HC Deb 02 February 1989 vol 146 cc519-35

Again considered in Committee.

Question again proposed, That the amendment be made.

Mr. Corbett

I shall not labour my point, except to say that if it is important—as the Government seem to feel it is—to write into a local government Bill the role of an officer to look after the public interest, how much more important it is to provide for the public interest in the Official Secrets Bill.

Throughout the debate we have had exchanges about the matter of harm, with which the public interest defence is linked. The Government's case is that harm is caused purely by disclosure, and that it does not matter whether it is a little harm or a great deal of harm. That is what the Government have asserted. The Home Secretary started this argument during our debate on 22 July, when he said: Our central objective is to narrow the law so it applies only to disclosures without authority of official information which"— these are the words of which I wish to remind the Home Secretary— is likely to give rise to unacceptable degree of harm to the public interest."—[Official Report, 22 July 1988; Vol. 137, c. 1413.]

Those were the Home Secretary's words, and he is not a man to use words carelessly. On that occasion he acknowledged that there were different degrees of harm. If there is an unacceptable degree of harm it follows in logic that there must be acceptable degrees of harm. As my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) reminded us, that is what the Franks committee said. One of the major points in its report was that the Official Secrets Act should come into force only where there was serious harm or serious injury.

The Home Secretary took us on to that ground, and it must have crossed his mind that if he had acknowledged the two principles in the BillS—that the degree of harm was measurable and that it had to be measured in relation to the public interest—we should not have had to spend all these hours on the amendment. If he told us that he is now willing to think again, on the basis of what has been argued so forcefully and eloquently by right hon. and hon. Members on both sides of the House, most of our differences over the Bill—though not all, by any means —could be put on one side and we should make much easier progress.

I do not want to waste the time of the House, but the right hon. Member for Castle Point (Sir B. Braine) raised the issue of public health and safety. Unless the Home Secretary can give us an assurance that under no circumstances will anyone who reveals anything touching on public safety and health be caught by the Bill we shall be in trouble.

If the Secretary of State will bear with me for a minute I will ask him a question, although I suspect that he will give me a different answer from the one I want. Many hon. Members have rightly mentioned the honest and loyal civil servants who know that suspected crime, fraud, abuse of authority, neglect of public duty or threat to public safety has been going on. That is what has made this debate so important.

But the Government are saying "Mum's the word". They say, "Crawl up this route. Talk to the next man up the ladder and hope to the heavens that he will do something about it."

The right hon. Member for Old Bexley and Sidcup took us through two scenarios where, for the most understandable reasons, there would be occasions where that would not happen. I find that notion deeply offensive to our public servants whether they are in security or intelligence, or merely pushing a pen in Whitehall.

It needs to be said that we are dealing with the morals and standards of public service. We have a right to expect—and we have had it by and large over the years from those who serve the public and those whom we employ on our behalf—that they should stand guardians of the public interest against the all-embracing powers of the Executive.

There is a fundamental difference between us on this matter. The right hon. Member for Old Bexley and Sidcup also referred to it. The question is not simply about where suspected wrongdoing is discovered. Let us accept that in nine cases out of 10 it is put right and that is properly the end of the argument. But as the right hon. Member said, there are circumstances where that wrongdoing is so wicked and against the public interest that the public have a right to know what was done, that it is being put right and that the Government of the day, of whatever colour, will take steps to see that it never happens again.

I want to put to the Minister a case that has already been referred to in our debate. We now know, from the release of official papers, rather than from the work of a whistleblower, that in 1957 following an escape of strontium 90 from Windscale, as it was then known, the then Conservative Government organised a massive cover-up. The accident contaminated milk from 800 farms. That case occurred even before the notorious fire at the plant, where the truth was also bent.

Secret papers were released on 1 January this year. They reveal that no information about that Windscale fallout was released until 18 months afterwards and details were not even given by the Government to the National Radiological Protection Board. The House will remember that in the context of the Chernobyl fallout.

Indeed, the Medical Research Council helped to mislead people about the true extent of the danger by relaxing its standards for safe consumption of the radio-nuclide, so making the contamination appear innocuous. In the face of what we now know to be a Government-organised cover-up, was it or was it not in the public interest at the time for those facts to be made freely available?

Secondly, should such an incident happen again, with a similar cover-up, is it not the case that under the Bill a civil servant who revealed that cover-up would run the risk of prosecution? Perhaps the Home Secretary will be able to tell the House.

There should not be retribution but reward in a democracy. By that I mean public thanks for civil servants and others who speak up on behalf of the people whom hon. Members represent against wrongdoing, neglect of public duty, fraud, abuse of authority, or crime. Illegal acts—yes, even by members of the security and intelligence services—cannot and should not be overlooked in a democracy. It comes down to this: no person in a democracy should be placed above the law.

Mr. Hind

I am grateful to the Committee for the opportunity to speak, as some hon. Members have sat in the Chamber for five and a half hours wishing to take part in the debate. I echo the points that have already been made. It has been an important debate on one of the most important issues that we shall decide in this Parliament.

I support the major thrust of the Bill. There are several weaknesses in the amendments. Much of what was caught by section 2 of the original legislation will not be covered by the criminal law. A typical example is the White Paper on the National Health Service. That document was leaked to the hon. Member for Livingstone (Mr. Cook). It will not be caught by the Official Secrets Bill. The hon. Member for Birmingham, Erdington (Mr. Corbett) referred to the Windscale leak. Provided that that was not a military establishment, and I understand that it was not, it would also probably not be caught by the Bill.

