§ Order for Second Reading read
§ 12.4 p.m.
§ Mr. Clement Freud (Isle of Ely)
I beg to move, That the Bill be now read a Second time.
There is a temptation on the part of an hon. Member drawing a high position in the Ballot to use the opportunity to introduce a private issue close to his heart. I had thought of a dishonours list—an annual beano involving a ceremony in which honours were stripped from the newly undeserving. I had considered a Bill to provide for the mandatory scrapping of an existing Act each time a new Act hit the statute book. The possibilities are endless and the temptations considerable.
I resisted the temptation. I looked at the hard-pressed Government, grafting away in their fifth year of office, and wondered whether, even though our temporary accommodation—which people would keep calling the Lib-Lab pact—wasover, there might be a Bill that would be of benefit to the nation, close to the hearts of my party and our supporters, and not a million miles removed from the policies of the Government.
I decided on an Official Information Bill, which would provide for people to have the right of access to such governmental papers as affect their lives, obviously excluding such documents as would endanger the security of the nation or be detrimental to the administration of the country.
Such issues currently fall under the Official Secrets Act, which stipulates, quite simply, that everything shall be secret. My Bill proposes a total change of attitude, so that everything shall be open, and makes exceptions. It relies on the generally accepted principle of spelling out what one cannot do instead of stipulating what one can do.
It is a reckless and irresponsible man who, when favoured by the gods of chance in the Ballot, as I was so singularly favoured in getting the No. 1 Bill, throws away the opportunity of 2132 introducing worthwhile reform by espousing a cause to which there is insuperable opposition.
My Bill, the three parts of which seek, in order of importance, to establish access to official information, to repeal section 2 of the Official Secrets Act 1911 and to bring in legislation to present security and confidentiality in place of the repealed Act, is something that I have reason to hope the Government will welcome with some warmth.
The Labour Party manifesto in 1974 said:Labour believes that the process of government should be more open to the public. We shall: Replace the Official Secrets Act by a measure to put the burden on the public authorities to justify withholding information.We know about Prime Ministers and manifestos, but Prime Ministers write the Queen's Speech, so let us look at the Queen's Speech of 1975. It said:Proposals will be prepared to amend the Official Secrets Act and to liberalise the practice relating to official information."—[Official Report, 19th November 1975; Vol. 901, c. 8.]In 1976, possibly because of an administrative hiccup, there was nothing about the Official Secrets Act in the Queen's Speech. The Home Office had not put the boot in, because the Home Secretary said:I will, with permission, Mr. Speaker, make a statement on the Government's intentions on the reform of Section 2 of the Official Secrets Act 1911. This section, which makes it a criminal offence to disclose official information without authority, has for some time been regarded as too broad in its scope. It has been described as a 'catch all' and there has been uncertainty about its interpretation and enforcement.The Government have concluded that this section should be replaced by an Official Information Act on the broad lines recommended by the Franks Committee. The Committee, whose membership included representatives of Parliament—including myself—and the media, and which presented a unanimous report, recommended that the sanctions of the criminal law should be strictly limited in their application."—[Official Report, 22nd November 1976; Vol. 919, c. 1878.]The Queen's Speech in 1977 said:Legislative proposals will be brought forward for the reform of section 2 of the Official Secrets Act."—[Official Report, 3rd November 1977 ; Vol. 938, c. 8.]The Queen's Speech of 1978 said:It remains My Government's intention to replace section 2 of the Official Secrets Act 1911 with a measure better suited to present-day 2133 conditions. My Government will continue to make information on public policy more readily available."—[Official Report. 1st November 1978 ; Vol. 957, c. 7.]It sounds as though we were meant to think back to the bellman in "Hunting of the Snark", who did at least say:What I tell you three times is true.We seem to have reached the point when what the Government have said six times is being delayed even further.
The Council of Europe report No. 4195 invitesThe governments of member states which have not yet done so to introduce a system of freedom of information, i.e. access to government files, comprising the right to seek and receive information from government agencies and departments, the right to Inspect and correct personal files, the right to privacy and the right to rapid action before the courts in these mattersWe have gone on waiting.
When I announced that, having drawn first place in the Ballot for Private Members' Bills, I would seek to introduce an Official Information Bill, the very recommendation that the Franks committee made and the Government—in the form of the Home Secretary—welcomed, a newspaper headline said "Freud Bill Embarrasses Government". Oh, cruel men of Fleet Street. Embarrass the Government? Here was I, eschewing those measures close to the hearts of all Liberals, not bringing in a Bill for proportional representation, hesitating to bring forward site valuation rating, helping out an overworked Government, and, far from public or even private gratitude, I am accused of embarrassing that same Government—embarrassing them with their own oft-repeated policy. It is akin to embarrassing a butcher with a meat-hook or a milkman with a carton of yoghourt.
Last Tuesday I had the good fortune to have Question No. 6 to the Prime Minister and for once, perhaps because the Leader of the Opposition did not once rise, it was reached. I asked the Prime Minister if he wouldcome out with a warm welcome to the Official Information Bill which I propose to bring before the House on Friday?The Prime Minister replied:It may not discourage the hon. Member for Isle of Ely (Mr. Freud) to know that the Government have it in mind not to oppose 2134 his Bill on Second Reading."—[Official Report, 16th January 1979 ; Vol. 960, c. 1496.]I looked behind for a knife. I really thought "With friends like that, who needs enemies?" If that is lukewarm support, give me an honest and dedicated enemy any day of the week.
Clause 1 of the Bill calls for the repeal of section 2 of the Official Secrets Act. It is a short sharp clause, because executions tend to be short and sharp. Until that law is fundamentally changed it will continue to be a crime to dispense official information, which is, of course, the purpose of the Bill. The Act that I seek to repeal was introduced in the Agadir crisis of 1911, the year that our Prime Minister was conceived—that is, if the gestation periods of Prime Ministers are similar to those for the rest of us.
Newsboys raced around the streets shouting "Uprising in Bosnia", and Parliament, in one hurried debate, rushed through all stages of the Act in under half an hour. It was a panic measure to deal with a minor spy crisis. It made it an offence for a servant of the Crown to communicate, or for anyone to receive, any official information. It made it an offence to fail to take care of it or retain it without authority. Finally—I do not argue with this—it made it an offence to use it in a manner prejudicial to the State or beneficial to a foreign Power, which is right and proper.
The maximum penalty—to show how important it was—for section 2 offences was two years in prison. It is interesting to note that whereas in 1911 the sum of £100 was probably more like £2,000 or £3,000 today, two years in prison in 1911 is more like 28 days, because in matters of sentencing, inflation works in reverse.
Let us now look at the definition of official information. According to the former head of the British security services—we should not mention his name because it is an official secret—anyway, according to Sir Martin Furnival Jones, anything that is on an official file is an official secret. If one wants to find out how to look after one's children in a nuclear emergency, one cannot, because it is an official secret; if one wants to know what noxious gases are being emitted from a factory chimney opposite one's house, one cannot, because it is an official secret. A man who applied for a job as a 2135 gardener at Hampton Court was asked to sign form E74, in case he gave away information about watering begonias. What is worse, if someone is good enough to tell one, then one is an accessory to the crime.
My contention is that section 2 gives the Attorney-General more power than a bad man should have or a good man should need.
§ Dr. Gerard Vaughan (Reading, South)
With apologies to the hon. Member for Isle of Ely (Mr. Freud), we ask your guidance on a point of order, Mr. Deputy Speaker, because we have just learned from the Press Association that the leaders of the London ambulance service workers have confirmed that they will not cover emergencies on Monday. In view of the very serious nature of the situation, we should like to ask the Secretary of State if he will make a statement later today.
§ Mr. Deputy Speaker (Mr. Oscar Murton)
I realise that this is not a point of order. I will only draw the attention of the hon. Member for Reading. South (Dr. Vaughan) to the fact that the time for making or requesting statements has now passed. We have had one hour out of private Members' time already today. I quite understand that the situation may well be serious. Perhaps I can leave the matter in the hands of Ministers.
§ The Secretary of State for the Home Department (Mr. Merlyn Rees)
Further to that point of order, Mr. Deputy Speaker. Yesterday, when I was making a statement, I said that I had made contingency arrangements for the situation in London on Monday. The responsibility for using them is for my right hon. Friend the Secretary of State for Social Services, who also pointed out that contingency arrangements were being made. Steps will be taken, but in what precise form I think is best left for discussion as to whether it would be appropriate to use the Army ambulances, or whether supervisors will do it, or whether the union will play a part in doing it. Everyone understands that the basic services will have to be provided, and we have informed the House that they will be.
§ Mr. Arthur Lewis (Newham, North-West)
On a point of order, Mr. Deputy Speaker. The hon. Member for Reading, South (Dr. Vaughan) is not on a point of order. You said yourself—
§ Mr. Deputy Speaker
Order. Perhaps the hon. Gentleman the Member for Newham, North-West (Mr. Lewis) will allow the Chair to handle this matter. We will get through it quicker if I am allowed to handle it in my own way.
§ Dr. Vaughan
I will be very brief indeed. I appreciate the point that you have made, Mr. Deputy Speaker, but we have only just had this information. I am grateful to the Home Secretary for what he said. Our view is that it might be necessary to announce the steps to be taken in advance of the crisis on Monday rather than wait until the care of patients was seriously jeopardised.
§ Mr. Arthur Lewis
Further to that point of order, Mr. Deputy Speaker. With great respect, you yourself said that the intervention of the hon. Member was not a point of order, and that this was not the time to raise a point of order. Now a procedure has been set whereby any hon. Member can use this as an opportunity—
§ Mr. Deputy Speaker
Order. In my personal knowledge—and, I am sure, in the much longer personal knowledge of the hon. Member for Newham, NorthWest—occasions like this have arisen in the past and the Chair has been indulgent. The Chair does not wish to prolong the matter any further.
§ Mr. Freud
As the Franks committee report concluded in 1972, section 2 is a mess. It said: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 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 2.2137 I think that the most realistic writing on the inadequacies of section 2 is by Professor Wade. He said:The law as it now stands shows a complete failure to understand that accessibility of information about the government of countries is of vital importance in a democracy.He went on, concerning section 2:It is so crude, so excessively severe, that it is rendered tolerable in practice only by the Attorney-General's tight control of prosecutions. It also has the insidious effect of conditioning Ministers and civil servants to believe that unauthorised disclosure of any official information ought to be a crime. It lowers the reputation of the public service, since it is thought to be used for covering up mistakes, even when this is not true. It has aggravated the secretiveness for which British administration has a bad name with its best informed critics from the Fulton Committee to Mr. Crossman. It has become one of the great vested interests of government. It is a classic example of bad law creating bad practice.In view of all this, it is surprising that it took 28 years for the first real criticism of section 2 to come. It came from Lord Strabolgi in 1939. However, a quick flip through subsequent years is much more rewarding. Since the 1966-67 Session of Parliament, 13 Bills have been introduced in the House, each one seeking to amend the Official Secrets Act or to introduce legislation that required the repeal of section 2. Not one of these 13 Bills was passed.
Clause 1 of my Bill seeks to repeal section 2 of the Official Secrets Act of 1911. I think that after 68 abortive years of bad law, which has inevitably led to bad practice, that section can now be laid to rest. The main part of my Bill deals with people's rights of access to information, though I accept that this commodity now flows more generously than it used to. By that I mean information such as I have tabled on today's Order Paper. If hon. Members look at today's Order Paper they will see that none of those questions will be answered unless there is a change of attitude by the Government.
Those questions deal with such matters as fire worthiness certificates. It is now possible to write to the Department of the Environment explaining that one is going to Torquay for a holiday and asking which hotels have not been granted certificates of fireworthiness. The answer is that it is an official secret. If one applies 2138 for naturalisation and one is refused, and no reason is given for that refusal, one receives a one-line letter. One cannot find out the accident rate of cars before buying a new car. Four hundred garages every year lose the right to carry out MOT tests, because of fraud or incompetence. The identity of those 400 garages would appear to be a national secret.
Even the day-to-day running of the White Fish Authority is classified information, jealously guarded by some faceless jellyfish who scrabbles away in a Whitehall office waiting for his inflation-proof pension to become due. I want to know what he is up to. I share the view of Stanley Baldwin, who said that power without responsibility was the prerogative of the harlot.
I have a document here marked "Secret". It warns one that it is "the property of His Majesty's Government." It is a memorandum by the then Lord President of the Council, Mr. Herbert Morrisson, and is dated 1945. He writes:We have Learned much during the war, and there should be no return to the old timidity and reticence in the relations between Government Departments and the public and the press. It is the right and indeed the duty of the Government to inform the public of the facts necessary for the full understanding of its actions and decisions. Discretion must be exercised, and there must, for example, be no question of Government publicity being used to boost individual Ministers, but it is in the national interest that the citizen and taxpayer should be adequately informed by the Government on its administration and policy. The people 'have a right to know'.Today, 34 years after that wise and wily old man's memorandum, we are not much further ahead, though we do have 1,500 official information officers employed by Government Departments at salaries in excess of our own—usually twice the salary of an MP. These information officers are largely ignored by civil servants and are written off as hacks by the press, and they justify their high cost to the nation by covering up sensitive news and by feeding optimistic tittle-tattle about their Ministers to the Ministers' local newspapers. It is almost exactly the opposite of Mr. Morrison's advice.
§ The Minister of State, Home Office (Mr. Brynmor John)
I wish they would do that.
§ Mr. Freud
From what the Minister of State, Home Office says, it appears that they are not even doing the incompetent job that one thought they were doing. My contention is that the people of the United Kingdom have a right to know how the country is governed. If a motorway is planned, the working papers that caused the Minister to approve the order should be available, as should the findings of the committee set up to advise him. In The Guardian today there is an interesting article by Simon Hoggart about the atomic tests in Utah and the high incidence of leukaemia there as a result of those tests. It is the United States Freedom of Information Act that has allowed this information to come out. In the United Kingdom it could not, and would not, have happened.
If I had more time I could rabbit on about the committees that have sat and deliberated and reported but whose findings were never published because they did not suit the Government of the day. Their contents were leaked. We all heard about them, as with the 1973-74 committee that was set up to look into the number of users of cannabis. We heard that there were 5 million casual pot smokers. I think we have the right to see the report and also the reports about research into the relative dangers of smoking cannabis and tobacco. Information by leak is expensive and inaccurate, and my Bill seeks to provide accurate information as the right of all citizens.
Clause 1 seeks to repeal section 2 of the 1911 Act. Because so much time has been spent on other matters this morning, I shall gallop through the other clauses. Let me say quickly, however, that clause 2 establishes the right to access to official documents and provides that a document is not only a piece of paper but a recording, by whatever means. An official document will not include a Minister's personal or general political correspondence. The aim of the Bill is to give the public the right to see the documents that bear on a Minister's departmental responsibility, and no more. Obviously, there are exemptions as to what the public has the right to see. These are set out in the schedule at the back of the Bill.
Under the terms of the Bill, at the end of five years—it used to be 50 years and was then reduced to 30 years, though neither of these figures is particularly 2140 relevant—Cabinet papers will be published. The five-year period at least means that no Cabinet in the life of the same Parliament will be confronted with its own misdeeds. That is why five years seemed like a good period. It would, however, mean that we could have an intelligent discussion today of the issues at stake in the current crisis if we could examine the contingency regulations at the time of the miners' strike in 1973–74.
Clauses 3, 4 and 5 deal with access to documents, and clause 5(b) underlines the desirability, notwithstanding this measure, of the Government showing good will in the further provision of information. Clauses 6 to 10 deal with the machinery of giving the public access to information, and clause 7 deals with computers. Clause 8 provides for the deferment of access to policy documents until such time as the decision in question is made.
This Bill does not try to find scapegoats. It simply seems important, after the event, to have access to the advice and the information available to the Minister.
Clause 8(4) clearly distinguishes between policy advice and factual advice, for the latter must be available without delay. Clause 9 lays down a time limit for the production of documents. Clause 10 deals with the question of documents that contain exempt material and makes provision for, he disclosure of the nonexempt parts. Again, the United States Freedom of Information Act helped us here. This will prevent civil servants from putting one exempt sentence into every document, which is what they used to do. Clause 11 deals with the reasons for refusals and clause 12 with exemptions.
