Official Secrets Act 1911

HC Deb 29 June 1988 vol 136 cc365-81 3.31 pm

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

With permission, Mr. Speaker, I wish to make a statement about reform of section 2 of the Official Secrets Act 1911.

In a debate in this House on 15 January, I explained that the Government had, since the previous April, been studying proposals for the reform of section 2, and that I hoped to bring forward proposals in the form of a White Paper in June.

I have laid the White Paper before the House today. We have aimed to find proposals that are effective, enforceable and reasonable. We hope to break the deadlock that has beset this question throughout its recent history.

We have taken careful note of the criticisms made of the Government Bill introduced in 1979, together with comments and suggestions made since then, including during the debate on the Bill introduced in January by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). As a result, the proposals in the White Paper include some major changes to, as well as similarities with, previous attempts at reform. I invite right hon. and hon. Members to read the White Paper in full, but I offer the House now an outline of the main points.

The essence of the proposals is that it would no longer be a criminal offence, as it is under the present law, to disclose any official information without authority. The scope of the legislation would be confined to the very small amount of information that it is in the whole nation's interest to keep secret and which would therefore continue to have the protection of the criminal law. Other information which cannot be disclosed without breaching the trust between Ministers and officials, or which a Crown servant has been instructed not to disclose, would continue to be protected by normal disciplinary arrangements.

Six categories of official information would be within the scope of our proposed legislation. They are information relating to defence, international relations, security and intelligence, the interception of communications, information received in confidence from other Governments and from international organisations and, finally, information which is likely to be useful in the commission of crime or in helping a prisoner to escape from custody. These are the areas which we think the legislation should cover. We do not propose that the criminal law should any longer apply to, for example, economic information, or to Cabinet documents or ministerial correspondence in general. Nor do we now think it necessary for information received in confidence from firms or individuals to be covered by a general law on official secrets. These proposals represent a further narrowing compared with the 1979 Bill.

We think it should continue to be an offence for any person to disclose any information relating to or obtained by interception, or any information received in confidence from other Governments or international organisations, because any such disclosure damages the national interest. We accept, however, that not all information in the defence and international relations categories needs the protection of the law. We therefore propose that the disclosure of information falling within these categories should be an offence only if it is likely to result in specified damage to the national interest.

Proposed tests of damage are set out in the White Paper. Hon. Members will see that they are narrower and more specific than the broad test of serious injury to the interests of the nation which was recommended by the Franks committee and contained in the 1979 Bill. They are designed to leave no doubt about the reasons for including information within these categories in official secrets legislation. The same applies to information likely to be useful in the commission of crime or in helping prisoners to escape. In this case, a test of damage is built into the categorisation, and the prosecution would have to show that the test was satisfied.

For information relating to security and intelligence, we propose a distinction between those whom the nation trusts to carry on their work in complete secrecy, on the one hand, and of those outside the field of operation of the security and intelligence services on the other. For members and former members of those services, together with a number of other people who work in close association with them, we propose that it should be an offence to disclose any information concerning the work of the services or to make any statement which purports to disclose such information. For other persons—that is, for people who are not or who have not been members of those services or in related work—we propose that the disclosure of official information and security intelligence should be an offence only if it can be established positively that it was likely to damage the operation of the security and intelligence services.

If disclosure of information within a particular category is to be an offence only if it can be established that it meets a specified test of harm, then the old question arises—by whom and by what means is this to be decided? The Franks committee, and the Government in that 1979 Bill, proposed that the question should be conclusively settled by ministerial certificate. This was one of the main points of criticism of that Bill. My hon. Friend the Member for Aldridge-Brownhills later suggested that a certificate by a Minister should be reviewable by some other person or body.

Under our new proposals, however, there are no ministerial certificates. The harm likely to arise from the disclosure would be a matter for the court alone to determine on the basis of argument from the prosecution and the defence. In relation to persons other than Crown servants, the prosecution would have to prove not only that the specified harm was likely to arise but that the accused person knew or could reasonably have been expected to know that it was likely to arise. We are putting our trust in the impartial determination of a jury.

The abandonment of ministerial certificates, and introduction of specific tests of harm for the courts to determine, are major changes from previous proposals. They provide a new framework within which other proposals, made in the context of the 1979 Bill, must be considered afresh. I have in mind particularly the suggestions that there should be a defence of prior publication and a general defence that publication was in the public interest. Within the framework of these new proposals, we do not think it right to provide an overriding defence of prior publication.

In our proposals, arguments about the effect of a second disclosure are for the judgment of the courts within the ambit of the specific tests of harm set by Parliament. So it would be possible on this basis for the court to conclude that further harm was unlikely to arise from the disclosure in question because there had been a previous disclosure which had already caused the harm. But we think it would be wrong to rule out the possibility of prosecution altogether just because the information had already been published elsewhere—perhaps in different form to a different audience. Nor do we think it right to introduce the uncertainty into the law which a general public interest defence would inevitably entail.

