§ Mr. Dennis Skinner (Bolsover)
On a point of order, Mr. Speaker. I raise this matter because it has been discussed by hon. Members on both sides of the House. Having read the Standing Orders and, bearing in mind that today your position has been thrust — unwittingly, no doubt—into the cauldron of the political climate in respect of the motion, it crossed our minds whether, from a purely academic point of view, as the motion is somewhat critical of your conduct in respect of matters last week, and as this is not covered by the Standing Orders, you should take the Chair during the debate. I ask that as a simple academic question and to establish the facts.
§ Mr. Speaker
I do not think that the House would judge that the motion is critical of the action that I took. Indeed, the motion confirms my action. It is now up to the House to decide the way in which it wishes to proceed in the future. That is the only question before us today, and it is for the House to decide whether I did the right thing.
§ Mr. Skinner
Further to that point of order, Mr. Speaker. It is pretty clear that we are having a debate because there are different points of view on whether what happened last week was suitable to all hon. Members. I have no doubt at all that, had there been unanimity last week, the debate would not be taking place today. The fact that there is a debate means that there are differing views on the issue. Therefore, to some extent, it is a question of your conduct in that respect, Mr. Speaker. It may be a minor matter to some hon. Members, but more important to others. My hon. Friends and I are trying only to establish the question of order. As there is no unanimity, should that procedure be followed?
§ Mr. Speaker
The hon. Gentleman will recollect that it was I who suggested that this matter should be put to the House. I must say to the hon. Gentleman and to the House that even if this had been a critical motion it would still have been right for the Speaker to be in the Chair.
§ Mr. James Callaghan (Cardiff, South and Penarth)
On a point of order, Mr. Speaker. I wish to raise a point of order that concerns your position and to seek an assurance from you. I apologise for not giving you notice but I did not read the motion or the amendment—both of which are defective—until I came into the Chamber.
The motion refers to the action of 22 January, but also to the subject of an injunction by the High Court. There is no mention here of security. This seems to me to be significant, because if the motion or the amendment were passed—the amendment is perhaps closer to the point of view that I want to put than is the motion—you—or a future Speaker—might feel guided by what will be a resolution of the House of Commons, and if any injunction is asked for in the High Court and granted, you will, on the basis of precedent, feel obliged to resist any discussion in the House of Commons.
I am disturbed by the motion as it stands, and if you, Mr. Speaker, were to regard it as a precedent, I feel that that would be a constitutional outrage. Therefore, on a point of order — I think that it is a genuine point of 208 order—I ask for an assurance that whatever decision is taken on the motion and on the amendment, you will not regard it as a precedent.
§ Mr. Tony Benn (Chesterfield)
Further to that point of order, Mr. Speaker. The point made by my right hon. friend the Member for Cardiff, South and Penarth (Mr. Callaghan) has led me to believe that were we to pass either the motion or the amendment, we would be accepting a ruling which, whatever we may think, would be a precedent in "Erskine May", and would, therefore, bind future Parliaments.
The point that I should like to put to you, Mr. Speaker, is that, in matters as grave as this — the relationship between an injunction in the courts and the role of the Government and the House of Commons, which you are elected to defend — it is without precedent that the House should reach a view without the matter going to the Committee of Privileges. This Committee was set up to examine in great detail something that we appear to be handling as if it was a normal matter of inter-party controversy.
With that in mind, Mr. Speaker, would you accept a motion for the adjournment of the debate? If that were carried it would be open to the Leader of the House to put the matter to the Committee of Privileges, and for the House to return to it when the full constitutional implications had been considered.
§ Mr. Robin Maxwell-Hyslop (Tiverton)
Further to that point of order, Mr. Speaker. As I read the motion before us, it is not concerned with setting precedents about anything. In so far as it means what it says—it must be presumed to mean what it says — the motion is about one individual decision taken by Mr. Speaker on one particular occasion. What it does not do is to extend that into any general proposition. Therefore, I do not think that any assurance is necessary about precedents, because the motion is not open-ended. The motion is specific to one decision on one occasion. The words used in it merely enable the House to identify what the decision is which the House is debating.
§ Mr. Speaker
The hon. Gentleman is quite correct. The action that I took on 22 January is the matter that we are discussing this afternoon. I assure the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan) that I have no intention of making this a blanket ruling. In any case, it was not a ruling but an instruction. It is a matter for debate and for the House to decide, and that is what I think the House should do. I have selected amendment (a) in the name of the Leader of the Opposition, and I have also selected amendment (h) in the name of the right hon. Member for Worthing (Mr. Higgins).
§ Mr. Neil Kinnock (Islwyn)
Further to the point of order, Mr. Speaker. I hear what you say, and I am certain that, apart from the general wisdom that comes from that Chair, your interpretion must in common sense be correct. It appears to me, although, as you know, I have not had any form of conversation with you on the subject, that what you did last Thursday was entirely acceptable, as our amendment suggests. Your decision was taken in particular circumstances.
If the House were at some juncture today to vote to continue a prohibition on the basis of an injunction that was sought and gained on Wednesday — which was 209 reflected in the decision which you were obliged to take in the circumstances on Thursday morning—for as long as the injunction remains in effect, would it not be the case that you could not have anticipated that outcome last Thursday, and would it not be an inhibition of your freedom of action and of the freedom of the House if the motion were accepted?
§ Mr. Speaker
As I read the right hon. Gentleman's amendment, that is exactly what it says. That is the amendment that I have selected.
§ Mr. James Callaghan
Further to the point of order, Mr. Speaker. I am grateful to you for saying that you would not regard this as a precedent, but it does not necessarily follow that it will not be so regarded in the future. With respect to you, Sir—I try to respect your rulings in this matter — it seems that my right hon. Friend the Member for Chesterfield (Mr. Benn) is on to a good point. This matter needs further detailed consideration by the Leader of the House and the Committee of Privileges. I therefore ask you whether you would be prepared to accept a motion, on which the House can decide, to adjourn the proceedings at the end of our debate, when the arguments have been adduced, so that further consideration can be given to the future procedures of the House.
§ Mr. Speaker
It is up to the House to decide whether to accept the motion, the Opposition amendment or, indeed. to add the further amendment. I am not responsible for motions that are put on the Order Paper. That is up to the House to decide.
§ Mr. Benn
Further to the point of Order, Mr. Speaker. Following what my right hon. Friend the Member for Cardiff, South and Penarth has said, I think you will appreciate that we are not anxious that the vote should be a reflection on a personal decision made by you, but we are afraid—I am very much afraid—that a decision to confirm, as the Government say, or to accept, as my right hon. Friend said, will entrench a precedent. You know very well, Mr. Speaker, that your predecessor Mr. Speaker Lenthall established the duty of Speakers to defend the House. When an attempt was made to arrest the fiveMembers, he said:I have neither eyes to see, nor tongue to speak here, but as the House is pleased to direct me.That created a precedent. From that day to this the House has looked to its Speaker to protect it from the Crown and the courts. My fear is that, because of the high controversy surrounding this one issue about defence, we may stumble into a precedent which would be undesirable.
None of us want to vote against you personally, Mr. Speaker, but we do not wish to put on the record a precedent that would bind future Parliaments. That is the issue. Will you accept a motion to adjourn the debate? The House has to determine it, but would you accept such a motion? Will the Leader of the House—as he is Chairman of the Committee of Privileges—say whether he would be ready to take on board an examination of the full implications of what we are to discuss today?
§ Mr. Ivor Stanbrook (Orpington)
Further to the point of order, Mr. Speaker. When I first read the motion, I confess that I also was a little disturbed at the thought that we might he rewriting our Standing Orders to make it impossible in future to discuss any matter that was the 210 subject of an injunction in the High Court. I was satisfied, however, on further consideration, and having looked up the authorities, that that is not at all what the motion suggests.
The motion arises because you, Mr. Speaker. rightly took it upon yourself to give the House a decision in a particular case. Perhaps the wording could have been improved, but the decision relates only to one action on one day and one case in respect of which one injunction was issued. There can be no doubt that we are dealing with a specific instance in which you used your authority pending consideration by the House. That would appear to be a normal use of your powers, and therefore it is quite unnecessarily suggested that this would be a precedent. If it were, it would have to be followed by an amendment to Standing Orders, and that is not the case.
§ Mr. Michael Foot (Blaenau Gwent)
Further to the point of order, Mr. Speaker. May I press the case to you again? It is certainly within your power, is it not, at some stage in the debate, as my right hon. Friend the Member for Chesterfield (Mr. Benn) has suggested, to accept a motion for the adjournment of the debate? I should have thought that these circumstances were such that you should consider that. You may wish to do that later, but I should have thought that it would be possible to do that fairly early.
What is presented to the House is unique. What many of us fear—the more we discuss it, the deeper that fear will become—is that if the Government's motion or the Opposition amendment is carried a precedent will be set. Future Speakers in similar or reasonably similar circumstances to what occurred last week would lien be able to turn back to this occasion and say that the House discussed it, a vote was taken and that that should guide us.
Surely there has hardly ever been a case — I can hardly think of a precedent — when a matter of this nature has been brought before the House by the Government within a few days without it having been referred to the Committee of Privileges or the Committee on Procedure, which are the right places in which to consider it. It is wrong for the Government and the Leader of the House, who has responsibilities in this matter, to press the motion on the House in the face of these objections. I therefore hope that we will have your assistance, Mr. Speaker.
We could have the assistance of the Leader of the House. Having heard what has been said, he could say that he will not press the motion to a Division. That would solve the problem. If the Leader of the House does not take that course, I urge most strongly that you, Mr. Speaker, accept at some stage a motion proposing the adjournment of the debate so that the matter can be considered properly by the proper Committee.
§ Mr. Speaker
This is in no sense a party political matter. It is a matter of high constitutional importance and one for the whole House. The matter is for the House to decide. I think that we must see what explanations may be given from the Front Bench. [Interruption.] Order. I shall then reflect on what the right hon. Gentleman has said and take my decision.
§ Mr. Kinnock
Further to the point of order, Mr. Speaker. As you have just said, the House has the power to decide which form of words on the Order Paper it will 211 accept. The problem arises on this occasion from the fact that the Government took a certain course of action, including an application to the High Court for an injunction against certain hon. Members. Both you and I, Mr. Speaker, in particular circumstances, made a specific response. As a consequence of that response, you counselled us on Thursday that it was for the House to decide.
A form of words has been chosen by the Government Front Bench which would effectively prolong the life and effect of an injunction taken in another court, and not in the High Court of Parliament. The consequence of that, as it is conceivable that Conservative Members could vote on partisan grounds, is that a motion is tabled which is a reflection on your decision last Thursday and, for reasons which are not entirely to do with constitutional niceties, but for partisan reasons of support for the Government — which are totally understandable — you will have created a precedent and prolonged the life of an injunction granted in another court. We might have an opportunity further to reflect on that, because that would not be the effect of the amendment.
In addition, I suggest that the Chair should emphasise that an injunction in another court cannot of itself apply to this High Court of Parliament, and that to continue the effect of an injunction sought by the Government in another court will be interpreted as breaching that essential convention, which is central to the constitution of this House of Commons, as both my right hon. Friends have pointed out.
§ Mr. Maxwell-Hyslop
It is sometimes believed outside this House that the House is subject to no discipline whatever, neither that of the courts outside, nor that of its Members inside. It is essential that that view should never be supported in this House. The fact that no court outside can interdict this House from discussing something in no way removes from the House the power or the duty to control its own affairs and discipline its own affairs. What this motion offers the House the opportunity of doing is not submitting to the injunction or order of a court outside, but imposing voluntarily on itself a reasonable discipline in the national interest.
That is the question that will be before the House, and it is quite wrong to represent, either on a point of order or in substantial debate, that question as being tantamount to subjecting the House to injunctive processes from courts outside it.
§ Mr. Benn
Before you give your ruling, Mr. Speaker, I should like to thank you for promising to consider the request that has been made. In order to clarify the matter, may I ask you to consider whether it would be possible for you to accept a manuscript amendment on the following lines at the end of the debate, or whenever you think appropriate:That the debate be adjourned and Mr. Speaker's ruling of 22 January be referred to the Committee of Privileges.
If the Leader of the House were prepared to assent to his own Committee examining it, in view of the enormity of the issues raised, we could have a debate which would be an opportunity for Members to give their view before the Committee of Privileges meets. It would greatly help if the Leader of the House could indicate now his readiness to respond to that proposal.
§ The Lord Privy Seal and Leader of the House of Commons (Mr. John Biffen)
The motion, Mr. Speaker, has not been submitted without careful consideration as to its assisting our procedures and to validate the action that you were obliged to take last Thursday morning. I believe that it would be a service to the House if we proceeded to debate it in those terms.
As to the other considerations mentioned by the right hon. Members for Cardiff, South and Penarth (Mr. Callagham) and for Chesterfield (Mr. Benn), it was open to them to put down an amendment to secure what they are now seeking to achieve.
§ Mr. Kevin McNamara (Kingston upon Hull, North)
Further to that point of order, Mr. Speaker. I am sorry to prolong the matter, but could you explain to me precisely what the Government motion means? As I understand it, if we take out "on 22 January" we establish a general precedent, namely, that Mr. Speaker has the power to close rooms during the duration of any High Court injunction, whether sought by the Government, by a private citizen, or by anyone who felt that his rights were being aggrieved by a matter being discussed in Parliament before the subject of the injunction had been considered, or indeed by someone seeking to secure an injunction to prevent a matter being discussed in the House in such circumstances as to avoid justice being done and the people knowing about it.
It seems to me that a future Speaker, looking at this resolution—even bearing in mind what you have said, Mr. Speaker—could interpret it as a general power in Mr. Speaker to close rooms pending an injunction.
§ Mr. Speaker
The House knows that that is not my intention. The House knows that what I did on Thursday of last week was to suggest that the matter be put to the House for its decision. I say again that this is in no sense a party political matter. The Government have put down their motion and the Leader of the Opposition has put down his amendment, which, it seems to me, states exactly what he said at the Dispatch Box a few moments ago, that the House takes out from "the House" to the end and substitutes entirely different words. If the House votes for that—and it is up to the House—that would be the position.
As for the manuscript amendment, if the right hon. Gentleman will submit it to me in writing I shall consider that proposition.
§ Mr. James Callaghan
Just one more word, Mr. Speaker. The Leader of the House says that we could have put down amendments. As far as I am concerned, this motion did not appear on the Order Paper until today.
§ Mr. Callaghan
It did not appear on the Order Paper until this morning. If some people saw the motion beforehand, that is not conveying it to the House of Commons. The proper way to convey it to the House of Commons is through the Order Paper of the House. So, while I am grateful to you, Mr. Speaker, for saying that you will not regard this motion as in any way a precedent, I hope that you will also take into account in your consideration the fact that this motion did not appear until this morning and will bear that in mind when condidering whether to accept a manuscript amendment.
§ Mr. Speaker
It is the fact that the motion was tabled yesterday and appeared on the Order Paper this morning. I will, therefore, consider the manuscript amendment, as I have already said.
§ 5.6 pm
§ The Lord Privy Seal and Leader of the House of Commons (Mr. John Biffen)
I beg to move,That this House confirms the order of Mr. Speaker on 22nd January prohibiting the use of any room under the control of the House of Commons for the showing of a film, or the playing of a sound track thereof, which was the subject of an injunction by the High Court; and continues that prohibition in force so long as the injunction remains in effect.
As the title, and indeed the motion, make clear, our debate this afternoon arises from your decision, Mr. Speaker, on Thursday 22 January that no room under the control of this House be used to show the film which had been the subject of a High Court injunction the previous day. You received support from both sides of the House for that decision, but you made it clear that you had taken that action in order that nothing shouldprejudice the position until the House itself had had an opportunity to discuss the matter." — [Official Report, 22 January 1987; Vol. 108, c. 1025.]Accordingly, the Government have provided an early opportunity for the House to do just that.
I propose to explain what the motion before us would do, and why we believe that this is the best course open to the House. In particular, I recognise that there may be a special interest in the possible effect of the motion temporarily on the work of Select Committees, and I hope that it will be for the convenience of the House if I indicate now that I shall deal with that point towards the end of my speech. First, however, I shall outline briefly the background to the events of last week which culminated in your decision, Mr. Speaker.
The background to last week's events was made known to the House by my right hon. Friend the Prime Minister in response yesterday to a question from the hon. Member for Workington (Mr. Campbell-Savours). In that response she explained that it became clear last October that one programme in the series entitled "The Secret Society" would deal with specific material on a secret defence project. The BBC later decided not to broadcast this sensitive material.
Following Press reports on 18 January that the film would be given a private showing, however, my right hon. and learned Friend the Attorney-General, acting on behalf of the Government as a whole, applied on 21 January for an ex parte injunction against Duncan Campbell, who had accumulated the material on which the BBC programme was based. This application was supported by an affidavit alleging that dissemination by Duncan Campbell of the material in question would he severely damaging to national security. In the light of this, Mr. Justice Ian 214 Kennedy granted an order restraining Mr. Campbell from disclosing or publishing, or permitting the disclosure or publication of,all or any of the information within his knowledge".
§ Mr. Tam Dalyell (Linlithgow)
Up to this time, could Mr. Duncan Campbell possibly have received any kind of letter from the Attorney-General suggesting that it was clear for him to go ahead? It would be helpful to the House if any correspondence between the Attorney-General and Mr. Duncan Campbell could be given to us.
§ Mr. Biffen
This is a point which I feel could more adequately be answered by my right hon. and learned Friend the Solicitor-General, who will reply to the debate. I will see that his attention is drawn to it.
After the injunction had been granted, the Treasury Solicitor wrote to two Members—the hon. Member for Livingston (Mr. Cook) and the hon. Member for Yeovil (Mr. Ashdown) — drawing their attention to the injunction's existence as press reports had suggested that they intended to show the film in a room under House of Commons control. Later that evening it became known that the hon. Member for Livingston and other hon. Members had booked a room with the apparent intention of showing the film during the morning of 22 January.
§ Mr. Tony Banks (Newham, North-West)
Is the Minister telling the House that the Government first knew of this programme on 10 October but did not move against it in any way until some time around 18 to 21 January? Was no attempt made to stop the BBC making the programme?
§ Mr. Biffen
I am not saying that. If the hon. Gentleman had listened to the questions to the Prime Minister this afternoon, he would have heard that very point dealt with.
§ Mr. Robin Cook (Livingston)
On a point of order, Mr. Speaker. The Minister said earlier that the Government learned on 18 January that there was an intention by myself and others to show the film on 22 January. On 21 January, the Government applied for an injunction to prevent that. What happened to the three days in between?
§ Mr. Biffen
Those are precisely the points of detail that will be dealt with by my right hon. and learned Friend the Attorney-General, who has direct responsibilities in this area and who will be winding up the debate.
To prevent the film being shown before the House had had a chance to debate whether or not this should be done, my right hon. and learned Friend the Attorney-General applied for an injunction early on 22 January to restrain hon. Members from showing the film. That application was, however, refused by Mr. Justice Ian Kennedy on the basis that the House should regulate its own proceedings. Thus we came to the point when you, Mr. Speaker. issued your decision that the film should not be shown in any room under the control of this House.
§ Mr. McNamara
I return to the point made by my hon. Friend the Member for Livingston (Mr. Cook) about the three-day gap. It was possible for people to see that film without knowing of the Government's seeking an injunction. Indeed, my hon. Friend the Member for Clackmannan (Mr. O'Neill) and I saw it, in pursuance of what we felt to be our duty to this House and to our party in relation to the RAF debate which was going to take place during that week. The Minister will recall that I mentioned it in that debate. If it was so important—we 215 already knew from the invitations that were issued the preceding week and from The Observer newspaper that it was to be shown—why was there not more immediate and direct action by the Government rather than waiting until a later date? I should be grateful to hear the information that the Attorney-General has just passed to the Minister.
§ Mr. Biffen
As I have already said, this point will be dealt with by my right hon. and learned Friend the Solicitor-General, not least because of his direct responsibilities in this area.
Your decision, Mr. Speaker, has already been upheld on both sides of the House. Traditionally, Members have recognised that holders of your office have a wide-ranging discretion and a special responsibility to act in the best interests of the House. That is particularly the case when, as on this occasion, the matter requires resolution before there is an opportunity for the House to meet to debate it.
§ Mr. Eric S. Heffer (Liverpool, Walton)
The right hon. Gentleman has made it clear that there is a discretion on the part of the Speaker, but that contradicts his earlier point about the Speaker being obliged to make a decision. Whether it was correct or incorrect is for the House to judge, but Mr. Speaker was not obliged to make that decision—he made it on the basis of his own knowledge of the circumstances.
§ Mr. Biffen
Mr. Speaker is, of course, a free agent in this matter and has sought early parliamentary confirmation of his action. There can be no doubt about those essential facts of the situation. To imply that somehow or other Mr. Speaker was leaned upon—I am not sure that that implication was intended—is totally remote from the truth.
