillors, chaired by a Law Lord. That is a different matter from having a Select Committee looking continually at the rules of classification as interpreted by different Departments.
The important thing is the question of classification. I do not disagree with the suggestion that there should be very limited areas where classification is necessary. Clearly there should be classification in matters of defence and internal security, international relations, and law and order—particularly those matters covering criminal investigation and the security of prisons. There should be classification on intelligence and security, although proposals to protect all information in this area, whether classified or not, seem to be rather extreme. There should be classification of Cabinet documents only so far as they relate to the categories that I have mentioned. Also, very importantly, the confidences of the citizen should be protected, and these could be subject to internal sanctions of Government Departments or criminal sanctions.
Rather than have the elaborate system of Franks classification, three main classes in this area would suffice. First, there is information that should be exempted from access, the unauthorised disclosure 1288 of which would attract criminal penalties. Secondly, there should be information to which there is no right of access, but which does not attract criminal sanctions for unauthorised disclosure, although obviously there would be internal disciplinary sanctions. Thirdly, there should be all other information to which there is a right of access.
The most disappointing aspect of this matter has been that the Government themselves, although they had draft papers on this matter circulating in their Departments in January this year, at no time have published a paper that we could consider and discuss. They have not put forward their own statutory proposals. This amounts to a very great failure.
In July 1977 the Head of the Civil Service sent a memorandum to all his heads of Department. That memorandum was entitled "Disclosure of Official Information". It said:During the debate on the Address on 24th November last—it is interesting to note that it has taken about nine months to gestate—the Prime Minister announced that it would be the Government's policy in future to publish as much as possible of the factual and analytical material used as the background to major policy studies.It went on in the second paragraph to say:The change may seem simply to be one of degree and timing. But it is intended to mark a real change of policy, even if the initial step is modest.Presumably that is what the Minister of State was referring to in his speech. In paragraph 8 of this letter the Head of Civil Service went on to say:There are many who would have wanted the Government to go much further (on the lines of the formidably burdensome Freedom of Information Act in the USA). Our prospects of being able to avoid such an expensive development here could well depend on whether we can show that the Prime Minister's statement had reality and results.From the letter one can see immediately the attitude of our Civil Service. It is exactly the same as that of the bureaucracy in the United States. Yet whatever it does it wants to avoid having a similar Act here. That is why the Head of the Civil Service is encouraging his heads of Departments to comply with the Prime Minister's dictum.
1289 There has been very little to show that the Departments have complied. One can give the odd example here and there, but as far as the public are concerned there is very little difference between the practice of this Government and that of any Government preceding them. On the whole, the Government's record in this very important field of official secrets and freedom of information is deplorable, in view of their manifesto commitment.
§ Mr. Deputy Speaker (Sir Myer Galpern)
Order. It will be no breach of the Officials Secrets Act if I mention that the winding-up speeches must begin at 9.35 p.m. Therefore, if the six or seven hon. Members who still wish to participate in the debate will limit their speeches to 10 minutes, they will be accommodated.
§ 8.35 p.m.
§ Mr. Eric S. Heffer (Liverpool, Walton)
The hon. and learned Member for Montgomery (Mr. Hooson) made a good speech, certainly as to the first part, but perhaps he went on a little too long in his last comments. In general, he made his case extremely well. I do not want to become bogged down in any proposals, but I wish to say what I believe should be done in future.
The promise in the Labour Party manifesto was as follows:To replace the Official Secrets Act by a measure to put the burden on public authorities to justify wihholding information.That went much further than saying that we need to change Section 2 of the Official Secrets Act. It was a promise for positive enlarging legislation.
I listened carefully to the speech of the hon. and learned Member for Cleveland and Whitby (Mr. Brittan), and I agreed completely with the criticisms made by the hon. and learned Member for Montgomery. I do not believe that we have to follow slavishly the freedom of information legislation in the United States of America, nor do we have to follow exactly similar legislation produced in the Scandinavian countries. In my view, we should seek to lay down freedom of information legislation whose provisions are particular to this country. I believe that we should seek to enact such legislation in the interests of open, democratic government.
1290 The Opposition constantly suggest that Labour Members want this country to be run on the lines of an East European authoritarian State. I remind the Opposition that there is no committee of the Soviet Communist Party which has sat down to work out a freedom of information Act in the Soviet Union—and that will not happen.
The fact is that a committee of the Labour Party is on the point of publishing a freedom of information Bill—legislation on which we have worked at considerable length and which in our view is applicable to British conditions. That is a clear indication that, so far as is humanly possible within certain limits, we want the most open government that we can get. One recognises that there are limits because, for example, one cannot allow total freedom of information on defence, security or foreign diplomatic relations. However, no doubt we could go much further on the subject of foreign diplomatic relations than we do now. There used to be an old radical school which argued for what it called open diplomacy. Certainly we could have more open diplomacy, but there are limits.
There are also limits on the dissemination of commercial secrets, as I know from my personal experience in the Department of Industry. Obviously one learns a great deal about various commercial interests. It would be wrong for there to be disclosure when competition is involved, as it sometimes is, between, say, private enterprise and public authorities. One cannot disclose every piece of information. However, we can go a long way in the direction of disclosure—certainly much further than we have gone up to now.
I believe that not only should we be concerned with Section 2 of the Act but that we should also give close examination to the effects of Section 1.
I shall not make a long speech, because I merely wish to put on record the fact that the members of the national executive of the Labour Party hope that when the Government's White Paper is published—it is long overdue, and we wish that it could have been published earlier—it will provide not only for changes in the Official Secrets Act but for the enactment of some type of freedom of information legislation. I emphasise that 1291 recently we have been working very hard to produce a Bill on this subject. We cannot say that there is not one available, because we are going to have one available. We should like to have seen that done.
When the White Paper is produced we want to see the pledge carried out in the Queen's Speech, which was much more restrictive than the pledge in the manifesto. Section 2 must be dealt with We also want a clear understanding in the White Paper of the type of future legislation that is being produced by the Government, which in our view should be along the lines of a freedom of information Act. That is vital in the interests of good government.