These are the main features of our proposals as set out in the White Paper. They represent a considered attempt to find the basis for a wide measure of agreement in replacing section 2, which all of us wish to do. If carried into effect, they should dispel any notion that the criminal law is being used to protect information simply because its disclosure would be embarrassing to Governments, still less merely because it is official information. But the law must firmly address the problem of disclosures which are truly damaging to the public interest, and provide clear and enforceable definitions and procedures to enable this to be done.

The House should have an opportunity to debate the proposals before they are put into legislative form. We shall take careful note also of views expressed outside the House. We shall then want to move to early legislation to introduce a fair and effective alternative to section 2.

Mr. Roy Hattersley (Birmingham, Sparkbrook)

Is the Home Secretary aware that many hon. Members—perhaps the majority—believe that prosecution under any Official Secrets Act should be possible only when the disclosure of information has genuinely damaged or prejudiced the national interest? In his statement the right hon. Gentleman has sought to give the impression that he supports that view, and that the arbitrary and unjustified application of an official secrets law is now to be abandoned. A reading of the White Paper, as distinct from the Home Secretary's statement, shows that not to be true.

We welcome, of course, the removal from the provisions of any Official Secrets Act the omnibus clause covering every item of Government information. We agree that many instances of improper revelation are more suitable for internal disciplinary procedures than for the criminal law. Our real concern relates to paragraphs 41 and 42 of the White Paper, which deal with what is called the security services. These are services which in Britain, as in other democracies, should be subject to general parliamentary scrutiny.

Does the Home Secretary recall that many of the repressive and authoritarian acts perpetrated by the Government over the past nine years have been justified by invoking the name of the security services? Is he aware that that catch-all provision still applies? Indeed, in some ways it is reinforced and made respectable. Does the Home Secretary recall that in the debate in January he derided the present law, which is so ridiculous as technically to make the publication of a Civil Service canteen menu an offence? Paragraphs 41 and 42 make it clear that the unauthorised revelation of the menus at Curzon street or GCHQ is to become a criminal offence. Everything that the Home Secretary defines as "relating to security" is automatically the subject of criminal prosecutions without any of the safeguards which his statement has emphasised.

Is the Home Secretary aware that, until the behaviour of the security forces is no longer cloaked in impenetrable legal protection, most people will continue to believe, in the words of paragraph 32 of the White Paper, that information is being withheld and protected by the criminal law merely for fear of political embarrassment"? Will the right hon. Gentleman confirm that any revelation of any information that is said to be "related to security"—"related to security" on the Minister's own definition—will be a criminal offence when carried out by members of the security service, ex-members of the security service, those who work with them and support them, whose who are in frequent contact with them and those who deal with them on a regular basis? These are all areas—and there are more—that have been discredited by section 11 of the old Act, which the Home Secretary pretends that he is in some way removing and abolishing.

Will the right hon. Gentleman tell the House how the term "relating to security" is to be defined? Unless it is circumscribed with an exact precision, it will allow Ministers to include within that automatic category for criminal prosecution anything that they wish to include. There is no doubt that while the Home Secretary represents this as a libertarian move, Mr. Clive Ponting, who was found not guilty under the existing Act, would certainly be convicted under the provisions that the Home Secretary has set out today.[HON. MEMBERS: "Hear, hear."] I anticipated that a number of Government Members below the Gangway would cheer. They may be pleased by that provision, but they cannot claim that it liberalises the present law.

If Ministers claim that the security services are involved and are connected with almost anything they care to put within that category, none of the defences that the Home Secretary so strongly emphasised will apply. There will be no defence in terms of the national interest not having been damaged. The Minister will have arbitrary and authoritarian power to include within the criminal prosecution section whatever he or his successor chooses to include.

Nor will that test apply—although the Home Secretary gave a different impression in his statement—in one other respect. According to paragraph 51 of the White Paper, the "harmful to public interest" defence does not apply to information obtained from other Governments. I assume that, ironically, that was included to please and placate the United States of America, whose Senate and Congress would not give house room to the proposals that the Home Secretary is making today.

There are many other inadequacies, shortcomings and omissions. There is the absence of a public interest defence, and the fact that although something may already have been published, it can still he the subject of criminal prosecution if its publication is repeated. There is also included within the catch-all, omnibus definition of security matters those things which ex-members of the security services or their associates may say and which happen to be untrue, or are no more than pub talk, but which will nevertheless be automatically regarded as damaging to the public interest.

We shall return to all those shortcomings in the debate. The point that really must be driven home today is this. Today's newspapers, for reasons we can only guess at, predicted a draconian White Paper, and that is what we have been given. However, it is a different White Paper from that which the newspapers predicted—but it is just as bad and just as unacceptable in a free society. Anyone who reads the White Paper rather than relies on and trusts the Home Secretary's statement will know that to be a fact.

Mr. Hurd

The right hon. Gentleman is making an ass of himself. For more than a week, he has been very voluble in talking to and commenting in the newpapers on this subject, on the basis of wholly inaccurate press reports. In particular, they specified in some detail that there had been some great battle in Whitehall, as a result of which it had been decided to introduce ministerial certificates that would in some way be binding on the courts. That was nonsense, and today it is seen to he nonsense.

