HC Deb 15 January 1988 vol 125 cc563-637

Order for Second Reading read.

Mr. Speaker

Before I call the hon. Member for Aldridge-Brownhills (Mr. Shepherd), I must tell the House that many right hon. and hon. Members have said that they wish to take part in this important debate, including no fewer than eight Privy Councillors, and that is unusual for a Friday. I hope that hon. Members will make short speeches today, so that as many hon. Members as possible may be called.

9.35 am
Mr. Richard Shepherd (Aldridge-Brownhills)

I beg to move, That the Bill be now read a Second time.

There has been much publicity in recent weeks about the nature of section 2 of the Official Secrets Act 1911, and I guess that every hon. Member who has served in this House over a number of years will have witnessed its progress and its effect on our national and social life. It has been well reviewed over those years during our debates and its deficiencies have been commented upon very effectively. Therefore, I will not overly trouble the House with such observations, because I have no doubt that many hon. Members will be able to cite their own instances of the way in which it has affected our society.

Any reading of the legislation will show that hardly any Minister or former Minister has expressed any support for section 2 as it is written now. There is almost universal recognition that it must go and be replaced by narrower, better defined and better targeted legislation. In that spirit, the sponsors of the Bill have tried to gather together the threads of the intellectual ideas that have been assembled over the past 15 or 16 years to identify the issues with which we have to grapple in our proposed reforms of section 2.

The wide drawing of section 2 of the Official Secrets Act 1911 means that the release of every piece of official information could possibly lead to prosecution. That has laid an appalling pall over our national life and has had certain consequences. It has affected the standards of the press in a curious way. A newspaper may take a stance on an issue every time an investigative journalist examines and discusses the very nature of our society. By implication, he must touch on those issues that affect our daily lives which are generated by information. Therefore, there is a stand-off with respect to section 2.

That was well put by Mr. Chapman Pincher in his evidence to the Franks committee, in which he cited the instance of a leaking radioactive plant in the north of England. He said that, at the time, the story was a considerable scoop for him and he wanted to publish it. However, he was approached by the permanent secretary to the Home Department and was blocked. His newspaper decided that the possibility of a prosecution under section 2 of the Official Secrets Act 1911, for which there is no defence if it involves official information, meant that it could not publish the story. I recount that example because right hon. and hon. Members will be aware of the very curious use of section 2 in its failure to make distinctions between matters that clearly involve national security and the generality of information affecting every area of life.

I begin with the proposition that, to have accountability in a democratic process, Members of Parliament and our electors who are equal to us as citizens must have information to judge the instances and views to which we can hold the Government to account. Against that background, and in that spirit, my right hon. and hon. Friends have proposed the measures in the Bill, that we are discussing today.

I want to run through the points contained in the Bill with close attention to the notes. Some of those are points of considerable principle. Under section 2 of the Official Secrets Act 1911, the unauthorised disclosure of any official information, significant or trivial, harmful to the nation's fundamental interests or not, is a criminal offence. The Franks report recommended, and succeeding Governments have agreed, that a more discriminating approach is needed with criminal sanctions applied only to disclosures of defined classes of information whose release would involve specific harm.

That was the basis of the Bill that the Government introduced in 1979, and it is the basis of the present Bill. We wish to distinguish between that information which should lead to criminal prosecution, and general information, which needs lesser disciplinary controls. Without that distinction, we will not have a free society.

The Bill applies only to specified classes of protected information. Disclosures of other information would not be a criminal offence. That is not to say that such information would become freely available. Much of it will continue to require protection, but that protection would not include the threat of prosecution.

The sanctions against improper disclosures are well understood in the Civil Service. A civil servant who does not show appropriate discretion in the handling of information cannot expect promotion; one who is negligent or deliberately leaks information may expect disciplinary proceedings and perhaps dismissal. The importance of those sanctions was stressed by the Franks Committee who, in paragraph 58 of its report, thought them "of greater practical consequence" than Section 2.

Information which is or has been held by a Crown servant or Government contractor by virtue of his official position is protected if it falls into one of the classes described in clause 1 of the Bill.

The clause protects information relating to defence, international relations, and security and intelligence whose unauthorised disclosure would be likely to cause serious injury to the interests of the nation or endanger the safety of a British citizen. The 1979 Bill that the Government introduced in another place adopted a similar approach, although the "serious injury" test was applied only to the first two of those categories. The Bill reflects the Franks report which recommended that, even in the fields of security and intelligence, criminal law should apply only if unauthorised disclosure would cause serious injury to the interests of our country.

Dame Elaine Kellett-Bowman (Lancaster)

Does paragraph (c) of clause 1(1) cover income tax inspectors who are currently under a lifetime vow of silence? If they are not advised to keep silent, they will have a field day with their memoirs, which would make recent disclosures look like chickenfeed.

Mr. Shepherd

I congratulate my hon. Friend on her elevation to "Dameship". I shall deal with her intervention as I go through the provisions of clause 1.

Information is also protected if it is likely to be useful in committing a crime, helping an escape from custody or otherwise impeding law enforcement.

Finally — I hope that this will answer my hon. Friend's question — certain personal information supplied to the Government, such as the details of someone's income declared to the Inland Revenue or information supplied by a person applying for social security, would also be protected. Those classes of protected information are based on those in the 1979 Bill, although they are narrower in certain respects. They do not include a separate class of offence relating to disclosures of information about telephone tapping, the interception of post, or communications received from other Governments.

However, disclosures of any such matters would be offences under the Bill if they were likely to result in serious injury to the nation's interests. No doubt we will come to the concept of serious injury during the course of the debate. It was dealt with in the Franks report and in the White Paper and is a concept well understood by right hon. and hon. Members.

Nor does the Bill include among its protected classes information received from or relating to companies and nationalised industries, as did the 1979 Bill. To do so would be to protect a vast amount of information on subjects such as nuclear and environmental pollution, food additives, pesticides, pharmaceuticals and consumer product safety. The fact that such information is covered by section 2 of the Official Secrets Act 1911 is one reason why there is general resentment and much disquiet about section 2.

Certainly, some civil servants handle commercially sensitive information obtained from private concerns, but so, too, do local authority officials who have never been subject to section 2. Should an official improperly disclose a company's trade secrets, no doubt he or she would be open to an action for recovery of damages under common law, which might involve potentially enormous personal liability.

Under clause 2 a civil servant who intentionally or recklessly discloses information contrary to his official duty commits an offence punishable — as under the Official Secrets Act—by up to two years imprisonment. Clause 3 contains similar provisions in relation to Government contractors. Anyone who obtains protected information — that includes journalists and ordinary citizens such as hon. Members and their constituents—commits an offence under clause 4 if he intentionally discloses information, knowing it to be protected.

Under clause 5, a person who improperly retains protected information contrary to his official duty, or after officially being asked to return it, commits an offence. However, the existing section 2 offence of merely receiving official information would no longer exist.

These provisions provide a considerable deterrent against the improper disclosure or publication of protected information. However, the Bill creates uniform defences, and that is an element that we consider to be an important contribution to the debate, on which we would like to hear the Government's views.

Under clause 6 it would be a defence for a person to show that the information he was charged with disclosing had already become publicly available, whether in the United Kingdom or elsewhere. That reflects one of the basic premises of the measure — that only disclosures which are likely to cause actual harm should attract criminal penalties. That was the Government's view on some of those issues when the 1979 Bill was introduced in the House of Lords.

A disclosure that merely repeats information which has already been provided would not be an offence, as the harm would have been done by the original publication—the contention of closing the stable door after the horse has bolted. However, the person responsible for the original disclosure would be liable to prosecution under the Bill.

Clause 7 contains a defence for disclosures which are in the public interest, although I must stress that it is very carefully limited in several respects. First, the defence is available only on specific matters: crime, fraud, abuse of authority, neglect in the performance of an official duty, or other misconduct. It would not be available to someone who merely disagreed with Government policy or claimed that Government policy was not in the public interest. In Britain, we settle such matters at a general election and the Government are entitled to maintain that the will of the people, expressed through a general election, affects policy matters. Moreover, the misconduct would have to be serious—sufficient to justify, in the public interest, the disclosure of information which should normally be kept confidential.

Secondly, there would have to be reasonable grounds for believing that such crime, fraud or misconduct existed. Suspicion or conjecture would not do. The defence would be available only in circumstances in which, faced with the same evidence, any reasonable person would be likely to reach similar conclusions.

Finally, in the case of a civil servant or Government contractor, although not in the case of a journalist, the defence would be available only if the person in question had previously taken all reasonable steps to draw the misconduct to the attention of the appropriate authorities, using established internal procedures, and those had failed. Disclosure could be justified only as a last—not a first—resort.

The principle of a public interest defence is, of course, not new. It is taken from the existing common law of confidence which has long held that a person cannot be bound to respect an obligation of confidentiality to conceal serious wrongdoing. In a 1968 judgment, Lord Denning held that the defence extends to any misconduct of such a nature that it ought in the public interest to be disclosed to others. He went on to say: It should extend to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always—this is essential—that the disclosure is justified in the public interest. In 1981 the Law Commission made proposals for a new statutory law on confidence and the draft Breach of Confidence Bill which it published incorporated a statutory public interest defence. The Attorney-General's consent would be required for any prosecution in which serious injury to the nation's interests was alleged.

In any prosecution involving information about defence, international relations, security or intelligence, a certificate signed by the Minister would be required under clause 8. The certificate would show that at the time of the alleged offence the information was properly classified and that its disclosure was likely to cause serious injury to the interests of the nation or to endanger the safety of a citizen. If the defence wished to challenge the assertion that serious injury was involved, that would be done before the trial took place by referring the matter, under clause 9, to the Judicial Committee of the Privy Council, whose decision on the matter would be conclusive. That is the only matter that would go before the Judicial Committee. The question of justification in the public interest or any other defence would be heard at the trial itself in the normal way.

It is curious that, as we have advanced through those years since 1911, charges under section 1—this Bill does not touch on section 1, which deals with crime, treachery, spying, espionage and so on — has been referred to a court of the land and tried in front of a jury of fellow citizens. That was considered appropriate in 1911. We have somehow retreated from the principle that we should be judged in matters of honour and integrity that affect our liberty by procedures other than by trial by jury of our fellow citizens. It is a matter of personal regret that the judgment of the sponsors was that that could not be met in the clause dealing with section 2, which involves much lesser offences. We have tried to look for a satisfactory route that would retain the confidence of the House and the confidence of the public beyond.

Clause 11 contains penalties for offences. These are identical to those in the 1979 Bill. We saw no reason to differ from the judgment of the Government. Of course, in the ordinary course of events, penalties or judgments can be altered to meet the requirements of the House as its perceptions alter. The Bill's provisions on classification are generally similar, although not identical, to those of the 1979 Bill. Ministers would be required, under clause 12, to classify documents whose unauthorised disclosure would be an offence involving serious injury to the national interest under this Bill. Regulations on the classification and marking of documents would be made under clause 13 and there would be an annual report to Parliament on the application of the regulations.

The second part of the Bill is different in intent. It contains two limited duties of publication. Under clause 15, Government Departments and certain other public authorities would be required to make available for inspection, copying and purchase the guidelines and rules they use in administering schemes affecting the benefits or penalties to which individuals may be entitled or subject. They may charge a fee to cover any administrative costs entailed. The object is to provide individuals with information about the rules under which they may be dealt with and allow them to satisfy themselves that they have been treated fairly. I must acknowledge that the Government are moving forward in that line and that that movement is appreciated by the public and by many colleagues on both sides of the House in that it makes it easier for us to judge cases in the instance of individual constituents.

Clause 16 requires Departments and authorities to make an annual report to Parliament on the steps they have taken to improve and increase public access to information within their control. The Bill does not, however, impose a duty on them to take such steps, but the publication duty may provide a modest incentive for them to do so.

The remaining clauses deal with miscellaneous matters. The definitions are, on the whole, based on the 1979 Bill, as are the provisions relating to acts done abroad and the schedule of repeals, which includes section 2 of the Official Secrets Act.

I have gone through that so that I have discharged my duty in trying to bring before the House the major instances and clauses to which the Bill relates. The sponsors and I approached the matter bearing in mind that it concerns every one of us as citizens and that it is appropriate that these issues should be discussed on the Floor of the House. We do not take the absolutist view that the Bill has everything and has to stand as is. However, we thought that it was an appropriate vehicle for a proper discussion of certain issues that deal with the relationship of the citizen to the state and the House of Commons to the Executive.

Mr. D. N. Campbell-Savours (Workington)

May I refer the hon. Gentleman back to the Ponting case? Does he believe that the prosecution would have been successfully brought against Clive Ponting had this Bill been legislation at that time?

Mr. Shepherd

If the hon. Gentleman will forgive me, I shall try to deflect requests to make a specific judgment on legal matters that have come before a court. However, one of the reasons why section 2 has not been used by the Government is that they do not have confidence in the fact that juries would take the same view as they do. In all fairness, that has confronted Governments of all sorts. When a jury of free English men and women are presented with an issue that does not involve national security and they are considering what may perhaps be only dishonourable conduct, which is essentially a disciplinary matter and could be dealt with in other ways, they look nervously on the possibility of finding a fellow citizen guilty, with the possible implication that someone may go to prison. That has caused great difficulties for all Governments. Juries now have difficulty in discerning the distinction between what is injurious to national security and what is merely inconvenient to Governments or bungling.

The former Secretary of State for Defence, my right hon. Friend the Member for Henley (Mr. Heseltine), is present. His repudiation of the charges on the Floor of the House was wholly convincing as to the line of Government, and I also thought that the identification of the principles of confidentiality and the duties of civil servants within the internal disciplinary arrangements of Departments of State was convincing. Perhaps that was an instance when that route should have been pursued. However, I claim no great wisdom on the detailed legal arguments that came before the House. I reiterate that no issue of national security was involved.

Mr. Tam Dalyell (Linlithgow)

Will the hon. Gentleman consider a situation where the dishonourable conduct may be less that of the civil servants than the behaviour of the politicians involved?

Mr. Shepherd

I am sorry, but I did not hear the hon. Gentleman.

Mr. Dalyell

The dishonourable conduct may be less that of the civil servants than that of the politicians involved who may have misbehaved.

Mr. Shepherd

We all have our own views on specific cases. I have tried to identify the reasons why I do not want to make a judgment on a particular issue without having had sight of all the documents available within a court.

The sponsors were kind enough to see me though, and we are grateful for the advice of a wide range of outside individuals, including the press, and a whole series of organisations and citizens.

I want to identify the three matters of principle that we believe should be brought to the attention of the Houses of Parliament. The first is the question whether a Minister should be both judge and jury in an issue concerning a certificate. That goes to the heart of our sense of what is right and proper. When it was in opposition, the Conservative party's position was that that was inappropriate. Lord Havers, then Sir Michael Havers, speaking as the shadow Attorney-General, identified that as the one issue that would not be satisfactory to our party. I hold by that still. It is one of those ironies of history that when we introduced a Bill we omitted that safeguard and it brought about considerable criticism in the House of Lords and from the general press as to our intentions.

The fundamental principle is that, if one is to retain public confidence in the fact that a Minister has not simply found in someone's favour — surprise, surprise — one must show the public that good and solid citizens with experience in such matters have looked at the issue, and in that way validate the judgment of a Minister of the Crown. I do not think that that is an unreasonable contention. It goes to the heart of our relationships in those matters. If a man is facing the possible loss of his liberty, he should be able to challenge the basis of that contention.

I know that the right hon. Member for Morley and Leeds, South (Mr. Rees), the then Home Secretary will be well able to tell us something about the doctrine of time and distance—that something of crucial interest to the nation in 1939 may have no validity today. Something of great injury to the state just two weeks ago may cause no injury today. The House should fully discuss this matter and I hope that the Home Secretary, when he at long last responds to these points, will say a few words about a principle which goes to the heart of any view of how we identify something which causes serious injury.

We now come to a more difficult concept, which has caused grave anxiety to myself and to some of my right hon. and hon. Friends—a doctrine which seems to be propounded through the courts, of a lifelong duty of confidentiality to the grave. The Bill reinforces the duty of confidentiality. It makes it clear to a civil servant that he will be dismissed, and possibly prosecuted, and, if so, that he may well face a criminal sentence and imprisonment of up to two years. Civil servants know where they stand. At present, because the law is so unspecific and because juries are failing to convict or accept the Government's views, there have been several cases—of which Ponting may be an example—in which a jury has taken a view different from that of the Government.

I regret that the Government will be in great difficulty as they pursue this matter through the courts. We have had the benefit of Mr. Justice Scott's views on it. He has considered specific issues and said that the triviality of information, the concept of public interest, is not so loose as is sometimes said. It is understood fairly specifically by the courts. He challenged the contention of Lord Armstrong, as portrayed before the courts — this instance is relevant in the present circumstances in respect of a particular book—by asking, if a group of servants of the Crown conspire to destabilise a legitimately elected Government, what would be our view on whether we should be informed of that. Mr. Justice Scott's verdict was clear, that we can never enjoin anybody to a lifelong duty of confidentiality.

My own instincts and judgment of who I am as a citizen would be outraged if we so bound a civil servant. Civil servants are often loyal, committed citizens, who well understand the constraints under which they work and who fully honour their obligations to society. By and large, they are honourable people. We are asking them, when confronted with something that goes to the very heart of our democratic processes, which talks to us about the form of our democracy, that they should in no circumstances reveal such information. I hold that to be a dangerous proposition.

Mr. Hugh Dykes (Harrow, East)

Although I agree with my hon. Friend, does he not conclude that that is why it is vital for the House to have all the appropriate scrutiny and surveillance of those matters, even within the framework of confidentiality and of Privy Councillors?

Mr. Shepherd

My hon. Friend echoes what I hold to be an extraordinary proposition, that this House may not consider any matter which affects our national life, our society and who we are. We struggled for 300 years to make this the forum of our nation's interest, so that we could hold Governments to account. Without access to information, we can hold no Government accountable. Without access to information for our fellow citizens, we can hold no accountability of Government. That goes to the heart of our jobs and duties as citizens.

I am always nervous of the contention that somehow we, as Members of Parliament, are different. We are citizens of the state, but we have the privilege and honour to have the opportunity, as I have this morning, to express some of the feelings of our society. This society changes all the time and the balance of a fair, open and progressive society is to try to relate the needs of the Government to the needs, passions and observations of ourselves as citizens.

That is why I hate the distinction so often made between class and form, as if there were something special about what the House of Commons may or may not consider. It goes to another theme of the debate. I strongly believe that if the House can be waylaid with any assertion that there are matters so confidential and secret — in terms of framework and the enunciation of general principles, not the detail of the application or the specific case— that a Minister of the Crown, the Executive, is not accountable to the people of this country, we have lost a sense of our most fundamental duty. I find it extraordinary that anybody takes a contrary view. This is a Chamber in which contrary views are argued, and I have no doubt that I shall hear some from my hon. Friends and from Opposition Members. I believe strongly in the importance of our asserting ourselves in these matters. That is why this lifelong duty of confidentiality contradicts our ability to hold an Excutive or a Minister accountable.

When information is out, can there be a defence for citizens who pass it on? When a piece of information has become common knowledge, or is knowable, because it is no longer protected — when the horse has bolted, however regrettable and however disgraceful the conduct of the citizen responsible—what do we do? That is what we must all ask ourselves. That is what people outside and the press must ask themselves. There is a great folly in trying to deny citizens information that is commonplace. Are we saying that there is something so special about us as citizens that we must not know this information? The French, the Germans and the people 2 in across the Irish border may know this information. The United States may know this information. Citizens of this country may even have access to this information if they are rich enough to have purchased it from abroad. We can listen on the radio to broadcasts in English from Denmark and Sweden.

Mr. Norman Buchan (Paisley, South)

Or from the Kremlin.

Mr. Shepherd

Are we to say that an embargo and an injunction on us forms our judgment on that information. It may have been absolutely criminal that that information escaped. It does not mean that the citizen who gave that piece of information should not be subjected to the rigours of the law. But, when the information is out, what do we do? I beg the Government to reflect seriously on that principle, because it has caused extraordinary difficulties for them.

I wish to go further. We must consider the relationship, because this affects the press deeply. I genuinely believe that the Government have a difficult case to convince the higher courts that a lifelong duty of confidentiality and enjoinment to the press that it may never repeat information, which goes to the heart of our democratic processes, will come to grief. By and large, our courts are regarded by most judiciaries in the English-speaking world with similar legislative instincts to our own as a conservative judiciary. The mere mention of the words "national security" tends to make them bend over in favour of a Government to accommodate a different course of action than is presently being pursued through injunctions.

I am also nervous that, if we do not take a step back and consider these issues reasonably, we shall end up in the European Court of Human Rights, and article 10 will be reinforced. I say that for two reasons. The press is an essential ingredient of freedom of discussion and holding the Government to account. By and large, we have a trivial and silly press. That is partly a reflection of the restraints placed upon it by section 2. It is important for individual citizens who are serious-minded to examine the contentions and proposals of the Government, which have come out into the open legitimately, but can be covered under section 2. It makes it too easy for Administrations to manipulate the information available to journalists and therefore has acted as a curb on a reasonable appraisal of legitimate information.

I shall cite a distinct difference in the press. Generally speaking, the quality of our financial and economic reporting is wildly superior to that of our general political reporting. There is a reason for that. I shall say it, but it will not endear me upstairs. We have manipulated our press for too long. A hallelujah chorus rejoices at every Government handout that is put their way, repeats it as though it were a masterful piece of investigative journalism, and passes it off as though there were veracity in it. That practice has been reinforced over many years. [Laughter.] Opposition Members are laughing, but they know that there have been moments when they themselves have rushed to confide secrets—if I had any they might be stymied by an embargo — to that little hallelujah chorus, who have related it to their newspapers.

By and large, financial and economic journalists are not interested in the procedures of the House. They work diligently, publish statistics and make judgments. That is a reflection on the Government's liberalisation of our economic life. We have an increasingly improving and superior press in relation to economic information. I applaud the Government for that. But, in regard to political information, we have created almost a vehicle for relaying untested political propositions. I have probably been guilty of that over the past few weeks. In the haste of a moment, I have given a particular account of how I stand and where I go.

It is easy to succumb to such a temptation. The press should stand up to it. It discredits them. Many serious journalists will not become lobby correspondents because of the symbiotic relationship between the hallelujah chorus, Government, Ministers and senior Back Benchers. They pass off untested propositions and we see them reported in the press as though they were one of the twelve commandments cast on stone and repeated to us by Moses.

We all know that "sources close to Government" invariably means the Minister himself. We know the code, but the public do not necessarily know it. "Sources at the heart of Government" invariably means a press officer from a Department or even, possibly, the Department. They are passed off as if it were of greater veracity and less challenged than any other piece of information. I hope that I have shaken that tree up there a little and that there will be more spunk and fight to bring to the people knowledge about the behaviours and proceedings of the House.

Over many years, the uncritical and slavish following of Government press handouts has done our country great injury. We see it on both sides of the House. It has trivialised important issues beyond belief. When riveting political issues are to be discussed in the House, a challenge to the authority and accuracy of Government is of interest to citizens.

Section 2 relates to the control of information. Every hon. Member has encountered instances of the way in which it has inhibited proper discussion. I shall recount some aspects that do not serve the interests of my party or of Government. I was on the first Committee dealing with British Telecom. The proposition was that we were liberalising and creating a competitive market for telecommunications. One essential evaluation—just for a judgment on it; an ability to improve a Bill—was of the creation of Mercury. It was cited as the nature of the competitive framework, in which, henceforth, British Telecom would have to operate.