I finish by quoting what James Madison, a famous American, said as far back as 1822:A popular government without popular Information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both. Knowledge will for ever govern ignorance and the people who mean to be their own governors must arm themselves with the powers which knowledge gives them.If we are to have good democratic, open government in this country—we have good government compared with other countries, hut it needs to be better—involving all the people, we must have the legislation that we think is vital and that the Labour Party is pledged to introduce. I admit that we are late in introducing such legislation, but the party is pledged to it and we want the Government to act along these lines.
§ 8.42 p.m.
§ Mr. Mark Carlisle (Runcorn)
If I were Lord Franks and the Government asked me to chair a committee of any kind, I would tell them in fairly offensive language to go and look elsewhere. What is Lord Franks's history? In 1971 he chaired with distinction the important committee to review Section 2 of the Official Secrets Act. He reported in September 1972. In 1973 the then Conservative Government in principle accepted what he said. The Labour Government, on coming to office shortly afterwards, in principle accepted what he said. Yet here we are in 1978 and nothing has happened.
The year before last, Lord Franks generously gave up his time to chair a committee, of which I happened to be a 1292 member, dealing with a case for of against a register of dependants of immigrants. Lord Franks was told by the then Home Secretary that the purpose of the report, which we were asked to produce with great urgency, was the continuation of debate. We produced the report. We were asked to produce it by October. We got the report to the Ministers by the beginning of November. The report was published in February 1977. Here we are in June 1978, nearly 18 months later, and the Government still have not found time to debate the report of Lord Franks. I therefore have some sympathy with Lord Franks.
I say to the Minister—I do not say that his Government are guilty rather than any other Government—that it is not good enough for us to set up committees under distinguished chairmen, with distinguished members, as were on the original Franks Committee, ask them to do an immense amount of work and then not even debate their reports or not implement them when we say that we agree with them.
§ Mr. Carlisle
That intervention saddens me even more because it means that the Minister of State has not even read the Franks Report on a register of dependants, because at no stage did we reject the proposal. We said that the acceptance or rejection of a register was a matter for Parliament to decide after debate. We merely set out the facts on which the decision should be assessed. If the Minister has any doubt about that, he should ask his hon. Friend who was a member of the committee.
The real objection to Section 2 is that it is far too wide and too much of a "catch-all" provision. I agree with my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) that obviously there must be some secrets that a society and a Government are entitled to retain. There must be matters of defence, internal security and those involving diplomatic relations with other 1293 countries on which a Government are entitled to say that it is essential that certain information should remain secret and that they should have the sanction of the criminal law to back that up.
Equally, and just as important, there is much information that comes to a Government relating to matters concerning a private individual. Often he is required to provide that information by statute, whether it concerns matters to do with his health, his financial position or whatever. He gives that information on the understanding that it will remain confidential, and it is not sufficient to say that the internal disciplinary methods of the Civil Service can ensure that confidentiality. The individual citizen is entitled to feel that the confidentiality of which he has been assured is backed by the sanction of the criminal law.
On the other hand, there is the equally important principle that the citizen should have the right to know as much as possible. One of the problems of democracy is striking the right balance, and the main criticism of Section 2 has always been that it has not got the balance right and that in the complicated sort of government that we have today it goes too far to discourage the communication of information and further than is necessary to protect the interests that should be protected by the criminal law.
The Minister said that, in practice, prosecutions that are brought under the Act are justified. I agree, but that misses part of the point. The question is how much information is being withheld from publication which we cannot justify being withheld.
Another criticism concerns the lack of clarity in the law. Newspapers and the media are entitled to know in advance what they may print. It is not sufficient for them to have to rely on the good sense of the Attorney-General not to bring proceedings on matters that they believe it is in the interest of the public to know, but which, tecnhically, still come within the scope of the Official Secrets Act.
There is a body of opinion expressing concern that, since much private information is going on to computer, there is a danger that the confidentiality that has existed in the past is becoming less clear.
The Minister said that only one charge had been brought in recent years, but he 1294 will realise that that is not necessarily a case for the Act or even for its emplementation. It is possible to reach a situation in which a law gets into such disrepute that it is difficult to implement. Once it has been said, as Mr. Justice Caulfield said at the end of a trial which received considerable publicity, that a law should be pensioned off, it is difficult for the Attorney-General to activate it on other occasions if he feels that he wishes to do so. Therefore, there is a case for action of a legislative nature to be taken.
I think that the Franks Committee got it about right on the basis of information that requires to be classified. I believe that it got it about right as regards the type of activities that should be covered by the various sections of the Act.
I am somewhat doubtful about the recommendation of my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers) with regard to the Law Lord and two members of the Privy Council. I can understand the objection of the Minister in his own Department, but I am not sure whether my right hon. and learned Friend has it right.
I am glad to hear that at long last a White Paper is coming. I take it from the Minister's commitment that he means that it will appear before the end of July. I hope that we shall see a Bill in the near future dealing with this whole area, at least as a basis on which Parliament can further debate what should be the right limitation of the criminal law in the dissemination of information.
§ 8.52 p.m.
§ Miss Jo Richardson (Barking)
It is not often that I have the occasion to be thankful to the Opposition for introducing a debate, but I have a feeling that if they had not chosen to use part of one of their Supply Days to debate the Official Secrets Act we might never have had the opportunity to debate it and all the surrounding problems that have arisen from it.
Not one hon. Member has been able to congratulate the Government on their speed in introducing the commitment contained in the Labour Party manifesto. There is concern in the House, and it is true that there is growing concern among the general public, about the operation of the Act. There is concern about the general problems of secrecy and the sort 1295 of veil of secrecy that surrounds more or less everything that the Government do. I am talking not about the Labour Government in isolation but about Governments as a whole. I am talking about successive Governments. It is something that has existed during not only the period of the Labour Government but for ever in the history of Great Britain. It is about time that we put a stop to it and moved towards that in which we really believe and that which people want—namely, much more open government.
More and more people now seem to be running the risk of being caught under the Act. That is because as the sections are worded they can catch anyone receiving or discovering any piece of Civil Service information. I am glad that my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) was able to place on the record the Labour Party's commitment in its manifesto not to amend the Act but to replace it. That is the most important part of the commitment. There is the commitment to replace it with some form of freedom of information legislation. As my hon. Friend said, the burden will be put on public authorities to justify withholding information.