Many hon. Members have ignored the pillar of the Bill, which is the harm test. The prosecution must prove that harm has come from disclosure. It is a defence for a Government official who made a disclosure to show that it caused no harm to the public interest. He can also argue in court that the result of his disclosure was beneficial and that, therefore, there was no harm. Those points have been ignored by many hon. Members. There is nothing in the Bill to prevent a Member of Parliament receiving a disclosure other than from somebody who is notified, provided that the notification of that disclosure is used responsibly. That factor, too, has been forgotten. It has been argued that disclosure to a Member of Parliament will be harmful.

Hon. Members have referred to one or two examples. First, Captain Scott revealed the state of British armaments and the weakness of British tanks. That was a typical example, in which there was no harm in disclosure. Secondly, I refer to the informaton that Sir Winston Churchill received before the last war. Where was the harm in that disclosure? There was none. Civil servants would have had the defence that is laid down in the Bill.

Much of what has been said about the Bill is not correct. Hon. Members are not looking carefully at the small print in the Bill. They do not realise that the extent of its protection is far greater than many of the Bill's opponents have given it credit, for.

10.15 pm

There are fundamental flaws in new clause 1 and new clause 4. Credit is not being given for the fact that the harm test goes much further than a superficial examination reveals The two new clauses provide for a subjective test. Arguments have been put forward against the Obscene Publications Act where there is a subjective test.

In the prosecution of "Last Exit to Brooklyn", there was a conviction in one area and a acquittal in another. A jury in one area decided on a conviction in regard to "Lady Chatterley's Lover", while there was an acquittal by another jury. According to the new clauses, a jury would decide on the public interest. A jury in Manchester and a jury at the Old Bailey might disagree about the public interest; a jury in Leeds and a jury in Edinburgh might also disagree. Hon. Members should imagine being a judge directing a jury; they would have to decide what the public interest was. If hon. Members had to design a directive and a test they might not think it easy.

The second argument is more important. The lest in new clause 4 is the public interest. What is the public interest there? Under new clause 4 it is what the discloser decides that it will be. Subsection (1) says: It shall be a defence for a person charged with an offence under this Act to prove that the disclosure or retention of the information, document or other article was in the public interest insofar as he had reasonable cause to believe that it indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other misconduct. The public interest decision is taken by the person making the disclosure. He has to decide whether something is worthy of disclosure. If he is wrong, untold harm will be done to the public interest purely and simply on the subjective judgement of that individual. A jury will consider not just the harm but the overall position. The jury will consider whether the person had reasonable cause to believe, rightly or wrongly, that disclosure should have been made. As a barrister with much experience, I urge the Committee to consider whether anybody would be convicted under new clause 1 or new clause 4.

The difference between the Government's proposals and new clauses 1 and 4 is that the Government's proposals take into account the damage and the harm to the national interest. Neither of the new clauses does so.

All that they do is to consider the individual making the disclosure. Through the establishment code and other provisions in the Bill, there are plenty of ways in which someone who feels that he has information to disclose, such as Captain Scott or the civil servant who briefed Churchill, can get that information over without falling foul of the Bill. I urge my hon. Friends to reject the amendments.

Mr. Ivan Lawrence (Burton)

Hon. Members have been talking for hours about the public interest. Of course, it is central to the law as it exists and as it will be after the Bill becomes law. That is not the same as a specific public interest defence in court where the burden is on the defendant to prove something. Those who tabled the amendments are asking for something to be done against the defendant. The defendant will have to prove his innocence under the amendments that have been tabled by hon. Members on both sides of the Committee. I am against such a specific public interest defence. Therefore, I am against the amendments and the new clauses.

There is one stark, glaring and serious problem with such a specific defence, which appears to have been missed in all the discussions that I have heard. If the defence fails and the jury says that the accused is culpable, that what he did was not in the public interest, it is too late—the harm has been done and nothing can correct it. The secret is unjustifiably out. The agents are dead. There is no hauling back. That is what is wrong with a specific public interest defence.

By having such a defence, we will encourage the unstable person to leak. We will encourage the person who wants to make money out of his book to leak and then to claim that what he did was in the public interest. What is wrong with such a defence is that it encourages leaks and there is no going back, if the jury should say that it is an unwarranted defence, because the harm has been done.

The question is whether the arguments for such a specific defence are stronger than those against it. Is such a defence necessary? I believe not, and I hope that the Government will stay firm for the following reasons. First, in five out of the six categories of official information, the Government are providing in the Bill much better than a public interest defence. They are providing the test of harm, which the prosecution must prove and not the defence. The prosecution will not succeed if it is obviously in the public interest that the leak was necessary. The man will go free.

The public interest might also prevent the Director of Public Prosecutions, or whomever makes the decision, from initiating a prosecution at all, because he will take into account the public interest explanation and may say that the prosecution is not likely to succeed. In any case, a judge might stop the trial halfway through because of insufficient evidence of harm. All those are steps for the protection of the accused, which will, for the first time, be written into our law if the Bill is passed.

The trouble with a specific public interest defence is that it presumes that the matter might go as far as the defendant, who then must explain himself and, as everybody knows, it sometimes happens that an innocent defendant is not believed. The jury may say, "We do not believe this public interest defence. We do not believe a word the man has said. We believe he has lied from beginning to end." The man will then be convicted—whereas, if the test was purely one of harm, he would never have been charged, or, if charged, he might have been acquitted halfway through the case because of the inadequacy of the evidence.

Secondly, where the accused is not a Crown servant, the prosecution must prove even more. It must prove he had good reason to know that harm would be done, which is a much harder task than under the present law.

Thirdly, and this has preoccupied the House for much of the debate, in the one in six category—the case of a member or former member of the security or intelligence services where harm need not be proved—there are other reasons for saying that a specific public interest defence is not appropriate.