That was a State secret. It was embargoed as being commercially confidential to, supposedly, the second competitive force. It eventually leaked out in response to parliamentary questions, long after the events when it would have been important. We learned that Mercury's share of the market was to be restricted to 3 per cent. of British Telecom's revenue. There is no way in which one can construct an argument for competition on that basis. As a consequence, what emerged, in my judgment—others may make their own judgment — was a thoroughly bad Bill. It could have been better made, could have better served the interests of the consumer, and better served the Government's concept, to which I fully subscribe, that a competitive market place serves us better than does a monopoly which is regulated or otherwise.

In the context of the spheres in which they have expertise, all hon. Members have encountered such reluctance to make available knowledge that would serve citizens and enable the press to hold to account. If we are to have respect for our institutions, we need the best forms of information. If we can get that information, we can hold Governments to account. They are general themes. I invite the House to support me and to examine the Bill at a later stage.

10.15 am
Mr. Merlyn Rees (Morley and Leeds, South)

I support the Bill. I compliment the hon. Member for Aldridge-Brownhills (Mr. Shepherd) on the way in which he presented our case. I shall remember what he said about the role of the House. Since I have returned to the Opposition Back Bench, I have often thought that, if we are treated like office boys, we shall behave like office boys. On the important topic of official secrets, section 2, we should be allowed to participate in the changes that must take place. They have been discussed for at least 30 years. Many of us can be blamed for the fact that we did not succeed. The issues are too complicated to be dealt with in the same way as, for example, an education Bill to bring in a national curriculum — it may not be well thought out, but the party of the day has won the election and will proceed with it.

Many of the issues in the Official Secrets Act 1911 are too complicated to be left to Ministers and to the meetings that take place in the Privy Council Office and the papers that come from them. The Government saw what happened to their Bill, which was different from the one that I hoped to have ready. Their Bill included clauses that civil servants had been pressing on me. The Government were new in office.

The Opposition want to participate in the reform of section 2. I suggest to my hon. Friend who introduced the Bill—I use that term deliberately—that, perhaps, this year, many of the issues that have been raised need to be thought out and teased out before they are translated into legislation. We can do that to the benefit of us all.

I have a few queries about the Bill, which I happily sponsor, but that is not surprising. I question some aspects of the Franks report. I was a member of the Franks committee, which was appointed by the then Prime Minister in 1972. As a former junior Minister at the pitch, I was pleased to spend a year or two with that great man, Lord Franks, as I was later to sit under his chairmanship of the committee on the Falklands war. He had a formidable mind, and both reports bear his imprint.

I also query some of the words that I used a few weeks after becoming Home Secretary. I hoped that there was one thing that I could do in that curious office—not much, as the Secretary of State knows. I hoped to reform the Official Secrets Act, but I did not do so. Perhaps I have learnt from the experience of the past few years. I hope that, even at this late stage, the Government will change their three-line Whip approach. There is a way in which the Bill, which I happily sponsor, can be used this year in advance of a White Paper. It would be a better White Paper if it were done in the light of discussions on the Floor of the House. There is a wealth of experience in the House.

Mr. Tony Baldry (Banbury)

We are paying great attention to the right hon. Gentleman as he is a former Home Secretary. As the debate pans out, much will depend on the judgment that the House places on the Home Secretary. The right hon. Gentleman will appreciate that in former times we have been in Opposition, and he will recall the Agee and Hosenball case, when my right hon. and noble Friend Lord Whitelaw said: I believe that in the end, in cases like this we have to trust the judgment of the Home Secretary. I am prepared to do so because I believe that it is part of our constitution to trust the judgment of any Home Secretary in these circumstances …I cannot conceive that he would have taken this decision unless he had been totally convinced that it was in the interests of this country and its people".—[Official Report, 3 May 1977; Vol. 931, c. 407.] Does the right hon. Gentleman believe that he and the Opposition should show the same courtesy and belief in the judgment of the Home Secretary today when he advises the House—

Madam Deputy Speaker (Miss Betty Boothroyd)

Order. I hope that interventions will be interventions and not speeches. Will the hon. Gentleman come to a conclusion?

Mr. Baldry

Does the right hon. Gentleman believe that he and the Opposition should show the same courtesy to the Home Secretary as was shown to the Labour Government by the Conservative party?

Mr. Rees

The hon. Gentleman is speaking about a quite different issue. I was not operating the Official Secrets Act. If it had concerned that Act it would have been taken out of my hands and would have been in the courts. We are talking about legislation. The Home Secretary is a lonely man or woman—

Mr. Baldry

The right hon. Gentleman is missing the point.

Mr. Rees

Agee and Hosenball related to the immigration laws. Daily, the Home Secretary is making decisions under the new immigration legislation, which is much the same in essence. He made a decision last week for example, that was reported in the newspapers, to deport someone under the same terms as I deported Agee and Hosenball. If the attitude of the hon. Gentleman is the way that we are to deal with the reform of the Official Secrets Act, no wonder it has been kept under the hat of the Government—it is irrelevant.

We should use the Bill for the benefit of the House and, eventually, for the benefit of the country.

It is interesting to note how attitudes have changed since the White Paper of the 1966–67 Wilson Government on information policy. The Franks committee took evidence from a wide group of people and officials, including the security services, about who will do the prosecuting, how prosecutions under the Act should take place, what is the duty of the citizen and who controls prosecutions. The main point—it is what I want to talk about today—concerns classification. It is on the basis of classification that any new law will have to operate.

I have had a quick look at chapter 2 of the Franks report. One of the main problems that the Law Officers and the Home Secretary face is that section 2 is a catch-all. I got into trouble when I was first Home Secretary, having come from the Northern Ireland Office, when I used the phrase, to describe my reform, "We are moving from the blunderbuss to the armalite." I meant that one was sharper with regard to targeting. Many people took a dislike to that analogy, but I believed it to be true. Section 2 of the Act catches everybody—all Crown servants, every civil servant and every Minister of the Crown.

When one reads the memoirs of eminent former Prime Ministers and others, one notes that the Official Secrets Act is broken all the time. They keep classified papers—there may be some present today who have done so—and in so doing they are breaking the law. Many of those papers concern aspects of national security. Many civil servants feel a little angry that they are treated in one way and politicians in another.

How does section 2 work? I remember being surprised when the Franks committee was taking evidence from senior civil servants. Despite the catch-all nature of section 2, in the report we said; Nevertheless governments regularly reveal a great deal of official information. These disclosures do not contravene section 2. A Crown servant who discloses official information commits an offence under the section only if the information is disclosed to someone other than a person to whom he is authorised to communicate it, or a person to whom it is in the interest of the State his duty to communicate it. We continued: The Act does not explain the meaning of the quoted words. We did not know what they were on about. We were told that people from the Treasury went to lunch every day in the City — those were the days of fixed exchange rates; a different world, maybe—and broke the Official Secrets Act. Why? It was because they were authorising themselves.

When a Minister leaves the Cabinet meeting—this goes on all the time—he says, "Yes, I told the old chap where I stand", or, nowadays, "Yes, I told her where I stand." They give information to what is now called, the hallelujah chorus, tell it what went on in Cabinent and give details of who said what to who. They are not breaking the Official Secrets Act because they are authorising themselves.

The Government are going up a blind alley about this new concept—it is not new because many civil servants have signed a document referring to a lifelong duty of confidentiality—because they are ignoring the question of authorisation. The information will not be locked up for ever. Thus, there is dispensation from lifelong confidentiality.

We decided that too often the Official Secrets Act was used to protect not the interests of the state or the country, but to protect the political interests of the Government of the day. This does not relate to section 1; this is not the spying clause arising from spying in the dockyards before the first world war. I should say to the hon. Member for Aldridge-Brownhills that one part of clause 2 should he in clause 1. It is akin to the spying aspect of clause 1, and that can be considered in Committee.

So, because it is important to what we do to show the change that takes place, by the time that I announced' legislation in November 1976, I said that the Government would move only to prosecute "secret and above". Below that, the matter would have to be dealt with by the discipline of the organisation. We decided, unlike the Franks Committee, that Cabinet documents should not be protected. The Franks report, based on the experience of Oliver Franks, felt that Cabinet documents, whatever was in them, should be protected by the Official Secrets Act. I wish that I had had more experience at that time because that was not the way to go. When I became Home Secretary I said that Cabinet documents would be protected only if the information in them was "secret or above". In other words, it was on the basis of classification.

We said that economic information would not be protected per se, as recommended in the Franks report.

I went to speak for Mr. Ponting, who deserved to be dealt with within the Department, but who certainly should not have be dealt with under the Official Secrets Act. The then Labour Attorney-General kept his distance, as I am sure the present one does, from Ministers. When he heard what I was to say he said, "Will you remind the House on the basis of the position in the 1950s when the House voted in principle against capital punishment and the death penalty was not used afterwards?"

Whatever the law was, after the vote in the House the Home Secretary would not allow people to be hanged. He intended to proceed with prosecutions under the Official Secrets Act on information classified as secret and above. We operated in that way for the next two or three years.

The question was: why did I not introduce legislation? There were two reasons, which show the benefit of this legislation. First, most of my colleagues on whom I depended wanted a Freedom of Information Bill attached to any such legislation. I saw no way of coming to the House with a reform of section 2 of the Official Secrets Act plus a Freedom of Information Bill showing how information should be made available and getting them through, not least because I did not think from our discussions that we were clear about what we meant. I wanted reform of section 2 of the Official Secrets Act providing for only "secret and above" and a Freedom of Information Bill later.

There could be an examination in Departments such as the Department of Education and Science—which have probably never seen a document marked "secret" — to find out how information could be made available, unencumbered by the question whether to make it available.

Secondly, it was the time of the Lib-Lab pact. I was not prepared to come to the House of Commons under the control of the Liberal party on important issues. Not many members of the Liberal party had any experience of Government — rather like today — of writing a constitution. [HON. MEMBERS: "What was the issue?"] The issue was that the Liberals did not know what they were talking about.

Mr. Alex Carlile (Montgomery)


Mr. Rees

The hon. and learned Gentleman must allow me to continue. It was an important Bill which I would have had to take through the House. I remember my experiences when we used to sit with Liberals in a little room near the Chamber. When we were considering a Post Office Bill the Liberals said, "We shall not support the Bill if there are three worker directors instead of two", or something like that. Well, OK, I could afford to take a couple of winks while that was discussed. But I was not going to be controlled by the Liberals on official secrets. All I am saying is that we were a minority Government. It is a fact that the Liberals had no experience of Government. That is not meant to be basically offensive.

I proposed other changes in the White Paper. The issue is so complicated that the more one looks at it, the more, as time goes on, one sees the further changes that should be made. Of course, we had to do something about freedom of information, but there was no way in which we could get legislation passed, and a Green Paper was published. The then Clement Freud, now Sir Clement Freud, proposed a private Member's Bill in 1978–79. The Minister of State, Home Office, my hon. Friend the Member for Pontypridd (Mr. John), handled it on the Floor of the House. In our Green Paper we said: Some aspects of the reform have recently been discussed in Standing Committee on the Official Information Bill now before Parliament, and the Government will be making further proposals at the Report Stage which will reflect the White Paper policy. But we had run out of time—a general election was approaching and we could not have gone any further.

While in office we produced a Bill, which I shall willingly make available. I think that I could authorise that. Legislation was being prepared, albeit hastily because we were not in a position to do otherwise. Ministers should look at it. That legislation should be made available. The Bill which the new Government then produced was not exactly the same, and it failed. I asked the Library to find comments on why the Bill failed. A Press Council release said: Contrary to the Franks Committee's proposals it severs the link between classification and protection. For that reason, the media were apparently not happy. Some people, including the Labour party, said that under the new legislation there could not have been a full discussion of the Blunt case. I do not know about that; I only know that the Blunt statement which the Prime Minister read out was the one that we had ready to read out, had we still been in office.

Mr. Tony Benn (Chesterfield)

Why was it not revealed?

Mr. Rees

The Blunt affair had not broken then. I did not regard the Blunt issue of 20 or 30 years ago as important. But the hallelujah chorus loved it, even though it was about 30 years old. I thought that the important issue was what was happening at the present time. I sometimes think that a good leak is the best way of dealing with the hallelujah chorus.

There has been a drift in this Government. That drift occurred not because the Government did not have a majority — they can do almost what they like—but because of events. The hon. Member for Banbury (Mr. Baldry) asked me about Agee and Hosenball, a different issue. I would have supported the Government had they prosecuted Chapman Pincher under section 2 of the Official Secrets Act for "Their Trade is Treachery", which contained much of the same information that was in the Wright book. Pincher now says that he was authorised by a senior official of the security services, but my view is that the Government made a grave error in not prosecuting him.

Mr. Benn

Is my right hon. Friend now saying that he thinks that the Government were right to prosecute to try to prevent publication of the Wright book?

Mr. Rees

I did not say that.

Mr. Benn

I am asking my right hon. Friend to make this clear. He has admitted that, as a Minister, he knew things about national security — notably on the Blunt case—about which he kept quiet.

Mr. Rees

On the Blunt case, I thought that, unless it was necessary, it should not be said that the man, who had been found out 20 or 30 years before, had been a spy. What was the point of revealing that news if his former masters did not know that his cover was blown? That is all. It was not a very important issue. I did not think that the Blunt case was important years after the events occurred and was prepared not to say anything about it.

Parts of the Chapman Pincher book should have been prosecuted under section 2 of the Official Secrets Act. Some relevations in the Wright book should have been dealt with under section 2. [HON. MEMBERS: "How?"] The question is how could that have been done, because he had gone away. Of course, that could not be done with Wright, but it could have been done with Chapman Pincher, whose book contained the same information from the same source as the Wright book. As for the part of the Wright book about dirty tricks, I will never let go. But other aspects on the time basis could easily be published. Some should not have been published. There will always be some aspects of the policies and actions of the security services that should not be published. The Bill does not say that everything should be published. We say that crimes concerning "secret and above" should be prosecuted, and not anything below. Because of the Government's dilatoriness, the Ponting events occurred. I am clear about Ponting: he should not have been prosecuted under criminal sanction.

Mr. Buchan

I am slightly disturbed by what is being said. Is my right hon. Friend saying that Chapman Pincher and not just Wright should have been prosecuted? I should have thought that he should say that instead the allegations should have been immediately investigated, hearing witnesses under oath, and that if any people were to be prosecuted it should be those who carried out the subject of the allegations.

Mr. Rees

I am making a distinction between the two. I have argued on the Floor of the House for an inquiry into the allegations.

Mr. Buchan


Mr. Rees

I have. It is not a question of saying, "True". I am not talking about the allegations. I am merely saying that some aspects of the book plainly contravene section 2 of the Official Secrets Act.

Mr. Benn

But my right hon. Friend wants to amend it.

Mr. Rees

Prosecution would still take place in some circumstances under the Bill that my right hon. Friend and I support.

Mr. Peter Archer (Warley, West)

Let me intervene just so that we will not be at daggers drawn over what may be a misunderstanding. I understand my right hon. Friend's assertion that they were infringements of section 2, but is he saying that it would necessarily have been in the public interest to have prosecuted under section 2?

Mr. Rees

That is a different matter. I am saying that, prime facie, the Attorney-General would have to examine aspects of the book and decide whether to prosecute. That would remain true under the Bill, which does not sweep aside prosecutions under the Official Secrets Act.

Mr. Michael Mates (Hampshire, East)

The right hon. Gentleman also said—if I heard him aright—that there were parts of the Wright book that he would never let go. That means that he would have had to take exactly the same measures as this Government to try to prevent those very parts of the book from entering the public domain.

Mr. Rees

Let me give the hon. Gentleman a reply as blunt as the reply that I gave to my right hon. Friend the Member for Chesterfield (Mr. Benn). The answer is no. The information is half-way round the world; it is everywhere. What is the point of locking the stable door now? I refer only to certain parts of the book, because it does not matter whether the greater part of the book is published.

On serious injury, classification and national security, I would like to suggest how the Bill might be handled. I have just read a brilliant book about Rab Butler by Anthony Howard of The Observer. It refers to a private Member's Bill that came up on a Friday, which sought to loosen the bonds of literary censorship: Rab, to the surprise of those used to the Home Office's obscurantist ways, had directed that the Department should not oppose the Bill but instead had authorised one of his junior Ministers to suggest that it should be passed to a Select Committee so that it could be put into a more workable form. That took a year, and all aspects of the Bill were questioned.

Let me tell the Home Secretary what I think should be questioned in this Bill. On classification, evidence should he taken from civil servants. I query the way in which we have been dealing with classification. On television last night the former Lord Chancellor said that this was not the judges' role. He said that they were not very good at constitutional matters, although I am not sure that classification is a constitutional matter. Evidence should be taken from senior Civil Servants on how classification is carried out.

What about time? I saw all the papers of the second Franks Committee on the Falklands war, which, so the committee said, dated back to 1965. I went through all those papers from the Foreign Office and Ministry of Defence on behalf of my colleagues as part of our analysis. It was interesting to note that all the papers had been taken in when the Government changed, on the ground that the new Government must not see the documents of the previous Administration. Exactly the same paper was put forward to the new Government. They were not allowed to see the paper that had gone to the previous Government; they just saw the same information. Would that some of that information had been published. It would not have been to the detriment of the services had much of the information on the Falklands been published earlier.

How do civil servants deal with the time aspect? If I gave someone some of the classified documents that I have at home now, it would not matter a tinker's cuss. Those documents date from 20 or 25 years ago, but they are still classified. There is more to classification than what appears at the top of the paper. Sometimes classification depends on whether there has been time to look at the documents and on whether civil servants have been available to downgrade them. Let me give an example. After the Ulster workers' strike, I commissioned a paper in the Northern Ireland Office on what might be done in Ireland. It dealt with dominion status—whatever that meant—and the whole range of options. It was time to reassess. A heavy classification was placed on that document, quite properly, because people's lives —especially in the security forces—would have been put at risk if people had thought, "My God. They are considering pulling out." That document could be published now. Indeed, it could have been published a year afterwards. It is a very interesting little document, although it does not get one very far.

Mr. John D. Taylor (Strangford)


Mr. Rees

Nevertheless, I bet that that document is classified as secret in the Northern Ireland Office, and it need not be.

I have mentioned the role of the judiciary. Let me make one point to the Home Secretary about something that has cast doubts on the Government's injunctions and so on to deal with lifelong confidentiality. In The Times on 10 December, Lord Hunt of Tanworth, taking the context of the Civil Service, Sir Robert Armstrong and the leading article of the day before, wrote: In this context the issue of lifelong confidentiality is a red herring: what that argument is about is unauthorised disclosure. Yet the Government are pursuing that line. Why should not a Select Committee of the House have a chance to question Lord Hunt — to ask him why, as a distinguished former Cabinet Secretary, he takes that view?

We need to examine the role of the Law Officers and the Cabinet Secretary. I make no personal comment about Lord Armstrong, with whom I worked for many years; I am not talking about him. However, over the past year, I have thought that we need to examine the role of the Cabinet Secretary in relation to the Official Secrets Act. We need to examine the role of the permanent undersecretary in each Department. How do permanent undersecretaries view their role? It was handled badly in the Ministry of Defence at the time of Blunt. Something went wrong in the Ministry of Defence, I presume before the matter reached the Law Officers. It does not normally work that way.

Let me give an example from Northern Ireland. A man was giving documents to a member of the hallelujah chorus. The documents were dropped through the door of a house in Bangor. The lady who cleaned there was the wife of a policeman and she took the documents, which were marked confidential, to the police. Eventually, the permanent secretary told me about the case. He said, "It is a matter for the police, but what about the Official Secrets Act?" I asked what the files were about. They were about a committee that I had set up to end black propaganda on the part of the Army. I considered them not to be so important and when the question arose whether there should be a prosecution I expressed the view to the Attorney-General that there should not be, but that it was a matter for him to decide. No prosecution took place. Disciplinary actions were taken but that did not mean that the case warranted the application of the Official Secrets Act.

The Government should set up a Select Committee. By all means, let them publish their own White Paper while the discussions are taking place, but let them give the House a chance to discuss the issues. If they do not, we shall end up with a White Paper but there will be no legislation this year and I would be astonished if there were legislation next year. The questions on a number of these issues will be far too difficult. The arguments will take place on the Floor of the House and in Committee. We could have such discussions now, on this Bill. At the end of the day, the Government will have control of the proceedings. They could kill the Bill today or at any stage in Committee. They have a majority of more than 100, even given that Conservative hon. Members will vote against them. But let them give the House of Commons a chance to discuss the matter by setting up a Select Committee, as Rab Butler did many years ago to deal with a Bill. If they did that, they would be doing the House a service, just as the hon. Member for Aldridge-Brownhills has done us a service, particularly in the manner in which he presented his Bill.

10.48 am
The Secretary of State for the Home Department Mr. Douglas Hurd)

It may help the House if I set out at this fairly early stage in the debate the Government's views on the Bill introduced by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). The House will be grateful to my hon. Friend for providing us with the opportunity for a debate—[Laughter.] I have always said that. I congratulate my hon. Friend on the full, lucid and engaging way in which he set about his task today.

The question in the debate is not whether section 2 is acceptable, for we all know that it is not. Section 2 is too wide and too weak. It tries to cover too much ground and, partly for that reason, does so ineffectively. Of course, in practice, prosecutions are not brought against civil servants who disclose the colour of the carpets in their offices or what was on the menu in the staff canteen. But it is wrong in principle that the criminal law should, even in theory, deal with such trivia. As the right hon. Member for Morley and Leeds, South (Mr. Rees) said, the catch-all character of section 2 has serious practical consequences. It means that people are uncertain about the circumstances in which they are at risk of prosecution and conviction. Because section 2 is potentially oppressive, since it covers such trivial matters, it has come to be regarded as oppressive in all circumstances, and the misleading impression has got about that section 2 is concerned only with trivial matters.

For those and other reasons, the conclusion that section 2 needs reform has been common ground, at least since the Conservative manifesto of my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) in 1970. That thought underlay the report in 1972 of the Franks committee, which was appointed by my right hon. Friend and his colleagues. It underlay the White Paper, whose proposals were based on the Franks report, which the right hon. Member for Morley and Leeds, South and his colleagues published in 1978. It underlay the Bill that the Conservative Government introduced when they took office in 1979. My right hon. Friend is right to say that, as it stands, section 2 has no defenders.

In 1979, it was widely expected that a Bill to fulfil the long-held ambition of narrowing the scope of section 2 would be received with reasonable enthusiasm. It was hoped that the proposals in the Bill, which were based on the Franks report and the 1978 White Paper—the right hon. Member for Morley and Leeds, South now says that he would have acted differently — would be widely supported. That was reasonable, but it turned out to be wrong. The 1979 Bill was lost in a thicket and had to be withdrawn. Some parts of it attracted very strong opposition. I am thinking especially of the fact that it would have protected all information relating to security and intelligence and would have provided for the tricky question whether the disclosure of information relating to defence or international relations was likely to cause serious injury to the interests of the nation to be decided by a Minister of the Crown. The Bill ran into trouble on those and other grounds.

Since 1979, the Government have put no proposals to Parliament. That was a reasonable stance for my right hon. Friends to take for some time after the collapse of the effort in 1979. After long consideration by different Governments, a substantial effort had been made and a major proposal put forward. The debate that followed in 1979 showed the difficulties but did not provide the answers. It was legitimate for my right hon. Friends, especially those who had had a hand in that enterprise, to make the distinction between criticising section 2 and reforming it. The first was easy — it was common ground. The second had been genuinely attempted and found to be dauntingly difficult.

When, early last autumn, my hon. Friend first contemplated his Bill, he might reasonably have thought that that was still the Government's position. He may have thought — although, as he knows, I went as far as I could as fast as I could to enlighten him — that the choice lay between a private Member's Bill and the inertia of a Government still nursing their burnt fingers, still fearing the fire and refusing to do anything sensible or effective about section 2.