There is a firm commitment in the manifesto. There is no firmer commitment to be found in it. However, we have had nothing so far. Give or take an autumn or a spring, we are within sight of a General Election. We are now promised—we have been promised for some time—that we are in sight of a White Paper.
What has been happening all this time? We have heard from the Minister of State—we are grateful for his explanation—that there have been difficulties. We have been told that much information has to be gathered together and that it has not been possible, for that and other reasons, to produce a White Paper earlier. However, we are now in mid-June and we shall go into recess towards the end of July. We may or may not have a General Election in October. We may not have the General Election until next spring. Either way, there is not a hope in hell of getting any legislation on to the statute book between now and a General Election.
What is more, I am worried whether we should have a White Paper at all. If the 1296 White Paper contains only a promise to reform Section 2 of the Official Secrets Act and a reference only to a Freedom of Information Act, the Government can keep it. They should think again and produce something more in line with the Labour Party manifesto commitment.
Several hon. Members have referred to commitments made by the Government about their plans for introducing some kind of reform of the Official Secrets Act. I remind the Minister of State that in November 1976 the Home Secretary, outlining his plans for the reform of Section 2, said thatthe mere receipt of official information should no longer be an offence.My right hon. Friend also said that the Attorney-General shouldtake into account the Government's intention to introduce legislation on the lines I have indicated in considering whether to bring proceedings under Section 2."—[Official Report, 22nd November 1976; Vol 919, c. 1882–3.]What has stopped the Government from doing something? That was over 18 months ago. Since then we have had nothing but promises, promises. They go on giving promises, but nothing happens.
We all believe—I am sure the Government will deny this—that the Civil Service is stopping anything from being done. I think that there are forces within the Civil Service, the police and perhaps across the generality of the "establishment" which do not want any change in the law and that those forces are stopping us. I think that a Labour Government, above all, should have the clout to break through and produce something more in line with what the general public need.
We have heard what other countries are doing. I agree with my hon. Friend the Member for Walton that there is no necessity for us to base our Freedom of Information Act, which I hope we shall eventually get, on anyone else's pattern. But we can learn many lessons from the experience of the United States, Sweden and other Scandinavian countries. They are to be admired for having pioneered a better form of open government than other countries have experienced.
For example, the United States—I believe that this is also true of Sweden—has shown what the law has cost because some people have made use of it for their own ends. It has changed the 1297 relationship between the Government and the community That is why we are having this debate. We want a changing and closer relationship between the Government and the community.
We do not have any right of access to information in this Parliament. I was interested to read the long and valuable list of Questions tabled by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) and the even more valuable list of answers which appeared in Hansard. My hon. Friend asked each Government Department in turn what Questions could be asked and what Questions would be answered, and he got some dusty replies. I think that the list should be pinned up in the Table Office so that we know exactly where we stand whenever we try to get information on behalf of our constituents.
The other side of the freedom of information coin is privacy. I am not certain that we can deal with freedom of information and privacy in one Bill, but the two must be taken concurrently. It is crucial that we should have a law to control personal records. Individuals must have the right to see, check and challenge their own files.
§ Miss Richardson
I shall come to that in a moment. More and more individuals are becoming worried about this matter. My hon. Friend the Member for Newham, North-West (Mr. Lewis) made a telling reference to it. Much research has been done. Until recently, I did not realise that the files which begin with our school records can follow us for a considerable period of time after we leave school. I was horrified to find that that is so.
Unsigned comments of teachers can follow pupils beyond school and through university to their subsequent jobs. Comments such as "This lad is aggressive" can follow a boy after he leaves school. There is no signature—just that phrase. When that boy becomes of employment age, his employer can see that comment and say "I do not want this boy because he is aggressive". All sorts of off-the-top-of-the-head comments are made and it can be dangerous.
§ Mr. Andrew F. Bennett (Stockport, North)
Is my hon. Friend aware that there is often pressure on teachers to put some entry on to the record card? There is much pressure on the teacher who is filling in the form to look round for something to say about a child, because there is disapproval if the form is left blank. Exaggerations can be forced on the teacher who feels that he must say something.
§ Miss Richardson
I agree. That is a valuable point which I had not thought about. I can see that a headmistress or headmaster might take a teacher to task for returning a blank report on a child simply because he or she had no particular comment to make. Parents should be able to go to the school, demand the right to see their child's file and challenge what has been said.
There are also medical records and Department of Health and Social Security records which have been shown to contain detrimental comments. I read of a case where a single mother on social security happened to see her DHSS file. I do not know how she managed that, but I bet she is glad that she did. It said that she was neurotic and that she needed father figures. It also criticised her political views. I dispute the right of a DHSS official to make such comments on the record. But at least such a woman should have the opportunity to see her file, to challenge it and to have anything which is incorrect put right.
There has been discussion about a data protection authority. We are eventually to have an authority to supervise computerised information, from wherever it comes. When will this authority be introduced? At the same time as responding to this debate in its demand for a revision of the Official Secrets Act, the Government should make an urgent move forward so that people are protected by a data protection authority.
These are all matters that the Government ought to have brought forward a couple of years ago. We ought now to have been able to debate the results of a Freedom of Information Act and decide whether it had been working successfully. I am sorry that it is a Labour Government who have delayed and dragged their feet on this issue for so long.
§ 9.5 p.m.
§ Mr. Jonathan Aitken (Thanet, East)
The hon. Member for Barking (Miss Richardson) spent much of her speech criticising the Government for their delay in implementing any meaningful reform of the Official Secrets Act, and I share her impatience. The Government's attitude towards implementing such a reform reminds me of the old Punch cartoon which depicted an elderly gentleman sitting in a rocking chair being asked by a social worker what he did all day. The old gentleman's reply was "Sometimes I sits and thinks, and at other times I just sits." The fact is that the Government have been sitting on reform of the Official Secrets Act in spite of the mass of pledges for urgent action. They have been sitting on the Franks Report for almost five years. Also gathering dust in the Lord Chancellor's office is the Franks Report on defamation, the Younger Report on privacy and the Phillimore Report on contempt.