Fourthly, it is simply not true to say that the honest whistleblower cannot blow the whistle without being convicted of crime. It is nonsense, because he can go to the staff counsellor without being convicted. If he does not like what the staff counsellor says, he can go to the Minister without being convicted. If he does not like what the Minister has to say, he can go to his Member of Parliament and say, "I am bound by the Official Secrets Act"—[Interruption.] It is no use shouting. If hon. Gentlemen listen they may hear what I am attempting to say.

The whistleblower can go to his Member of Parliament and say, "I cannot tell you precisely what is wrong, but I can tell you that I am appalled at some crime, some dishonesty, some fraud, which is being perpetrated in my department." And the Member of Parliament, exercising his right in that capacity, will knock on the Prime Minister's door—if it is a Member of the Opposition and he is terrified of doing so, he can knock on the Home Secretary's door or the Foreign Secretary's door or any one of those doors in the corridor—and the matter will be examined. That is true under any Government, and authority will be given to the whistleblower to explain precisely what he is complaining about without any question of prosecution. That is how the law operates and how the law would operate after this Bill became law—[Interruption.] I know that my hon. Friends are in a good and merry mood at 25 minutes past 10, but it does not alter the fact that the whistleblower has a number of avenues short of going to the Sun or the Daily Mirror and saying "I have a load of secrets; how much are you prepared to pay for them?"

Security Service people are not ordinary citizens whom we are aflicting with some terrible deprivation of their liberty. When they are at work they are very special people and they know that they are deprived of the right to speak freely on security matters when they volunteer for their job, go to work for the state and take money and a pension. The public have a right to expect that those who are paid to protect the nation's secrets do just that. They know what they are about. They are not afflicted and they are certainly not afflicted when they are not betraying the country's secrets.

If a public interest defence were given to them we might have more of a slightly unstable or slightly dangerous people of the character of Peter Wright, whom hon. Members throughout the whole of the "Spycatcher" matter castigated as being a less than favourable person, even though they supported the case against the Government. For all we know the secret service may have a lot of people like that. We have certainly heard in our debates about a number of people who want to sell for money the secrets that they have learnt in the service. If we provide the public interest defence we are telling those people that they can always contend that what they did was done in the public interest.

Lastly, if we do not give a public interest defence to five of the six categories where the prosecution have to prove harm, we cannot give it to this category.

There are some who say, quite fairly, as did my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath), that there is always the possibility that a Government will confuse what is in their interest with what is in the public interest—of course that never happened under the regime of my right hon. Friend—and because a Government cannot decide between what is in the public interest and what is in their interest, the conclusion is that they will prosecute someone who ought not to be prosecuted. That is the logical conclusion.

Ultimately, we must strike a balance and decide where the public interest lies. Is it more in the public interest to risk encouraging the misguided leaker, whose defence is that he is acting in the public interest, or to trust the Government—whatever their colour—the staff counsellor,the Minister, the Prime Minister, the Member of Parliament concerned, or the Law Officers, who are brought in at an early stage, not to hide an offence?

In sophisticated democracies, most would prefer to trust the Government, backed as they are by civil servants of undoubted integrity who would know nearly everything that was going on.

That is the case against the public interest defence.

10.30 pm
Mr. Hurd

It would be courteous if I tried to answer some, if not all, the points made during the long debate which has gone to the heart of necessary discussion of the Bill.

It was perfectly natural that critics of the Bill and enthusiasts for the amendments to it should have taken up most of the time, although there has been a healthy redress of the balance during the past hour or so. I have even caught a glimpse of my right hon. Friend the Member for Chingford (Mr. Tebbit), who I know thinks we have gone dangerously far in a liberal direction.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) spoke to his new clause after I had spoken; he will forgive me if I do not go into it in great detail. I criticise it on the grounds that it would leave it to the courts to decide what was in the public interest, without guidance from Parliament, and because the courts would decide cases not necessarily on the facts but on the defendant's reasonable belief that he was acting in the public interest at the time of the disclosure. He might admit that he had seriously harmed the interests protected by the Bill; he might even admit afterwards that he had wrongly interpreted the public interest—but he would still avoid being convicted of an offence and paying the penalty for his damaging disclosure.

I missed the speech of my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour), but was given some account of it. I am grateful for what he said in praise of the Bill. However, I do not accept that its effect is too narrow. Of course we want to make it effectively cover the areas in which information needs to be protected. Civil servants in the Ministry of Agriculture or the Department of Health now live with the knowledge that section 2 governs the confidential information with which they deal. It would be remarkable if this Bill covered their work. The fact that it does not is a remarkable change.

In the Ministry of Defence and the Foreign Office, the effect is different. Civil servants in those Departments will have to get used to the idea of tests of harm. The blanket protection of the law for the confidential documents that they handle will be removed—a considerable, but different change. So much of the argument has focused on clause 1, dealing with members or former members of the intelligence and security services who are notified, that hon. Members have tended to widen a necessarily restrictive arrangement as if it covered all civil servants. That is far from true.

The right hon. Member for Morley and Leeds, South (Mr. Rees) always speaks with vivid recollection of the responsibilities of his former office and of the balances that must be struck. He took us through what he called the majestic language of the Franks report, to which he put his name. I cannot refrain from reminding him that that means he put his name to the passage in it that dealt with this very matter. Speaking on a different structure, Lord Franks said: The prosecution should have to satisfy the court that the information fell within a category, and that it was so classified, but the court should not be concerned with the effect of the disclosure on the interests of the nation. The idea that the Franks report can be prayed in aid of a public interest amendment is wrong.