Clause 13 provides for the publication of instructions to civil servants when dealing with the public. At present, reasons for refusing parole to prisoners are not given. This causes them much distress. When they are not told why they will not be released, they suspect the worst—that their wife may have run off, that their employer may have reneged on a promise to re-employ them, and so on. If there are rules, it is a fundamental necessity that the citizen as well as the administrator knows what they are. That is our main argument.
Clause 14 deals with Departments' duty to preserve documents rather than to fol- 2141 low the current principle of weeding out not only irrelevant but damaging documents.
Clause 15 requires Departments to publish realistic indices and conform to a recognised system of records. The trouble with the United States Act was that even when people went to the right Department they did not know what to ask for. It is important that we should not fall into that trap.
Clause 16 deals with fees, which are limited to the cost of copying documents. We do not ask citizens to pay for the research that went into them.
Clause 17 provides for regular inspection of Departments' information procedures. With three options before us—parliamentary Committee, Parliamentary Commissioner and the High Court—we decided to go for the Parliamentary Commissioner. The involvement of the Ombudsman means that, as he is an officer of Parliament, Parliament becomes involved in supervision of the Act. Moreover, by virtue of the fact that he is readily available to citizens, the Ombudsman is cheaper and quicker than, say, a court would be. He is already familiar with administrative practice and knows his way around Government Departments. That is an added bonus.
I have been advised since the drafting of the Bill that two short new clauses will be required to give the applicant an ultimate right to appeal to the courts. I hope that this matter will be dealt with in Committee.
Clauses 21 and 22 provide protection for civil servants. This is probably the only good news for civil servants in the Bill. Clause 23 is procedural.
Only responsibility made us put part II in the Bill. It would be far preferable to ask the Government themselves to introduce a code of practice to take the place of the repealed section. In part II we have departed from the Franks committee and the Government White Paper on three matters. First, we limit the range of information that is liable to classification, and we would not impose criminal law on disclosure of Treasury matters. That is subject to Civil Service discipline. Secondly, we want to establish a proper system of classification, restricted to defence, security and intelligence 2142 information whose disclosure could do harm. Thirdly, we want to allow the propriety of classification to be challenged in court. We do not believe in the infallibility of Ministers or believe that they should be allowed to be judges in their own cases.
I hope that the Home Secretary will deal in constructive suggestions rather than condemnation. It is astonishingly easy for a Government as well served as our Governments are, with as many gentlemen and ladies in the box behind Ministers, passing notes, with as many people reading old Acts of Parliament, to make a Back Bencher's proposed legislation look silly because of some minor omission or point of law.
I cannot believe that an issue that has been in the Labour Party manifesto since 1974 and has been referred to annually ever since has not received a great deal of thought. I am bringing it forward because I think it is high time it appeared on the statute book.
I want to speak for a moment about financial provisions. One of the most frequently heard objections to an official information Act is that it would cost too much. Last summer's White Paper referred to unexpectedly high costs. Earlier drafts that were leaked to my colleagues used even stronger language, with estimates in the hundreds of millions of pounds.
Let me begin by agreeing that a system of open government would cost money, but, then, a system of closed government costs money. Running the country costs money and electing people to run it costs money. That reason is seldom given for not having elections.
I believe that an official information Act would pay for itself. Recent cases, such as the Crown Agents fiasco and the leaking sanctions against Rhodesia, which cost us over £100 million for a non-blockade, must support the argument that more open government could make for greater efficiency and greater economy.
Let us try to arrive at a figure. In the United States the Freedom of Information Act went into effect in 1967. It was amended in 1974. The Canadian Government, who are thinking of introducing a similar Act, used United States figures to 2143 gauge what it would cost in Canada. In their June 1977 Green Paper they estimated that administrative costs would be £7 million a year, but reduced that figure to £5 million when they looked into the differences between Canada and the United States.
The Canadian Bar Association went into the matter much more carefully and in its paper scaled down the 150,000 annual requests for information in the United States to 10,500 in Canada, by virtue of population and national characteristics. It nominally charged £70 per request and came up with a top cost of £1.5 million.
If we scale up those figures to account for our population and our national peculiarities—
§ Mr. Freud
When I say "national peculiarities", I mean our proneness to request information from Government Departments, which is not as yet as great as it is in the United States. If we scale up the figures, we arrive at an overall maximum of £24 million, or one-fiftieth of the loss of the Crown Agents.
It is not a bad point to remind the House that the "Save It" campaign by the Department of Energy cost £3 million.
In the United States there has been a continuing battle between Congress and the Executive over the cost of the Act. The Comptroller General has had only limited success in obtaining accurate accounts in recent years, with figures seriously and steadily contaminated by Departments' ingenious attempts to inflate the costs of the Act. For example, the United States Air Force treated every public request for information as a formal Freedom of Information Act application. Departments have swung the costs of their normal public relations exercises under the Act.
It is worth noting that Government Departments seldom complain about the costs of communicating information that they want the public to have. The costs become burdensome only when they are the costs of disclosing what Departments would rather not have people know.
The tendency to exaggerate is dramatically demonstrated in the United States 2144 Government's estimates of the costs of the Privacy Act, an Act passed in 1974, which gives people the right to inspect the official files that are kept on them. The Office of Management and Budget estimated the costs at $200 million to $300 million a year. By last year the actual cost was less than 10 per cent. of the estimated figure.
If we take a rough £4 million per annum cost for my measure, remembering that the budget for home publicity in 1977-78 was £41 million, what do we get? My contention is that what we get will be well worth the money.
Leslie Chapman, a former senior civil servant, says in his book "Your Disobedient Servant" that greater disclosure of information prevents waste of public expenditure. Indeed, if the Crown Agents' reports on their disastrous wheeling and dealing had come before the House they would probably have got away with one-fifth of the loss that this country sustained. The rest would have been saved and would have paid for my proposed Act until the end of the century.
If open government costs money, it has to be measured against the wastefulness of closed government. The costs of secrecy are also substantial.
A democracy maintains an equilibrium between publicity, privacy and secrecy. Each of these elements is necessary.
What has gone wrong in Great Britain is that there is an imbalance. We have reached the stage at which it is difficult, often actionable under the Official Secrets Act, to mention what is happening in Departments of State, while it is a simple matter on the grounds of prurience to publish items about a private individual that violate the rights of that individual to be left alone and enjoy reasonable privacy. We have the balance wrong. There is excessive secrecy on things that matter to us all and excessive licence on things that are trivial but matter deeply to the individual's privacy.
'Transgressions of decent human behaviour are steadily being defended as being part and parcel of an enlightened open society, which wondrously confuses the issue when it comes, for example, to the location of the Post Office tower, which is classified information, though I can see it from my bedroom window 2145 when I wake up. The fact that my address and that of the Post Office tower are in the London telephone directory is something that has been overlooked, and I expect that the London telephone directory will have to be withdrawn.
We fight for the rights of free speech, which is good. We have laws that do not permit the publication of free inquiry which would substantiate free speech, which is less good. In The Sunday Times thalidomide case their Lordships ruled that it was in order to advance opinion but wrong to publish evidence. If Watergate had occurred in Britain, Nixon would have remained in power. There could have been no disclosures, because under our laws one cannot inquire into the facts of a case before it has been considered by the courts. The House knows well that one of the reasons for writs being served is so that it can be said that the case is sub judice. Often there is no intention of pursuing the case.
The Official Secrets Act decrees that anything is secret that an official says is secret. It is the civil servants' chastity belt. The Home Secretary has been deep in conversation.
§ Mr. Freud
I do not accuse the right hon. Gentleman of speaking to himself as yet. I shall repeat my previous remark. I do so because I consider it to be of some importance. I have said that the Official Secrets Act decrees that anything is secret that an official says is secret and that it is the civil servants' chastity belt. I have no great relish or desire to ravish civil servants, but I share Lord Chief Justice Hewart's belief that tyranny is the accumulation of despotic powers in the hands of anonymous officials. I am against the current right of anonymous officials to have their incompetence covered by anonymity.
The Swedes have free access to information written into their constitution. That has been the position since 1776. They may know what they wish to know about the mechanics of the Swedish Government other than matters concerning defence, foreign relations and law enforcement. It is not an ideal system. They have many problems, and in certain areas 2146 of government embarrassments have arisen as a result of that system. However, it is a great deal fairer than our system, which steadily penalises efficiency by excessive secrecy in both local and national government.
Since the middle 1960s the Americans have had a Freedom of Information Act monitored by their Supreme Court. It is interesting to note that the first demand for information withheld by a Government Department and prised from that Department by a Supreme Court verdict dealt not with some delicate matter of defence, nuclear secrets, or the salary of political advisers, but with hearing aids for war veterans. The Supreme Court decided that the Department of Defence should publish investigations and research into the type and cost of hearing aids that were issued. In Britain we cannot even ascertain accident rates of types of aircraft. We have to ask our American friends to do so through the United States Freedom of Information Act. A distinguished United States senator said:A formidable check on official power has ever been what the British Crown feared and what the American founders decided to risk.My supporters and I invite Parliament to vote for the risk.
Great Britain is firmly among that class of democracies in which the Government's privilege to conceal is valued more highly than is the people's right to know. My Bill seeks to put an end to such accusation. I stress again that my Bill is not an ultimate legislative blueprint. However, it is a firm step in the right direction, and I urge the House to give it a Second Reading.
§ 12.47 p.m.
§ Mr. Arthur Lewis (Newham, North-West)
I am pleased to have the first opportunity to congratulate the hon. Member for Isle of Ely (Mr. Freud) on having won in the Ballot and on the Bill that he has introduced. If I may say so, without in any way trying to be patronising, the Bill was brilliantly introduced with wittisisms and seriousness. We all laughed, but the hon. Gentleman made his points.
Almost every sentence that the hon. Gentleman uttered showed the stupidity of the present system. For example, we all know the hon. Gentleman is a great 2147 expert on food and dietary matters. If he wanted to obtain his own medical records but the Department of Health and Social Security wished to prevent his doing so, it would have that power. The Department has the power to prevent any hon. Member or any person from so doing.
It is a ludicrous and wicked system. The taxpayer pays for all the civil servants, Ministers and the Departments that they run, but he is the last person to get the information that he requires, even about himself, because civil servants decide that it is not wise, right or proper for him to have it.
Some three or four years ago I was fortunate in being able to establish the all-party Freedom of Information Committee. The committee is supported by 80 per cent. of Members from all parts of the House, excluding Cabinet Ministers. It is supported by those who are termed to be "on the payroll" and those who expect to be on the payroll—those whom we call Shadow Ministers, although they may come from either side of the House. It is true to say that 80 per cent. of the Back Benchers from all parties are active members and supporters of the committee. The TUC conference has unanimously voted in favour of a freedom of information measure. As the hon. Gentleman rightly said, Conservative and Labour Governments have for many years promised such a Bill but they have done nothing to bring one forward. They may have uttered words of wisdom, but they have not done anything about introducing such a measure.
My hon. Friend the Member for Liverpool, Walton (Mr. Heffer), who has temporarily left the Chamber, is a member of the national executive committee of the Labour Party. With the help of our civil servants at Transport House, a Bill has been prepared. There is a Bill in the Labour Party offices as well as one that is tucked away in the secret compartments of the Home Office. There are plenty of Bills. However, the hon. Gentleman has introduced an excellent Bill.
If the Bill is not good enough, or if it does not go as far as the liberal, democratic advisers in the Home Office might wish, I am sure that the hon. Member for Isle of Ely will not take it amiss if various proposals for improvements are 2148 put forward in Committee. I cannot speak for him—he is an active supporter of the all-party committee—but I am sure that he would not mind if the Government helped him by taking over the Bill, provided that they did not use the opportunity to water it down.
Once the public get to know what the Bill is all about, I am sure that there will be resounding support for it. I have been amazed at the number of people and organisations coming forward in support of this concept. People from the Right, the Left and the Centre of political thought have supported it. Likewise, many non-political organisations, such as the environmentalist lobby, the health and social services lobby and the nuclear lobby, have indicated their support for it.
All those people and organisations are asking the same question. How can people form an opinion on anything if they are deliberately prevented from getting the information which is available, and which they ought to have because, as taxpayers, they have paid for it? They are not allowed to have the information because they might come to some decision which, though correct, might be against the view of the Government of the day.
There is a lot of controversy over the fluoridation of water. I do not intend to comment on whether the compulsory fluoridation of water—making people have it whether they want it or not—is good or bad. I am not passing judgment on whether a person should have the right to decide privately to fluoridate his own water by the use of capsules. The Department of Health and Social Security, on the one hand, takes the view that the fluoridation of water supplies is a good thing. On the other hand, there are many who say that it is not. What concerns me is that the Department will not publish the necessary information to prove its point on this issue.
Since I set up the all-party committee, hon. Members from the Conservative Party, the Liberal Party, the Scottish National Party and Plaid Cymru, as well as my hon. Friends, have all taken an active part in its work. I shall not mention any of them by name, because tribute can be paid to all of them. They will agree with me that since the committee 2149 was set up we have found, even when we have tried to get information on minor matters, that we have not had the help and support that we might expect from the various Departments. It must be emphasised again and again that the taxpayers, the people who pay, are entitled to the information that is available in the Departments.
When I started the committee I was accused of being a Scientologist, and I was attacked by the press and by the Department concerned. I do not know anything about Scientology but what difference would it make if I did? I am told that Scientologists support the Bill. So what? Many years ago, when a Labour Government were in office, some sort of allegation was made against the Church of Scientology. I do not know what it was. The nature of the allegation was unknown, as were the people alleged to be involved. An investigation was made but no report was issued. As a result, certain people were banned from coming to this country and the activities of followers of Scientology in this country were also banned. There was an investigation by Sir John Foster, QC, a former Member of this House, but the report, which was published, has not been acted upon from that day to this.
I should like to know what this Church of Scientology is all about and what it is supposed to have done that is wrong. I should like to know what accusations were made against its activities in this country. I should also like to know why people connected with it have been prevented from coming to this country. If people are thought to be guilty of something, they should be charged and prosecuted in the ordinary way. If they are alleged to be doing harm, their supporters ought to know about it, and the public also ought to know about it.
My hon. Friend the Member for Bolsover (Mr. Skinner) is not here, but I am sure he would like to know why some hon. Members and some ordinary members of the public are able to get information that is not available to us as ordinary Back Benchers. Many people think that the fact that information is not freely available is the fault of the Ministers concerned. It is not. Every hon. Member has had the experience of tele- 2150 phoning a Department and being refused information about something or other. When that happens and the Member takes it up with the Minister, the odds are 1,000 to one that the Minister will not get the information for the Member. It takes a very tough Minister to break down the secrecy of the Civil Service.
I, like a few other hon. Members, have been in this House for a long time. In that period of 34 years I have known hundreds —indeed, thousands—of Ministers of the Crown, yet I can count on the fingers of two hands the Ministers in any Administration, Labour or Conservative, who were strong enough, if they decided to do something, to get it done. The others always waited to see what their civil servants had to say about the application or request.
If I went to Herbert Morrison about something, he would always say to me "If that is true, I will see that something is done about it." There was never any question about it. Something was always done. I recall once asking Fred Bellenger, who was then a Minister at the War Office, about a soldier's entitlement to special leave. His response was that he would have to see what his Department said about it. I said to him "You, as the Minister, are the man who can press the button if what I say is right". But he was not prepared to tell me whether a soldier could have compassionate leave for an extra two or three days without first going to see what the civil servants said about it.
I want to have the right to ask, in a case such as the one that I have mentioned, "What information have you been given? For what reason is the soldier being denied the right to have this leave?" If a civil servant comes to the conclusion that a soldier should not have a few days' extra leave for a special purpose, surely that cannot be said to be a State secret. The inquiry might involve another civil servant, or, indeed, an ambulance worker. Why should I not have the right to know on what information a decision is based? Why should not the individual concerned have the right to know?
Records are kept on children at school. Occasionally, a teacher may put something in a child's record that is incorrect or false. That record stays with the child right through his school life and goes 2151 with him right through to further education. There can be a black mark against him that is quite unjustified, but the parents do not have the right to see the record, and nor has the boy or girl concerned.
Many hon. Members served in the last world war. Many of them would like to know what went into their records. Thirty or 40 years afterwards, is there any harm in an ex-Service man wanting to know what was in his record, especially if he has reason to believe that there was something against him? But, of course, this is also regarded as secret information.