I believe, as I am sure that the House believes, that it is in the best interests of this House for us to avoid a position in which we might be seen to render ineffective the decision of the High Court on a matter of national security.
§ Mr. Foot
Will the Leader of the House now deal with the very important matters that were raised before he embarked on the debate? When Mr. Speaker had given his ruling and the Government were proceeding to the next step, did the Government at any stage consider referring this important question to the Committee of Privileges or the Committee on Procedure, and was any such advice given by the Attorney-General? I am sure that the right hon. Gentleman will find no other case in parliamentary history in which a Government decided to proceed with a motion of this nature without the matter first going to one of those Committees.
§ Mr. Biffen
I assure the right hon. Gentleman that in the view of the Government it is wise for the House to have an early opportunity to consider this matter. For those who take the view that the preferred course is to refer the matter to the Committee of Privileges, I should point out that the existence of this motion enables that matter to be raised.
§ Mr. Biffen
I have given way generously but I have a responsibility to the House generally to proceed.
216 We are grateful to you, Mr. Speaker, for exercising your discretion in this way. The motion before us specifically confirms the action that you took in prohibiting the House or any room under the control of the House being used for the showing of this one film and giving the House itself an opportunity to consider the matter. In seeking the continuance of that prohibition so long as the injunction granted on 21 January remains in effect, the motion further provides for the endorsement of the basis on which you made that decision.
§ Mr. Biffen
I have already made it clear to the hon. Gentleman that I intend to finish. I intend to develop my speech for a while because I owe it to the House to do so. The hon. Gentleman is nature's eternal barrack-room lawyer. I am speaking on a matter of supreme significance to the House—a matter on which a judgment, not easy or lightly considered, is to be made by the House. I have a responsibility to put the case as I believe it to be on behalf of the Government and to seek the endorsement of the House. I believe that that endorsement will show that we believe in prudent behaviour in the face of an injunction which was sought for national security but which was deemed to be set aside by certain Members seeking to use the facilities of this House.
The considerations which I believe led you, Mr. Speaker, to ensure that the film could not be shown within the precincts of the House seemed to me to be valid reasons for seeking to ensure that that should continue to be the case until the injunction is lifted. The House will have noted that the terms of the motion are specifically directed to the decision of 22 January and its continuance. This reflects the approach recommended by a number of hon. Members — among them my hon. Friend the Member for Chislehurst (Mr. Sims) and the right hon. Member for Plymouth, Devonport (Dr. Owen) — in supplementary questions last Friday.
§ Mr. Kinnock
The right hon. Gentleman has just said that the implication of what you, Mr. Speaker, did last Thursday was that the prohibition should remain in force for as long as the injunction remains in force. You, Mr. Speaker, will recall, as I am sure that the right hon. Gentleman will recall, that in your statement to the House last week you said that nothing should occur to prejudice the position relating to the High Court injunction until the House itself had had an opportunity to discuss the matter and to make its own determination upon the matter. I submit that what you said last Thursday in no way implied that you thought that the prohibition should last as long as the injunction but only that it should last until such time as the House made its decision.
§ Mr. Biffen
The House is faced with a central decision as to whether the arrangements relating to the morning of last Thursday should continue for as long as the injunction continues, or whether at some stage one should reckon that we could, as it were, uncouple from that situation. I understand the right hon. Gentleman's position to be that there should be a point of uncoupling. We are saying that for clarity and simplicity the arrangements should last for as long as the injunction lasts. To move any distance from that, or to engage in a pick and choose exercise, would be difficult for Parliament and intolerable for Mr. Speaker.
§ Mr. Kinnock
On a point of order, Mr. Speaker. I am sorry to interrupt the right hon. Gentleman again, but this 217 is a matter for you. The principle of coupling and uncoupling has been introduced by the right hon. Gentleman. I have to ask, Mr. Speaker, whether last Thursday it was in your mind that there should be an extension of the prohibition for as long as the injunction lasted, or whether I and many other hon. Members were correct in believing that what was in your mind was that the prohibition should last only for so long as the House had not made its own determination.
§ Mr. Speaker
What was in my mind was to make that decision until the House had decided what should be done about the matter. I think that the right hon. Gentleman's amendment stakes out fairly that position.
§ Mr. Biffen
So that there is no misunderstanding between us, one of the matters that the House will have to resolve on this occasion is whether or not the arrangements of last Thursday should last as long as the injunction. If no view was explicitly taken on that matter, it would be left suspended in indecision, so the House properly addresses itself to that point. Of course, the right hon. Member for Islwyn (Mr. Kinnock) and his colleagues take a different view. We understand that they are anxious to maximise any possible points of difference between us so that they may find an alternative on which they can unite.
Quite apart from my seeking a motion which would prove a generally acceptable basis for debate, I believe that there are strong arguments which should dissuade us from seeking to generalise in this area in the immediate aftermath of an individual case. First, as my hon. Friend the Member for Chislehurst said, laying down regulations which will restrict the activities of private Members is not something that we should undertake lightly.
§ Mr. Spencer Batiste
(Elmet) Is it not the primary responsibility of individual Members of the House to have regard to the consequences of their actions? Has not this unfortunate constitutional position arisen simply because some hon. Members are not prepared to exercise that responsibility? Is my right hon. Friend aware that many in the House will want to ensure that there is a mechanism in place to avoid a repetition of this serious and damaging occurrence so that we do not have to come back to this in the coming days?
§ Mr. Biffen
I take my hon. Friend's point, but our immediate task is to make secure the decision that was taken last Thursday and to realise the consequences that flow from it. My hon. Friend has wider ambitions, but I believe that they should await another occasion.
Secondly, in this most sensitive area of the relationship between the courts and this House, it has traditionally been the practice that we should as far as possible avoid broad statements defining their respective jurisdictions. Instead, we have dealt with each issue as it arose, and it seems to me both wise and pragmatic to continue to do so. In my view it would, therefore, be wholly inappropriate to use this case as an occasion for a formal recasting of our procedures and machinery for dealing with such matters. Equally, it would be inconsistent with that approach to use this one case as the basis on which to erect sweeping institutional changes to the way in which the House has access to security information.
I recognise, however, as I mentioned at the beginning of my speech, that there is particular interest in how the 218 motion bears on the work of Select Committees. The amendment from my right hon. Friend the Member for Worthing (Mr. Higgins) addresses this point. Let me say at once that it is not the Government's intention to alter the long-standing conventions under which Select Committees operate—in particular, with regard to the disclosure of information related to matters affecting national security. These recognise, of course, that such information is not unconditionally available.
§ Mr. Campbell-Savours
Has the Leader of the House noted the terms of his own motion? It refers to prohibitingthe showing of a film, or the playing of a sound track thereof".Is the Leader of the House aware that there are many transcripts of the whole television programme in the possession of hon. Members on both sides of the House? I have myself offered copies of the transcript to the Chairman of Public Accounts Committee and asked him to distribute it to members of that Committee because we need it in the process of carrying out our work? Is it not ludicrous that the Government should propose to ban a film the transcript of which is being circulated to Members in the carrying out of their public duties?
§ Mr. Biffen
I do not accept the hon. Gentleman's argument. To suggest that there should be casual flouting of the spirit or the letter of an injunction secured in the national interest as though the hon. Gentleman was somehow elevated far above the rest of common mankind is a proposition that I am not prepared to commend.
Perhaps I may continue with my comments in respect of Select Committees. The House will recognise that under the terms of this motion it would be open to a Select Committee, should the occasion arise, to apply to the House for authority to see the film within the precincts of this House if it felt that that was necessary for the proper conduct of its inquiries. I assure hon. Members that, if that were required, the Government would act promptly to provide time for the House to reach a decision on such a request. I further say to my right hon. Friend the Member for Worthing, in his capacity as Chairman of the Liaison Committee, that I very much look forward to co-operating with him in monitoring how these arrangements proceed.
§ Mr. Terence Higgins (Worthing)
My right hon. Friend will recall that last Friday my hon. Friend the Member for Woking (Mr. Onslow) asked him the following question:When my right hon. Friend considers the terms of the motion, will he ensure there is nothing in it that might impair the rights of the Select Committees of the House?My right hon. Friend replied:I can give the undertaking sought by my hon. Friend in respect of Select Committees." — [Official Report, 23 January 1987; Vol. 108, c. 1148.]We now know the precise terms of the motion that the Government have tabled. Can my right hon. Friend the Leader of the House, without any qualification, repeat the assurance that he gave last Friday?
§ Mr. Biffen
I believe that the essential work of Select Committees is fully safeguarded by the terms that I have just described. In the light of that assurance, I very much hope that my right hon. Friend, who I am sure understands the Government's decision, will not press his amendment.
§ Mr. Higgins
I asked my right hon. Friend a simple question, albeit a rather lengthy one. Now that he has the 219 terms of the motion, which were merely anticipated last Friday, can he give the precise assurance that he gave to my hon. Friend the Member for Woking last week—that the terms of the motion ensure that nothing in it could impair the rights of Select Committees of the House? That is the assurance that he gave last Friday. Now that the motion is before us, can he not simply say, "Yes"?
§ Mr. Biffen
What I have just argued indicates to the House what I had in mind in giving the undertaking last Friday.
§ Mr. Higgins
I am sorry to persist. I simply want my right hon. Friend to repeat the assurance that he gave last week. That does not seem an unreasonable request. Surely it is consistent with what he has said. For the avoidance of doubt, will he simply say it in terms?
§ Mr. Biffen
I appreciate the point that my right hon. Friend makes, but I believe that what I have just elaborated fulfils what I said last Friday. I hope that he will accept that.
There can be no doubt that issues of fundamental importance underlie this debate.
§ Mr. Biffen
No; I have been generous in giving way so far.
I believe that those issues should be factors in forming our judgments rather than the focus of the discussion. The freedom embodied in parliamentary privilege can be properly maintained only if we continue to exercise it in ways that will not bring the House into disrepute. We have a duty also to give a lead in treating with responsibility issues of national security.
Against that background, the issue before us today is whether we support your action of 22 January, Mr. Speaker, in ensuring that the injunction granted by the High Court on the grounds of national security was not flouted by the use of the facilities of this House.
§ Mr. John Morris (Aberavon)
Will the Leader of the House explain a matter that is causing anxiety to me and to right hon. and hon. Members on the Conservative Benches? As I understand the motion, it is a blanket prohibition on showing the film within the precincts of the House. The right hon. Member for Worthing (Mr. Higgins) has asked for an undertaking from the Leader of the House that the work of Select Committees will not be impaired. If members of Select Committees decided that they wanted to see the film or read a transcript of it, how could that be done? How can their work continue unimpaired within the precincts of the House in view of the terms of the motion? Must they go outside the House to see the film?
§ Mr. Biffen
In the pursuit of their work, should a conflict arise between the members of a Select Committee and any Government Department, members of the Select Committee clearly and explicitly have the right to come to the House for the matter to be resolved. [HON. MEMBERS: "No."] That is the traditional position laid down with the establishment of the Departmental Select Committees by my right hon. Friend the Member for 220 Cambridgeshire, South-East (Mr. Pym). All the shock-horror indignation that we are now witnessing runs contrary to what I have just said and guaranteed to Select Committees as to how matters should be carried out.
§ Mr. Biffen
We believe that you acted in this way, Mr. Speaker, in the best interests of the House.
§ Mr. Kinnock
I recognise that the right hon. Member for Worthing (Mr. Higgins), who has a long and honourable interest in these matters, wishes to intervene. I must tell the Leader of the House that I find his interpretations most peculiar. Is it not the case that Select Committees have the unimpaired right to send for persons and papers, including films? How, then, does the requirement arise that under the terms of the motion a Select Committee chaired by the right hon. Member for Worthing—or, indeed, any Select Committee — would have to come to the House to seek the right to view a film? That is what the Leader of the House has said. If he wants to correct that impression and, in effect, to accept — I appreciate that he could not do so within the terms of order—the words of the amendment tabled by the right hon. Member for Worthing, that would at least clarify the position even if it does not make the Government motion absolutely acceptable.
§ Mr. Biffen
I assure the right hon. Gentleman that the position at the moment is that Select Committees have the right of access to persons and papers. If those persons and papers are not forthcoming and there is a conflict, the matter may be brought back to the Floor of the House for resolution. That is the position. I have underlined and guaranteed that position in my speech.
§ Mr. Biffen
We believe that you, Mr. Speaker, acted in that way in the best interests of the House. For the House now to draw back from that action would be to damage what you have protected—the relationship between this House and the courts.
§ Mr. Higgins
I am grateful to my right hon. Friend and I am sorry to interrupt him yet again. As I understand it, my right hon. Friend has described the existing position with regard to a conflict between a Committee of the House and someone asking for persons and papers to be presented. It is terribly important that we clarify the position with regard to that assurance. Can he confirm the assurance that he gave last Friday—that nothing in the motion in any way impairs the rights of Select Committees of the House? The only alternative is for my right hon. Friend to say that he is withdrawing that assurance, which would be very serious.
§ Mr. Biffen
I give that assurance and I believe that it is contained in my speech. I hope that that will clear up some misunderstanding between my right hon. Friend the Member for Worthing and myself because we are most anxious to work together on this.
§ Mr. Biffen
No, I must be allowed to proceed.
I note the amendment in the name of the Leader of the Opposition and his colleagues, the final limb of which is drawn precisely to create division on an occasion when I 221 would have hoped that the House could speak with overwhelming authority. It seems to me of particular importance that we are united in confirming your actions, Mr. Speaker, by the continuing of this specific prohibition for as long as the injunction remains effective. I urge the House to reject the Opposition amendment and to endorse the Government motion.
§ Mr. Speaker
Order. Before I call the right hon. Member for Bethnal Green and Stepney (Mr. Shore), may I announce to the House that I have received a manuscript amendment from the right hon. Member for Chesterfield (Mr. Benn), which I would be prepared to call. It reads: Line 1, leave out from 'That' to end and add'Mr. Speaker's ruling of 22nd January, relating to the showing of a film, be referred to the Committee of Privileges'.
§ Mr. Peter Shore (Bethnal Green and Stepney)
I am sure that the House will be grateful to you, Mr. Speaker, for the announcement that you are accepting the manuscript amendment in the name of my right hon. Friend the Member for Chesterfield (Mr. Benn).
The course of the debate so far has been extremely interesting and also extremely disturbing.
§ Mr. Maxwell-Hyslop
On a point of order, Mr. Speaker. I had thought that the right hon. Member for Bethnal Green and Stepney (Mr. Shore) was rising on a point of order. The House needs a little more information. Which of the amendments that you have announced to the House will be called and voted upon and in what order? It is crucial to the course of the debate that we have that information.
§ Mr. Speaker
The hon. Gentleman knows that the amendments are called in the order in which they fall on the Order Paper. The manuscript amendment will come before the amendment tabled by the Leader of the Opposition.
§ Mr. Shore
It was my understanding of the matter, that the manuscript amendment would be called first.
It has already become apparent that there is a dangerous ambiguity in the Government's motion. The Government, through their drafting, appear to have created a serious danger that a precedent will be established which, in spite of whatever may be said now and during the debate about your motives, Mr. Speaker, and our understanding of the House, would on other occasions be used and cited with authority. For that reason, I believe on reflection that it is right that the matter should be referred to a Select Committee. I have no hesitation in saying that.
I was enormously worried by the remarks made by the Leader of the House about the Select Committees. It is perfectly plain that, if the prohibition on the showing of the film in the precincts of the House is to run for as long as the injunction, under the terms of the motion to that effect, if carried, it will not be possible for Select Committees to see the film unless they obtain a prior motion on the Floor of the House to amend or overturn the clear meaning and inhibition that the Government motion would impose. Those are two major dangers that we have already discovered, thanks to the persistence and assiduity of my right hon. and hon. Friends who have raised points of order and made interventions.
222 The Government's attempts to prevent the release of information on the Zircon project last Thursday and the motions and amendments on the Order Paper today raise many important questions. They raise four questions that seem to me to be of particular note and there may be more as the whole saga unfolds. The first is whether you. Mr. Speaker, were right last Thursday morning to instruct the Officers of the House to prevent a showing of the BBC film on video in that part of the Palace of Westminster controlled by the Commons.
Secondly, we must ask whether the Government were right to insist that secrecy and national security should override access to information by the public at large and by hon. Members in particular. Thirdly, if the Government were right, whey did they act so tardily and ineffectively to prevent publication? Fourthly, what is our proper course of conduct now that the information is in the public domain?
The first question has already turned out to he controversial. When you, Mr. Speaker, were informed on Thursday morning that an injunction had been granted against Mr. Duncan Campbell preventing him from revealing any part of the content of the BBC television film, and when you also know that a number of my hon. Friends had arranged for a showing of that film at 11 o'clock within the precincts of the Palace, you had to make an immediate decision—to allow the showing or to use your own authority, in, I think, an unprecedented way, to prevent it. You chose the latter course.
In reply to the point of order properly raised by my hon. Friend the Member for Livingston (Mr. Cook) on the Thursday afternoon, you made it clear that it was for the House itself to determine the issue and that your action, since the House was not sitting on Thursday morning, was designed only to ensure thatnothing should occur to prejudice the position until the House itself had an opportunity to discuss the matter."—[Official Report, 22 January 1987; v. 108, c. 1025.]Therefore, it was a ruling of a deliberately temporary character to enable the House, and not you, Mr. Speaker, to decide the issue. I am sure that that was right, arid most hon. Members will think so as well. I am equally sure that it was right for Mr. Justice Kennedy to refuse the Attorney-General's request to issue an injunction against my hon. Friends and instead to leave the matter of showing the film for the House to decide.
The second question raises an equally difficult issue. I take it for granted that no hon. Member would wish to make public material that could be of use to a potential enemy or would in any way wish to endanger the security of the nation. I also take it for granted that it is one of the inescapable duties of a Member of Parliament to scrutinise Government policy and expenditure in the defence and security areas. Those two duties are difficult to reconcile and at times are in clear conflict with each other.
The claim of national security has been used as a cover for hiding shifts of policy, for ministerial errors and for bureaucratic bungling which should be exposed in the interests of democracy, of the taxpayer and of the security of the nation. On the other hand, accountability and public debate can lead to disclosures which are not just politically embarrassing for Ministers but which genuinely affect national security.
There is a widespread view that in Britain successive Governments, Labour as well as Conservative, have tipped the scales far too heavily against public debate and 223 accountability. Moreover, in a world in which technology makes secrecy increasingly difficult to maintain, and when other nations, including our principal military ally—the United States have passed freedom of information legislation, much information about our military secrets is available for public scrutiny in public documents available in Washington.
No one who has read the New Statesman article or who has seen Richardson and Balls' book "The Ties that Bind", published in 1985, can doubt that much if not most of the technical information in Mr. Campbell's article was readily available from public sources. Britain's tendency to excessive secrecy has been partly recognised even by the present Government. While they have recoiled from amending section 2 of the Official Secrets Act and are clearly strongly opposed to any form of freedom of information legislation, by setting up the Department-linked system of Select Committees in 1979, they opened themselves to far more sustained and informed questioning and debate than ever before on defence and foreign policy. The agreement reached in 1982 between the Public Accounts Committee and the Ministry of Defence that projects costing in excess of £250 million should be reported to the Committee was a further step forward.
§ Mr. Allan Roberts (Bootle)
Is my right hon. Friend aware that, when the members of the Select Committee on the Environment visited the United States of America, we were provided with information, details and costings about the relationship between civil nuclear power and the production of military plutonium? That information was denied to the members of the Committee here, hon. Members from all parties, yet it was freely available to us in the United States.
§ Mr. Shore
My hon. Friend confirms the point that I made about a different area of policy but I am sure that what I have said also applies strongly to military defence procurement and projects.
Any case involving national security has to be judged on its merits. I have not seen the BBC film on Zircon, nor was I able to accompany my right hon. Friends when we were invited to meet the Foreign Secretary last Thursday morning. As my right hon. Friend the Leader of the Opposition made clear on Thursday during questions to the Prime Minister, he took the view, following his meeting and exchanges with the Foreign Secretary, that the Government were right to take action to prevent publication of Mr. Campbell's article.
I accept that judgment, but in view of all the subsequent fury directed against the New Statesman, I must make it clear that, whatever the unintended effects may have been for national security, the self-evident main motive for the article and its publication was to arraign the Government for what the author believed to be their deception of the Public Accounts Committee. However, if damage was caused to the national interest it is a grave and worrying matter and something that we all deplore.
I shall now turn to the third question.
§ Ms. Clare Short (Birmingham, Ladywood)
I have not seen the film, but I have carefully read the New Statesman article and I cannot see any issue affecting national security. I know that it is not possible for the Government to spell it out without breaching what they claim is an issue 224 of security, but perhaps we could have a hint. We are told that the Soviets will understand that the thing is in the air and will know what it can do. A United Nations treaty requires us to say that such-and-such a satellite is in the air. In what way does the article breach national security?