My hon. Friend the Member for Havant (Sir I. Lloyd) concentrated on an anecdote that clearly impressed and moved the House. I hope that I can reassure him, although I do not know all the historical detail. On the basis of what he said, I can tell him that Captain Scott would have had a far better defence under our Bill than he would have had under the existing legislation. Any prosecution would have to prove that the disclosure to his father was likely to prejudice or damage the capability of the armed forces. That would be the relevant test. Of course, it could not be met in the circumstances described by my hon. Friend. Furthermore, Captain Scott would have a defence that, at the time of the alleged event, he did not know and had no reasonable cause to believe that his disclosure would have a damaging effect. Under the existing law, therefore, he stood in jeopardy, but he would not stand in jeopardy under the provisions of the Bill.

I agree with the basic point made by my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) that the Government should not be the arbiter in these matters. That is why the Bill is constructed as it is. It asks Parliament to lay down certain specific tests. It removes the need for ministerial certificates which have held up the field for so long, and it puts the jury in control, so Parliament and the jury are at the centre of the scene.

My right hon. Friend referred to the time when I worked for him at No. 10, and it is certainly true that I learned what I know and gained many of my impressions of these matters at his knee. He will not take offence if I say that I observed at his knee a remarkably rigorous attitude in these matters. If someone had come forward in those days with a proposition that the House should be asked to pass a Bill on this matter, with no ministerial certificates and no reliance on classification of documents, and which went considerably further than the structure in the Franks report and put a great reliance on juries, he would have received an icy stare.

The right hon. Member for Plymouth, Devonport (Dr. Owen) made a number of points. He and the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) put together an amazing idea—that the Bill went in tandem with the Government's refusal to appeal in the Ponting case. I am not sure how the right hon. Member for Devonport supposes that one can appeal against an acquittal; that is something that even I, as a layman, know is not easy to do. He made a point about hearings in camera and, so as not to waste the House's time, I refer him to paragraph 146 of the Franks report which deals exhaustively with this matter. He was right about judicial review. That is to say, the general law of judicial review will allow a challenge to be brought of a decision to notify a person under clause 1 and no amendment is therefore required to secure that result.

My hon. Friend the Member for Davyhulme (Mr. Churchill) again produced his own story. On the facts that he stated, the two men who made the disclosures would have been able to make an extremely robust defence against any suggestion by any prosecution in respect of the harm test for defence, which would be the relevant one in that case. I do not easily see how the prosecution could have sustained its case in that hypothetical example.

I do not want to repeat to the House what I said in reply to my right hon. Friend the Member for Castle Point (Sir B. Braine) because, unfortunately, he was not here when I spoke. However, he will be able to read what I said at some length. I listened carefully to the cases that he cited. The information in the cases that he cited came from home and referred to areas not covered by the Bill, although covered by the Act. The official concerned told him that because of the Act, he could not let my right hon. Friend have the information that he wanted, but he would not be able to tell him that in future under the Bill.

My right hon. Friend raised the case where information came not from home but from abroad—for example, from the American Government or the EEC. I can reassure him on that point. I do not see, in the case he mentioned, how either the facts that would be disclosed or the fact of disclosure could possibly have jeopardised our interests abroad, so it would not have fallen within the Bill in that case either.

I have avoided going into previous cases, but in response to the remarks of the hon. Member for Birmingham, Erdington (Mr. Corbett) I would say that if in the future a civil servant—not a member of the intelligence or security services—disclosed information about public safety in a nuclear installation, he could not be prosecuted unless harm was done under one or more of the specific tests and definitions in the Bill governing security and intelligence, defence, international relations and crime.

My hon. Friends the Members for Harrow, East (Mr. Dykes) and for Aldridge-Brownhills (Mr. Shepherd) pursued the issue of clause 3(3), which is obviously causing difficulty, and which I have failed to get across. It is simply that, even if the prosecution chose to argue that it was the fact of disclosure, rather than the contents of disclosure, which caused harm, it would in either case have to show that the disclosure passed the test of harm affecting our interest abroad. So it is not the case that the fact of disclosure would be an absolute offence; it would have to pass the test of harm.

I sympathise with my hon. Friend the Member for Aldridge-Brownhills because when hon. Members were criticising his amendment, I heard him say, with his back rather against the wall, "Well, at the end of the day the jury will get it right." There was a moment of fellow feeling because I have had to use that argument, too. Now we have freed him from his concern with ministerial certificates, although I admit he put them in only because he thought we would not be brave enough to remove them.

Mr. Richard Shepherd

I put them in where?

Mr. Hurd

In my hon. Friend's Bill.

Mr. Shepherd

The assertion would have been that there would have been a review procedure of them. They were not the absolute doctrine that the Home Secretary constantly seems to think they were. I wish he had read my Bill originally. That would have been a help in this process.

Mr. Hurd

I did read it, and I heard my hon. Friend explain that he put in a ministerial review because he thought we would not be brave enough to leave ministerial certificates out. We have been brave enough to leave them out, so he and I can have faith in the jury.

My hon. Friend the Member for Aldridge-Brownhills made an excellent speech on his Bill about the need to strike a balance between security and freedom. In everything I have heard him say—and I must have heard almost all his speeches on this subject—he has displayed no sign of striking this balance in what I would regard as a fair way. I admire his conviction, but there seems to be no sign of understanding among many critics of this Bill how information about terrorism, terrorists, counter-terrorism and the activities of foreign spies might be disclosed, with substantial damage to the protection of the community, if a door were left open in the way this series of amendments would provide. That is the point to which my hon. and learned Friend the Member for Burton (Mr. Lawrence) referred.