I understand that the Government intend to give the Bill fair weather, or at least not to oppose it. I hope, however, that what I term the "funny tricks department" will not be operating, knowingly or unknowingly, in Committee. We all know the sort of thing that goes on from time to time. I warn the public, and especially the 161 organisations in favour of the Bill, whether they be from employers' federations, trade unions or any of the political parties, that there are more ways of killing a cat than drowning it. They should bear that in mind when the Bill goes into Committee.
There are many ways of killing a Bill. We have a wily Government. They may not oppose the Second Reading, but when the Bill reaches Committee there are ways and means of killing it. Let them be warned, because the TUC, the Labour Party, the Liberal Party, the Conservative Party and employers are in favour of this principle. I believe that the Government would be unwise to get their stooges from any party to try to kill the Bill by adopting the delaying practices about which we all know. If they do that, there will be a great public outcry. There is at least one Member—there may be more—who would release these details and they could react against the Government when they fight their parliamentary seats.
Some hon. Members—not myself—have a majority of a few hundred or a couple of thousand. If, in such constituencies, 500 or 600 voters knew that the Bill in which they were interested was killed because of a manoeuvre by the Government and their supporters, they could switch their votes and Members could lose their seats.
2152 I wish the Bill well. I conclude by congratulating the hon. Member for Isle of Ely on the manner in which he introduced it.
§ 1.2 p.m.
§ Mr. Hugh Fraser (Stafford and Stone)
I am sure that those of us who have signed our names to the Bill will be glad to have the support of the hon. Member for Newham, North-West (Mr. Lewis). He is a popular voice. I sometimes believe that he is "vox pop" in person. His support is valuable.
Over many years I have had a peripheral connection with official secrecy and the Official Secrets Act. The admirable presentation of the Bill by the hon. Member for Isle of Ely (Mr. Freud) is likely to redeem the harm done to the nation by the Liberal Party in 1911. The 1911 Act was passed in half an hour. It was a very hot day and there were spy problems. Spies were being found under the bed. Amongst rumoured German spies there was a very distinguished lady—Fraulein Sophie Buhler. She was governess to my great-aunt, Margo Asquith, at No. 10, and she later tried to teach me French.
At that time the Conservative Party was in great fury and rage, and was puffing as the Conservative Party tends to do. There had been a tremendous row between the Liberal and Conservative Parties over the elections and the threat of dissolution, and so on, in 1911. Undoubtedly, stories were being circulated that the Prime Minister of the day had a German governess. The Bill was therefore rushed through in half an hour. The governess, who was one of the nicest people in the world, tried to teach me a little French, and from that point I had a vague connection with this matter.
My next connection with it was in 1933, when a great personal friend of mine and of many hon. Members, Sir Compton Mackenzie, as he became, was savagely prosecuted under section 2 at the instigation of an old enemy of his in our own Civil Service. It was a scandalous case. That is one of the problems about section 2 which is now to be repealed. It puts an intolerable burden on the Attorney-General, the Government of the day and the Home Secretary.
2153 Lastly, I am connected with the matter in a more personal way. I am one of the few Members who ever wrote to The Times asking to be prosecuted under the Official Secrets Act. It was, I think, in 1970. That request was not met by the Government of the day.
I pay tribute to my hon. Friend the Member for Thanet, East (Mr. Aitken), who showed great courage in fighting against this Act. Compton Mackenzie had been told by his solicitors that, as it was an absolute offence, there was no point in fighting the case. He was fined about £100, which was a lot of money in those days. In addition of course, as an author, he lost thousands of pounds. My hon. Friend rightly fought the case and was fully supported by Lord Goodman and Lord Wigoder. Other counsel tendered advice that, because the offence was absolute, he should accept the disgrace of the fine. However, my hon. Friend fought the case. The result was that Mr. Justice Caulfield, in his judgment, effectively put section 2 out to grass.
I believe that the House and the country should be thankful to my hon. Friend for the terrible time that he endured. I suppose that I, too, should be thankful that my request to be prosecuted was not accepted by the Government of the day, although I should have been happy to face that sort of music.
I do not have the same doubts as the hon. Member for Newham, North-West about his right hon. Friend the Home Secretary. I believe the Home Secretary to be a man of honour. The issue here concerns a change in the spirit of the law. The White Paper made clear that the decision which has to be taken was that, instead of accepting a declared administrative obligation to open Government, we should make government open by statute. That is the difference between the two approaches.
Unfortunately, I believe that man is secretive by nature. One of the great advantages of being a Minister or a senior civil servant is that one is in the know. The number of persons in this category has increased enormously since 1911. At that time the whole of the Foreign, Colonial and India Offices were run by 300 or 400 civil servants. Today there are 2154 7,000 or 8,000 in the Foreign and Commonwealth Office. Instead of controlling a small area of national life, the Government now control about 60 per cent. of it. How does one deal with the enormous fortress of Whitehall?
Far from the present Act being the chastity belt of the Civil Service, I believe that it contains many loopholes. I do not know whether chastity belts contain loopholes, but I believe that the Act gives the Civil Service a totally false sense of security.
Outside the Soviet Union, we have the most draconian secrets laws in the world. Yet, oddly enough, we have some of the worst spy leaks. For example, Blake, Philby, Lonsdale and Fuchs probably did more damage to Western interests than any other spies who were captured in Germany, or even those in the pumpkin mystery in the United States.
I believe that the question of what are secrets is grossly exaggerated, as I am sure the Home Secretary will agree. Amongst the most important matters protected by the Bill are individual personal records. It is 14 years since I was at the Defence Department. I hope that I am not committing any crime by saying that the numbers of real military secrets possessed by the Ministry of Defence which cannot be found out by spy planes, wireless intercepts or other machinery are almost negligible. In retrospect, quite often the best information sent by spies is totally disregarded.
The Americans failed to accept the information given to them by their own secret service about Pearl Harbour. The German High Command refused to look at the invasion plan for D Day which had been stolen by the British Ambassador's butler from the embassy in Ankara. At a much lower level, during the war, when I was working with the Dutch secret service, we discovered a fact which almost certainly meant that the Ardennes was to be attacked. I rushed down to the great Montgomery's staff, and they said "Nonsense. Get out of the office".
The amount of secret stuff which is disregarded, the amount of confusion which comes from tape recordings and the amount of nonsense created by this great question of secrecy, as I am sure the Home Secretary and others who work 2155 and have worked on the receiving end of secret information know, is great and baffling. The best example of confusion which I know was when one Foreign Secretary—no names, no pack-drill—marked a copy of The Times "Top Secret". That was on the basis that he had circulated it to all in his Department because he felt that it contained an important article and that, if it had been found out, it would undoubtedly have given dangerous information to the enemy.
We reach a point of total absurdity. The question of secrecy needs to be looked at very carefully by the Department. I shall be happy to give evidence, if needed, of what the then head of the CIA used to tell me about the secret parts of our military intelligence.
In my view, a more serious matter arises. I refer, as I said at the beginning of my speech—I think that the Home Secretary will agree—to the spirit of the law and the impact that secrecy has had on the Government. It has had a bad effect in two areas. The hon. Member for Isle of Ely referred to the enormous number of persons engaged on sending out Government propaganda or whatever it may be. "Propaganda" is the wrong word. I should have said "information". On the whole, it has been remarkably politically uncorrupt. I do not think that either of the major parties has ever allowed the machine to be turned to what I call party advantage.
Much of it prevents real information from being discovered. I am about to give a name—but no pack-drill. The most distinguished and powerful military correspendent, when I was in the War Office, was undoubtedly Mr. Harry Chapman Pincher. He never went near a press conference in his life. He found out. One of the problems with this great machine which churns stuff out is that it makes our journalists, without much respect to them, extremely lazy. They do not dig for the facts.
The Home Secretary had better not agree with me on this second matter, because it reflects on the Lobby. We have a Lobby system which in some measure springs from the Official Secrets Act. I believe that the Lobby is a thoroughly bad institution. Journalists depend on off-the-record, on-the-record and semi- 2156 secret press conferences. The United States has a better and more forceful political press because it has nothing like the Lobby. It is one of the things which flows from the Official Secrets Act.
I am very friendly with the Liberal Party. It must be remembered that Asquith was my great-uncle by marriage. The hon. Member for Isle of Ely referred to two matters which I believe would not have emerged in this country. I do not know about Watergate. We could debate that for ever. It would perhaps be a good thing if Nixon were here. After all, he is not such a bad chap. Indeed, my father-in-law received him publicly.
I think that without international action outside this country the Beira patrol and the oil scandal would not have been raised. The persons who brought these matters to light were Kenneth Kaunda in Zambia and one of my personal heroes, Mr. Tiny Rowland of Lonrho. Had it not been for their action, this matter would never have come out.
I hope that we are all committed to the idea of radical change. I can see by the friendly attitude of the Home Secretary that he agrees that there has to be a great change to enable the public to have more open government and to force the Government to divulge what the public have a right to know. Of course, the Bill is not perfect, but it is more than ever important in this country because of the nature of our Parliament and method of government.
There are some disadvantages in the United States system. Bernard Shaw said that it had the worst constitution in the world. I am not sure that it has. On this matter it has an advantage. Senator and Congressman fundamentally act like Back Benchers here. Moreover, they are far more determined to get information than we are. Here, whichever Government are in office, there are automatically 160 placemen—Ministers or supporters of the Government. In the United States, all Senators and Congressmen, who are backed by 7,000 research assistants on Capitol Hill, are determined to get the stuff of full information. If they need a freedom of information Act, how much more do we?
The United States has its permanent Defense, Finance, Foreign Affairs and other Committees. We have nothing like 2157 that here. I believe that that is one of of the great reforms that should be set in train, especially regarding defence. On occasion, we in this House really know only what we are told unless we ring our friends in America who get it through the American system.
I believe that this is a considerable day for the advancement not only of human liberty but of better Government, to which hon. Members on both sides of the House are committed. Of course there are difficulties. The Bill is not perfect. It will require change. There is the problem of classification. I am sure that the Secretary of State will agree that classification is too important a matter to leave to individual Ministers or Departments, because they would be inclined to stamp The Times "Top Secret". This is a very tricky area and it must be worked out. There are problems relating to the Court of Appeal, the Ombudsman, defence, and so forth.
The Government and the Opposition have had difficulty in working out a precise way in which to approach these problems. But, once the principle is accepted, there is no better way to meet them than through the deliberations of a Committee of this admirable House.
§ 1.18 p.m.
§ Mr. J. W. Rooker (Birmingham, Perry Barr)
I give a warm welcome to the Bill and congratulate the hon. Member for Isle of Ely (Mr. Freud) on being first in the Ballot and on having the courage —and it took a great deal of courage—to decide to bring forward a Bill on this subject.
The right hon. Member for Stafford and Stone (Mr. Fraser) referred to his hon. Friend the Member for Thanet, East (Mr. Aitken). If I remember rightly—it was before I became a Member of the House —the hon. Gentleman was a parliamentary candidate for another constituency when he was prosecuted. He withdrew his nomination in order to fight the case against him. I think that he displayed a standard of conduct in public life that is fast diminishing in this country. For that alone he must be congratulated. because he set a standard that others should follow.
Today we are dealing with something far more important than the Bill. We are 2158 dealing with an idea. The force of this idea has now gathered such pace and such force outside the House that it is unstoppable by either of the Front Benches.
It may be that the Bill will not reach the statute book during this Session of Parliament. One has only to look back at the history of the last 10 years of attempts by hon. Members to gain information, and the excellent brief in the Library, which analyses other attempts. to see that the pace is gathering momentum year by year. The variety of groups outside the House which want legislation of this type on the statute book is wider than ever before, and widens as the days go by.
There was a time, three or four years ago, when people said "What do you mean—freedom of information? What do you want?" The real problem was that those who were trying to get information were forced to give the negative answer "We want it all", because one cannot put one's finger on the secret pigeonholes of Whitehall and reach the areas of information one needs. One never knows what is available.
I remember that about two and a half years ago, when I went to Sweden for a week, I spent most of the time looking at the way in which the Swedish system of freedom of the press works in respect of official information. I talked with the Swedish Chancellor of Justice, a man with a job similar to that of the Attorney-General in this country, I talked to editors, trade unionists, industry and business men. They could not comprehend the British system, because they have lived with their system for over 200 years. It is a way of life for them, but I accept that there are problems with it.
I was in Sweden during the change of Government—the first time in 44 years that the Government had changed in Sweden. I was told that during the transfer of power, which took three weeks, two vans pulled up outside the Government offices each night, one to take files away for storage and the other to take files away for burning. They said "In some respects there are some loopholes even in our system".
When I returned from that visit and talked to my constituents about it. wrote article son it, and gave interviews to 2159 the local press, I was able to give more examples to make the concept of freedom of information meaningful to constituents. Other Members have done that also, and we have had more and more examples. The Crown Agents case is one, and the oil sanctions busting in Rhodesia is another. There are other examples now, because, with due respect, "Crown Agents" is a bit of a slogan. It is a £200 million slogan and a very important one, but it is one that impinges on Members of Parliament more than on my constituents. But when people die because they eat food from cans which have been contaminated, we discover that in this country it is not possible to give a list of the canning factories that have had their certificates removed or have had adverse reports made on them by the Ministry of Agriculture, Fisheries and Food.
If a person goes to America he can use its freedom of information law to find out which British food canning factories are not acceptable to the Food and Drugs Administration authority in America. That sort of thing is not possible here. That is a disgrace. That is the sort of example which we have to put across to our constituents, because the food is there on the table, or in the larder. People become stirred up when they are affected personally, and the thought of eating contaminated food affects people personally. One explains that it is not possible to get this information in Britain but that if one goes to America one can get that information, not only about American companies but about British companies.
I have only one quotation. I shall not quote the Labour Party manifesto; someone else will no doubt do that. That manifesto is, I hope, ingrained in the mind of the Home Secretary. The quotation is as follows:There is a growing danger in this age of bureaucracy that the rights and freedoms of citizens will be infringed by the large and powerful organisations with which we have increasing contact. We believe there is a need to tip the scales away from public and private concentrations of power back in favour of the individual.That is a text that I can use to talk about any aspect of policy—whether it is housing or freedom of information it does not matter. That text is crucial so far as I am concerned. It comes, I 2160 would add, from the current document on Labour Party policy. With that, and the manifesto commitment, I cannot for the life of me see why we have not had a more warmhearted welcome from the Government for the Bill. It may be that the Horne Secretary could be more forthcoming about it than he was on 20th July, when he introduced the White Paper. He will remember that some harsh words were said on that day from both sides of the House, but more so from the Government side. I do not think that any right lion. or hon. Friend of mine regrets or retracts any of the words that were said, because until we see a commitment from the Government to put this Bill, or something akin to it, on the statute book we shall naturally be suspicious.
The basic reason why the Bill is needed—though there are many reasons —is that society is changing more rapidly. Society is in danger of being dominated by its technology, whether it be the technology of communications or the technology of nuclear power. With the natural secrecy of the ruling Establishment in Britain, along with the changing pace of technology, which, by and large, the ruling Establishment controls, there is a great danger to individual liberty.
The only way to cut through present control and maintain—not restore, but maintain—existing liberties is to give people the right to know. Unless there is freedom of information, the "right to know" is a meaningless concept. It is no good the Home Secretary or the Government saying, as they said in paragraph 41 of the White Paper:In our system of Government the executive is under continuous scrutiny by Parliament, and Members of Parliament have a variety of means and opportunities for seeking information about Government policies and actions.That is the long-stop. There are over 100 subjects on which we cannot even table parliamentary Questions. These are not Questions to which Ministers will give a non-answer; one cannot even go to the Table Office and get a Question put on the Order Paper, except once a year, when one Member of the House can do so. It can be once a year, and we get a non-answer, which blocks everybody else for that Session.
2161 That list of subjects is well known, I presume. It was at the back of the report in 1971–72 of the Select Committee on parliamentary Questions. It was updated in about May 1978, after Mr. Speaker gave me permission to ask each Minister what were the subjects on which they refused to answer Questions, and whether any of them had changed since 1971–72. Almost each Department answered on a different basis, and collation of the replies was almost impossible. It is interesting to note that the Treasury had moved some way but the Prime Minister had not, particularly regarding the internal workings of government. To begin with, no parliamentary Question on the internal workings of Government is allowed.