§ Mr. Shore
As my hon. Friend well knows, I cannot answer that question. I would be able to answer it only if I had been properly and fully briefed. I do not believe that all the members of the Government are totally idiotic and I certainly do not believe that my right hon. Friends who went to see the Foreign Secretary are other than men of excellent judgment and sense.
I shall now turn to the third question that I posed at the start of my speech. Assuming that the Government were right in this case that secrecy was important, why did they act so tardily and so ineffectively to prevent publication? The Leader of the House has not given anything like a satisfactory explanation.
As the House knows, the Attorney-General sought an injunction against Mr. Duncan Campbell only last Wednesday. It was served on him on Thursday afternoon and by then this week's issue of the New Statesman was quite lawfully on the streets. Why was action taken so late? Last Thursday, in spite of repeated questioning, the Prime Minister had no answer.
On Friday, in a lengthy interview with IRN, the right hon. Lady sought to explain the delay when she said:You can't just go and say please I want a blanket injunction against anyone publishing certain information. The injunction has to be against named individuals and a named publication and you have to have firm evidence of their intention to publish. So that limits what you can get. It was not easy to get that evidence in time.For the following reasons, that was not a convincing explanation. First, the fact that the film was being made in a BBC series was known not weeks but months ago. My right hon. Friend the Chairman of the Public Accounts Committee was interviewed last October for the film and asked point blank whether the Zircon project had been reported to the PAC.
Among others interviewed were Sir Frank Cooper, former permanent secretary to the Ministry of Defence, and Professor Sir Ronald Mason, the defence chief scientific adviser up to 1983. The latter was "flabbergasted" that the word "Zircon" had been mentioned and said, according to Mr. Duncan Campbell,I just can't talk about it. I didn't know that was out…you surprise me".We also know that Sir Peter Merrychurch, the director of GCHQ, met the Director-General of the BBC on 5 December and told him that "serious damage" to national security would follow if the film were shown.
Last night, in reply to a question from my hon. Friend the Member for Workington (Mr. Campbell-Savours), the Prime Minister made the matter perfectly clear when she said:The Government became aware in a general sense of the BBC's plan for one or more programmes in the Summer of 1986; and of the intention to include specific material on a secret defence project in October 1986. Discussions then took place between the Government and the BBC, who subsequently decided on grounds of national security not to show the material on the project.
Not only did the Government know, but the issue itself became public a week last Thursday when Mr. Alasdair Milne, Director-General of the BBC, having been advised by the permanent secretary to the Ministry of Defence that 225 national security was involved, announced his public decision to veto the showing of the film. Why on earth was an injunction not served on Mr. Duncan Campbell then?
Then, a week later, The Observer carried a front page article on the BBC's decision to ban the programme. Still the Government did not act. No injunction was served against the New Statesman.
Yet not only is Mr. Duncan Campbell a regular writer for the New Statesman, but his paper negotiated a contract under which the New Statesman would simultaneously publish an article by Mr. Campbell when the television film was shown. That was an unusual contract clause, as the right of first publication is normally exercised by The Listener. Any inquiry as to the nature of the contract made with the BBC would have revealed this fact. Anyone with any sense, and who knows about Mr. Duncan Campbell and his previous history, knows that he writes for the New Statesman. So why on earth was action not taken? The conclusion is inescapable. The Government had prior knowledge, ample time and sufficient information to prevent the disclosure by the BBC, the New Statesman and anyone else. They bungled it. Now they are thrashing around, looking for any excuse, heaping any amount of abuse and trying ineffectively to close the stable door after the horses have bolted.
On Thursday, after publication of the New Statesman, the Treasury solicitor wrote to all newspaper editors seeking an assurance that."your newspaper will not publish anything relating to subject matter falling within the injunction granted to the Attorney—General against Mr. Duncan Campbell on 21st January 1987.Friday's newspapers gave the answer. The Daily Telegraph, The Independent, The Guardian, and The Times all published substantial pieces based on the New Statesman's article. Mr. Max Hastings, editor of the Daily Telegraph, wrote back saying that he could not give any such assurance, as did other Fleet street editors. Last Friday, his editorial summed up the matter in these words:this Newspaper strongly supports the concept of defence secrecy and opposes the action of Mr. Campbell. But it would be perverse of us, along with the rest of the media, to accept the Treasury solicitor's request not to give further publicity to the material revealed when this has been made only after the Soviet Embassy and any other interested parties have had time to collect special souvenir editions of the New Statesman. The Government must have known for weeks what Mr. Campbell proposed to reveal. By acting now, in a hopeless muddle, the Attorney—General has made an ass of himself —and worse, of the legitimate case for official secrecy.I caution my hon. Friends on this point. I am not sure that the criticism of the Attorney-General is fair, because two days later the Sunday Telegraph gave us a little more information. It said:according to Whitehall sources"—I wonder what those are—Sir Michael Havers, the Attorney-General, felt that there were sufficient grounds a week ago to seek an injunction against Mr. Duncan Campbell … Sir Michael was opposed by Cabinet colleagues including Mr. Younger, Defence Secretary"—who is not on the Front Bench today—who were nervous about appearing to want a blanket ban. As a result, details of the satellite were published in last week's New Statesman. Decisions to prosecute for an alleged offence are taken by the Attorney-General, but a decision to seek an injuction needs Ministerial approval and that was not forthcoming until last Wednesday after vigorous representation by Sir Michael.Is this true? The Solicitor-General will, I hope, give us a straight answer when he replies. Will he also tell us, since 226 so many newspapers have ignored the Treasury solicitor's advice, whether their editors will now be proceeded against, or is it just the New Statesman that is to be the target for the Government's frustration and rage?
My last question is, what is our proper conduct now that the information about Zircon is in the public domain? What, in other words, should we do now that horses have bolted, and the genie is out of the bottle? The Government's motion invites us to pretend that nothing has happened; to take part in a charade; to believe that, if we clap our hands over our eyes, no one else can see what is taking place; to continue, as the Government's motion puts it, not to show the TV film in the precincts of the House.so long as the injunction remains in effect.That resolution would not only prevent interested hon. Members in general from seeing the film, but would clearly prevent, as hon. Members have already made clear in their interventions, the Select Committee on Defence and the Public Accounts Committee from seeing it as well. Certainly they would need not only encouraging words from the Leader of the House but an amending resolution before they could do so.
§ Mr. Leigh
Is it not implicit in the motion tabled by the Prime Minister—and if it is not implicit in that motion, is it not made explicit by the words of my right hon. Friend the Leader of the House today—that nothing in that motion is prejudicial to the rights of Select Committees conferred on them by Standing Orders Nos. 122 and 130?
§ Mr. Shore
The hon. Gentleman should have listened to what I said at the beginning, or indeed what other Labour Members have said in their interventions. Words used in explanation of resolutions and motions passed by this House may have a certain value, but they are not to be set against the proper interpretation to be placed upon the motions and resolutions that are actually passed. That is what carries authority. That point has clearly been registered by the right hon. Member for Worthing (Mr. Higgins) who has put down a specific amendment to safeguard the rights of Select Committees.
This is a lamentable story of Government ineptitude and inefficiency. We are now being invited to participate in a farce, and we will not do so.
§ Mr. Terence Higgins (Worthing)
The motion before the House supports the action that you, Mr. Speaker, took last week. I join those who take that view. In the circumstances it was right that you should have acted as decisively as you did. It is to the benefit of the House and of the country that that was the position. Nevertheless, the decision raises a number of complex issues, not least the vital importance, which I am second to none in supporting, of the need to preserve national security. That being so, I do not propose to pursue some of the points that the right hon. Member for Bethnal Green and Stepney (Mr. Shore) raised in a somewhat more partisan context.
I shall return to the point that I sought to raise in the speech of my right hon. Friend the Leader of the House. I am grateful to him for giving way to me no fewer than four times, because it is important that we clarify precisely the position of the Select Committee system. No one should be under any misapprehension. It is a fairly complex matter, which requires careful analysis.
227 I start by referring to the exchange that took place on the Floor of the House on 23 January between my hon. Friend the Member for Woking (Mr. Onslow) and my right hon. Friend the Leader of the House. My hon. Friend asked:When my right hon. Friend considers the terms of the motion, will he ensure that there is nothing in it that might impair the rights of the Select Committees of the House?My right hon. Friend the Leader of the House replied:I can give the undertaking sought by my hon. Friend in respect of Select Committees." — [Official Report, 23 January 1987; Vol. 108, c. 1148.]This is the point that I wish to pursue. When that exchange took place, it was in the context of unknown wording for the motion, and I do not doubt that much thought has been given to the wording of both the Government's motion and the Opposition's amendment. That being so, it is right to ask my right hon. Friend the Leader of the House to confirm today, now that the terms of the motion are known, the assurance that he gave on the previous occasion. We have heard the exchanges and we shall need to consider carefully what my right hon. Friend said. None the less, as has been pointed out, I tabled an amendment that effectively confirms the view that my right hon. Friend the Leader of the House expressed last Friday.
I should stress that, as the new departmental Select Committee system has developed, in many respects it has been done not by changes in Standing Orders or by specific motions, but by the assurances that have been given to the House by successive Leaders of the House. There have been three since the Government supported the establishment of the Select Committees. For example, there is the matter, still being debated, of whether Select Committees should have the right, as against the request, to see Ministers. Successive Leaders of the House have given an assurance that if there is any dispute on that, the matter will be referred to the Floor of the House, and the Leader of the House will seek to provide time to debate it. This afternoon, if I understood my right hon. Friend correctly, he said something rather stronger. He said that, if there is any dispute on these matters, he will guarantee that a debate takes place. In this case, as the motion is narrowly drawn, the debate would be on the dispute about the film.
One should recall precisely the present powers to send for persons and papers. It is not just a question of the relevant Standing Orders, because some Select Committees have that power by virtue of a motion from the Floor of the House rather than by Standing Orders. Be that as it may, the situation is as follows. The Select Committees are given, either by motion or under Standing Orders, the power to send for persons, papers or records. If they request such papers, and that request is acceded to, they are able to obtain them and carry out their work in the usual way. However, if that request is refused, and provided that they go through more formal proceedings, then it is necessary to return to the Floor of the House to secure those papers. That is the existing position, and as my right hon. Friend the Leader of the House said, there is no change. That is so in this as in any other case.
It would seem to be the case, but I am not sure, that the situation is somewhat altered by the injunction. It is not clear whether we are now being told that the Committee will anyway have to return to the Floor of the House. Here we run into something of a procedural tangle because, as 228 I understand it, should the Select Committee on Defence, for example, say that it wishes to see the film and that request is refused, it would need to return to the Floor of the House to obtain it, and there is no change in this. However, the effect of the motion, if we were to carry it, would be that the film could not be shown in the precincts of the Palace. As I understand it, there would be nothing to stop the Defence Committee requesting to see it and seeing it elsewhere, without returning to the Floor of the House. I am not sure whether that is the position, but it is my understanding of the position. We enter into a complex situation, and I hope that my right hon. and learned Friend the Solicitor-General, in his reply to the debate, will be able to make clear precisely what the position is.
It is important, if we can do so, that we should proceed as the Select Committees have proceeded up till now, by assurances from the Floor of the House rather than by specific motions. That system has worked very well until now, and if we can get that assurance, the House might prefer that.
Be that as it may, I am still a little unclear, despite four interventions, whether my right hon. Friend the Leader of the House, in his final reply to me, was stating categorically that he repeated and reaffirmed, without qualification, the assurance that he gave the House last Friday—that the motion as it stands in no way impairs the rights of Select Committees. If that is so, that is a basis on which we might reasonably proceed, but I am not sure that I got that categorical assurance. That being so, and because in the hurly-burly of debate it was not easy to hear the precise words, I hope that my right hon. and learned Friend the Solicitor-General can make it clear beyond peradventure, and we can proceed.
The motion raises wide-ranging and important issues that may need to be considered in a broader context by the appropriate Committee, whether it be the Select Committee of Privileges or the Select Committee on Procedure.
§ Mr. Stanbrook
Is not my right hon. Friend's argument something of a non sequitur? After all, Select Committees derive all their powers from the House. If, tonight, we were to pass a specific motion prohibiting something in the House, that must apply to the actions of any Select Committee; otherwise, what my right hon. Friend is suggesting in his amendment is that a Select Committee, notwithstanding this motion, should have the right to override what has already been decided by the House.
§ Mr. Higgins
With respect to my hon. Friend, that is not my understanding of the position. The situation is the one that I have already described. That is, if we pass the motion, with the assurances of my right hon. Friend the Leader of the House but without my amendments, the relevant Committees could proceed in the normal way, but they would have to return to the Floor of the House to get the substantive motion. I think that that is so, but these are complex matters and I cannot guarantee to say on my feet, at a moment's notice, that that is not the position.
If we have the assurance that I have mentioned, we have a reasonable basis on which to proceed. It has to be a clear and categorical assurance that the status quo on the rights of Committees is not to be altered by the motion. As I understand it, that has been the position of the Government throughout. I cannot presume to say, but I 229 am sure that, in making your ruling, Mr. Speaker, it was not your intention to inhibit the working of the Select Committees. That being so, I hope that the winding up speech will be appropriately helpful and we can proceed accordingly.
§ Mr. Tony Benn (Chesterfield)
I am grateful to you, Mr. Speaker, for allowing me to put before the House the manuscript amendment standing in my name that would transfer the matter to the Committee of Privileges. The amendment is, in line 1, leave out from 'That' to end and add'Mr. Speaker's ruling of 22nd January, relating to the showing of a film, be referred to the Committee of Privileges'.
§ Mr. Speaker
Order. The right hon. Gentleman may move the amendment at the end of the debate, but he may speak to it now.
§ Mr. Benn
If the motion proposed by the Leader of the House were passed today, even the Committee of Privileges would not be allowed to see the film upon which Mr. Speaker gave his ruling.
I think it is obvious to the House that the issues we are discussing go far beyond the immediate matters of controversy between the Government and the Opposition, the related question of the Campbell article in the New Statesman on the film or the project. I do not wish to go back over the issues of last week when you took a decision, Mr. Speaker, at very short notice, because it is today that we face the big decision.
Those of us who have anxieties about the implication of the decision that you took last week, Mr. Speaker, wish to make it clear that those anxieties are in no sense personally related to you. Nevertheless, those anxieties are clear and specific and can be set out in the following way. If the Government are asking that we should "confirm" your ruling, or if, as the amendment put down by my right hon. Friend the Member for Islwyn (Mr. Kinnock), states, we should "accept" that decision, the difficulties go far beyond the Opposition and extend to the Chairmen and members of the Select Committees. That is why I am moving that the matter should go to the Committee of Privileges, which was set up by the House many years ago to examine matters that require complex examination. We should not reach a decision until the Committee of Privileges has reported.
The issue that we are discussing is a fundamental constitutional one of the relationship of the Commons, Members of Parliament and the electors on the one hand; and the Executive and the judiciary on the other. Although you quite properly said, Mr. Speaker, that you did not wish your ruling of last Thursday to be treated as a precedent, if we confirm or accept it tonight it will appear in "Erskine May" and will be quoted in future Parliaments and have a profound effect upon Parliament.
I do not believe that there is any precedent for the ruling that you gave, Mr. Speaker. I have searched carefully through Erskine May" and I can find no precedent, nor can I imagine that when the Committee on Accommodation was set up it was ever intended that the organisation of Committee Rooms of the House should be used to prevent the showing of a film on the provision of information that might assist hon. Members in the course of their work.
It is right that we should look at your role, Mr. Speaker, in this connection, because it is the highest office that we 230 can bestow and you speak for us and defend us from the Executive. I have cited before, and will cite again, the words of Mr. Speaker Lenthall. On 4 January 1642 the King came to the Commons to seize the five Members. Mr. Speaker Lenthall, described as "a man of timorous nature", knelt and said:May it please your Majesty, I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here.That was the precedent. It could be argued that Wit was not in relation to five hon. Members and King that precedent would not apply. However, we have taken it, ever since, as a statement of your role. Now when a new Speaker is elected he goes to the other place to claim the ancient privileges of the House.
I am sorry to go back to the texts, but people may not always appreciate their importance. In 1688 the 9th article of the Bill of Rights stated:That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any Court or place out of Parliament.Hon. Members may ask whether a film shown somewhere else in the Chamber can be described as a proceeding in Parliament. Fortunately, we have a precedent for that as well. In 1938 Duncan Sandys, a Member of the House and also a member of the Territorial Army, received from a colleague in the Territorial Army information that there were defects in the air defence of London. He tabled a question and the person from whom he got the information was charged under the Official Secrets Act 1911. Duncan Sandys came to the House to appeal to the House to protect him by way of privilege and the person who gave the information.
I know about this matter because my father was on the Committee of Privileges or the Select Committee which reported on the case. I remember most vividly the debate in the House. The House upheld the view—I shall refer to it because it refers directly to the question as to what is a proceeding in Parliament — and did so in a case involving the Official Secrets Act. I shall quote from "Erskine May", page 93, commenting on the Committee that examined the Sandys case:cases may easily be imagined of communications between one Member and another or between a Member and a Minister, so closely related to some matter pending in, or expected to be brought before the House, that, although they do not take place in the Chamber or a committee room, they form part of the business of the House.That was one of the most important judgments reached by the House, especially when one considers, to its credit, that it was in the middle of war. As far as I recall, the matter was discussed in the House in May 1940, when it may well have had other matters to consider. Nevertheless, it entrenched the right of its Members to receive information from someone who is not a Member of the House even when that information is in respect of the security of the country.
I give that historical and legal background only to underline the enormity of the decision that it is proposed we should take without any further examination of the issues at stake. My amendment does not prejudge any of those issues, but invites the House to put the matter to the Committee that is best qualified to judge.
It is an issue that is not just of historical and legal importance, but one which will have immediate, practical importance to the future workings of parliamentary democracy. I ask the House to ask itself these important 231 questions before hon. Members go into the Lobby to vote on any of the amendments, other than the one referring to the Committee of Privileges.
First, is it right for the Government to engage in major military projects without telling Parliament? This question, as my hon. Friends will know, points a finger of criticism at both Labour and Tory Governments. I think I am one of the few surviving Members who sat in this House when Mr. Attlee was Prime Minister and Mr. Attlee developed the atom bomb without telling Parliament. At the time, that may have been considered acceptable, but I do not believe that any hon. Member would accept that it would be right to do that today.
The House does not want technical details about the defence of secrets when the question of security arises. I have not read the article in the New Statesman and I do not particularly want to read what Duncan Campbell may say about a particular satellite. However, Parliament must know the general nature of major defence projects, their purpose and their cost. If Parliament does not know that it is abdicating its responsibilities.
The second question is whether it is right that Ministers should be able to go to any court and use the magic words "national security" as the basis for a court injunction. In a democracy it is for the House and electors to decide what is in the national interest. And when there is a general election, it is the people's judgment as to what is in the national interest that counts. It is not for civil servants, generals, scientists or Ministers to determine what is national security. The judges of the Cheltenham case have said that if the magic words "national security" are used they will not allow the matter to be raised.
§ Mr. Benn
The third question that I would like the House to consider is whether it is right that any Speaker — so as not to personalise it — hearing news of an injunction that has been issued should be able, without the explicit and specific authority of the House, to prevent hon. Members from seeking available information that would assist Parliament in its work of holding Governments to account. As the court in question declined to grant an injunction against some hon. Members, it is clear that it recognised the limits of its powers. Page 204 of "Erskine May" states:the courts admit: That the control of each House over its internal proceedings is absolute and cannot be interfered with by the courts.I do not know, and it is not my concern, to what extent that aspect was in your mind, Mr. Speaker, when you took what you feel to have been interim action, but that is the question that we have to ask today, because we are reaching permanent decisions.
The next question is whether we should accept and confirm a limit on our freedom as Members of Parliament that would assist the concealment of any matter by any Government of any Parliament — this is not just in relation to this matter—by the use of national security and injunctions. I worry greatly over the other implications of your ruling, Mr. Speaker. What if the police had gone to a magistrate and asked for a warrant to search the papers of my hon. Friend the Member for Livingston (Mr. Cook) at the time they were going to the home of Duncan Campbell? What would have been the 232 position? Is it the case that the House could ever allow the courts or a magistrate to send policemen into the Palace, where already a film may not be shown, to discover the sources of information of a Member who might be contemplating a parliamentary question?
If we accept the motion or the amendment, we would be placing the House of Commons and Members of Parliament for ever under the effective control of the Government, in that Ministers could bring an injunction, the court could accede to the injunction and—nobody would wish this less than you, Mr. Speaker — Mr. Speaker would become an agent of the Minister and his injunction and the court that upheld it, to enforce upon Members the denial of the rights for which we were elected. I cannot believe, knowing you, Mr. Speaker, that it would be your wish to be remembered as a "Counter-Lenthall" whose protection did not extend to hon. Members in this position.