Almost all the examples we have had have been hypothetical or about past allegedly conscientious public servants being tempted to breach the duty of confidentiality because of some good that they wanted to do. But we must take into account public servants who might have less good motives—who might have bad motives and who would be tempted or encouraged by amendments such as these to inflict quite serious damage on the interests of the citizen because they felt that Parliament had given them a way to get away with it.

I have not been particularly corrupted by office to distort my view in these matters. I believe that I should be conscious of this danger and of the gain to the enemies—not of the Government but of the citizens whom we are protecting—which is inherent in this series of amendments.

Mr. Aitken

The Home Secretary should not be allowed to get away with that reply. Although the hour is late, I must criticise his lamentable answer to what has been a great debate. It has been great because those who have sat here for six hours and 44 minutes know that across the Chamber there has been an amazingly broad measure of agreement in support of the amendment. It has been supported by a former Prime Minister, a former Home Secretary, a former Foreign Secretary, a former Defence Secretary, the Father of the House of Commons, and a broad spectrum of opinion.

We are debating a constitutional measure which needs, if it is to survive across the generations—when different complexions of power groupings will be in place in Parliament—a broad spectrum of support. To see it narrowed down to one sectional interest is a grave mistake, not just today but for the future generations for whom we are legislating.

10.45 pm

I ask myself what is the mystery behind the Government's adamant refusal to take on board the right to allow a defendant accused of breach of the Official Secrets Act to say in court, "Please, jury, listen to my case:I acted as I did because I was trying to prevent a serious crime"—a serious fraud, a serious abuse of authority, or major misconduct or wrongdoing. What is the mystery? Why will the Government not accept a right which, as I shall point out in a moment, has been in the law for over 75 years? I can find only one reason—the quite extraordinary attitude on the part of the Prime Minister that there is no such thing as an acceptable amendment when the matter of debate is in the context of secrecy or security, that on no terms and in no conditions can such an amendment be accepted. That attitude shows a worrying contempt for Parliament and I am strongly critical of it.

The Home Secretary has produced two arguments in defence of his thesis and of his great attempt to persuade us that there is a nice cuddly, libertarian little sheep, under the wolf's clothing of authoritarianism with which the Bill and his refusal to accept this amendment are masked. He has argued that at the moment, in the law as it stands, there is no such thing as a public interest defence, but that contention does not stand up to serious examination. In his winding-up speech he did not answer the point that the right is definitely provided for in the Obscene Publications Act.

More importantly, the Home Secretary neglected the point that the 1911 Act provides for a defence of public interest. That Act was probably the worst piece of legislation ever to be passed by the House of Commons, in living or even historic memory, but it had one redeeming feature—section 2(1)(a), which provided that a person could argue that he had disclosed information in the interests of the state. The idea that that is not a public interest defence is denied by the report of the 1938 Select Committee, which I quoted, and by the example of Mr. Wigram and all the other anti-appeasement civil servants who briefed Winston Churchill. It is denied by the case of Mr. Duncan Sandys, it is denied by the Ponting case and it is denied by the Sunday Telegraph secrets case in which I took part.

If I really want to convince my hon. Friends that something quite wrong is being done today I will take up the challenge presented to me some seven hours ago by the hon. Member for Linlithgow (Mr. Dalyell). He argued that the Ponting case proved that, somehow or other, the public interest defence was there and was a real safeguard. I suspect that my hon. Friends approve of this Bill because they think, "The Pontings of this world would jolly well be convicted—and a good thing too."

Now that I have had time to look the matter up in the Library, I will give a graphic example of how a public interest defence is right and necessary, and how it once worked in a grave case in 1969 in which this House was misled. I am sorry if this embarrasses some Opposition Members opposite, but it will take no more than a couple of minutes.

The hottest foreign affairs political controversy at that time was the Nigerian civil war. I was not a Member of Parliament but a journalist writing articles in which I referred to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), for example, as a young meteor. As a foreign affairs correspondent I wrote an article based on what was known as the Scott report, which was all about the Nigerian civil war and the supply of arms to Nigeria. Before publishing it I consulted a dear friend who was then a Privy Councillor and a Member of this House—the right hon. Sir Hugh Fraser. I remember to this day how, when he first read the then unpublished copy of the Scott report, he threw back his fine Highland chief's head and whooped, "This proves they lied."

He was referring to statements made in the House, some of them by the then Prime Minister, Mr. Harold Wilson who, in relation to British arms supplies to Nigeria, told the House on 16 May 1968: we have allowed the continuance of supply of arms by private manufacturers in this country, exactly on the basis that it has been in the past, but there has been no special provision for the needs of war."—[Official Report, 16 May 1968; vol. 764, c. 1397–8.] A few months later the Foreign Secretary, Mr. Michael Stewart, said: The arms which we have supplied have been broadly, both in quantity and quality, what we were supplying before war began. The Sunday Telegraph secret case proved decisively that those statements were at best gravely misleading. Before the war began, Britain had been supplying something like £70,000-worth of arms per year to Nigeria. When the Sunday Telegraph published its article, Britain was supplying £10 million-worth of arms to Nigeria of a completely different quality and quantity than before.

Sir Hugh Fraser was right to see that as an example of the House being misled and the evidence has proved him right. That example is relevant to today's debate because it was open to the defendants in that case to argue—under the right of a public interest defence which still exists in the official secrets legislation—that a major wrongdoing had occurred and the House had been misled. Therefore, there was a genuine justification for them to go before a jury and claim a defence because the Scott report was published in the interests of the state to show that the House was being misled. That is a sound, solid, copper-bottomed example of why a public defence is needed, why the public interest defence is in the 1911 Act and why it succeeded then.