That is not the position today. The question before the House is not whether a further effort should be made to improve the Act. As I shall try to show, the choice is between taking this Bill forward and waiting—not for very long — for fresh proposals from Government on which Parliament can decide.

On 3 February last year, we had an interesting debate in the House—I rather think that it was a Supply day of the late, lamented Alliance—in which I made it clear that the matter should return to the agenda. Since April 1987 — I gently underline that date — Ministers and officials have been working on a thorough and deep review of section 2 to establish whether the difficulties can be overcome and the Act reformed. By the end of last year, we had reached a point which enabled me to announce to the House on 15 December that we had made enough progress to be able to promise a White Paper in the summer and to work towards early legislation thereafter. So—trying to put it fairly—we had the coincidence of my hon. Friend gaining first place in the ballot and being keen to take forward a subject of major importance on which he felt strongly, but on which, unknown to him when he began to think about it, the Government had already embarked.

That has created a tactical position which is painful for my hon. Friend and for me and the Government, although it is not the fault of either of us. We are faced with my hon. Friend's Bill, yet we have not reached conclusions on several of the matters that it covers. I make no apology for that and, especially after the fascinating speech of the right hon. Member for Morley and Leeds, South, who talked about the murky confusion that prevailed in 1978–79, it is not open to the Opposition to chide us for taking more than 10 months on a matter which took them five years with no legislative result. I regard the right hon. Gentleman as the hare who has bounded about in this race for some time and myself as the tortoise, who started much later. We shall see who reaches the winning post first.

As any reader of the Franks report can see, this matter goes to the heart of government. As the right hon. Gentleman said, it is not a matter on which Ministers can take a general decision to legislate and officials of one Department can go away and work up a proposal. This involves many agencies and Departments. Not only the principles, but the details are crucial to them. That is why it is not sensible to scratch and scramble at the issue. It is not sensible to take at a gallop the necessary detailed work to get round a tactical difficulty. It would not be sensible for Parliament to plunge into the subject without having before it the Government's proposals.

Mr. Allen McKay (Barnsley, West and Penistone)

Will the Minister answer a simple question? Is there anything in this Bill which he would not have in his?

Mr. Hurd

If the hon. Gentleman has been following my exposition, he will understand that I cannot answer that question — [HON. MEMBERS: "Oh!"] Perhaps I should try to explain it again. In 1979, following a period of Government by the Labour party, which made no such major effort, the Conservative Government made a major effort which was defeated. For some time after that, the view was that the subject was too difficult. That view no longer prevails, and since April 1987 a major effort has been under way. I suppose that we are about two thirds of the way through that effort, but it would not be sensible to set before the House, as a critique of my hon. Friend's Bill, the two thirds of the ground that we have covered and our provisional conclusions. Hon. Members will accept that, once we have covered all the terrain, Ministers will consider the full picture and ratify the provisional decisions that have been made. It is precisely to avoid such confusion that the Government are taking the line that I advocate on the Bill.

Mr. Roy Hattersley (Birmingham, Sparkbrook)

This is a small question, but one on which the entire debate may turn. As I understand it, the Home Secretary is saying to the House, with as much authority as the Government possess, that the Government believe that the House should wait until June; however, they will not tell us what we should wait for.

Mr. Hurd

What the right hon. Gentleman is being asked to wait for is a White Paper in June, followed by a debate in the House before the summer recess, to which my right hon. Friend the Leader of the House committed us yesterday. That will be followed, we hope, by early legislation, which will be considered and decided in the House. It will then be for the House to decide whether it likes the proposals.

Mr. Campbell-Savours

What does "early" mean?

Mr. Hurd

The hon. Gentleman has been in the House for long enough to know what "early" means in this context.

My hon. Friend the Member for Aldridge-Brownhills has tried to be helpful. He has offered to take on board any specific points, and has been ready to negotiate changes. But, as he knows, and as I have just explained, we are not in that position. We have worked out our own ideas on some points, but not on others. It would be silly for Ministers to start pronouncing on part of their work until they can consider the whole. The Committee stage of a private Member's Bill can, of course, be interesting and fruitful, but equally it can be unpredictable and confusing, because neither the private Member who is sponsoring the Bill, nor his hon. Friends, nor the Minister is in effective charge. I am sure that it is much better to proceed instead in the orderly way that is traditional for important legislation on the machinery and methods of government. There should be a Government Bill on which Parliament should pronounce. The Government should propose, and Parliament should dispose.

Mr. Dykes

I am grateful to my right hon. Friend for giving way. Perhaps he does not realise that he is being condescending— accidentally or unwittingly — which is not normally characteristic of him. Does this not make matters more difficult for the House? Can he not even give some putative, theoretical examples of the difficulties of reaching final conclusions at this stage? Otherwise he is saying, in effect, what hon. Members on both sides of the House will resent: that the subject is not suitable for parliamentarians.

Mr. Hurd

My hon. Friend is simply not following my argument. Not only is the subject a matter for parliamentarians, but it is a matter on which only Parliament can decide, and which Parliament will wish to discuss in detail. I am merely suggesting that is better for that detailed discussion, and those decisions by Parliament, to take place on the basis of proposals put forward by Government.

I was flattered by the constitutional doctrine advanced by my hon. Friend the Member for Banbury (Mr. Baldry), but I am not asking the House to accept a blank cheque on the basis of trust in my judgment. We are not implying that these are matters for dictation by Government, rather than for discussion in Parliament. I certainly would not ask the House to accept my views on how the law should be changed without discussion, as though the fact that they were my views, or those of my right hon. Friend the Prime Minister, settled the matter. That could not conceivably be proper.

Parliament, not the Government, will decide whether section 2 is to be reformed, as we were reminded bitterly in 1979. What the House must decide today is whether, on a matter that lies at the heart of government, to proceed with a private Member's Bill or to wait for a short time—we have defined a short time—until the House can analyse and consider the Government's proposals. It is plain to me which of those two courses offers the greater opportunity for reflection, discussion and a good outcome.

Another fairly dotty notion going the rounds is that the Government intend simply to propose some tyrannical tightening of the Act. That would suggest that we would have no regard to the Franks report, to the 1979 experience or to today's debate. It surprises me that anyone should take such a charge seriously. After all that has happened, it would hardly be sensible for us to suppose that either House of Parliament would accept such a measure.

Mr. Buchan

If the Home Secretary is taking that view —if, indeed, he takes a view indicating basic agreement with the hon. Member for Aldridge-Brownhills (Mr. Shepherd)—,why in heaven's name should a senior civil servant of this country, and indeed the country, be put into the ludicrous position of pursuing past tales from one court to another throughout the world? If that is the intention, it does not add up.

Mr. Hurd

The House has had a full account of, and debate on, the attitude that the Government have taken during the different "Spycatcher" trials, and I do not wish to be diverted to that subject now. I am merely saying that it is dotty for any serious critic or commentator to suppose that we would see any point in putting forward to either House a substitute for the Bill that simply presented some tyrannical tightening of the Act.

Mr. Alex Carlile


Mr. Hurd

I want to get on, because, as you, Mr. Speaker, have warned us, many hon. Members wish to speak, and the speeches so far have taken up a certain amount of time.

Let me go over the terrain to illustrate the point that I have just made. We want legislation that is effective, enforceable and reasonable. "Effective" means clear and intelligible. "Enforceable" means that the legislation should not pose undue challenges to the prosecuting authorities or the courts. "Reasonable" means that new legislation should not just bring about a narrowing of the scope of the criminal law, but should command the confidence of juries. That involves taking into account the criticisms made of the 1979 Bill.

Anyone who wishes to narrow the "catch-all" range of section 2 faces the same set of complex and sensitive issues. Once we decide that it is wrong for the law to penalise all unauthorised disclosures of official information, we have to tackle the problem of deciding what disclosures of what information should in future be unlawful. That sets off a series of interrelated questions. We have been steadily working our way through those questions since last Easter, and we have not yet finished the work. They are the questions addressed by the Franks committee, the Labour Government and now my hon. Friend.

What are those questions? First, we must ask to what categories of information the legislation should apply. The Franks committee recommended, for example, that all Cabinet papers should be protected, as should all information on currency and the reserves. We concluded that it was not necessary to cover those categories in the 1979 Bill. Should we now go back to Franks, should we stick with the 1979 categories, or should we narow the field still further?

Everyone would agree that security and intelligence information should be covered, but, in our view, that is not enough. For one thing, sensitive defence information must clearly be protected. But how much more information needs the safeguard of a criminal sanction? Should it just be Government papers, or should it also be information provided in confidence to the Government?

Once we have got through that filter, we are faced with another set of questions. Should the disclosure of any—I stress the word "any" — information in certain categories be an offence, or should it be an offence only if the disclosure is likely to cause damage? If we decide that there should be some test of the damage likely to be caused by disclosure, should there be one general test, or different tests relating to different categories of information?

Sir Nicholas Bonsor (Upminster)

As my right hon. Friend knows, I am one of the Bill's sponsors. When the Bill was first put forward, none of us knew that the Government were proposing legislation.

My right hon. Friend said earlier that the House had a choice between this Bill and Government legislation later. Surely, however, the result of today's three-line Whip is that the Bill cannot proceed to a Committee stage. Therefore, the points that he says are at the heart of the proposals for his legislation cannot be discussed now. Would it not be very much to the Government's advantage if the Bill went to Committee and the issues were fully explored? That would give us a clearer indication of what the Government should do before my right hon. Friend puts forward his legislation.

Mr. Hurd

That is the difficulty. My hon. Friend has put it very well. I do not deny that there is a difficulty. I am illustrating the wide terrain that a measure has to cover, to show that we are not after some quick snatch at the issue—some tyrannical measure that simply buttons up the mouths of officials. We are covering that ground, but we have not yet finished covering it. The difficulty of going into Committee at this stage is that we are not ready with our proposals on all the points involved.

I have pointed out the new development since my hon. Friend the Member for Aldridge-Brownhills started his initiative. We have been at work on the matter since Easter, and have committed ourselves to producing a White Paper with our proposals by June. Of course there will be a Committee stage; of course it will be a detailed examination. However, I feel that that Committee stage should be on the basis of Government proposals.

Dr. David Owen (Plymouth, Devonport)


Mr. Campbell-Savours


Mr. Hurd

I shall give way—I think for the last time —to the right hon. Gentleman.

Dr. Owen

Surely the time for a three-line Whip, if such a time ever exists with a private Member's Bill such as this, is on Third Reading.

Mr. Hurd

I have tried to explain why I believe that the procedure that we are proposing is sensible and orderly. The choice before the House is whether to follow the procedure that we have outlined during the past few weeks or to give the Bill a Second Reading and sent it into Committee when Ministers have not cleared their minds on their ideas on answers to some of the questions that have been raised.

The facts are that since last Easter we have had in hand a serious enterprise to find an acceptable replacement for section 2. That work is taking us over the issues that I have described, many of which are addressed in the Bill, and a White Paper with a view to legislation at the earliest opportunity is a commitment — I repeat that I hope to lay the White Paper before Parliament in June and, as my right hon. Friend the Leader of the House made clear yesterday, the House will have an opportunity to debate it before the summer recess—

Mr. Tony Marlow (Northampton, North)

Will my right hon. Friend give way?

Mr. Hurd

I am coming to an end. I believe that this is the orderly path to a reform of section 2.

My colleagues and I will listen attentively to the rest of the debate. My hon. Friend the Member for Aldridge-Brownhills has had his success and nobody can or, in my judgment. would want to take away that success. [Interruption.] My hon. Friend has had his success. He has had his debate. He has taken his initiative and secured from the Government assurances which I think most people would regard as adequate. The orderly path now is to wait — not much longer, but a little longer — to digest and discuss the Government's proposals and any amendments proposed to them and for Parliament to decide in a measured way whether those proposals are ones which it wishes to take forward.

Nothing will be lost except a little time. After 76 years, that is a small price to pay for the chance of putting to rest an issue which, as the right hon. Member for Morley and Leeds, South so clearly illustrated, has troubled successive Parliaments and Governments.

This is not a languid, academic or spoiling exercise on my part. Perhaps I could add a personal word. I have worked as a Crown servant for 14 years and as a Member of this House for another 14. From both angles I have watched this problem deteriorate. The morass has become muddier, the thicket more impenetrable.

Many Governments, including this one and the Labour Government, have put out more and more information, but they have found it more difficult to protect that small portion of what one might call official information which has to be protected. I have believed for some time that the task of reforming section 2 has now become crucial for the proper functioning of modern democratic government in Britain. We now have a choice of procedures. I believe that we have set about the issue in an orderly and sensible way. That is what we intend, and it follows with regret that I must recommend that the House does not give the Bill a Second Reading.

11.14 am
Mr. Roy Hattersley (Birmingham, Sparkbrook)

I also congratulate the hon. Member for Aldridge-Brownhills (Mr. Shepherd). I congratulate him on many things; on having coined a new phrase for the political lexicon—some of us have attempted to do that for 25 years and failed, but he has done it this morning — on his demeanour during the past month, and on the content of his Bill.

I feel just as warmly about the content of the hon. Gentleman's Bill as, apparently, does the Home Secretary. Indeed, the only thing that divides the Home Secretary and me in our admiration for the proposals is that I propose to vote for them and the Home Secretary proposes to vote against them. I confess that I would go further than the hon. Gentleman's proposal. I should like there to be a freedom of information Bill which requires, rather than allows, the publication of information which is not damaging or potentially damaging to national security but which it would be in the public interest to publish.

The Bill has the overwhelming advantage of reforming section 2 of the Official Secrets Act 1911. Although it has been tolerated for so long, it ought not to be tolerated any longer in a free society. The section allows the suppression of whatever official information the Government may choose to keep secret. The information may be suppressed for wholly legitimate reasons or simply because the Government find it inconvenient to allow the British people to know what they ought to know and have a right to know. That is our complaint and has always been the complaint about section 2.

Since the hon. Member for Aldridge-Brownhills published his Bill, the 30-year rule has presented us with an overwhelming example of the misuse of section 2 by Governments. I refer, of course, to the way in which, 30 years ago, the Government dealt with the Windscale disaster. We now know, simply from the publication of Government papers, that the Cabinet of the time decided to conspire against the British people to keep two things secret. The first was the nature and cause of the disaster and the second was the inability of the Atomic Energy Authority as then constituted to ensure that another disaster would not occur.

It seems to me self-evident that such action was deeply against the national interest by any standards. It was deeply against the welfare and interests of people who lived in the vicinity of Windscale, and it was in a real sense a conspiracy. Any civil servant, however, who chose to protect the people of the area by telling the truth, which the Government would have suppressed, would have been prosecuted. That is self-evidently preposterous and immoral and a situation which we can begin to change by voting for the Bill.

I want to make it absolutely clear that those of us who support the Bill do not believe for one moment that anything in it poses any real threat to those secrets which need to be kept secret in the name of genuine national security. I go even further. I do not believe that the omnibus power which allows the Government to suppress anything that they choose to suppress, has done any real service to security or the security services' record.

One of the reasons why the security services have had such a deplorable record, especially in the 25 years which followed the war, is that they concerned themselves far too much with irrelevant trivialities and not enough with the central issues of national security. If there were more sensible and sensitive powers, and if the security services were under some control through the House, I believe that they would operate more efficiently as well as more democratically. They have nothing to lose from the hon. Gentleman's Bill.

I repeat and emphasise that I do not think that there is any disagreement in any part of the House about the need to keep secret that information which might benefit an enemy or potential enemy. The argument concerns the Government's right to keep secret from the British people information which an enemy or potential enemy almost certainly already knows and which it is in the interests of the British people to be told.

The Bill draws the proper line between necessary secrets and news manipulation dressed up to look like the needs of national security. It defines the classes of information which are protected by criminal sanctions, it offers as a defence against prosecution the national interest and the previous availability of published information, and it offers an independent authority — the Judicial Committee of the Privy Council — as an arbiter of security classification. Those are the bones of an acceptable official information Bill.

I do not believe that many of the hon. Members who will vote for the Bill today will do so in the belief that it is perfect in every particular. Indeed, as I understood the speech of the hon. Member for Aldridge-Brownhills when introducing the Bill, he is not making that claim. If the Government are sincere in the belief that they are to build on what he Proposes, the Government's clear duty is to allow the Bill to proceed to Committee and to try to make the necessary technical alterations and improvements there. Even at this late hour, I urge the Home Secretary to consider that possibility.

I do so especially in the light of two criteria which, according to newspapers—I do not know whether they were press leaks, unauthorised briefings or simple speculation—were regarded by the Government as the stumbling block. I understand from those newspaper reports that the Government's objections to the Bill centred on two areas of defence: the public interest criterion and the criterion that the information is already in the public domain.

I want to make it absolutely clear that, in the present situation, we regard the second criterion — that the information is already available from other sources—as of crucial importance to the freedom of this country and this Parliament. Prosecuting for the production and dissemination of information that is already available is not intended to keep the information from a potential enemy but it is, by definition, intended to keep that information from the British people.

If one considers the Government's record during the past two years, when they used vast amounts of taxpayers' money to launch vastly expensive actions against newspapers that want to do no more than publish what is generally and genuinely known, one knows that the Government are doing so in the knowledge that, even if the newspapers win in court, the delay and the costs will have penalised them. The Government's pursuit of newspapers for wishing and intending to publish information that is already known has been used in a deeply unscrupulous way as an attempt to bully and blackmail newspapers into a code of conduct that the Government cannot support by any more logical or acceptable means.

The Home Secretary's response to the Bill was to ask the House to wait until June. He said, "Wait for a definable time," but he could not define for us what we had to wait for. I cannot believe that this House of Commons is so supine as to buy the Home Secretary's pig in a poke, because we would be doing so in the most extraordinary circumstances. I do not want to say anything about the Government that would deter their opponents on the Government Back Benches from voting for the Bill, so I am using my words carefully. However, to say to the House, "Trust the Government over official secrets; trust the Government over news manipulation; trust the Government over their attitudes towards television; trust the Government over their performance and proposals for manipulating or suppressing the news," is, in the light of recent events, to make an unreasonable request to say the least.

Let us consider recent events that might lead some hon. Members to feel that the request to wait until June, without any assurance of what June will bring, is unreasonable. We are asked to trust the Government who, for two years, have been engaged in the black comedy of the "Spycatcher" affair. The Cabinet Secretary has been humiliated and the Attorney-General made to look ridiculous to limit the sales of a publication, or of extracts from a publication, which has already sold 500,000 copies in the United States and which has, I suspect, already reached the shelves of the Kremlin. I find it very difficult to trust the Government when I think of the way in which they have behaved over that affair.

We are asked to trust the Government who, almost exactly a year ago today, either sanctioned or authorised —they certainly approved—a night raid on the BBC's studios in Scotland. They defended the removal from the BBC of large amounts of BBC property. Then, 10 months later, they blandly announced that the BBC had done no wrong and there were no grounds for prosecution or for any action. I find it difficult to trust that Government by waiting until June.

We are asked to trust the Government, who have prohibited the broadcasting by the BBC of a series of documentary programmes which, it is generally agreed, have been produced by responsible producers and which were approved by the D-Notice committee. I do not feel able to trust that Government by waiting until June without knowing what they propose.

Most absurdly of all, we are asked to trust the Government which prohibited the circulation of Mr. Cavendish's Christmas card. The fact that the Government have behaved ridiculously over those affairs should not prevent us from understanding that it is possible to be ridiculous and tyrannical simultaneously. The fact that the Government have made an ass of themselves over the Cavendish affair should not obscure the fact that to tell a man who produces a brief work, a novelette or novel — which, having read it, does not seem to me to contain much significant information—that when he sends his Christmas card to a group of friends, it will be illegal if any newspapers were to reproduce its messages, does not seem the action of a Government whose attitude to the Official Secrets Act in June will be something on which we can place absolute reliance and to which we can give absolute credit.

From the point of the Cavendish affair, it is important to understand exactly the Government with which we are dealing. I repeat that I do not think that Mr. Cavendish's Christmas card contained much of significance. It is important to remember that Mr. Cavendish is not, as Mr. Wright is said to be by Government sources, "a disgruntled failure", who wants to get his own back on the security services for paying him an inadequate pension. He is a man who thinks that he has something to say. In the context of the Bill, it is worth noting exactly some of the things that he does say and that the Government wish to suppress.

There was a time when every word of Mr. Cavendish's Christmas card would have resulted in the editors of The Sunday Times and The Observer going to prison if it had been reproduced in their newspapers. If they had reported, for instance, Mr. Cavendish's view that May is always a beautiful time in Berlin—a time for picnics", that would have been an offence that would result in a criminal prosecution.

However, there is more to the Christmas card than that. Mr. Cavendish went on to "confess"— I use his words exactly—that when he read stories that were already currently in circulation and already published in newspapers of MI5 complicity in events in Northern Ireland, of the so-called Loyalist strike in particular, they "tie in with many events to which I have been privy over the last ten years".

Indeed, Mr. Cavendish is explicit about Ireland: MI5 were bitterly jealous of MI6's move into Ulster, since they believed that Northern Ireland was clearly their territory as part of the United Kingdom, and information which is now emerging seems to confirm that MI5 took active steps to `sabotage' the work of SIS … Smear campaigns were being organised against anybody of consequence who appeared to be sympathetic to the position of the Catholic minority in Ulster or who showed that he believed in a settlement based on radical changes in the Northern-Southern Irish relationship. Among those targeted were Edward Heath, Harold Wilson, Edward Short, roughly twenty other MPs and also the first Catholic Chief Constable of the RUC". It seems to me, as it will seem to many of my hon. Friends, that these are matters not so much for suppression as for investigation. It seems to me—as, I think, it will seem to many hon. Members of all parties and, indeed, to the country—that a Government who choose to suppress such charges are not a Government who can legitimately say to the House, "Wait until June. We shall produce something that is acceptable in that particular."

Nor has the Government's conduct concerning the Bill done anything to increase confidence in the Government's integrity over this matter. I am sure that hon. Members of all parties will deeply resent the notion that there are some subjects that are too important for the House of Commons to discuss on Fridays. This is an ideal subject for private Members' legislation, for it is a classic—

Mr. Hurd

indicated dissent

Mr. Hattersley

By blowing his exasperation, the Home Secretary demonstrates my point exactly. It is ideal for the purpose on this occasion, because it is a classic example of Parliament attempting to restrain an authoritarian Executive. Whether the Home Secretary knows it or not, that is a large part of what the House of Commons is for.

The hon. Member for Aldridge-Brownhills said that he found some irony — or perhaps he used the word paradox — in the distinction of attitudes between individuals when they moved from one side of the House to the other. Irony or paradox was a charitable way of describing it. I am sure that he is no more surprised by the change in attitude than I am, because the nature of the problem is that Governments — I freely admit, all Governments—are over-inclined to secrecy. Nobody is suggesting for a moment that it is a party issue. As I understand the hon. Gentleman, when he talks of wanting to curtail Governments, it is not this Government whom he wants to curtail, but Governments in general. On a private Members' day, the House of Commons should say that there are some things that are for the House of Commons and strong occasions when the House of Commons insists on imposing its will on the Government.

If any of the weaker-minded members of the 1922 Committee are here, I shall provoke a small groan by saying the words, "when we are next in government." Let me explain my point. When next the Labour party is in government, I have no doubt that there will be times when Ministers curse under their breath the passing of this Bill through all its stages, because there will be things that we shall want to suppress. Looking at the matter with the objectivity of Opposition, we realise that it will be the same in the future as it was in the past. We shall often want to suppress things that we should not be allowed to suppress. The House of Commons should prevent us from doing that when our time comes, as it should prevent the Government from doing it now.