I should like to make a final comment as an old Member of the House. We all take children and visitors round the House. I do and have done for many years. We tell them that we keep Black Rod out. We tell them about the Outlawries Bill, we tell them that the House decides on its own business before it gives attention to the Gracious Speech. We tell them about the Army and Air Force (Annual) Act and the order to prevent a standing Army being maintained and we tell them about the five Members. Those are not meaningless rituals. They are reminders of monumental struggles to build democracy against tyranny. It is important that we should not treat them simply as tourist attractions.
For all those reasons, I appeal to hon. Members of all parties to pass the amendment that refers the matter to the place where these implications can be fully considered. I appeal to the Leader of the House to recognise the importance of his role in granting a free vote to Conservative Members on the question of reference to the Committee of Privileges. If that is rejected, the matter will have to be dealt with by the motion on the Order Paper. In 36 years in the House I cannot recall a debate as important as this and I am grateful to you, Mr. Speaker, for allowing my manuscript amendment to be put on the Order Paper tonight along with the motion and the other amendments before us.
§ Mr. Cranley Onslow (Woking)
The right hon. Member for Chesterfield (Mr. Benn) is right in what he said about the importance of the debate. However, some of the considerations that he put before the House seem to be not quite as relevant as he supposed, and some of his arguments were not as complete as they might have been. When he told us how he conducts parties round the House, he might have added one other important piece of parliamentary law, which is the right of any hon. Member, when he feels it appropriate, to require that the House remembers its obligation to keep matters secret by "spying strangers". When we consider this important matter, we should not forget that we have that duty and that we have a procedure that has been used, rightly, in the national interest. I am glad to see that the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan) appears to agree with me.
§ Mr. James Callaghan
I was agreeing with a remark made by my hon. Friend the Member for Midlothian (Mr. Eadie), not with the hon. Gentleman.
§ Mr. Onslow
I do not mind whether the right hon. Gentleman listens to his hon. Friend or to me. However, as I have the Floor perhaps I can claim your attention, Mr. Speaker.
The most important feature of the debate seems to me to be that the House should support the action that you took, Mr. Speaker, and the reasons why you took it. If you had taken a different decision, you would have anticipated the freedom of the House to make up its own mind by precipitating a course of events that would have made today's discussion irrelevant. It is not the Chair's function to do that, as you are the first to recognise. You are here to protect the rights of hon. Members, not to pre-empt them. [Interruption.]. To be told that I am blathering when I say that suggests that there are some Opposition Members whose motives in the debate are not as pure as they might be.
§ Mr. Allan Rogers (Rhondda)
On a point of order, Mr. Speaker. I have been listening attentively to the speeches and I have not decided how I intend to vote. However, it is not right that any hon. Member should accuse Labour Members of unworthy motives. The hon. Member for Woking (Mr. Onslow) should substantiate his comment or withdraw it.
§ Mr. Onslow
If it was not the hon. Member for Rhondda (Mr. Rogers) who interjected, blathering from a sedentary position, I apologise.
§ Mr. David Winnick (Walsall, North)
Further to that point of order, Mr. Speaker. The hon. Member for Woking has not answered my hon. Friend's point. He said clearly that the motives of Labour Members are not as pure as is made out. That casts aspersions on Labour Members and it is only right and proper that the hon. Gentleman should withdraw that remark or name those he is accusing.
§ Mr. Speaker
This is an important debate, involving a high constitutional issue. I ask the House to keep the temperature down. I am sure that the hon. Member for Woking (Mr. Onslow) did not intend to impugn the honour of any Member in the House.
§ Mr. Onslow
That was certainly not my intention. I do not have any intention of being provoked further by sedentary interventions. I hope that there will not be any more.
We must first recognise the rightness of your action, Mr. Speaker. We must also recognise that you had to take that action in circumstances which may well have no precedent. The right hon. Member for Chesterfield said that he had searched "Erskine May" for a precedent. I do not suppose that any hon. Member was surprised to hear that he did not find one, because this must be the first occasion on which this device has been employed in an attempt to use the procedures and facilities of the House to circumvent an injunction of this kind. Therefore, we are making case law. We had to react to a situation that was created not by the Government but by some Opposition Members, for reasons that so far we have not heard them explain. I hope that there will be an opportunity for those concerned to explain.
Perhaps the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood), who appears to be waiting to speak for the alliance, can explain how far he became involved in attempts to obtain a Committee Room to show 234 the film. We look forward to hearing him do so. I will not say any more, because I have not heard his explanation. I have not heard the explanation of the hon. Member for Livingston (Mr. Cook) for the action he thought it right to take. I am sure that the House will be interested to hear what he has to say. Equally, I hope that both hon. Gentlemen will concede to the House that they confronted you, Mr. Speaker, with an entirely new and unlooked-for situation, and that it is right that you should have reacted to it in the way that you did.
Nor, when we come to consider the extent to which Select Committees of the House may or may not be involved, should we be too carried away by comparisons which might be drawn if we were on the other side of the Atlantic. I am sure that my right hon. Friend the Member for Worthing (Mr. Higgins) will not mind me saying that the rights of Select Committees are drawn entirely from the decisions of the House. They are not independent, autonomous bodies, they do not have absolute powers and they exist in order to serve the House and to do, broadly speaking, what the House wants them to do.
§ Mr. Tony Marlow (Northampton, North)
Does my hon. Friend accept that many hon. Members think that some Select Committees take themselves a great deal too seriously? It is the Floor of the House that matters above all.
§ Mr. Onslow
As a former Chairman of the Defence Select Committee, I do not think that I want to be drawn into that argument, but my hon. Friend may wish to make it in his own way.
We find ourselves discussing this matter today, not because a Select Committee of the House took the initiative to book a room and show a film which was made by somebody whom the Daily Telegraph describes as a professional exposer of defence secrets and who takes it upon himself to decide where the national interest lies. If a Select Committee had taken that decision and created this situation, we would be considering something different, but we are not.
Nor should we be too impressed by the argument of the hon. Member for Livingston that the horse has bolted, so there is no point in locking the door. My right hon. Friend the Prime Minister made, with considerable force, the comment that one action which undermines national security does not justify another. It would be wrong if the House took a decision this afternoon which appeared to have the opposite effect. We cannot accept the proposition that, because a breach of national security may have been committed by somebody outside, we should be manoeuvred into a position of condoning it. If Parliament became, in that sense, a public convenience,it would be very bad indeed. People at large expect us to maintain a continuing judgment and defence of the interests of national security.
I know that many hon. Members want to speak, so I shall not speak at length, but I want to touch on one other point. The right hon. Member for Plymouth, Devonport (Dr. Owen), who intervened on Friday morning when my hon. Friend the Leader of the House made his statement, thought that this situation was a further example of the need which he sees for some kind of standing monitoring body of Privy Councillors to invigilate issues of security and intelligence. Nothing that has been said in this debate justifies that in any way. I can see no justification for such 235 bodies. The Home Secretary deployed powerful arguments against them in the debate on 3 December. There is no "need to know", nor are things being wrongly concealed from Parliament. The Chairman of the Public Accounts Committee has confirmed that his Committee has not been deceived, so the main burden of the newspaper story has already been destroyed.
We are left with a situation in which undoubted harm is threatened to our national interest. It may not be, in this case, by secrets being clandestinely handed over to an enemy, but by an attempt to create a situation in which the Government cannot defend the national interest as effectively as they think necessary. The House is being asked, judging by some of the comments that we have heard, to condone a situation which would be a most serious threat to our national interest. Whatever else we may do this evening, we cannot approve of that
§ Mr. James Callaghan (Cardiff, South and Penarth)
When I came into the Chamber this afternoon, Mr. Speaker, I promise you that I had no intention other than to listen to the intellectual stimulation which is always provided by Prime Minister's Question Time and then to enjoy a quiet cup of tea. When I saw, for the first time, the motion on the Order Paper and the consequential amendments I began to be concerned about what the House was being asked to approve.
A resolution of the House is of great importance. It passes into the annals of the House and is referred to by Mr. Speaker and others, such as future Leaders of the House, and will undoubtedly be of great significance in determining our future action. Therefore, something further should be considered before we agree to a motion, or indeed to the amendments on the Order Paper. I say that about both motion and amendments, and that is why I raised the matter as a point of order at the beginning.
As the oldest Member of the House—
§ Mr. Winnick
Not the oldest Member. What about our hon. Friend the Member for Wolverhampton, South-East (Mr. Edwards)?
§ Mr. Callaghan
I am delighted to hear that; there is still a chance yet.
I have no intention of challenging what you did last week, Mr. Speaker, because in the circumstances with which you were faced you had no alternative. The amendment of my right hon. Friend the Member for Chesterfield (Mr. Benn) that you have said you will put to the House later this evening is not intended to convey any implication of that sort as far as I am concerned, or anybody else. It is designed for an entirely different purpose and I am sure, Mr. Speaker, that you will take it personally as such.
However, we should have more time to consider the matter. My right hon. Friend the Member for Bethnal Green and Stepney (Mr. Shore) referred to the fact that the Government seem to have taken a long time to take action on this matter. They also took a long time to put down this motion, because unless we had some access to the Lobby yesterday, and happened to pick up a sheet of paper that was lying in it, we did not know what was to appear on the Order Paper today. The Government were tardy in the 236 action that they took in the courts and tardy in relation to the motion. I beg for more time to consider what the House should commit itself to.
There is no doubt in my mind that the Government have every right to use the issue of national security to request the House of Commons not to consider any particular matter at any time. That throws a great obligation upon the Government not to abuse that privilege, or their responsibility in this matter.
The House also has a right to be sceptical. All Governments, especially after a period in office, fall into a belief in their own capacity to be right on all occasions, and to be judge in their own court. No Government are immune, and the longer the Government are in office the more the arrogance of power eats at them. I am not referring only to this Government; it applies to almost every Government that I have seen in the House, unless they have a majority of two or no majority at all, when one has to be very humble to almost any Member. I do not deny the Government their rights or responsibility for security in this matter.
I did not find the speech of the Leader of the House convincing. He seemed to be in some discomfort, and it was a rather stumbling speech as though he was pretty uncomfortable about what he was doing, I assume that he was not involved in the orginal decision. I was reminded of an occasion early in the war when Winston Churchill was put up to defend a series of not very splendid decisions by the Chamberlain Government. He did it in such a robust way that somebody from the Opposition Benches —I have forgotten who it was—[Horn. MEMBERS: "Lloyd Georgel Yes, of course it was—said that the right hon. Gentleman should not convert himself into an air raid shelter for the protection of his colleagues. No one could have accused the right hon. Gentleman of being a robust air raid shelter this afternoon. He sounded as though a dilapidation order had been served on him.
In giving the Government the benefit of the doubt, as I do on these matters—I have not been briefed on this; I try to speak with a sense of responsibility—I am a little worried about what is wrong with what has happened. I can only assume that it is the disclosure of the fact that the project was being undertaken that has so alarmed the Government. It is unusual to find my right hon. Friend the Member for Chesterfield and me operating together, but, unlike him, I have read the evidence in the New Statesman and I find it a little difficult to know—perhaps I am a little sceptical—what it is all about. But then, I have not had the advantage of being briefed. If I had been, no doubt the Government would have convinced me.
That being so, without casting any aspersions — I daresay that the Government have acted in good faith; I hope so, because it is their responsibility to do so —we have a responsibility in the House to see whether the procedures that have been followed, and which you, Mr. Speaker, had to undertake on this occasion, could be improved.
I appeal to the Leader of the House, and to Conservative Members, who will have more influence with him than I do—as you rightly said, Mr. Speaker, we have not approached the matter from a party point of view —and, indeed, I ask my own Front Bench, from whom I shall probably have an affirmative answer, to support the amendment of my right hon. Friend the Member for Chesterfield.
237 I have served in the House for many years and I want to say seriously to hon. Members that there is a strong case here for the House to look at the matter to see what procedures could be devised that would improve on the present position. It may be that there are none. I have lived long enough and been in office long enough to know that it is impossible to define the exact constitutional relationship between the courts and Parliament. Indeed, it would probably be undesirable to do so. That is not to say that we should not consider these matters from time to time to see whether some improvement can be made. That is a proper job for the Committee of Privileges.
I hope that the Leader of the House will not feel that amour propre is at stake here, that the Government must insist on their motion, and that Conservative Members, and perhaps some Opposition Members, who have not heard the debate will vote as their Whips tell them. I hope that he will tell the House that, on reflection, having listened to the arguments that have been put forward, including the argument of the right hon. Member for Worthing (Mr. Higgins), which it may be possible to dispose of, perhaps tonight— I do not know—there is a good case for looking at the situation which has arisen without precedent as a result of an attempt to show a film. Let us have a look at the matter. No harm will come to the House of Commons if the Committee of Privileges looks at it. That Committee is drawn from senior Members on both sides of the House.
There is nothing more that I want to add tonight. We should give the Government the benefit of the doubt, whatever our party views may be on this question. As we are unable to judge for ourselves, I am willing to give the Government the benefit of the doubt on this matter. There will always be occasions, in the future as in the past, when the Government may know things that cannot be made available. I do not accept the view of my right hon. Friend the Member for Chesterfield that Parliament must on all occasions know everything. It is not possible to conduct our national affairs in that way.
In that spirit, I urge the Leader of the House, and Conservative Members, who will have more influence with the Leader of the House than I, that we should take a little more time to look at the matter. We have a perfectly good Committee to look at it. It may say that it can design no improvement and that we must leave it to Mr. Speaker in future, as has been the case in the past, and you, Mr. Speaker, and your successors will then be burdened with the task. That may be what will happen. But I do not believe that we should commit ourselves to something that will be referred to year after year after you, Mr. Speaker have gone from the Chair, when your successors may not take the same position. We should not be bound by a resolution of the House without considering it further.
§ Mr. Roger Sims (Chislehurst)
I am privileged to follow the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan). If I do not pursue his argument immediately, he may find that my comments on Friday, when I referred to the desirability of not taking a decision in the heat of the moment, chime very much with some of the comments that he has just made.
The debate contains two interwoven strands. One concerns the making of a film and the publishing of an article, the extent to which they posed a threat to national security, whether and how national security was breached 238 and whether in those circumstances the Government should have acted differently. The other strand concerns the rights, usages and privileges, both of the House collectively and of its individual Members. It is to the latter point that I want to address myself.
You had occasion, Mr. Speaker, in the course of recent months, to remind us that next year we shall celebrate the tercentenary of the Bill of Rights, which is the nearest thing that we have to a written constitution. The right hon. Member for Chesterfield (Mr. Benn) has already reminded us of one of its clauses and it does no harm to remind ourselves again. That is:That the Freedom of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.It is clear from "Erskine May" that the definition of "Proceedings in Parlyament" extends beyond the Chamber and embraces the activities of Members of Parliament such as in Select and Standing Committees, tabling questions, and so on, in the course of' their parliamentary duties.
I confess that I was nonplussed by the exchange between my right hon. Friend the Leader of the House and my right hon. Friend the Member for Worthing (Mr. Higgins) about the status of Select Committees. Surely the present position is clear: that if a Select Committee calls for papers or records which are refused, it can come to the House and have a resolution passed. But it can be no defence in calling for papers that they are the subject of an injunction. If they are the subject of an injunction, that is of the High Court, of which this is a higher court. For a document to be the subject of an injunction would not of itself prevent it from being presented to a Select Committee. I really could not see why my right hon. Friend the Leader of the House was not prepared to agree straight away to give the undertaking which he was asked to give by our right hon. Friend the Member for Worthing.
Having been fairly clear in one's mind as to what are proceedings in Parliament which are the subject of privilege, it is clear that other activities may well fall within that definitation. But equally, a private gathering of Members in a room does not constitute proceedings in Parliament, even though that room may well be within this building.
However, as Members of the House we enjoy privileges in another sense. I well remember, shortly after my election to the House nearly 13 years ago, taking a few friends round. I asked one of the security fellows if I could take my guests out on to the Terrace. He said: "Of course, Sir. This is your House." So it is. It is the House of all of us. Indeed, in theory, we can do what we like within the building.
With that power and privilege goes responsibility and none of us should abuse or misuse that power, responsibility and privilege. In any case, of course, the interests of us all are bound by some rules that have been made so that this place can do its business properly. There are rules about the way in which we can book rooms, where we can take strangers and how many people we can take on to the Terrace at any one time. However, there is a relative freedom to use the facilities of this House and that freedom is very important in enabling us to carry out our duties as Members of Parliament.
Last week, we were faced with an unusual and unique set of circumstances. I do not need to repeat them, as they have already been clearly described by my right hon. 239 Friend the Leader of the House. However, it seemed that when you were faced with a situation in which my right hon. and learned Friend the Attorney-General had failed to get an injunction to prevent certain Members of the House from viewing a film which was to be shown within a few minutes, you were then faced with the difficulty, Mr. Speaker, that the judge had said that this was a matter for the House. You found yourself in a dilemma because there was no chance whatsoever of consulting the House so that it could make its collective will known.
Therefore, you took what you described as urgent administrative action, as you had the right to do in your executive capacity as the person responsible for this end of the Palace of Westminster. At the time of making your statement you made it perfectly clear. You said:I gave instructions that nothing should occur to prejudice the position until the House itself had an opportunity to discuss the matter."—[Official Report, 22 January 1987; Vol. 108, c. 1025.]That is precisely what we are doing now.
The grounds on which the injunction was granted against certain people were, among others, those of national security. I understand that the Leader of the Opposition and some of his hon. Friends were briefed on Privy Council terms and accepted that the contents of the film undermined national security and that they made it clear that they supported your decision. You have not said, Mr. Speaker, whether you had a similar briefing, but clearly you would have been entitled to one as a Privy Councillor, and it would be perfectly proper if you had had one.
Faced with that situation, Mr. Speaker, I believe that you were absolutely right to make the order that you did. It has been referred to in some quarters as a ruling, but I think that that confuses it with some of the rulings that you make in the House. It was an order made in your administrative capacity.
The fact that some hon. Members subsequently watched the film elsewhere is immaterial. Your powers, Mr. Speaker, and those of the House are confined to this building. That the contents of the film were subsequently published despite the injunction, does not alter the correctness of your decision. However, it seems to point to a weakness in the law about injunctions. I am not a lawyer, but as I understand it, an injunction in cases such as this normally has to apply in respect of certain named persons or bodies and has no impact on anybody else.
Common sense would suggest that, in a case like this, where there is a possible danger to national security if certain material is disclosed to unauthorised persons or if it is publicised in any form, it should be possible to obtain an injunction covering the material and its publication or its disclosure by anybody, rather than specifying possible outlets. I hope that my right hon. and learned Friend the Solicitor-General will comment on whether he feels that there is a case for a revision of the law in this respect.
Reverting to the immediate issue that concerns the House, I believe that you, Mr. Speaker, were right to take the decision that you did, and as the injunction that was obtained is still in effect, the prohibition should remain in force. The fact that some people have got around the injunction does not alter that.
My inclination is to support the Government's motion, but I have to say that, like right hon. and hon. Members 240 on both sides of the House, I am concerned about the implications for the future of the wording of the motion. It appears to apply only to this film, and to the present incident and no other. Therefore, I seek clarification of the effect of the motion. Does it create a precedent and does it lay down guidelines that will bind the House and future Speakers?
The Leader of the House said that he felt that each matter of this sort should be dealt with as it arose, but I am not sure that the form of words that he used made it entirely clear that this did not create a precedent. It is not difficult to imagine circumstances in which a Government might seek to curtail the activities of Members of Parliament by claiming that circumstances had arisen that were similar to those of last week. That Government might quote this decision as a precedent. It would be especially difficult if the circumstances were very similar in that the Speaker of the day had to act without consulting the House.
Therefore, I hope that it can be clearly on record, in unequivocal terms, that the motion in the name of the Leader of the House does not create a precedent.
§ Mr. Sims
I hope also that the House will consider the decision in isolation. If that is not possible—it may well not be possible — I can see some attractions in the manuscript amendment. My reservations about it are that, although it serves the purpose that I sought to raise on Friday, this matter should be considered carefully before any definite decision is reached, it has the defect that the rest of the main motion would then fall, including those words that support Mr. Speaker's decision last week. It is important that we should do that, regardless of what else we do.
Parliamentary privileges, as defined in the Bill of Rights, and our rights as Members of Parliament must be exercised responsibly. However, they must also be guarded jealously. They have been so guarded by our predecessors and it is imperative that nothing that we do today should in any way diminish those rights and privileges.
§ Mr. W. Benyon (Milton Keynes)
On a point of order, Mr. Speaker. I seek clarification of a matter which is worrying many hon. Members and which has been referred to by my hon. Friend the Member for Chislehurst (Mr. Sims). If the House were to pass the manuscript amendment, does that mean that your prohibition would remain in force for the length of the injunction or until the House has reconsidered the matter, whichever is the earlier?
§ Mr. Speaker
I think that would mean that my prohibition would remain in force until the Select Committee had reported
§ Mr. Archie Kirkwood (Roxburgh and Berwickshire)
That point of order is useful because the hon. Member for Chislehurst (Mr. Sims) was obviously agonising over that issue, as were other hon. Members, including me.