If we sweep that defence away now and say that we do not need it because the Government's say-so is sufficient, we throw away a small but very important bulwark of our liberties which have defended the country well in the past. The Bill is a real sign that three terms in office have made the Government unresponsive to parliamentary mainstream opinion and reluctant to defend liberties. To use a harsh term, the Government have become far too arrogant in their belief that they have a monopoly of the right point of view. The public interest defence worked in the past and it should be maintained. It does not deserve to be obliterated by the Bill and it is a great pity that the Government will not accept the amendment.

Mr. Dalyell

Amendment No. 91 heads this group of amendments. Very often senior Ministers make speeches, leave the Chamber and return before the wind-up speeches. I want to pay tribute to the Home Secretary for having been in his place since 4 pm to listen to the debate. He will have recognised that this has been a House of Commons occasion, not a party occasion.

Will the Home Secretary go back to the Cabinet and reflect that right across the political spectrum in the House there are Members who have worked hard on the Bill and who think that on this particular issue he may be wrong? There is no shame in the Government changing their minds. If the House has reached a consensus no shame would attach to the Home Secretary and there would be no crowing from the Opposition if he changed his mind. Action could be taken in the other place.

I have tabled amendment No. 91 as a symbol. Other hon. Members may think that their amendments or new clauses are better, and they may be right, but we are voting on a symbol now.