One may assume that this is an area in which there ought not to be too much scrutiny. I shall give one example only of the ludicrous position in which Members of Parliament are placed. In July 1977 the then head of the Civil Service, Sir Douglas Allen, wrote a letter to the heads of all Departments on the Government's new policy, enunciated by the Prime Minister, regarding more access to official information by the press, the other media, and researchers. He wrote a letter about three or four pages of foolscap in length. This letter, which was itself an official secret, was leaked to the press and parts of it appeared in the press. I received a copy of that letter in about October 1977. I went to the Table Office armed with a parliamentary Question to the Minister for the Civil Service and asked if he would print in the Official Report—Hansard—a copy of the letter written by the head of his Civil Service to heads of other Departments, which was dated so-and-so, on a so-and-so subject. He said "Mr. Rooker, you cannot ask that Question. It concerns the internal workings of government."I said"But this is about making government more open to the people and to Parliament." He replied "Yes, but this a letter from one civil servant to other civil servants. There is no Minister involved." So we had a chat about it and worked out a ruse. This shows the ludicrous lengths that one had to go to obtain information.
I wrote to the Prime Minister and said that I had tabled a new clause on the Scotland Bill regarding open government 2162 in Scotland and that it would help me to make my speech if I could have a copy of the letter that Sir Douglas Allen had written in July about Government policy in detail, and which had been mentioned in the press. The Prime Minister sent me a copy. Accordingly, I went to the Table Office with a Question to the Prime Minister asking him whether he would put in Hansard the letter which I wrote him his reply and the appendix. That was how the letter from Sir Douglas Allen was published for the first time, six months after it was written to his fellow civil servants.
This was not a matter of confidence. It was not a matter of foreign policy, defence, privacy of the individual or embarrassment to the Government. It was a matter of making government more open. But that was the extent to which I had to go to ensure that the letter was published. So it is not true to say that the Executive is under constant scrutiny by Back-Bench Members, because it is not possible.
I want to give one example of the ludicrous position which can arise because of the existence of section 2 of the Act. Hon. Members can give lots of other examples, whether they concern the planting of crocus bulbs at Hampton Court or anything else. My example is a very simple one. It concerns people doing research into small firms. The Department of Industry constantly issues contracts to academic institutions, and they sub-contract them to other academic institutions. Recently, I discovered that some research was being done via the Manchester business school by various people under sub-contract to the school. All that it is designed to do is to find out how small businesses grow and flourish. what makes them stop, what are the barriers to their growth, what makes an entrepreneur, and so on. All have had to sign the form acknowledging that they are covered by section 2 of the Official Secrets Act.
I accept that the information is confidential. In many ways it is commercially confidential and, as such, its confidentiality should be honoured because it is important. But I cannot see why it should be covered by the blunderbuss of section 2 of the Official Secrets Act. That 2163 shows plainly how ludicrous the present law is.
I conclude my remarks by pointing out that those of us who support this measure are not wreckers. We do not intend to wreck society. We do not intend to wreck our system of government. We want to open it up, and then probably we shall want to change it because we do not like what we find. But we are not here to wreck. We are here to be positive and constructive.
Let me give an example of the sort of information that we accept ought not to be available. I have not discussed this with any other hon. Member, but certainly I accept that it ought not to he available. At present, there is an action by Burmah Oil against the Treasury about the BP shares which Burmah had to give to the Government in exchange for saving its company from bankruptcy.
I quote from The Times Law Report of 29th July last year when Burmah failed in its attempt to have certain Treasury documents open to exposure. The documents were classified as follows:(A) Communications between, to and from ministers and minutes and briefs for ministers and memoranda of meetings attended by ministers. They all related to the formulation of policy by the Government.(B) Communications between, to and from senior officials of the Department of Energy, the Treasury and the Bank, including memoranda of meetings and discussions between such officials—all relating to the formulation of policy.Memoranda of telephone conversations and meetings between senior representatives of major companies on one hand and a minister or senior officials of government departments and the Bank on the other, and memoranda recording or referring to Information communicated in confidence by such company representatives.That is the way the Treasury classified certain of the documents involved in the massive exercise to save the Burmah Oil Company. We are talking about hundreds of millions of pounds and thousands of jobs. We are also talking about an area that clearly is one of commercial confidentiality. We are talking about details of departmental matters which in the main probably would not be covered by the provisions of the Bill—certainly not at the time that Burmah wanted the documents, even though those proceedings did not take place all that long ago.
2164 In the context of the Burmah case, I am happy to accept the Treasury's definition of those documents, bearing in mind other aspects of that case. So there are areas of Government and there are Government documents which clearly should not be available simply because of the way policy has to be formed. I accept that. But what has to be made clear is that this is not an excuse for covering up all matters, and that is what happens at present.
I might say that the Standing Committee which considers this Bill will wish to sit more frequently than one Wednesday morning a week. Two and a half hours every Wednesday morning will not be any good for this Bill. The sittings motion will require far more lengthy sittings than that, otherwise the Committee will not make meaningful progress. I hope that the hon. Members who are appointed to serve on the Committee will be willing to drop most of their other work, except, of course, for constituency business, to be prepared to challenge Ministers in Committee upstairs for hour after hour.
These matters will need long debate. Ministers will have a long case to put, but no one will be allowed to filibuster the Bill out of existence. Therefore, the Committee will have to vote to give all the time available to the Bill so that its members may scrutinise every detail of it. There must be no excuse that there was not time to look at it all. I hope that in the interests of democracy Ministers themselves will accept that it will require rather more than two and a half hours a week to put on to the statute book this important Bill, the force of which cannot now be stopped.
§ 1.35 p.m.
§ Mr. Jonathan Aitken (Thanet, East)
I am very pleased to be called immediately after listening to the speech of the hon. Member for Birmingham, Perry Barr (Mr. Rooker), not just because he was kind and gracious enough to make one or two nice remarks about me, but because he has been a long and honourable campaigner for the cause of more open government, in difficult circumstances within his own party and outside for some time now. It was especially 2165 valuable to hear the hon. Member highlight one dimension of open government or, to be more precise, not open enough government—namely, the ineffectiveness of the parliamentary Question as a way of obtaining official information. The weakness of our procedures in this House is yet another strong reason for being in favour of the Bill.
I also add my voice to the growing and glowing chorus of congratulation to the hon. Member for Isle of Ely (Mr. Freud) on his outstanding speech in moving the Second Reading of his Bill. He displayed charm, wit and that important weapon, ridicule. He also showed some common sense and put forward some constructive proposals. He could not have made a better job of introducing this important piece of legislation.
Clause I simply abolishes section 2 of the 1911 Act. If only that one clause got on to the statute hook it would be a significant achievement. In our national life today, two sectors of our community are and long have been especially inhibited by the effects of section 2. One is the press. The other is the Civil Service. Their inhibitions result in practically the whole British public being denied information which is rightfully theirs, and should be in a free society.
Journalists have always loathed section 2 of the Official Secrets Act. When the Act was first mooted, The Times published a ringing editorial saying:If we are to have legislation against the Press at least let it not be mixed up with penal provisions against spies and revolutionaries.Alas, that advice went unheeded, and the effect over the past 68 years of section 2 has been to inhibit the reporting activities of journalists.
I am sure that hon. Members will recall the mordant comment of Voltaire after the execution of Admiral Byng on his own quarterdeck, when he said:In England, from time to time they execute admirals to encourage the others.The twentieth-century equivalent of that might well be:In England today, from time to time they prosecute journalists under section 2 of the Official Secrets Act to encourage the others.There was a prosecution only the other day. Eight years ago, as various hon. 2166 Members have mentioned, I myself stood trial under the provisions of this Act I thank my right hon. Friend the Member for Stafford and Stone (Mr. Fraser) for what he said. From the tone of his comments, it appeared that it was a rather jolly occasion in his memory. That is not exactly my own memory of it. shall not easily forget the day when. along with the editor of The Daily Telegraph, I obeyed the startling command "Put up the prisoners" and walked up some steps into the dock, having been told by the warder "You are in court number one, Sir. That is the famous one where we had Haigh, Crippen and the Kray brothers".
As we know, that case ended happily. With the historic judgment of Mr. Justice Caulfield. everyone knew that section 2 of the Official Secrets Act must be amended and would never be the same again. Although everyone agreed with that, and although we had committees, commissions and the report of the Franks committee, of which the present Home Secretary was a member, there has been a staggering degree of immobility and lack of progress.
Today, we still have what is at best a half-free press. My right hon. Friend, the Member for Stafford and Stone referred to the inconveniences and inadequacies of the Lobby system and the managed news that Governments somehow usually control. Journalists who should be the detectives of democracy under the Lobby system are the anonymous messenger boys of democracy. The press simply does not do its job properly. It is long on political opinions but short on real disclosures of the working of government. There are honourable exceptions. The name of Mr. Chapman Pincher has been mentioned. But, by and large, for the press to try to make disclosures about the Government, with the present Official Secrets Act in existence, is like trying to clap hands with one hand.
I come to the inhibitions of civil servants under the present Act. The catchall nature of section 2 makes it an offence for any item of official information to be disclosed—from the trivial like the number of cups of tea brewed in the Ministry of Housing every morning to much more serious and significant matters.
2167 In the 68 years since a Liberal Government introduced this legislation, the biggest change has been that the area of activities of Government have enlarged so much. We face a situation in which the legal teeth introduced in 1911 to prevent details of the movement of Royal Navy battleships falling into the hands of enemy spies are today being used merely to prohibit embarrassing items of information about, say, the maladministration of the Welfare State services falling into the hands of national newspapers. This has brought about a kind of Parkinson's law of official secrecy whereby the pressures towards greater secrecy seem to be growing in inverse proportion to the number and quality of secrets worth guarding.
Today, the real effect of section 2 is not the prosecutions. It is the way in which civil servants are reminded constantly of their obligations under the Act. The hon. Member for Isle of Ely referred to form E74, which is the declaration form on which every civil servant, even temporary gardeners, charged with the momentously secret task of planting crocus bulbs at Hampton Court Palace, have to sign saying that anything they disclose and which is not authorised renders them liable to prosecution. This, of course, immediately causes civil servants to clam up over the disclosures that they might make to honest inquiries. I often think that millions of pounds of the taxpayers' money might not have been wasted if, in past years, civil servants had been able to give answers to questions from journalists or members of the public in non-sensitive areas.
We have heard of the massive losses by the Crown Agents which might have been staunched, the expensive futility of the Beira patrol that could well have been revealed 10 years before publication of the Bingham report and the squandering of funds of the Property Services Agency, so devastatingly documented in a recent book by a retired civil servant, Mr. Lesley Chapman, called "Your Disobedient Servant". That wastage of funds could have been stopped much earlier if only this Act had not been in force and civil servants, willing and anxious to disclose this kind of information to inquiries, had been able to do so.
The more we hear about the administration of the right hon. Member for 2168 Huyton (Sir H. Wilson), the more is coming out of details which are embarrassing and show that the taxpayer and the voter have been let down. Of course we expect to find a few skeletons in the cupboard, but not to find them dangling like candelabra throughout Whitehall. The more that the public can get to know about past and present administrations' mistakes and gain the right to ask questions, the sooner the whole situation will be changed. As the hon. Member for Isle of Ely said, it will also cost much less money than administering an official information Act.
Information in our society is a form of power. The main principle of the Bill is that it shifts the balance of power towards the public's right to know, subject only to certain sensible exceptions, and away from civil servants' automatic right to keep secret matters which are far removed from national security or other sensitive areas.
Instead of negative legislation restricting the free flow of information, we are at last being offered positive legislation which can only lead to a degree of more open government. The mechanics of the Bill are a matter for the Committee, but I do not believe that there can be many hon. Members in the House today who will seek to obstruct a start down the road towards enshrining this principle in legislation.
I end, Mr. Speaker, by reminding you of the words of Milton:Whoever saw truth put to flight in free and open encounter".The trouble in secretive Britain today is that encounters seeking the truth about Britain have rarely been either free or open. The Bill can change this regretable situation, and I warmly commend it to the House.
§ 1.48 p.m.
§ Mr. Eric S. Heffer (Liverpool, Walton)
I do not want to go into various examples of what we are discussing because that has been done admirably by the hon. Member for Isle of Ely (Mr. Freud), who introduced the Bill, by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker), and others. Like many other Members who have spoken today, I welcome very much the opportunity not only to debate the question but to support the Bill. The hon. 2169 Member for Isle of Ely must be congratulated on bringing forward this Bill and giving us the opportunity to record our vote and our position on it.
I want to give the official position not of the Government—I obviously cannot do that—but of the Labour Party. On this occasion I can speak for the Labour Party, because I am the chairman of the machinery of government sub-committee on the party which drew up a Bill not exactly like the hon. Gentleman's Bill but with great similarities, which we presented to the last annual conference of the Labour Party for the support of the party. It was supported, so far as I can remember, with hardly any dissension. It was a remarkable debate and the degree of unanimity expressed by the delegates was tremendous.
I shall reiterate the words of the Labour Party manifesto in October 1974. The document says:Labour believes that the process of government should be more open to the public. We shall: replace the Official Secrets Act by a measure to put the burden on the public authorities to justify withholding information.Regrettably, we have not had those proposals or that legislation presented to us. There was the White Paper in July, of course, which, in paragraph 48, said:This is a matter on which the Government has come to no conclusion and has an open mind. The Government recognises that its proposals do not go as far as the Labour Party Manifesto of October 1974. …We regard, however, the reform of section 2 of the Official Secrets Act 1911 on the lines set out in this White Paper as a necessary precursor of further change".We argued at the Labour Party conference that as we had brought forward a draft Bill there was still time in this Parliament for the Government to take it over. Of course, the draft has imperfections. It was not drawn up by parliamentary draftsmen. For that reason, as the hon. Member for Isle of Ely said, it is easy to pick holes in it. I would add, however, that some legislation that is drawn up by parliamentary draftsmen is not the best possible. That is why we spend so much time picking holes in legislation. Our draft was as good as we could devise and it could have been taken over, but unfortunately it was not included in the Queen's Speech. It is all the more important, therefore, to support this Bill. 2170 The Labour Party home policy committee, with the endorsement of the national executive, decided to send the hon. Member for Isle of Ely a copy of our Bill and an expression of support for his Bill. We made clear that there were differences of emphasis, however, they will no doubt be pursued in Committee by Labour Members. I trust that shall not be on the Committee, because I have more than enough to do now. But I agree with my hon. Friend the Member for Perry Barr that much time and energy will be required. For example, our Bill would not provide a five-year period for Cabinet documents. We preferred the Swedish system of two years.
It is vital that the people as a whole, but particularly Members of Parliament, should know how Governments reach decisions. I chaired a working party on the Industry Bill when I was a Minister. We issued a White Paper. I see no reason why the papers presented to that working party and the conclusions that it reached should not have been publicly available.
I agree with the hon. Member for Thanet, East (Mr. Aitken) that information is power. There is a great mythology about this subject. If the Government are better informed than the general public and Members of Parliament, they can create an aura suggesting that they know best, that they know something which the rest of us do not know and which it is important we do not know or it would be disastrous for the country.
My experience as a Minister was that, apart from certain things, nothing needed to be hidden. Yet I could never say how we reached decisions, because one is not allowed to. Even today, I cannot give details. I cannot talk about private letters that I wrote to the Prime Minister on certain issues. People know that I sent them, but I cannot give the contents of my letters or of the answers I received.
Why should not the general public know what is happening and he w policy is formed? That is what democracy is all about. If the public are more informed, of course they will challenge decisions, but what is wrong with that? They also have a point of view. I have always found that if one reaches a sound conclusion and argues for it among the general public, they will support it, provided that they understand what it is 2171 about. If not, they will think that the person suggesting it has something to hide and is trying to kid them. We should get away from that.
The introduction to a statement by the Labour Party national executive last year about a Bill of this kind said:In a democracy, the ultimate sovereignty belongs to the electorate. As such, the democratic principle goes far beyond doctrines of ministerial responsibility and Parliamentary control, important though these are. Democracy entitles citizens to be involved in all the process of government and must be founded more on trust in the people by governments than on the trust of people in the governing elites.That is the view of my party. We want a Bill on this subject brought in as soon as possible. I hope that this Bill not only-receives a Second Reading today, as I know it will, but actually gets on to the statute book and remains until, perhaps. my own party can bring in another Bill to make it even better.