All these important law reforms, impinging as they do on the freedom of the Press, need implementing in order to clarify the very real difficulties under which Press and television work today. I agree with the much-quoted comment by the distinguished editor of The Sunday Times, Mr. Harold Evans, that in Britain today we have a half-free Press and that it will remain half-free until the Government do something to speed up these various reforms, and the one it could best start with is the one that we are discussing tonight.
It is salutary to recall—it is a matter of shame to several generations of parliamentarians—that in this brief half-day debate we are spending five times as long as the 36 minutes that was devoted to the debate which the House of Commons conducted in passing all stages of the Official Secrets Act 1911, which is still the basic legislation governing this matter today. As a result of that unseemly and unnecessary haste it is small wonder that we still have a badly drafted and unsatisfactory piece of legislation.
The defects of that Act are far too well known to need lengthy exposition. Suffice it to say that the catch-all nature of Section 2 is so vague and broad that it fails to draw a clear distinction between espionage and leakage and between those disclosures which compromise national 1300 security and those which merely embarrass the Government of the day. The Act has been made obsolete by a change in national status and, above all, by the enlargement of the activities of government.
So we face a situation in which the same legal teeth that in 1911 were sharpened to prevent information on the movements of the Royal Navy's battleships from falling into the hands of enemy agents are today being used merely to prevent embarrassing gossip about maladministration of the welfare services from falling into the hands of national newspapers. This trend has brought about a situation worthy of Parkinson's Law, whereby the pressures towards tighter official secrecy seem to be growing in inverse proportion to the diminishing number of secrets worth guarding.
An example of this that might amuse the House occurred when the student daughter of the well known television interviewer Ludovic Kennedy recently sought a vacation job as a temporary gardener at Hampton Court Palace. Before she was allowed to embark upon the momentously secret task of planting crocuses the Department of the Environment solemnly required her to sign a form reminding her of her obligations under the Official Secrets Act.
But that example is perhaps not quite so absurd and isolated as one might think Here I take up a point made by my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan), who stressed the fact that the lack of prosecutions was no guide to the effect of the Official Secrets Act still being on the statute book. The form that Miss Kennedy signed is Form E74, which has printed on it the whole of Section 2 and a reminder of the obligation to obey it. That is the form that every new recruit to the Civil Service is still made to sign. It is the form which only last year even the elected members of the Housing Executive in Northern Ireland were made to sign, before they could begin their top secret duties of allocating council houses.
It is this form which, even though criticised by the Franks Committee for its erroneous and misleading wording, still hangs like the sword of Damocles over the head of every minor bureaucrat in Britain and which, by an implied 1301 threat of prosecution—which, incidentally, is no longer valid, given the disuse of Section 2—nevertheless has the significant effect of blocking the free flow of information.
If the Government want to display their good faith in reducing the pressures of official secrecy and moving towards more open government, I suggest that they look at paragraphs 26 and 27 of volume 1 of the Franks Report and immediately discontinue issuing Form E74. It is a simple administrative change. It could be implemented long before any legislation is brought in. I suggest that the Minister should do this forthwith.
In what other directions should we reform the Act? On this subject, everyone is an instant expert. There are many siren voices making suggestions, sometimes very radical suggestions. I agree entirely with the distinguished speech made by my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers) in opening the debate. The real problem is to strike a balance between the Government's right to preserve confidentiality and, sometimes, absolute secrecy, on the one hand, and the public's right to know, on the other hand.
How do we do this? Again, I agree with my right hon. and learned Friend. There can be no real argument about national security secrets. Espionage, anything that jeopardises the defence of the realm, or the security of the State, is in this category and is probably covered already by Section 1 of the Act—and, incidentally, by the D notice voluntary system, which, on the whole, works very well because media editors, who are sensible and patriotic men, realise that foolish risks need not be taken by disclosures in these areas.
But do we need anything in place of Section 2? If one simply had a one-clause Bill abolishing Section 2 and putting nothing whatever in its place, what would happen? Would Government secrets pour into the columns of the Press like the waters of Niagara? I doubt it. Internal disciplinary codes are already very strong and the Government already know well how to maintain their own confidentiality.
§ Miss Richardson
Does the hon. Member agree that Section 1 overlaps 1302 Section 2, and that simply to take out Section 2 might not do the job?
§ Mr. Aitken
As the New Law Journal said in a different context, the Official Secrets Act is as long as the Attorney-General's foot. The discretion to prosecute is so large that of course there is an overlapping area. But I believe that in the past, on the whole—I do not wish to comment on any current cases—the discretion to prosecute has always been well exercised, and only national security and espionage matters have been—previously, at least—covered by Section 1.
§ Mr. Aitken
But if real fears exist—and they may exist in the areas of budgetary secrecy or exchange rate matters, from which individual civil servants could make commercial gains by disclosures—an Official Information Act of the kind that has been suggested, or a Civil Service Information Act, could lay down certain penalties for Government servants who break the confidentiality rules.
Any such Act should have a positive declaratory section reminding civil servants that it is their duty to communicate as much information as possible to the public, as wel las imposing certain negative penalties in respect of breaches to which I have referred.
I do not in any way go along with the Scientologists, the national executive committee of the Labour Party, the public secrets group of the Outer Circle Policy Unit, and other assorted cranks and crackpots who appear to want total disclosure and an automatic right of access to all Government information. I support wholeheartedly the criticisms of the Freedom of Information Act as it is working in America, made so eloquently by my hon. and learned Friend the Member for Cleveland and Whitby. Such an Act would tilt the balance too far. The authority of government cannot be maintained in a goldfish bowl, where everything is on display or about to be displayed. A balance must be struck, and I believe that my right hon. and learned Friend got it right in his excellent speech today.
§ 9.14 p.m.
§ Mr. Christopher Price (Lewisham, West)
I shall try to heed your warning, 1303 Mr. Deputy Speaker, and that of Mr. Speaker at the beginning of the debate.