Like the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan), I come to today's debate prepared to consider that we were dealing with a very restricted situation. The meaning of the phrase "proceedings of the House" is not normally understood to cover the showing of films in Committee Rooms and 241 injunctions relating to specific security issues, and I thought that that was such an unusual combination of circumstances that there would be no danger for future occasions in accepting the ruling as it stands.
I have listened carefully to the interesting and valuable debate and have come to the conclusion that the motion moved by the right hon. Member for Chesterfield (Mr. Benn) is right. I shall advise my right hon. and hon. Friends to support that amendment as a first step in the voting proceedings later this evening.
It is of no comfort to me that the House is in this difficult constitutional predicament. Nor is it of any comfort to me that you, Mr. Speaker, were put in the predicament you were last week when you prevented the BBC film from being shown. The hon. Member for Woking (Mr. Onslow) was right—I booked a room to show the film last week and I was to receive a copy of the video cassette for that purpose. At that stage, the only prohibition extant was that issued by the BBC.
I took the view that it was an important part of my duty, as an hon. Member, to scrutinise actions of the Executive which had potentially far-reaching effects and severe financial implications. I did not intend to disseminate anything that I saw. When the High Court injunction came along, and when you issued your instruction, Mr. Speaker, that changed things substantially. I believe that your decision was correct on the basis of the circumstances and the information available to you at the time.
§ Mr. Onslow
Is the hon. Gentleman saying that when he cancelled his booking of the room he was aware of your ruling, Mr. Speaker, or did the ruling come after the hon. Gentleman's decision not to proceed with the booking?
§ Mr. Kirkwood
From memory, I think that I withdrew the booking after the High Court injunction and Mr. Speaker's instruction. I think that that was the proper course of action.
§ Mr. Robin Cook
The hon. Gentleman cancelled his booking on the previous night. Your direction, Mr. Speaker, did not take place until 10.30 the next morning.
§ Mr. Kirkwood
I do not want to make a meal of that as I do not think that it is very relevant. I should, however, like to make it clear that when there is any risk of endangering national security I hope that the whole House agrees that we should want to err on the side of safety or, as the right hon. Member for Cardiff, South and Penarth said, to give the Government the benefit of the doubt.
Today, however, we might inadvertently be consenting to the establishment of far-reaching parliamentary precedents. That being so, the proper course of action is that proposed by the right hon. Member for Chesterfield. There is clearly a category of information which must in all circumstances remain confidential, secret or outwith public knowledge. I hope that the whole House accepts that. How has that principle been implemented in this case? I put it to the Government—in sorrow rather than in anger — that successive Governments, but especially the present Government, appear to have been obsessed by the need to keep everything secret. It is the old so-called section 2 syndrome. The House has only to consider what 242 has been written in the Daily Telegraph and The Mail on Sunday and to read comments made by the general secretary of the First Division Association to realise that.
If Government policy is so obsessive that it tempts civil servants to question what is being withheld because everything is withheld, the Government will inevitably be the author of their own misfortunes. I am a dedicated advocate of a much freer and more open system of government. Closed and secret administration is detrimental to a properly run democracy. It is also less efficient. A system which has a clear dividing line between what should be confidential and what can help shape and inform public debate would command more public respect and be more likely to work because those who work in it and those who report on it would be much clearer about how far they could legitimately go in releasing information.
Where does the dividing line lie? Having studied all the information that has now been made available about the Duncan Campbell film — I must confess that I am untutored when it comes to signal intelligence satellites — I do not believe that the film prejudiced national security. I cannot commit my right hon. and hon. Friends because they have not seen the film. It seems reasonable, however, that the Government should monitor communications of potentially hostile Governments and international terrorist groups. It is public knowledge that we have a network of ground-based listening stations feeding through to GCHQ. The fact that we are considering similar facilities in space seems logically unexceptional. Moreover, the existence and purpose of any proposed satellites are, I believe, already known to any potential foe.
The fact that signal intelligence satellites exist should be made known to the House or, if that goes too far, to its representatives. I make a clear distinction, however, between the existence and purpose of such satellites and details about their functional capacity, electronic hardware, software and technical specifications, which are obviously highly sensitive and should in no circumstances be revealed publicly or even privately to hon. Members or their representatives.
The major projects statement to the Public Accounts Committee is a system which is supposed to provide protection against abuse. Whatever else comes out of this affair, Mr. Campbell has done the House a service by exposing the inadequacy of that system. If a decision has been made in principle to launch a signals intelligence satellite in a geostatic orbit at 53 deg E, the launch costs and off-the-shelf hardware from America alone must cost about £250 million. If projects such as Zircon can be developed to any stage without the Public Accounts Committee being notified, the present system of scrutiny must be changed.
It is clear that we are in a mess. The line of attack. if attack is the right word, that the Official Opposition have taken is strange. They seem to be accusing the Government of not being patriotic enough. They have accused the Government of being incompetent, which is clearly true, but they have taken a strange and, I believe, wrong tack. We have ended up with the worst possible outcome, mainly because of the Government's incompetence. Everybody is now running for political cover.
Precious little attention is being given to what can be salvaged. It is in the national interest to try to redress any damage that has been done and to try to do better in 243 future. We now know the facts and circumstances surrounding the Government's decision, as they have been made public through the New Statesman. I believe that the Government want to prevent the film from being shown so that we do not discover how innocuous it is. I suspect that they are afraid to show the film because any viewer would be staggered at the Government making such a colossal mountain out of a security molehill. The Government must come clean and allow the Select Committee on Defence access to the film, even if the PAC cannot see it. If the Government do not do that, I shall remain convinced that they are afraid to show the film.
§ Mr. Kirkwood
I do not think it right to leave absolutely unfettered discretion about what is or is not secret to the Government or their servants in the Ministry of Defence or at GCHQ. Still less do I think it right to leave the decision to the BBC, to Mr. Duncan Campbell, to the editor of the New Statesman or to any combination of those. In our view, a committee of senior Privy Councillors drawn from the House should be given the task of vetting at the planning stage all defence, surveillance and security projects which are being planned and which will cost more than, say, £20 million to £50 million in total end cost. That committee could then confirm the extent to which the projects should remain secret and the amount of detail that should go into the major projects statement to be scrutinised by the Public Accounts Committee from a financial point of view. That will take the members of that committee inside a curtain of secrecy, but there is no other way to prevent damaging predicaments such as this from recurring in the future.
The Government must urgently review their present predilection for obsessive secrecy. They have given the word a bad name. They must also accept some element of independent scrutiny to guarantee that in future the true interests of national security are not confused with mere party political embarrassment.
§ Mr. Churchill (Davyhulme)
I rise, Mr. Speaker, to endorse your order to prohibit certain of the more irresponsible Members of the Opposition from aiding and abetting a Left-wing journalist determined to circumvent a High Court injunction which prohibited the showing of the film on the ground of national security. That journalist, Mr. Duncan Campbell, under contract to the BBC, removed the film from the BBC whose property and copyright it is, without its authority. He refused the BBC's requests to return it. He caused or allowed illegal copies of it to be made. It is a matter for concern that Members of the Opposition should make themselves accomplices to such acts of illegality.
A caveat must be entered about the motion on the Order Paper. It would be wrong for a duly constituted Select Committee of the House, a Committee which has responsibility for overseeing a given Department of Government, to be covered by any High Court injunction, or indeed by such an order as you have made, Mr. Speaker. The Select Committee on Defence, like other departmental Select Committees, has power to send for persons, papers and records, and provided that the BBC 244 was willing to meet a request from such a Select Committee, as I believe it was last week, there would have been no requirement for a motion in this House.
If we pass this motion tonight, that situation will be changed. We would have to arrange for a meeting of the Select Committee on Defence, if we wished to view the film, to be held in another place or outside the Palace of Westminster. Alternatively, we would have to seek the leave of the House, Mr. Speaker, to have your order lifted in the case of our Select Committee. Either course would represent a restriction of the rights and freedoms enjoyed by the Select Committee as it is at present constituted.
I would be loth to see the rights of Select Committees curbed in this way. I hope that the Government will either accept the amendment in the name of my right hon. Friend the Member for Worthing (Mr. Higgins) or make it clear that the motion tonight does not, and is not intended to, restrict the powers of Select Committees. If we fail to do that, we may be in danger of making a decision that we would subsequently regret.
§ Mr. John Morris
Does the hon. Gentleman realise that the effect of accepting the amendment of the right hon. Member for Worthing (Mr. Higgins) would be to ensure that any Select Committee which wished to do so would be able to see the film in question—and, of course, any Member can, if he so wishes, attend the meetings of any Select Committee?
§ Mr. Churchill
I appreciate that. Indeed, the manuscript amendment is not entirely satisfactory either, because it does nothing to keep in force the prohibition of Mr. Speaker while the matter is referred to the Committee of Privileges.
While welcoming the decision of the Director-General of the BBC not to screen one film out of the series of six made by Mr. Duncan Campbell, on the ground of national security, I must point out that the BBC has no one but itself to blame for the situation in which it finds itself. We are entitled to ask what business the BBC thinks it has to hire a Left-wing political activist, a man who already has a criminal conviction on matters of national security, and give him a six-figure budget to produce half a dozen programmes on matters dear to his heart — sensitive matters of national security. It is one thing for the BBC to invite Mr. Campbell or anyone else to participate in such a programme, but to elevate him to the status of ringmaster in a Left-wing circus represents a flagrant abuse of licence-payers' money and flies squarely in the face of the corporation's duty to provide political balance.
§ Mr. Churchill
It is no use the BBC claiming that the Left—wing bias of Mr. Campbell would be balanced by other participants. It is the conception, the treatment and the control of such material in its production and editing phases that is all-important.
§ Mr. Churchill
I will, in a minute. A particularly sinister aspect of this business is the way in which the good name of the BBC—such as it is—should be abused by inviting former Ministers, former Prime Ministers, permanent secretaries at the Ministry of Defence, Government chief scientists and others to take part in a programme which they would imagine was being made in-house by the BBC, with the normal constraints of balance required by the 245 BBC, when, in fact, this was a totally different situation, with the programme being inspired and directed by someone on the far Left of British politics.
§ Mr. Heffer
Does the hon. Gentleman realise that he is now on extremely dangerous ground, especially if we remind him that his grandfather—and it is all on the record—received information about the security of this country, about the Army, the Royal Air Force and the Navy, from civil servants and, quite rightly in my opinion, raised these matters in the House in the interests of the country? If it was good enough for his grandfather, is it not good enough for other people to be prepared, if they think it in the interests of the nation, to do something similar?
§ Mr. Churchill
I shall not withdraw. The hon. Member for Liverpool, Walton (Mr. Heffer) makes a fair point when he says that the late Sir Winston Churchill in the 1930s received certain information which he brought to the attention of the House in the interests of national defence. I defy anyone to say that it is in the interests of national defence to seek to put in the public domain national intelligence and defence secrets which are of interest to a potential enemy.
§ Mr. Churchill
One of the least lovely aspects of this whole affair is the glee with which certain elements on the Opposition Benches seek to do the work of the enemies of this country by trying to expose the defence and intelligence secrets of our nation. These are antics which, if repeated in the Soviet Union—with which certain Opposition Members seem to think we should be in alliance, rather than with the United States—would earn them 20 years down a salt mine. These elements are intent on undermining the forces of democracy. The Prime Minister has rightly said that these are people who seek to use our freedoms in order to destroy them. The Opposition will make a cardinal error if they believe that people in the country at large want our national secrets uncovered.
§ Mr. Allan Rogers
The hon. Gentleman may cast aspersions on Opposition Members, but does he remember that the biggest spies in British history were members of his class who went to the same public school, spies such as Burgess, Maclean, Philby and all the others? If he wants to look for traitors in this country he should look to his own party, to his own class, and to his own school.
§ Mr. Churchill
The hon. Gentleman makes a mistake if he believes that they were members of my party, and I did not go to Harrow, nor did I go to Cambridge. I believe that the Government were right to seek a High Court injunction to prevent this film being shown. You, Mr. Speaker, were right in giving time to the House to reflect on the position by preventing the High Court injunction from being circumvented by certain irresponsible people in this House. In our eagerness to support your position, Mr. Speaker, and that of the Government, we must not do anything that might detract in any way from the established rights and freedoms of Select Committees. I 246 hope that my right hon. and learned Friend, in winding up the debate, will be able to give the House some positive assurance in this respect.
§ Mr. Robert Sheldon (Ashton-under-Lyne)
Therehave been a number of misconceptions and a certain amount of confusion. A shall try to put into proper perspective the role of the Public Accounts Committee and my role as Chairman so that people can see the kinds of decisions that we make and the reasons why we make them.
A large part of the Committee's work is involved with the Ministry of Defence because that Department is engaged in very large projects which frequently overrun and overspend. Many of the projects also tend to be a little speculative when they first begin. They are at the frontiers of the state of their particular art, so we spend a little time on them. We ask fairly straightforward questions. We want to know when they are expected to be working, how much they will cost and what the objectives are. We insist on a large degree of monitoring to see how the projects are going and how the money is being spent at each stage of development as the project goes along. Finally, we want to compare the objective with the outcome and the achievements at the end of it all.
Since becoming Chairman of the Public Accounts Committee in 1983 I have been much concerned with the question how to deal with the many secret projects which come before the Committee. One of my early tasks was to satisfy myself by frequent references to the Chevaline case that the lessons had been learnt and that the rules were being observed. I gave many talks on public accounts matters in which I always included the Chevaline lessons because they needed to be absorbed. The Chevaline programme was an improvement to the Polaris missile system which involved extremely heavy expenditure by successive Governments, but for over a decade the House was kept totally in the dark. The programme was finally brought to light in 1980 and the Public Accounts Committee investigated and reported its conclusions in its ninth report of Session 1981–2.
As a result of that experience, it was agreed that the Ministry of Defence would have a major project statement covering every project in excess of £250 million for the lifetime of the project at the time it was begun. There are about 50 such projects. We monitor them, look at them and record their progress. This has been going on for quite some time. We are able to look at the extent of cost overruns, performance criteria and how far they are met.
When the Public Accounts Committee met it took into account a report by the Comptroller and Auditor General. In the ninth report of the Committee of Public Accounts 1981/82, page 29 paragraph 12, the Comptroller and Auditor General said:it is possible to envisage circumstances in which a Government department might argue that some important information should not be reported to Parliament by C and AG or even disclosed to the Public Accounts Committee for the reasons or on the grounds that to do so would be damaging to the national interest. In such circumstances it would be likely that the C and AG would wish to consult the Chairman of the Public Accounts Committee about the handling of such material if other considerations pointed to report.These are good rules. They can be changed and they can be considered inadequate to meet the circumstances, but these are the rules. I wanted to explain how far these rules, 247 as we understood them, have been met. What are the rules? Projects of more than £250 million are reported to Committee. No highly classified project, other than the one that came before the Public Accounts Committee, has ever come before me previously. Other aspects of expenditure, such as expenditures that are seriously in excess of estimate, are reported to Committee. If a project is much less than £250 million and is going badly or something is wrong, or if there is some procedural difficulty, it will come before the Public Accounts Committee.
If I was convinced at any time—and I thought of this constantly—that a project had a high classification, I would ask how should I react. Given that kind of responsibility, I can inform the Committee. Obviously, this is the best way to proceed if a project meets other objectives. The Committee has a wide range of experience and a certain healthy scepticism from seeing many dubious projects. We have well-attended meetings and there is a great deal of report reading to be done. We had 52 reports last year, which was a great burden on the Committee. I pay tribute to the hard and dedicated work done by all members of the Committee.
It is very different from my younger days, 20-odd years ago, when I was a member of that Committee and when it was regarded as a sentence that had to be endured. Today there is positive enthusiasm, which I welcome and am grateful for. That is the best way to handle it. There are other matters that might come before the committee where this might not be possible. If matters involving secrecy and highly sensitive classification came before me, I would need to make the inquiries that the Public Accounts Committee would make if it was in session.
The Public Accounts Committee checks first on certification. Once a contractor has a secret project and he knows it is not going to come before the Public Accounts Committee and there is no danger of exposure, he is at Liberty hall. He is able to put on his prices much more easily than if it is a project that sees the light of day very readily. I have to take that into account. So I have to check on certification. Normally we do not spend much time on it, but we have to make sure that the money has gone to the right people for the right projects. At the outset, when the Public Accounts Committee was set up it had to do just that.
In more recent years we have had a greater concern—value for money. We have to make sure that we get economy, efficiency and effectiveness. The economy aspect is fairly straightforward. We want to see that something has been bought for the least money. In a project of the kind that we have been discusing today we would want to make sure that subcontractors had been selected and that they had obtained whatever was necessary for the least amount of money.
A little more difficult is efficiency. We want to know that the best system has been obtained for the money provided. If it costs a little more to get something extra, we would want to make sure that that was the one that was chosen eventually. Effectiveness is the most difficult. We have to make sure that the proposed way is the right way to achieve the objective that the Ministry has in mind.
There have always been ways whereby expenditure has been concealed from Parliament. That should come as no surprise to anybody. As Financial Secretary to the 248 Treasury I knew of expedients that had been used for years by Defence Secretaries to meet demands for cuts in expenditure which were readily agreed but which, by the use of various strategems, were frequently avoided. I was aware of the trickle feeding of expenditure so that large projects were not properly identified because the money was spent in dribs and drabs. I was aware, too, of the way that Votes could be divided to avoid unwelcome sums appearing. Then there has always been the problem of teeming and lading whereby advancing or delaying the payment of invoices at the end of the financial year could conceal the continuation of spending plans. All those are among the expedients which have been used in the past. So I came to the job with a scepticism that was alive and inquisitive.
The position now is different from the time of Chevaline. We now have the National Audit Act 1983 and the National Audit Office. The Comptroller and Auditor General is now an officer of this House, just as the Clerks of the House, the Serjeant at Arms and the Library staff are. After all, that is what Gladstone intended. The Comptroller and Auditor-General is not chosen by civil servants but chosen jointly by the Prime Minister and the chairman of the Public Accounts Committee. He has the staff of the National Audit Office, 900 of them, who operate from within Departments of State checking on expenditure, including expenditure of the highest specification.
In addition, the Comptroller and Auditor General's very auditing function sets him aside from the Government machine, as it has always done. Any auditor requires a certain amount of aloofness or detachment from the activities that he is investigating. The Comptroller and Auditor General has frequently been highly critical of Departments. The changes in his role arising from the National Audit Act go further. He now produces reports to Parliament and the green covers are the result of a painstaking investigation of Government Departments on behalf of all of us. We have, I believe, in Sir Gordon Downey a notable public servant. What is more, much more, he is a servant and an Officer of this House. He acknowledges it, takes pride in it and sustains this role with ability and integrity.
As I said before, no notification of any highly classified expenditure has previously been presented to me. When would it have come before me? It would have come after Treasury sanction had been given and when it was in the Estimates. That is what I assumed. I would be notified as soon as the decision had been made, whether in Cabinet, in Cabinet committee or elsewhere. The amount of £250 million is the amount over the lifetime of a project. So if a Department is only beginning the project but has made the decision to start, I should be notified because the expenditure would be £250 million.
§ Mr. Campbell-Savours
Will my right hon. Friend clarify one point for the House so that my hon. Friends understand it clearly? It is that accountability to Parliament on these highly secret projects is not accountability to the Floor; it is not accountability to the Public Accounts Committee; it is accountability to my right hon. Friend himself. It is my right hon. Friend himself who has the specific role of examining these matters and other members of the Committee are precluded from doing so.
249 Secondly, does not my right hon. Friend accept also that when the Comptroller and Auditor General decides what projects are brought before him, and invariably him alone on these matters, he is not required to decide whether it is a £250 million-plus project or a £10 million project, which is the lower sum which my right hon. Friend need not have referred to him under the system of drip feed on secret contracts? My right hon. Friend simply has to decide, irrespective of the volume or value of the contract, whether he thinks he would otherwise be reporting to Parliament. Does not that place upon him a great responsibility? That is at the very heart of the argument of Duncan Campbell.
§ Mr. Sheldon
Of course there is a great responsibility on me, but we have a choice of how we deal with highly classified projects. If a matter of such high classification is to go before the whole Public Accounts Committee there are obvious dangers. I have put it before the Committee, and the Committee has accepted, that there may be cases—no case has come to me yet—which will have to be dealt with in the way that I have described. There is no other way. If this were not possible, then I doubt very much if I would hear anything about them. That is an essential and necessary condition. I think that it is reasonable.
The only thing that concerns me is to ensure that I am given such information. I have to make the best judgment. The judgment I have made is that no decision has been made on this project. That is why it did not come before me.
Perhaps I may tell the House of how I first knew of the project. Then I will say what happened after that.
§ Sir Ian Lloyd (Havant)
The right hon. Gentleman has been most helpful to the House, and I am extremely interested in what he has been saying. But there seems to be a fundamental dilemma. What is the position when a project in excess of £250 million is of such great secrecy and moment that the mere disclosure of its existence by anything other than a code name is possibly of the greatest interest to enemies of the State. What is the position in those circumstances?