If we support the Bill today, we must do so wholeheartedly. That is what my party officially is doing. I want that to be understood: my party is absolutely firm and clear on this. I do not know whether the Liberal Party has gone on record to the same effect—
§ Mr. Freud indicated assent.
§ Mr. Heffer
Then the Lib-Lab pact becomes a reality on this question. I f the Tory Party also will support such a Bill officially, it will be welcomed as well. It is important that we get such a Bill
I know that there will be arguments about the money involved and about how such provisions have been misused in America. Our proposals are not identical to the legislation in America or Sweden. Our draft adapted some of their legislation to British conditions which. obviously, are different.
I hope that the Bill gets a good wind, not only today but all the way to the statute book. I can say that without hesitation on behalf of the Labour Party —not the Labour Government, I am afrai; there is sometimes a distinction between Government and party, and there is on this issue. The party is clearly in favour of such a Bill, and we want It enacted as soon as possible.
§ Mr. Eddie Loyden (Liverpool, Garston)
On a point of order, Mr. Deputy 2172 Speaker. In the last few minutes I have received a communication from Liverpool which indicates the closure of another major factory. What action can I take to make a Minister come to the House so that I can raise the matter with him?
§ Mr. Deputy Speaker
We had an hour this mornng when a Minister was questioned about a statement. Later, a point of order was raised about another matter, and that was dealt with. The hon. Member must understand that there are difficulties. It is difficult to obtain a Minister at such short notice. Perhaps the hon. Member can pursue the matter outside the Chamber.
§ 2.0 p.m.
§ The Secretary of State for the Home Department (Mr. Merlyn Rees)
I congratulate the hon. Member for Isle of Ely (Mr. Freud) on his good fortune in obtaining first place in the Ballot and the felicitous manner—except in one respect—in which he introduced the Bill.
I have listened with interest to the greater part of what has been said. I hope that the hon. Member will excuse me if I leave the Chamber after my speech. Reports are coming in from various centres and decisions have to be taken. I hope that the House will forgive me if I do not stay for the rest of the afternoon.
We have already covered much ground. Many people want freedom of information legislation and access, but they often have different reasons for wanting such legislation. That is as it should be.
As hon. Members have been speaking, I have been thinking about the information that is required. My hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) talked about certain information which is given in the United States. There is no reason why that should not be made available here.
Reference has been made to supplying information about how decisions are made. I cannot help reflecting that in some instances there is a lack of knowledge of the procedures of government—and why not?
This morning I took three or four of what I regard as most important policy decisions. They were not put on a bit of paper. They were expressed on the 2173 telephone. They are important in today's context, but I am not sure whether they will ever appear on a piece of paper so that people can make a judgment on them.
The situation in Northern Ireland was a little different when the right hon. Member for Penrith and The Border (Mr. Whitelaw) was Secretary of State, because major policy decisions were made about the constitution, and so on. But much of the work that was done in my time in that office certainly was not committed to paper. It was certainly not so when I made the decision to end detention, for example. The policy matters that are talked about in some of the Sunday papers and the corridors of the House are not committed to paper. Much decision taking is done in conversations between Ministers, not in Cabinet or Cabinet committees.
§ Mr. Rees
I was not given any anonymous advice when I made my decisions this morning. I had reflected on the issues overnight. It is wrong to think that there is a battery of civil servants lined up to give me advice and then I say that I shall take not one piece of advice but another. I am not making a major issue of this argument, but we must be clear about what we are trying to achieve when we draft legislation.
Hon. Members have raised the issue of parliamentary Government, and this stretches as far as Select Committees. There is a major disagreement in the House about the functioning of the House of Commons. I understand that the hon. Member for Thanet, East (Mr. Aitken) talked about a half-free press. If more information is to be made available, the press will have to change its ways. Journalists will have to study much detailed information and make judgments on it. Perhaps that is why we have heard about the differences between the American and the British press.
When I was in America earlier in the year, it was put to me that the American 2174 journalists go beyond what is called the "green baize door". Perhaps more information of this kind would make the judgments of newspapers more analytical than they are at present.
The hon. Member for Isle of Ely talked about flabby civil servants. I have the highest regard for the small group of civil servants with whom I talk a great deal. It is not right to say that they give me formal advice or try to persuade me to do what I do not want to do. But I expect them to put to me all the views and attitudes which I need to know in order to make up my mind. My Department is a policy-making one as opposed to an administrative Department such as the Department of Health and Social Security.
The hon. Member also said that a civil servant is always good for a laugh. I have a high regard for the work that they have done. In my Department this week many of the more junior civil servants were in the office at 7.30 a.m. because of the rail strike. They work very hard. They deserve praise instead of being subjected to the usual music hall attitude and references to cups of tea.
§ Mr. Tom Litterick (Birmingham, Selly Oak)
Is not the argument of the hon. Member for Thanet, East (Mr. Aitken) that if one knows what the civil servants are doing and the quality of their work—as the Home Secretary must know—one can make a judgment? But if one does not know, one has nothing to go on. As a result, myths develop. We should not blame the public or the newspapers for erecting archetypes or caricatures of civil servants when their activities are secret from the rest of us.
§ Mr. Rees
That raises other issues. A matter arose yesterday which involved civil servants. I made clear that any decision on that matter had to be made by me and that I was responsible to the House of Commons. I made clear that what they had to say in an administrative way was significant, but I felt strongly that we should change the nature of this place if the views of civil servants, before they come to Ministers, were taken into account.
There are many difficult details that we shall have to discuss in Committee. It has been suggested that we should pass 2175 the Bill and put it right later. But we must get the details right first.
The Prime Minister has said that we do not intend to oppose the Bill. We believe in and are committed to greater openness in government. We have put forward proposals for the reform of the Official Secrets Act. The Government are in favour of improved access to a wider range of information, but we have reached no conclusion on the form of availability, statutory or otherwise, or on the types of information that might be available. It is a complicated matter and I have given it much thought over the years.
I was on the Franks committee. Last evening I asked myself whether I could list what could be made available. I could have done so, but when I considered the questions that I have put to people from my Department and the Civil Service Department, the pen stopped in my hand. I realised that I was opening up something serious, not in the sense of giving the game away but in the sense that I did know the answer to how that idea could, in practice, be carried out.
In not opposing the Second Reading, I am not giving a blank cheque on behalf of the Government. Even before the Franks committee report I took the view that, in order to resolve what official information could and should be disclosed and how, we must have a legislative framework, with criminal sanctions, for official information requiring protection. The hon. Member for Isle of Ely has, to some extent, done that within the Bill.
Looking at experience in other countries, particularly America, I find that some information is ringed because it must be protected. The hon. Gentleman and others have poked fun at the Official Secrets Act—and it is easy to do that—and one must get clear the information that needs to be protected. Not only does that colour one's attitude but it makes it possible to look at the remainder more clearly and discover the basis on which to make the rest of the information available.
§ Mr. Keith Stainton (Sudbury and Woodbridge)
Will the Home Secretary couple with the difficult areas of security the protection of individual privacy? The schedule to the Bill covers this only cursorily.
§ Mr. Rees
I shall certainly do so. It is long enough past to reveal a story. When I was the Minister responsible for the Air Force, I received a letter from a Member of Parliament telling me that a wife had written about an airman saying that her husband had not been at home for 25 years and that it was terrible that the Air Force always posted him overseas. On looking at his records it was discovered that he had made application on every occasion never to live at home and that he wanted to be away from home. The records of that man should be protected. I wrote two letters to the Member of Parliament, one telling the truth, and the other to be sent to the lady concerned. I do not know what happened.
The White Paper on the reform of section 2 stated that:Section 2 … does have an inhibiting effect on openness in government. The Government are in no doubt that reform of this section is not only a much-needed improvement of the criminal law but a necessary preliminary to greater openness in government.I believe that. What we should do to increase further the flow of official information depends on settling that prior issue. Part II of the Bill is, in effect, the Official Secrets Act part. Having dealt with that, I shall deal with Part I, which flows from it, and we shall see how far it represents a workable contribution to dealing with that aspect.
The Franks committee proposed necessary protection for certain sorts of official information. I shall take only the headings and point out matters that we shall have to look at in greater detail in Committee. The Franks committee proposed that there should be two kinds of protected categories. The first was categories to which the test of injury to the nation should be applied. There were three categories under that—defence and internal security, foreign relations, and currency and the reserves. That has now gone because of floating exchange rates. 2177 Secondly, there were categories having blanket coverage—law and order, Cabinet documents and confidences of the citizen, that is, information given to the Government by private individuals or concerns.
Franks proposed for the first set of categories that the fundamental test for protection should be that the information was "classified" on the grounds that its unauthorised disclosure would cause at least serious injury to the interests of the nation. In respect of a document, classification would involve marking in an appropriate way, although the unauthorised removal of a mark would not affect the document's classified status. For information communicated other than in a document, the test would be whether it should have been marked were it a document.
To ensure that people could not be prosecuted for disclosing the contents of over-classified documents, Franks proposed that no prosecution could be mounted in respect of a category where classification applied unless the responsible Minister personally reviewed the information and certified that at the time of the alleged disclosure the information was properly classified. That certificate would be conclusive proof of injury to the national interest. I agreed to that at the time. I was only a junior Minister before that. We have changed our minds on that, not only from talking to colleagues but because I have learnt more about the nature of classification since I became a Cabinet Minister.
Franks proposed that the basic offence for the Crown servant would be that he knowingly disclosed information in a protected category, contrary to his official duty. Similarly, the offence for Government contractors and persons entrusted with official information in confidence would be that, having had the provisions of the Act drawn to their attention, they knowingly disclosed protected information otherwise than was necessary for the contract or for the purpose for which the information was entrusted. The question of Government contractors is of the greatest importance in the mixed economy which has developed over the years, where the distinction between public and private sector gets more and more enmeshed. Many firms, whether through the National Enterprise Board or other- 2178 wise, are involved with Government information. We must consider carefully in Committee how this category of information can be protected.
Another major point in the Franks report was that the citizen would commit an offence if he disclosed protected information knowing that it had been obtained in contravention of the Act. The White Paper, which followed my statement of 22nd January 1976, differed from the Franks report. It differed in one way that the right hon. Member for Stafford and Stone (Mr. Fraser) will not like and in other, more liberal, ways. It proposed no criminal sanctions in relation to currency and the reserves or for Cabinet documents as such. A Cabinet document would not be protected merely by being called a Cabinet document. It would be protected only on the basis of the information in it. That was a step forward in the Government's thinking. We also proposed a new category of security and intelligence and a broadening of the citizen category.
In the White Paper, from the Government's point of view, the protected categories are —and it is beyond them that one is talking about access—categories to which the test of injury to the nation is applied, defence, internal security and foreign relations. The categories with blanket coverage are security and intelligence, law and order and confidences of the citizen. The White Paper also noted that certain security measures, including ciphers, keys, passes and so on would need protection.
There are one or two aspects of the Franks report on which we shall need to concentrate. The White Paper agreed with the report that information in test of injury cases should be protected only if unauthorised disclosure would cause at least serious injury to the interests of the nation. However, the White Paper also urged that the Franks committee was wrong in making classification the test and that the test of criminality should simply be knowledge that the information was protected, in the sense that its disclosure would cause serious injury. As I was responsible for the White Paper, I was there arguing against what I had once believed.
I learnt later in the day that basing the test on classification alone was wrong 2179 and that the test ought to be whether disclosure would cause serious injury to the national interest. The White Paper proposed that classification markings should still be important to enable this knowledge to be established, and it suggested a system of classification markings to be embodied in legislation by regulations. I do not hide from hon. Members that that would involve long discussions.
The hon. Member for Isle of Ely read a document from the days when Herbert Morrison was Lord President of the Council and told us that it was classified as secret. I suppose that it must have been a washover from the war when anything that was classified was secret. I doubt whether it would be classified at all these days.
One crucial point is that the White Paper adopted the Franks committee proposal that the responsible Minister would have to certify the injury to the national interest in those categories, but it went further by suggesting that such a certificate could be entered in evidence only with the Attorney-General's consent. The certificate would be conclusive proof. I shall comment later on what the Bill proposes because I believe that it may be a dangerous step.
The main difference between the White Paper and the Franks report on offences relates to the citizen's offence. The White Paper proposes that the prosecution would have to prove not that the citizen knew that the information he disclosed had been obtained in contravention of the Act but that an offence would be committed if the citizen disclosed information knowing, or having reasonable cause to believe, that it was protected.
The protected categories in the Bill would be those to which the test of injury to the national interest was applied—defence, security intelligence, including internal defence and security, and the categories with blanket coverage would be law and order and confidence of the citizen.
There is no coverage for the foreign relations category. We shall have to argue about that, though it appears from the introduction of the Bill, as first published in the Outer Circle document which I received some time ago and on which the Bill is based, that that omission may 2180 be due to a misunderstanding of the White Paper.
The other main departure from the White Paper is that the Bill would give protection to the security and intelligence category only if serious injury to the national interest could be proved. I know that it is always possible to say that certain information is not very important and to question whether it would cause serious injury to the national interest. I have experience in at least one of those areas and I know that it is possible to show, as did the right hon. Member for Stafford and Stone, how nonsenses take place, but it is a difficult problem because we have to remember the argument of the seamless robe—the little bits of information that are put together in foreign intelligence work. We shall have to take that fact carefully into account. I believe that the Bill puts foreign relations in the wrong category.
§ Mr. Christopher Price (Lewisham, West)
My right hon. Friend has referred to the jigsaw puzzle argument, but will he accept, especially after the experience of the case that has recently been through the courts, that if we are concerned about the secrecy of the security services, it is wholly counter-productive to spend weeks going through those little bits of information in the courts? Does he agree that the problem will not be solved by adding the jigsaw puzzle element to the existing categories?
§ Mr. Rees
The Attorney-General's speech to the Parliamentary Labour Party, which has been printed—the meeting was not attended by many hon. Members—deals with that matter in detail. I am happy to take up the argument because it illustrates that when we discuss the matter in Committee, as we have been discussing it in Government, we shall have to remember that we are not in an area where there is something simple to do. It is a complicated matter and we must get it right. In saying that, I am not playing what one of my hon. Friends described as funny games. It is a complicated matter to which we shall have to pay careful attention.
On the proof of injury to the national interest, the Bill basically reverts to the Franks committee philosophy of classification being the test. I believe that the weakness in that is obvious.
§ Mr. Rees
I am glad that someone bows to the Home Secretary. That is rather nice. I am trying to spell out the points that we shall have to discuss. I hope that the hon. Gentleman will not bow on that aspect, because I trust that we shall have a fruitful discussion. Many hon. Members who take part in the debate will serve on the Standing Committee and we must discuss not why people want a Bill but what it will be like in practice.
The Bill departs from the Franks report and the White Paper on the issue of ministerial certificates. It would enable a Minister to issue a certificate only where information was not in a classified document and, even then, a certificate would not be conclusive proof. The issue of injury to the national interest would therefore be a matter for the courts to decide, and that is in diametric opposition to the view of the Franks committee and the White Paper.
I question whether the courts are the right place in which to make such a judgment. Indeed, I question the involvement of the judiciary in this area. We have had some examples of it in recent years and it is an important point which we shall need to look at carefully in Committee.
§ Mr. Hugh Fraser
I could not agree with the right hon. Gentleman more, but I believe that the French system is superior to ours. In France, such matters are referred to the High Court of Security, and there has been only one reference to the court, after a magistrates' hearing, since 1960. We should consider that procedure.
§ Mr. Heffer
As my right hon. Friend is not entirely enamoured of the Bill, can he say whether he will give a fair wind to the provisions drafted in the Labour Party Bill and base his views on that Bill? If that were adapted in conjunction with the Bill of the hon. Member 2182 for Isle of Ely (Mr. Freud), we could get a good compromise and a good Bill.
§ Mr. Rees
I looked at the Labour Party Bill and others in the early hours of this morning, and I do not know how on earth one could put them together in any way in the time available before we go into Committee. I shall certainly take them into account, but it is not possible to take clauses out of some Bills and put them into others. The drafting would not be easy.