I am very glad that the Hansard of 1911 for the day when the Official Secrets Bill went through the House has at last achieved some notoriety. I put in a submission to the Committee of Privileges, and having Xeroxed the relevant copy I sent it in. I am sure that the fact that it has been widely quoted today has nothing to do with that and that all hon. Members have done their individual research.
For those who assume that our laws have been fully considered by Parliament before being put on to the statute book, I think that the Official Report of that debate is an object lesson of how not to put through legislation. When the 1911 Bill went through Parliament, assurances were given by the Attorney-General and the Secretary of State for War that it would be used only against what I would call bona fide spies. It is now being used against a much wider range of people.
I think that Parliament's intentions are in danger of being frustrated. That is why I am glad that there is such a wide discussion on the whole issue. We cannot discuss the two sub judice cases, but I can mention the Hosenball deportation because that is over. It is instructive to remember that Mark Hosenball, who was expelled from this country as being a danger to the State, is now an accredited White House journalist and was attending our Prime Minister's Press conference in Washington a week or so ago.
The standards that the United States takes for granted as a result of the Freedom of Information Act are not yet accepted in this country, because we have a tradition of secrecy that runs far deeper than in any other country among the EEC Nine that I have come across and far deeper than in the United States, particularly since Watergate.
I suspect that the problem with the Official Secrets Act is that when the Bill went through Parliament in 1911 it was absolutely accepted who was a spy and who was not. A spy was a man with a sketch pad sitting in Portsmouth, sketching the batteries facing out to sea. If one saw someone doing that, even though he said he was there to listen to 1304 the birds—as Viscount Haldane mentioned in one case—he was a spy.
In the past 10 years there has been a persistent campaign by certain senior Ministry of Defence people, by certain generals, saying that the enemy is not without but is within, and that the security we need is not so much against Russian or Chinese spies as against people whose loyalty to this country is in question for political reasons. The moment that argument is accepted—that ordinary British citizens might be proceeded against for their political opinions under the Official Secrets Act, because they are somehow analogous to German spies in 1911—we are in extreme danger.
That is why I very much hope that when we get down to reform we shall not only reform Section 2 on the lines Lord Franks recommended but go much further. We are in a new situation. If any Government, whichever party happened to be in power at the time, attempted simply to reform Section 2 and do absolutely nothing about the spill-over of Section 1 and absolutely nothing about moving towards some sort of Freedom of Information Act, some of us might say "We shall block any reform of Section 2 until we get a much wider and much more comprehensive reform."
I was sorry to hear the hon. and learned Member for Cleveland and Whitby (Mr. Brittan), for whom as a lawyer I have a great regard, lambasting the United States Freedom of Information Act as he did. Any new Act has teething troubles, but anyone from the United States whom I asked says that on balance, although there are teething troubles, its effects—particularly about the information which now never needs to be asked for, and which comes forward automatically—are wholly good. I was sorry to hear the hon. and learned Member, say "Let us reform Section 2 but let us not bother with a Freedom of Information Act." He is probably wanting to appear rather more of a judicial good boy, feeling that a place in the Government may be coming his way one day.
I very much hope that Tory Members who have campaigned in the way that the hon. and learned Member for Cleveland and Whitby and the hon. Member for Thanet, East (Mr. Aitken) have done do 1305 not go all soft and weak at the vague prospect of a little more responsibility in future. This is an all-party matter and it will need a united front to crack the civil servants, who in my view have not given up and will continue to try to prevent any reform in future, even of Section 2 of the Act.
I give notice that there will be many of my hon. Friends, and, I hope, Tory Members, who will not be satisfied with mere Franks Section 2 reform and who, when whatever Government may be in power came to legislate on the matter, will want to go a good deal further.
Because of the plea for brevity, I end with a short moral tale about how matters have not changed. We have heard the story of the crocuses in Hampton Court. Some people may have seen the story in The Guardian diary today about Peter Laurie's book entitled "Beneath the City Streets". Mr. Laurie is a distinguished Sunday Times journalist who wrote this book in 1968. He submitted it to the then Home Secretary, the present Prime Minister. The then Home Secretary gave it the OK. It went through and was published.
Mr. Laurie now wants to republish the book, with a little extra information in it. He is a law-abiding citizen, and so he resubmitted his book to the Home Secretary, the Attorney-General and the Minister of Defence saying "Would you like to comment on this before it is published?" He finds that the Attorney-General, the Ministry of Defence and the security authorities have objections. Being an excellent, law-abiding citizen, he asked "What are these objections, because I am happy to cut out anything to which you object?" They have written back saying "That is something we cannot possibly tell you. To tell you what we object to would be revealing an official secret."
§ Mr. John
I hope that that part of the diary item is more accurate than the first paragraph, where it is said that Members of Parliamentdebated the Official Secrets Act yesterday.
§ Mr. Price
I have done a little work to check this story and I can assure my hon. Friend that to the best of my belief it is absolutely accurate in the particulars I have mentioned. If the Government 1306 behave in that way, they cannot object if an author who wants to write a book about things which may be on the borderline does as most American authors do—namely, take the book to a publisher without asking any questions and allow publication to go ahead, so that it is too late for the Government to do anything about it.
I do not make a great point about this. It is a moral tale, like the Hampton Court tale. People do not change, and there are those in the government—I do not blame Ministers, because some are anxious for reform, but there are civil servants—who have not realised that we are post-Watergate. We are in a quite different situation regarding freedom of information as compared with 10 years ago. Something has to happen now. I have been encouraged by the speeches from both sides of the House to feel that, whatever happens at the General Election, there is a three-party consensus which will ensure that we not only reform Section 2 but, I hope, go a good way beyond that.
§ 9.25 p.m.
§ Mr. Percy Grieve (Solihull)
As the hon. Member for Lewisham, West (Mr. Price) said, there has been a remarkable consensus, although perhaps not remarkable in the sense that one says "remarkable" when something is extraordinary. It is, I venture to suggest, right and proper that there should be such a consensus, and there has been a remarkable consensus across both sides of the House and across all the parties that have participated in the debate tonight, with regard to Section 2 of the Official Secrets Act.