§ Mr. Sheldon
I think that I have mentioned that; it would come before me and it would be left to me to decide how I handled it. If an amount in excess of £250 million were involved, the project would automatically come before me.
Perhaps I may deal with the way in which this was first disclosed to me. Last September I was asked to take part in a television programme dealing with secrecy in government. I had appeared in a number of discussions, programmes and seminars at various times, and I assumed that this would form part of a pattern with which I was familiar. When I discovered that the programme dealt with this project I brought my participation to a close.
I had no previous knowledge of the project, even though I understood the way in which these matters would normally be relayed to me. On inquiry to the Comptroller and Auditor General I learnt that this was a highly classified project on which the only money spent had been on project definition. There was no commitment to proceed and therefore no programme expenditure had been committed.
After this, there followed a number of inquiries on my part—very exhaustive inquiries; I must convince the 250 House of that—to assure myself that this was the case. I have reason to believe that everything that I am putting to the House is fact. I have mentioned the steps that I have taken previously to assure myself about the promptness of information to me if a decision to proceed was made.
On the different aspect of secrecy, what surprises me, as it must surprise any hon. Member, is why no action was taken earlier. The matter dates back to the middle of October. Matters were known, and I assumed that my involvement would not be required because action elsewhere was obviously going to be taken.
The general point is that the problem with secrecy is that if too many matters are made secret, the currency of secrets is debased. Secrecy is used to avoid political embarrassment to Ministers far more frequently now than it used to be. It conceals matters which need to be kept out of the public view. Certain matters must obviously be kept from the public view. However, so often a civil servant's brief is to ensure that by concealing matters the Minister's appearance at the Dispatch Box is more effective than would otherwise have been the case.
There tend to be more disaffected civil servants now and fewer civil servants are prepared to be used in that way. The danger is that a barrier may exist between important secrets and convenient secrets. That is an important barrier because important secrets are important and need to be kept secret. The barrier must be redefined to ensure proper security to which I believe we are all entitled.
§ Mr. Ivor Stanbrook (Orpington)
There are many important issues to be considered in the course of the debate. However, they are simple issues. The allegation made by the originator of the film and the article was that Parliament was, by implication, being kept unconstitutionally and unlawfully in the dark about the project. No one who heard the remarks made by the right hon. Member for Ashton-under-Lyne (Mr. Sheldon). the Chairman of the Public Accounts Committee, could sustain that argument any longer.
An allegation was also made that the film was not prejudicial to national security. In response to that, we have the authority no less than that of the Leader of the Opposition. That is probably the best possible authority in the view of Tory Members.
Hon. Members have asked why the film was not prohibited earlier.
§ Mr. McNamara
Is the hon. Gentleman convinced that my right hon. Friend the Leader of the Opposition has seen the film?
§ Mr. McNamara
Does the hon. Gentleman believe that my right hon. Friend the Leader of the Opposition has seen the film?
§ Mr. Stanbrook
All we know is what we have read in the newspapers. The reports have not been denied by the Leader of the Opposition. I would have supposed that he would deny what was attributed to him if it was untrue. It was said that the right hon. Gentleman agreed that this was a matter of national security which should not be revealed. It would be interesting to know whether any 251 Opposition Member who has seen the film wishes to proclaim publicly that the film is proper material to be shown and not a matter of national security.
§ Mr. Stanbrook
No, I am sorry. I have dealt with that point.
Why was the film not prohibited earlier? There are legal difficulties involved, which I can appreciate. It appears that the film was at least partly the property of Mr. Duncan Campbell and he was the originator of the article or at least supplied the information. He had a proprietorial interest.
An injunction was rightly directed against Mr. Campbell, his servants or agents. However, that injunction apparently did not apply against the New Statesman. We do not know whether the New Statesman had knowledge of the injunction, but it cannot be said to be Mr. Campbell's servant or agent or acting under his instruction. That is one of the aspects of the case that deserves fuller consideration.
An injunction obtained against a potential leaker of national security secrets should be effective not only against the original perpetrator but against all those who might carry out his purpose in leaking state secrets with knowledge of the injunction. As I understand it, to be effective at present an injunction to restrain the leakage of a state secret must be taken out against each and every potential publisher. There must also be evidence of his intention. That is too much to expect the Law Officers' Department to achieve. I hope, therefore, that the Government will now act swiftly to fill that gap in the law and so prevent a recurrence of this disaster—because that is what I believe it to be. In a matter of top national security it should be possible, when an injunction has been taken out, for a copy to be served upon all those who might be considered liable and willing to publish. That notice should be sufficient to deter publication.
Another argument that has been raised is that if the article has been published already, why bother to stop its general publication? That argument betrays a naivety about national security which should not be acceptable. The answer is that national security is too important a subject to be broadcast in that way. The importance of the document is a matter for the judgment of people who are better qualified in these matters than I. However, I accept that leaks should be minimised even after they have occurred in one form, channel or newspaper.
The aspect of the case that interests me most as a constitutional lawyer is that revealed by Mr. Speaker's ruling. I was a little unhappy when I first read the motion before the House. I thought it meant that the House was being asked to deny to itself one of its most cherished privileges—the right to regulate its affairs without interference from the courts. On closer examination, I found that the motion renounces that right only in respect of a specific matter covered by a particular injunction. It is certainly right and proper for the House as a whole to decide not to assert its undoubted privilege in a particular case for as long as the injunction remains in effect. That is the traditional practice. It is the custom of the House not to act contrary to a matter that is the subject of an injunction by the High Court, not because it must or because constitutionally it is bound, but because good 252 government is achieved in that way. An injunction issued by the High Court, especially in a matter of national security, is something which the House would not want to challenge.
The traditional practice has been followed hitherto and should be followed in specific cases when the House knows what it is doing. No question of a precedent therefore arises, because each individual case would have to be judged on its merits. However, the actions of the House in a corporate capacity differs from the actions of individual Members who may choose to act in their own interests. As the right hon. Member for Ashton-under-Lyne said, hon. Members may choose to act in pursuance of their duty to inform themselves on behalf of their constituents on any matter without the consent of the House. That is an entirely different matter.
§ Mr. Stanbrook
If the hon. Gentleman wishes to challenge my understanding of the law, I hope that he will make it on that ground. I suggest that the traditional practices that have been observed hitherto should be followed, and that the procedure that we are invited to adopt this evening is perfectly correct and in accordance with precedent.
The High Court may properly enjoin an hon. Member or a collection of hon. Members not to act unlawfully. It is the privilege of individual hon. Members of the House of Commons—.
§ Mr. Stanbrook
Individual Members, or a number of Members acting in their individual capacities and not as the House of Commons, have privilege applying to everything they say in the Chamber. They do not have that privilege outside this Chamber. If an hon. Member or a group of hon. Members wish to show a film which is the subject of an injunction and wished to view it by arrangement with, for example, a local cinema, I think that they could properly be restrained from doing so by the High Court. That answers the question posed by my right hon. Friend the Member for Worthing (Mr. Higgins). If his Committee sought to see the film outside the precincts of the House, it could be covered by a High Court injunction. The Committee would not be entitled to claim parliamentary privilege, because its members would be outside the House.
§ Mr. Patrick Cormack (Staffordshire, South)
On the contrary, if the Select Committee was meeting officially it would be able to view it, because a Select Committee of this House can convene in any place.
§ Mr. Stanbrook
That is a matter of constitutional law. My opinion is that it could not, but that is a matter of opinion. Showing the film within the jurisdiction of the House of Commons is an entirely different matter. The privilege is that of the whole House. If the House wishes to see the film mentioned in the motion, or wishes to allow all or any of its Members to see it within the precincts of the House, it can do so properly and lawfully despite any High Court injunction.
Over the centuries the House of Commons has never exercised its power arbitrarily in this way. Mr. Justice Kennedy was acting wisely and constitutionally when he refused an injunction against individual Members who 253 wished to see the film on Thursday. He was right to say that if the hon. Members concerned wished to see it, it was a matter for decision by the House itself, and he refused to exercise his jurisdiction. Had he done so, it might well have raised an important constitutional issue. He put the ball back into our court.
It is for the whole House to decide whether to act contrary to an injunction. It is not within the power of any one or more hon. Members to assert a privilege which belongs to the House as a whole. Therefore, Mr. Speaker's action in ruling against the showing of the film presented the House with this opportunity to decide the matter, and it is wholly within the jurisdiction of the House to do so. I entirely agree with the course taken by Mr. Speaker, because it was the proper course.
My right hon. Friend the Member for Worthing has tabled an amendment to the motion which suggests that the motiondoes nothing that might impair the rights of Select Committees.In one way that is acceptable because the position will be the same tomorrow as it was yesterday. Of course, that cannot mean that if the House passes this motion amended in that way a Select Committee could disregard a resolution of the whole House. Every Select Committee is subject to the will of this House and derives its authority from the House. The Standing Orders give them their powers and responsibilities. If this House says, as it will purport to do if this motion is passed, that this film shall not be seen—
§ Mr. Stanbrook
—it must follow that the Select Committee which is to see it may not see it, because to do so would be contrary to the rules of the House. My right hon. Friend's amendment is a non sequitur. That view was reinforced by the right hon. and learned Member for Aberavon (Mr. Morris) who speaks for the Opposition on legal matters. He said that the effect of the amendment would be to cancel all that has gone before.
§ Sir Kenneth Lewis (Stamford and Spalding)
I listened with care to my right hon. Friend the Leader of the House. On more than one occasion he sought quite firmly to give the impression that, notwithstanding the fact that the House as a whole, if it votes in a certain way, would not see this film, a Select Committee could still do so. My hon. Friend the Member for Orpington (Mr. Stanbrook) is arguing the opposite.
§ Mr. Stanbrook
I did not get the impression that the Leader of the House gave such a reply. I think he said— if he took my advice, but I am quite sure that he did not—that the position remains the same, and that Select Committees have the rights conferred on them by Standing Orders in accordance with the practice of the House. If that includes the right of this House to determine its own procedures and behaviour, and if a resolution of the House were to say that something shall not be done, it is not open to the members of a Select Committee to say that it shall be done by them.
Finally, I shall refer to the manuscript amendment tabled by the right hon. Member for Chesterfield (Mr. Benn). It is quite wrong to assume that this is an honourable and proper way out of the problem before us, because the effect of adopting that amendment which 254 cancels all the rest would be to say that Mr. Speaker's authority, which was exerted for a special purpose and for a limited time and had temporary effect, shall remain and that the House itself shall not make a decision on the matter until after a comparatively lengthy reference to the Select Committee on Privileges. That process could take a considerable time.
§ Mr. Cormack
Surely the House is best served in these important matters by the Select Committee of Privileges. To refer the matter to that Committee is to refer it to the House's appointed custodian of these matters.
§ Mr. Stanbrook
Which has the better authority to speak on behalf of the House—the House itself, or one of its Committees?
§ Mr. Stanbrook
I agree on the matter of whether the House should automatically as a matter of custom comply with a High Court injunction. That cannot be questioned. The extent of the House's privilege in that respect is a proper matter to be referred to the Committee of Privileges. To say that this specific, urgent and important issue should not be decided here and now by the House is wrong. By all means let the Committee of Privileges be asked to look at this general question, but we must not give it the authority that we possess to make a decision on this matter. For those reasons, we should pass the motion unamended.
§ Mr. J. Enoch Powell (South Down)
I am sorry that this motion has been placed before the House in its present terms, and I hope that the House will refrain from converting it into a resolution but will resort to passing the written amendment referred to at an earlier stage and make use of the advice that ought to be sought upon a profound matter of this kind from the Select Committee of Privileges which the House has for that very purpose.
The motion, as it stands on the Order Paper, raises at least three separate though interconnected matters of grave concern and constitutional importance. I want to refer to them briefly. The first is that it assumes that the precincts of the House enjoy total immunity and privilege. If that were not the assumption made by the Government, the motion would be quite unnecessary and nugatory. It assumes, in other words, that an act which is unlawful outside the precincts of this House is lawful or, at any rate, immune from legal proceedings, if it takes place inside the precincts.
There is no question whatsoever as to the absolute privilege which is enjoyed by the House when it is going about its business. The House as a House and the Committees of the House sitting as Committees of the House enjoy and must enjoy total and absolute privilege: nothing which is done or said in them can be called in question in any other place. That is not open to discussion or to dispute. It is a principle which every hon. Member of this House would defend. We extend it, however, to an exorbitant degree when we say that just because something is said or done in the precincts of this House it ought to be deemed to be covered by the same absolute privilege and immunity from legal process.
We enjoy the privileges which we have in order to exercise them on behalf of those whom we represent. I cannot believe that it could be in the interests of the public 255 that acts which have been properly declared unlawful if committed at large could be committed within the precincts of the House under cover of a kind of penumbra of privilege supposedly diffused from the Chamber itself. The motion, therefore, and the assumption which underlies it, confuse the House and its proceedings with the premises in part of which the House conducts those proceedings. I believe that that is a matter which ought to be clearly established.
A reference which was made by the right hon. Member for Chesterfield (Mr. Benn), in a very important earlier contribution to this debate, confirms me in what I am saying. When the right hon. Gentleman was looking for an instance of privilege enjoyed outside the Chamber and outside the proceedings of the House, he mentioned the communication with which the Sandys case was concerned. That was a communication which was made right away from the precincts of the House, but was caught because, in the view of the House, it bore upon the proceedings of the House, because there a proceeding of the House was involved—the tabling of a written question—and the House decided on that occasion that its privileges were involved and ought to be defended.
The second problematic matter which this motion raises is that, having assumed that an injunction and the powers of the courts are ousted in the precincts of the Palace of Westminster, the Government proceed to eliminate that privilege in a specific context and for a specific purpose. They want to pass a resolution to say, "Nevertheless, although an injunction does not have effect in the precincts of the House, such and such things prohibited by an injunction shall not be done in the precincts of the House."
It seems to me a very grave matter, where there exists a privilege of this House, if the House, by resolution, should make exemptions from it. It is of the essence of privilege that we all enjoy it and that we all enjoy it without exemption.
One often hears references to privilege being abused bat, of course, privilege is not used unless it is abused. The hon. Member who uses his privilege to say in this House things which he could not say outside it and which perhaps no one else in this House wants him to say is using his essential privilege. If once we begin to say that a resolution of the House can take away or can limit or can define or can specify what privileges may or may not be exerted, we have laid an axe to the roots of privilege itself. Although therefore I believe that the underlying assumption behind the motion, as regards the extent of privilege, is itself mistaken, nevertheless I consider it erroneous that the House, having assumed such a privilege, should proceed by resolution to curb and limit it in a specific matter at the suggestion of the Government.
The third matter, Mr. Speaker—I am relieved that you have returned to the Chair, because it concerns yourself and you have been generous and frank in placing yourself at the disposal of the House so that it could be debated—relates to your decision, as you expressed it, to ensurethat nothing should occur to prejudice the position until the House itself had an opportunity to discuss the matter." [Official Report, 22 January 1987; Vol 108, c. 1025.]
Old Mr. Lenthall has been invoked more than once already this afternoon, but I think that old Mr. Lenthall 256 is in place here. Of course, if it comes to the knowledge of the Chair that the House intends to consider a certain matter, it is part of the functions of the Chair, which are often exercised by the Chair in Committee, so to proceed that the House has the opportunity to do what it is known to intend to do.
As it seems to me, Mr. Speaker, the difficulty about the decision which you took arises from this: how it came to your knowledge that the House would wish to have before it such a motion as we are debating this afternoon. It was Lenthall who said that he had noteyes to see nor ears to hear but as this House might direct.There is nothing which this House had done or said which could have conveyed to your ears the knowledge or the presumption that we would wish either to assume an extended privilege covering the precincts as a whole or to limit the exercise of that extended privilege, as this motion does.
I feel, therefore, that the Chair, in making the order which it did on that occasion, was not in fact exercising the function of preserving the opportunities and safeguarding the discretion of the House, for I do not believe it can be claimed that the House itself is in a position to take a decision extending its own privileges. Our privileges—I think this is commonly accepted—rooted as they are in history and in precedent, are not capable of being further extended by ourselves. In so far, therefore, as the motion implies an extension of those privileges or may do so, that with great respect, Mr. Speaker, is not a matter for itself not an action which the House has it any longer in its power to take.
All these considerations lead me to the conclusion that the issues that have been raised by this event have turned out to be far more serious, far more far-reaching in their implications, than perhaps anyone, even members of the Government themselves, realised a few days ago. It is precisely in such circumstances that to avoid error we have by custom resorted to the use of the Select Committee of Privileges, a Committee which can at leisure, taking due account and debating among itself, thrash out and examine all the aspects which are tied up in this single motion. I hope, therefore, that the House will not dispose of the matter by passing this motion, or indeed the amendment to it which virtually repeats those elements of the motion itself which are open to exception, but will use its well-tried method of referring to the Select Committee of Privileges a matter of such deep and important moment.
§ 8.8 pm
§ Mr. Jonathan Aitken (Thanet, South)
The right hon. Member for South Down (Mr. Powell), who has deservedly earned the reputation of a great House of Commons man, did the House a fine service with that speech. I raise what is the first, but by no means the last, voice from the Conservative Benches at least, firmly in favour of the motion of the right hon. Member for Chesterfield (Mr. Benn).
This debate was billed as some sort of clash over issues involving press freedom, defence and security. In fact it has turned out to be a first-class House of Commons occasion, because rightly, from the moment when the Father of the House intervened—so fortunately diverted from the Tea Room where he intended to go—the House, with its customary instinctive feel, began to get the message that there was something up of considerable 257 importance to the future destiny of the House of Commons and Parliaments which would be here long after all of us.
The right hon. Member for Chesterfield was right to say that this is fundamentally a constitutional issue. We begin with a look at the wording of the Government's somewhat flawed motion. It starts with your ruling, Mr. Speaker, and it has been common ground throughout the debate—I share that common ground—that you were right in your judgment of the individual case in the individual circumstances of that moment. The trouble with the Government's motion, particularly its last 14 words, is that it sets a dangerous precedent, a precedent that could make the House how before the injunction of the courts in circumstances different from those that we are discussing.
Some of my right hon. Friends in their militant speeches have been up in arms, and rightfully so, against the New Statesman and Mr. Duncan Campbell. It is not fanciful to foresee a day when there is a reversal of roles, with an extremely Left-wing Government in power and a Right-wing newspaper standing up for what it believes to be a just cause. The courts could impose, in the name of national security, an instant genuflection in the shape of an injunction that would silence Parliament. This could be a dangerous precedent.
I share the mood of the House in saying that the only sensible move that we can make is to send this matter to the expertise of the Select Committee of Privileges.
§ Mr. Patrick Cormack (Staffordshire, South)
Does my hon. Friend agree that another great advantage of that course is that the House would not need to divide?
§ Mr. Aitken
I frequently see the merit in not having Divisions, and on this occasion it would remove any possibility of questioning, limiting or extending Mr. Speaker's ruling, so I take my hon. Friend's point.
The secondary issue in the debate is the role of Select Committees. Even after the four—or was it five?—interventions with answers from my right hon. Friend the Leader of the House that sounded as though they were in the evasive tense—most uncharacteristically—I did not quite understand how the status quo of Select Committees was to be preserved and what his assurances meant. All I can say is that I cannot believe that the status quo of the Select Committees is to be placed in the Alice-in-Wonderland situation in which they are prohibited from discussing certain matters, seeing certain films or listening to certain broadcasts in the precincts of the House but can go down the road and outside the House constitute themselves as Select Committees and be completely in order. This is another area of doubt, muddle and confusion.
We have exposed certain fundamental worries that, seen with the sweep of history and the past, and the dangerous precedents that could be set in the future, should make us hesitate for an eternity before we vote for the Government's motion. I shall not do so, and if given an opportunity I will support the amendment of the right hon. Member for Chesterfield.
§ Mr. Eric S. Heffer (Liverpool, Walton)
I shall be brief. We have had a confusion in this debate by getting two things mixed up. First, there are the rights and privileges 258 of the House, and I am glad to notice that increasing numbers of hon. Members on both sides of the House are coming round to the point of view that, to protect rights and privileges, especially those of Back Benchers, the matter should go to the Select Committee of Privileges. That is exactly right.
Secondly, and related to this point, is what has happened to the film outside the House. This is just as important, and I hope that in discussing the one item, we do not mix up the two. I hope that we shall have a debate about what has happened to the film and what has happened to the New Statesman and Duncan Campbell, after the police went to his house and took the documents. We have to concern ourselves with the rights and privileges, but we must also be concerned with the rights and privileges of the people who put us here. I do not accept the view of the Prime Minister and some Conservative Members that it was a terrible thing that the film should have been produced in the first place, and terrible that there should have been an article in the newspaper because it was a Left-wing newspaper.