Mr. Ivan Lawrence (Burton)

As I understand the right hon. Gentleman's argument, it is based mainly upon pouring scorn on the Government for trying to bolt the stable door after the horse has shot away, particularly pouring scorn on the handling of the Cavendish and the Wright cases. He has not suggested that it would have been wrong to bolt the door in the first place and to have stopped the horse from leaving. If that is so, will he point to any part of the Bill of my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) that deals with bolting the door in the Wright or Cavendish cases? If it does not, would it not be better for the House to wait until Government proposals appear, which would bolt the door?

Mr. Hattersley

Had the hon. and learned Gentleman not intervened, I should not have been so unkind as to say that on Sunday morning on television he promised me, my hon. Friends and the British people that the Home Secretary would describe his proposals for a Bill in this morning's debate —

Mr. Lawrence

I said that the Home Secretary would describe his reasons for opposing the Bill, as he has done.

Mr. Hattersley

The hon. and learned Gentleman promised us that we would be told what the alternative was.

Let me answer the hon. and learned Gentleman's question directly. The point about the bolting of the stable door is covered in the Bill in two ways. First, the hon. Member for Aldridge-Brownhill does not touch section 1 of the Official Secrets Act, which has an enormous and direct influence on security matters in general, and in some of the terms — not all — that the hon. Gentleman suggests. Secondly, by defining and differentiating between those which are genuine secrets and those which are not, he makes a group of secrets still subject to penalties, were they to be revealed.

There is nothing now in section 2 that prevents the horse leaving the stable with the same alacrity that it will be able to leave if the Bill is brought into operation. All the secrets that I have listed this morning as being subject to attempts at Government suppression have left the stable. The Government have been trying to bolt the door, not because they thought the horse could be retained within the premises, but because they wanted to stop the British people knowing what was going on — not the alternative, which is to stop those who may be our enemies or potential enemies.

Mr. Campbell-Savours

May I take my right hon. Friend back to the issue of Cavendish as against the issue of Wright? Is it not true that the Government, in trying to prevent Mr. Cavendish from publishing, misunderstand the position? Mr. Cavendish has not worked for the security services for a long time—for decades. All that he has said about what happened in the 1970s is based on hearsay. He has no evidence—he has simply purloined the material from others and put it in a Christmas card. Why are the Government so sensitive to what he has to say, when he does not back it with evidence?

Mr. Hattersley

As I hope I made clear, I was not enormously impressed by what Mr. Cavendish wrote. In a sense, that makes the Government's attitude in suppressing him all the more absurd. I repeat that the Government have behaved absurdly over Cavendish and Wright. When my next book comes out, I hope that the Attorney-General is prepared to promote its sales in America in the way that he promoted the sales of Mr. Wright's book. I do not think that half a million copies would have gone into American homes had it not been for the Government's activities.

While the Government have made asses of themselves, or a single ass of their collective self, over these matters, it is enormously important for the House and the country to understand that simply because the Government behaved foolishly does not mean that they did not behave tyrannically. They were absurd to do what they did, and in a democracy that was wrong. Today we are considering not the absurdity but the iniquity of Government. Because of that record, I could not say that everything will be all right in June when the Government introduce their new proposals.

As I understand it, and certainly as I understood the Home Secretary on the radio this morning, when he was so emollient that for a moment I believed he would support the Bill, one of the Government's principal objections is not the context of the Bill, about which the Home Secretary was remarkably eloquent during his speech, but the occasion on which the Bill was presented to Parliament. That raises a third question of principle. The first is the content of the Bill, which I support on principle. The second is the Government's record on those matters. I am not prepared to cast a vote that suggests that I trust the Government on that.

The third is the Government's attitude towards Parliament. At 2.30 pm we are voting not simply for a free press but for a free Parliament, a Parliament that is not prepared to be told by the Executive that this is not a subject that we should discuss, and upon which it is not prepared to be told by the Prime Minister that it is too complicated, technical and important for us to deal with on this occasion. For all those reasons, I hope and believe that my hon. Friends will support the Bill.

11.37 am
Sir Ian Gilmour (Chesham and Amersham)

The issue on which the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) ended is extremely important, and I shall return to it in a moment.

I am proud to be a sponsor of the Bill of my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), which he introduced so ably. I listened carefully to what my right hon. Friend the Home Secretary said. I shall not lavish compliments on him, because it would embarrass him in more than one way. But I am not sure that his high qualities were necessarily an advantage to the Government this morning. Asquith was a Prime Minister who has been much in the news lately. I think that it was Balfour who once said of him that Asquith's lucidity was a positive disadvantage when he had nothing to say. I feel that my right hon. Friend's shining integrity is somewhat of a disadvantage to the Government when he has to defend an essentially shabby case.

Since the gravamen of the case is that the Government claim, in effect, a unique and exclusive right to deal with these matters and that my hon. Friend the Member for Aldridge-Brownhills is badly out of step and out of court in attempting to do so himself, it is relevant to consider the Government's handling of those matters over the past few months, to see how justified that claim is, particularly in the light of the principles that my hon. Friend has put into his Bill.

Like, I imagine, every other Member of the House, I have read "Spycatcher", and there is no question but that it is a shocking book, written out of malice and spite. It should never have been written, and it should never have seen the light of day. I entirely sympathise with the Government's original attempt to stop its publication. And of course, I entirely agree that the secret services should be kept secret. But the question is how or from whom those secrets should be kept. It is surely hostile powers from which we wish to whithold knowledge of the security services and other matters, not the people on behalf of whom the security services are supposed to be operating. Indeed, a good working rule would be this—that if the Russians know something, the British people can know it too. As we can confidently assume that the Russians are capable of reading the Australian newspapers and of buying "Spycatcher" in America, they obviously know all that is contained in it. If the Government had followed tht simple rule, they would have saved themselves a great deal of trouble and the taxpayer a great deal of money. There are three principles or tests in these matters, and my hon. Friend's Bill contains them.

The first applies only to a Government of a free, democratic society, and the second two apply to Governments of any society. The first is that, however desirable the end, there are limits to the means that a Government can use to attain it, because to go beyond those means would endanger the basis of the freedom of our society. In a free society, the end does not justify the means.

The two principles that should apply to any society, democratic or not, are, first, that a Government should act at least in accordance with common sense and, secondly, that the means employed should have some reasonable chance of attaining the desired end.

To prevent the press from doing its proper job of reporting — not, I emphasise, disclosing — matters of great public interest, the Government have resorted to the indiscriminate use of injunctions. That is a reversion to the practice that obtained before the Licensing Act came to an end in 1695, and is quite unacceptable in a free society. One of the greatest prides of our society during the past 200 years has been that, unlike practically every other country, we have had no prior restraints on publication. Unfortunately, the Government have broken with that tradition, and both Lord Bridge and Lord Oliver pointed out what a perilous path the Government were going down by doing so.

The Government may say, "We have only asked for injunctions; it is the courts that have granted them". That is true, but it is no part of a Conservative Government to makes asses of the judiciary or to persuade its members to make asses of themselves. The humiliating subservience of the judiciary to the Executive in the 17th century is well known. I hope that the current judiciary will take a careful look at the 17th century.

The second principle — that a Government should show proper common sense in their actions—has not been adhered to either. For the Government seriously to argue, and for the courts seriously to accept, that British newspapers should not publish what has been written about and is common knowledge in Australia, the United States and many other countries, is not just a defiance of common sense but a groteque absurdity. Why should the British people be singled out as the only people in the world to be kept in ignorance of what everyone else knows? Both Lord Bridge and Lord Oliver made that point well. One of them spoke about the idiocy of trying to create a cordon sanitaire around the country.

On the third principle—that the means used by the Government should have some likelihood of attaining the end—the Government have again fallen down. As the right hon. Member for Sparkbrook said, we all hope that the Attorney-General will shower injunctions on any books that we might write. I have always enjoyed rather modest sales of my books, but obviously that can easily be remedied with the help of my right hon. Friend the Secretary of State and the Attorney-General. Saatchi and Saatchi could not have promoted Mr. Wright's book better than the Government have done. The only result they have achieved so far has been the promotion of his book. It is rather fortunate that the rules that apply to the improper use of expenditure by local government councillors do not apply also to central Government, because if they did some of my right hon. Friends would face a rather hefty bill.

The secrecy laws should be directed against hostile Governments, not the British public. The Bill is a courageous and successful attempt to deal with that. If the principles of the Bill had been followed, the Government would not be in such serious trouble in these matters. My hon. Friend the Member for Aldridge-Brownhills outlined his Bill so carefully and fully, and defended it so well, that I do not need to take up the time of the House by discussing it further.

I wish, instead, to concentrate on the Government's attitude to the Bill. We all know that for many years—and for long before this Government came to office—the House of Commons has been a pretty poor thing in many ways. It has lacked independence and has been bound hand and foot to and by the Executive. However, usually the conventions of politeness and courtesy prevail, and the House is flattered and cajoled into thinking that it enjoys some power and decides matters of moment. We all know perfectly well that it enjoys nothing of the sort and that matters of moment are decided in Whitehall, not Westminster.

The Executive does not usually flaunt its power over us, however, and the decencies are preserved. Today, those conventions have been abandoned and what Burke called the decent draperies of life have been torn asunder. The Executive is dictating to the House in all its naked crudity. I do not understand why the Government are so frightened of the House of Commons. We all know that that is a much better way of producing legislation than by the Executive sitting around in secret.

As my right hon. Friend the Home Secretary said, the House will have to discuss these matters when he brings his Bill forward — unless the Government shower Mr. Speaker with injunctions. I daresay that that will probably not happen—although, as my hon. Friend the Member for Aldridge-Brownhills said, one cannot be too sure of anything these days. The Government today are doing what they have been doing in the courts during the past few months. They are still wearing the same bovver boots that they wore in the courts. Their imposition of a three-line Whip is the parliamentary equivalent of the injunctions that they have taken out against almost all our serious newspapers. In both cases, the procedure is wholly misconceived and authoritarian and a sorry display of Executive arrogance. I shall certainly oppose that this afternoon.

11.47 am
Dr. David Owen (Plymouth, Devonport)

This could be a day on which the House exerts its control over the Executive, and that would be a day of pride. Instead, it will probably be a day of shame. The Home Secretary has given the game away. I did not expect him to tell us specifically when the Government intended to make up their mind, but he has told us that it will be in June. He said that there would be a White Paper, and that is a Government decision.

If the Bill is committed to a Standing Committee, it will have moved on to the House of Lords when the Government make up their mind on the issue. At that time, the Government will tell us their view of a Bill that has already been discussed. It is not necessary for the Home Secretary or a junior Minister to pronounce definitively on all the Bill's clauses during its Committee stage. It would be an advantage, of course, were they to do so, but the Bill can go through its stages without the Government giving their definitive view of it.

The Government's view about the Bill could be made clear in another place where it could be amended and brought back to this House. I will come later to the reasons why many of us are concerned about the Government's position. The reasons relate to the whole question of closing the stable door or blocking the mechanism. Under the current position, if the House refuses to give the Bill a Second Reading, we accept that at the very least, we will continue with the present fiasco of the Official Secrets Act 1911 for at least another year. That is an extremely important year to lose.

The Home Secretary was not able to tell us what the Government feel are the sticking points on the Bill. He was not able to say whether they were concerned about the judicial review of the over-classification of documents or the public interest defence for the public disclosure of confidential information. The Home Secretary glossed over the facts that his immediate predecessor gave an undertaking, in the wake of the decision taken by the European Court of Human Rights in the Malone telephone tapping case, to implement the recommendations of the Law Commission on the remedies for the breach of confidence and the fact that the public interest defence in the Bill is modelled on the Law Commission's recommendations.

It would not have been too hard for the Home Secretary to tell us whether he agreed with his predecessor and the Law Commission. After all, the Government have been aware of the recommendations for many years. However, we must wait until June. We are content to do that. We will receive the Government's view in June. If the Government agree to impose fundamental stops on this legislation, they will have to go to Conservative Members and explain the case for a three-line Whip. However, to apply a three-line Whip on a private Member's Bill in this way is an utter disgrace and ought to be rejected decisively.

Mr. Marlow

What is a little confusing for many of us on the Conservative Benches who wish to support the Government is why the Government take the view that it would not be helpful to them, if they are going to make up their mind in June, to have had the views of the House in a Committee stage before June. Surely that would be helpful for the Government?

Dr. Owen

I totally agree with the hon. Gentleman, at least on this occasion. I confess that I for one would be ready to serve on the Committee. Indeed, it would be unusual because in Committee on this Bill there might be many right hon. and hon. Members who have held office as Home Secretary, Foreign Secretary or Defence Secretary. They would be ready to give their judgment on this private Member's legislation. That would be immensely valuable for the House.

We have all been down this secrecy path before. Those of us who have been Ministers are all sinners. The ABC case, which was brought in good faith, turned out to be a complete disaster. The Attorney-General at the time was careful to consult, but made the point that he had taken the decision himself to pursue the trial. I initially said no, and I wish to hell that I had continued to say no. There was a most extraordinary exchange during the trial. A witness was asked to look at a photograph of a sign at the entrance to the military base. The exchange went like this: Is that the name of your unit? I cannot answer that question, that is a secret. Is that the board that is up outside the door of your unit? Yes. Read it out to the jury. I cannot do that, that is a secret. Indirectly I was a party to that farce. We have all been party to such farces and it is high time that the farce was ended.

I have concluded that the Government are not the best body to end the farce. When we enter Government, we begin to accept all the advice of officialdom and begin to believe the case for secrecy and to a great extent we lose our common-sense. We need the common-sense and common wisdom of the House of Commons. The hon. Member for Aldridge-Brownhills (Mr. Shepherd) is to be congratulated on bringing forward his Bill. It is an honour to be a sponsor of that legislation.

I want to consider the most serious reason why I believe that legislation is important now. I have read "Spycatcher" and I was appalled. I did not expect to be, and I was rather lulled into believing that it was a book that might be acceptable. The book contains information which should not have seen the light of day under any circumstances. I have watched as invaluable secrets have been disseminated over the past eight years in an appalling way. We have seen secrets pouring out of GCHQ—the ABC trial related to GCHQ — and we have seen the effect of the Government's good intentions in trying to keep things secret. However, they have allowed massive amounts of secrets to come out. The real problem is that we have lost very valuable secrets because we have failed to grapple with this issue.

I agree with my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees). I believe that "Spycatcher" should have been prevented from being published. However, more important, Chapman Pincher's book "Their Trade is Treachery" should have been prevented from being written. I wish that some investigative journalism had been carried out into that. Economy with the truth was not practised only by Sir Robert Armstrong in the Supreme Court of New South Wales. Sir Robert was a victim of the security services of Her Majesty's Government being economical with the truth.

It is now clear from the evidence that Sir Robert Armstrong gave recently in a United Kingdom court to Mr. Justice Scott that he had not been informed when he gave evidence in Australia that there was an intermediary between Sidgwick and Jackson Ltd., the publishers of Chapman Pincher's book "Their Trade is Treachery" and an anonymous member of the security and intelligence services. Nor was Sir Robert even informed that Sidgwick and Jackson had been told, through the intermediary, by the security services that they were not asking for any action to be taken to prevent publication of the book, or suggesting any modification to the text or any deletions. Sir Robert knew of that only when, a few months ago, he saw an advance copy of Chapman Pincher's most recent book "A Web of Deception".

The House of Commons must have an explanation. It is inconceivable that senior members of the security and intelligence services did not know of the meeting chaired by the Prime Minister at 10 Downing street that was attended by Sir Robert Armstrong—and probably by the Home Secretary—to discuss the statement that the Prime Minister should make on publication of "Their Trade is Treachery". That meeting had been preceded by a decision not to seek an ex-parte injunction to prevent publication of the book "Their Trade is Treachery". That decision was based on an examination by the Government of the page proofs that Sir Robert Armstrong saw on or before 12 February 1981. Did Sir Robert ask where the page proofs had come from? Did he believe that they had been stolen? And why was he not told that they had been given to the security and intelligence services?

That is a classic example of secrecy within the Government machine preventing serious and sensible decisions. We have that farce. The old boy network still operates. That informal mechanism for clearing a book in those circumstances has been used before. The trouble is that the old boy network excluded the Prime Minister, Sir Robert Armstrong and, presumably, the Home Secretary and the Foreign Secretary. That raises serious questions. Who did know? What did senior officials in the security and intelligence services know about it? It is clear that they wanted Sir Roger Hollis to be named in that way. Why did they let that book out? They must have known that the source of Chapman Pincher's information was Peter Wright.

A good book has been written about the ABC trial called, "Ferrets not Skunks". There are some ferrets and some skunks. Peter Wright is a skunk. Let us not mince our words. He is no hero. It is outrageous that everyone seems to want to publish every petty piece of gossip from anyone who has ever worked in the security services, as if there is some honour about it. It is an outrageous breach of honour. We cannot legislate for honour, but at least let us put some legislation on the statute book which provides some way of getting to grips with this serious and massive problem.

The problem is no longer what to do about "Spycatcher". That book has long been in the public domain and everyone has copies of it. If the House had a proper scrutiny of the security and intelligence services, we would be examining why the security and intelligence services, who are paid effectively and directly by us, did not tell their responsible Ministers about what was happening. Are they still holding office, or have they been sacked, as they should have been? It is an outrage that nobody seems to have discovered the evidence that Sir Robert Armstrong gave in the courts a few months ago. That is far more serious than anything that came from New South Wales. It reveals that the security and intelligence services are not even telling the Prime Minister about what is happening. I do not believe that that can be tolerated any longer.

The House has been totally excluded from any form of scrutiny of the intelligence and security services. In the debate that was instituted on these Benches the Home Secretary seemed to be more open-minded about the question of scrutiny. He wanted time to take it away and look at it. It is high time that he came back to the House with detailed proposals.



Dr. Owen

If the hon. Gentleman will forgive me I will not give way.

It is high time we grappled with the absurdity of the Official Secrets Act. It is pretty pointless making party political points on both sides of the House. We have all failed to carry out our responsibilities in Government. It is now time for the House of Commons to take this issue on, and today is the day. Today is the day, above all, because we are debating a private Member's Bill and all hon. Members can say goodbye to the Whips. It is a day when the Patronage Secretary can get stuffed, and that is what he should have done.

12 noon

Sir Geoffrey Finsberg (Hampstead and Highgate)

As the first non-Privy Councillor permitted to take part in the debate, may I start by saying that I found the speech of the right hon. Member for Plymouth, Devonport (Dr. Owen) very interesting. He said that it was time the Home Secretary took on board possible scrutiny of the security services. He will remember the rather pleasant four years that he and I spent on the old Defence and External Affairs Sub-Committee of the Estimates Committee. It met in private and, in a limited sense, performed the duties the right hon. Gentleman has just mentioned. The problem of the present Select Committee on Defence is that it meets in public and cannot, therefore, do the same sort of work as the Committee on which we served. Perhaps there is a lesson to be learned from the fact that the more that comes into the public domain in that way, the less one actually knows.

The right hon. Gentleman said that the Bill should be allowed to proceed and that it should go into Committee. However, I think that his timing might have been a trifle awry. He said that, by the time the Government White Paper was published, the Bill would be in the other place. I have a feeling that it might not have got as far as that. He said that he would then expect Government draftsmen to start changing the Bill dramatically in time for it to come back for the overspill Session. He knows from his ministerial experience, as I do from mine, that parliamentary draftsmen cannot work at that speed on something as complex as this. Therefore, whatever happens, this Bill will not get through in this Session. Therefore, we will be no worse off if we accept the advice of my right hon. Friend the Home Secretary, and I shall explain why I think that we should do so.

My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) made a fascinating comment. He said that, if the Russians know about it, the British people can too. Has he never heard of double agents or disinformation? Does he not recall the story that was fed to the Germans about D day, the mock landing or Enigma? We cannot accept that simple statement. It is a very dangerous proposition.

I am here not because there is a Whip but because I happen to believe that this is not the sort of Bill that a private Member should try to get through the House of Commons. That is in no way a reflection upon the integrity, common sense or motives of my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). The usual purpose of a private Member's Bill is to fill a gap in legislation. It is not to be, and has not been, a vehicle through which a private Member should start producing legislation that is complex and which interweaves with security right across the board. That is why I do not believe that this is the right way to do it.

The other purpose of a private Member's Bill is to carry forward a vehicle in which the Government are interested. [Interruption.] This may be a matter that is causing some uneasiness. I am trying to say that my hon. Friend the Member for Aldridge-Brownhills was not wrong to consider the concept, but a private Member's Bill is not the right way to deal with a subject such as this.

Mr. Frank Cook (Stockton, North)


Sir Geoffrey Finsberg

I shall give way to the hon. Gentleman in a moment.

The Government cannot permit the Bill to proceed when they have said very firmly that they intend to produce a White Paper and to legislate.

I wish to take up a point made by the former Home Secretary, the right hon. Member for Morley and Leeds, South (Mr. Rees) who put forward an interesting proposition which is worth considering. The House may remember that there is a procedure for a Bill to have a Second Reading and then to go to a Special Standing Committee. When I was a junior Minister, that procedure was used for a mental health Bill. It provided an opportunity for a very close examination. But it has a drawback: it is time-limited. The Committee may have only a limited number of sittings, and it must report within a limited period.

Perhaps we should consider the other concept put forward by Lord Renton when he was a Member of the House—the idea of providing an opportunity for the production of a White Paper, allied to a draft Bill—that is how the Law Commission works—and then referring it to a Select Committee. That might be the more practical way forward and would take up the points raised by the right hon. Members for Devonport and for Morley and Leeds, South. That would provide the opportunity for everyone to give the evidence needed. It would give Parliament a chance to consider what the rights of Parliament were against the rights of the Executive. I put that thought into my right hon. Friend's mind to see whether he would like to consider it. That would still give us the opportunity to have the Act of Parliament in the next Session.

Mr. Marlow

May I put the same point to my hon. Friend? What would be the disadvantage to the Government if the House, through a Standing Committee, could discuss and debate the issues in the Bill before the government come forward with their own proposals?

Sir Geoffrey Finsberg

I would very much resent being a member of a Committee, sitting week after week and blocking the private Members' list, unless the Leader of the House opens up a second Committee, and, after three months or so, finding that all my work has been negated because there is a totally new Bill. I would rather proceed in the way suggested, because it is a more open way of proceeding.

The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) made a rather inflammatory statement last weekend. He said that he hoped that Conservative Members would have sufficient guts to come and vote for the Bill. I am sure that the right hon. Gentleman has a greater knowledge of guts than I have. Having listened to his speech, I know why it is apparently rumoured that he will no longer be a contributor to Punch.

Mr. Frank Cook

I do not know how the hon. Gentleman manages to find that comment inflammatory, but I hope that it has illuminated something for him. He seemed to be suggesting that the hon. Member for Aldridge-Brownhills (Mr. Shepherd) had no right to introduce such a Bill. Is he really suggesting that there is any subject, or group of subjects, that we, as elected representatives of parliamentary constituencies, must consider to be outside our care or outside our specific, individual influence? If that is so, it is clearly running counter to any idea that I have ever had about representative parliamentary democracy.

Sir Geoffrey Finsberg

I am glad that I gave way to the hon. Gentleman because, clearly, there is a misunderstanding. I was trying to draw the distinction between a Bill and a discussion. My hon. Friend the Member for Aldridge-Brownhills said, quite rightly, three times that we should discuss this matter. Clearly, I did not get my point over to the hon. Gentleman. I am entitled to my view, and my hon. Friend is entitled to his view. We may both be right, but, in my view, this is not an occasion for a private Member's Bill which requires such detailed legislation. The subject is different. One may have debates willy-nilly, and as often as one wants.

I wonder why there is such sudden interest in the subject. We knew that there was a long gap. The former Home Secretary, the right hon. Member for Morley and Leeds, South made the point that he was not able to proceed because the Liberals wanted too high a price to leave the Government in power to produce legislation. That is understandable and acceptable. My right hon. Friend the Secretary of State made the point that this Government tried, but got their fingers burnt. A Bill is now two thirds of the way forward. I hope that my right hon. Friend will accept that there is a little uneasiness about the word "early". He may be following the convention that one must not anticipate the contents of the Gracious Speech. If that is what he says, we can accept the word "early".