I do not expect to carry everybody with me, but every fair-minded person will accept that we have gone considerably further in an open direction than was expected—much further than the Labour Government of which the right hon. Gentleman was a member were prepared to go 10 years ago. We are, in effect, confining the criminal law not to matters that might be embarrassing for the Government but to matters that really need to be kept secret if our affairs are to be properly run. In that context, it is right to distinguish clearly between Crown servants and members of the public and those who have, as the White Paper puts it, a special and inescapable duty of secrecy, either because they belong, or have belonged, to the security or intelligence service, or have been one of a number of people whose work connects closely with those services.

It is reasonable, when one is talking about security and intelligence information, to distinguish between disclosures by those people and disclosures undertaken by the press or people outside those services, where the test of damage would apply. The right hon. Gentleman speaks as though the Minister was to decide. Of course it will be the jury that decides in all such cases, and the idea that the jury will decide on a menu in a security service canteen is absurd.

I also think that the right hon. Gentleman is wrong to refer back to the Ponting case. That is always a tricky thing to do. If a similar case came up tomorrow, the prosecution would have to face a higher hurdle than the one that the prosecution had to face under the existing section 2. It would have to show, in the Ponting case, that very specific damage had been done to the defence of the nation, which under the existing section 2 does not have to be shown.

I disagree with the right hon. Gentleman's interpretation, and I believe that he underestimates the change that we propose—a change that means that, for example, a leaked Cabinet paper on housing, however controversial, or the details of a Budget being prepared, will no longer receive any protection from the criminal law. That is a major change, which it is churlish of the right hon. Gentleman not to acknowledge.

Mr. Leon Brittan (Richmond, Yorks)

Does my right hon. Friend accept that his proposals will be regarded in large part by Conservative Members as a substantial, much-needed and thoroughly desirable liberalisation of the law, and be welcomed as such?

While some details are of course challengeable, does my right hon. Friend agree that the abolition of the system of binding ministerial certificates will in practice mean that, in the majority of cases, the media will be able to argue that the publication is not harmful and is therefore defensible, either because it has previously been in the public domain or for other reasons? Does he also accept that the vast majority of the people of this country regard it as entirely reasonable that those who embark on a career as members of the security and intelligence services should accept an obligation of secrecy, provided that there is a satisfactory system whereby, within the public service, complaints of abuse, misconduct and impropriety can be properly investigated?

Mr. Hurd

I am most grateful to my right hon. arid learned Friend. I confirm what he has said, and the substantial relief that the proposals, if approved by Parliament, will give the press.

My right hon. and learned Friend is right to emphasise his last point, and I understand why he did so. It is important that the individual civil servant should feel confidence in the procedure which provides him with recourse to his permanent secretary and eventually to the head of the Civil Service. In the security service fairly recently we instituted the position of staff counsellor—at present held by Sir Philip Woodfield—who has access to me where necessary. I agree about the importance of those procedures.

My right hon. and learned Friend has himself worked hard in this sphere, and has substantial experience of it. I am, therefore, especially grateful for his support.

Mr. David Steel (Tweeddale, Ettrick and Lauderdale)

I hope that the Home Secretary did not give me a different edition of the White Paper from the one that he gave the Leader of the Opposition. On first reading, the White Paper seems to me to represent a considerable victory for the House, and for hon. Members on both sides who campaigned for the abolition of section 2 and the philosophy that lies behind it—in particular the abandonment of ministerial certificates and the specific tests of harm for the courts to determine. Will the Home Secretary confirm that if the White Paper had been in legislative form Miss Sarah Tisdall, for example, would never have been prosecuted and sent to prison, but would have been subject to disciplinary proceedings?

Does the right hon. Gentleman accept that I have one reservation, which is the lack of the specific public interest defence? Does he accept that circumstances might arise in which a court could decide that harm had been caused, but the House might consider that the harm was overlaid by the public interest in the disclosure?

Mr. Hurd

I am grateful to the right hon. Member fonTweeddale, Ettrick and Lauderdale (Mr. Steel) for the main thrust of what he said, which gives the balance rather better than the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) achieved. It is too early to distribute any medals on the subject, but the right hon. Member for Tweeddale, Ettrick and Lauderdale is right. Of course we took into account, as I said we would, points made in the House, including those made in the debate in January on the Bill introduced by my hon. Friend the Member for Aldridge-Brownhills.

I am reluctant to hark back to old cases and say what would have happened. Obviously Miss Tisdall would not have been treated as a former member of the intelligence or security services. I do not know whether it would have been thought that what she did could have passed the test of damage. I do not think that one sensibly can speculate about that.

The right hon. Gentleman is on to a point that we shall want to discuss at greater length when he talks about the public interest defence. Where there is a test of damage, we have set out certain narrow specific tests of damage which the prosecution will need to establish. In many cases it will find that difficult because the tests are quite high. It would be confusing and difficult if, in addition, we tried to provide in some general form for a public interest defence.