Some of us are not convinced that the New Statesman is as Left-wing as it used to be. There was a time when we would have accepted that it was a Left-wing newspaper—I shall not get into that argument—but we were right in not getting the two matters discussed together. I want an assurance from my Front Bench that it will seek. as early as possible, a debate not merely about our privileges and rights, but about what has happened to the film, and the fact that the BBC has been prevented from showing it, and about what has happened to the New Statesman.
What has happened to that newspaper can happen to any other Left-wing journal, genuine or otherwise, and every middle of the road journal, and that is the beginning of the police state. The attack on, and entry into, newspaper offices is the beginning of an authoritarian system. It is what happens in all authoritarian states, whether they are Left-wing or Right-wing. The House must equally concern itself with that.
Any Government that can table a motion accepting the idea that a judge can determine what happens in the House should be aware that such ideas are allied to the police state. It means that the courts, under the control of the Government, are determining what is happening in the elected forum, and that is a dangerous line for the Government to take. I hope that the people understand precisely what is happening.
We did not get our rights easily. They were not handed to us by the Almighty. He might have had a slight hand in it, but on the whole, we got our rights through people fighting for them. All rights, whether it is the right to have a Parliament, to have elected representatives with pay, to have Parliaments elected every few years, or to have a free press, were not handed to us on a plate. They had to he fought for. All our rights have been fought for by people outside the House, and they have merely made it possible for us to represent and protect them inside the House. In protecting our privileges, we are arguing for the rights of the people outside.
I think that my right hon. Friend the Member for Chesterfield (Mr. Benn) made a first-class speech, as did the right hon. Member for South Down (Mr. Powell). I have heard marvellous speeches in the House tonight.
If the Government have any sense at all, they will not push their motion to a vote but will accept the manuscript amendment of my right hon. Friend the Member for 259 Chesterfield to enable the matter to go to the Committee of Privileges. I also urge my right hon. Friends to get a pledge from the Government that we should have an early debate about what has happened over the New Statesman, the film and the need to put up a struggle to preserve our rights and freedoms in Britain.
§ Mr. Timothy Raison (Aylesbury)
Like the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan) I did not intend to take part in this debate, but neither did I intend to spend the time having tea.
I came to this debate with two firm views—one, that you, Mr. Speaker, acted entirely properly in what you have done; the other, that the security of this country is of the greatest importance and that the New Statesman was wrong to publish the article by Duncan Campbell. I believe that its motive in doing so had nothing to do with parliamentary control; it was entirely to do with a form of titillation. Nevertheless, I have listened to this debate this afternoon and doubts have been thrown up in my mind about the course proposed by my right hon. Friend the Leader of the House.
I believe that those doubts are inevitably connected with the position of Select Committees. I do not happen to be one of the most extreme partisans of Select Committees. I believe they do a good job—I have been before Committees on a number of times as a Minister, and I believe the way in which they carry out their work is generally fair and that they are useful—but I have never taken the view that Select Committees should be entitled to receive information that is not available to the rest of the House. Anything that is available should be available to all hon. Members.
Over the past few years, the Select Committees have acquired certain powers, and I think that we should recognise that. There is some ambiguity about whether those powers would be left should the Government's motion be carried. I also believe that the wording of the amendment tabled by my right hon. Friend the Member for Worthing (Mr. Higgins) would also lead to some ambiguity. What would be the position of the Select Committee? Could it see the film? Perhaps it could see the film off the premises, unless an injunction taken in the courts prevented it. It would be absurd for a Select Committee to leave the House in order to see the film.
It may be possible for the Committee to summon an unwilling provider of the film—the BBC or whoever—and to go to the House to seek leave to summon the film to be shown. I do not know how the rest of the House would react to that. I would have thought that in the light of your ruling. Mr. Speaker, and if the Government's motion was carried, the House would say that the film was not available to the Committee. There is some ambiguity about that; it must be cleared up, as it is very unsatisfactory.
Another important aspect of this debate is whether or not your ruling, Mr. Speaker, and the motion moved by my right hon. Friend the Leader of the House, could constitute a precedent. It has been argued that the motion contains specific wording about a particular event and there is no generality, but nevertheless precedent always arises from a single action. We cannot be sure what line would be taken if a similar event cropped up again. It is 260 obvious that what we have here is a bit of a muddle, but it is a muddle on an important matter. That is the flavour of today's debate.
What is the answer? I know that when my right hon. and learned Friend the Solicitor-General, winds up he will approach the matter with great care and wisdom. I have the highest regard for him. The best advice that one could offer the Government is to accept that the matter be referred to the Committee of Privileges. That has been the tenor of today's debate.
If the House decided to refer the matter to the Select Committee of Privileges, if the Leader of the House, could assure us that, in the interim your ruling, Mr. Speaker, would continue to apply, I would be perfectly happy. That ruling would continue until the Committee had been able to report to the House and as long as the injunction lasted. That would be a reasonable decision. If any other decision were reached on the matter tonight, it would ignore the whole tenor of the debate. The matter should be dealt with by the Committee of Privileges and I hope that the Leader of the House will accept that.
§ Mr. Robin Cook (Livingston)
I differ from the opening remarks of the right hon. Member for Aylesbury (Mr. Raison) and other hon. Members who said that they had not intended to make a speech today. I had intended to make a speech, and I am duly grateful for the opportunity to do so.
Having sat through the debate, there is one point that I should like to take up from an earlier speech. I want to refer to the thoughtful and serious speech offered to the House by the hon. Member for Chislehurst (Mr. Sims), because he made a point that should be firmly nailed to the floor as a fallacy. He argued that in voting for the motion we were not necessarily creating a precedent, and he wished for an assurance that in voting for the motion the House was not creating a precedent.
It is, of course, open to any future House, or any future Speaker, to choose to disregard the precedent and to select from precedents in the Standing Orders or in the Journal of the House. What we cannot disguise from ourselves is that if we voted for the motion we would be creating a precedent which may or may not be used to guide future Speakers. That is unanswerable, and the House should be cautious about this.
In one of the morning papers a Minister—on an unattributable basis—said that if the motion was carried it would be "a useful precedent". It is precisely for that reason that I hope the House will not rush into a decision tonight.
I shall be brief, as I know that the House wishes shortly to reach a conclusion. I shall not spend too much time on the motion. It certainly does not survive the interplay of free intellect and the application of common sense. It invites the House to agree not to watch the film, although many hon. Members have already read the transcript. It invites hon. Members to pretend that they do not know any information, although that information has been widely disseminated to their constituents through the daily newspapers. It invites hon. Members to agree that they will not watch the film in the Palace of Westminster, although they may watch it outside the House. It is a farrago of nonsense.
It is a matter of regret that the Leader of the House had to move the motion. In a spirit of friendship I acknowledge 261 the right hon. Gentleman's robust common sense which so often enlivens the debates in the Chamber. It is a shame that he has had to defend this piece of nonsense. I have listened to the right hon. Gentleman on a number of occasions, and I have sat in Committee with him on the Finance Bill. One certainly gets to know other hon. Members when one is in a Committee on the Finance Bill. I have never seen him so miserable and so unhappy as he was tonight when he proposed the motion.
I shall not add to the right hon. Gentleman's misery by dissecting the motion, but I shall seek to consider it in the context of two wider issues of principle which have dominated the debate. The first is the relationship between this House and the courts. We cannot duck that issue, because in the motion there is a specific reference to a film banned by injunction. It would have been better if the motion had contained no reference to an injunction. If it had been a simple motion naming a specific film I would have been happier, though I would not necessarily have voted for it. I am unhappy because the motion clearly sets out to recognise the authority of the courts over the proceedings of this House. That is at the heart of the dilemma.
It is clear that the injunction granted by the courts and the injunction referred to in the motion does not run within the Palace of Westminster in terms of proscribing the watching of the film. If it did, the Government could not explain why they felt it necessary to return the next day to seek a specific injunction against me and 13 other named Members, which the very same judge, quite properly, threw out within one minute. He did so because he was respecting a long tradition in which the courts have not sought to exercise their powers inside the Chamber.
The hon. Member for Orpington (Mr. Stanbrook) made an extraordinary speech in which he appeared to be giving away the privileges of the House hand over fist. I want to point out to the hon. Gentleman that there is a full chapter in "Erskine May" on the history of Parliament and the courts showing how Parliament has asserted its independence of court jurisdiction. It is clear from that chapter that the exemption from the jurisdiction of the courts is not confined to proceedings of the House, either in the Chamber or in a formally constituted committee. It states:For such purposes the House can 'practically change or practically supersede the law'. This privilege is not confined to the chamber in which the House sits. For instance, it has been held to extend to the sale, within the precincts of the House, of intoxicating liquor without a licence".I regret that that profound principle of constitutional law degenerated into an example from the licensing law. However, the principle is clearly established and has been well accepted over the decades.
It is a matter of surprise that the Attorney-General, who, as we read this week, is the longest serving Attorney-General this century, and who therefore has perhaps had the greatest opportunity to master the principles of constitutional law, chose to go to the courts to seek an injunction that would breach the long tradition and convention of the relationship between Parliament and the courts and had to be reminded of the tradition by the judge rather than by anybody in his own chambers. We should not lose sight of the fact that the Government attempted to use the courts against named Members of Parliament who were seeking to go about what was certainly public business in a spirit, as they conceived it, of conformity with 262 their duties as Members of Parliament. It was only after that failed that the Attorney-General then turned to you, Mr. Speaker, and obtained the ruling that was served upon me on Thursday, and it was subsequent to that event that the motion was tabled for debate today.
The second issue of principle raised by the motion and by today's debate is the right of hon. Members to have access to information on which to carry out the task with which we are charged in the constitution, which is the important task of scrutinising the Executive.
I agree with the hon. Members who have said that this has been a splendid debate which has shown the House of Commons at its finest. It has been a good debate and there has been a degree of cross-party agreement, certainly in the latter stages. However, it is sad that there should be any doubt about what the legislature will do with the motion at the end of the debate. One can make certain shaming comparisons with other legislatures and the way in which they would behave if confronted with such a motion. II such a motion was tabled before Congress, there would be uproar. The debate might last longer than our debate, but there would be no doubt as to what the majority of both sides of Congress would do with a motion that suggested that they should not see a film that might be politically embarrassing to the Executive and which the Executive did not want them to see.
To understand the enormity of the proposition, it is necessary to set it against the events of the past the days. Unlike the hon. Member for Thanet, South (Mr. Aitken), I believe that important questions of press freedom have been raised by the conduct of the Government in the past five days, and by the motion. It was only last week that the Government instructed the Treasury solicitor to write to the editor of every daily newspaper seeking an assurance that they would not report what the New Statesman had already printed. The final paragraph of the letter stated:Please let me have an assurance by midday Friday, 23 January 1987 failing which the Lord Advocate will consider taking legal action against you.That letter was sent to a Scottish editor. It is a bizarre instruction, because no crime is committed by failing to give an assurance requested by the Treasury solicitor, at least not yet. It is disturbing that the Government saw no impropriety in approaching editors to seek an assurance that they would not report a matter that was already in the public domain.
Another issue of press freedom intimately bound up with the debate is the arrival of special branch officers at the office of the New Statesman on Saturday. I concur with the point made by my hon. Friend the Member for Liverpool, Walton (Mr. Heifer) that there is room for debate as to how Left-wing the New Statesman may be. Indeed, it last sprang into national prominence shortly before Christmas when its present editor urged the Labour party to abandon its policy of nuclear disarmament. 'The previous editor achieved a moment of notoriety within the Labour movement in 1983 when he advised the electors in half the constituencies in England to vote alliance rather than Labour. By anybody's standards, it is a newspaper within the mainstream of political opinion.
§ Mr. Cook
Yes, it is drowning in the mainstream of political opinion.
If such an independent newspaper can be visited by the special branch and turned over by it — I assure the 263 House that it was not simply Duncan Campbell's drawers that it was looking through; it went through the files and offices of everybody in the New Statesman—no paper in the land is safe from such a development. I hope that the events of last weekend will not also be regarded by the Government as a "useful precedent."
It is against the background of those events that we have to judge the full enormity of the events before us. The motion asks us to agree not to have access to the information contained in the film. Worse than that, given that we all know what is in the film, and that most of our constituents know what is in it, the motion realistically invites us to pretend that we do not know the information. That is insupportable. I find it difficult to accept that Mr. Duncan Campbell, who produced the film and wrote the article, was seeking to damage national security. I have read the transcript. There are few technical details contained in it. There is no discussion of the specifications or of how the satellite will operate. I have, by comparison, leafed through the book entitled "The Ties That Bind" which was published in 1985. It is replete with technical details as to how such things operate.
§ Mr. Tony Banks
In support of what my hon. Friend is saying about Mr. Duncan Campbell's intentions, may I draw his attention to page 17 of the script, where Mr. Campbell says:Obviously we can't broadcast the exact technical details of what Zircon's targets will be.
§ Mr. Cook
My hon. Friend has anticipated a point that I wished to develop.
To return to the book entitled "The Ties That Bind", I must confess that, despite my enthusiasms for the subject and my anxiety to prepare a decent contribution for today's debate, I found my attention constantly wandering from the book, which is of a technical character that I could not comprehend. I must put it to the House that if it is possible for the Government to allow a thick volume of technical specifications to be published, what is it in the transcript that makes it such a threat to national security? It is not good enough to argue that one breach of national security does not justify another. We are talking about the same breach. That argument is dangerously close to saying that there is one law on national security for Allen and Unwin when it publishes a respectable tome, and another law for Duncan Campbell and the New Statesman when they wish to produce an article that is critical of and politically embarrassing to the Government.
The thrust of that programme is not about the specifications of the satellite, but about the contention of Duncan Campbell that the Government broke an undertaking to the Public Accounts Committee. I accept that there are two views on whether the undertaking has been broken. I say to my right hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon) that, having applied my mind to this over the last week, and having sought advice that is available to me, I am inclined to take the view that on balance the undertakings to the Committee were not broken, but that is not the point of principle.
Duncan Campbell had convinced himself that those undertakings had been broken, and through the programme he sought to show that the undertakings had been set aside by the Government, who have sought to 264 conceal this project. It is not a sufficient reason to suppress the programme on the grounds that he was wrong in claiming that those undertakings had been broken. If he was convinced that Parliament had been deceived, he had every right to prepare a programme which set out why Parliament had been deceived and why he had come to that conclusion, and we have every right to receive that information and to have access to the programme in which it is contained.
I believe that the motion should be thrown out, even on its merits. However, it is not merely its merits that require the House to decline to pass the motion. The House should decline to pass the motion because of the wider questions that it begs concerning press freedom, and most important of all, the access of the House to the information that it needs. Were this motion to be passed tonight, it would tilt dangerously further the balance of power between this Chamber and the Government. For that reason, I believe that it is imperative that the House refrains from that step tonight and sends this issue to the Committee of Privileges.
§ Mr. Kenneth Warren (Hastings and Rye)
When I expressed the hope to catch you eye, Mr. Speaker, I imagined that I would be taking part in an acrimonious debate. Having sat through the entire debate, what is fascinating is the way in which the House has risen to the heights to which it rises on all too few occasions, through your good offices, Mr. Speaker, and has done itself a great service. I found a renewal of faith in Parliament as a place where sound common sense emerges if we listen to each other for long enough.
Mr. Duncan Campbell's article, let alone his film, should not have merited a debate, nor should it have been considered by the Government as being anything other than the kind of low-level technological rubbish that the article is. What is surprising about the article is that it has major inaccuracies, which caused me to wonder why the editor of the New Statesman bothered to publish it after he had commissioned it.
One has only to look at the introduction to the article, where Mr. Duncan Campbell says that there has been an expenditure of £500 million, and to have heard the right hon. Member, for Ashton-under-Lyne (Mr. Sheldon), the Chairman of the Public Accounts Committee, saying that there was no such expenditure, to realise its lack of value. The Government could have checked on that and said in public that Mr. Campbell's other assertion at the beginning of his article that the satellites would be positioned over the Soviet Union was a load of technical rubbish.
Further on in his article Mr. Campbell states that the United Kingdom has no forces further east than the Gulf and therefore there is no need for a British communications satellite there. That hardly does justice to a man who claims technical accuracy as the basis for his article. He does not seem to have heard of Hong Kong.
Much of what Mr. Campbell put in his article has been freely available in magazines such as Aviation News, and much of that which he quotes has been well known in the world of technology for the last 10 years. If we had made some sensible, straightforward, simple inquiries, we would soon have found that there was nothing here which should have been brought to the level of a major debate in the House.
265 I have met Mr. Duncan Campbell. All of us occasionally carry chips on our shoulders, but he carries breeze blocks on his, probably brought about by the fact that he had always hoped to join the intelligence community, but I understand that wiser counsel prevailed and he was turned away from that opportunity.
Once again we are up against the question of the overwhelming envelope of secrecy with which we bind ourselves too often. There is no need for us to pretend that devices such as intelligence satellites do not exist, that it would be a good idea for us to have one. The Russians and the Americans have them, and there is free information available about them. We should ensure that we do not discuss the capability or specification of those satellites, but here again we touch, as we do far too rarely in the House, on the concept of and need to practise freedom of information. Governments in power do not like that concept, but the Opposition dearly love it. Surely there can be unity on both sides of the House to downgrade the amount of secrecy that surrounds so much of the workings that we try to pursue here.
I should like to endorse the marker put down by my right hon. Friend the Member for Worthing (Mr. Higgins), to make sure that Select Committee's interests are preserved, but I hope, Mr. Speaker, that through the service that you have rendered to the House, through this debate we will be able to move to a point where there is no need for a Division, but there is a need for both sides of the House to agree that the Committee of Privileges has a special part to play to conclude our debate.
§ Mr. Merlyn Rees (Morley and Leeds, South)
I shall vote for the manuscript amendment that was put forward in a remarkable first hour of the debate, when the House of Commons was at its best and new ideas were brought to our notice. I hope that the media—who are fond of saying what happens at Prime Minister's Question Time —will report it for the excellent debate that it has been.
I shall raise two or three points. I will resist the temptation that my hon. Friend the Member for Livingston (Mr. Cook) put in my mind when he was talking about the filing cabinets and drawers at the New Statesman that had been looked into by special branch, and I wondered what special branch would have found if it had looked into the drawers at the Sun newspaper.
The hon. Member for Hastings and Rye (Mr. Warren) has great technical knowledge which is denied most of us. What he said raised questions about the article. I can make no judgment on that, but it led me to ask myself what the nature of the briefing was that was given to my right hon. Friends in the Shadow Cabinet, who were right to go and take it. When the Prime Minister tetchily said that she was considering not giving a security briefing to the Leader of the Opposition about the Wright affair, I did not know what she was talking about, because no such briefings take place. Whenever Governments consult the Opposition it is because the Government are in trouble on an issue and they want to give the Opposition a briefing on Privy Council terms. As far as I have been able to find out, the press were given almost the same briefing on the same day as the Opposition, and the informed press the following day contained information about the same sort of thing — the need to get out from under the American umbrella and the cost factor. They are matters that ought to be raised on the Floor of the House.
266 I shall put two points to the Minister, and since he is not here, perhaps they can be brought to his notice. If the Government wanted to get to a newspaper in the way that they did, why did they not use the D notice system? I do not like that system very much, but it is available and something we looked into on the Franks committee. The arrangements are set out. But the Government did not do that. Instead, they handled it in a ham-fisted manner through the Treasury solicitor.
Who is responsible for GCHQ? Considering how the Government handled the Falklands war up to D Day, which was not very clever, when the newspapers last week reported the bickering in the Cabinet, it was no wonder that the Attorney-General had a problem. If he is to get advice from his colleagues about the public interest, who will be the one to do that? I recall that, on the Pouting business, the Attorney-General said that he did not consult anyone. In that case, it does not matter if there is confusion in Government policy because the Attorney-General will take it in his stride.
Under what terms was the BBC told not to show the film? Under the terms of the charter, the Government have the power, for security reasons, to tell the BBC not to publish. But also under the terms of the charter, the BBC has the right then to reveal that the order has been given by the Government. If this was done on security grounds, the BBC should have revealed that fact. I suspect that it was not done on security grounds because it was not on real security grounds, if the article that I have read is anything to go by.
This has been a remarkable debate, and I hope that the Solicitor-General will respond in a like manner. Both sides of the House want a response to a debate in which hon. Members from both sides of the House have put forward ideas that have changed minds. I hope that the Government will change their mind.
§ Mr. Cormack
On a point of order Mr. Speaker. Is there any particular reason for the wind-up speeches beginning now? Some of us have sat throughout the debate and are rather anxious to take part.
§ Mr. Speaker
If the Opposition Front Bench spokesman rises, the Chair will call him. If the House wishes to take a decision on all three amendments, time must be allowed for that.
§ Mr. Morris
I am willing to concede a few minutes to the hon. Member for Staffordshire, South (Mr. Cormack).
§ Mr. Patrick Cormack (Staffordshire, South)
I am most grateful to you, Mr. Speaker, and I am particularly to the right hon. and learned Member for Aberavon (Mr. Morris). I shall not detain the House for long. I would have liked to make several points, but I shall make one. Like the right hon. Member for Cardiff, South and Penarth, (Mr. Callaghan) I did not come to speak —many of us did not—but this has been a classic House of Commons occasion, when minds have been changed during the debate.