What is the Official Secrets Act? The trouble is that there is a blurring in the public mind and the media between sections 1 and 2. On taking office, the right hon. Member for Sparkbrook and I signed a document under the Official Secrets Act, which is binding lifelong. He and I have no right at our discretion to say that, in the national interest, we should reveal something that has come into our possession. If one does not accept that concept, one should not accept office. There is a duty in accepting office.

During my period in office, particularly at the Department of Health and Social Security, more and more documents appeared in the public domain. Such documents were restricted or confidential. Copies appeared. They were not leaked, they were clearly stolen and, perhaps, sold to the press. There is a real danger. When they are considering ideas for policy, Ministers in effect play ping-pong. They bounce ideas to and fro to try to find out the facts and to determine reactions. If every concept were to appear in the public domain, Ministers would become much more wary about even putting ideas forward. Ministers may meet and discuss without the benefit of the knowledge and advice of the Civil Service. Such knowledge and advice are of enormous value. The overwhelming bulk of the Civil Service produces impartial advice on which Ministers can draw and test their opinions. That process is at risk if matters get into the public domain, unless something can be released because there is no further value in its being kept secret.

I have one piece of advice for my right hon. Friend the Leader of the House. I only wish that there might be a clause in a piece of legislation that would retrospectively cancel the pensions of those who break their oaths, whether they reside in the United Kingdom or in Australia.

Where is the massive demand coming from? Let it be clear that it is not coming from our constituents. On average, I receive 60 letters a day. Hampstead and Highgate is a rather literate area. I have received five letters on this subject, two of which have come from journalists.

I wonder whether we are not being pushed into believing that there is a demand for a major change that might go beyond the removal of the section that has worried us for a long time.

In a debate about the press in another place this week, Lord Longford said: The popularity and credibility of the British press has never been at a lower ebb … Many of its employees behave routinely in a fashion more appropriate to wild beasts than professional writers … A significant portion of the tabloid press is wholeheartedly devoted to peddling fantasies, often malevolent ones."—[Official Report, House of Lords; Vol. 491, c. 1314.] We must be cautious before we give in to any sort of pressure.

If we are to change something that has existed for over 60 years, slightly amended — at least one Government found it difficult to do so, and a second were rebuffed— it would be sensible to wait a further three months for the White Paper. I shall certainly vote against the Second Reading of the Bill.

12.16 pm
Mr. Tony Benn (Chesterfield)

I shall support the Bill to prolong the debate—not that I think that the Bill goes anything like far enough.

We have had an interesting debate and the hon. Member for Hampstead and Highgate (Sir G. Finsberg) made a powerful case for the cancellation of Hansard, because if people were to read what was said here hon. Members might be nervous of speaking. Then when the right hon. Member for Plymouth, Devonport (Dr. Owen) offered to go on the Committee I thought that that would be another little group that he could split into five parts.

We have had a marvellous debate, but the House should be candid with the public, who will be reading Hansard, probably with some interest.

Why are we having the debate? It is because certain public servants, for one reason or another and in many cases honourably, have spoke the truth on matters about which the Government did not want the truth to be known. Sarah Tisdall was betrayed by The Guardian, which is supposed to be a liberal newspaper, and served a sixth-month sentence. In my opinion, that woman was moved by conscience. Clive Ponting came out with information that was embarrassing to the then Secretary of State for Defence. Cathy Massiter said that people who were active in the peace movement were having their telephones tapped. We have also had the case of Peter Wright, and I shall return to him later. There was the 30-year rule on Windscale and the fire of 1957. The only leak that the Government are afraid of at Windscale is of information about what happens there. They do not mind radioactive leaks, but if information gets out it could be damaging to their nuclear policy.

That latter point matters very much because as Secretary of State I received claims for compensation from people who died of leukaemia as a result of working at Windscale. As Secretary of State, I did not know that the Prime Minister of the day had suppressed information that would have been relevant to people who had a claim.

Mr. Ray Whitney (Wycombe)

The right hon. Gentleman referred to the case of Mr. Ponting and the embarrassment that it might have caused the Government. When I was head of the Overseas Information Department and the right hon. Member for Plymouth, Devonport (Dr. Owen) was Foreign Secretary, information came across my desk many times that would have been deeply embarrassing to the Government if I had published it or used the Ponting method. For example, the conduct of the then economic policy of this country. Would the right hon. Gentleman have approved of my leaking that information?

Mr. Benn

I am talking about people who were motivated by conscience to reveal what they thought should be in the public domain. I am not arguing about other examples—that information would have come up if something had happened.

An interesting factor in the debate is the way in which alliances have run. As the right hon. Member for Devonport said, this is not a party matter. We have seen an alliance of former Home Secretaries—who have been involved to some extent and who do not want the degree of freedom of information that, on the whole, the public want, even if they do not write to the hon. Member for Hampstead and Highgate about it. The public are not fools. They have watched Colonel Oliver North being grilled before the American Senate under what I would call the 30-minute rule, whereby the news comes out as soon as the event has occurred. Here it is concealed. People want to know more about what. Government do. Of course they do. Why else was there such a struggle to elect people to Parliament in the first place?

I must say one thing for the Government: I understand why they have a three-line Whip. I understand why they sent Sir Robert Armstrong to Australia and ruined the end of his Civil Service life. I understand why they brought injunctions against the newspapers. The Government do not want what the security services are doing in Britain to come out. There is no point in saying that the Government have been silly and absurd and made people look ridiculous. In a limited way I can confirm, from my knowledge as a Minister in a Government whom Peter Wright tried to destabilise, what he said happened. Who benefited? The Conservative party. That is why the Prime Minister defends MI5. It helped to get rid of the right hon. Member for Old Bexley and Sidcup (Mr. Heath). I have evidence of that as well. The right hon. Gentleman must know—this appears to have come out of the Cavendish Christmas card, which I have not read because I am not on his mailing list—that efforts were made to discredit him as leader of the Conservative party. I have evidence of some of the reasons.

Of course the Prime Minister does not want to bring to light the process by which Wilson was removed and the right hon. Member for Old Bexley and Sidcup discredited. MI5 is still doing it. Does anyone think that it ended when Peter Wright resigned? MI5 is still discrediting people whom it regards as acting contrary to the national interest, as MI5 defines that national interest. Does anyone think that the fabrication of false information and its publication in the foreign press ended when the Labour Government left office? Of course it did not. It still continues. That is what the three-line Whip and the threats in the press are about. Any Conservative Member who wonders how such a nice Government could do such a horrid thing had better think about the reality behind the argument.

Then we come to this marvellous principle about confidentiality — whatever one's position in the public service, until one dies everything learnt while there must remain secret. The whole idea is absurd. The hallelujah chorus does not rely on press releases; it relies on Bernard Ingham, who is paid to issue confidential information daily to benefit the Prime Minister. Whatever damage Clive Ponting did to the right hon. Member for Henley (Mr. Heseltine) was nothing compared with the damage done to the right hon. Gentleman by Bernard Ingham on the Prime Minister's instructions. A Prime Minister who talks about keeping everything secret but who, using a civil servant, pumps out secret papers to get rid of a Cabinet colleague is an absolute disgrace.

There has always been a highly selective leaking of confidential information. I must confess that I have rather less sympathy than perhaps I should with all the pompous editorials about the freedom of the press. The warnings about what the security services have been doing in Britain have been given time and time again over the years by my hon. Friends. But when we said it, those editors said it was the paranoid Left talking about those wicked "conspiracies."

But when there is interference with the papers' right to publish what they want on a Sunday they are on their high horses and talking about the need for a free press. They know what we ought to tell the public through Hansard today: government is lubricated by the selective leaking and briefing that go on all the time. Therefore, it is in the interests of the press to support the wider question.

I did not quite understand the allusion made by my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) to Chapman Pincher; perhaps he will explain it later. My right hon. Friend thought that Chapman Pincher should be prosecuted. Chapman Pincher has been the press officer for the Right wing of MI5 for years.

Mr. Campbell-Savours

He admitted it.

Mr. Benn

I do not know whether he admitted it, but it makes no difference to what is happening. We all know what is going on. The service is being protected on the basis of confidentiality.

I shall now deal with the legitimate questions that the House should discuss when this matter arises. Who wants to know the individual secrets? But the question of what is and should be secret is a policy matter. For example, on defence, everyone accepts that one does not want to let out information about the performance of one's latest aircraft or missile, but the policy of the Ministry of Defence is a matter of public concern. It is the same with commercial information. No one wants to make available to our competitors abroad information that could damage British industry. Nobody thinks that the Budget should be announced by the Financial Times the day before— except Hugh Dalton, who had a little arrangement with the London Evening Standard, which managed to get the information out a little earlier than Hansard. Everyone accepts that if one leaks one's intention to devalue the day before, one has devalued from the moment of the leak. No one thinks that personal information should be available, although the Government have never answered the point that MI5 is wired into the Department of Health and Social Security computer in Newcastle. Personal information is made available to the security services, but the Government wish to conceal that.

It is for Parliament to decide the categories of secrecy. For my part, I do not want to know any of the secrets that the security services know, if those secrets would impinge upon national security. If one hears that there is to be a bomb attack tomorrow, one does not want Parliament to discuss it today because that means that one can do nothing about it. However, the security services are part of the defence of the nation. We know the identity of the chiefs of staff and we should always know who are the heads of the security services. We know the defence budget ; we should know the security services budget and we should certainly know and discuss and decide who is a legitimate target for surveillance. In the Prime Minister's view, it is the "enemy within". Anyone who takes a view contrary to hers in industrial matters is now undoubtedly the subject of inquiry by the security services.

In the end, those who work in the security services have to rely on their consciences. It is very important for us to say, and for every generation to repeat, that conscience is above the law because the law is man made. Whether at the time of Nuremburg or long before or today, people are sometimes so deeply moved by what they think is being done secretly that they are prepared to break the law and take the consequences, as Sarah Tisdall did. That is the foundation of the liberties of the people of this country and it has to be said.

The underlying question is, "What is the real issue?" As has emerged from the debate, it is the relationship between Parliament and the Executive. What are the powers that Prime Ministers use—be they this Prime Minister or the other Prime Ministers to whom I shall come in a moment? The powers of the Royal Prerogative, are abused by Prime Ministers to preserve the security services from public scrutiny. Ministers are appointed by the prerogative, as are the heads of the security services. The security services have the power to bug and burgle under the prerogative, just as the Postmaster General had the power to open letters under the prerogative. With that power, the Prime Minister decides on classification, defines security —through her Ministers — prosecutes, or orders injunctions, appoints the judges and then appoints the chairman of the BBC to ensure that there is no public discussion of matters that she does not want to be discussed.

The BBC is supposed to be an independent agent. When its programme on the security services was banned, it should have broadcast 45 minutes of silence, punctuated by a statement that the Government had banned the programme. Through the powers of patronage, the Prime Minister has reduced the BBC to a crawling, creeping servant of Government policy. She has followed that today with a three-line Whip designed to do to Tory Members what she has done to the BBC.

To be fair, I should say that all Prime Ministers have been the same. In case hon. Members cannot wait for it to appear in my diaries, I should tell the House that James Callaghan was passionately opposed to a Freedom of Information Act. He loathed the idea of anyone knowing anything. There was a hint of memories of the armalite coming from the recesses of the mind during the speech of my right hon. Friend the Member for Morley and Leeds, South. No Executive wants Parliament, the public or the press to criticise it effectively. People should also think carefully about the deafening silence from Wilson and Callaghan on the revelations in Peter Wright's book—

Mr. Martin Flannery (Sheffield, Hillsborough)

And on Chevaline.

Mr. Benn

There were other matters, too. The most important matter is the relationship between Prime Ministers and the security services. We do not know whether Prime Ministers know too much about the security services, or whether the security services know too much about Prime Ministers, but neither position is satisfactory.

I understand why the Government believe that, but I do not understand why Parliament accepts it. Today, we have the power, if we choose, to carry this Bill into Committee — no more than that. Not even the hon. Member for Aldridge-Brownhills (Mr. Shepherd), who introduced the Bill with a lucid speech, honestly believes that he will get it through with the entrenched power of the Premier against him. After all, the final reserves of prerogative power of any Prime Minister is the witholding of honours from Tory Members who do not vote according to a three-line Whip. Peerages do not come so easily to those who have been difficult. I warn Conservative Members who might be influenced by the arguments that I understand they may not be invited to the royal garden parties if they are a bit rebellious.

But the House has the power to enforce its will today. By enforcing its will, it will not be endorsing the Act that would emerge from this Bill, but enforcing the right to debate the central questions at greater length. I have been in this place for far too long for my good, although that has been compensated for by the benefit which the House has received from my sacrifice. I did not think that I would live to be a Member of Parliament where clerks are vetted, research assistants are vetted, members of the press are vetted, Members are vetted and Mr. Speaker receives a briefing on behaviour from the Serjeant-at-Arms. I did not think that I would live to serve in a Parliament vetted by Government. We were elected by the people to check and control the Government. Until we get that right, we cannot complain if we continue to have the problems from which we have suffered in recent years.

12.34 pm
Mr. Edward Heath (Old Bexley and Sidcup)

Let me join those who have congratulated my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) on the Bill that he has introduced today, and also on the way in which he has presented it. It displays a workmanship that is thorough, detailed and worthy of admiration. I therefore regret all the more that the Government have introduced an entirely separate question which, certainly in the press and probably in the rest of the media, detracts from the debate that we are having here on what is a central issue in modern politics : the display of information.

By decreeing a three-line Whip today, the Government are challenging the whole basis of private Members' time. This is the first occasion that anyone can recall, or find in history, on which a Whip of this kind has been issued. Having been a Whip for eight years, and Chief Whip for four of them, I remember well that we always set out to respect private Members' time — simply because the pressure of private Members on us was so great. That seems to have changed today. In that regard, I find myself in some sympathy with what the right hon. Member for Chesterfield (Mr. Benn) has been saying.

If we allow this to pass today, it will be cited in future by the Government as a satisfactory precedent for imposing three-line Whips on private Members' debates and legislation. That is entirely unacceptable, to me at any rate and, I hope, to the great majority of my colleagues on the Back Benches.

My right hon. Friend the Home Secretary used a phrase that I used just before him on the radio this morning: that it is not for a Government to decide issues. My hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) said that the Government could not permit the Bill to be passed today. There is no question of the Government permitting or not permitting a Bill to go through: it is the House that does that. But my hon. Friend's words epitomise the attitude that the Government have only to decree something for it to happen.

My right hon. Friend the Home Secretary said that it was for the Government to propose and for the House to decide. That is quite correct. What he did not say was that, on a private Members' day, it is for private Members to propose as well as for the House to decide. My hon. Friend the Member for Aldridge-Brownhills was entirely right to propose a Bill of this kind, to which he attaches the greatest possible importance.

Like my hon. Friend, I regret that my right hon. Friend the Home Secretary was not able to deal with particular issues, and to say which of them he regarded as going in the right direction and which he would like to change. We shall accept my right hon. Friend's view that he is not in a position even to say that. However, let me tell him, my right hon. Friend the Leader of the House and my right hon. Friend the Government Chief Whip that, if a three-line Whip had not been imposed, they would have stood an infinitely greater chance of persuading us to tell my hon. Friend that—in view of the commitment to deal with the matter in June with a Bill in the next Session of Parliament — it might be best, after a full debate, to withdraw the Bill. However, the imposition of the Whip is a challenge to all of us to say, "Of, course we shall not ask you to withdraw the Bill. We shall not try to defeat it; we shall support it."

I believe that today's debate is valuable as well as important. It is said that the issue is very complex, and that we are such simple people that we cannot possibly deal with it; only the Prime Minister and the Home Secretary can do that. However, let me point out that, on the Floor of the House, there are many more people who have had to handle security matters, from the highest level downwards, than there are in the Cabinet or among junior Ministers. Those with any experience of such matters can now be numbered on fewer than the fingers on one hand. It is in the House that we can make a contribution, and, therefore, a debate in Committee would be extremely valuable. The timetable has been described by the right hon. Member for Chesterfield.

If the matter had been looked at from a rather different viewpoint, a more acceptable solution might have been found. It is said that my hon. Friend was told early on that the Government were going to carry out this programme, but I can find no trace of that in the correspondence that has passed. I have not handed that correspondence to the press or to anyone else, although it is not particularly secret or confidential.

There is no trace there of either the Prime Minister or the Home Secretary saying, "We give you this assurance that the Government are so far advanced with their plans that the White Paper will be published in June and there will be a Bill in the next session, so perhaps you might like to take some other subject." Firm undertakings have now been given. I sincerely hope that my right hon. Friends will be able to carry them out. I have had some experience of dealing with this subject in a White Paper and legislation, and I know what the difficulties are.

Another possible arrangement, although it is too late for it now, would have been the procedure which was followed in, I think, 1952 or 1953, when we had to reform the Army Act. Instead of going through the normal procedure, we set up a special Committee. I recall that Sir Patrick Spens was the chairman. All parties took part, and the sole purpose was to make agreed recommendations on what the new Army Act should be. It worked extraordinarily well. The result was that the Government felt able to accept all the recommendations without controversy. The matter came to the House and the Bill passed through quickly. If we had gone through the other processes, the Bill would have gone on for endless nights and we might never have reached an agreed solution. That is another means of dealing with a situation such as this if it is approached with the right attitude at the right time.

The right hon. Member for Plymouth, Devonport (Dr. Owen) and for Chesterfield dealt at considerable length, based on their own knowledge, with what is essentially the internal control of the security services. I am the first to agree that this is a matter of vital importance, particularly because of some of the information that has emerged in the past two or three years. It is not, however, covered by the Act which is being amended, or by the Bill. It is an entirely separate issue which deserves serious consideration by the House.

We are in an extremely silly position — we do not even admit the existence of the security services. There is no such thing as MI5 or MI6. There is no budget for them, because the House never discusses them. What a contrast that is with the United States. One year ago, I was asked to take part in a television programme in Washington. Sitting on one side of me was the head of the Central Intelligence Agency and on the other side was the head of the Federal Bureau of Investigation. They were both fully known, they both fully accepted their position, and they answered questions from us and the press. That is at least realistic.

As for control, I am still not absolutely convinced that the House, or representatives of it, are capable of controlling the security services. From my discussions in Washington, it is apparent that neither the leaders of the press nor Congress are satisfied that they control the inner workings of the security services. I should have thought that it had emerged clearly from the Irangate hearings that they do not control the inner workings of the security services.

Mr. Benn

Leaving aside parliamentary control, to which the right hon. Gentleman has referred, when he looks back on his experience, is he satisfied that there was adequate ministerial control of the security services when he was responsible for the Administration?

Mr. Heath

As far as I know, yes, because that was one of the matters on which I took a firm stand. I instituted machinery which dealt with these aspects. I have always believed that there must be severe limitations on the work of the security services internally, to say nothing of their activities overseas. I am perfectly prepared to consider any evidence which may be brought forward suggesting that that was not the case. So far, I have not seen any. From 1970 to early 1974, I believe that control was firm through the institution that I had established.

Mr. Campbell-Savours

Is it true that the right hon. Gentleman made a telephone call to a solicitor acting for Mr. Colin Wallace about developments which took place during that period in relation to him?

Mr. Heath

My solicitor? What is his name supposed to be?

Mr. Campbell-Savours

Acting for Mr. Colin Wallace.

Mr. Heath

No. I shall look up my telephone account.

This is a separate question of the inner control of the security services. Secondly, we come to the question of clause 1 of the existing Act, which must be enforced—although, as we realise full well, we are not always effective in achieving our aims by it.

The third part is the question of information and clause 2 of the existing Act. As has already been mentioned, in the election manifesto of 1970 I pledged the party to eliminate unnecessary secrecy concerning the workings of Government and the operation of the Official Secrets Act. We put that in hand immediately by establishing the Franks committee in the spring of 1971. It reported in 1972. We then had discussions preparatory to introducing a Bill in 1974 if we had been re-elected. Those discussions were not especially helpful.

I invited the editors of all the press to No. 10 to discuss with them the Franks report and the way in which we could amend section 2 to meet the need for an open society and a free press, while at the same time safeguarding such national interests as were natural. I am afraid that the only reply that I received was that section 2 should be wiped out, nothing should be put in its place and everybody should be free to publish everything, except what came under section 1. That was not acceptable to us. Indeed, I do not think it would be acceptable to any Government, or to the House of Commons. However, that is as far as we got in those discussions, which I regarded as important.

On the second part, to eliminate unnecessary secrecy concerning the workings of Government, I believe that this is where we have all failed to move into the present decade. I asked Sir Donald Maitland, my press officer, to discuss with the lobby the abolition of the lobby. I have always regarded the lobby as a pernicious system, and still do. The only way in which we shall achieve open discussion is by abolishing the lobby system and by the press having access to officials and Ministers and having to declare, and being able and free to declare to whom they have spoken and what people have said. Of course, that idea met enormous resistance from the lobby, which obstructed it — or rather it flatly said that it would not accept abolition. We had not reached the stage of finally saying, "You are abolished."

I had open conferences on the two main measures for incomes policy, which were by open invitation to the world's press. The lobby reaction was, "We shall not come." However, when its members found that the world's press was there, they said, "Yes, we shall come but we shall not ask any questions." However, when they were there and the world's press were asking questions, their resistance slowly ebbed and those journalists jumped up to ask questions.

I am absolutely convinced that the abolition of the lobby is the answer to the question of handling information. After all, it is only trying to maintain the situation in which, initially, Parliament was never reported but now it is reported only by the lobby, with its own selection and its own juicy bits — [AN HON. MEMBER: "The right hon. Gentleman is upsetting them."] I am not aware of upsetting the lobby. That is not quite so necessary for me as—[Laughter.] This is a serious point.

My next point relates to our position in Parliament, in connection with Government and Whitehall. The United States' constitutional system has many disadvantages, which have become more and more apparent, especially the difficulty of obtaining a suitable President. But it has one advantage, that Congress is not beholden to the President. It is not beholden to the Administration in any way. Therefore, its debates are free and it searches out its information from every quarter. It has a statutory right to that information, as individuals as as well as a whole.

Irangate has been mentioned. In a similar situation, can one imagine an Irangate inquiry here? Not for one moment—not carried out openly, in front of television, with officials being made to answer and people not being told by the Prime Minister, "No, you can't have him. You'll have Sir somebody or other or Lord somebody or other because he is my choice." That would not happen. There is a difference between the American open system, with all its faults, and our system. That is what I believe we must move on to.

One aspect of the matter is the 30-year rule, which has also been mentioned. I confess that I did not see the relevance of either the question or the answer yesterday afternoon to the Prime Minister as to whether it was true that Hugh Gaitskell's file had been suppressed under the 30-year rule. We are now in 1988, and if we go back 30 years that takes us back to 1958. Hugh Gaitskell did not die until 1961. The Prime Minister said that everybody in the House would understand the reasons. I confess that I am so ignorant and uneducated that I do not understand the reasons, on any point. Perhaps there is a reason, in which case I should like to know it.

Soon after I became Leader of the Opposition, the then Prime Minister, now Lord Wilson, said to me that his view was that the 50-year rule was far too long and asked whether I agreed. I said that, personally, I did, but I had to consult my predecessors, Sir Anthony Eden and Mr. Harold Macmillan, about their views before I gave him a substantive answer. I discussed the matter with both of them and they agreed with me that it was better to come down to 30 years. The Prime Minister decided that there would be a 30-year rule, with exemptions, not a 50-year rule. I now believe that it should be changed this time. Perhaps with advancing service in the House, I am beginning to realise that there is a period of history in which I moved, about which I shall never know the truth. I find that disconcerting and, to say the least, worrying. I therefore believe that, in so far as we move into much more open information, the 30-year rule should come down.