It has been universally agreed in parliamentary circles for a long time now, for far too long, that Section 2 has served its purpose and ought to be repealed—if it ever had a purpose which justified the extreme terms in which it is couched.
It is seven years since, in the case in which my hon. Friend the Member for Thanet, East (Mr. Aitken) was concerned, Mr. Justice Caulfield said of that section that it had reached retirement age and ought to be pensioned off. It is six years since the Franks Report was published. It is five years since the then Home Secretary—now Lord Carr—when the Conservative Party was last in power, pledged the Conservative Party to implement the main considerations of the Franks Report. 1307 Within a few months the Conservative Party had gone out of power and we had a Labour Government, at the beginning of 1974. In 1975, the Home Secretary promised that the Franks Report, or something along its lines, would be implemented. The Prime Minister, in interventions in the House of Commons, expressed similar views. That was three years ago.
Whatever view we take about the Government's ultimate length, they are approaching their end. I can think of no better task for the last days of this moribund Administration than implementing the promise made in 1975 and getting on with the job. We do not need a White Paper to deal with Section 2 of the Official Secrets Act. That section could be dealt with quite briefly in legislation which, I believe, would have unanimous approval across the House of Commons.
I cannot agree with the hon. Member for Lewisham, West—I make this point unreservedly and straight away—with regard to other parts of the Official Secrets Act. I regretted hearing him say that somehow support from him, and perhaps some of his hon. Friends, for a repeal of Section 2 would be made dependent upon a recasting of Section 1. I believe that Section 1 is necessary—or something along the lines of Section 1 is necessary—for the essential defence of the realm. Something like Section 1 is essential in any society to safeguard itself. Section 2 is altogether different. Section 1 protects the safety of the realm. Section 2, as I see it, protects the convenience of the Government.
§ Mr. Christopher Price
Does not the hon. and learned Gentleman agree that Section 1 and something like Section 1 are not the same thing, and that there are certain defects in Section 1 which could well be cleared up at the same time as Section 2, particularly the duty on the defendant, in certain circumstances, to prove his innocence, rather than vice versa.
§ Mr. Grieve
No legislation is perfect and I am not here to say that Section 1 is a perfect instrument to do what it does. But I am bound to say that on matters of espionage, the limited reversal of the burden of proof is something which I believe the State, in self-defence, has 1308 the right to insist upon. Whereas in a consideration of the whole of this legislation it would be right that Section 1 should come under the microscope along with the rest, I repeat that Section I or something like Section 1 is essential to the defence of the realm.
Section 2, however, is a matter of the convenience of the Government. The Franks Report has broken down the matters that might legitimately come within the purview of a new Section 2. In the short time available, I shall not take up time in expressing my support for the analysis of the Franks Committee as it was expressed by my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers) when he opened the debate this evening, and as it has been expressed by my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan).
I believe that something along the lines of the Franks Report is right. But Section 2 in fact has been used in terrorem. The reason why a great many bureaucrats want to keep it is not that they necessarily want to see prosecuted in the courts—I take the point made by the Minister—those who may infringe Section 2. Of course, there is the Attorney General's fiat, which is necessary for a prosecution. It is there to deter people from in any way breaching Section 2.
I hope that I am not being too historical in going back to one of the most famous prosecutions under this Act, that of Sir Compton Mackenzie in 1932, when I was a boy of 16. It was, on the face of it, a wanton and foolish prosecution. Compton Mackenzie had written a book of memoirs on his work as an officer in Greece during the First World War, in which he mentioned one or two persons who were concerned in similar activities. One of them had detailed his work in "Who's Who?" Others had been mentioned in a book by Sir Basil Thompson "Allied Secret Service in Greece". Why on earth was he prosecuted? He was obliged to plead guilty. He was so advised by his counsel, and Mr. Justice Hawke, who tried the case, said that he had no option. Indeed, he had not.
But why was that man prosecuted in those circumstances? It was not because 1309 he had done anything wicked, reprehensible or injurious to the realm. It was because the Government of the day thought that this was a very good way of deterring others from writing similar books of memoirs.
That is the way in which Section 2 has been used. That is the function of Section 2 as it is being used at present. As Voltaire said, when Admiral Byng was shot for alleged cowardice and everyone throughout civilised Europe exclaimed in horror at our act:C'etait pour encourager les attiresThis section is so used, and so used it is reprehensible. So used it ought to be repealed. The sooner it is repealed the better.
I come back to where I was a few minutes ago. What better way have the Government of employing their time—and they have plenty of time on their hands, because they have very little else to offer us—in the declining days of their administration than in implementing a promise that was made three years ago. I have very little hope, but hope springs eternal in the human breast. Perhaps the voices which have been raised on both sides of the House in this debate will encourage them to do so. I very much hope that they might bring to an otherwise perhaps not brilliant history, when it comes to be written, at least the virtue of having repealed Section 2 of this Act and put in its place something more consistent with the needs of the modern State and of modern government.
§ 9.34 p.m.
§ Mr. Edward Gardner (South Fylde)
This debate has at least shown that there is no secret, if there ever has been, of the views of the House about the need to replace Section 2 of the Official Secrets Act as soon as possible with sensible law. That notorious section, which was passed swiftly through Parliament on a quiet afternoon in 1911, is still a giant of a legal broom with an absurd propensity, when it is let loose, to sweep everything before it, good or bad. It was and it still is prevented from making a continuous ass of the law only by the wide discretion of Attorneys-General of successive Governments who alone can decide when it has to be brought out of its cupboard.
1310 My hon. Friend the Member for Thanet, East (Mr. Aitken) said that the section was badly drafted. That is about the most polite comment that can be made about it. It is quite clear from the opinions of right hon. and hon. Members on both sides of the House that, as Franks said, the section is "a mess". It is as repugnant as it is ridiculous. It is bad law, and it is bad sense that, because of this section, any official information or document becomes a State secret to which the section applies whether or not it is classified, secret or confidential or affects the nation's security.
As speaker after speaker has made clear, it is very odd that this major piece of legislative folly is still on our statute book, capable of making a fool of anyone who tries to invoke its powers.