Question put, That the amendment be made:—

The House divided: Ayes 179, Noes 267

Division No. 73] [10.53 pn
AYES
Abbott, Ms Diane Davies, Rt Hon Denzil (Llanelli)
Adley, Robert Davis, Terry (B'ham Hodge H'l)
Aitken, Jonathan Dewar, Donald
Allen, Graham Dixon, Don
Alton, David Doran, Frank
Anderson, Donald Dunnachie, Jimmy
Archer, Rt Hon Peter Dunwoody, Hon Mrs Gwyneth
Armstrong, Hilary Dykes, Hugh
Ashdown, Rt Hon Paddy Eadie, Alexander
Ashton, Joe Evans, John (St Helens N)
Banks, Tony (Newham NW) Fatchett,Derek
Barnes, Harry (Derbyshire NE) Field, Frank (Birkenhead)
Barnes, Mrs Rosie (Greenwich) Fisher, Mark
Barron, Kevin Flannery, Martin
Beckett, Margaret Flynn, Paul
Benn, Rt Hon Tony Foot, Rt Hon Michael
Bennett, A. F. (D'nt'n & R'dish) Foster, Derek
Bermingham, Gerald Foulkes, George
Bidwell, Sydney Fraser, John
Biffen, Rt Hon John Garrett, John (Norwich South)
Blair, Tony Gilbert, Rt Hon Dr John
Blunkett, David Gilmour, Rt Hon Sir Ian
Boateng, Paul Godman, Dr Norman A.
Body, Sir Richard Golding, Mrs Llin
Boyes, Roland Gorman, Mrs Teresa
Bradley, Keith Gorst, John
Braine, Rt Hon Sir Bernard Gould, Bryan
Brown, Nicholas (Newcastle E) Graham, Thomas
Bruce, Malcolm (Gordon) Grant, Bernie (Tottenham)
Buchan, Norman Griffiths, Nigel (Edinburgh S)
Caborn, Richard Hattersley, Rt Hon Roy
Campbell, Menzies (Fife NE) Heath, Rt Hon Edward
Campbell, Ron (Blyth Valley) Heffer, Eric S.
Campbell-Savours, D. N. Henderson, Doug
Canavan, Dennis Hinchliffe, David
Clark, Dr David (S Shields) Hogg, N. (C'nauld & Kilsyth)
Clarke, Tom (Monklands W) Holland, Stuart
Clay, Bob Home Robertson, John
Clelland, David Hood, Jimmy
Clwyd, Mrs Ann Howells, Geraint
Cohen, Harry Hoyle, Doug
Corbett, Robin Hughes, John (Coventry NE)
Corbyn, Jeremy Hughes, Robert (Aberdeen N)
Cousins, Jim Hughes, Simon (Southwark)
Critchley, Julian Illsley, Eric
Crowther, Stan Ingram, Adam
Cryer, Bob Jones, Martyn (Clwyd S W)
Cummings, John Lamond, James
Dalyell, Tam Leadbitter, Ted
Darling, Alistair Leighton, Ron
Lester, Jim (Broxtowe) Rees, Rt Hon Merlyn
Lestor, Joan (Eccles) Reid, Dr John
Lewis, Terry Richardson, Jo
Livingstone, Ken Roberts, Allan (Bootle)
Livsey, Richard Robertson, George
Lofthouse, Geoffrey Rooker, Jeff
McAllion, John Ruddock, Joan
McAvoy, Thomas Sedgemore, Brian
McCartney, Ian Sheerman, Barry
Macdonald, Calum A. Sheldon, Rt Hon Robert
McKay, Allen (Barnsley West) Shepherd, Richard (Aldridge)
McKelvey, William Shore, Rt Hon Peter
Maclennan, Robert Short, Clare
McNamara, Kevin Skinner, Dennis
Madden, Max Smith, Andrew (Oxford E)
Mahon, Mrs Alice Smith, C. (Isl'ton & F'bury)
Marek, Dr John Soley, Clive
Marshall, David (Shettleston) Spearing, Nigel
Marshall, Jim (Leicester S) Squire, Robin
Martlew, Eric Steinberg, Gerry
Meacher, Michael Strang, Gavin
Meale, Alan Taylor, Teddy (S'end E)
Michael, Alun Townsend, Cyril D. (B'heath)
Michie, Bill (Sheffield Heeley) Turner, Dennis
Michie, Mrs Ray (Arg'I & Bute) Vaz, Keith
Mitchell, Austin (G't Grimsby) Wall, Pat
Moonie, Dr Lewis Wallace, James
Morley, Elliott Walley, Joan
Morris, Rt Hon J. (Aberavon) Wareing, Robert N.
Morrison, Sir Charles Welsh, Michael (Doncaster N)
Mowlam, Marjorie Wigley, Dafydd
Mullin, Chris Williams, Rt Hon Alan
Murphy, Paul Winnick, David
Nellist, Dave Wise, Mrs Audrey
Norris, Steve Worthington, Tony
Oakes, Rt Hon Gordon Wray, Jimmy
Orme, Rt Hon Stanley Young, David (Bolton SE)
Patchett, Terry
Pike, Peter L. Tellers for the Ayes:
Prescott, John Mr. Frank Haynes and Mr. Ken Eastham.
Quin, Ms Joyce
Radice, Giles
NOES
Alexander, Richard Carlisle, John, (Luton N)
Alison, Rt Hon Michael Carlisle, Kenneth (Lincoln)
Amess, David Carrington, Matthew
Amos, Alan Carttiss, Michael
Arbuthnot, James Cash, William
Arnold, Jacques (Gravesham) Chapman, Sydney
Arnold, Tom (Hazel Grove) Chope, Christopher
Ashby, David Churchill, Mr
Aspinwall, Jack Clark, Hon Alan (Plym'th S'n)
Baker, Nicholas (Dorset N) Clark, Dr Michael (Rochford)
Baldry, Tony Clark, Sir W. (Croydon S)
Banks, Robert (Harrogate) Colvin, Michael
Bellingham, Henry Conway, Derek
Bendall, Vivian Coombs, Anthony (Wyre F'rest)
Bennett, Nicholas (Pembroke) Coombs, Simon (Swindon)
Benyon, W. Couchman, James
Bevan, David Gilroy Cran, James
Blackburn, Dr John G. Currie, Mrs Edwina
Blaker, Rt Hon Sir Peter Davies, Q. (Stamf'd & Spald'g)
Bonsor, Sir Nicholas Davis, David (Boothferry)
Boscawen, Hon Robert Day, Stephen
Boswell, Tim Devlin, Tim
Bottomley, Peter Dicks, Terry
Bottomley, Mrs Virginia Douglas-Hamilton, Lord James
Bowden, Gerald (Dulwich) Dunn, Bob
Boyson, Rt Hon Dr Sir Rhodes Evans, David (Welwyn Hatf'd)
Brandon-Bravo, Martin Evennett, David
Brazier, Julian Fallon, Michael
Bright, Graham Favell, Tony
Brown, Michael (Brigg & Cl't's) Field, Barry (Isle of Wight)
Browne, John (Winchester) Fishburn, John Dudley
Bruce, Ian (Dorset South) Fookes, Dame Janet
Burns, Simon Forman, Nigel
Burt, Alistair Forsyth, Michael (Stirling)
Butler, Chris Forth, Eric
Butterfill, John Fox, Sir Marcus
Freeman, Roger Major, Rt Hon John
French, Douglas Malins, Humfrey
Fry, Peter Mans, Keith
Gardiner, George Marland, Paul
Gill, Christopher Marlow, Tony
Glyn, Dr Alan Marshall, John (Hendon S)
Goodhart, Sir Philip Marshall, Michael (Arundel)
Goodlad, Alastair Martin, David (Portsmouth S)
Goodson-Wickes, Dr Charles Maude, Hon Francis
Gow, Ian Maxwell-Hyslop, Robin
Grant, Sir Anthony (CambsSW) Mayhew, Rt Hon Sir Patrick
Greenway, John (Ryedale) Meyer, Sir Anthony
Gregory, Conal Miller, Sir Hal
Griffiths, Peter (Portsmouth N) Mills, lain
Grist, Ian Mitchell, Andrew (Gedling)
Ground, Patrick Mitchell, Sir David
Grylls, Michael Monro, Sir Hector
Gummer, Rt Hon John Selwyn Montgomery, Sir Fergus
Hamilton, Neil (Tatton) Moore, Rt Hon John
Hampson, Dr Keith Morris, M (N'hampton S)
Hanley, Jeremy Morrison, Rt Hon P (Chester)
Hannam, John Moss, Malcolm
Hargreaves, A. (B'ham H'll Gr') Moynihan, Hon Colin
Hargreaves, Ken (Hyndburn) Mudd, David
Harris, David Neale, Gerrard
Haselhurst, Alan Needham, Richard
Hayes, Jerry Nelson, Anthony
Hayward, Robert Neubert, Michael
Heathcoat-Amory, David Newton, Rt Hon Tony
Heddle, John Nicholls, Patrick
Heseltine, Rt Hon Michael Onslow, Rt Hon Cranley
Higgins, Rt Hon Terence L. Oppenheim, Phillip
Hind, Kenneth Paice, James
Hogg, Hon Douglas (Gr'th'm) Patnick, Irvine
Holt, Richard Patten, John (Oxford W)
Hordern, Sir Peter Pattie, Rt Hon Sir Geoffrey
Howard, Michael Pawsey, James
Howarth, Alan (Strat'd-on-A) Peacock, Mrs Elizabeth
Howarth, G. (Cannock & B'wd) Porter, David (Waveney)
Howe, Rt Hon Sir Geoffrey Portillo, Michael
Hughes, Robert G. (Harrow W) Powell, William (Corby)
Hunt, David (Wirral W) Price, Sir David
Hunter, Andrew Raffan, Keith
Hurd, Rt Hon Douglas Raison, Rt Hon Timothy
Irvine, Michael Redwood, John
Irving, Charles Renton, Tim
Jack, Michael Rhodes James, Robert
Jackson, Robert Riddick, Graham
Janman, Tim Ridsdale, Sir Julian
Johnson Smith, Sir Geoffrey Roe, Mrs Marion
Jones, Gwilym (Cardiff N) Rossi, Sir Hugh
Key, Robert Rowe, Andrew
King, Roger (B'ham N'thfield) Rumbold, Mrs Angela
King, Rt Hon Tom (Bridgwater) Ryder, Richard
Kirkhope, Timothy Sackville, Hon Tom
Knapman, Roger Sainsbury, Hon Tim
Knight, Greg (Derby North) Scott, Nicholas
Knight, Dame Jill (Edgbaston) Shaw, David (Dover)
Knowles, Michael Shaw, Sir Giles (Pudsey)
Knox, David Shaw, Sir Michael (Scarb')
Lamont, Rt Hon Norman Shephard, Mrs G. (Norfolk SW)
Lang, Ian Shepherd, Colin (Hereford)
Latham, Michael Shersby, Michael
Lawrence, Ivan Sims, Roger
Lee, John (Pendle) Skeet, Sir Trevor
Lennox-Boyd, Hon Mark Smith, Tim (Beaconsfield)
Lightbown, David Soames, Hon Nicholas
Lilley, Peter Speller, Tony
Lloyd, Sir Ian (Havant) Stanbrook, Ivor
Lloyd, Peter (Fareham) Stanley, Rt Hon Sir John
Lord, Michael Steen, Anthony
Luce, Rt Hon Richard Stern, Michael
Lyell, Sir Nicholas Stevens, Lewis
McCrindle, Robert Stewart, Allan (Eastwood)
Macfarlane, Sir Neil Stewart, Andy (Sherwood)
Maclean, David Sumberg, David
McLoughlin, Patrick Summerson, Hugo
McNair-Wilson, Sir Michael Tapsell, Sir Peter
McNair-Wilson, P. (New Forest) Taylor, Ian (Esher)
Madel, David Taylor, John M (Solihull)
Tebbit, Rt Hon Norman Warren, Kenneth
Temple-Morris, Peter Watts, John
Thatcher, Rt Hon Margaret Wells, Bo wen
Thompson, D. (Calder Valley) Wheeler, John
Thompson, Patrick (Norwich N) Whitney, Ray
Thurnham, Peter Widdecombe, Ann
Townend, John (Bridlington) Wiggin, Jerry
Tredinnick, David Winterton, Mrs Ann
Trippier, David Winterton, Nicholas
Trotter, Neville Wolfson, Mark
Twinn, Dr Ian Wood, Timothy
Vaughan, Sir Gerard Woodcock, Mike
Viggers, Peter Yeo, Tim
Waddington, Fit Hon David Young, Sir George (Acton)
Wakeham, Rt Hon John Younger, Rt Hon George
Waldegrave, Hon William
Walden, George Tellers for the Noes:
Waller, Gary Mr. Tristan Garel-Jones and Mr. Tony Durant.
Ward, John
Wardle, Charles (Bexhill)