§ Mr. Robert Kilroy-Silk (Ormskirk)
Given that both the Labour Party Bill and the Bill before the House seem to be unsatisfactory to my right hon. Friend, why does he not introduce a Government Bill and take in the best of all the proposals?
§ Mr. Rees
My hon. Friend and I disagreed on this earlier. It is not drafted—I did not believe that we would get to that pitch—but I could oblige on the Official Secrets Act aspect and maybe we could get that out of the way in this Parliament. I do not know. There are difficulties in drafting, and I have not got that far. We shall see. There are serious problems of structure and approach in this part of the Bill, and I raise them now only as forthcoming attractions for when we get into Committee.
Part I of the Bill refers to the question of access to official documents. The hon. Member for Isle of Ely acknowledged his indebtedness to the Outer Circle policy unit, and there have been many proposals by various bodies for establishing what I think is technically called a "freedom of information regime". There has been the report by Justice; there was the material prepared by the Liberal Party; there have been the Outer Circle proposals; there have been the proposals through the national executive committee of the Labour Party, tabled for discussion at last year's Labour Party conference. There have been numerous speeches and lectures by eminent politicians, academics, lawyers and others.
So we do not lack suggestions. Their basic aim is a greater access to a wider range of information, and that aim is shared by the Government. But there is no consensus on the right approach, and the subject raises large questions. A number of major features of this part 2183 of the Bill trouble me on behalf of the Government.
§ Mr. Bob Cryer (Keighley)
My right hon. Friend has said that there is no consensus, but would he accept that the NEC statement and the draft Bill were not put before the Labour Party conference simply for discussion? They were voted upon and accepted by the conference, and there is a consensus within the party that that sort of framework should represent Government policy.
§ Mr. Heffer
It is true that there was no committee stage at Blackpool—obviously—but, as my right hon. Friend knows very well, we made it clear from the platform that our proposals had not been drawn up by parliamentary draftsmen but that we hoped that the Government would take them over and put them in proper civil service-governmental legislative form. But the position was agreed.
§ Mr. Rees
It was my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) who put it that way from the platform, if I recall correctly. I am not disagreeing with what he has said. I am trying now to pick out five or six points in particular that we need to look at.
Under the provisions of clause 8, for example, access can be demanded not only to documents on policy advice from officials to Ministers but also, as I read it, documents exchanged between Ministers. With local government experience and experience of public and private sector organisation, I wonder whether any organisation can operate effectively if it has to do so all the time and in the short run as though in a goldfish bowl. It can be argued that there are some aspects where this could be done and others where it should not be done.
2184 Let us take the example of documents between one Minister and another. Such documents go round for Cabinet committees and discussion in the appropriate Cabinet committee is what matters. Under the Bill's proposals, proper discussion of a matter would be made very difficult in a Cabinet committee, even in the short run.
The hon. Member for Isle of Ely can point to the provisions in the Bill whereby access could be denied for a certain time on conditions. But the helpful notes which the Outer Circle policy unit has published suggest that the safeguards in clause 8 are intended only to protect documents from disclosureat the time the policy is being formulated or a decision made".What are the implications? Ministers can and do take advice from a great number of people inside and outside Departments. I believe that to grant right of access to such advice—even after the advice—in the short run could alter fundamentally and for the worse the entire working of government.
People ought to be able to give advice in confidence, in certain circumstances, at least. I took advice this morning on another matter over the telephone. I telephoned a person and asked him what he thought of the situation. The person concerned knew full well that I would not put down what he said on paper and that I would not reveal his advice. But I regard his advice as important, because he operates in a subject of which I know little. If it had been known that his advice in those circumstances would be written down and appear a month later, I certainly would not have had at least his words of wisdom on this occasion.
§ Mr. Freud
This is the sort of thing that we would look at in Committee. It is exactly the fact that the argument will have to come from a man wishing to cover up information that we are trying to establish. What we are trying to say is that information shall be free unless it can be shown that it should not be so, instead of what we say now—that everything should be secret and we had better sit down.
§ Mr. Toby Jessel (Twickenham)
Will this not actually reduce the amount of information that could either be free or 2185 not free, in the sense that if civil servants who are trying to work out the options for policy or administration to put before their Ministers and are exchanging that information amongst one another, putting up ideas and questions to one another, know that it might all be published at a later date, they will be inhibited from putting the thing on paper at all? Will this not make good government almost impossible?
§ Mr. Rees
I understand the point being made. In the discussion in Committee, we shall all want to maintain good government, although some people could argue that the result of government with these provisions would not always be good. But that is not the sense in which the hon. Gentleman is using the expression. I am simply saying that getting external advice from people who do not want publicly to be involved is a procedure that I would not want to alter.
There are many other points at issue. I cannot deal with all of them now, but among the most important is the question of independent review. I fully appreciate the importance attached to having a means of independent review of a decision not to make documents available where the applicant is not satisfied that his particular request falls clearly into an exempted category. I am not sure that the House would be happy with that provision in the Bill as it stands.
As I understand it, there is a choice on offer of complaint to the Parliamentary Commissioner for Administration or recourse to legal proceedings. Who decides which course should be followed? Are we to have a double jurisdiction? In my strong view, Ministers should be responsible to Parliament and to no one else for the exercise of their discretionary power. The work of the Parliamentary Commissioner for Administration has over the years been excellent, but if the Bill removed the essential need that a Minister is responsible to the House of Commons and no one else, I believe that great harm would be done, and that responsibility to Parliament cannot be given to anyone else.
The implications for the office of the PCA would be considerable. At present, he is specifically precluded from questioning the merits of a ministerial decision taken without maladministration, and to 2186 invite him to do so where documents are denied would, despite the lack of enforcement power, effectively substitute his judgment for that of a Minister, and he would be brought directly into the political arena.
Judicial review of the merits of decisions to deny documents would raise a profound constitutional issue. This is an area in which we have been traditionally reluctant to venture. We have been promised two new new clauses on ultimate appeal to the courts. This will, no doubt, encourage judicial review of the merits of individual cases, and the exercise of ministerial discretion, with all the dangers of the politicisation of the courts.
The major point that I am making is that it is this House which should take the final decision, not the Parliamentary Commissioner and not the courts. That position should be protected, and these review provisions raise significant and far-reaching constitutional questions. The lack of speed in dealing with these issues in this Parliament is not only a reflection on the nature of this Parliament but of the great difficulty of this issue and of wider issues in general. Finally, on this part of the Bill—
§ Mr. Anthony Buck (Colchester)
As Chairman of the Select Committee that supervises and works with the Parliamentary Commissioner, I am a little worried about this part of the Bill. Will the Minister see, when the matter is considered in Committee, that his Department gives full consideration to this and also considers a possible alternative way of supervising the provisions of this Act? Some of us share the misgivings he has just stated, but we do not want to see that there is effective overall control. Perhaps his Department could be helpful in seeing that an appropriate solution could be arrived at.
§ Mr. Rees
Certainly, I will do that.
I must now deal with the cost implications of the Bill. I am not arguing that the Bill should be rejected out of hand on this account, but when we consider the current pressure on public expenditure—and that pressure will increase if public expenditure goes up in the public sector because of pay increases—it should be made clear that the costs of the Bill, which could range from £5 million to £25 million, will not come out of my budget. 2187 That is for sure. I need more money for prisons and for other areas. Whatever else we are talking about, we are not talking about the finance for this Bill coming out of the Home Office budget. I say that very boldly here because the Chancellor is nowhere around.
§ Mr. Archie Hamilton (Epsom and Ewell)
Might this not fall into the category of a self-financing productivity deal?
§ Mr. Rees
Maybe, in the long term, and then there could be some monetary saving. But those savings will not be in the information services because they perform a different job. I have made a list of the things that the information service does that the provisions of this Bill will not alter. My Department has a section that puts out advertisements seeking recruits for the prison service. That is still going to be done. It also puts out advertisements for recruits for the police force. That aspect is a large part of the Department's work. The information department may be miscalled, but any idea that there is going to be a great saving in manpower on the information side is misconceived. However, I do not think that all this matters too much.
I now draw the attention of the House to the terms of the financial memorandum. To me it appears to dismiss the cost of running the new system rather cavalierly. It says:Once records have been reorganised and the system of servicing applications initiated, the cost of running an open system will not be materially different from the present unknown costs of running a closed system.The Outer Circle policy unit has said:It is difficult to estimate public demand (under the provisions of this Bill) but it must be anticipated that the costs to Departments will be substantial, both in reorganising records and in servicing applications, though the provision of copying facilities would be paid for by fees.I have all sorts of estimates, lower and higher. What I am saying is that it is all going to cost money. However, this aspect can be discussed when we come to the money resolution.
§ Dr. Oonagh McDonald (Thurrock)
Perhaps I could reassure my right hon. Friend on the question of costs. In the White Paper that was published this week there was a reference to substantial contingency reserves that have not yet been allocated. In view of my right hon. Friend's commitments to freedom of information, perhaps he could put in a bid to the Chief Secretary to the Treasury in that way.
§ Mr. Rees
If my hon. Friend, with her experience at the Treasury, considers the contingency reserves every year she will see that it is not much use looking in that direction. In last year's White Paper we declared our settled intention of continuing to expand the flow of information to Parliament. We have done this. We went on to say that the Government had come to no conclusion on whether further steps in the direction of greater openness would require legislation. We said that we would commission a more detailed study than has so far been possible of overseas experience and its relevance to our constitutional system. The Government said that, in the light of all this, they would announce conclusions concerning the next steps in this important matter.
All this work is now in hand, and the fact-finding part of the study is now virtually complete. The results will be available for publication during next month. The Government have in mind, as one possibility, to carry parliamentary and public discussion a stage further by publishing a Green Paper. I do not know that a Green Paper is relevant.
§ Mr. Rees
I wrote in my notes this morning "Why a Green Paper when now we have a Bill?". There are large issues of principle here, such as judicial involvement in political questions as well as the political impartiality of civil servants which enables them to give candid and frank advice to successive Administrations. There is the problem of reconciling prompt economical administration with full and well-informed debate, and there are many complex and technical questions as well as the ones that I have touched on. All these issues will need to be scrutinised in Committee. I do not think that the Bill should be denied a 2189 Second Reading, for the reason my hon. Friend has mentioned. It performs functions, to some degree, of a Green Paper discussion and we shall have to test not only the specific—
§ Mr. Rees
Well. can I put it another way? I am justifying my not publishing a Green Paper. I am saying that we shall have to look at each clause very carefully as we go through Committee.
I make one last point. I do not think there will be any disagreement, that legislation on this subject must take proper account of our constitutional position in this country. When my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) and I spoke about this some time ago we were agreed it was no good looking to the United States or Sweden, or anywhere else, and attempting to graft their ideas on to our political system, because it would not work. We have to take into account our basic constitutional system. where Ministers are directly answerable to Parliament for the working of the Executive. This is something that we must keep at the front of our minds throughout subsequent discussion.
§ 2.48 p.m.
§ Mr. Ian Percival (Southport)
It will probably be convenient if I divide what I want to say under the three main subheadings that the Home Secretary first adopted. I come straight away to clause 1 and offer to the hon. Member for Isle of Ely (Mr. Freud) and his sponsors who are promoting the Bill our unqualified congratulations on taking the first step to get rid of the dreadful section 2 of the Official Secrets Act. That will be no surprise to the hon. Gentleman, because it was a Conservative Government that established the Franks committee with precisely that object in mind. The purpose of that exercise was really to consider in detail what should take the place of that section.
The pity of the matter is that the timing of more than one event prevented action being taken sooner. For once I agree with my neighbour, the hon. Member for Ormskirk (Mr. Kilroy-Silk), that it is a pity the Government did not get on with the matter and produce a Bill so as 2190 to relieve the hon. Member for Isle of Ely of the many anxieties that he must have suffered in promoting a Bill with such enormous consequences. Therefore, under the first sub-heading, I give unreserved congratulations. There is a scale of commendation, which immediately goes down a little. It will be no surprise to the hon. Gentleman to know that at the end it will be near the bottom.
I come straight to the second subheading. Of course, if we are to abolish section 2, as everyone wants, something must be put in its place. There must be some provision as to the wrongful communication of certain information. That is why logically one should deal with that next. Although it is in part II, the Home Secretary directed his attention to that part after he had referred to clause I, and I do the same, because that is the logical sequence that we must follow.
I agree that this is largely a Committee matter. But it is right—here I agree with the Home Secretary—that both the Government and the Opposition should make known at this, the earliest possible, stage their broad line of approach. That is what I propose to do, but I assure the hon. Gentleman that I do not propose to do much more than that with regard to this part of his Bill.
I am assisted in being brief on this matter by the fact that my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers) set out our position clearly in the debate held in Opposition time on 15th June last year. It is that we accept the Franks basis for dealing with classification and declassification. We accept its principle and prefer it to the variations proposed by the Government, though we do not accept all the committee's recommendations as to the way in which the classification and declassification should be handled. In particular, we do not agree with the recommendations as to the review of classifications.
My right hon. and learned Friend made our position clear in the debate last June when he said: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 Select Committee and that the matter should be subject to the affirmative 2191 procedure."—[Official Report, 15th June 1978; Vol. 951, c. 1260.]The hon. Gentleman has made the regulations subject to affirmative procedure. I hope that, whatever other changes there may be, that will not be changed.
There is nothing in the Bill about our recommendation that classification and declassificationshould be kept under continuous review by a Select Committee".One needs only to observe, for the force of the observation to be appreciated, that that would mean that the House itself would have a continuing part in reviewing the classification and declassification. It is a good thing for us as elected representatives to be able to play as close and as positive a part in the matter as is practical.
We on the Conservative Benches can see no reason why our proposed method of a Select Committee should not be practical. The Committee would not have to meet all that often. It would not have nearly the same burden of work as many other Select Committees have. This simple measure would have the result of giving the House, the elected representatives, a real part to play in the classification and declassification of documents. If the proposed system is to be adopted, that is crucial to what we all want to see happen—that what we substitute for what we have now is better.
§ Mr. Percival
Our proposal would help to avoid that consequence. What is feared by the hon. Gentleman is what might be thought to ensue if the Minister were himself the arbiter. We are saying that a Select Committee should keep the Minister's decisions under continuous review. I hope that that additional explanation will help to put the hon. Gentleman's mind at rest on that matter. What we have in mind is exactly the opposite of what he fears. It is designed to meet his objection.
2192 It is with the same thought in mind that we make our recommendation on the review of classification, the review that must take place before it is decided whether a prosecution shall be launched, so as to safeguard against the possibility that there has been a mistake, that someone has failed to declassify or has over-classified. It is the last chance, so to speak, to see that an unnecessary, unfair or unreasonable prosecution is not brought.
At this stage, we should like to see the review of classification recommended by Franks, but carried out not in the way the committee suggested but rather by a committee of "three wise men". That is a phrase we have employed in the House in recent years to describe a number of different bodies when we wanted to bring to bear on questions of importance both to the citizen and to us —these matters are of mutual interest to the citizen and the House—the mind, the capabilities, the reputation of, say, three people—the number is not critical —who would enjoy such esteem in the public mind that their decision would be acceptable in all quarters.
We suggest a committee of two Privy Councillors presided over by a Lord of Appeal in Ordinary. However, that composition is not critical to the proposal. If it is thought that a different composition of that committee would be even more suitable to meet those objectives, we are quite open to persuasion.
When putting forward the proposal, my right hon. and learned Friend thought it right to say what we had in mind as the committee's composition. On that occasion he spoke of a Lord of Appeal in Ordinary, but we recognise that it is sometimes possible to make too many uses of the judiciary, to take members away from what is their all-important task and employ them on others. This may be to cast too many burdens upon them.
If it were felt that that would reduce the availability of a law lord in such a way as to interfere with his duties as a member of the judiciary, or for any other reason might be open to some objection, there are many alternatives. For example, there are retired Lords of Appeal. There are retired persons of eminence in many 2193 other spheres. There should be no problem in obtaining the services of suitable and acceptable persons if we once accept the principle that the method of review of classification to which I have referred should be carried out. I commend both those thoughts to the promoter and his colleagues.