Mr. Richard Shepherd (Aldridge-Brownhills)

I am grateful to my right hon. Friend for providing me with an opportunity to read the White Paper an hour or so ago, because the balance of his remarks is confounded by any reading of that paper. It is a most extraordinary document, inasmuch as it makes whole areas of our national life subject to almost mandatory ministerial judgments, without the ability of a court to find otherwise unless a jury decides to put up two fingers. It extends the law into areas to which it did not apply previously, such as where information has been published abroad freely and it was not an offence to publish it here.

It is a very repressive measure indeed. There is no balancing factor—which is very important—of the public interest whereby someone can say that it was necessary for the public to know about something. This goes to the heart of our democratic institutions. The White Paper contains a whole series of very unhappy contentions. It is illiberal and it is not consonant with the experience and practices in Canada, Australia and the United States. I do not know what world we think we live in when we try to bind up a certain class of civil servants so that they may never again speak about anything in their lives in regard to certain duties.

My hon. Friend makes the contention that it will be effective and enforceable, but it will not be reasonable. How will it be reasonable when, for instance, we know that our security services, at the order of the British Government, put limpet mines on Jewish refugees' boats going to Israel? I would argue that it is in the public interest that we know about public policies of that nature. The White Paper will ensure that we know nothing about areas of our national life.

Mr. Hurd

I did not expect to carry my hon. Friend totally, but I must say that I am surprised at the result of his reading of the White Paper. He has fastened on a tiny but important section of official information. He has neglected to observe the great area which is being freed entirely from the reach of the criminal law with substantial influence on how the country is governed. It is a matter on which there will be substantial argument, and I do not agree with him. He is quite right to draw attention to the fact that we intend to bring within the scope of the law cases of matter published abroad as a result of information from this country. The reason for it is set out in the White Paper.

In other respects, as I believe is abundantly right, we are distinguishing between ordinary servants of the Crown and people outside Crown service and those in the particular categories of the security and intelligence services. Of course, as time passes, it will be increasingly possible for members and former members of those services to publish with authority. My hon. Friend knows that that happens already. It is specifically provided for here, and it will continue to happen. There is no reason why it should not happen, but I believe that it should be with authority. I believe that my hon. Friend is attacking not so much the content of the White Paper as the way in which the security and intelligence services are run and their responsibility to this House. That is the crux of what he said, and I shall rest on what I have already said in previous debates on the matter.

Mr. Michael Foot (Blaenau Gwent)

One of the events which have led to this pronouncement—it is not the only one—is the prosecution of Mr. Peter Wright for publishing his memoirs in Australia. He alleged that, for a long time, the secret services grossly misused their power and broke the law with impunity.

Would the proposed changes deprive the Government of the defence that they employed in that case? Would the White Paper make any difference to such a case? Does the right hon. Gentleman understand that, if it makes hardly any difference or no difference, the monstrous acts that have been described could be continued without any proper investigation?

One of the reasons for the disturbance in the public mind is that the Government so resolutely persisted with that case, yet they persistently refused to conduct any proper inquiry into gross breaches of the law. Will the right hon. Gentleman explain how his proposals will change that? The Leader of the House will confirm that, a little earlier today, the former Lord Chancellor, Lord Hailsham, spoke in the Banqueting hall about much earlier events. He explained clearly that the main reason for the glorious revolution of 1688 was the gross breach of the law by the Executive. That has happened often, and we want a change in the law to stop it.

Mr. Hurd

If the right hon. Gentleman's point were true, these proposals would end it, as they will perform in line with the traditions of the House. We are proposing that Parliament should clip the wings of any possible abuse of the criminal law by the Executive. We are proposing to narrow, refine and define. That is in the parliamentary tradition which the right hon. Gentleman and the glorious revolution of 1688 embody. We are dealing with the criminal law which, by definition, applies only within the jurisdiction. It is for the right hon. Gentleman to work out what the effect would have been, under the existing law or under our proposals, if Mr. Wright had remained in the jurisdiction.

Mr. John Wheeler (Westminster, North)

Does my right hon. Friend agree that any impartial reader of the White Paper would regard it as an extremely liberal and practical document which identifies areas where the law should apply? Crown servants who have a lifetime responsibility to the British people are catered for quite properly, subject to the provision that my right hon. Friend has referred to. Does my right hon. Friend agree that, compared with any recent proposals, particularly those of the Labour party in 1978, this document is a remarkable advance?

Mr. Hurd

I am grateful to my hon. Friend, who has studied these matters deeply. It is noticeable that, when the Labour Government tackled this subject, they proposed to cover Cabinet documents and information on currency and reserves. They proposed to rely on the classification of documents as the test and said that the responsible Minister should review that classification, and that his certificate about it should be conclusive evidence. We have travelled a long way since the Labour White Paper and, compared with it, our proposals are a model of openness and liberalism.

Dr. David Owen (Plymouth, Devonport)

Is the right hon. Gentleman aware that paragraphs 38 to 48 of the White Paper deal with the security and intelligence services and rightly treat them as being different from anyone else working in Government employment, but that it would be far easier for the House to accept the purport of them if the right hon. Gentleman and the Prime Minister would look again at the case for parliamentary scrutiny of the security and intelligence services?