What has emerged about our own nuclear or atomic problems must make one or two people think again about the harsh words that they uttered over Chernobyl. It is not only such societies that do not give immediate answers to questions. It has taken the House 30 years to get an answer to questions. Therefore, in future we might be a little more careful about our own attitudes towards the problems of those outside these shores.

I shall support the Bill because I believe that my hon. Friend the Member for Aldridge-Brownhills has produced a workmanlike job and we can benefit by having further discussions in Committee. I want to establish firmly that the Government cannot issue a three-line Whip on a private Members' day.

My right hon. Friend the Home Secretary touched on this matter at the end of his speech. Legislation can do only a certain amount. It cannot deal with the whole problem. The problem is that of people. To talk about silence for life is not realistic for people. They say that, by the time they have retired, those things are just history. Other people have written about them — Ministers and Prime Ministers have all written about them. Journalists to whom others have talked have all written about them. Those people ask why they are in that exceptional position. It is a matter of people's feelings and their views about their lives.

Mr. Andrew Rowe (Mid-Kent)

My right hon. Friend has good reason to know that I have just started reading the Colville diaries. The first thing that I read was that he was not entitled to keep a diary. Is that not a good illustration of the point that my right hon. Friend is trying to make?

Mr. Heath

My hon. Friend has touched on a rather delicate question for those of us who are acquainted with the matter. It was always understood that Sir John gave an undertaking to the other private secretaries that diaries would not be published. Indeed, a large number of such very delicate situations still exist.

We are dealing with people, and it is the choice of people that matters. In the inner control of the security services, the first point to remember is the selection of people and their admission to them. They contain some admirable people. Unfortunately, I have had to disappoint some of them. They came to me and spoke about some of their great achievements. I said, "Admirable; you have done very well and produced great advantage for the nation." "We can popularise and publish them, can't we?" they asked. "No," I said, "I am sorry, but you cannot. No one is to hear a word about them. They are your achievements and you must be satisfied with that and keep them within the security service."

However, I also met people in the security services who talked the most ridiculous nonsense and whose whole philosophy was ridiculous nonsense. If some of them were on a tube and saw someone reading the Daily Mirror, they would say, "Get after him, that is dangerous. We must find out where he bought it."

The second point about people is that we must treat our public servants well. Many harsh words have been said about Mr. Wright. I must confess that I have not read his book. A friend of mine in America sent me a copy by special messenger as soon as it was published, but I was told that I should not read it. I was also told that if my housekeeper wanted to stand by the fire and read it to me, that would be all right. I have not run any risks from the security services or anyone else by reading that book.

There was a stage when Mr. Wright felt that, having given years of hard service faithfully, he was not well treated. My judgment is general—that one must look after one's public servants properly. With the country in its present state, the morale of the public service is low in almost every sphere, and it must be raised. That can be done only by looking after our public servants properly and by showing them that we respect their work. Some of them may occasionally go wrong, but the number is minute compared with other countries.

I support new legislation in this area, and the Bill is well on the way to providing that. I do not doubt that other matters must be considered—for example, whether the Judicial Committee of the Privy Council is qualified to take decisions. All such issues can be argued, and that is where the complexity lies; it does not lie in the principles of greater information and security for the nation that we are trying to achieve. Such principles are clear and the complexities lie in the machinery for achieving them. That is where this House can contribute a great deal. Above all, we must always remember that the final answer will rest with people, and will turn on our relationships with them.

12.58 pm
Mr. Frank Cook (Stockton, North)

The right hon. Member for Old Bexley and Sidcup (Mr. Heath) referred to the principals of the CIA and the FBI sitting shoulder to shoulder with him on television. Together with many dozens of other people, I was shown around the White House by a gentleman who described himself as "Wilbur C. Eisenstein of the US secret service uniform branch". That is another example of the different attitude of regimes in other countries.

As a humble Back Bencher, I want to commend the hon. Member for Aldridge-Brownhills (Mr. Shepherd) for his determination and courage in bringing this Bill before the House. I commend him also for the manner of his presentation today. He was very erudite and good-humoured. I contrast that with the discomfort displayed by the Home Secretary with whom I have great sympathy. In allowing himself to strike the posture that he has shown today, he has created a "knight's fork" for himself later this year. Clearly, he will have difficulty delivering if the Government's attitudes remain the same as they have been over the past two or three years. The Home Secretary is offering assurances that all will be well come June, yet those assurances are offered by a Government who have already behaved badly in the Tisdall case and are now behaving in a quite cretinous fashion over the issues of Cavendish, Wright and Duncan Campbell.

My right hon. Friends the Members for Birmingham, Sparkbrook (Mr. Hattersley) and for Chesterfield (Mr. Benn) and the right hon. Member for Old Bexley and Sidcup (Mr. Heath) referred to Windscale and the 30-year rule. It is true that we now know that certain matters were kept out of the public eye 30 years ago. Those matters have now been released under the rule. However, we also know that three areas of that issue are still kept secret by the Government today. At least one of those could have a direct bearing on any medical assessment of the biological effects on the Windscale community and those immediately adjacent to it.

The hon. Member for Hampstead and Highgate (Sir G. Finsberg) asked where the pressure was coming from for the measures that we are considering today. He said that the pressure was not coming from the constituents. How on earth can we expect constituents to apply pressure on matters about which they are kept ignorant? People cannot apply pressure about something until they know that a situation exists. Once again we must commend the hon. Member for Aldridge-Brownhills for bringing the proposal forward today.

I do not intend to deal in detail with the proposals as I want to be brief. Hon. Members who have spoken, and others who wish to speak, are wiser, more experienced and certainly more eloquent than I can ever be. I take heed of the right hon. Member for Chesham and Amersham (Sir I. Gilmour) who counselled the Government to take a careful look at the 17th century. We are not talking about anything new today. As we have already heard, all Governments have readily been anxious to keep secrets. To highlight that, I want to refer briefly to William Fordyce's "The History and Antiques of the County Palatine of Durham Volume 2" published in 1857. It has been in the Library for some time. It states: The Speaker has issued a warrant against the printers of the Gazetteer and the Middlesex Journal, two of the papers of the day, on a charge of misrepresentation of the proceedings of the House."— the House of Commons. As the printers refused to appear at the bar, a royal proclamation was issued for their apprehension, and they were brought before Alderman Wilkes and Oliver, by whom they were not only discharged, but bound over to prosecute the person who made the capture. So the two aldermen were charged to prosecute the decision of Parliament, but refused to do that and asked the victims to prosecute the person pursuing them.

Mr. Miller, printer of the London Evening Post, had likewise been taken into custody by a messenger from the house on a similar charge … The sarjeant-at-arms consequently attended at the Mansion House, to demand the bodies of both printers and publisher; but as he had not applied to a magistrate to back the warrant, or to any peace officer of the city to assist him, his lordship informed him `that as long as he held the office of lord mayor, he was the guardian of his fellow citizens' liberties, and that no power on earth should seize a citizen of London without authority from him or some other magistrates of the franchise'. He accordingly declared Miller at liberty, made out a warrant to commit the messenger for an assault and false imprisonment. That is an example of Parliament at that time being thought to be exceeding its responsibilities. Perhaps we can see some similarities today. It goes on to say: The House of Commons was indignant at this defiance of its authority and ordered the Lord Mayor and the Alderman Oliver to attend in their places (together with Alderman Wilkes)". It would appear that when they appeared before the Bar there must have been a three-line Whip in operation. The archives tell us that on a Division of 282 to 39 the Lord Mayor was committed to the custody of the lieutenant of the Tower and was imprisoned, together with the two others.

The result of that imposition of a three-line Whip, much later on, was that The excitement out of doors was very great. The committal and imprisonment of the Lord Mayor of London was felt to be an event of peculiar and extraordinary importance—so much so that when they were committed to the Tower, to the people of London picketed this place. That must have been one of the original lobbies. When the Lord Mayor was taken from here by the Deputy Serjeant at Arms for incarceration in the Tower, the crowd removed the horses from the coach and drew the coach themselves, by manpower, to the gates of the City and ordered its contents to disembark. The Lord Mayor and aldermen—

Mr. Rupert Allason (Torbay)

I am falling asleep.

Mr. Cook

I am giving the House a history lesson. If you care to sleep—

Mr. Deputy Speaker (Mr. Harold Walker)

Order. I am very wide awake.

Mr. Cook

I was not referring to you, Mr. Deputy Speaker.

When the crowd had ordered the travellers in the coach to disembark on the way to the Tower, the Lord Mayor had to protect the Deputy Serjeant at Arms by assuring the crowd that a friend was simply taking him home for a cup of Horlicks before he went to bed. The Lord Mayor spent the evening not in the Tower, to where he had been dispatched, but in the Mansion House and had to walk along to the Tower quietly the next day and turn himself over. It said: He was … honoured with the freedom of the city of Worcester, and of the town of Bedford"— I hope that hon. Members are taking note of these places— and addresses were forwarded from the counties of Carmarthen, Pembroke, and Cardigan, the towns of Newcastle, Stratford and Honiton, the common councils of every ward in London and many patriotic clubs. The decision to release the Lord Mayor was popular and the decision to incarcerate the Lord Mayor for defending the freedom of publication of the proceedings of the House was very unpopular.

He remained in prison until the prorogation of Parliament. When the Lord Mayor left the Tower there was a 21-gun salute from the members of the Honourable Artillery Company and 53 carriages followed him in his train to celebrate, and there were loud huzzas. It continued: The feeling of the nation was unequivocally shown on the occasion; and the fact that, since that period, the proceedings and debates in Parliament have been regularly printed and published, which before they were not, is sufficient to secure — the gratitude of prosperity as well as the plaudits of his contemporaries. I do not apologise for reporting that with some degree of pride. The person responsible for all that was Brass Crosby, Lord Mayor of London, Alderman and Member of Parliament for Honiton but born and bred of parents in Stockton-on-Tees of a mother born and bred in Blackhall, county Durham.

In the spirit of that time and of some efforts since, and in the spirit that is true of the north-east and other areas of the country, that freedom of access to information and freedom of comment that is supposed to be an inalienable right within this country, we should resist the ill-timed and misplaced efforts of the Government to seek to defend in a poor and frail fashion the mistakes they have made in the past two years. I, together with many of my hon. Friends, will gladly be supporting the private proposals of the hon. Member for Aldridge-Brownhills by going through the Lobby with him.

1.10 pm
Mr. Michael Heseltine (Henley)

The first point that seems evident from the comments of right hon. and hon. Members on both sides of the Chamber is the near-universal praise for my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) for his introduction of the Bill, the way in which he did that and the thoroughness with which he addressed the entire exercise. Nobody has sought to question that, and I should like to add my words of admiration for all that is involved therein.

I take a slightly different view from some hon. Members who have spoken about the scale of the achievement of my hon. Friend. He can argue that he faces a three-line Whip from the Government and that in the way of things the chances have to be that the Government will secure their will. However, I do not see that as a defeat for my hon. Friend, but a remarkable personal victory. I take the view that, however the coincidences may have worked out, the initiative of my hon. Friend and the fact that he pursued his determination to the point at which he introduced his Bill cannot be dissociated from the assurances that the Home Secretary has given that the Government intend to introduce their own legislation.

During the course of the morning, we have ranged over fundamental constitutional issues as to whether this is a matter that should have been raised by a Back Bencher at all. I want to make my view absolutely clear. I have no doubt that my hon. Friend is fully entitled, as a Member of this House, to raise this matter. He has done an excellent job and it would be a constitutionally impossible approach to suggest that he did not have the right to raise such an issue.

The second issue that flows from this is whether my hon. Friend was right to want the reform in the first place. That is no longer controversial. The Government have conceded that that is so. They began to consider reform in 1979, and in earlier reincarnations they set up inquiries to precipitate such action. Therefore, my hon. Friend is right to want reform, as he is right to take the initiative to secure that reform. I believe that he has achieved a substantial personal victory, and I want to congratulate him on it.

It has emerged over the past few months that my hon. Friend was not alone. Indeed, the Government had already begun the process of reform before my hon. Friend began his endeavours. While most of us were preoccupied with preparation for the general election campaign of 1979, the Government were preoccupied with preparing a new Official Secrets Act. If that was an official secret, it was one of the most effectively kept official secrets that I remember.

Mr. Jonathan Aitken (Thanet, South)


Mr. Heseltine

This official secret emerged from its shroud in one of those constitutional coincidences that charm the sceptic some months later, and after my hon. Friend the Member for Aldridge-Brownhills had made known his intention to proceed in this way.

What cannot be ignored is that, however we interpret the history, my hon. Friend has secured a very full commitment from the Government. To him the credit; to him the victory. I very much hope that, whatever may happen in the Lobbies this afternoon, he will remember the scale of what he has achieved.

My hon. Friend knows my views. In all the circumstances and for all the reasons that I shall try to explain, I hope that he will content himself with that achievement for the time being. In practical terms, it is apparent that the Government cannot stand back from this legislation. Those who have listened to the debate will have realised that the journey of this legislation, whether this Bill or the Government's Bill, will be no easier this time than it was in 1979.

It is obvious what reforms the right hon. Member for Chesterfield (Mr. Benn) wants. He wants a regime wherein civil servants see it as a reasonable part of their approach to leak, sometimes publicly and sometimes covertly. He sees as a virtue the behaviour of Sarah Tisdall. He sees Clive Ponting as an example of a legitimate way in which civil servants should behave.

I was close to the events which surrounded those two prosecutions. Everyone knows that Ministers are not themselves responsible for initiating those prosecutions. That is done by the Law Officers. If there is one memory which I shall always hold of those times, it is that the people who felt most strongly that they had been betrayed were not the Ministers, but the civil servants.

If the views of the right hon. Member for Chesterfield ever gain sway, the standards of the British Civil Service, who I happen to think are world leaders, will be destroyed, because they will become politicised. Of course, we know that many people in the Labour party have already begun the process in local government of recruiting people for their political views.

Mr. Buchan


Mr. Heseltine

That is the logical step, if it is believed that what is today perceived as secret may be merely a stepping stone to public disclosure of ministerial dialogue. I have the highest regard for the British Civil Service and treasure the fact that a Minister could say more or less whatever he liked to civil servants. He could even make stupid mistakes in front of them and they would remain confident to him and would not abuse that trust.

Mr. Dalyell


Mr. Heseltine

The day that one feels that, every time one is indiscreet or one makes an error of judgment or is plain wrong, it will be in the public domain, that day we shall recruit people who are politically loyal to us and we shall not have the wider discussion on which the proper government of the country depends.

The idea that these issues will be easy to deal with or that, even with the eloquence of my hon. Friend, he would find it easy to steer private Member's legislation through the House on so complex a matter, does not stand up. It is the right of the House to insist, in the extreme, that it should be done. The most effective way, although not the only way, of doing so, is for the Government to proceed with the legislation because their rules, secrets, relationship to their civil servants and decisions about censorship are at the heart of the debate.

The better way is for my right hon. Friends to conclude their deliberations, produce a White Paper, and then, in the light of the dialogue that will ensue, introduce a Bill for proper parliamentary consideration. It will have to proceed within the traditions of Government legislation, which means that the Government will use the whipping procedure to ensure progress. There will be no progress with the legislation unless there is access to the whipping mechanism. There are too many people whose views are irreconcilable. There are those who want to toughen the legislation to make more things open and available, and there are those who want to change the legislation to preserve greater secrecy. Such an irreconcilable position will be resolved only by the Government using their majority.

Mr. Dalyell

That is all very well, on the assumption that Ministers are telling the truth. Moving on from the Ponting matter, what would the right hon. Gentleman say about the selectively leaked Law Officers' letter on Westland, of which he was the victim? Is not the central issue that Sir Brian Hayes, Sir Robert Armstrong—this is according to Sir Kenneth Clucas, not just to me—were put in an impossible position and therefore were forced to behave unethically?

Mr. Heseltine

The answer to the hon. Gentleman's question is simple. I shall say not a word more and withdraw not a word from what I have already said.

The issue is whether the Home Secretary's offer should now be accepted. I do not think that I flatter my right hon. Friend when I say that if he, of all members of the Government, tells the House that there will be a White Paper that will lead to a Bill at an early date, that will be the case. I have not the slightest doubt that that is his intention. My hon. Friend the Member for Aldridge-Brownhills may say that it will not be the Bill that he has introduced. That will be the case. The Bill will be based upon the Government's assessment of how we should introduce reform. It will not change the outcome. Even if the Government seek to amend my hon. Friend's legislation, as opposed to introducing their own different legislation, the end result will be that the Government will allow the passage only of legislation with which they agree.

Although there is a time loss for my hon. Friend of what probably amounts to 12 months, that is the only loss that he is being asked to incur. There is another loss, of course. It has been referred to by many right hon. and hon. Members. It is the loss that is involved in the use of a three-line Whip to deny a private Member access to time in the House. That is a disgraceful decision. It should never have been taken.

Mr. Tom Clarke (Monklands, West)

The House recognises that the right hon. Gentleman has had considerable experience in government. I do not know whether he has ever introduced a private Member's Bill. In my limited experience, Government assurances on such matters have been worthless. In that case, if the right hon. Gentleman considers that there is little difference between the positions taken by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) and the Government, should he not urge the Government to withdraw the three-line Whip and table amendments as the Bill makes its way through both Houses?

Mr. Heseltine

I accept the Home Secretary's assurances that he intends to deal with the matter, that deliberations are under way, and that the Government are not yet ready to conduct a proper debate. It is not in the best interests of my hon. Friend the Member for Aldridge-Brownhills for there to be a procedure whereby the Government are not able to answer the questions that all members of the Committee will rightly put, clause by clause, about the Government's views. That would make a nonsense of an orderly Committee procedure.

The use of a three-line Whip was a considerable misjudgment by the Government. It can do nothing but excite the arguments of those who regard the Government as authoritarian or stretch the loyalty of a significant number of supporters of the Government, in what will not be an easy parliamentary session. The warning that the House has given the Government on the issue of the three-line Whip is clear, and I hope that it will be recognised.

The next step is a dilemma for all those who are supporters of the Government, and there is a particular issue for Conservative Members. The Government — rightly and, in almost every case, unavoidably — have pursued, through courts in Britain and overseas, a range of issues arising out of the existing Official Secrets Act. Looking at the options that faced Law Officers and Ministers, I do not see any easy alternatives to the steps that the Government took. If they had not taken the decisions to prosecute, which were often difficult and unattractive decisions, in virtually every case less attractive options would have flowed from their doing nothing. The Government were fully entitled, in the exercise of their legal judgment, to pursue the issues of the Official Secrets Act through the courts.

The Government are still deeply immersed in that process. The issue for Conservative Members, faced with the mistake of a three-line Whip, is whether we should vote against the Government — in theory, overwhelm the Government — in a context of which the only message could be that we are anxious, dismayed or, even worse, opposed to the steps that the Government have taken in upholding the existing Official Secrets Act. That message will flow directly if Back Benchers behind the Government overwhelm the Government's three-line Whip on this issue. That is the interpretation that would be placed on it.

With the most profound admiration of my hon. Friend the Member for Aldridge-Brownhills, and with the clear view that the victory of today's deliberations is his and that of his colleagues—he is entitled to the credit — I hope that he will not proceed with the Bill. If he does, with the greatest reluctance, I shall support the Government in the Lobby this afternoon.

1.27 pm
Mr. Peter Archer (Warley, West)

The right hon. Member for Henley (Mr. Heseltine) has expressed, with great eloquence, a point of view which he is entitled to hold. He has advanced a number of propositions that I would have been interested to hear debated in Standing Committee. But the right hon. Gentleman said that he does not want that debate to take place; he wants the matter to proceed in the Government's good time and on the Government's agenda. He does not want to see his hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) as an honest broker, he wants the Government to have control. I suspect that that is one of the matters of principle which are in dispute today.

Yet the right hon. Gentleman's speech confirmed what was already apparent from the debate — the Bill gives expression to a real concern which transcends not only party divisions in the House, but the distinction between those who have held high office and those who glory in being professional Back Benchers.

I should add my congratulations for the fair and balanced way in which the hon. Member for Aldridge-Brownhills introduced the Bill. He introduced a new expression into the political dictionary, which will be with us for many years. I hope that he will also introduce a new addition to the statute book.

The debate has been a fair and balanced one. It is not always true that, outside the House, the debate between those who see the free flow of information as a vital part of democracy and those who prefer to see the truth dispensed economically has always been conducted in quite such moderate terms.

The Government must have perceived this as a disastrous and damaging debate. There have been times when I have felt sorry for the Government. Today, my heart did not bleed for them because their difficulties are entirely of their own making. They must have known that no one believes that any Government are motivated purely by a concern for security. They are not necessarily as coldly rational as my right hon. Friend the Member for Chesterfield (Mr. Benn) said. Any Government know that the more the public learn about their activities, the more likely the Government are to be criticised. Anyway, if the public learn the facts, they might misunderstand them. The Government say, "It would all create alarm and despondency, so is it not better to keep it discreet?".

It is not always a matter of the Government deliberately setting out to conceal what is discreditable. Among any elite, not least among Ministers and governmental officials, part of the tradition and culture that holds them together, part of what they have in common, is knowing what other people do not know. Letting in the uninitiated is breaking the code in more senses than one. I remember, as will my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), that one of the witnesses to the Franks committee quoted the words of a permanent secretary in 1873 who said: The unauthorised use of official information is the worst fault a civil servant can commit. It is on the same footing as cowardice by a soldier. That is the very nature of Government. The Home Secretary's valiant attempt to persuade the lambs to await the convenience of the lion was impressive. But surely he did not believe that we could have confidence in a Government with a record such as the one canvassed today. Even the right hon. Gentleman must recognise that, in deciding how far we trust the Government, we are entitled to take account of their relationship with the BBC, their attitudes towards the BBC's property and their use of injunctions to ensure that the people of this country, and only the people of this country, are kept from knowing what is available to every foreign secret service and what is on the bookstalls everywhere else in the world.

Part of the picture is the way in which the Government have dealt with this debate. One can almost imagine a Government committee saying, "How will we deal with this? Let us have a three-line Whip. It will be unpopular, people will be horrified and it will break all the precedents, but we will ride it. Tell them that we will do something about it, only be careful not to tell them what we will do." That is the picture against which the House is asked to decide whether to await the Government's convenience and time before proceeding.

Of course, there is another side to the picture—no picture is wholly one-sided. Not all of those who campaign for freedom of information are motivated solely by a quest for truth. A good scandal sells more newspapers than any dissertation on political principle. Of course the public's right to know is sometimes invoked in aid of a right to bombard the public with trivialities. As we all know, there is no better incentive to report and to seek information than the knowledge that someone finds it embarrassing. William Randolph Hearst used to tell his reporters: News is what someone, somewhere, doesn't want reported: all the rest is advertisement. Two hundred years ago, Sheridan put words to that effect into the mouth of Mr. Puff, "If you really want to sell a book, you must get home two things about it: the first is that everybody is reading it; the second is that nobody ought to read it." The Government have learned the hard way in the case of "Spycatcher". As we have all said, we are all on the list, we hope, for the next injunction.

The Government do not learn from history. I am old enough to remember when people who had never heard of D. H. Lawrence were queuing up at bookstalls to buy "Lady Chatterley's Lover". I suspect that many of them never read it.

Mr. Doug Hoyle (Warrington, North)

My right hon. and learned Friend bought one.

Mr. Archer

I was given one.

Mr. Buchan

Such is the effect of these actions that a friend of mine discovered that his son had hidden on the top shelf of the wardrobe an expurgated version of "Lady Chatterley's Lover."

Mr. Archer

Presumably, he had arrived by it legally, which is even stranger.