I turn to the third sub-heading under which the Home Secretary made his observations. In effect, part I is a separate freedom of information Bill. Any suggestion that I am against making more information available to the citizen would be as unworthy as it would be inaccurate. At least 21 years ago I was a member of a committee that recommended in absolute terms that individuals were not being given sufficient information and, in one sphere, that an individual who was affected by an administrative decision should be able to obtain the facts upon which the decision was based and the reasons for the decision being made. Ever since then I have been campaigning to ensure that that would come about. It would be a real advance and would do something to restore the balance between the individual and the machine.
The Bill would not do that. Some of the facts relating to that which I am talking about would not be in writing anyway. They would not be in documents. The reasons might not be contained in documents. I hope that it will not be suggested that because of what I am about to say I am opposed in any way to increasing the availability of information. That would be far from the truth. However, I doubt the wisdom of enacting legislation in the form of part I. It would be unwise to enact anything like it. I doubt whether that part of the Bill is amendable in Committee. I am not saying that there is nothing that we can do. I have a practical alternative suggestion to put forward. I am not expressing the view of the official Opposition.
As I have said, we consider part I to be objectionable. We take the view that it could not be put right by amendment. There are three main reasons for taking that view. First, there is grave doubt whether it would achieve what the promoters seek. Other countries' procedures operate in the context of a different con- 2194 stitutional framework. For example, in America the Supreme Court, because of America's constitutional framework, plays a part that is different from that of the British courts. Therefore, it is logical to have the arrangements that the Americans have made and for the Supreme Court to decide what information should be made available. That is logical in that context, and the necessity of that procedure is clear when they have no other procedures equivalent to those that are available to hon. Members to enable them to obtain information.
That which is being done in the United States is being operated against a different background. When that is coupled with the fact that I do not think it would be unfair to say that it has not been a spectacular or unqualified success even against that background, there are enough indications to cause us to be wary about deducing anything from what happens on the other side of the Atlantic. I do not propose to enlarge upon that. It is not necessary to do so because in the debate that took place on 15th June 1978 my right hon. and learned Friend the Member for Wimbledon filled in some of the gaps. Further, my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) gave a good deal of information which he said led to the view that I have expressed.
I turn to the Swedish system. That, too, was referred to in the June debate. I ask those who feel tempted to take that as providing, grounds for following the example to take a closer look at the system. There is a danger that one would set up a not insubstantial and not inexpensive machine which would be nothing but a grave disappointment to everybody, particularly to those who placed great hopes upon it, because it could not deliver the goods.
§ Mr. Percival
Because we have heard already from the Home Secretary of a number of cases which one might say are the kinds of cases in which the promoters of the Bill want to see information available, and on which I want to see information available, but which would not be covered by the Bill.
I have already given the House an indication of the additional information which I should like to see made available 2195 to citizens. That is the first necessity when one is speaking of open government —to make available the kind of information that I was talking about. This Bill would not touch it.
I am going as quickly as I can because I know that other hon. Members wish to speak. I realise that there are deficiencies in what I am saying and that my speech is incomplete, but I hope that hon. Members will bear with me, having regard to the time.
The next point that I ask the House to consider is that we should not underestimate the advantages of the system that we now have. We have extensive facilities for obtaining information from Ministers. The longer one is a Member of this House, the more one appreciates the immense importance and value of our concept of ministerial responsibility. We have the right in this House—and I do not know of any other legislature or governmental institution which has it—to ask a Minister to come to the Floor of the House and explain his decisions. There are also our private communications with Ministers and the other processes available to us, such as the writing of letters to Departments, the Ombudsman, and so on. We are in a position to obtain a lot of information and ought not, therefore, to underestimate the value of the present system.
Before we go too far in this direction we should realise that any new methods for obtaining the disclosure of information must be dovetailed into that concept of ministerial responsibility. If it is not dovetailed into it, it will replace it. It would be a bad thing for democracy and the working of this House if the concept of ministerial responsibility for the decisions of a Department were even lessened, let alone done away with.
Next, there is the need for flexibility as we find our way along this experimental road. It is an experimental road and we all want to get it right. I do not doubt that in the least. We are all conscious of the pitfalls which we must try to avoid. There are two ways of tackling a matter such as this. One is by legislation and the other is by the introduction of a code of practice. I am not wholly wedded to that. There are some occasions on which we ought to go straight to legislation so that the law may be clear. Sometimes it is necessary to make clear what someone 2196 can do and cannot do, and what a person is entitled to ask for and what he is not entitled to have.
In this respect, I am much influenced by the report of the committee under the chairmanship of Mr. Lincoln, to which the Home Secretary referred. These alternative ways of approaching legislation were considered by the committee. It visualised that, at the end of the road. whatever is decided upon should be put into the form of legislation. It also made the point to which I have referred, albeit briefly, that it must be fitted into the way in which our existing institutions work, particularly the concept of ministerial responsibility. We must be careful that in introducing something new we do not destroy or lessen the value of something that we have. The committee recommended that the right way to proceed would be by way of a code of practice.
This has great advantages. A code of practice can always be changed—
§ Mr. Percival
I wish that the hon. Gentleman had listened to the second half of the sentence. A code of practice can always be changed if there is an opportunity to improve it. It is no good the hon. Gentleman adopting that sort of attitude. I have been here much longer than he has. I have often seen legislation passed and, within six months, hon. Members have said "My goodness, we wish we had not done that. When can we put that right?" Six years later the Government of the day find the parliamentary time to change it.
Of course, if legislation can be changed in one way, it can be changed in another. I believe feelings in this matter cut across the parties. We are all concerned to find the best way of ensuring greater disclosure of information. I cannot see any Government getting away with a sudden change to their own advantage. However, I feel that if we adopt a code of practice the Government will be under constant pressure to make changes to it. I believe that they would be able to accede to those pressures much more readily than if they were committed to legislation which enabled them to say "There it is, good, bad or indifferent. 2197 You made it, and we cannot find time to change it".
I suggest to the House that it will be more in the interests of what we are all seeking if, instead of legislating for the purposes contained in part I, we press for a sensible code of practice, learn as we go along and use our opportunities as they present themselves.
§ Several Hon. Members rose—
Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
Order. There are still nine hon. Members wishing to catch my eye before 4 o'clock. Brevity will therefore be appreciated and not only by the Chair.
§ 3.13 p.m.
§ Mr. Robin F. Cook (Edinburgh, Central)
I am obliged for your guidance, Mr. Deputy Speaker. I know that my two hon. Friends who wish to speak are very much in agreement with what I have to say, that they implicitly trust my judgment, and that they will be happy in the circumstances to lend me five minutes each from their speeches.
I should like to turn to what the Home Secretary said when he addressed the House. At one stage he said that it was easy to poke fun at the Official Secrets Act. Indeed it is. His Department is sometimes of assistance in lending itself to those who wish to poke fun at the Act.
The hon. Member for Isle of Ely (Mr. Freud) said that the Post Office tower in London emerged at a recent trial as an official classified secret. I was prompted by that information to put down a parliamentary Question last summer to the Home Secretary asking whether the post office in Trafalgar Square was a prohibited place. I was surprised to receive the whimsical response:any telegraph, telephone, wireless or signal station or office belonging to, or occupied by, the Post Office is a prohibited place for the purposes of the Official Secrets Act 1911.When one reaches the stage where an official and open place of business—indeed, the very place the Government choose as a means of letting out information to the public—is a prohibited place, one has then reached the stage at which the law is an ass and urgently requires reforming.
2198 I put it to the Front Bench that the dangerous and farcial nature of the Official Secrets Act is not that it makes itself easy to be made fun of but that it diverts attention from the very serious damage that it can do. I speak with some feeling on this matter. Over the last two years I have been in close contact with the three defendants in the recent case at the Old Bailey. I know what that case has done to them. My hon. Friend will agree with me that it is not overstating the case to say that for two years of their lives they have been preoccupied with defending themselves against charges which carry a prison sentence of up to 14 years.
But the effects of the case went beyond the defendants. A post office engineer in Ipswich was fired because his name was found in the files of one of the defendants. His career is finished. He no longer has a job.
A postgraduate student at Lancaster had his research office raided by the police because he had been in correspondence with one of the defendants. However, he had never met them.
Most bizarre of all, a press officer for a nationalised industry was visited by security officers of that nationalised industry because his name appeared in the files of one of the defendants. It is a striking example of the British paranoid obsession with secrecy that a press officer should be suspect because his name was known to a journalist.
What do we find after two years, several weeks' trial and the expenditure of £250,000 which has passed from the public purse into the private pockets of the lawyers? The net result has been two conditional discharges and one suspended sentence—all under section 2.
Perhaps the true climax of the trial was not the sentence, nor the conviction, but the impromptu party afterwards at which several of the jurors turned up and cheerfully said that they had been reluctant to convict but felt that they had been left no option by the fact that section 2 laid a strict offence and liability on the defendants. Clearly, when we see such disproportionate effort devoted to such a meagre result, it is time that we changed the law.
2199 Before leaving the subject of that trial, I should like to make one further point. No fewer than three hon. Members have referred to Mr. Chapman Pincher. The most remarkable feature of the trial was that, in the middle of the proceedings, Mr. Chapman Pincher published his biography "Inside Story". In hardly a page in that book did he fail to recount yet another breach of the Official Secrets Act through a conversation withGovernment Ministers, Defence Chiefs, Directors of Security and Intelligence, senior civil servants and others.No action has been taken against Mr. Chapman Pincher. His correspondence has not been impounded by the Special Branch. Teams of policemen have not roamed the country interviewing all those who had corresponded with Mr. Chapman Pincher. No barrister has been hired to denounce him as subversive and to trumpet that he has put lives in Northern Ireland at risk.
Why not? Because of a nice distinction which exists only in the mind of the Crown. It is a distinction which runs "When Mr. Chapman Pincher bought drinks for members of MI5 and MI6 and obtained information from them, he was being briefed. When Duncan Campbell went to meet John Berry, he was party to a leak."
That is the distinction. The crucial fact is that that distinction exists only in the mind of the Crown, because only the Crown is in a position to say what is a briefing and what is a leak. That is the nub of the power given to it by the Official Secrets Act. Not only can it decide which pieces of information are embarrassing and will not be released but it can judiciously select those pieces of information which are to be allowed to come out through the informal briefing chain.
§ Mr. Christopher Price
My hon. Friend might like to know that I and a number of my hon. Friends have laid Mr. Chapman Pincher's book before the Attorney General and made a complaint against breaches of the Official Secrets Act. Although that took place some time ago, I understand that the Attorney General is still considering the matter.
§ Mr. Cook
I am sure that the Attorney General will consider the matter with the 2200 full vigour of his office which we have come to expect.
Some hon. Members have referred to the problem as being due to the blanket nature of the 1911 Act. It is not for me to defend the legislators of 1911. That date pre-dates my own conception by some considerable time. But, in fairness to the legislators of 1911, it should be said that it is not surprising that they imposed a blanket ban on all Government information. In 1911 defence of the realm was the major activity of the Government and it dominated public expenditure. The real problem of modern years has been not so much the blanket nature of the 1911 Act but the tremendous expansion of Government activity since 1911 which has come under that blanket.
This has been an agreeable debate and I do not want to introduce a note of controversy by referring to devolution, but hon. Members who followed the devolution debate may be aware of the fascinating research carried out by Lord Crowther-Hunt for the Kilbrandon Commission. In the course of that research he discovered that if one took all the parliamentary Questions asked in 1971 and looked back to the turn of the century, for every 10 Questions asked in 1971, only one could have been asked in 1901. In other words, there has been a ten-fold expansion of ministerial responsibility and function of the Government. Each part of that ten-fold expansion of the function of the Government has come under the 1911 Act as Government activities have expanded.
One of the causes célèbres of the Official Secrets Act in recent years was the police raid on the Railway Gazette International in 1973 because it was found to possess certain internal documents about branch line closures. There is no way that those sitting in this House in 1911 could have foreseen that kind of possession as a breach of the Act they were then passing. Indeed, throughout the 1930s any editor who came into possession of knowledge of a branch line closure by a private company could have published it with impunity and under no fear of the Official Secrets Act.
Paradoxically, it was the nationalisation of the railway industry in 1948 which 2201 gave internal documents about the administrative policy in the railways greater protection against being made public. A law that has that effect is perverse, and must go. Moreover, we must go beyond simply abolishing the Official Secrets Act and place the onus on Government to justify withholding information.
We have listened to two very interesting speeches from both Front Benches. They both assured us that they were in favour of more information being passed on to the public. There then followed a detailed analysis of why that could not be done. Having listened carefully to both speakers, I am not absolutely convinced that they are seized with the principle that there should be more information made available to the public.
One argument that should be thrown out of the window straight away is that because we have a different constitution from that of the United States there are no lessons to be learned from what happens in the United States. Of course constitutional procedure here and in the United States is different. Indeed, part of the reason—part of the urgency—for having a freedom of information Act is precisely because of that difference. If one looks at Congress and at the British Parliament one finds that we are abominably bad, compared with Congress, at controlling the Executive. We find it extremely difficult to obtain from our Executive the kind of information that Congressmen can obtain, without a freedom of information Act.
Other Members have referred to the difficulty of getting information through parliamentary Questions. I had a particular instance of this in 1975 when, for six months, I came to the House every time Foreign Office Questions came up, and asked about Diego Garcia, the island that we sold to the Americans a few years beforehand. I learnt nothing.
One day during the Summer Recess I obtained The Guardian, which had the report of the congressional sub-committee in Washington. It contained everything that I had ever wanted to know about Diego Garcia, everything that I was refused an answer to when I asked questions in the House of Commons. I was told that there had been occupants on that island when it was sold to the 2202 Americans. I remember that a month later, at a party conference, I went to the then Foreign Secretary—now the Prime Minister—and banged the table and said "Look, for six months I asked you questions about Diego Garcia. For six months you did not tell me that anybody had lived on that island." He looked at me with a perfectly bland. straight face and said "But, Robin, you never asked that question".
Here we have an example that showed that the Americans are far better placed than we are to scrutinise the Executive. They are better placed than we are to find out what the Executive is up to and what it is doing. We are far weaker. That is the truth of the constitutional contrast. Quite frankly, that constitutional contrast does not weaken but buttresses the case for a freedom of information Act which would enable lobby groups outside and the press to remedy our weakness in finding out what the Executive is doing.
We have been debating this matter for some time. It was in 1968 when the Fulton committee advised Government to get rid of unnecessary secrecy and added:Clearly the Official Secrets Act would need to be included in such a review.It was in 1970 that Mr. Justice Caulfield, winding up the case which involved the hon. Member for Thanet, East (Mr. Aitken), added that he wished the Government:to consider whether section 2 of this Act has reached retirement age and should be pensioned off".Not only has time passed since then; I invite the Government to reflect on the fact that demands for reform have become increasingly radical. Had the previous Administration had the wit to legislate on the basis of Franks, immediately after that report, we should no doubt have got it through this House. I think that even the present Front Bench would have succeeded in getting the Franks committee recommendations through the House had they legislated before the recent trial.
The great irony of the discussion that we have just heard as to the distinction between the Franks committee report and the White Paper that appeared last year is that I do not believe that there is now a majority in the House for a Bill based on either of them.
2203 The demand of the public and of the House has passed beyond that, and I urge the Government strongly to take note of it. If they do not do so and swallow what is now before the House, they may find themselves faced in the years to come with even more radical proposals. The time for procrastination by background papers, leisurely foreign study tours and Green Papers is past. The time to reach a decision has come, and we should all be grateful to the hon. Member for Isle of Ely for giving the House the chance to reach that decision.
§ 3.25 p.m.
§ Mr. Kenneth Warren (Hastings)
I regret that there is but little time left. Indeed, in a debate such as this it is a pity that it needed so long for both Front Bench speakers—70 minutes in all —to tell the House their views, and, when they told them, I found them most disappointing. It was clear to me that the closer any Back Bencher approaches his Front Bench and the closer he reaches out for the levers of power, the more reluctant he is to let people see what is to be read on the dials above those levers. This is disappointing.
I do not think that either Front Bench has understood that here we are looking for a change in attitude of mind through legislation. We want freedom of information. We recognise at the same time that the Official Secrets Act must be reformed to make this a double-barrelled shot-gun job. However, we want to see that gun fired, because we have been waiting 11 years, through successive Governments since the Fulton committee first drew the attention of this House to what was required.