As to the other parts of this complex and interlocking package, particularly paragraph 51, on information obtained in confidence from other Governments or international organisations, which goes extremely wide, will the right hon. Gentleman live up to the wording in paragraph 61, which says: the Government is of the mind that there should be no general public interest defence and recognise that the balance of this legislation depends on there being a general interest defence? Without it, it is fatally flawed.

Mr. Hurd

I am grateful for the right hon. Gentleman's first point about the need to put in a separate category those who owe a duty of trust and secrecy. I agree that we want to consider carefully the definition of categories and the test within each category.

This is White Paper, not legislative, language, and before it goes into legislative language there will have to be a debate. The House will want to consider carefully the legislative language when the Bill appears. I accept that entirely. I do not think that I have anything to add to the point about a general public interest defence.

Mr. Jonathan Aitken (Thanet, South)

Will my right hon. Friend accept that, on close reading, the White Paper seems to be very helpful to state prosecutors? The narrowing of the classification of some types of information no longer covered by the criminal law is welcome, but to many of us of a libertarian frame of mind there are still grave defects in certain sections which I hope will be remedied before legislation is brought forward. How does my right hon. Friend justify abolishing by legislation the two principal defences of iniquity and prior publication which, during the past half century, have allowed some juries occasionally to acquit a few defendants, even under the 1911 Act?

Mr. Hurd

I do not think that my hon. Friend is entirely accurate. We are not abolishing any existing defences. When he talks about the public interest defence—he kindly drew my attention to this this morning—he may be referring to section 2(1)(a) of the 1911 Act where there is a reference to the interests of the state. The courts have never interpreted that in criminal cases as to be distinguished from the interests of the Government.

As to prior publication, when there is a test of damage, with the exception of the security and intelligence services, it will be open to the defendant who it is alleged has committed a damage to say, "My disclosure cannot have committed this damage because it appeared in the Boston Globe or Time magazine a fortnight ago." That will make it that much harder for the prosecution to persevere and to prove that damage done by the second disclosure is as serious as is needed under our proposals. The concept of a test of damage, rather than ministerial certificate and a jury deciding, includes to a reasonable extent the defence of prior publication.

Mr. Tam Dalyell (Linlithgow)

Why does the Home Secretary make out that there would have been a higher hurdle for the prosecution in the Ponting case? Given her frame of mind at the time, would not the Prime Minister have seized on paragraph 4 of the White Paper, which says: there should be a power for the responsible Minister to designate individuals or groups whose duties necessarily involve extensive familiarity with the work of the security and intelligence services as having the same criminal liability as members of these services in respect of the disclosure of information relating to security or intelligence."?

Whatever the view of the Home Secretary, would not Downing street have insisted that Clive Ponting was in that category and therefore he would almost certainly have gone to clink? Where lie the powers of juries? Would not Mr. Justice McCowan have got his way?

A former Prime Minister is present and he ought to look at the case of Anthony Cavendish. Under the juxtapositioning of paragraphs 42 and 47, how on earth would Anthony Cavendish have not got into the greatest difficulty for talking about the destabilisation of the Heath Government?

Mr. Hurd

The hon. Gentleman is wrong on his first point. He is certainly wrong to suggest that the position of the jury would be undermined. One of the features of the proposals is the reinforcement of the role of the jury. It is difficult to hark back and apply new proposals to old cases, but I believe that the prosecution in the Ponting case would have had to prove that Mr. Ponting had, in one way or another, inflicted damage on the defence of the country, as specified in paragraph 49 of the White Paper.

I will not comment on the position of Mr. Cavendish or on what he might or might not have been prosecuted for. The distinction we make between Crown servants and former members of the intelligence and security services is clear and thoroughly defensible.

Mr. Rupert Allason (Torbay)

Will my right hon. Friend accept the congratulations of the House on beating his deadline for publishing the White Paper by about 32 hours and for confounding many of the recent press critics? He is to be congratulated on scrapping the idea of ministerial certification. That is a step in the right direction. Apart from the idea of judicial review, it is difficult to know what could be a better arrangement than review by jury.

May I suggest that my right hon. Friend should turn his attention to an issue that he mentioned in an earlier reply—the specific section relating to the disclosure without authority of any information on the work of the security and intelligence services? Would he consider including in the legislation a specific mechanism that gives such individuals the opportunity to obtain clearance so that we do not find ourselves in the difficulties that have been experienced recently? In America there is an effective system, and we have recently experienced two cases of CIA chiefs of station in London being able to publish their books in America and England with official sanction. Surely that is a much more sensible arrangement. Will my right hon. Friend carefully consider including such a mechanism in the legislation?

Mr. Hurd

I am grateful to my hon. Friend for his general support. Of course there is a procedure with which my hon. Friend is familiar. The defects do not seem to have impeded him in making some progress in the matter. This is not a matter for legislation, although my hon. Friend will no doubt develop his case. It is a matter for sensible and sensitive procedures which are fair to people who want to write and which also provide a satisfactory means of safeguarding information that has to be safeguarded.

Several Hon. Members

rose——

Mr. Speaker

Order. I remind the House that there is another statement after this and a rare opportunity for Northern Ireland Members to take part in a debate. Therefore, I ask for brief questions, and not on points that may already have been put.