Question accordingly negatived

Motion made, and Question proposed, That the Committee do report progress and ask leave to sit again.—[Mr. Hurd.]

Mr. Hattersley

I do not propose to argue against the motion, but I want to say to the Home Secretary that if we are to have a proper debate on the Bill, such as we have had today, the time will have to come when the House sits long into the night. I hope that he understands that the fact that he asks the House to rise at this late—but not intolerably late—hour must not be used as an excuse for his future conduct, whatever that may be.

Mr. Winnick

On a point of order, Sir Paul. You were here during many of the deliberations of the Committee, and I think that you will agree that there has been no time-wasting, that no speaker, either for or against the amendments, has tried to prolong the debate and that there have been no wasted interventions during speeches. I hope that you accept that that is accurate of the past four hours and more of debate and that other clauses of great importance need to be debated, as is agreed by hon. Members of all parties.

It would be wholly unfair, in those circumstances, if the Government were to come back next week with a timetable motion. It would mean, in effect, that there would be no opportunity to discuss matters such as we have debated today. I know that the matter is outside your control, but all I am asking is that these remarks should be placed on record because it would be wholly wrong for a guillotine motion to be tabled as a result of the Government's lack of patience.

The First Deputy Chairman of Ways and Means (Sir Paul Dean)

As the hon. Gentleman has said, that is not a matter for the Chair, but he has placed his point on record.

Mr. Bob Cryer (Bradford, South)

On a point of order, Sir Paul. May I draw to your attention the fact that, during the last vote, which was on the character of what many hon. Members felt was an authoritarian Government, a Government Whip was listing all the Conservative Members who came out of the Aye Lobby? That is very strange conduct in view of the fact that our votes are on record. I can only assume that the Tory Whips of this authoritarian Government intended to intimidate Tory Members into voting according to the party line. Can you confirm that intimidation is a serious breach of our Standing Orders?

The First Deputy Chairman

That is hardly a point of order.

Mr. Gorst

Further to that point of order, Sir Paul. May I make it clear that the point made by the hon. Member for Bradford, North (Mr. Cryer) has no substance as far as I am concerned.

The First Deputy Chairman

All I can say to the Committee is that the debate has been in order

Question put and agreed to.

Committee report progress; to sit again tomorrow.