I was disappointed by the contribution of my hon. and learned Friend the Member for Southport (Mr. Percival). I had not had the opportunity of hearing his views beforehand, and I wish that I had been able to consult him about them. However, when he said that Justice did not want some improvements, I felt that we had to look into that a little further, because it is clear that Justice takes that view because it did not invent the idea. It is a great pity that it should adopt a dog-in-the-manger attitude to these proposals.
The demand for freedom of information goes wider than this House and the 2204 direct agencies and departments of government. I have noticed over the past years how the reports of the nationalised industries have become smaller and less and less frequent. One comes to the conclusion that the brighter the gloss, usually the bigger the loss. We want more information as an attitude of mind and not merely as a means of finding out what is at fault in government.
It is clear that there is broad support for this Bill not only in the House and across the House but from trade unions and business interests of all kinds. I can even produce from my files—and I declare an interest here as chairman of the Freedom of Information Campaign —letters of encouragement from Alex Kitson on the one hand and Freddie Laker on the other. Freddie Laker has made it clear that without the Freedom of Information Act in the United States, Skytrain would never have flown, and that would have been a disaster.
We have waited a long time for this country to move forward by recognising that freedom of information should become part of the structure of our government. It is a pity that we have had to wait for a private Member's luck, and I thank the hon. Member for Isle of Ely (Mr. Freud) for promoting his Bill and choosing this subject.
We want to clear away the cloud of secrecy that has hung over too many subjects in the last few years. Would the thalidomide tragedy ever have occurred if there had been public access to what the Department of Health and Social Security knew about the tests that had been conducted?
What about the whooping-cough vaccine and the tests carried out between 1949 and 1956 on 36,000 children in this country? Why could we not have sight of the Medical Research Council report, which I understand informed the Minister privately that no children were suffering any permanent damage? Subsequently, at least 182 children were found to have been subjected to damage because secrecy was maintained and the public was denied knowledge of what was being done in its name and with its money. In October 1975, our own Expenditure Committee was told that the Treasury had lost £5,000 million—£4,000 per family in this country. We have never had a debate on this matter in the 2205 House. We do not know what happened inside the Treasury. Nobody appears to have resigned. Nobody appeared really to care. Surely, it is the right of this House not only to be able to investigate these matters but to be told about them long before it becomes a question of a leak from the Treasury or a particularly and unexpectedly astute question in a Select Committee.
I hope that this Bill will go forward and that we shall also see, as a reality, the Select Committee on Procedure recommendation that Select Committees should shadow each Department of the Government and so enhance freedom of information. The public has a right to know and civil servants have endorsed this claim. The Society of Civil and Public Servants, representing 105,000 civil servants, is fully in support of freedom of information. In curtailing a speech in order that other hon. Members may speak, I conclude by drawing attention to the excellent article by Simon Hoggart in The Guardian this morning in which he slays the conventional wisdom generated by opponents of freedom of information in this country. He slays the view that freedom of information is either expensive, difficult or unworkable. The article states that the Director of the Office of Information Law and Policy in the United States Justice Department has said thatit has resulted in more open government, and surely that is worth quite a price".David Vladeck, one of the attorneys in the Freedom of Information Clearinghouse in Washington, saidThe fact is that officials now know that the public is watching them. It's a great disinfectant. Of course there are problems but we think that the Act is worth it.What we want in this House is a means of looking after the interests of the constituents we represent. We have not got that at the moment. I pay tribute to the work of the hon. Member for Birmingham, Perry Barr (Mr. Rooker) who found 86 items on which Government Ministers would not answer. The hon. Member says he believes that the figure is over 100.
We need freedom of information so that we can give our constituents an assurance that what has been done by their Government in their name and with their money is known to them. They can then measure the efficiency and humanity 2206 of their Government and see that their democracy is assured. I support this Bill.
§ 3.34 p.m.
§ Mr. Christopher Price (Lewisham. West)
I would like to add my congratulations to the Member for Isle of Ely (Mr. Freud). If I concentrate my remarks on reform of the Official Secrets Act, that does not mean that I do not value just as highly the official information provisions of the Bill. Both are equally important. The one doubt that I have about the way in which the Bill as it stands treats the Official Secrets Act is that it provides a welcome repeal of section 2 of the Act but somehow assumes that the provisions of section I can stay exactly as they are, do not impinge on our liberties and are proper to keep. I give notice that if I have any influence on the Committee, as the Bill goes through, I shall ask it to say that a degree of amendment of section 1, as well as section 2, is necessary.
In spite of what the judge said at the end of the ABC trial, we live in an age of whistle-blowers. The invention of the Xerox machines means that almost any piece of paper can be distributed. The distribution of the Pentagon papers in the United States, which was the beginning of the end of the Nixon regime, shows that there will always be some people who will take any risk and disobey any law to put right something which scandalises them.
As a result of the ABC trial, there is as much doubt about section 1 as about section 2. At times during the trial the judge said that he thought that it applied only to spies and saboteurs. Since then the Attorney-General has said that it applies to others, including journalists. We must clear up that matter as well.
The Home Secretary concentrated a little much on Committee points, but since he mentioned the ministerial certificate it is worth reminding ourselves that that means that any Minister of the Crown can sign a piece of paper and tell the law courts, in effect, "You are not allowed to argue this point. I say that it concerns the safety and interests of the State and it has nothing to do with you."
There was an instance of this during the ABC trial, when, to all intents and purposes, counsel for the prosecution—in 2207 these cases the Minister is a party in the trial—said that it would disturb the interests of Britain if a place in Cyprus was mentioned, although it is as famous to the people of Cyprus as the Post Office tower is to the people of London. No argument was allowed on that point. The certificate having been given, that was the end of the matter.
Although I do not much like judicial review of ministerial decision, and although I made a great deal of criticism of the judges' intervention in the Tame-side dispute, I would far rather that the courts took the final decision about how disclosure affects the safety and interests of the State than that it be left to a Minister's certificate. I give notice that I shall support the hon. Member strongly on this issue.
The Home Secretary's argument that this would bring the courts into this area is silly. The courts are deep in this area already. The Court of Appeal waded into it over Laker, Tameside, the confidentiality issue and the case of Gouriet and the Post Office. Since they are there, we should not hand over this issue to Ministers.
§ Mr. Robin Corbett (Hemel Hempstead)
Is my hon. Friend saying that he was not much impressed by the Home Secretary's claim that all would be well if Ministers were responsible because they were accountable to this House?
§ Mr. Price
That was his argument— I do not know whether my hon. Friend heard it—and I was not impressed by it. For all the reasons given by my hon. Friend the Member for Birmingham, Perry Bar (Mr. Rooker), I believe that parliamentary control of Ministers leaves much to be desired. In terms of a Bill of this kind, the final review of what information may be properly disclosed should not be left to the fiat of individual Ministers, or we shall be in danger of being back where we started.
It is insufficient in present circumstances simply to say that defence or security information is automatically that which must be kept secret and subject to offences. The difficulty about defence and security information is that elements of it refer to foreign powers and are covered by the current Official Secrets Act. But 2208 other elements refer more and more to the surveillance of individual citizens, to telephone tapping and opening letters. It is proper for hon. Members to try to obtain information about such matters. It is a matter which should not be subject to the criminal penalties to which spies, saboteurs and people who want to blow things up are subjected.
One of the worst things about section 1 of the Official Secrets Act is that it takes those who want to protect the civil liberties of the country, such as the two journalists and the soldier who were involved in the case to which I have referred, and puts them in the same category as Blake, Kruger and the spies who were properly convicted under section 1 of the Act. Something must be done in the Bill to distinguish between those two types of activity.
Many other hon. Members want to take part in the debate. I congratulate the hon. Member for Isle of Ely on the framework of his Bill. Its first provision is the demolition of section 2 of the Official Secrets Act, without reservation. The Government White Paper suggests that there should be reservations. The Government wish to make the absurd reservation of the so-called jigsaw puzzle. They say that if one has six pieces of information—all of which are proper—and puts them together in a jigsaw which then involves security, that should be an offence under the Official Secrets Act. I am glad that section 2 is to be washed away entirely.
There are elements of section 1 which must go. Greater clarity must be introduced into section 1 of the Act so that it applies only to those who are obviously recognisable as spies and saboteurs, and not to the individual citizen or journalist whose one concern is to maintain the historic civil liberties of the British citizen.
§ 3.43 p.m.
§ Mr. Charles Irving (Cheltenham)
I welcome the Bill as one which recognises the rights of citizens in a democracy to learn what their Government are doing and why and which also recognises that the democratic control of government can be improved only by freedom of information.
Other hon. Members wish to take part in the debate so I shall refer only to two 2209 aspects which cause many hon. Members anxiety. The Official Secrets Act has been particularly harmful to the prison service. The Act has been a deterrent to employees in revealing information. Sometimes it has been a convenient excuse for officials who wish to conceal inside information from outside scrutiny.
I am pleased that recently a more open attitude has slowly begun to emerge. Nevertheless, the traditional secrecy in our prisons has been a cause for anxiety to many who work in the prisons. Some months ago the assistant secretary of the prison and borstal governors' branch of the Society of Civil and Public Servants wrote a letter to The Guardian which was published on 10th January 1976. It read:The society has for some time expressed concern at the reluctance of the Home Office to become involved in public debate when its policy or members of its staff who have the duty of implementing that policy are criticised. … It is our view that public debate on policy issues can be useful in formulating policy as is the case in other areas of government.The more public knowledge that there is of the prison service's work, the easier it will be to explain to the general public the need for sufficient resources to provide decent conditions and facilities in prisons and the difficulties which the prison staff face in their daily work. The letter went on:The public have a right to information about such matters as general police methods and procedures, and prison treatment. These are matters of public interest, and Parliament and the people need adequate information to satisfy themselves that proper and effective measures are being taken and proper standards of behaviour being observed. But the public have no right to information of a kind which would, for instance, be of direct use in the commission of an offence, or in evading detection or in escaping from prison.The Bill rightly exempts such information from disclosure.
As well as restricting and clarifying the law on official secrets, the Bill would make certain categories of information contained in official documents available on request to the public. That is right. The prison department's standing orders and circular instructions would be publicly available instead of remaining secret as at present. This would be greatly welcomed, provided that information that would endanger security is protected. 2210 Subject to that, prisons should be no more closed to outside scrutiny than is any other public building. Indeed, we should take special care to ensure that secrecy about prisons is reduced to the minimum necessary. They remain places apart and the public should know what is being done in their name.
I conclude by referring to the parole system, which is a classic example of the inhuman cruelty of secrecy inflicted by man upon man. I know from many ex-offenders the distress caused by not knowing why parole has been refused. The lengthy procedure of the parole system only makes the agony that much more unbearable. A representative of the Prison Officers' Association giving evidence recently to a Select Committee said that it was a "terrible thing" for a prisoner to be told that a decision has been made about him but he will not be told why.
In its last annual report the Parole Board admits ithas frequently been criticised for its failure to give reasons for the refusal of parole".It says:the pressure on this front is unlikely to diminish, particularly at this time when greater openness in government and greater accountability of the executive is being sought".The board is experimenting with an internal exercise in giving reasons. The Bill would give it a hefty kick in the right direction. For those reasons, I wish the Bill a successful Second Reading.
§ 3.49 p.m.
§ Mr. Tom Litterick (Birmingham, Selly Oak)
I have great pleasure in supporting the Bill. It resembles in most respects a Bill which I brought forward almost two years ago. The hon. Member for Isle of Ely (Mr. Freud) will be interested, if not slightly embarrassed, to learn that it is the fourth Bill of its kind to be brought before the House. The preceding three were introduced by Members of the Tribune group.
Before the man from The Daily Telegraph scarpers to tell his editor that the Bill should be resisted, criticised and annihilated, I hasten to tell him that, as chairman of the freedom of information committee, I discovered that support for legislation of this sort is truly general throughout the community and throughout all types of political belief and party. 2211 That is reflected in the House and in the political affiliations of the sponsors of the Bill. The hon. Member for Isle of Ely has taken care to see that virtually every party is represented among his sponsors.
However, it slowly dawned on me that there was a reason to worry about the possibilities for the Bill. It has too many friends, and among them are the two Front Benches—which is enough to scare anyone on behalf of any piece of progressive legislation.
I was, however, reassured when I heard the Front Bench spokesmen address the House. It seems that the Home Secretary is in favour of the Bill, but as he goes through it, clause by clause, he is not in favour of it. The Conservative spokesman strengthened my reassurance when he said that the official Opposition are in favour of the Bill—by which he meant that they are in favour of clause 1 and opposed to the other 39 clauses.
We are truly on the side of the angels and, having clearly defined opponents, we can feel much more comfortable about the task that faces us. It is as we all thought it would be. We are facing the two political juntas on behalf of the House and the people. We know that the juntas have a vested interest in secrecy and always have had. They are served by regiments of people who similarly conceive a vested interest in secrecy. When each mob gets its hands on power, it automatically makes an alliance with an even bigger mob that wants to keep the whole business quiet from everyone else.
The basic philosophy of the juntas and the Civil Service mechanism is that there are certain serious matters which are their concern and about which they must not talk in front of the children. The children are the British people and hon. Members because, as my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) has demonstrated vividly with his Questions in the House, there are large numbers of topics on which the junta will never answer questions. Other hon. Members have properly dwelt on that fact.
One of the explanations that these people offer us when we criticise the secrecy of the system is that we should rely on their reasonableness. They say that we should give them power and 2212 expect that, for all time, they and people like them will go on being reasonable and that, in their judgment of the sort of questions they will answer and the information they will divulge to the people, they will always be reasonable. That in itself is an unreasonable assertion. It is difficult to give a human being power and expect him to be consistently reasonable in his use of that power without his being responsible directly for everything he does and says to other people who can bring sanctions to bear on him.
It is no good saying that the House can pass a vote. We have all been here long enough to know that the votes of the House are not usually very meaningful. It is not very helpful either to say that the people can pass a vote because we know that General Elections are, to say the least, blunt instruments and do not necessarily visit the wrath of the people on those who most deserve to have it visited on them.
§ Mr. Percival
One of the reasons why I did not like part 2, as I made clear, was that it did not give this House enough review power over Ministers. One of my concrete suggestions was to secure precisely that objective. Does the hon. Gentleman agree with that objective?
§ Mr. Litterick
I am inclined to agree with the hon. and learned Gentleman's remarks. I presume that what he has said means that he is not opposed to the other 39 clauses, but only to 38, or something like that.
One of the funniest experiences that I have had since coming to this House was hearing my hon. Friend the Member for Edinburgh, Central (Mr. Cook) asking the Secretary of State for Defence about the cost of producing certain weapon systems. He was solemnly advised by the Secretary of State that such information was regarded as secret and that it was the policy of the Government and of the Department not to divulge such information to hon. Members or the public. Following that non-answer, my hon. Friend promptly rose and read out the answer for which he had asked. He had just been to the United States, where he had visited the American Defence Department and, as any American can do, asked for certain information in which he, as a British politician, was interested.
2213 Part of that information was about the cost of producing certain British-manufactured weapons systems. He duly brought that information back to the House and provided it with information which the Secretary of State for Defence, who is appointed to look after this sort of thing on our behalf and on behalf of the people, had refused to divulge. My hon. Friend thus made a mockery of the secrets system that the junta operates, demonstrating that there are systems of democratic government elsewhere that can exist without danger to themselves and be far more open than our system.
The tradition of relying on the discretion of Ministers and civil servants to decide what is good for us can no longer work, partly because of the sheer size of the State mechanism, and partly because of the dangers now inherent in allowing irresponsible people to have that kind of discretionary power. That is the reason for the public agitation for legislation of this kind and for this debate.
Without some kind of control mechanism obliging the system to feed back its information on the people to the people, through us or directly to the electorate, there will continue to be cock-ups such as the Crown Agents affair and many other matters which the House has found itself debating belatedly, long after the horse has bolted and shutting the stable door has become useless, with the result that decisions that we make tend to be made on the basis of ancient history, when all the criminals have gone and the crashing mistakes have gone and we are left wondering who, at this minute, is wasting several hundred millions of pounds of taxpayers' money in the knowledge that at least five or seven years will elapse before he is found out.
This Bill may not solve all the problems, but it will take us a significant stride down that road. As we approach the witching hour it gives me the deepest satisfaction, after two years, to urge the Bill upon the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).