Mr. Jeremy Corbyn (Islington, North)

Is the Home Secretary aware that over the past five years there have been revelations from Cathy Massiter, Clive Ponting, Sarah Tisdall and Peter Wright of the political activities of the security services and clear efforts by them to destabilise past Labour Governments? In the light of those revelations, does the Home Secretary accept that his White Paper does nothing towards bringing the security services under political control? Should he not now bring forward proposals to do just that, so that we are no longer faced with the idea of security services, paid by us, which can politically attempt to destabilise a future Labour Government?

Mr. Hurd

That is a separate matter that the House has debated and may one day return to. It is not covered in the proposals. The hon. Gentleman will know that my right hon. Friend the Prime Minister set up an investigation into those points and reported the outcome to the House.

Mr. Ivor Stanbrook (Orpington)

Is my right hon. Friend aware that the Government have gone too far in entrusting the safeguarding of the public interest to the verdicts of individual juries, which are notoriously liable to return perverse verdicts in cases of this sort? Who better than the elected Government of the day, controlled by the House of Commons, to determine the public interest?

Mr. Hurd

I am not surprised that a note of criticism from that wing of the argument should be sounded. It provides a healthy corrective to some of the criticisms I have received in the opposite direction. My hon. Friend has a point, and that is why originally and for some time successive Governments have clung to the idea that the Executive should have a say, either a decisive or an influential say, before a jury reaches its conclusion. Having reviewed all the arguments, including my hon. Friend's point, we came to the conclusion some time ago that the game was not worth the candle. In spite of what my hon. Friend says, we believe that the best answer in such cases is to rely on the jury.

Ms. Diane Abbott (Hackney, North and Stoke Newington)

Is the Secretary of State aware that the White Paper appears to be a liberalising White Paper only in the context of the press stories that have been floated for at least a week previously threatening all manner of draconian measures? Will he take this opportunity to assure the House that the floating of those press stories was entirely fortuitous and was not a deliberate attempt to allow him to bask in the mantle of the great reformer?

Mr. Hurd

We are not as clever as that in the Home Office. It is fairly clear what happened. The persistent critics of the Government on this issue erected, from January onwards, a caricature of Government policy with which they began to frighten themselves. They began to write stories as if we were about to do what they feared rather than what I said in the January debate we would do.

What we are now doing is close to the agenda I then set. It falls exactly within the general approach we have stated consistently to the House.

Mr. Richard Page (Hertfordshire, South-West)

I welcome my right hon. Friend's moves to reform section 2 and to bring about the abandonment of ministerial certification. However, will he assure hon. Members and those in the country who are not into the details of the Official Secrets Act that the Government will not hesitate to prosecute to the limit of their legal ability people such as Peter Wright who betrayed their trust in the country?

Mr. Hurd

Decisions on prosecutions are not for me. The balance we want to strike in the proposals includes retaining and making effective the ability to protest, by use of the criminal law, those parts of official information where it is necessary to do that.

Mr. Max Madden (Bradford, West)

Will the Home Secretary confirm that he is proposing nothing that in future will stop former security officers from retiring overseas and spilling the beans? Can he say what financial implications he believes will result from his proposals, especially in estimated legal costs? Has it ever crossed his mind that the best course would be to repeal the Official Secrets Act and replace it with a freedom of information Act and proper democratic accountability for the security services?

Mr. Hurd

Obviously the criminal law reaches as far as it can and no further. I cannot possibly say whether there are likely to be more or fewer prosecutions. We are trying to define the area in which criminal prosecutions are justified.

The hon. Gentleman's third point is a familiar one which links this subject with freedom of information. Clearly this is not a freedom of information Bill, but I believe that, especially in the areas of the security and intelligence services, no Government have provided more information to the House and the public on such matters than we have.

Mr. Teddy Taylor (Southend, East)

First, is it really fair or reasonable that there should not be any public interest defence that a member of the security services can even argue before a court if he has revealed something that was unauthorised, undemocratic and unfair? Does the Home Secretary think that it is fair to say to people, "You can to go court," when the law has taken away all the defences that they might make?

Secondly, can my right hon. Friend say something about paragraph 51, which states that any revelation of any communication from any international organisation, irrespective of the harm which might be involved, will result in prosecution? Does that cover all international organisations and, for example, the masses of documents that we get every day from the EEC?

Mr. Hurd

My hon. Friend's first point is perhaps the one which will be most controversial between the Government and their critics on, as it were, the liberal side, although we are now developing some critics on what one might call the security side. Anybody joining one of the services that we are discussing knows—the background of those services makes this clear—that there is a special duty of trust and confidentiality which remains after retirement. Although that duty of trust can be mitigated by gaining consent for the publication of this or that, it nevertheless remains. That is the point that the right hon. Member for Plymouth, Devonport (Dr. Owen) made, and I agree with him.

The House will obviously want to discuss my hon. Friend's point about paragraph 51. Where a Government or international organisation passes any information which is to be held in confidence to the British Government, we would lose that confidence and harm ourselves if we could not keep that confidence. That is the thinking behind paragraph 51, and I think it is right.