My mind was changed when one statement was made by my hon. Friend the Member for Davyhulme (Mr. Churchill). He said that, if we voted for the Government's 267 motion, we would be supporting the Chair and the Government. He said that in all good faith, but if that construction could be place upon the debate, it would do infinite damage to the House in every possible way. It would be completely wrong for you Mr. Speaker, to be thought to be allied with either side of the House, be it Government or Opposition. For that reason above all others, although many have been adduced which could convince people on both sides of the House, it is essential —I did not think that I would agree so enthusiastically with the right hon. Member for Chesterfield (Mr. Benn) —that we should follow his, on this occasion, sage advice and refer this matter to the body that we as the House of Commons have appointed—the Committee of Privileges.
§ Mr. Cormack
I must not give way, because I promised to be brief.
I urge my right hon. Friend the Leader of the House and my right hon. and learned Friend the Solicitor-General to respond to the collective wisdom of the House and accept the manuscript amendment.
§ Mr. John Morris (Aberavon)
There is no better way of underlining the fact that this is a House of Commons occasion than by giving way to the hon. Member for Staffordshire, South (Mr. Cormack), and I am delighted to have done so.
We are grateful to my right hon. Friends the Members for Chesterfield (Mr. Benn) and for Cardiff, South and Penarth (Mr. Callaghan) and other right hon. and hon. Members for their contributions to this memorable debate. They have expressed their concern that, by passing the motion, we wittingly or unwittingly may be encroaching on the privileges of the House. We may be creating a dangerous precedent of affecting to put into effect the orders of another court—orders specifically mentioned in the Government's motion. Therefore, I hope that before it is too late the Government will say that they are prepared to accept the amendment of my right hon. Friend the Member for Chesterfield.
You ruled, Mr. Speaker, on what I understand to be a one-off occasion in unusual circumstances when the House was not sitting on a Thursday morning, hoping that perhaps the House would reach some conclusion on your temporary order later in the day. The danger is that, if the precedent that has been created is endorsed today in the terms of the Government's motion, right hon. and hon. Members who raise similar issues in the future will hark back to your order and to the resolution itself, because our contributions will have been forgotten in the sands of time.
But the order of the House will be there. It will be part of "Erskine May" and will be prayed in aid if ever there is an injunction from another court, whether it be on the Government's application or on that of any other citizen of the land. That is the danger. A wide path has been created and if we go down that path without having given it proper and due consideration, we may be limiting the future freedom, privileges and traditions of the House. I am sure that is the last thing that you intended when you ruled temporarily.
268 You have given us yet another instance, Mr. Speaker, of great assistance to the House when, in response to an hon. Member's question, you said that if the matter went to the Committee of Privileges, your order would subsist for the time being, certainly until the Committee of Privileges considered the matter. May I add that perhaps the appropriate time that the matter would subsist would be not only when the Committee of Privileges considered the matter but when it in due course reported to the House and the House resolved the matter. That would be the time scale, and I am glad to see, Mr. Speaker, that you acknowledge what I have to say as correct.
That is what will remain. Therefore, in those circumstances, I do not understand what the Government have to lose by modifying their position. Your order will remain, Mr. Speaker. The film will not be shown within the precincts. Whatever the absurdities of the position as regards the outside world, the Government would not lose. If the Government were to say now that they would accept the amendment, I would willingly, in the interests of the House, sit down and allow the Solicitor-General to take his place. It may well be that Ministers are now considering the matter and we may have to wait a little longer before news comes to the Floor of the House, but I am ever optimistic.
Mr. Sherlock Holmes might say that the House tonight is dealing with the curious case of the defective injunction. As in every mystery, the House would like to know first, who did it—or perhaps would be more accurate to ask, who did not do it properly. Secondly, now that the horse has bolted from the stable, what is the rationale for the absurd position whereby, as the delightful phrase in the injunction statesMr. Campbell, his servants"—I like that—or agents are prohibited from disclosing … anything relating to the project in question.The horse has bolted from the New Statesman stable which provides Mr. Campbell with his fodder. However, we are asked to continue with the pointless exercise of turning a blind eye to the fact that every New Statesman reader knows of the project, but access to the film that deals with it is denied a showing within the precincts of this Palace.
If we pass the Government's motion, there will be a sort of cordon sanitaire around this building, with the effect that Members of Parliament will be able to read the New Statesman in the Library, but will not be allowed to see the film in the precincts of the House. That is the absurd position that we are asked to endorse. Our impression is of a monumental bungle to which no one will own up.
We have not yet had the opportunity to debate the Government's litigiousness in the Antipodes. If there is a Manpower Services Commission in Australia, it must be delighted with the Government's efforts to enhance job opportunities for our ever-needy Australian legal cousins. However, we know that the Government have been advised by their lawyers to sue on the similar subjects in Australia and in Ireland. Ultimately, somebody will come forward and confess to having advised the Attorney General to sue in Ireland, regardless of the Irish constitution, its history and traditions. The track record of the Law Officers is not exactly peerless. Therefore, it is not surprising that many hon. Members consider their activities with scepticism.
The known history is that the BBC passed the contents of the film to the security services. It is not clear whether 269 every technician involved in its making had been positively vetted. The film was due to have been shown in November. However, although the BBC had agreed in principle to the showing, it kicked for touch and delay followed delay until eventually there was a Government request, I surmise by the Ministry of Defence, in early December, not to show it.
It is an interesting light on this curious case that heavy briefings sought to pass the poisoned chalice to the Secretary of State for Defence. Ultimately, it had to be passed into the robust hands of the Foreign Secretary, who had to clear up the mess.
How credible was the Pontius Pilate act of the Ministry of Defence? Sir Frank Cooper, a former distinguished permanent secretary, was interviewed as far back as October and he, I am told, is on the film. It is extraordinary that that fact, and the subject matter, did not galvanise the Ministry of Defence to action, especially when Sir Clive Whitmore, the permanent secretary, is one of the joint chairmen of the D Committee. "Thank God," a nation in peril said, "for the BBC."
Eventually, in addition to the willingness of the BBC not to proceed with the film showing, an injunction was obtained against Mr. Campbell, his servants or agents.
The Prime Minister took the nation into her confidence on Friday on the IRN news and revealed that the Attorney-General could not just go along to the court and demand any old injunction, or a blanket one, to safeguard national security. She announced to an anxious nation that to obtain an injunction, one had to have names of specific persons and evidence had to be obtained which amounted to specific knowledge of an intention to publish. We were asked to accept that the Government were not at fault in not having included the New Statesman—or, come to think of it, ITN — in the terms of the injunction, because there was no evidence of an intention to publish.
I suppose that the security services do not know that Mr. Campbell is a paid staff journalist on the New Statesman. It would be improbable that, if he failed to publish the facts of his research one way, he would not try another. There was no whiff of an injunction at that stage.
I suppose that it was asking too much for the powers that be to lift the telephone and ask the editor for an assurance that he would not publish. If such assurances were sought, and not obtained, I should have thought that a court might have looked favourably on the Government's application, as it would have sufficiently specific evidence to obtain the injunction in the terms of the Prime Minister's lesson to the nation.
That is exactly what happened in the Saudi Arabian leak. I understand that the New Statesman went to Sir James Craig, the former ambassador, and put to him its intention to publish his letter. Understandably, there was great anxiety. The next day, an assurance was sought by the authorities from the New Statesman about whether it would forbear publishing. The assurance was not given. An injunction was then sought and, on that evidence, obtained. Unhappily, such was the lack of awareness in the Attorney-General's bailiwick that the injunction did not cover Scotland. When it was discovered, a Scottish judge had to be woken in the middle of the night. Unhappily, by that time, the Scottish printing presses were whirring.
If the security services did not know that Mr. Campbell wrote for the New Statesman, I do not understand why the BBC, in its proper anxiety to protect national security, did not tell them. Perhaps that is asking too much of it. It 270 might have gone further, and disclosed that there was a contractual agreement between the BBC and the New Statesman stating that the latter could and would publish the material in the film. Specific exception had been made, in line with normal copyright arrangements.
I understand that the idea was that the film would be shown on Wednesday or Thursday and that the New Statesman would roll off the presses on Thursday. It was a pretty sound and firm umbilical cord. Where was Mr. Alan Protheroe, a member of the D Committee? Why did not he or somebody in the BBC disclose that fact to the security services? If they did, somebody was very negligent indeed when limiting the injunction to Mr. Campbell, his servants or agents.
The question is not as the Prime Minister has said— that there was not sufficient evidence—for there was an embarrassment of riches in evidence provided that somebody opened his eyes to the significance of the BBC, the New Statesman or the Campbell connection. The Prime Minister's reply to my right hon. Friend the Leader of the Opposition this afternoon was utterly unrealistic of the legal position.
Cases which involve the passing of secret information appear regularly before the courts, as with trade secrets and confidential information between employers and employees. The normal procedure is that, as soon as somebody knows that somebody else is in possession of confidential information about him or her which has been wrongly obtained, the person concerned seeks an undertaking that the information will not be disclosed or used. If the person fails to give an undertaking, that failure is prima facie evidence before the court, and the court invariably grants an injunction.
In this case, the Ministry of Defence knew that Campbell was making the programme with information that he should not have possessed. According to today's Times, the Ministry knew that back in October. The issue is not, as the Prime Minister said, whether the Government should have served an injunction against the BBC, but why they did not serve an injunction against Mr. Campbell early in October. The Government plainly could have done that. The BBC programme was being made by what is said to be the misuse of official secrets. If Campbell had failed to give an undertaking not to use the information, the Government could unquestionably have obtained an injunction.
If the Government had obtained an injunction, as any reasonably competent lawyer could have advised them, Campbell could neither have made the programme nor have written the article. If the Government are right about the dangers to national security, it is their failure to move against Mr. Campbell in October that is the real act of incompetence in this case.
I shall now consider the Attorney-General's actions towards my right hon. and hon. Friends when seeking to ban the showing of the film in the Palace. During that application, you, Mr. Speaker, were put in a most difficult position and decided to hold the situation for the time being.
What came over the Attorney-General to apply for an injunction againt my hon. Friends, when he knew, or should have known, of the case of Stockdale and Hansard in 1839, in which it was made clear that the House is the sole judge of its own proceedings? He did not need to go to Mr. Justice Ian Kennedy to have that, as the Leader of the House told us, resolved beyond peradventure. That is 271 an indication of the absurd position in which we find ourselves today, with absurdity heaped on absurdity, the whole of the outside world able to read the New Statesman, hon. Members unable to see the film within these precincts and the Government being seen to go against the whole tradition and history of the House in trying to limit the freedoms that it has won over the ages.
§ The Solicitor-General (Sir Patrick Mayhew)
I should like to begin with a matter that is rather more serious in its content and significance than most of the speech of the right hon. and learned Member for Aberavon (Mr. Morris). Although it is unorthodox, I hope that, with the House's traditional sense of justice, I may be permitted to deal with a matter mentioned by the hon. Member for Livingston (Mr. Cook) during Prime Minister's Questions, when he suggested that a senior member of the Government had indicated to Mr. Campbell — and I paraphrase — that he, a senior member of the Government, was prepared to take part in the television programme in question and that Mr. Campbell was at liberty to proceed with that programme.
§ The Solicitor-General
That was very much the essence of it—a senior member of the Government—my hon. Friends heard it. There would have been one way in which to establish this beyond any doubt, and that is if some notice had been given. I want to make it perfectly clear that, in so far as there is any suggestion that the Attorney-General was the Member referred to—and I say this with the authority of my right hon. and learned Friend, who is in his place — he has sent no letter to Mr. Campbell telling him either that he, the Attorney, would take part in the Secret Society programme or that Mr. Campbell himself could get away with it.
There has been one exchange of correspondence on the subject of the BBC programme between Mr. Campbell and the Attorney, and that was the one that took place shortly before 15 July 1986 when Mr. Campbell wrote to my right hon. and learned Friend to confirmour request for you to consider being interviewed for BBC-TV on the subject of war emergency legislation".My right hon. and learned Friend replied on the 15th, thanking him for his requestthat I should agree to being interviewed for BBC-TV on the subject of war emergency legislation. I have considered your request very carefully but have concluded that the questions that you will be asking go far beyond my responsibilities as a Law Officer and that consequently it would not be appropriate for me to discuss these issues on your programme".There was no reference to my right hon. and learned Friend taking part in any programme about a satellite; there was no reference to any programme about a satellite.
I believe it to have been rather less than helpful to the House that there was no indication in the question that the conversation or exchange of correspondence did not relate to the satellite programme. My right hon. and learned Friend tells me that he had no idea that this programme was being made about a satellite and that he had no connection with it whatsoever. I insist on the opportunity of putting that right.
§ Mr. Robin Cook
I thank the right hon. and learned Gentleman for giving way. When he checks Hansard 272 tomorrow he will see that I quite explicitly referred to the series The Secret Society. I did not refer to a particular programme. But that is not the main point that brings me to my feet. Is the Solicitor-General assuring the House that the letter that he read to the House a moment ago is the only one that was removed by the Special Branch from the offices of the New Statesman yesterday?
§ The Solicitor-General
We have heard reference to Sherlock Holmes. The hon. Member for Livingston exclaims "Ah" as though he were a latter-day Sherlock Holmes, whose investigations have unearthed some riches. Of course that is not the case. I say in answer, on behalf of my right hon. and learned Friend, whom I consider to have been wronged, that no exchange of correspondence ever took place between my right hon. and learned Friend on the subject of the programme save the letter that I have quoted.
§ Sir Patrick Mayhew
I am not going to detain the House on matters that have no bearing on the film with which we are concerned. In a debate that has been very wide-ranging and of fascinating interest, one thing is absolutely apparent. Following the speech of the right hon. and learned Gentleman, the Chairman of the Public Accounts Committee, the right hon. Member for Ashton-under-Lyne (Mr. Sheldon), the hare that there has been some concealment from that Committee of matters that ought not to be concealed from it really will not run any more. In a speech that the House found deeply interesting and impressive it was made clear that that charge cannot be sustained.
The third general point is that this has been a very wide debate that has brought recognition from all sides that there are conflicting interests between the rights and proper privileges of Members of this House and on the other hand the necessity in certain cases to keep secrets secret. My hon. Friend the Member for Woking (Mr. Onslow) indicated that that was the case, as have the right hon. Member for Cardiff, South and Penarth (Mr. Callaghan) and many other hon. Members. That lies at the root of the difficulty that confronted you, Mr. Speaker, last Thursday. It is right that we should recall what the Government's motion would require us to decide.
§ Mr. Kinnock
I think that the right hon. and learned Gentleman might wrongly identify the root of the difficulty that faced Mr. Speaker last Thursday. The root of the difficulty, of the collision which is bound to occur between inquisitiveness, natural and right, of the House of Commons and the need to keep secrets that are identified as being essential to the security of the state, lies back last October when the Government first apprehended the fact that such a secret was likely to leak and they did absolutely nothing about it.
§ Sir Patrick Mayhew
The Leader of the Opposition takes far too superficial a view of this. As the Prime Minister made clear, the action that the Government took in relation to the BBC in October had the result that the BBC took a responsible action in relation to this programme. It withdrew its programme and the 273 programme was not shown. The Leader of the Opposition has been very indignant about the fact that the Government did not proceed against the New Statesman and take out an injunction. We have listened to his indignation. Why does he not congratulate the BBC on its responsible and contrasting attitude? Perhaps he will do so now?
§ Mr. Kinnock
The point surely is, and the right hon. and learned Gentleman must know it, first that the security of the state and the confidence of the secrets of the state should not depend upon cosy chats with the BBC. Secondly, the right hon. Gentleman had better tell us why it was the case, because as my right hon. Friend the Member for Morley and Leeds South (Mr. Rees), a former Home Secretary, pointed out, there are powers of relationship within the charter of the BBC that require the Government to make the announcement that those powers have been exercised to require the BBC not to publish or publicise or broadcast certain material. Why was not that particular power exercised? Surely it cannot be that this Government, of all Governments, are afraid to give the impression of being repressive.
§ The Solicitor-General
The Government would quickly have been accused of being repressive had they marched in with a heavy hand and demanded that of the BBC. By following the course that they did, the Government secured the voluntary withdrawal by the BBC of the programme.
§ The Solicitor-General
No; I have given way many times.
There has been general agreement that you, Mr. Speaker, faced with a difficult decision on Thursday, took the right decision. I think that the speech of the right hon. Member for South Down (Mr. Powell) was the only one that was critical of that decision. I think that it was taken on the basis that there was not any privilege that would justify the showing in this House of a film in circumstances where that would be unlawful outside. I believe that it is a fair summary of the debate that there has been great understanding of your position and great support for it. That is entirely fair and right. That disposes of the first limb of the Government's motion.
However, there has been throughout the debate as it developed a concern for the deeper connotations of the issue that the Government's motion gives rise to. That has become apparent from all sides of the House. It was a matter of importance, Mr. Speaker, when you intervened and said that you understood that the consequences upon you of the manuscript amendment moved by the right hon. Member for Chesterfield (Mr. Benn), if accepted by the House, would be that your prohibition would remain in force until the Select Committee of Privileges had reported. That was an extremely important matter which aroused interest in all quarters of the House.
What arises, however, is whether that prohibition would remain in force only until such time as the Select Committee had reported, or whether a further period would elapse. I do not know whether it would be possible for you to inform the House whether there were more that would follow.
§ Mr. Speaker
The point was raised in his speech by the right hon. and learned Member for Aberavon (Mr. 274 Morris). I can confirm that, if the House decides to refer the matter to the Committee of Privileges, my instructions of 22 January will remain in force until the House itself can make a decision following the report of the Committee of Privileges, so long, that is, as the present injunction remains in force.
§ The Solicitor-General
That is very helpful. Mr. Speaker, and the whole House is grateful to you for that assurance.
The Government wish to take account of the views that have been expressed. It is right that in a debate affecting the affairs of the House account should be taken of them. Certainly the Government do not approach the matter with a closed mind. The Government wish to say that if the manuscript amendment finds favour with the House, as we believe it does, they would accept it. A great deal has been said in the debate—[Interruption.]
§ Mr. Speaker
Order. This has been a very good debate. I said at the beginning that this is a House of Commons matter and that is what it should remain.
§ The Solicitor-General
I want to make one point in the interests of accuracy and fulness. I want to explain why the injunction was not asked for against the New Statesman. Several hon. Members have made the point that the law of England does not permit an injunction to be obtained in blanket form. An application must be made for an injunction against a named person. We cannot say that something may happen which ought not to be permitted and an injunction should be taken out against all the world. It may be that that rule should be reviewed in cases of national security. [Interruption.] That is the explanation why—
§ Mr. Joseph Ashton (Bassetlaw)
On a point of order, Mr. Speaker. Is it in order while the debate is taking place for the Prime Minister's press secretary, Mr. Bernard Ingham, to run around the Press Gallery briefing the Daily Mail—
§ The Solicitor-General
That is the rule that prevented my right hon. and learned Friend the Attorney-General on behalf of the Government from obtaining an injunction against the New Statesman. At the time, the Government did not know of any evidence that would have permitted that. This was not a matter that the Attorney-General decided upon by himself. Quite rightly in a matter of such sensitivity and difficulty, he consulted Treasury counsel of vast experience. That advice was unequivocal. He was told that the evidence available would not have made it proper to apply for an injunction against the New Statesman. That is why that matter took the course that it did.
§ The Solicitor-General
No, I will continue, because the House wants to reach a decision and I have already given way on several occasions.
Criticism was made that we should have proceeded much earlier. Once the BBC had withdrawn its programme and made its decision, there was no evidence or sign that anyone was going to seek publication of that film. The BBC had withdrawn it and there was no evidence available to the Government that anyone was to consider the film 275 for publication. That is why no move was made until a report appeared that the film was to be shown in the House. A decision then had to be taken as to whether to proceed. That decision was taken on Tuesday and on Wednesday the injunction was obtained.
Since we are to decide to refer the matter to the Select Committee of Privileges, I want to mention this matter for the record so that criticisms understandably made in the early part of the debate should not go unanswered and actions should not go unexplained. That is important. If there had been any sign of concern that the article should have been submitted for publication or printed by the New Statesman without any attempt being made to check whether it would damage national security, or if any indignation had been expressed by the Opposition about that, I would have accepted that indignation with more voracity. However, there was no sign of that.
The House now wishes to come to a decision. I believe that it is right, in the light in the way in which the debate has progressed and the views expressed, that the manuscript amendment should be accepted. I recommend that to the House.
Amendment made: in line 1, leave out from 'That' to end and add
'Mr. Speaker's ruling of 22nd January, relating to the showing of a film, be referred to the Committee of Privileges'.—[Mr. Benn.]
§ Main Question, as amended, agreed to.
That Mr. Speaker's ruling of 22nd January, relating to the showing of a film, be referred to the Committee of Privileges.