As so many right hon. and hon. Members have pointed out, the worst features of the section are its width, its uncertainty and, above all, its failure to distinguish between the communication of official information which could merely be a political embarrassment to the Government of the day and classified information which would cause serious damage to the nation's security.
As my hon. and learned Friend the Member for Runcorn (Mr. Carlisle), my hon. and learned Friend the Member for Solihull (Mr. Grieve) and the hon. and learned Member for Montgomery (Mr. Hooson) all reminded the House, in the Sunday Telegraph case in 1971 Mr. Justice Caulfield described the section in his summing up as one which should be "pensioned off". It was then 60 years old. It is now 67 years old, and it is still poisoning the relationship between the Press and Whitehall and between the Civil Service and the public.
In 1968, Fulton called for greater openness in government, and that is a call which the Opposition support. From what we have heard in this debate, it has the support of both sides of the House. In our view, Franks shows how the first and necessary step towards the reform of the law is the replacement of Section 2 with a sensible and effective new law which will enable the Press, people, politicians and all others who have to tread through this minefield—and again I use the words of Mr. Justice Caulfield—to determine without great difficulty in what circumstances the communication of official 1311 information would put them in peril of prosecution.We are strongly opposed to excessive and needless secrecy in administration. We see it as a formidable shield for administrators, the Civil Service and the Government of the day, which makes for bad government and can and does ultimately undermine democracy.
It appears from what the Minister said at the beginning of the debate that the Government now want to go beyond Franks and the mere replacement of Section 2 of the Official Secrets Act. We have been hearing from hon. Member after hon. Member tonight advantages and disadvantages of a Freedom of Information Act along the lines of the one now in force in the United States and in the Scandinavian countries.
My hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) has brought before the House a catalogue of disadvantages of such an Act. The hon. and learned Member for Montgomery was slightly unfair in suggesting that my hon. and learned Friend has been unduly influenced by speaking to members of the American Civil Service who may not like that kind of legislation. It seems to me much more likely that he has been speaking to Mr. Roy Jenkins, who went to America to see how the amended law was working and came back with the view that it was costly and cumbercome legislation. This seems to bear out other views that the legislation was formidably burdensome.
If the Government are looking at this problem seriously—and I hope they are—they should devote thought to providing some idea of their thoughts. At present neither the country nor the House has any form of guidance. In fact, I think that this is the first time that the House has heard that the Government now want to go beyond the Franks Committee's recommendation.
§ Mr. Arthur Lewis
The hon. and learned Member has just asked the Government whether they will consider this. But they have been considering it for five years and have come up with nothing. Does he really think that the next five years will be any different?
§ Mr. Gardner
No, I do not, but what I am saying is that tonight we appear to 1312 be hearing for the first time about the Government's ambition to go beyond the recommendation of Franks. I am merely saying that if the Government are going beyond Franks and looking at a Freedom of Information Act it is imperative that they should produce a White Paper on that rather than on Section 2.
§ Mr. Hooson
But the Home Secretary said in 1976 that he would go beyond Franks. He has two years to go beyond Franks and has not done so.
§ Mr. Gardner
I agree with that. But what the Home Secretary did not say, and what the Minister has said tonight—I am open to correction if I have understood him wrongly—is that in going beyond Franks the Government are looking at a Freedom of Information Act.
It is all very well to talk about great reforms of the law, but no reform of the law can ever be acceptable or effective unless great thought is given to it. If we knew that the Government had been devoting their contemplative moments to considering whether there was any advantage in one form of law reform or another, we might have been slightly more impressed, but the somnolent posture of the Government towards Section 2 is remarkable.
It seems that for years Ministers have been talking in their sleep and doing nothing about the problem which we have been discussing tonight or about the solutions which have been put forward. They never seemed to wake up—until tonight. Tonight the Minister has promised that we shall have a White Paper before the end of July.
§ Mr. Gardner
We are not the Government, but we shall be soon and we shall put this matter right. When we came into Government in 1970, we had a debate within nine months of coming into office and we set up the Franks Committee. We are complaining—I think we are justified to the hilt in doing so—that the Government have done virtually nothing about the matter. Tonight they have promised that we shall have a White Paper by a given time—namely, the end of July. We are pleased to know that whatever other accomplishment may have been achieved 1313 by tonight's debate, which is on the initiative of the Opposition, we have at least apparently awoken the Government to the need for some kind of action towards the urgent reform of Section 2 of the Official Secrets Act.
§ 9.47 p.m.
§ Mr. Andrew F. Bennett (Stockport, North)
I am grateful to my hon. Friend the Minister of State for allowing me to take a couple of minutes of his time. I shall show my gratitude by posing just one question to him.
Will he think back on the way in which the Government set about preparing their White Paper on the Official Secrets Act and consider whether it would have been a good idea to publish all the drafts and memoranda that went into the preparation of that document? I think that publication would be a good indication of open government, and it would certainly enable hon. Members to see all the arguments that went into the White Paper.
§ 9.48 p.m.
§ Mr. John
With the leave of the House, I shall seek to answer a number of the points which have been made in this debate.
I wish first to deal with the speech of the hon. and learned Member for South Fylde (Mr. Gardner). He appeared at first to suggest that I had broken fresh territory. I am not usually loth to plead guilty to that, but in fact my right hon. Friend the Leader of the House, no doubt in the hon. and learned Gentleman's absence, announced the publication of a White Paper.
The hon. and learned Gentleman seemed curiously obsessed by the fact that I was going beyond Franks in promising a Freedom of Information Bill. I say nothing about that. I was addressing my comments to the counter-argument which has been advanced on many occasions—my hon. Friend the Member for Lewisham, West (Mr. Price) fell into this error—that if one reforms Section 2 in isolation, that will be a bar to going any further. I was suggesting that the modernisation of Section 2 was an essential prerequisite of that move. I should like nobody to be under any misapprehension as to what I said, but I thought that the hon. and learned Gentleman, 1314 judging by some parts of his remarks, was in another place listening to an entirely different debate.