Mr. Andrew F. Bennett (Denton and Reddish)

Does the Secretary of State agree that it is fundamental to our democracy that Ministers tell the truth and that Governments obey the law, and that that applies especially to the security and intelligence services? Why should it be a criminal offence for someone to disclose that a Minister has not told the truth or that the security forces or intelligence services have broken the law?

Mr. Hurd

Other remedies and recourses are open to such a person, which are better suited to his position and the trust that he has undertaken. We are talking about members of the security and intelligence services.

Sir Ian Gilmour (Chesham and Amersham)

I welcome a number of features in the White Paper, on which I congratulate my right hon. Friend, but does he agree that one of the absurdities of the past few months has been the attempt to stop the British people reading what every other person in the world has been able to read? In view of that, does he not agree that the inclusion of the last sentence of paragraph 26, which states: its further disclosure in this country should be treated in the same way as if the original disclosure had taken place in this country", is an attempt to perpetuate that very absurdity?

Mr. Hurd

The House of Lords is considering some of the main issues raised by the "Spycatcher" case, so I will not respond to my right hon. Friend's invitation to tread on that ground. I do not think that paragraph 26 falls into the criticism that he made. It is a worry if such circumstances occur. It is reasonable that, as they come forward, our proposals should include that point.

Mr. Bob Cryer (Bradford, South)

If members of MI5 assassinate, take part in a seditious conspiracy to overthrow a Government, or seek to lie or to disseminate lies and untruths in a campaign against any political party, and if there are members of MI5 who might, for example, oppose the dominant political philosophy in MI5 at any given time—as Peter Wright pointed out, in 1974 that was support for the Conservative party—and supposing that someone wanted to expose the maggots eating away at our constitution, is the Secretary of State saying that there are no circumstances in which a member of MI5 would be justified in disclosing a serious attack on our constitutional position or disclosing murder and mayhem, which is what Peter Wright suggested in his book? That would be an outrage against any democratic system.

Mr. Hurd

We are not altering the position in that respect except to the extent that we now have procedures in the security service by which someone in that position can have access to me and, through me, to the Prime Minister. That is the doctrine of ministerial responsibility for those services. The House has often discussed that and I believe that it is the correct way of establishing responsibility for the running of services where the ordinary cut and thrust of public debate obviously does not work and is not justified.

Mr. Alastair Goodlad (Eddisbury)

Does my right hon. Friend agree that the proposal to give absolute protection to security and intelligence information follows closely the proposals in the 1978 White Paper of the then Labour Government? Does he also agree that the proposal that the determination of harm should be left to the courts represents a great advance on the preferences of the previous Labour Government for dealing with these matters by ministerial certificate? Will he apply a low test of seriousness to the effusions of the Labour party?

Mr. Hurd

I am grateful to my hon. Friend. It is sensible to bring a touch of historical proportion to such matters. The House as a whole has moved on in 1988. The caricature that I am trying to resist and demolish is the caricature which says that, whereas opinion as a whole has moved on, the Government are stuck in some pre-1978 or pre-1988 position. We are now giving a lead in producing a set of proposals which, in many respects, are the most liberal and most open that have been suggested.

Mr. Dennis Skinner (Bolsover)

In what way would the new proposals enable somebody like me—or, more likely, somebody like my hon. Friend the Member for Linlithgow (Mr. Dalyell)—to demand that the right hon. and learned Member for Richmond, Yorks (Mr. Brittan), the then Secretary of State for Trade and Industry, tell the truth about the Westland letter? Will the new proposals enable my hon. Friend to get the truth from the Prime Minister without being constantly told that she has nothing further to add? Will they help him to get the truth from the Leader of the House, which is what he has tried to do on previous occasions? If this had been in operation a decade ago, would the proposals have enabled me to ask the then Foreign Secretary, now the leader of the provos, the right hon. Member for Plymouth, Devonport (Dr. Owen), to tell me the truth about the £1 billion Chevaline expenditure which was carried through by the Lib-Lab pact?

Is it not true that this so-called liberal Home Secretary kidded his troops the other Friday when he told them not to back his hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), saying, "Leave it to me, I will introduce some liberal legislation"? Well, we have got it, and I do not think it is liberal.

Mr. Hurd

I will need to look carefully at the matter, but I do not think that anything in our proposals will either add to or detract from the parliamentary powers of those two Members of Parliament, which remain substantial.

Mr. Spencer Batiste (Elmet)

Will my right hon. Friend confirm that nothing in his proposals will inhibit the proper disclosure by civil servants of authorised information? Is he satisfied that the line of authority which is necessary for such disclosure is sufficiently well defined to avoid misunderstandings in the future?

Mr. Hurd

That is a good point. My hon. Friend is touching on a point that has not yet come out of our exchanges. As whole areas such as the preparation of the Budget, or the discussion of a major and perhaps controversial policy in Cabinet, are withdrawn entirely from the scope of the criminal law, the Civil Service will want to look carefully, as would any organisation, at its methods and procedures of discipline because it is on such procedures that it will have to rely in the future if it is to preserve the kind of information which any major organisation wants to preserve within itself. Therefore, it will be in the same position regarding the great bulk of Government information, as is a newspaper, a political party or a company. It will therefore have to consider its procedures, including the point touched on by my hon. Friend, relating to gaining authority for public disclosures.