The Bill must compromise, as any Bill must, between the secretive and the plain nosey. It also has to maintain a balance between the views of those who insist on dealing tidily with a group of related subjects in a package and those who would be happy for all the talk about the whole matter to run into the sand.

There has been much common ground in this debate. It is common ground, for example, that some restrictions on free speech are inevitable, as the right of one individual to speak freely may conflict with the rights of other individuals. We need laws governing defamation, obscenity, contempt of court, breach of copyright and invasion of privacy and we need to safeguard the prevention and detection of crime. The present limits on any of those matters would be a suitable subject for debate. I can name about a dozen reports of commissions and committees that must be propping up rickety tables in Government Departments at this moment and which may never see the light of day again. It is easy to show that almost any of those topics has implications for all the others, including the subject that we are debating today.

I remember when some of us thought that the best way to treat the reform of what was then called media law was to try to agree a package after a series of trade-offs. We now know better. We know that it would be an achievement to secure the most limited of reforms and that to wait for a comprehensive review would be to petrify matters as they stand for our lifetime.

In any event, I am not sure that we ought to think of this as media law. The right that we are discussing is not primarily the right of the media. It is not even primarily the right of anyone else to disclose information. It is the right of the public to be informed. The right of the press to sell newspapers seems to me less important than the right of the electors to have before them the material on which they can make informed judgments. Indeed, what we seek to do may actually diminish the number of scandals on which the media can thrive. The knowledge that the public may discover what is happening as a matter of course may ensure that discreditable things do not happen. It was Mr. Justice Brandeis of the United States Supreme Court who said that sunshine was the best disinfectant.

This is understandably and properly a modest Bill concentrating on a single topic—the freedom of official information—and its objectives are modest even within that topic. The Bill might have set about seeking to repeal the 61 other statutory provisions identified by the Franks committee which help to conceal official information. I was grateful to Penguin Books for directing me to an article in New Scientist by Jon Tinker in 1972. Jon Tinker analysed the veil of secrecy over the control of pollution. It transpired that the owners of a factory emptying cyanide into a river would face a maximum fine of £100 but that if the river inspector mentioned the results of his analysis—not to members of the press but to any member of the public — he would face up to three months' imprisonment. That is all of a pattern with the information—if we are to believe all that we hear—that an inquiry is proceeding into a leak of the report on foam-filled furniture. That report was not even classified at the time because everyone thought that it was a sensible plain warning about the danger to life. The United States has its Freedom of Information Act, its Privacy Act, its "Government in the Sunshine Act" and its "Whistle-blowers (Civil Service Reform) Act". Sweden has a Freedom of the Press Act. Most countries have now made some attempt to solve the problem. The United Kingdom has section 26 of the Clean Air Act and section 59 of the Offices, Shops and Railway Premises Act, which make it a criminal offence to disclose the fact that a criminal offence has been committed. We are still in the age of Ibsen's play "An Enemy of the People", in which the enemy was the man who was trying to warn the public of the danger.

The Bill maintains a balance between the views of those who want no reform and those who will not settle for anything short of complete reform.

The hon. Member for Aldridge-Brownhills recognised, properly, that the best must not be allowed to become the enemy of the good. We should not reject half a loaf because it is not a feast. Section 2 was the most obvious place to begin because it is indefensible. It is not only unjust; it is so unjust that juries will not convict anyone prosecuted under it. Juries have a strong instinct for what is fair and sensible — a proposition which some Opposition Members will put to the Government, in a different context, on Monday.

The draftsmanship of the section is unique. In one sentence, it contains so many alternatives and disjunctives that the Franks committee calculated that it created more than 2,000 separate offences. I have tried to spell out one of the offences, leaving out the words which are not relevant to that offence, and I wonder whether anyone would have included the section if these words alone had been starkly in the original draft: If any person having in his possession … any … information … which he has obtained owing to his position as a person who holds office … under His Majesty"— that would mean a lift attendant in a block of Government offices who has discovered the colour of the wallpaper in the canteen— communicates the … information to any person, other than a person to whom he is authorised to communicate it … that person shall be guilty of a misdemeanour. It is clear that we are not discussing security. Security is irrelevant to the section.

There are two genuine problems about security. When the Government invoke security as a reason for secrecy, how is the public to know that that is genuine? Few Governments have earned the unquestioning trust of the public, and if the Government say, "Not only can we not tell you the information, but we cannot even tell you why we cannot tell you, because that involves security, too," we have a problem. We could have an infinite regress: the Government cannot tell us why they cannot tell us why they cannot tell us, and so on ad infinitum. If the public are to have confidence that secrecy is directed to a genuine security problem, we need someone who can be trusted to adjudicate on whether the alleged security need is genuine.

The second problem is that our security depends upon the reliability of the security services which, as the right hon. Member for Old Bexley and Sidcup (Mr. Heath) reminded us, do not even exist according to the statute book. We do not know whether the allegations made in "Spycatcher" and the other publications are true. My guess is that the problem lies less with controlling the security services than with their control over their members. I get the impression that every member of the security services has a little policy of his own. But not since the Napoleonic wars have the security services been the subject of so much public disquiet, yet the Prime Minister loftily brushes aside the allegations about which we heard today and the calls, from many responsible quarters, for an investigation. After all, it is none of the public's business and she knows best.

But none of that concerns section 2, because it is not about security. It was not even designed to protect security. The first draft of the Official Secrets Act 1889, on which section 2 was based, was headed the "Breach of Official Trust Bill". It said nothing about security. The Government of the day were compelled to include a public interest defence. During the spy scare of 1911, the House was very much involved in discussing the Parliament Bill and could give only half an hour to the entire Official Secrets Bill. They introduced a section that went much wider than the 1889 Act and which eliminated the public interest defence.

Section 2 does not discriminate about the sort of information which it seeks to protect. It creates offences irrespective of whether the public would benefit from disclosure. It punishes someone for disclosing or possessing information, irrespective of whether the information is already publicly available, and it makes guilt or innocence dependent upon authorisation without specifying who can authorise what and how many people can authorise themselves.

The Bill addresses itself specifically to those problems, and I hope that the House will give it a Second Reading.

1.44 pm
Mr. Jonathan Aitken (Thanet, South)

Let me begin, in common with many other hon. Members who have spoken on this important parliamentary occasion, with a genuinely warm tribute to my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). His speech amounted to a proposal for—in the words of my right hon. Friend the Home Secretary — an effective, enforceable and reasonable Bill. Admittedly, my right hon. Friend claimed those words for his own, as yet non-existent, Bill, but, in my judgment, they apply admirably to the Bill presented today.

My hon. Friend made a first-class speech. At least one part of it, as the right hon. and learned Member for Warley, West (Mr. Archer) suggested, might well pass into the lexicon of political terminology. He referred to the Hallelujah Chorus. It must be said, however, that the Hallelujah Chorus can sometimes be conducted in such a way as to produce music that is a long way from the dulcet tunes of George Frideric Handel. My hon. Friend is to be congratulated on standing firm against some of the pressures imposed by the conductors of this Hallelujah Chorus.

An insight into those pressures was revealed in a long article about my hon. Friend in The Independent on Saturday, 9 January, which contained the following remarkable paragraph: Some of those involved in the current and unsuccessful attempts to persuade him to drop his latest crusade claim that they are beginning to doubt his personal balance and stability. Those of us who heard my hon. Friend put forward his lucid view of the Bill will feel that perhaps the most appropriate answer is to quote the remark of George II about General Wolfe: Mad, is he? Then I hope he will bite some of my other generals.

Mr. Hoyle

The hon. Gentleman quoted what was said in The Independent. Does he know whether it emanated, as usual, from the Prime Minister's press office?

Mr. Aitken

With unattributable briefings, the authorship is always invisible. But what it means, in all seriousness — and this is why it was a disgraceful comment—is that the Torquemadas and the Flashmans of the administrative information spreaders have gone around saying that my hon. Friend is going mad. Although a joke can be made of that, it was a serious arid disreputable piece of briefing.

The debate has two major themes: the contents of the Bill, and the issue of principle about the rights arid freedoms of Parliament and Back Benchers. I suspect that, in times to come, today's debate and the events that preceded it will be viewed as something of a watershed in the history of contemporary relationships between Parliament and the Executive.

The lessons of history tell us that executive Governments from time to time get too big for their hoots. They trample too hard on the rights of individuals an .d parliamentarians, and must be halted in their tracks. The hon. Member who does the halting — in this instance, my hon. Friend the Member for Aldridge-Brownhills—honours a long parliamentary tradition that stretches all the way back to John Hampden, and I congratulate my hon. Friend on what he has done this afternoon.

I hoped that I would be called late, so that I could answer the criticisms made of the Bill. I have here a page which I was ready to fill up with answers to the serious criticisms made of the various clauses and the points made in them. My page is completely blank. The amazing element of today's debate is that there has been not a single serious criticism of the Bill's contents. My right hon. Friend the Home Secretary spoke so emolliently from the Dispatch Box that I suspect that, if someone met him at dead of night and said, "Psst! Are you really in favour of this Bill?" his answer would be yes. He could not find a single objection to put forward.

The absence of any criticism of the Bill from any hon. Member who has spoken in the debate is, perhaps, the most telling measure of support. I suspect that, if we were to have a free vote, at least two thirds of the House would be willing to vote for the Bill. I therefore feel that it is hardly necessary to say anything about its contents, and I shall make only two brief points.

First, as everyone has agreed, the Bill is serious and responsible. It narrows down the categories of information that need to be protected by the criminal law. It would, incidentally, probably make it easier for the Crown to obtain convictions against disloyal civil or Crown servants who breach their trust in matters of sensitive information. That is something that the prosecutors need.

I am not a paid-up member of the Royal Society for the Protection of Attorney-Generals, but I sometimes feel that, under the Official Secrets Act, they have had an impossible job because of the uncertainty. The Bill would give prosecutors, or those thinking of breaching the law, much more certainty.

I should like to put down a marker for the Home Secretary's invisible, non-existent Bill of the future. It concerns reviewing a ministerial certificate, or the Minister's fear that an offence has been committed. We cannot have absolute offences. We cannot have crimes committed just because a Minister says so. One of the things which worried me about the 1979 legislation was the fact that a Minister could just certify that a serious breach of secrecy had occurred. There was no way in which to challenge it.

One of my hon. Friend's most important proposals is the introduction of a review by the Judicial Committee of the Privy Council. This is not a brilliant innovation, although I commend it. It has its genesis in what Lord Havers committed the Opposition, as we then were, to on 15 June 1978. I hope that Home Office Ministers will look up what was said then. Many good reasons were given, but basically they amounted to a proposition with which few would disagree. It was that a Minister should not be judge and jury in his own court and that there therefore had to be some form of independent review. My hon. Friend suggests the Judicial Committee of the Privy Council. Lord Havers suggested a Law Lord accompanied by two Privy Councillors. A mechanism for review is vital.

I should like to give a personal example of how necessary it is to have an independent check on Ministers' assertions that a secret has been breached. Seventeen years ago this month, I was sitting not on these comfortable green baize Benches, but rather uncomfortably in the dock of the Old Bailey with the editor of the Sunday Telegraph, being tried for an offence which was alleged to have been committed under section 2. The Crown opened its case in dramatic tones saying that "major military secrets" had been revealed. That statement was made by the prosecutors on, of course, the submission by Ministers.

Two days later, after some cross-examination, of the chief prosecution witnesses, it was revealed that every military fact in the document concerned had already been published and that the British defence attaché, whose document had been leaked, had himself read out the document to a press conference of journalists on an unattributable basis. Halfway through the trial, therefore, the Crown had to go into reverse and say, "Very sorry. There are actually no secrets here." If Ministers' decisions cannot be reviewed, a future defendent might be unable to argue about the assertion that secrets had been revealed.

I must consider the case, if one can call it that, which has been deployed by the Government. They have asked us to respond to their three-line Whip and vote down my hon. Friend's admirable Bill. The message from the Treasury Bench was that, until the Government have made up their mind, Parliament should not get a look in. It is the Alice in Wonderland "sentence first, verdict afterwards" approach. The only sop that we are thrown in the face of that unacceptable doctrine is the Home Secretary saying, "Trust me and trust my future Bill."

There is nothing intrinsically wrong with trusting as fine a Minister as the Home Secretary. It is the kind of request which, in commercial life, one gets all the time. There is a problem, the company or organisation needs some time to sort it out, so we are told, "Trust us, trust the management, we will draw up a plan and issue a prospectus in a few months' time. Just give us a bit of time to get the small print right." It all sounds very reasonable like that but, in commercial life, when shareholders or voters agree to such a request, they do so after hearing at least some bare bones of an outline of what the plan might be. They do not sign blank cheques for plans or prospectuses which are still too secret even to be described.

The notion that plans to reform the Official Secrets Act are themselves still an official secret is something which, as parliamentarians, we cannot swallow. That script is too silly even to be produced in the "Yes, Minister" series. We must reject the extraordinary idea that we should buy a pig in a poke. In fact, if one pokes the pig, one cannot get a grunt out of it. The Government are not saying a word about what will be in their Bill and they are not saying a word of criticism against my hon. Friend's Bill. Talk about dialogue of the deaf—this is a dialogue of silence on the two key issues that the House should be debating.

There are two other good reasons for not giving the Government a blank cheque on Official Secrets Act reform. First, the Government's handling of official secrecy and confidentiality matters in recent months does not inspire universal confidence. Injunctions against the media have been thrown about like confetti in the hands of an excitable wedding guest. One need only consider the Government's extraordinary behaviour over Mr. Cavendish's Christmas card. The notion that there is a privileged magic circle of 500 chums of Mr. Cavendish who can receive such documents with impunity, with the Treasury Solicitor saying, "That's all right. I have received satisfactory assurances from Mr. Cavendish", but when newspaper editors try to publish the same information to a wider circle, they are told that they are acting unlawfully and hit with injunctions, is a double standard that does not inspire confidence about the Government's handling of official secrecy matters. Why should we trust a Government who act in what appears to be such an erratic and strange way?

One can also consider the Government's judgment on the BBC as to whether matters in which it is in conflict with the Government are secret or confidential material. After all, the programme, "My Country — Right or Wrong?" was cleared by the D Notice Committee. The MI5 organisation knew perfectly well that people who had formerly been on its staff had contributed to the programme. I can reveal that the Director General of MI5 sent a memorandum to MI5 staff saying that he knew that the BBC's programme, "My Country — Right or Wrong?" was coming out and that the service had nothing to fear from it. The fact that the Government have issued injunctions in the light of that, shows that the left hand does not know what the right hand is doing.

In that context, I refer to the speech of the right hon. Member for Plymouth, Devonport (Dr. Owen) who raised the deeply serious issue of Sir Robert Armstrong's most recent evidence to the court and its implications for the Security Service. I do not want to go into that in any great depth now, but from some background knowledge of Chapman Pincher's book "Their Trade is Treachery," I understand only too well that it is absolutely clear that that book could have been produced only either with the knowing connivance or with the full co-operation of certain key MI5 officials. That that information should have been withheld from the Prime Minister, the Secretary to the Cabinet and other key personnel is nothing less than a national scandal. I wholeheartedly support what I understood to be the call from the right hon. Member for Devonport that there should be some kind of investigation into that because it is a worrying a feature as any that have come out of the strange shenanigans and developments of recent months.

Mr. Dalyell

I support the hon. Gentleman. Sidgwick and Jackson, in the form of William Armstrong, asks, "Is it not true that 'Their Trade is Treachery' could have been stopped by one telephone call?" Why was that call not made? If the Prime Minister says that she did not know, why and how did the chain of communication fail? Who was responsible? Was it the rivalry between MI5 and MI6? Why were neither Pincher nor Rothschild called to give evidence? That failure cost the British taxpayer £2 million.

All the major points in Chapman Pincher's "Web of Deception" were confirmed in the High Court in November by Sir Robert Armstrong. That means that he was kept in ignorance of the fact that "Their Trade is Treachery" could have been suppressed by one telephone call; that Pincher received no first-hand information from MI6, but was briefed only by MI5 officers, who kept information from Armstrong and who were not fully briefed themselves; and that he was told nothing about the role of the arbiter.

Mr. Aitken

I hope that the hon. Gentleman is not expecting me to be a spokesman on security matters on behalf of the Government. Therefore, I am unable to deal with his fascinating intervention, but it is well to have it recorded that across the Floor of the House there is concern on that particular issue, which is of considerable importance.

Although the debate is about the Bill, it has raised the deeper issue of Parliament's rights. One of the most attractive features of the Bill was that its careful construction could attract a broad consensus of parliamentary support. An official secrets reform Bill needs a broad consensus of support. It needs to have the support of people such as the right hon. Members for Devonport and for Morley and Leeds, South (Mr. Rees)—people of all parties—because only then will it stand the test of time and not be regarded as partisan and devisive Government-introduced legislation, which will be immediately challenged by an incoming Administration of a different political colour.

Therefore, I was glad that my hon. Friend the Member for Aldridge-Brownhills was able to construct such a consensus. One of the saddest aspects of the Government's approach is that they have destroyed that consensus. They have made the task of future official secrets reforms infinitely more difficult because it will now be seen to be hijacked into the area of party politics, which is a great pity considering that the Bill needs the bipartisan consensus to which I referred.

The widest issue of all is whether parliamentarians, particularly private Members, have the right to introduce such Bills and submit them to the judgment of the House of Commons. Speech after speech, particularly that of my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath), has highlighted the sinister and authoritarian development of an attitude emanating from the Treasury Bench, which comes down to the words, "Back Benchers shut up and know your place." That is unacceptable. I was glad that even those who will support the Government in the Lobby, such as my right hon. Friend the Member for Henley (Mr. Heseltine), were strongly critical of that aspect of the Government's handling.

I recall that when the Conservative Government came to power in 1979 after the winter of discontent, they were rightly proud to portray themselves as the champion of the individual and his freedoms and the opponent of over-mighty subjects. Times seem to have changed. Today we are seeing an over-mighty subject, an over-mighty Executive, determined to reject a good Bill without explanation, without an alternative and with contemptuous disregard for the rights of private Members.

My hon. Friend the Member for Aldridge-Brownhills has been right to fight his corner and to expose the Government's tactics as bearing an uncanny resemblance to the stories of the dog in the manger and the emperor who has no clothes. Let us remember the words of Edmund Burke: One man with conviction makes a majority. Let those who care about Parliament follow my hon. Friend into the Lobby and give him and his Bill the majority that they deserve.

2.2 pm

Mr. Archy Kirkwood (Roxburgh and Berwickshire)

I am proud to follow the hon. Member for Thanet, South (Mr. Aitken) who made a courageous and interesting speech. His reputation and track record on the subject are well known and much appreciated in the House. I link my congratulations with those that have been heaped on the shoulders of the promoter of the Bill, the hon. Member for Aldridge-Brownhills (Mr. Shepherd) by all those who have spoken. I had great pleasure working with him as a sponsor of the Bill. He has done himself great credit, arid he has done the House a service by introducing this subject.

The Home Secretary said that he thought that the hon. Gentleman had had his success, but it would be more accurate to say that the Home Secretary effectively said that the hon. Gentleman had had his chips. The position taken by the Government has been disgraceful. I agree with the hon. Member for Thanet, South that perhaps one of the most surprising turns of events during the debate has been the absence of any effective and constructive criticism of the detailed proposals in the Bill. With some marginal qualifications in some other hon. Members' speeches, the only two that fell into the category of being critical were those of the right hon. Member for Henley (Mr. Heseltine) and the hon. Member for Hampstead and Highgate (Sir G. Finsberg). I hope that the Government will take that to heart when they are formulating the White Paper that they intend to bring forward in June.

It is clear that there is a sense of urgency throughout the ranks of all parties that something must be done. The Home Secretary's speech was complacent, especially as it was 16 years ago that the Frank's committee said: the only satisfactory treatment for a law suffering from so many defects is to sweep it away entirely. Sixteen years is a long time to leave on the statute book something that Lord Franks said in 1972 was most unsatisfactory.

Section 2 catches all information, regardless of subject matter, importance or whether it is genuinely secret. That is most disturbing. The scope of section 2 has not been properly addressed today. The House should be aware that it is not only journalists and civil servants who are caught by it but, technically, anyone given information in confidence who then repeats it without permission. Simply receiving information — unless so authorised or unless one can prove that it was forced upon one—it is subject to section 2. Persuading an official to divulge information is, technically, subject to section 2. Under section 7, it is an offence even to allow on to one's premises someone whom one has grounds to believe has disclosed information without authority.

To leave such a piece of legislation on the statute book for 16 years, especially against the background of Lord Franks' report and subsequent criticisms, is quite ridiculous.

Mr. Allason

I listened with great interest to the hon. Gentleman's clarification of the scope of section 2, but I believe that it goes beyond that. It covers those who might be guilty of offences overseas and who could be prosecuted in this country. Furthermore, it is not limited to those who have signed the Official Secrets Act. My hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) seemed to imply that it was so limited, but that is not the case.

Mr. Kirkwood

I can confirm that that is not the case, and I am grateful to the hon. Gentleman for his intervention. There is a widespread potential for abuse, and the House should bear that heavily in mind — especially as the Government are asking us for further time so that they can bring forward their own measure. My former colleague Sir Clement Freud said: Section 2 gives the Attorney-General more power than a bad man should have or a good man should need. We have properly spent time today debating lofty ideals, issues and profound matters such as the duties of the House and the Government. I want to bring the debate to more mundane but very important issues that affect our citizens daily. The right hon. and learned Member for Warley, West (Mr. Archer) said that, within the past 24 hours, the Secretary of State for Trade and Industry—Lord Young — had ordered a fire report leak inquiry within the Department of the Environment.

We are told that yesterday, a team of investigators visited the Crown Suppliers. The leaked memorandum was highly critical of the Government's stance on foam-filled furniture, and warned that the proposed code of practice would be retrograde and only window dressing. It accused the Department of Trade and Industry of creating a code based on what the furniture industry thinks that it can afford and what it believes that the customer will expect. The Minister appears to have ignored that advice, as well as that of many others because it was secret. The publication of the advice has helped to persuade him to do what he should have done in the first place and he has now banned dangerous foam.

A leak inquiry would be a disgrace. The House should be calling for an inquiry into why the Minister ignored the safety advice that he received in the first place. However, as the inquiring is taking place, what are the consequences? The person who leaked the document may have committed an offence under the Official Secrets Act 1911. If so, The Guardian which first published the extracts will also have committed an offence. In theory, although I hope that this will not happen, both parties could be prosecuted. That could not happen if the Bill that we are debating became law. Categories of protected information are defined in clause 1 and could not conceivably apply to information of that kind. Even if by some chance the information were covered, the person responsible might be able to plead justification in the public interest under clause 7.

I believe that in cases where there is a substantial risk to people's lives, it is right that such a defence should be available. We must bear that issue in mind as well as the more arcane, but perhaps intriguing, issues of spies, national security and secrecy that are covered by section 2 of the Official Secrets Act.

Ministers claim that they tried to reform the Official Secrets Act in 1979. The Government's view is that they failed to get a consensus on an alternative. The reverse is true. The 1979 Bill failed because everyone agreed that it was a draconian and oppressive measure which would have given Ministers even more unacceptable powers than those contained in section 2. I remind the House of some of the quotes that appeared in the newspapers at that time in response to that measure. The Daily Telegraph called it: in many respects truly appallingly. The Spectator called it: A deplorable Bill, so bad that it is impossible to study it without a sense of shock. The Sunday Express called it "disastrous". The Daily Mail called it: A Bill devised by the establishment for the establishment to save its own face as much as to defend the country. The Times called the measure: a grave threat to the freedom of the press. It is wrong of the Government to say that they tried in 1979 to reform the Official secrets Act with good faith and with their best endeavours, but could not get a consensus. The truth is that the 1979 Bill was completely unacceptable across a broad spectrum.