The right hon. and learned Member for Wimbledon (Sir M. Havers) and the hon. and learned Member for Cleveland and Whitby (Mr. Brittan) dealt with the important question whether classification was necessary and how it could be proved to the satisfaction of a court. I fully understand the force of the argument that if the Minister is seen to do it on his own initiative, there is a tendency to regard him as judge and jury, but the hon. and learned Members for Montgomery (Mr. Hooson) and Runcorn (Mr. Carlisle) dissented from the forum into which the right hon. and learned Member for Wimbledon decided to place it, and when my hon. Friend the Member for Lewisham, West mentioned the Hosenball case, it reminded me that the reference to the "three wise men" on that occasion did not, to put it neutrally, command universal admiration. I beg the right hon. and learned Gentleman not to imagine that his suggestion would rid the matter of all criticism. It is important to get it right, and we shall study what he said as part of that process, but his proposal may not be the ideal solution, for reasons that he can guess.
§ Sir M. Havers
It is unlikely that any tribunal or committee of inquiry will achieve universal approbation. We are seeking to put up a committee that will receive the approval of the great majority of people. On the Agee-Hosenball case, few people did not accept the advice that the Home Secretary was given by the "three wise men."
§ Mr. John
I understand the point that the right hon. and learned Gentleman is making. Clearly it is important, but he must not expect universal approbation or immediate acceptance. It is important to get it right so that as wide an approbation as possible can be achieved. The right hon. and learned Gentleman said that a wide spectrum of the public accepted the advice given to my right hon. Friend, but a wide spectrum of the public was uninvolved in that case and may be uninvolved in the subject that we are debating. That does not change the rightness of it, but hon. Members should not exaggerate too greatly the public interest in this matter.
1315 My hon. Friends the Members for Newham, North-West (Mr. Lewis) and Barking (Miss Richardson) referred to computer security and the danger to private individuals of the records stored on computers. This goes beyond the Official Secrets Act, but my hon. Friends will know that we have set up the Lindop Committee to look into this matter. We hope to have in the very near future the report of its deliberations on how individuals and privacy can be safeguarded in an era when mechanical and electronic devices make it all too easy for there to be intrusion into that area.
§ Miss Richardson
What about files that do not go on to computers? The data protection authority covers computers, but there will still be many files in this country that are not held on computers.
§ Mr. John
I understand my hon. Friend's point, but she must not make a rejoinder to me on a point that I was not answering as though I had failed to answer her. I was addressing myself specifically to the question of computer privacy, which worries many people in this country. I shall look at what she has said about what may be called old-fashioned files that are compiled by hand, to consider the force of what she is saying.
§ Mr. Arthur Lewis
Should the public not have the right to see those files so that they can correct them when they are wrong? What is the use of having a file when much of the information in it is wrong and an individual does not have a right to see that information and correct it?
§ Mr. John
I hardly had time to answer it before my hon. Friend bounced up in his own inimitable fashion and intervened. The point that I am making to my hon. Friend the Member for Barking, as opposed to my putative duettist below the Gangway, is that I shall consider that problem and get in touch with her.
My hon. Friend the Member for Newham, North-West mentioned going one 1316 step further than Section 2. I repeat that in my view any step beyond Section 2 needs the reformation of Section 2, its modernisation and the narrowing of the offences contained within it before we can have a sensible discussion. That is what we promised to do in the Queen's Speech and that is a promise that we shall honour. I hope that my hon. Friend will accept my assurance.
The hon. and learned Member for Montgomery was worried about our failure to carry out our manifesto commitment. I thought that it was his party's proud boast that it had prevented the Government from carrying out their manifesto commitments. Obviously that is not always a universal virtue in Liberal eyes.
The hon. and learned Gentleman submitted an interesting document on the Official Secrets Act, especially on Sections 1 and 2. I have considered Section 2 and find that there are still problems, even on his formulation. If he wishes to discuss those matters with me, I shall be happy to do so. There are difficulties where he seems to feel that the simplification of the Franks' denominations and formulae is absolutely simple. From our examination of his paper and of the points involved, we do not believe that that is so.
The hon. and learned Gentleman complains that I am detailing the difficulties of legislating. Of course I detailed the difficulties. On the last occasion that the House enacted an Official Secrets Bill in half an hour, with an assurance that there were no problems, it made a mess of it. After all, we have Section 2. I am detailing the difficulties now because hon. Members will be aware that there are some problems that will need resolution and a White Paper.
The hon. and learned Member for Solihull (Mr. Grieve) was rather unfair to his Front Bench when he said that we do not want a White Paper. It was the right hon. Member or Penrith and The Border (Mr. Whitelaw) who asked for one. My right hon. Friend the Secretary of State for the Home Department assented to that request. Having done so, I believe that it was a good request. The formula of having a White Paper that sets out legislative proposals before a Bill is introduced is more likely to get the Bill right 1317 than if the Bill comes first, there is discussion on the Bill, the Minister tries to force it through and the Opposition try to amend it, sometimes sensibly and sometimes not.
§ Mr. Grieve
The hon. Gentleman has taken my observation slightly out of context. I said that if the Government were to fulfil their promise within the short time now available to them, there would be no reason for them not to have a Bill to replace Section 2 and no necessity for a White Paper.
§ Mr. John
It may be that my hon. Friend is greedy, but there cannot be a consensus when a preceding speaker had denied the central premise of the thesis of a consensus. We are saying that the White Paper will enable these matters to be debated so that by the time the Bill is introduced it will be a measure that will command the maximum support possible from the House.
Hon. Members, including my hon. Friend the Member for Newham, North-West, have been rather dismissive of all the information that is being circulated by the Government. A tremendous amount of extra information is now being submitted by Government Departments. Much more information is being given to ordinary members of the public than ever before.
Let us not kid ourselves. Some of the more esoteric concepts that we have been debating tonight leave the public indifferent. The public have had difficulty in the past in getting information upon which to found their objections when a road inquiry has taken place. That has to be contrasted with the Ministry of Transport's present procedure of producing information well in advance and having a procedure where the issues are simplified and narrowed. The public are grateful for that new approach. That 1318 information is a source of great benefit to the public.
I believe that the Government have a good record on the circulation of additional information—
§ It being Ten o'clock, the motion for the Adjournment of the House lapsed, without Question put.