Mr. Robin Squire (Hornchurch)

Does my right hon. Friend accept that there is a presumption in a democracy in favour of all information gathered at the public's expense being made available to the public, subject, obviously, to certain carefully defined areas, such as national security? Does he feel that the White Paper reflects that presumption?

Mr. Hurd

Yes, the White Paper reflects that presumption and it moves the boundary markedly in the direction of that presumption.

Mr. Tim Devlin (Stockton, South)

I congratulate my right hon. Friend on abandoning ministerial certificates and on funnelling down secrecy to the six defined areas. Since he mentioned history, how long will those six areas be kept secret? How will the 30-year rule operate, or is he proposing some new rule for when information will become available?

Mr. Hurd

I know of no proposals to change the 30-year rule with the exceptions and procedures built into its operation.

Mr. Bill Walker (Tayside, North)

Is my right hon. Friend aware that many of us on this side of the House welcome the fact that members of the intelligence and security services must be covered as proposed in the White Paper? Is he further aware that many individuals who work on sensitive matters, who often undertake dangerous activities and are employed on most peculiar engagements, have poor pension schemes? Perhaps more should be done in that area.

Will my right hon. Friend look carefully at prior publication? Is it not well known that one way of disclosing information is to have some obscure publication printed, for example in Eire or Bangladesh, and then to have it taken up by a major paper in the Western world? In that way matters which should not be disclosed are disclosed, as has happened in the past. Is my right hon. Friend satisfied that these measures will take care of that?

Mr. Hurd

I note my hon. Friend's first point and the importance that he attaches to it. His second point is just and is a reason why we have not included a complete defence of prior publication. As I said in my statement, we can imagine circumstances in which information is published in a completely different form to a completely different audience.

Mr. Nicholas Bennett (Pembroke)

Is my right hon. Friend aware that ordinary British people will fully appreciate the principle concerning the security services and have never understood the fuss made by the media? Will he clarify two points in his statement? First, how far will journalists' freedom be extended by the White Paper? Secondly, what will be the position of senior civil servants on Budget secrets? It is possible to envisage disclosed Budget secrets destabilising the financial market in the United Kingdom and abroad.

Mr. Hurd

My hon. Friend may be right on the second point. We are not proposing to keep or extend the criminal law in that area, except to the extent that the secret may be a matter of defence security or intelligence, which I doubt. Therefore, protection of information on that subject will rely on the disciplinary arrangements within the Civil Service.

There will be a substantial change in the effect of the law on editors and journalists. Only restricted categories of information will be covered and there will be a specific damage test for defence, security, intelligence and foreign affairs. There will be no ministerial certificates and it will no longer be an offence merely to receive information. Where there are damage tests, the prosecution will have to prove that the damage was likely to be caused and that the defendant, jounalist or editor, knew or had reasonable cause to believe that it was likely to be caused. That position is not only safeguarded but enhanced.

Mr. Anthony Beaumont-Dark (Birmingham, Selly Oak)

We all know that grandees, meaning Privy Councillors, always have access to documents before mere humble Back Benchers, and we have got used to that. I should be fascinated to hear from my right hon. Friend whether some Back Benchers are to be given documents an hour or two before the rest of the House. It may well be that an excellent precedent is being set. If this is a precedent so that we can all get documents ahead of time and can take a useful part in debate, so much the better, but who will be the sheep and who the goats? It would be lovely to know. Let us all be sheep or all be goats, but let us not all be led into a position where the Home Secretary can choose those whom he thinks are worthy of having his documents.

Mr. Hurd

I shall not go into the business of choosing between grandees. So far as I am aware, no hon. Member received a copy of the White Paper before——

Mr. Beaumont-Dark

My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) did.

Mr. Hurd

Will my hon. Friend let me finish my sentence?

—it was laid in the usual way in the Vote Office.

Mr. Hattersley

May I say how much I wish that every hon. Member who asked a question had read the White Paper instead of having to rely on the Home Secretary's statement. He was asked several questions about definition, but none has been answered.

Paragraph 47 gives Ministers the right to designate groups and individuals who will not be subject to the normal protections and defences which are stipulated in other parts of the White Paper. Will the Minister alone make that designation? I ask him not to speculate on the groups but to answer the specific question: will the right to designate groups and individuals not subject to the normal protection be up to Ministers alone?

Mr. Hurd

I am glad that the right hon. Gentleman, by implication, acknowledges the strength of the normal protection which does not exist yet. In designating, the Minister will be bound by the purpose of designation which is set out in paragraph 7—[interruption] Not at all. It is not a power at large, but a power to designate individuals or groups whose duties necessarily involve extensive familiarity with the work of the security and intelligence services. That is a specific point which the House will undoubtedly want to discuss in detail, and it seems entirely reasonably within that definition.