The Government's position that we should trust the Home Secretary and allow him to bring forward his measure via a White Paper in June is incredible, as the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) said. The way in which the Government are having recourse to injunctions and interdicts and using the law of confidence and circumventing the jury system is disgraceful. That gives us no confidence at all. Indeed, the recent quote from the High Court judge considering the most recent interdict suggested that the Government were moving towards imposing a doctrine of absolute confidentiality which he believed was unobtainable this side of the iron curtain.

For the Government to ask for the trust of the House in this matter is ironic to say the least. The Home Secretary's failure to give us even a hint of what his White Paper might contain — the hon. Member for Thanet, South referred to this — leaves the House very little alternative but to support the hon. Member for Aldridge-Brownhills.

What is the case now for the Government refusing to confirm at least the notion and assurance that they will bring forward a public interest defence? The Bill is a measured alternative. It contains extremely necessary safeguards. I would go further and reverse the onus by requiring all official information to be made public through a freedom of official information Act and reserve only certain categories that relate to safety. I believe that, in the fullness of time, we should move in that direction. It has been proved to work in other countries.

On the balance of the argument, I believe that the House should accept the proposals that the hon. Member for Aldridge-Brownhills put forward so ably, and I shall support him in the Lobby.

2.15 pm
Mr. Julian Amery (Brighton, Pavilion)

My right hon. Friend the Home Secretary has asked us to wait until the summer. He has asked us not to support the Bill today and to vote it down. I would have been more inclined to listen to his advice if he had told us more about how his mind was moving, and if the handling of official secrets cases during the past few months had been better.

The Government's attitude in the cases of Mr. Wright, Mr. Cavendish and the BBC programme has been to rely on a doctrine and a principle of total, life-long confidentiality. This is a rather new approach in regard to books and programmes. The old convention was that an author would show his text to the authorities, and if the authorities wanted any change, they negotiated with the author and changes were or were not made. If changes were not made, the author concerned could have been liable under the provisions of the Official Secrets Act.

Mr. Wright's lawyer claimed that Mr. Wright was prepared to reveal his text. Mr. Cavendish and his publishers did reveal their text. The Government's decision was not to try to preserve secrets, but to lay down a principle that, if it was applied to secret agents, officers or Ministers, would kill for good the publication of memoirs which are a great help in the education of all of us. When I was involved in covert operations, the memoirs of Sir Paul Dukes, Sir Robert Bruce-Lockhart and Sir Compton MacKenzie taught me a great deal. The doctrine of total, life-long confidentiality is unreasonable, undesirable and unenforceable. That it is unenforceable has been demonstrated in the exchanges of Mr. Wright and Chapman Pincher showing that it is quite easy to give information to somebody else, and that somebody else does not appear to be liable to prosecution.

I do not understand the distinction. The Government claim that the experience of a former official is their property. If that property is purloined by someone else, it would come close to purveying stolen goods, but that is not the Government's view.

My hon. Friends on the Treasury Bench have shown a singular lack of sense of humour in their handling of these matters. It was devastatingly humourless that they sent Sir Robert Armstrong to Australia. Anyone but another lawyer could have told them that the judge in Australia, a good, solid, Australian a well-balanced man with a chip on each shoulder, would not accept the idea that something that was generally known all over the world could remain an official secret. It was singularly humourless when the Government tried to gag the press at home while the printing presses were rolling as fast as they could on the other side of the Atlantic. It has been humourless for the Government to try to force the House by a three-line Whip to throw out the Bill today. There are better and more subtle ways of doing that just as there are subtler ways of killing a cat than drowning it in cream.

We have to recognise that that lack of sense of humour on the part of the Government is going a long way towards bringing about the result that they want to avoid. I have never been a crusader for open Government when matters of defence and foreign affairs are involved. However, there is a movement that would like to see the secret services brought under parliamentary control, and I understand that that is something the Government wish to avoid. However, if they continue to adopt such a rigid stance, over lifelong confidentiality I suspect that in the end that is what they will buy and I would regret it.

2.20 pm
Mr. Richard Shepherd

With the leave of the House, I shall reply to the debate.

We have had nearly five hours of debate in which we have ranged over many important issues in support of the Bill. However, the interesting thing that has arisen is that the Government have found only two Members to speak on behalf of their propositions. It is appropriate for me to refer to what I thought were the themes of those who did speak against my Bill.

My hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) advanced a constitutional doctrine which I did not understand. However, he convinced me that I would not turn to him for constitutional advice. The other person who spoke in support of the Government, if my understanding is correct, was my right hon. Friend the Member for Henley (Mr. Heseltine). He was extraordinarily kind to me and for that I am grateful. I accept the kindness and return it in this way. My right hon. Friend was promoting an extraordinary proposition. First, he said that I had won, "Hallelujah, you have done well." Secondly, he said that the Government are right to say that this is not a matter which should be originated by the House and looked at in this way because the issue is too complex. Thirdly, he said that Back Benchers are right to be upset and agitated. On that basis we are all right. That is great. Let us face it, we have resolved all the difficulties.

On the matter of trusting the Government, after a conversation yesterday afternoon with the Head of that Government, I am anxious about that concept. My right hon. Friend the Member for Henley was a member of the Government. He has an understanding of the machinery of government. He advanced the proposition—he was in the most powerful position to do so—that there was a flawed rating system. I remember that very well. He looked at the issues involved and came to the conclusion that we could never consider a poll tax. He left the Cabinet, but we are still committed to the idea that something has to be done to reform the domestic rating system. We are all agreed about that principle. What happens? The Government come up with a poll tax and the most vehement opponent of that poll tax is my right hon. Friend the Member for Henley. I give him all my loyalty and support in terms of his right to express his opposition. That must be right. Yet, I am asked now, in a sense, to trust the Government in this matter.

All that my sponsors and I are trying to do is to say that great matters of principle are involved. There is the relationship of the citizen to the Government of the country and the relationship of the House of Commons to the Executive. Those matters go to the heart of our responsibility as Members of Parliament.

We cannot necessarily call upon the Press Gallery always to express our views. We do not control the resources of the nation, which are at the Government's disposal. We know that our job is to support and succour the Government. The Queen's business must go on and we all take that very seriously. We are negotiating and trying to identify matters of principle and trying to state them clearly. Will there be a review of a ministerial certificate? Can a Minister be judge and jury in his own case? We have wanted to know that all along the way.

The second principle that we have been enunciating and about which we have tried to elicit information from the Government — we are not being unreasonable — is whether we can have a public interest defence. We have gone over these issues again and again today. My feeling, and the sentiment of the House, as I understood it, was that these issues are appropriate for the House to discuss.

I am grateful to my right hon. Friend the Secretary of State because he has dealt with me courteously. Unfortunately, he has not always been authorised to tell me what he has been authorised to tell other people. I must pursue this because if I have any value in the House it is to state as clearly and as loudly as I can how I see government and to try to raise these issues as we have done today.

I knew officially that we were to have a White Paper only on the Tuesday before we went into recess, yet I heard from colleagues, including the executive of the Select Committee on Home Affairs — although I am not supposed to reveal that—that the Government intended to work on a White Paper. I could not be told that; my sponsors could not be told that; but other people could be told that. It is such a trivial matter. Of what importance can it be to the conduct of great public affairs? The House, and particularly Back Benchers, are entitled to assert that we sometimes want to affect important matters — the way in which the decision is taken—by identifying the principles on which we shall operate. That is all that I have asked by bringing this measure before the House for its full consideration.

Yesterday I asked the Prime Minister if she would withdraw the three-line Whip, but was told that that was not possible. I asked whether it was possible to identify these matters of principle and whether there was any response to them, but was told that that was not possible. I asked whether it was possible to refer them to a Select Committee, but that also was not possible. Nothing was possible, but the Executive holds unto itself what has been said repeatedly; that this goes to the heart of government. But it goes to the heart of the House of Commons, too.

It is impertinent for the Government to say, "We have to originate all these ideas on this matter and we have to present them fully formulated to the House." Why can we not have our say about the principles? The fact that the Government have all the instruments and power at their hands to try to dispose of private Members' business is another matter. However, surely we in the House have a right to ascertain the central issue. I hope that my colleagues will remember that right and that it is certainly not just a matter of reviewing what the Government present on a plate, a la carte.

I mentioned my experience on the Telecommunications Bill. Hon. Members will recall that the BT licence was a take-it-or-leave-it document. We could not alter a word. We had to say either yes or no. It was a desperately flawed document. No one who has had experience of the telecommunications business since we passed a badly thought out and constructed Bill would doubt the accuracy of my comments.

On the basis of the proposition that we are not allowed to consider this Bill, we must wait until the Government produce a Bill. It is not respectable. We are citizens of public affairs. We ought to reject this nonsense, not because the Bill is of the most magnificent integrity, but because we want to discuss the issues involved.

Let the Government come back and say what is wrong with our Bill, but the proposition that, "There ain't nothing wrong with this Bill, but we shall produce something at some other time and our Bill will have greater integrity than anything that you, from the House of Commons of the United Kingdom of Great Britain, can raise" is a dangerous and silly concept which we should throw out. It is important that we should consider that. I ask the House to vote for the Bill.

Question put, That the Bill he now read a Second time:

The House divided: Ayes 234, Noes 271.

Division No. 140] [2.30 pm
Abbott, Ms Diane Cox, Tom
Adams, Allen (Paisley N) Crowther, Stan
Aitken, Jonathan Cryer, Bob
Allason, Rupert Cummings, J.
Allen, Graham Cunningham, Dr John
Alton, David Dalyell, Tam
Anderson, Donald Darling, Alastair
Archer, Rt Hon Peter Davies, Ron (Caerphilly)
Armstrong, Ms Hilary Davis, Terry (B'ham Hodge H'I)
Ashdown, Paddy Devlin, Tim
Ashley, Rt Hon Jack Dewar, Donald
Banks, Tony (Newham NW) Dixon, Don
Barnes, Harry (Derbyshire NE) Dobson, Frank
Barnes, Mrs Rosie (Greenwich) Doran, Frank
Barron, Kevin Dover, Den
Battle, John Dunwoody, Hon Mrs Gwyneth
Beith, A. J. Dykes, Hugh
Bell, Stuart Eadie, Alexander
Benn, Rt Hon Tony Eastham, Ken
Bermingham, Gerald Evans, John (St Helens N)
Bidwell, Sydney Ewing, Harry (Falkirk E)
Biffen, Rt Hon John Ewing, Mrs Margaret (Moray)
Blair, Tony Fatchett, Derek
Blunkett, David Faulds, Andrew
Boateng, Paul Field, Frank (Birkenhead)
Body, Sir Richard Fields, Terry (L'pool B G'n)
Bonsor, Sir Nicholas Fisher, Mark
Boyes, Roland Flannery, Martin
Bradley, Keith Flynn, Paul
Bray, Dr Jeremy Foster, Derek
Brown, Gordon (D'mline E) Foulkes, George
Brown, Nicholas (Newcastle E) Fraser, John
Brown, Ron (Edinburgh Leith) Fyfe, Mrs Maria
Bruce, Malcolm (Gordon) Galbraith, Samuel
Buchan, Norman Galloway, George
Buck, Sir Antony Garrett, John (Norwich South)
Buckley, George Garrett, Ted (Wallsend)
Budgen, Nicholas George, Bruce
Caborn, Richard Gilbert, Rt Hon Dr John
Callaghan, Jim Gilmour, Rt Hon Sir Ian
Campbell, Menzies (Fife NE) Godman, Dr Norman A.
Campbell, Ron (Blyth Valley) Golding, Mrs Llin
Campbell-Savours, D. N. Gordon, Ms Mildred
Canavan, Dennis Gorst, John
Carlile, Alex (Mont'g) Grant, Bernie (Tottenham)
Cartwright, John Griffiths, Nigel (Edinburgh S)
Clarke, Tom (Monklands W) Griffiths, Win (Bridgend)
Clay, Bob Grocott, Bruce
Clelland, David Hardy, Peter
Clwyd, Mrs Ann Harman, Ms Harriet
Cohen, Harry Hattersley, Rt Hon Roy
Coleman, Donald Haynes, Frank
Cook, Frank (Stockton N) Healey, Rt Hon Denis
Cook, Robin (Livingston) Heath, Rt Hon Edward
Corbett, Robin Heffer, Eric S.
Corbyn, Jeremy Hinchliffe, David
Cousins, Jim Holland, Stuart
Home Robertson, John Prescott, John
Howarth, George (Knowsley N) Primarolo, Ms Dawn
Howells, Geraint Quin, Ms Joyce
Hoyle, Doug Radice, Giles
Hughes, Robert (Aberdeen N) Randall, Stuart
Hughes, Roy (Newport E) Rees, Rt Hon Merlyn
Hughes, Sean (Knowsley S) Reid, John
Hughes, Simon (Southwark) Rhodes James, Robert
Illsley, Eric Richardson, Ms Jo
Ingram, Adam Robertson, George
Janner, Greville Robinson, Geoffrey
Jones, Barry (Alyn & Deeside) Rogers, Allan
Jones, Ieuan (Ynys Môn) Rooker, Jeff
Jones, Martyn (Clwyd S W) Ross, Ernie (Dundee W)
Kaufman, Rt Hon Gerald Rost, Peter
Kinnock, Rt Hon Neil Rowlands, Ted
Kirkwood, Archy Ruddock, Ms Joan
Leighton, Ron Salmond, Alex
Lester, Jim (Broxtowe) Sedgemore, Brian
Lestor, Miss Joan (Eccles) Sheerman, Barry
Litherland, Robert Sheldon, Rt Hon Robert
Livingstone, Ken Shepherd, Richard (Aldridge)
Livsey, Richard Shore, Rt Hon Peter
Lloyd, Tony (Stretford) Short, Clare
Lofthouse, Geoffrey Skinner, Dennis
Loyden, Eddie Smith, Andrew (Oxford E)
McAllion, John Smith, C. (Isl'ton & F'bury)
McAvoy, Tom Smith, Rt Hon J. (Monk'ds E)
McFall, John Snape, Peter
McKay, Allen (Penistone) Soley, Clive
McKelvey, William Spearing, Nigel
McNamara, Kevin Squire, Robin
McWilliam, John Steinberg, Gerald
Madden, Max Stott, Roger
Mahon, Mrs Alice Strang, Gavin
Marek, Dr John Straw, Jack
Marshall, Jim (Leicester S) Taylor, Mrs Ann (Dewsbury)
Martlew, Eric Taylor, Rt Hon J. D. (S'ford)
Maxton, John Taylor, Matthew (Truro)
Meacher, Michael Taylor, Teddy (S'end E)
Meale, Alan Thomas, Dafydd Elis
Michael, Alun Thompson, Jack (Wansbeck)
Michie, Bill (Sheffield Heeley) Turner, Dennis
Michie, Mrs Ray (Arg'l & Bute) Wall, Pat
Mitchell, Austin (G't Grimsby) Wallace, James
Moonie, Dr Lewis Walley, Ms Joan
Morgan, Rhodri Warden, Gareth (Gower)
Morley, Elliott Wareing, Robert N,
Morris, Rt Hon A (W'shawe) Welsh, Andrew (Angus E)
Morris, Rt Hon J (Aberavon) Wigley, Dafydd
Mowlam, Marjorie Williams, Rt Hon A. J.
Mullin, Chris Williams, Alan W. (Carm'then)
Murphy, Paul Wilson, Brian
Oakes, Rt Hon Gordon Winnick, David
O'Brien, William Wise, Mrs Audrey
O'Neill, Martin Worthington, Anthony
Orme, Rt Hon Stanley Wray, James
Owen, Rt Hon Dr David Young, David (Bolton SE)
Patchett, Terry
Pendry, Tom Tellers for the Ayes:
Pike, Peter Mr. Andrew F. Bennett and
Powell, Ray (Ogmore) Mr. Tony Marlow.
Alison, Rt Hon Michael Blackburn, Dr John G.
Amess, David Blaker, Rt Hon Sir Peter
Amos, Alan Boswell, Tim
Arbuthnot, James Bottomley, Peter
Arnold, Jacques (Gravesham) Bottomley, Mrs Virginia
Arnold, Tom (Hazel Grove) Bowden, Gerald (Dulwich)
Ashby, David Bowis, John
Baker, Rt Hon K. (Mole Valley) Boyson, Rt Hon Dr Sir Rhodes
Baker, Nicholas (Dorset N) Brandon-Bravo, Martin
Baldry, Tony Brazier, Julian
Banks, Robert (Harrogate) Bright, Graham
Batiste, Spencer Brown, Michael (Brigg & Cl't's)
Bellingham, Henry Browne, John (Winchester)
Bendall, Vivian Bruce, Ian (Dorset South)
Bennett, Nicholas (Pembroke) Burns, Simon
Bevan, David Gilroy Burt, Alistair
Butcher, John Howarth, G. (Cannock & B'wd)
Butler, Chris Howe, Rt Hon Sir Geoffrey
Butterfill, John Howell, Rt Hon David (G'dford)
Carlisle, Kenneth (Lincoln) Hughes, Robert G. (Harrow W)
Carrington, Matthew Hunt, David (Wirral W)
Carttiss, Michael Hunt, John (Ravensbourne)
Cash, William Hurd, Rt Hon Douglas
Chalker, Rt Hon Mrs Lynda Irvine, Michael
Channon, Rt Hon Paul Jack, Michael
Chope, Christopher Jackson, Robert
Churchill, Mr Janman, Timothy
Clark, Hon Alan (Plym'th S'n) Jessel, Toby
Clark, Dr Michael (Rochford) Jones, Gwilym (Cardiff N)
Clark, Sir W. (Croydon S) Jones, Robert B (Herts W)
Clarke, Rt Hon K. (Rushcliffe) Kellett-Bowman, Mrs Elaine
Colvin, Michael Key, Robert
Conway, Derek King, Roger (B'ham N'thfield)
Coombs, Anthony (Wyre F'rest) King, Rt Hon Tom (Bridgwater)
Coombs, Simon (Swindon) Kirkhope, Timothy
Cope, John Knapman, Roger
Couchman, James Knight, Greg (Derby North)
Cran, James Knowles, Michael
Currie, Mrs Edwina Lamont, Rt Hon Norman
Curry, David Lang, Ian
Davies, Q. (Stamf'd & Spald'g) Lawrence, Ivan
Davis, David (Boothferry) Lawson, Rt Hon Nigel
Day, Stephen Lee, John (Pendle)
Dicks, Terry Leigh, Edward (Gainsbor'gh)
Dorrell, Stephen Lennox-Boyd, Hon Mark
Douglas-Hamilton, Lord James Lightbown, David
Dunn, Bob Lilley, Peter
Durant, Tony Lloyd, Sir Ian (Havant)
Eggar, Tim Lloyd, Peter (Fareham)
Evans, David (Welwyn Hatf'd) Lord, Michael
Evennett, David Luce, Rt Hon Richard
Fallon, Michael Lyell, Sir Nicholas
Favell, Tony Macfarlane, Sir Neil
Fenner, Dame Peggy MacGregor, John
Field, Barry (Isle of Wight) MacKay, Andrew (E Berkshire)
Finsberg, Sir Geoffrey Maclean, David
Fookes, Miss Janet McLoughlin, Patrick
Forman, Nigel McNair-Wilson, P. (New Forest)
Forsyth, Michael (Stirling) Madel, David
Forth, Eric Major, Rt Hon John
Fowler, Rt Hon Norman Malins, Humfrey
Fox, Sir Marcus Mans, Keith
Franks, Cecil Maples, John
Freeman, Roger Marland, Paul
French, Douglas Marshall, John (Hendon S)
Gale, Roger Marshall, Michael (Arundel)
Gardiner, George Martin, David (Portsmouth S)
Gill, Christopher Mates, Michael
Glyn, Dr Alan Maude, Hon Francis
Goodlad, Alastair Mawhinney, Dr Brian
Goodson-Wickes, Dr Charles Maxwell-Hyslop, Robin
Gorman, Mrs Teresa Mayhew, Rt Hon Sir Patrick
Gow, Ian Mellor, David
Greenway, Harry (Ealing N) Miller, Hal
Greenway, John (Rydale) Mills, Iain
Griffiths, Peter (Portsmouth N) Mitchell, Andrew (Gedling)
Grist, Ian Mitchell, David (Hants NW)
Ground, Patrick Moate, Roger
Hamilton, Hon A. (Epsom) Montgomery, Sir Fergus
Hamilton, Neil (Tatton) Moore, Rt Hon John
Hanley, Jeremy Morrison, Sir Charles (Devizes)
Hannam, John Morrison, Hon P (Chester)
Hargreaves, Ken (Hyndburn) Moss, Malcolm
Harris, David Moynihan, Hon C.
Hawkins, Christopher Neale, Gerrard
Hayes, Jerry Needham, Richard
Heathcoat-Amory, David Nelson, Anthony
Heddle, John Neubert, Michael
Heseltine, Rt Hon Michael Newton, Rt Hon Tony
Hicks, Mrs Maureen (Wolv' NE) Nicholls, Patrick
Hill, James Nicholson, David (Taunton)
Hogg, Hon Douglas (Gr'th'm) Nicholson, Miss E. (Devon W)
Holt, Richard Onslow, Rt Hon Cranley
Hordern, Sir Peter Oppenheim, Phillip
Howard, Michael Page, Richard
Howarth, Alan (Strat'd-on-A) Paice, James
Parkinson, Rt Hon Cecil Summerson, Hugo
Patnick, Irvine Tapsell, Sir Peter
Patten, Chris (Bath) Taylor, Ian (Esher)
Patten, John (Oxford W) Taylor, John M (Solihull)
Pawsey, James Tebbit, Rt Hon Norman
Porter, David (Waveney) Thatcher, Rt Hon Margaret
Portillo, Michael Thompson, D. (Calder Valley)
Powell, William (Corby) Thompson, Patrick (Norwich N)
Price, Sir David Thorne, Neil
Raffan, Keith Thurnham, Peter
Raison, Rt Hon Timothy Tracey, Richard
Renton, Tim Tredinnick, David
Riddick, Graham Trippier, David
Ridley, Rt Hon Nicholas Trotter, Neville
Rifkind, Rt Hon Malcolm Twinn, Dr Ian
Roberts, Wyn (Conwy) Vaughan, Sir Gerard
Rowe, Andrew Viggers, Peter
Rumbold, Mrs Angela Waddington, Rt Hon David
Ryder, Richard Wakeham, Rt Hon John
Sackville, Hon Tom Waldegrave, Hon William
Sainsbury, Hon Tim Walker, Bill (T'side North)
Sayeed, Jonathan Waller, Gary
Scott, Nicholas Ward, John
Shaw, David (Dover) Wardle, C. (Bexhill)
Shaw, Sir Giles (Pudsey) Watts, John
Shaw, Sir Michael (Scarb') Wells, Bowen
Shelton, William (Streatham) Wheeler, John
Shepherd, Colin (Hereford) Whitney, Ray
Shersby, Michael Widdecombe, Miss Ann
Skeet, Sir Trevor Wiggin, Jerry
Smith, Sir Dudley (Warwick) Wilshire, David
Smith, Tim (Beaconsfield) Wolfson, Mark
Soames, Hon Nicholas Wood, Timothy
Speed, Keith Woodcock, Mike
Spicer, Sir Jim (Dorset W) Yeo, Tim
Spicer, Michael (S Worcs) Young, Sir George (Acton)
Steen, Anthony Younger, Rt Hon George
Stern, Michael
Stevens, Lewis Tellers for the Noes:
Stewart, Allan (Eastwood) Mr. Robert Boscawen and
Stewart, Andrew (Sherwood) Mr. Tristan Garel-Jones.
Sumberg, David

Question accordingly negatived.